U.S. response

14-4191-cr

In the United States Court of Appeals for the Second Circuit

United States of America,

Appellee,

v.

Dawn Nguyen,

Defendant-Appellant.

On Appeal from the United States District Court For the Western District of New York BRIEF FOR APPELLEE

UNITED STATES OF AMERICA

WILLIAM J. HOCHUL, JR. United States Attorney Attorney for Appellee United States Attorney’s Office 138 Delaware Avenue Buffalo, New York 14202 (716) 843-5892

JAMES P. KENNEDY, JR Assistant United States Attorney of Counsel

Case 14-4191, Document 80, 09/11/2015, 1596409, Page1 of 50

TABLE OF CONTENTS

Page No.

Table of Authorities ....................................................................................... i Preliminary Statement and Statement of Jurisdiction ..................................... 1 Statement of the Issue Presented for Review .................................................. 2 Combined Statement of the Case and Facts Relevant to this Appeal ............... 2

Nguyen Acts As Straw Purchaser ......................................................... 2 The Events of December 24, 212, and the Aftermath ............................ 4 Nguyen’s Sentencing ............................................................................ 9

Summary of the Argument .......................................................................... 18 Argument .................................................................................................... 19

The Sentence Imposed Was Neither Procedurally Nor Substantively Unreasonable and the District Court Did Not Abuse Its Discretion In Imposing the Sentence That It Did ................. 19 I. The Sentence Imposed Was Not Procedurally

Unreasonable ............................................................................ 20 A. Applicable Law ............................................................... 20 B. Discussion ....................................................................... 22 1. The District Court’s Mention of § 3553(b)

is Without Consequence ......................................... 22


2. The District Court Did Not Err In Its Conclusion That It Was Authorized To Consider Whether a Departure Was Warranted .............................................................. 23

3. The District Court Did Not Misapply

U.S.S.G. § 5K2.1 and § 5K2.2 ................................ 29 4. The District Court’s Factual Findings Are

Not Clearly Erroneous ........................................... 33 5. The District Court Did Not Fail to

Consider § 3553(a)(6) ............................................. 35 II. The Sentence Imposed Was Not Substantively

Unreasonable ............................................................................ 37 A. Applicable Law ............................................................... 37 B. Discussion ....................................................................... 38 Conclusion ....................................................................................... 41 Certificate of Compliance ......................................................... Attached Affidavit of Service .................................................................. Attached


i

TABLE OF AUTHORITIES

FEDERAL CASES Abramski v. United States, ---U.S.---, 134 S. Ct. 2259 (2014) ............................. 37 Gall v. United States, 552 U.S. 38 (2007) ................................................... passim Koon v. United States, 518 U.S. 81 (1996) ....................................................... 27 Rita v. United States, 551 U.S. 338 (2007) ...................................................... 32 United States v. Aitchison, 411 Fed.Appx. 358 (2d Cir. 2011) ...................... 30-31 United States v. Aldeen, 792 F.3d 247 (2d Cir. 2015) .................................. 20, 22 United States v. Broxmeyer, 699 F.3d 265 (2d Cir. 2012) .................................. 19 United States v. Cavera, 550 F.3d 180 (2d Cir. 2008) ....................... 21, 38, 39, 40 United States v. Chu, 714 F.3d 742 (2d Cir. 2013) ........................................... 20 United States v. Crosby, 397 F.3d 103 (2d Cir. 2005) ....................................... 32 United States v. Diosdado-Star, 630 F.3d 359 (4th Cir. 2011) ............................ 33 United States v. Fernandez, 443 F.3d 19 (2d Cir. 2006) .................................... 21 United States v. Fleming, 397 F.3d 95 (2d Cir. 2005) ....................................... 21 United States v. Florez, 447 F.3d 145 (2d Cir. 2006) ............................. 35, 38, 40 United States v. Gilmore, 599 F.3d 160 (2d Cir. 2010) ..................................... 23 United States v. Jiminez Beltre, 440 F.3d 514 (1st Cir. 2006) ............................. 21 United States v. Jones, 531 F.3d 163 (2d Cir. 2008) ......................................... 37


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United States v. McGowan, 315 Fed.Appx. 338 (2d Cir. 2009) ......................... 33 United States v. Merritt, 988 F.2d 1298 (2d Cir. 1993) ..................................... 26 United States v. Pimentel, 932 F.2d 1029 (2d Cir. 1991) ..................................... 9 United States v. Rivalta, 892 F.2d 223 (2d Cir. 1989) ....................................... 30 United States v. Simmons, 343 F.3d 72 (2d Cir. 2003) ...................................... 33 United States v. Sindima, 488 F.3d 81 (2d Cir. 2007) ....................................... 20 United States v. Stewart, 590 F.3d 93 (2d Cir. 2009) ........................................ 22 United States v. Streich, 987 F.2d 104 (2d Cir. 1993) .................................. 34, 35 United States v. Thavaraja, 740 F.3d 253 (2d Cir. 2014) .................................. 20 United States v. Tran, 519 F.3d 98 (2d Cir. 2008) ........................................... 21 United States v. Ventura, 146 F.3d 91 (2d Cir. 1998) ....................................... 26

FEDERAL STATUTES

18 U.S.C. § 922 ........................................................................................... 36 18 U.S.C. § 922(a)(6) ................................................................................. 1, 7 18 U.S.C. § 922(d)(1) ..................................................................................... 1 18 U.S.C. § 922(g)(3) ..................................................................................... 1 18 U.S.C. § 3553 .................................................................................... passim


iii

18 U.S.C. § 3742(a) ....................................................................................... 1 28 U.S.C. § 1291 ........................................................................................... 1

UNITED STATES SENTENCING GUIDELINES U.S.S.G. § 2K2.1(b)(5) ............................................................................. 9, 11 U.S.S.G. § 2K2.1(b)(6)(B) ................................................................. 23, 25, 26 U.S.S.G. § 2K2.1(c) ..................................................................... 23, 24, 25, 26 U.S.S.G. § 5K2.0 .................................................................................... passim U.S.S.G. § 5K2.0(a)(3) ................................................................................ 10 U.S.S.G. § 5K2.1 .................................................................................... passim U.S.S.G. § 5K2.2 .................................................................................... passim


1

PRELIMINARY STATEMENT AND STATEMENT OF JURISDICTION

The defendant-appellant, Dawn Nguyen, is serving a 96 month term of

imprisonment that was imposed by the district court [David G. Larimer, J.]

after Nguyen pled guilty to a three-count indictment which charged her with:

making false statements in connection with the acquisition of firearms, in

violation of 18 U.S.C. § 922(a)(6); disposing of a firearm to a convicted felon, in

violation of 18 U.S.C. § 922(d)(1); and possessing firearms as a drug user, in

violation of 18 U.S.C. § 922(g)(3). (A. 18-20).1 Nguyen chose to plead guilty to

the indictment without first reaching an agreement with the government.

(A. 177-185, 197-227). As a result, Nguyen preserved her right to have this

Court review her sentence. The Judgment in a Criminal Case, a final judgment

that disposes of all parties’ claims, was entered on September 24, 2014.

(SPA. 1-6). Nguyen, having received an extension of time from the district court

(A. 9, #80), filed a timely Notice of Appeal on November 5, 2014. (A. 622).

