                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 08 2010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. 09-50615

              Plaintiff - Appellee,              D.C. No. 2:08-cr-00796-ABC-1

  v.
                                                 MEMORANDUM *
RICHARD V. NGUYEN,

              Defendant - Appellant.



                   Appeal from the United States District Court
                       for the Central District of California
                 Audrey B. Collins, Chief District Judge, Presiding

                        Argued and Submitted June 8, 2010
                              Pasadena, California

Before:       TROTT and W. FLETCHER, Circuit Judges, and BREYER,
              District Judge.**




       Defendant-Appellant Richard Nguyen challenges his fifteen-month prison

sentence on the ground that the district court erroneously applied a two-level

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Charles R. Breyer, United States District Judge for the
Northern District of California, sitting by designation.
enhancement for “Abuse of Position of Trust,” see U.S.S.G. § 3B1.3, in arriving at

that sentence. We disagree and therefore AFFIRM.

      Section 3B1.3 of the Sentencing Guidelines provides that a defendant's

offense level should be increased by two levels “[i]f the defendant abused a

position of public or private trust, or used a special skill, in a manner that

significantly facilitated the commission or concealment of the offense.” U.S.S.G. §

3B1.3. The “decisive factor” in determining whether the defendant holds a

“position of trust” is whether the position is characterized by “professional or

managerial discretion.” United States v. Contreras, 581 F.3d 1163, 1165-66 (9th

Cir. 2009), adopted in relevant part by United States v. Contreras, 593 F.3d 1135

(9th Cir. 2009) (en banc).1

      Application note 3 to § 3B1.3 provides additional guidance on the

enhancement’s application.2 It states:


      1
          A district court’s determination that a defendant occupied a position of
trust is reviewed de novo. See United States v. Contreras, 581 F.3d 1163, 1164
(9th Cir. 2009). Any factual findings that the court made in arriving at that
determination are reviewed for clear error. See United States v. Riley, 335 F.3d
919, 925 (9th Cir. 2003).
      2
        “Application notes . . . are treated as authoritative interpretations of the
Sentencing Guidelines, unless they violate the Constitution or a federal statute or
are inconsistent with, or a plainly erroneous reading of, the Guideline they are
meant to interpret.” Contreras, 581 F.3d at 1165 n.3 (internal quotation marks
omitted).

                                            2
      This enhancement also applies in a case in which the defendant
      provides sufficient indicia to the victim that the defendant legitimately
      holds a position of private or public trust when, in fact, the defendant
      does not. For example, the enhancement applies in the case of a
      defendant who (A) perpetrates a financial fraud by leading an investor
      to believe the defendant is a legitimate investment broker . . . .

U.S.S.G. § 3B1.3 cmt. n.3 (2005).

      In order for § 3B1.3 to apply, then, Nguyen must have (1) purported to hold

a position characterized by “professional or managerial discretion” and (2)

provided his victim with “sufficient indicia” that he legitimately held such a

position. Both of these criteria are met here.

      With respect to the first, Nguyen held himself out as a mutual fund

manager/investment advisor who had broad discretion to choose investment

opportunities on behalf of his clients. See United States v. Davuluri, 239 F.3d 902,

909 (7th Cir. 2001) (affirming application of enhancement to investment advisor

who had “broad discretion to [invest] on behalf of the victim”). On his website,

www.bhshfunds.com, Nguyen offered for sale shares in two fictitious investment

funds, the M-1 and T-1 funds. He advertised these funds as “combin[ing] the best

of both active and passive portfolio management” and as “invest[ing] . . . in the

shares of a limited number of companies.” He also stated: “Founded in 1995,

Buyhigh.net – Buyhigh.org – Buyhigh.biz [websites affiliated with



                                           3
bhshfunds.com] provide[] stock picking services to individuals and institutions.

Our trading strategies bring an average of nearly three decades of trading

experience and perspective when servicing clients of the Firm.”

      These statements make clear that what Nguyen was offering for sale was

access to his “trading experience and perspective” and his ability to identify those

“limited number of companies” that would provide the highest return on

investment. It is true, as Nguyen maintains, that he was purporting to sell shares

in specific investments, the T-1 and M-1 funds. But, critically, those funds were

advertised as being owned and operated by Nguyen. They were, as a result, merely

the vehicle through which Nguyen exercised his professional discretion to invest

on behalf of his clients. In short, Nguyen held himself out as a mutual fund

manager; that position is one typically characterized by professional discretion.

See Contreras, 581 F.3d at 1165-66.

      Nguyen’s website also provided his victims with “sufficient indicia” that he

legitimately held the position as mutual fund manager. The website contained

professional-looking graphics and other features (such as a button labeled “Click to

talk to me”) that signaled that the mutual funds being offered were reputable. In

addition, the site informed potential investors that Nguyen and his company had

“nearly three decades of trading experience” and that the specific funds were


                                          4
founded in 1995. This purported investment experience provided investors with a

further indication that Nguyen was a legitimate fund manager.

      In sum, because Nguyen’s purported role as a mutual fund manager/investor

advisor is a position characterized by “professional and managerial discretion” and

because his website provided his victims with “sufficient indicia” that he

legitimately held that role, the district court did not err in applying the “Position of

Trust” enhancement.

      AFFIRMED.




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