                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS           March 22, 2006
                        FOR THE FIFTH CIRCUIT
                                                           Charles R. Fulbruge III
                       ))))))))))))))))))))))))))                  Clerk

                             No. 05-10094

                       ))))))))))))))))))))))))))

                      UNITED STATES OF AMERICA,

                         Plaintiff–Appellee,

                                  v.

                             DUC NGUYEN,

                        Defendant–Appellant.


           Appeal from the United States District Court
                for the Northern District of Texas
                   Criminal No. 4:04-CR-100-A(3)



Before JONES, Chief Judge, and WIENER and PRADO, Circuit Judges.

PER CURIAM:*

     Duc Nguyen pled guilty to a drug offense pursuant to a plea

agreement, but reserved the right to appeal the district court’s

denial of his motions to suppress seized evidence and oral

statements.    Nguyen claims that the district court erred by

denying his motions to suppress.       Nguyen also contends that his

sentence violates the Sixth Amendment because it was based in

part on facts that were not admitted by him or found beyond a


     *
       Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIRCUIT
RULE 47.5.4.
reasonable doubt by a jury.   For the reasons that follow, we

AFFIRM the district court’s ruling on Nguyen’s motions to

suppress, VACATE his sentence and REMAND for resentencing.

I. Background

     In September 2003, Drug Enforcement Administration (“DEA”)

investigators received information that a man named “Jeff” was

distributing large quantities of methamphetamine, cocaine, and

marijuana.   “Jeff” was subsequently identified as Jeff Sibley.

On March 11, 2004, investigators began watching Sibley’s

apartment.   During the surveillance, DEA task force officers saw

Nguyen visit Sibley’s apartment and leave about two hours later.

Less than one hour after Nguyen left, investigators executed a

search warrant at Sibley’s apartment.   Sibley and Patrick Jason

Wright were inside the apartment at the time of the search.

     During that search, investigators found 771.5 grams of

methamphetamine (490.4 grams of “actual methamphetamine”)1 on a

counter top in Sibley’s apartment, in plain view.   After

receiving Miranda warnings, Sibley told investigators that he had

bought about one and a half pounds of methamphetamine for $16,000

from Nguyen, who Sibley later identified.2   Sibley stated that he

     1
       Presumably, 771.5 grams was the weight of the mixture
containing methamphetamine, and 490.4 grams was the weight of the
pure form of methamphetamine.
     2
       There is some ambiguity in the record as to how Sibley
identified Nguyen. The search warrant says Sibley identified
Nguyen in a lineup of Asian males, but the briefing states that
Sibley identified Nguyen in a photo spread.

                                 2
bought two to three pounds of “Ice” (a pure form of

methamphetamine) from Nguyen every week for about $11,000 per

pound.

     On March 12, investigators identified Nguyen’s residence

through his license plate number.    DEA task force officer Kevin

K. Brown applied for, and was issued, a state search warrant for

Nguyen’s house, located at 1111 Edenbrook Drive, Arlington,

Tarrant County, Texas.   During the execution of the search

warrant investigators found a small amount of cocaine in a

bathroom drawer, two shotguns, one rifle, three handguns, and

Nguyen’s Texas concealed handgun license.   Nguyen was present

during the search, and investigators found $1,254 cash in his

pocket.   After receiving Miranda warnings, Nguyen told the

officers that he had $20,000 in a safe in the closet of his

master bedroom.   He initially claimed the money was from the sale

of a business, but later admitted that $16,000 of the money was

from the sale of methamphetamine to Sibley the day before.

II. Procedural History

     Nguyen and co-defendants Sibley and Wright were charged in a

four-count indictment.   Nguyen was charged in two counts of the

indictment.   He pled guilty, pursuant to a written plea

agreement, to possession with intent to distribute more than 500

grams of a mixture or substance containing a detectable amount of




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methamphetamine.3   Nguyen expressly reserved the right to appeal

the district court’s denial of his motions to suppress seized

evidence and oral statements.   The district court sentenced

Nguyen to 230 months of imprisonment and five years of supervised

release.   Nguyen then timely appealed.

III. Discussion

     Nguyen argues that the district court erred in denying his

motion to suppress evidence seized from his house and motion to

suppress oral statements made to law enforcement officers, as a

result of the search of his home.    He contends that there was no

probable cause supporting the warrant to search his house and

that the good-faith exception does not apply; thus, Nguyen claims

the evidence should be suppressed under the exclusionary rule.4

As the argument goes, although there may have been probable cause

to believe he was involved in illegal drug activities, there was

no nexus between the location searched and the evidence sought.

     In reviewing a district court’s denial of a motion to

suppress, we review factual findings for clear error and

     3
       Count One, which charged Nguyen, Sibley, and Wright with
conspiracy to possess a controlled substance with intent to
distribute, was dismissed as to Nguyen at sentencing on the
government’s motion, under the provisions of the plea agreement.
     4
       The exclusionary rule is “a judicially created remedy
designed to safeguard Fourth Amendment rights generally through
its deterrent effect, rather than a personal constitutional right
of the party aggrieved.” United States v. Leon, 468 U.S. 897,
906 (1984). When appropriately invoked, the exclusionary rule
allows the suppression of the fruits of a search that is in
violation of the Fourth Amendment. Id. at 905.

                                 4
conclusions as to the constitutionality of law enforcement action

de novo.     United States v. Kelley, 140 F.3d 596, 601 (5th Cir.

