     14-4191-cr
     United States v. Nguyen

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 16th day of December, two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                PIERRE N. LEVAL,
 8                GUIDO CALABRESI,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               14-4191-cr
16
17       DAWN NGUYEN,
18                Defendant-Appellant.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        ANDREW H. FREIFELD, Law Office
22                                             of Andrew H. Freifeld, New York,
23                                             NY.
24
25       FOR APPELLEE:                         JAMES P. KENNEDY, JR., for
26                                             William J. Hochul, Jr., United
27                                             States Attorney for the Western
28                                             District of New York, Buffalo,
29                                             NY.

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 1
 2        Appeal from a judgment of the United States District
 3   Court for the Western District of New York (Larimer, J.).
 4
 5        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 6   AND DECREED that the judgment of the district court be
 7   AFFIRMED.
 8
 9        Dawn Nguyen appeals from the judgment of the United
10   States District Court for the Western District of New York
11   (Larimer, J.) convicting her of (i) making false statements
12   in connection with the acquisition of a firearm, (ii)
13   disposing of a firearm to a convicted felon, and (iii)
14   possessing firearms as a drug user. Nguyen was sentenced
15   chiefly to 96 months’ imprisonment. Nguyen challenges the
16   reasonableness of her sentence. We assume the parties’
17   familiarity with the underlying facts, the procedural
18   history, and the issues presented for review.
19
20        1. We review a sentence for procedural reasonableness
21   under a “deferential abuse-of-discretion standard.” Gall v.
22   United States, 552 U.S. 38, 41 (2007). That means a
23   district court’s application of the Sentencing Guidelines is
24   reviewed de novo and its factual findings are reviewed for
25   clear error. United States v. Cossey, 632 F.3d 82, 86 (2d
26   Cir. 2011). A sentence is procedurally unreasonable if the
27   district court “fails to calculate (or improperly
28   calculates) the Sentencing Guidelines range, treats the
29   Sentencing Guidelines as mandatory, fails to consider the §
30   3553(a) factors, selects a sentence based on clearly
31   erroneous facts, or fails adequately to explain the chosen
32   sentence.” United States v. Aldeen, 792 F.3d 247, 251 (2d
33   Cir. 2015) (quoting United States v. Chu, 714 F.3d 742, 746
34   (2d Cir. 2013)). When a district court deviates from the
35   Sentencing Guidelines range, “it must consider the extent of
36   the deviation and ensure that the justification is
37   sufficiently compelling to support the degree of the
38   variance.” Id. at 252 (internal quotation marks and
39   citations omitted).
40
41        Nguyen fails to establish that the district court
42   committed any procedural error. The district court
43   appropriately weighed the factors laid out in § 3553(a) and
44   reasonably determined that the Sentencing Guidelines did not
45   sufficiently account for the severity of Nguyen’s conduct
46   and culpability. See United States v. Gilmore, 599 F.3d
47   160, 169 (2d Cir. 2010). As a result, the district court

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 1   considered whether an upward departure pursuant to §§ 5K2.1
 2   (“death”) and 5K2.2 (“significant physical injury”) was
 3   necessary. Death and significant physical injury
 4   unquestionably resulted from Nguyen’s crimes. Coupling this
 5   fact with the finding that Nguyen acted “recklessly” in
 6   providing firearms to Spengler — whom she knew to be a
 7   mentally unstable, convicted violent felon who mused aloud
 8   about killing his sister — provided the district court with
 9   a sufficient basis to invoke an upward departure under §§
10   5K2.1 and 5K2.2. See, e.g., United States v. Aitchison, 411
11   Fed. App’x 358, 360-61 (2d Cir. 2011).
12
13        Contrary to Nguyen’s argument, the enhancements in §§
14   2K2.1(b)(6)(B) and 2K2.1(c) do not mean that all of the
15   circumstances of her offense were adequately taken into
16   consideration in determining the guidelines range, such that
17   departure was not warranted under §§ 5K2.1 and 5K2.2. The
18   particulars of her offense, such as the multiple deaths and
19   injuries that resulted (both deemed relevant under §§ 5K2.1
20   and 5K2.2), and the mayhem and massive property destruction,
21   authorize departure beyond the § 2K2.1 enhancements, under
22   the provisions of § 5K2.
23
24        Nguyen’s challenge to the district court’s factual
25   findings similarly fails. Based on the evidence presented
26   in the pre-sentence report and at the sentencing hearing,
27   the district court had a more than adequate basis for
28   finding that (i) the firearm Spengler used to shoot the
29   firefighters was one that Nguyen had provided him, and (ii)
30   Nguyen believed Spengler to be “crazy.”
31
32        2. Our review of the substantive reasonableness of a
33   sentence is “particularly deferential”: we will set aside
34   sentences as substantively unreasonable “only in exceptional
35   cases where the trial court’s decision cannot be located
36   within the range of permissible decisions”; that is, where
37   the sentence “shocks the conscience,” “constitutes a
38   manifest injustice,” or “allowing [it] to stand would damage
39   the administration of justice.” Aldeen, 792 F.3d at 255
40   (internal quotation marks and citations omitted).
41
42        The district court had sound reasons to deviate upward
43   from the Sentencing Guidelines range. Nguyen (i) knew that
44   Spengler had previously been convicted of killing his
45   grandmother with a hammer, (ii) knew that Spengler had
46   voiced an intent to kill his sister, (iii) believed Spengler
47   to be “crazy,” and (iv) lied to police about being a straw

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 1   man purchaser for Spengler. Thus, Nguyen’s conduct falls
 2   well outside the heartland of straw man purchase cases. On
 3   this record, the district court’s sentence of 96 months’
 4   imprisonment is “within the range of permissible decisions.”
 5   Id.
 6
 7        Accordingly, and finding no merit in Nguyen’s other
 8   arguments, we hereby AFFIRM the judgment of the district
 9   court.
10
11                              FOR THE COURT:
12                              CATHERINE O’HAGAN WOLFE, CLERK
13
14




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