This Court has jurisdiction to review the conviction and sentence pursuant to 28

U.S.C. § 1291 and 18 U.S.C. § 3742(a).

1 References preceded by an “A.” are to pages of the three volume,

consecutively paginated Appendix filed by Nguyen. References preceded by an “SPA.” are to pages in the separately bound Special Appendix filed by Nguyen. “PSR” designations refer to paragraphs of Nguyen’s Pre-Sentence Investigation Report filed under seal.


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STATEMENT OF ISSUE PRESENTED FOR REVIEW

Whether it was procedurally and substantively unreasonable for the

district court to sentence Nguyen to an above-Guidelines term of imprisonment

for Nguyen’s crimes of lying to acquire and unlawfully obtaining and providing

firearms to William Spengler, where Nguyen—knowing Spengler to be a

convicted killer who she believed to be crazy and who she knew had expressed

an intention to kill again—obtained and gave such guns to Spengler, who, after

killing his sister and starting a fire, used one of the guns he got from Nguyen to

ambush and shoot four volunteer fireman who had responded to the

fire—killing two of them.

COMBINED STATEMENT OF THE CASE AND FACTS RELEVANT TO THIS APPEAL

Nguyen Acts As a Straw Purchaser

The underlying charges to which Nguyen pled involve her acting as a

straw purchaser, on June 6, 2010, of a Bushmaster .223 caliber semi-automatic

rifle and a Mossberg 12-gauge pistol-grip shotgun, for William Spengler, her

former neighbor and long-time acquaintance. While purchasing the firearms at

Gander Mountain, a licensed firearm dealer, Nguyen completed an ATF form

on which she falsely denied being an unlawful marijuana user and on which she

falsely stated that she was acquiring the guns for her own use. (A. 57-63).


3

Nguyen, in fact, purchased the guns for Spengler, who at times provided

Nguyen with marijuana and who Nguyen sometimes referred to as “Uncle

Billy” and “Crazy Billy.” (PSR ¶¶ 30-31).

As found by the sentencing court, before even purchasing the guns and

giving them to Spengler, Nguyen knew the following: (1) that Spengler had

previously been convicted of killing his grandmother, including the “gory”

details of how he did so by hitting her with a hammer and pushing her down the

stairs (A. 360, 602-605); (2) that Spengler was “crazy” (A. 606; PSR ¶ 28); and

(3) that Spengler had threatened and expressed his intent to kill again.

(A. 601-602).2 Despite such knowledge and a prophetic admonition from one of

her friends that she was crazy to do so (A. 362, 604), and after even her own

boyfriend refused to help her out and act as a straw purchaser for Spengler

(A. 512, 601-602),3 Nguyen herself went ahead and acquired the guns for

Spengler in exchange for $1,000. (A. 609-610).

2 In fact, Spengler told Nguyen’s mother, with whom Nguyen had a positive relationship and with whom she lived for a period of time (PSR ¶ 72), that killing was “no big deal” to him. (A. 508-509). 3 On the two occasions that Nguyen asked her then-boyfriend to act as a straw purchaser, his responses were “no” and “absolutely not.” (A. 512).


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The Events of December 24, 2012, and the Aftermath

Tragically, but unsurprisingly, Spengler subsequently used one of the

guns that Nguyen obtained for him to kill again. During the early morning

hours of Christmas Eve 2012, Spengler made good on a threat—a threat that

Nguyen herself admitted that Spengler had previously communicated to

her—to kill his own sister, Cheryl Spengler, upon their mother’s death. (PSR

¶ 24). Having shot his sister in the head in the basement of their residence at 191

Lake Road in Webster, New York, Spengler left the house. When local

firefighters and emergency personnel responded to Spengler’s house at

approximately 5:36 a.m. on December 24, 2012, following a report of a fire at

the residence, Spengler, who was laying-in-wait, opened fire. As firefighters

exited their vehicles, Spengler, positioned on a nearby berm, ambushed them

using the semi-automatic gun that Nguyen had given him (PSR ¶¶ 18, 19, 22).4

4 Notwithstanding appellate counsel’s assertion that “the record provides no basis for the [c]ourt’s finding” that Spengler used one of the two guns that Nguyen gave him to assassinate two firefighters and to maim two others (Appellant’s Br., p. 48), the fact of the matter is that before the district court the defense never even contested the government’s assertion that it was the Bushmaster .223 semi-automatic rifle that Spengler used to shoot the firemen. The lack of such objection is hardly surprising since, although it is de hors the record before this Court, a report prepared by the New York State Police regarding the shootings indicates that a forensic crime scene analysis revealed: (1) that Spengler fired 57 rounds, with 40 confirmed bullet strikes, from the Bushmaster .223 rifle that day; (2) that no rounds were discharged from the


5

Four firefighters were struck by bullets. (PSR ¶ 18). A Webster Police officer

who arrived at the scene retrieved his patrol rifle and exchanged gun fire with

Spangler. (PSR ¶ 18). The shooting continued for some time, and as a result,

attempts by emergency personnel to rescue the firefighters who had been shot

and who were still on the ground inside the gun fire zone were delayed. (PSR

¶ 22).

At approximately 5:58 a.m., police heard a single gunshot from a

secluded area of the berm north of Lake Road. That shot was Spangler’s last, as

he shot and killed himself. (PSR ¶ 19). In addition to a .38 caliber revolver

handgun, both the Bushmaster .223 caliber semi-automatic rifle and the shotgun

which Nguyen had previously provided to Spengler were found within a few

feet of Spengler’s body. (PSR ¶¶ 19, 20, 23). Hundreds of rounds of .223 caliber

ammunition and three (3) 30-round magazines for the semi-automatic rifle that

Spangler received from Nguyen were also located near his body. (PSR ¶ 19).

Two of the firefighters died that day having been shot by Spengler with the rifle

that Nguyen had provided to him, and two others were injured. (PSR ¶ 18).

In addition to the six people shot and four people (including Spengler and

his sister) killed by Spengler, seven houses, including Spengler’s own residence,

shotgun; and (3) that there was only a “single suicidal-discharge of the Smith and Wesson .38 special revolver during this incident.”


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burned completely to the ground that morning as fire crews were unable to

extinguish the fire because of the active shooter situation encountered by the

first responders. (PSR ¶ 22).

Subsequent investigation would reveal that in the immediate aftermath of

the incident on December 24, Nguyen was texting various friends about what

happened. In one of those text conversations, in response to a text from a friend

who had “[j]ust heard bout shit in Webster” and asked, “was it that crazy dude

u guys always talked bout?” Nguyen responded, “Yup, lol.” Nguyen continued,

“Dude billy was at my house three weeks ago. I wake up at 9. See whats

happening and KNOW FOR SURE whos doing it….Hes def had it planned.”

(PSR ¶ 28). In another conversation later that same evening, Nguyen after

indicating, “we were really close to the killer,” told one of her friends who had

asked whether she thought Spengler could kill again, “yes, we knew he was

going to kill his sister…because she called the cops on him because he sold

drugs.” (PSR ¶ 29).