1998).     When a search warrant is involved, we follow a two-step

process.     United States v. Cherna, 184 F.3d 403, 407 (5th Cir.

1999).     First, we ask whether the good-faith exception to the

exclusionary rule applies.     Id.    “The good-faith exception

provides that where probable cause for a search warrant is

founded on incorrect information, but the officer’s reliance upon

the information’s truth was objectively reasonable, the evidence

obtained from the search will not be excluded.”         United States v.

Cavazos, 288 F.3d 706, 709 (5th Cir. 2002).         If the good faith

exception applies, we end our analysis and affirm the district

court’s denial of the motion to suppress.       Cherna, 184 F.3d at

407 (“If the good-faith exception applies, we need not reach the

question of probable cause.”).       If the good faith exception does

not apply, we proceed to the second step, and ask whether the

magistrate issuing the warrant had a substantial basis for

concluding that probable cause existed.       Id.

     Nguyen argues that the good-faith exception to the

exclusionary rule does not apply because the warrant was based on

an affidavit so lacking in indicia of probable cause that belief

in the existence of probable cause was entirely unreasonable.

See id. at 407-08. In considering whether the affidavit had

sufficient indicia of probable cause to search Nguyen’s house, we


                                     5
must determine if the affidavit “establish[ed] a nexus between

the house to be searched and the evidence sought.”    United States

v. Broussard, 80 F.3d 1025, 1034 (5th Cir. 1996).    The nexus may

be established “by direct observation or through normal

inferences as to where the articles sought would be located.”

Id.

      Nguyen’s claim is unavailing.   The affidavit in this case

contains specific assertions by Officer Brown that: (1)

surveillance established that Nguyen had been in Sibley’s

apartment on March 11, 2004, the day that a large amount of

methamphetamine was found there, (2) Sibley said that Nguyen sold

him two to three pounds of methamphetamine a week for four months

at $11,000 per pound, (3) Sibley identified Nguyen as the man who

sold him the drugs for $16,000, (4) Nguyen was involved in

distributing large amounts of methamphetamine in exchange for

large amounts of cash, and (5) Nguyen’s car was observed at his

residence on March 12, 2004, and Nguyen was the owner of the

residence.   In addition, the warrant included statements that

drug dealers often keep contraband in their residences.

      The warrant sought “To Search For and Seize Evidence Items

associated with the Distribution of Methamphetamine” at Nguyen’s

home.   Officer Brown’s affidavit established a nexus between the

residence and the illegal activity through normal inferences as

to where the articles sought would be located.    United States v.


                                 6
Pace, 955 F.2d 270, 277 (5th Cir. 1992) (“The affidavit must

connect . . . the residence to be searched with the illegal

activity, but this nexus may be established through normal

inferences as to where the articles sought would be

located.”)(internal citation and quotations omitted); see United

States v. Freeman, 685 F.2d 942, 949 (5th Cir. 1982) (explaining

that continuing illegal activity strengthens the inference that

the articles sought will be located in a participant’s house);

United States v. Maestas, 546 F.2d 1177, 1180 (5th Cr. 1977)

(“[E]vidence that a defendant has stolen material which one

normally would expect him to hide at his residence will support a

search of his residence.”).

     The good faith exception applies, and the district court did

not err in denying Nguyen’s motion to suppress items seized from

his residence.   We need not reach the second step of the

analysis.

     Nguyen also argues that his sentence violated the Sixth

Amendment, under Blakely v. Washington, 542 U.S. 296 (2004) and

United States v. Booker, 543 U.S. 220 (2005).   He contends the

district court committed Booker error when it enhanced his

sentence based upon factual determinations he did not admit and

that were not found beyond a reasonable doubt by a jury.

Specifically, Nguyen points out he was sentenced on the basis of




                                 7
possession of: (1) “methamphetamine actual,”5 rather than

methamphetamine,6 (2)thirty-two pounds of methamphetamine, and (3)

a firearm, in furtherance of his drug distribution activities.

The government concedes that, in light of Booker, the district

court erred in sentencing Nguyen under a mandatory guidelines

system, without having jury findings beyond a reasonable doubt on

the challenged sentencing factors.

     Nguyen adequately preserved Booker error by his Blakely

objections raised in the district court.    See United States v.

Akpan, 407 F.3d 360, 376 (5th Cir. 2005).   When a defendant

preserves error “we will ordinarily vacate the sentence and

remand, unless we can say the error is harmless.”    Id.   The

government argues that the Booker error was harmless because the

district court stated:

    Well, I think had it not been for this defendant’s
    cooperation I would be inclined to sentence [him] at the
    top of the guideline range.     I am going to take into
    account his cooperation in determining where to sentence,
    and I’m going to sentence him actually a little below the
    middle of the guideline range.

These statements do not prove beyond a reasonable doubt that the

district court would have imposed the same sentence had it acted


     5
       “methamphetamine actual” and “actual methamphetamine” are
used interchangeably in the briefs.
     6
       In the factual resume, Nguyen admitted that he had
possessed, with intent to distribute, “663.5 grams of a mixture
and substance containing a detectable amount of methamphetamine.”
He did not admit to any particular quantity of “methamphetamine
actual.”

                                8
under an advisory guidelines regime.   See Akpan, 407 F.3d at 377.

The government has not met its burden to show the error was

harmless.

IV. Conclusion

     For the reasons above, we AFFIRM the district court’s ruling

on Nguyen’s motions to suppress and VACATE and REMAND for

resentencing.

     AFFIRMED; VACATED AND REMANDED for resentencing.




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