United States v. Tuyet Thi-Bach Nguyen ( 2010 )

FILED
NOT FOR PUBLICATION FEB 12 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30353
Plaintiff - Appellee, D.C. No. 2:05-cr-00270-RSL-3
v.
MEMORANDUM *
TUYET THI-BACH NGUYEN,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, Chief District Judge, Presiding
Argued and Submitted February 1, 2010
Seattle, Washington
Before: ALARCÓN, W. FLETCHER and RAWLINSON, Circuit Judges.
Appellant Tuyet Nguyen challenges her below-Guidelines sentence of 24
months for Introduction into Interstate Commerce of Misbranded Medical Devices
in violation of 21 U.S.C. §§ 331(a) and 333(a). Nguyen appeals the district court’s
application of three enhancements in calculating her sentence: 1) a 16-level
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
enhancement pursuant to U.S.S.G. § 2B1.1(b)(1)(I) for the total amount of loss of
over $1 million; 2) a two-level enhancement pursuant to U.S.S.G. § 2B1.1(b)(4)
for trafficking of stolen property; and, 3) a two-level enhancement pursuant to
U.S.S.G. § 3B1.1(c) based on her leadership role in the crimes.
I
The district court did not err in applying a 16-level enhancement pursuant to
U.S.S.G. § 2B1.1(b)(1)(I) for an amount of loss of over $1 million. The district
court properly found that the reversed convictions were relevant to the mislabeling
crimes and were proved by a preponderance of the evidence. See United States v.
Cruz-Gramajo, 570 F.3d 1162, 1171 (9th Cir. 2009) (“The provisions of § 1B1.3
are written broadly to provide sentencing judges maximum discretion, allowing
flexibility in their application to a variety of crimes and circumstances.”).
II
The district court did not err in adding a two-level enhancement to Nguyen’s
sentence pursuant to U.S.S.G. § 1B1.3 and U.S.S.G. § 2B1.1(b)(4) for trafficking
of stolen property. In applying the adjustments under the Sentencing Guidelines,
the district court can consider conduct involved in the reversed convictions that has
been proved by a preponderance of the evidence. United States v. Newland, 116
F.3d 400, 405 n.3 (9th Cir. 1997).
2
Even though receipt of stolen property was not an element of the crimes of
conviction, the district court did not err in applying the enhancement because the
reversed theft and conspiracy crimes were relevant to the crimes of conviction
under U.S.S.G. § 1B1.3 and were proved by a preponderance of the evidence. See
Cruz-Gramajo, 570 F.3d at 1170 (“The purpose of § 1B1.3 of the Guidelines,
Relevant Conduct, is to ‘capture the real offense behavior’ involved in defendant’s
conduct.”) (internal citation omitted).
III
The district court did not clearly err in applying a two-level enhancement to
Nguyen’s sentence pursuant to U.S.S.G. § 3B.1.1(c) based on her leadership role in
the crimes. Nguyen has failed to demonstrate that the district court’s application of
the two-level leadership enhancement was clearly erroneous. As such, the district
court’s two-level enhancement was warranted under U.S.S.G. § 3B1.1(c).
AFFIRMED.
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