United States v. Tong Nguyen ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-4113
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the District
v. * of Nebraska.
*
Tong Thanh Robert Nguyen, * [UNPUBLISHED]
also known as Robert Nguyen, *
*
Appellant. *
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Submitted: October 4, 2005
Filed: October 10, 2005
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Before ARNOLD, FAGG, and SMITH, Circuit Judges.
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PER CURIAM.
Tong Thanh Robert Nguyen pleaded guilty to conspiring to distribute and
possess with intent to distribute 50 grams or more of cocaine base, in violation of 21
U.S.C. § 846, and the district court* sentenced him to 135 months in prison and 5
years of supervised release. On appeal, Nguyen argues the district court should have
departed downward under U.S.S.G. § 4A1.3 because the seriousness of his criminal
history was overstated, and he should be resentenced under United States v. Booker,
*
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
125 S. Ct. 738 (2005), because the district court treated the Guidelines as mandatory
at his pre-Booker sentencing.
As to the first issue, Nguyen cannot challenge his 135-month prison sentence
because he specifically agreed to it in his plea agreement. See United States v.
Reyes-Contreras, 349 F.3d 524, 525 (8th Cir. 2003) (per curiam); United States v.
Nguyen, 46 F.3d 781, 783 (8th Cir. 1995). As to the second issue, Nguyen did not
raise a Sixth Amendment objection below, and he cannot demonstrate a reasonable
probability the district court would have imposed a lower sentence under advisory
Guidelines. See United States v. Pirani, 406 F.3d 543, 552-53 (8th Cir. 2005) (en
banc), petition for cert. filed, __ U.S.L.W. __ (U.S. July 27, 2005) (No. 05-5547).
Accordingly, we affirm the judgment of the district court.
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