Later that evening on December 24, 2012, law enforcement officials first

interviewed Nguyen. During that interview, Nguyen lied to authorities and

stated that she purchased the guns for her own protection and that they were

stolen from her vehicle. Nguyen did admit, however, that Spengler had


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previously told her that he planned to kill his sister once his mother died. (PSR

¶ 24).5

Within days of the shootings, investigators had determined that Nguyen

lied on the ATF Form 4473 which she had completed at the Gander Mountain

store when she bought the guns for Spengler on June 6, 2010. (PSR ¶ 26).

Specifically, Nguyen falsely indicated that she was the actual purchaser of the

firearms and that she was not purchasing the guns on behalf of another person.

In addition, on the form, she also falsely denied being a marijuana user.

(A 221-222).

On December 28, 2012, a federal criminal complaint was filed against

Nguyen charging a violation of 18 U.S.C. § 922(a)(6)( making false statements

in connection with the acquisition of firearms) and ATF agents arrested her at

her residence. (PSR ¶ 27). That same day, New York State charges were also

filed against Nguyen for falsifying business records in connection with her

completion of the ATF Form. (PSR ¶ 51). Following a trial in NYS Court,

Nguyen was convicted of falsifying business records in the first degree, in

violation of New York State Penal Law 175.10, a Class E Felony. With the

evidence at the trial showing that Nguyen received $1,000 from Spengler for

5 In fact, Spengler’s mother died two months before his Christmas Eve killing spree. (A. 609).


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acquiring the guns for him, the New York State County Court Judge who

sentenced defendant, on July 14, 2014, to the maximum term of imprisonment

of an indeterminate term of one and one-third to four years (A. 502), stated the

following:

She put in the hands of a man[,] who killed his grandmother with a hammer[,] two killing guns. This punishment can’t fit this crime. What she did was terrible. This isn’t somebody hiding the books and records of the 7-Eleven to hide a $2500 theft. She put two killing guns in this man’s hands for a thousand dollars. She put her needs, her desires, her wants, her greed so far in front of this community it’s horrific. But all I have is an E-felony. That’s all there is. That is all that she is charged with. But what she did was so much worse. It’s so unconscionable that you take those two guns and put them in that man’s hands. Nothing, nothing, nothing, good was ever going to come of that. Now, could she have foreseen what he was going to do on Christmas Eve, 2012? I doubt it. I don’t think anybody could have foreseen that. But you know what? But for – as much as you argue against it – but for her, he would not have had those guns that morning. She put those guns in his hands and she did it for a thousand dollars. And when she took that thousand dollars to put those killing guns in his hands, she sold all the rest of us out. This punishment does not fit the crime. It does not in any way punish her for what she did because it’s limited. I can only sentence her to one and a third to four years in prison. That’s what she is going to get. What she did is a lot worse.

(A. 501).


9

Thereafter, on August 18, 2014, Nguyen appeared in federal court and

pled guilty without a plea agreement to the three-count indictment which was

pending against her. (A. 197-227). In the government’s statement filed pursuant

to United States v. Pimentel, 932 F.2d 1029 (2d Cir. 1991), the government

expressed its view that following a 3-level reduction for her acceptance of

responsibility, Nguyen, with a total offense level of 15 and criminal history

category of I, was facing a Guidelines term of imprisonment of 18 to 24 months.

(A. 179-185).

Nguyen’s Sentencing

Following Nguyen’s guilty pleas, a PSR was prepared. The Guidelines

calculations contained in the PSR were identical to those expressed by the

government at the time of the plea. (PSR ¶¶ 36-47, 57).

Defendant objected to only a few limited portions of the PSR.

(A. 228-233). Disputing that she had engaged in firearm “trafficking,” Nguyen,

suggesting that she “merely did a favor for a neighbor” (A. 231), argued that the

4-level upward adjustment pursuant to Guidelines § 2K2.1(b)(5) (trafficking in

firearms) did not apply and that, therefore, her total offense level was properly

calculated at 11 and her resultant sentencing range for imprisonment was 8 to 14

months. Maintaining that Gander Mountain was the only “victim” in this case


10

and refuting the Probation Officer’s suggestion that Nguyen was indirectly

responsible for Spengler’s victimization of the firefighters, defense counsel

instead contended that Nguyen’s only knowledge of Spengler’s past came from

her family, that she was unaware of the details of Spengler’s grandmother’s

death, and that Spengler’s statements about wanting to kill his sister “were never

taken seriously.” (A. 231-232).

The government, requesting that the court sentence Nguyen to 10 years in

prison, submitted a voluminous motion seeking an upward departure and/or a

variance. (A. 270-514). Specifically, the government claimed that the sentencing

factors set forth in 18 U.S.C. § 3553(a) warranted an above-the range sentence

(A. 272-293) and that Guideline § 5K2.0(a)(3)(Departures Based Upon

Circumstances to a Degree Not Adequately Taken Into Consideration) warranted an

upward departure from the otherwise applicable Guidelines range.

(A. 293-294). The crux of the government’s argument was that since the

“high-powered rifle provided by Nguyen” was used “to murder two of the

volunteer firemen and seriously injure two others” (A. 270), a sentence beyond

the otherwise applicable sentencing range was warranted. Neither in her reply to

the objections to the PSR nor in her reply to the government’s departure motion

before the district court did Nguyen ever in any way dispute that Spengler used


11

the rifle that she purchased and gave to him to shoot the four firemen.

(A. 521-533).

Prior to sentencing, the district court put the parties on notice that in

addition to considering the government’s requests for a variance from the

Guidelines based upon the § 3553(a) factors and a departure from the

Guidelines based upon § 5K2.0, it was also considering upward departures

based on Guidelines § 5K2.1 (death) and § 5K2.2 (physical injury). (A. 520).

At sentencing, the district court began by noting that the statutes to which

Nguyen pled guilty were enacted for the very purpose of preventing guns from

falling into the wrong hands, which, according to the court, was precisely what

this case was about. (A. 560). Finding that the PSR had appropriately calculated

the Guidelines and denying the defense objection regarding the applicability of

the 4-level enhancement provided for in Guidelines § 2K2.1(b)(5)(trafficking in

firearms), the sentencing court determined the applicable Guidelines range was

18 to 24 months. (A. 569). Neither Nguyen nor her attorney noted any

additional objections to the PSR. (A. 570).

Following arguments by Nguyen’s counsel (A. 573-585) and the

government (A. 586-593), the sentencing judge posited a hypothetical question

to defense counsel asking whether the defense position was that what happened


12

with the firearms was essentially irrelevant to Nguyen’s case. (A. 595). Defense

counsel indicated that what happened to the guns was irrelevant for purposes of

sentencing, agreeing with the sentencing judge’s suggestion that “the fact that

there were the horrific shootings that occurred out there . . . is Mr. Spengler’s

problem, not Ms. Nguyen’s?” (A. 596).

The sentencing court indicated that after much consideration it had

determined that this case was “atypical” and “unusual” and that there existed

many aggravating circumstances which “when you take them all together or

many of them separately would warrant a sentence outside of the 18 to 24

month range.” (A. 601). In that regard, the court began by observing that when

Nguyen was first contacted by the police on the day of the shooting she lied and

told the police that the firearms had been stolen from her.

The court went on to note that Nguyen, prior to committing the crime

herself sought to have somebody else do it for her, as she approached her

then-boyfriend and asked him to buy guns for her neighbor. Noting that her

boyfriend adamantly refused to do so, the sentencing judge indicated that he

could not help but reflect upon “how different things would be if Ms. Nguyen

had followed his advice and backed away from this enterprise.” (A. 602).


13

Next, citing a variety of evidence, including what he determined to be the

credible testimony at the New York State trial of Nicole Stringer, the sentencing

judge expressly found that Nguyen had knowledge, even before she purchased

the guns for Spengler, of the “gory details” of Spengler having previously been

convicted for killing his grandmother with a hammer. (A. 602-605). As the

sentencing judge put it:

Why would someone give two weapons like this to a person like that who had been convicted, whether it was five years ago or 15 years ago or 30 years ago? That was a grave, grievous, aggravating circumstance which put the community at grave risk.

But I think there is more here that just takes this case out of an ordinary case.

(A. 605).

Among the additional factors that the sentencing judge found had been

established by a preponderance of the evidence were the following: Nguyen’s

knowledge, even before she purchased the guns for Spengler, of Spengler’s

mental instability, including her belief that he was crazy (A. 606);6 Nguyen’s

awareness, again even before she purchased the guns for Spengler, of Spengler’s

6 The court asked the rhetorical question, “Is this the kind of person who you think is real crazy, who has been convicted once before, you want to load him up with $1,400 worth of very lethal firearms?” (A. 606).


14

threat to kill again (A. 607-609); and Nguyen’s receipt of $1,000 from Spengler

in return for her purchasing the guns and providing them to him (A. 609-610).

After reciting these factors, the sentencing judge noted that he had

considered not only the § 3553(a) factors but the things under § 3553(b) that he

found made “this case atypical, that is, not in the ordinary, not the ordinary

straw purchase case.” (A. 610). In discussing the § 3553(a) factors, the

sentencing judge made the following observation:

I understand Ms. Nguyen was not on that beach shooting unsuspecting, unarmed first responders.

The Court must also make sure its sentence

affirms and underscores respect for law. I think a strong sentence would accomplish this.

The statute that prohibits certain individuals

from possessing firearms needs to be respected and fully enforced.

There’s another factor which I think [the

government] referenced and that is the specific factor that courts are directed to consider and that is deterrence. I think that is one of the most important factors here.

I’m not worried about deterring Ms. Nguyen. I

really think and hope, believe that she has now appreciated the tremendous harm that flowed from the terribly bad decision she made.


15

But I’m more concerned with deterring others in the community that might be faced with the same opportunity to purchase firearms for a person like Mr. Spengler or not.

This is a major factor for the Court here. Obtaining a firearm, whether it’s for hunting or

protection, makes no difference. The message needs to be heard and received that allowing prohibited persons from engaging and trafficking in firearms involves significant consequences if those firearms are utilized in a criminal matter, just like Ms. Stringer warned Ms. Nguyen.

(A. 611-612).

Notwithstanding defense counsel’s objection that what happened on

Christmas Eve was irrelevant, the sentencing judge, after discussing variances

and departures, determined that it was appropriate to consider what happened

on Christmas Eve since “Ms. Nguyen’s acts [‘that is, enabling a prohibited

person [to] obtain[] firearms’] enabled Mr. Spengler to wreak the havoc that he

did.” (A. 613).

The court went on to note that there were “two other sentencing guideline

sections that I think are relevant here, and they speak to death and serious

injury.” (A. 614). In discussing U.S.S.G. § 5K2.1, the judge observed that he

had previously advised the parties that he was “at least thinking about a

departure under this section.” (A. 614). Picking up on that guideline’s reference


16

to the “extent to which death or serious injury was … knowingly risked” as a

factor to be considered in determining the extent to which a sentence ought to be

increased above the authorized guideline range, the sentencing judge indicated

that such phrase “jump[ed] out” at him, as that was “precisely, I think, what

happened here.” (A. 614).

The court cited a number of cases in which upward departures were

granted where individuals engaged in offense conduct which “knowingly

risked” danger and harm to others. (A. 615-617). Significantly, however, the

court also determined that the conduct in those cases was “less egregious”

(A. 615) and “more benign” (A. 616) than that of Nguyen. The court continued:

As I said many times, it’s hard for me to imagine a more dangerous circumstance than what occurred here. To me injury was certainly knowingly risked by providing Mr. Spengler, a convicted murderer, people knew were [sic] ‘crazy,’ who had made numerous statements that were well-known of his intent to kill again, and who actually did kill again, not only his own sister, but tragically those who chose to support and defend and help the community by responding to emergencies. Lives forever altered, forever changed. So, Ms. Nguyen, at some length those are the reasons I believe that a sentence above the Guidelines range of 18 to 24 months is warranted in this case. And I impose a sentence of a variance of the guidelines for the reasons I’ve tried to articulate and also reference 5K2.1 and 5K2.2 in the guidelines themselves, when there’s death or serious injury, that warrant the Court


17

in not sentencing as if this were just the typical garden variety straw purchase case. It’s anything but the typical case.

(A. 618).

The court then principally imposed concurrent sentences of 96-months’

imprisonment on each of Ms. Nguyen’s three counts of conviction and ordered

that the sentence be imposed to run concurrently to her New York State

sentence. (A. 619). The court added that it “believe[d] this sentence is sufficient

and that a longer sentence would be more than necessary.” (A. 619).

In its written Statement of Reasons, the sentencing judge offered a

fifteen-paragraph, multi-page, detailed explanation setting forth his reasons for

concluding that both “a variance from the applicable Guidelines” and “a

departure” under the Guidelines were warranted. (See Statement of Reasons). In

that Statement of Reasons, the Court checked the boxes for 5K2.1 (death) and

5K2.2 (physical injury) as its “Reasons for Departure” and also checked the box

indicating that it was granting a “departure from the advisory guideline range

for reasons authorized by the sentencing guidelines manual.” (See Statement of

Reasons, p. 2).

This appeal ensued. (A. 622).


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SUMMARY OF ARGUMENT

With Nguyen facing a combined statutory maximum term of 30 years

imprisonment for the crimes to which she pled guilty, the district court’s

decision to impose a sentence of 8 years imprisonment did not constitute an

abuse of discretion, and the sentence imposed was neither procedurally nor

substantively unreasonable. The sentencing court’s decision to grant an upward

departure and variance was justified on the grounds that Nguyen, in acting as a

straw purchaser and providing a Bushmaster .223 caliber semi-automatic rifle

and a Mossberg 12-gauge pistol-grip shotgun to William Spengler, armed an

individual who: (1) she knew had previously been convicted and incarcerated

for killing his own grandmother by bludgeoning her with a hammer; (2) she

believed to be crazy; and (3) she knew had expressed an intent to kill again.

Those facts combined with the fact that Spengler—having made good on his

threat, a threat known to Nguyen, to murder his own sister following his

mother’s death—set a trap for unsuspecting firemen and, using one of the guns

he had obtained from Nguyen, assassinated two volunteer first responders and

seriously injured two others, support the sentencing court’s determination that

both an upward departure and upward variance were warranted. Further, the

district court’s decision to send a deterrent message that allowing prohibited


19

persons from engaging and trafficking in firearms involves significant

consequences if those firearms are utilized in a criminal matter can hardly be

considered improper. Having appropriately calculated the applicable

Sentencing Guidelines range, considered the § 3553(a) factors, made factual

findings which were not clearly erroneous, and explained its reason for choosing

the sentence that it imposed, the district court’s decision to grant the upward

departure/variance and to exercise its discretion in selecting the sentence

imposed was entirely reasonable and provides no occasion for this Court to

substitute its own judgment for that of the sentencing judge.

ARGUMENT

The Sentence Imposed Was Neither Procedurally Nor Substantively Unreasonable And The District Court Did Not Abuse Its Discretion In Imposing The Sentence That It Did

Nguyen challenges both the procedural and substantive reasonableness of

her sentence. This Court reviews sentences for procedural and substantive

reasonableness under a “deferential abuse-of-discretion standard.” Gall v. United

States, 552 U.S. 38, 41 (2007); see United States v. Broxmeyer, 699 F.3d 265, 278

(2d Cir. 2012) (“[O]ur standard is ‘reasonableness,’ ‘a particularly deferential

form of abuse-of-discretion review.’”) (quoting United States v. Cavera, 550 F.3d


20

180, 188 & n.5 (2d Cir. 2008) (en banc)); see also United States v. Thavaraja, 740

F.3d 253, 258 (2d Cir. 2014).

I. The Sentence Imposed Was Not Procedurally Unreasonable

A. Applicable Law

“A sentence is procedurally unreasonable if the district court ‘fails to

calculate (or improperly calculates) the Sentencing Guidelines range, treats the

Sentencing Guidelines as mandatory, fails to consider the § 3553(a) factors,

selects a sentence based on clearly erroneous facts, or fails adequately to explain

the chosen sentence.’” United States v. Aldeen, 792 F.3d 247, 251 (2d Cir. 2015)

(quoting United States v. Chu, 714 F.3d 742, 746 (2d Cir. 2013) (internal quotation

marks omitted)).

The sentencing court must “state in open court the reasons for its

imposition of [a] particular sentence,” 18 U.S.C. § 3553(c), and where the

sentence is outside an advisory Guidelines range, the court must also state “the

specific reason” for the sentence imposed, in open court as well as in

writing—“with specificity in a statement of reasons form” that is part of the

judgment, id. § 3553(c)(2). See generally United States v. Sindima, 488 F.3d 81, 85

(2d Cir. 2007). The sentencing court’s “statement of reasons must at least

explain—in enough detail to allow a reviewing court, the defendant, his or her


21

counsel, and members of the public to understand—why the considerations

used as justifications for the sentence are ‘sufficiently compelling [ ] or present to

the degree necessary to support the sentence imposed.” Id. at 86 (alteration in

original) (citation and quotation omitted).

This Court has adopted a presumption that a sentencing court has

faithfully discharged its duty to consider the statutory factors outlined in 18

U.S.C. § 3553 in the absence of record evidence suggesting otherwise. United

States v. Fernandez, 443 F.3d 19, 31 (2d Cir. 2006). “As long as the judge is aware

of both the statutory requirements and the sentencing range or ranges that are

arguably applicable, and nothing in the record indicates misunderstanding

about such materials or misperception about their relevance, [this Court] will

accept that the requisite consideration has occurred.” United States v. Jiminez

Beltre, 440 F.3d 514, 519 (1st Cir. 2006) (citing United States v. Fleming, 397 F.3d

95, 100 (2d Cir. 2005)); see also United States v. Tran, 519 F.3d 98, 107 (2d Cir.

2008).

When a district judge deviates from an advisory Guidelines range, it must

consider the “extent of the deviation and ensure that the justification is

sufficiently compelling to support the degree of the variance.” Cavera, 550 F.3d

at 189 (quoting Gall, 552 U.S. at 50). Where there is a variance, on appellate


22

review, “we may take the degree of variance into account and consider the

extent of a deviation from the Guidelines.... [A] major departure should be

supported by a more significant justification than a minor one.” United States v.

Stewart, 590 F.3d 93, 135 (2d Cir. 2009) (internal quotation marks omitted).

B. Discussion

Here, the district judge appropriately calculated the Sentencing

Guidelines which he acknowledged were advisory, was aware of the statutory

penalties provided for under the offenses of conviction, fully considered the

§ 3553(a) factors, did not commit clear error in making any factual findings, and

provided a full and detailed explanation, both orally and in writing, of his

reason for choosing the sentence that he did. As such, the sentence imposed was

not procedurally unreasonable. See Aldeen, 792 F.3d at 251.

1. The District Court’s Mention of § 3553(b) is Without Consequence

Nguyen begins by chastising the district judge and claiming that the

sentence he imposed was procedurally unreasonable since the court made

reference to § 3553(b), the statute excised by the United States v. Booker , 543 U.S.

220 (2005), in suggesting that a Guidelines departure was warranted. See

Appellant’s Br., pp. 37-38. As best the government can determine, the district

court referred to that section once at sentencing as he was describing those


23

factors which made “this case atypical, that is, not in the ordinary, not the

ordinary straw purchase case” (A. 610) and once in his written Statement of

Reasons when he stated, “I determined that a variance from the applicable

Guidelines was warranted, pursuant to 18 U.S.C. § 3553(b). I found that there

were several significant factors of a kind and to a degree not adequately taken

into consideration by the Sentencing Commission in formulating the

Guidelines.” (Statement of Reasons, p. 2).

This argument borders on frivolous. This Court has recognized that the

standards for departure originally set forth in § 3553(b) are replicated in

U.S.S.G. § 5K2.0, and thus, any error in referring to the statute is “without

consequence.” United States v. Gilmore, 599 F.3d 160, 169 (2d Cir. 2010).

2. The District Court Did Not Err In Its Conclusion That It Was Authorized to Consider Whether a Departure Was Warranted

Nguyen attempts to impart some “consequence” to the Court’s reference

by suggesting that the sentencing court’s (and the parties’) failure to consider the

applicability of U.S.S.G. § 2K2.1(b)(6)(B) and § 2K2.1(c)’s sentencing

enhancements somehow precluded the court from determining that an upward

departure and/or variance was warranted based, in part, upon its finding that

the defendant knowingly risked death and bodily injury to others. See Appellant’s

Br., pp. 39-45. Nguyen appears to argue that by not considering U.S.S.G.


24

§ 2K2.1(b)(6)(B) (relating to a specific offense characteristic increase for

“transferr[ing] any firearm…with knowledge, intent, or reason to believe that it

would be used or possessed in connection with another felony offense”) and

§ 2K2.1(c) (relating to a cross reference for application of the murder guidelines

where death results), the sentencing court somehow elevated the departure

provisions of U.S.S.G. § 5K2.0 to be on equal footing with the § 3553(a) factors,

such that the court “fail[ed] to give adequate consideration to the factors listed

in 18 U.S.C. § 3553(a) rendering the variance and its extent procedurally

unreasonable.” See Appellant’s Br., p. 40.

Notwithstanding Nguyen’s suggestion that the court made “a mountain

from a molehill,” Appellant’s Br., p.39, or had “the tail wagging the dog,”

Appellant’s Br., p. 40 n.28, the assertion that the court somehow misapprehended

its departure authority or gave undue importance to the Guidelines is simply

unfounded. Indeed, a review of the entire record reveals that the sentencing

judge—a judge with nearly 30-years of experience (A. 600)— was well aware of

his obligation to conduct a thorough review of the factors set forth in § 3553(a)

and that he discharged that obligation. (A. 571-573; A. 598-619; Statement of

Reasons, p.4 [“I have also considered the several factors listed under 18 U.S.C.

§ 3553(a)]). As the district court correctly stated at sentencing, “Guidelines are


25

directed in cases that are in the heartland, that is, typical cases. But if the Court

finds a case that’s not typical, where the conduct differs from the norm, the

Court may consider whether a variance or departure is warranted.” (A. 600).

Here, the court found that the circumstances of this case made it “atypical,

unusual” and unlike the typical straw purchaser cases that he had seen in his

nearly 30 years on the bench. (A. 600-601). As a result, the court determined

that a departure was justified.

Nguyen argues that the sentencing court’s failure to apply Guideline

§ 2K2.1(b)(6)(B) and § 2K2.1(c), rendered improper the court’s determination

that it was entitled to consider whether upward departures under § 5K2.1 and

§ 5K2.2 were warranted. See Appellant’s Br., pp. 41-45. Although neither the

government nor Nguyen ever advocated to the district court that it ought to

apply the upward increases set forth in Guidelines § 2K2.1(b)(6)(B) or

§ 2K2.1(c), Nguyen now argues that because such increases were at least

“contemplated” under the Guidelines section applicable to the offenses of

conviction, it was error for the sentencing court to apply the upward departures

it did.

First, Nguyen’s argument ignores the fact that regardless of what the

guidelines may “contemplate,” here neither U.S.S.G. § 2K2.1(b)(6)(B) or


26

§ 2K2.1(c), in fact, figured into the applicable guideline range determined by the

sentencing judge. As this Court has recognized, judicial review of a district

court’s application of the Guidelines, “is not limited to determining whether the

Commission merely ‘considered’—i.e., mentioned—a subject. Rather, the test

focuses on the adequacy of the consideration.” United States v. Merritt, 988 F.2d

1298 (2d Cir. 1993) (citation and quotation omitted). Stated simply,

“consideration of a factor by the Commission does not bar departure.” Id. Thus,

assuming arguendo that the sentencing court had applied one or more of those

Guidelines enhancements, even such application would not necessarily

preclude the sentencing court from also choosing to depart under U.S.S.G.

§ 5K2.0.7

Moreover, “[a] court may depart even though the reason for departure is

taken into consideration in the guidelines (e.g., as a specific offense

characteristic or other adjustment), if the court determines that, in light of

unusual circumstances, the guidelines level attached to that factor is

inadequate.” United States v. Ventura, 146 F.3d 91, 96 (2d Cir. 1998) (quotation

marks and citations omitted). Here, given that the court did not, in fact, apply

7

For example, had the court here applied § 2K2.1(b)(6)(B) or § 2K2.1(c), departures might nevertheless have been warranted based on the fact that there were multiple deaths and injuries as both of those Guidelines contemplate departures for multiple deaths or injuries.


27

either of the Chapter 2 enhancements mentioned by defendant in calculating her

applicable Guideline range, the suggestion that the sentencing court was, as a

result, barred from considering U.S.S.G. § 5K2.0 departure defies logic. Indeed,

the rigid and hyper-formalistic reading of the Guidelines advocated by Nguyen

is contrary to the Guidelines themselves. The Sentencing Commission itself has

instructed the courts generally that they must not apply the Guidelines

mechanistically, but instead should apply the touchstone of whether the offense

before them falls within the “heartland” of the applicable Guideline:

The Commission intends the sentencing courts to treat each guideline as carving out a “heartland,” a set of typical cases embodying the conduct that each guideline describes. When a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted.

U.S.S.G. Ch.1, Pt. A, intro. comment.4(b), quoted in Koon v. United States, 518

U.S. 81, 93 (1996).

Here, the sentencing court clearly determined that this case fell outside of

the heartland of cases involving straw gun purchasers and involved “many”

aggravating circumstances. (A. 600-601). Among those circumstances identified

by the sentencing judge that brought this case out of the “heartland” were the

following:


28

That Nguyen lied when she was first contacted by the police (A. 601);

That Nguyen did what she did, after first asking her then boyfriend to

break the law, and he absolutely refused to do it (A. 601);

That Nguyen knew, prior to purchasing the guns and giving them to

Spengler, that Spengler had a prior conviction and that such conviction

related to the death of his grandmother and involved him killing her with

a hammer (A. 602-604);8

That Nguyen knew, prior to purchasing the guns and giving them to

Spengler, that Spengler had said that he was going to kill his sister

(A. 607-609);

That Nguyen knew (as did others), prior to purchasing the guns and

giving them to Spengler, that Spengler was mentally unstable (A. 606);

That Nguyen, who herself characterized Spengler as “real crazy,”

“load[ed]-up” Spengler, a person she knew to have been convicted of

killing previously, with “$1,400 worth of very lethal firearms” (A. 606);

8 As Judge Larimer observed, such knowledge “should [have] raise[d] not one, but hundreds of red flags that maybe this is not the kind of person you want to be giving guns to.” (A. 602).


29

That after Nguyen made the purchase, one of her friends told her “your

[sic] crazy for doing that because if something happens, it will come back

on you” (A. 604);9

That despite what she knew and heard and learned, she did nothing to

alert authorities (A. 609);

That two individuals were killed and two others were severely injured “by

virtue of the weapons” that Nguyen gave Spengler (A. 612); and

That the person to whom Nguyen provided weapons did not simply

possess them; instead, “[h]e used them mercilessly” and that Nguyen’s

conduct allowed him “to wreak the havoc that he did” (A. 613).

Having set forth all of the foregoing as the reasons for its determination that the

circumstances of this case took it out of the heartland of straw purchaser cases,

the sentencing court’s decision to consider whether an upward departure was

authorized may hardly be considered erroneous.

3. The District Court Did Not Misapply U.S.S.G. § 5K2.1 and § 5K2.2

Notwithstanding the district court’s explicit findings both on the record at

the time of sentencing (A. 614-615) and in its written statement of reasons

9 The sentencing court determined that in response to such warning, Nguyen replied, “ha, ha, its okay, it’s not a big deal, it’s nothing.” (A. 362, 610).


30

(Statement of Reasons, p. 5) that Nguyen, in doing what she did, “knowingly

risked” death and serious injury, Nguyen next maintains that the district court

somehow misapplied U.S.S.G. § 5K2.1 and § 5K2.2. See Appellant’s Br.,

pp. 45-48.

Section 5K2.1 permits a court to increase a sentence above the authorized

guideline range “if death resulted” from the defendant’s conduct. Similarly,

§ 5K2.2 permits a court to increase a sentence above the authorized guideline

range “if significant physical injury resulted” from the defendant’s conduct.

Here, the district court found a causal connection between the Nguyen’s

conduct and the deaths and injuries sustained by the firemen on Christmas Eve.

(A. 612-613).

As the text of § 5K2.1 makes clear, a “substantial increase” is appropriate

if death of the victim was “knowingly risked,” even in the absence of an intent to

cause death. See United States v. Rivalta, 892 F.2d 223, 233 (2d Cir. 1989)

(departure authorized under § 5K2.1 where death intended or knowingly

risked). Moreover, Nguyen’s suggestion that no departure would be warranted

if a defendant merely acted “recklessly,” see Appellant’s Br., p. 47, is refuted by at

least one previous ruling by this Court. See United States v. Aitchison, 411

Fed.Appx. 358, 360-361 (2d Cir. 2011) (affirming 5-year upward departure


31

under § 5K2.2, where district court found that defendant acted “recklessly” and

such “state of mind, coupled with the significant extent of the victim's injury,

supported the five-year departure here imposed.”).10

Finally, that multiple people were killed and injured also supports the

departure. See U.S.S.G. § 5K2.1 (recognizing that an “appropriate factor” to be

considered is “whether multiple deaths resulted and means by which life was

taken.”); see also U.S.S.G. § 5K2.2 (noting that under this Guideline, “[i]n

general, the same considerations apply as in § 5K2.1.”).

Here, the district court made it clear that it believed that both a departure

and a variance were warranted. In addition to the death and serious injury

departures it found warranted, the district court also emphasized its belief that

§ 3553(a)(2)(B)’s requirement that the sentence “afford adequate deterrence to

criminal conduct” justified a variance. As Judge Larimer, echoing his

sentiments at sentencing (A. 611-612), indicated in his Statement of Reasons,

“[i]t is important that those who traffic in firearms realize that should those

weapons be used by a prohibited person, there are consequences to the person

providing the firearms. Therefore, I believe deterrence is an important reason to

10 “Denying summary orders precedential effect does not mean that the Court considers itself free to rule differently in similar cases.” United States v. Payne, 591 F. 3d 46, 58 (2d Cir. 2010) (quoting Order dated June 26, 2007, adopting 2d Cir. Local R. 32.1).


32

impose a sentence at variance with the applicable Guidelines.” Statement of

Reasons, p. 4. Thus, the district court clearly believed that both guidelines

departures and a variance were warranted in this case.

The Supreme Court’s post-Booker precedents, in clarifying the expansive

scope of district court discretion to sentence outside applicable Guidelines, have

used the terms “departure” and “variance” interchangeably. Gall, 552 U.S. at

50. The Court has also observed that district courts “may depart” from the

Guidelines “either pursuant to the Guidelines or, since Booker, by imposing a

non-Guidelines sentence,” Rita v. United States, 551 U.S. 338, 350 (2007). In so

doing, it is not the sequence of the sentencing court’s inquiry that matters, but its

demonstration of “a reasoned basis” for its sentencing decision. Id. at 356

(recognizing that degree of explanation required will vary with circumstances).

Even before the Supreme Court emphasized the enhanced flexibility of

district courts’ post-Booker sentencing discretion, this Court had recognized that

sentencing judges were not required to resolve all Guidelines-related issues “if

the judge has fairly decided to impose a non-Guidelines sentence” in any event.

United States v. Crosby, 397 F.3d at 112 (referencing complex issues). Relying on

Crosby, this Court has summarily rejected a claim of procedural error based on

the district court’s failure to consider within-Guidelines departures before


33

opting for an above-Guidelines variance. See United States v. McGowan, 315

Fed.Appx. 338, 341–42 (2d Cir. 2009) (summary order); see also United States v.

Diosdado–Star, 630 F.3d 359, 362–65 (4th Cir. 2011) (rejecting claim of

procedural error based on district court’s failure to address within-Guidelines

departure before imposing above-Guidelines sentence); cf. United States v.

Simmons, 343 F.3d 72, 78–79 (2d Cir. 2003) (rejecting “mechanistic,

step-by-step” procedure for calculating within-Guidelines upward departures).

The district court’s determination that both departures and a variance were

warranted—and the factual findings he articulated in support of that

determination—further undermines any claim of procedural error based upon

the district court’s decision to rely upon U.S.S.G. § 5K2.1 and § 5K2.2 as the

basis for the decision to increase Nguyen’s sentence beyond that provided for

under the otherwise applicable Guidelines.

4. The District Court’s Factual Findings Are Not Clearly Erroneous

Defendant asserts that the sentencing court committed procedural error in

reaching its factual determinations: (1) that the firearm that Spengler used to

shoot the first responders was the rifle that Nguyen provided, Appellant’s Br., pp.

48-49; and (2) that Spengler was mentally unstable and that Nguyen knew it.

Appellant’s Br., pp. 49-53. Such conclusions were not clearly erroneous.


34

Notwithstanding Nguyen’s appellate counsel’s assertion that “the record

provides no basis for the [c]ourt’s finding” that Spengler used one of the two

guns that Nguyen gave him to assassinate two firefighters and to maim two

others (Appellant’s Br., p. 48), before the district court the defense never

contested the government’s assertion that it was the Bushmaster .223

semi-automatic rifle that Nguyen purchased and gave to Spengler that was used

to shoot the four firefighters. Moreover, the PSR indicates that Spengler used a

rifle to shoot the four firemen (PSR ¶ 18) and that the only rifle found with

Spengler on December 24 was the one he obtained from Nguyen. (PSR ¶ 19).

The defense never objected to these portions of the PSR. If a defendant “fail[s]

to contest the allegations contained in the PSR ... the court [is] entitled to regard

them as true.” United States v. Streich, 987 F.2d 104, 107 (2d Cir. 1993).

With respect to the Nguyen’s knowledge of Spengler’s mental instability,

defense counsel is simply repeating arguments which were made by defense

counsel—and rejected by the district court—at sentencing. Nguyen, knowing

that Spengler had previously killed his own grandmother with a hammer, in a

text message she sent on the day of the shootings, described him as “real crazy”

and admitted that he was the crazy dude she “always talked” about. (PSR ¶ 28).

That evidence, combined with the fact that she and her family referred to him as


35

“Crazy Billy” (PSR ¶ 31), provide sufficient basis to support the sentencing

court’s conclusion that she had knowledge that he was mentally infirm. In view

of the foregoing, it may hardly be said that the sentencing court committed clear

error in making the factual findings that it did. Defendant did not controvert the

factual basis for these findings, and her failure to do so, entitled Judge Larimer,

as already noted, to regard them as true. Streich, 987 F.2d at 107.

5. The District Court Did Not Fail to Consider § 3553(a)(6)

As her final argument in support of her claim of procedural

unreasonableness, Nguyen asserts that the sentencing failed to consider

§ 3553(a)(6)’s requirement that the sentence imposed “avoid unwarranted

sentencing disparities among defendants with similar records who have been

found guilty of similar conduct.” Appellant’s Br., pp. 53-56. “[T]he requirement

that a sentencing judge consider an 18 U.S.C. § 3553(a) factor is not

synonymous with a requirement [that] the factor be given determinative or

dispositive weight in the particular case.” United States v. Florez, 447 F.3d 145,

157 (2d Cir. 2006) (internal quotation marks omitted) (emphasis in original). At

the sentencing hearing, the district court not only explicitly stated that it had

considered the § 3553(a) factors (A. 571-572, A. 610), but it also found that this

case was “atypical, unusual, and [that] there [we]re aggravating circumstances”


36

which distinguished this case from the ordinary straw purchaser case. (A. 601).

Those circumstances include, inter alia, that Nguyen knew the person to whom

she was providing the guns was a convicted killer, whom she believed to be

crazy, and whom she knew had said he would kill again. That knowledge,

combined with the fact that the person to whom she provided the guns used one

of them to kill two people, to injure two others severely, and to inhibit

firefighters from responding such that a fire to a single dwelling resulted in a

conflagration that destroyed seven homes, justifies the departures imposed by

the court. In view of those facts and the upward departures granted in this case,

any disparity between the sentence imposed here and the sentences imposed in

other straw purchaser cases is not unwarranted.

As the Supreme Court recently recognized, “Congress’s principal purpose

in enacting the [18 U.S.C. § 922] statute [was] to curb crime by keeping firearms

out of the hands of those not legally entitled to possess them.” Abramski v. United

States, ---U.S.---, 134 S.Ct. 2259, 2268 (2014) (citations and quotations omitted).

Here, by giving guns to a crazed, convicted killer, who had vowed to kill

again— Nguyen’s actions go far beyond simply giving guns to one who was

“not legally entitled to possess them.” Nguyen, through her conduct,


37

successfully defeated Congressional intent by engaging in behavior which can

only be characterized as promoting, rather than curbing, crime.11

II. The Sentence Imposed Was Not Substantively Unreasonable

Finally, Nguyen argues that having been convicted of three felony

violations, each of which carried a maximum possible sentence of 10 years

imprisonment, the aggregate sentence of 96 months imprisonment was

substantively unreasonable. Appellant’s Br., pp. 57-61.

A. Applicable Law

This Court “will set aside a district court’s substantive determination only

in exceptional cases where the trial court's decision cannot be located within the

range of permissible decisions.” Cavera, 550 F.3d at 189 (internal citation and

quotation marks omitted). There is no precise single punishment that will

constitute the only reasonable sentence in a given case. United States v. Jones, 531

F.3d 163, 173, 174 (2d Cir. 2008). Thus, in conducting a reasonableness review,

this Court must not substitute its own judgment for that of the sentencing judge

11 As part of her argument, Nguyen offers a fictitious scenario suggesting that had things been different, i.e, had Spengler not used the guns he got from Nguyen to shoot the first responders, her sentence would have been reduced. Appellant’s Br., p. 31. Such counterfactual speculation is, in the government’s view, useless in making the relevant determination of whether a sentencing court has discharged its obligation of making an “individualized assessment” of what sentence is warranted according to the facts of a particular case. See Gall, 552 U.S. at 50.


38

and should remain mindful that the weight to be given to any particular § 3553

factor is a matter firmly committed to the discretion of the sentencing judge and

is beyond appellate review, as long as the sentence ultimately imposed is

reasonable in light of all the circumstances presented. Florez, 447 F.3d at 158.

The percentage of a variance from the applicable Guidelines does not

signal substantive unreasonableness. See Cavera, 550 F.3d at 190 (citing Gall, 552

U.S. at 47)(in explaining that while appellate court may consider extent of

deviation from Guideline in reviewing sentence, it may not “employ a rigid

mathematical formula that uses the percentage of a departure as the standard for

determining the strength of the justifications required for a specific sentence.”).

B. Discussion

As dissatisfied as Nguyen may be with it, the record clearly demonstrates

that this sentence is the product of the district court’s sound exercise of its

fully-informed discretion and does not go beyond (or even near) the boundary of

the district court’s range of permissible decisions, nor does it even approach the

limits set by Congress in establishing a statutory maximum of ten years

imprisonment for each of the three offenses of which Nguyen was convicted. In

the end, Nguyen’s argument boils down to a claim that there is no basis to tie

Nguyen’s crimes of June 6, 2010, to the events of December 24, 2012. What


39

such argument ignores, however, is that Nguyen, as she concedes, knew

Spengler very well and was “close” to him. See Appellant’s Brief, p. 60. Contrary

to her attorney’s suggestion, however, Nguyen is not being punished for what

she did not know on June 6, 2010. Rather, Nguyen is being punished for what

she did know on that date. Specifically, as detailed extensively above, Nguyen,

knowing Spengler to be a convicted killer, knowing Spengler to be crazy,

knowing Spengler to have threatened to kill again, and knowing Spengler to

desire something that the law prohibited him from obtaining for himself,

delivered to him just what he wanted. Thereafter, Spengler used one of the guns

Nguyen acquired for him to kill at least two individuals and to injure seriously

two others. Indeed, it is this knowledge of the history and characteristics of the

person for whom she was obtaining the gun, combined with the subsequent

actions of that person (which were at least consistent with her knowledge of his

character at the time of her crime), which take this case out of the heartland of

“straw buyer” cases and which justified not only the district court’s decision to

grant an upward departure but also its decision to view deterrence as a “major”

§ 3553(a) factor to be considered under all of the facts and circumstances

presented.


40

That the district court did not go along with the government’s request that

it impose the statutory maximum sentence and, instead, chose a sentence which

was less than what it could have imposed reveals that the district court carefully

tailored its punishment to Nguyen's unique circumstances in order to achieve

the goals of sentencing. See Cavera, 550 F.3d at 191. Stated succinctly, Nguyen’s

claim is nothing more than a request that this Court substitute its judgment for

that of the district court. In light of this Court’s holding in Florez, the argument

should be rejected as inappropriate and the judgment of the district court should

be affirmed.


41

CONCLUSION

Based upon the foregoing, the judgment and sentence of the district court

should, in all respects, be affirmed.

Dated: Buffalo, New York, September 11, 2015.

Respectfully Submitted,

WILLIAM J. HOCHUL, JR. United States Attorney Western District of New York 138 Delaware Avenue Buffalo, New York 14202

By: s/James P. Kennedy, Jr.

JAMES P. KENNEDY, JR. Assistant U. S. Attorney Of counsel


UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT_________ UNITED STATES OF AMERICA, Appellee, CA # 14-4191-cr -v- DAWN NGUYEN, Defendant-Appellant. ______________________________________ I, JAMES P. KENNEDY, JR., Assistant United States Attorney for the

Western District of New York, hereby certify that the foregoing brief complies

with the 14,000 word limitation permitted by the court in that the brief is

calculated by the word processing program to contain approximately 9,000

words, exclusive of the Table of Contents, Table of Authorities and Addendum

of Statutes and Rules.

s/James P. Kennedy, Jr. JAMES P. KENNEDY, JR. Assistant U.S. Attorney


AFFIDAVIT OF SERVICE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT__________ UNITED STATES OF AMERICA, Appellee, CA # 14-4191-cr -v- DAWN NGUYEN, Defendant-Appellant. _______________________________________ STATE OF NEW YORK) COUNTY OF ERIE ) ss: CITY OF BUFFALO ) The undersigned hereby certifies that she is an employee of the United States Attorney’s Office for the Western District of New York and is a person of such age and discretion as to be competent to serve papers. That on September 11, 2015, she mailed the attached Brief for Appellee, United States of America, by placing an original and five copies in an envelope addressed to the United States Court of Appeals for the Second Circuit and one copy to Appellant, at the place and address stated below, and by entrusting said envelope and contents to the United States Postal Service. Addressee: United States Court of Appeals (1 original and 5 copies) Second Circuit Attn: Catherine O’Hagan-Wolfe Clerk of the Court 40 Foley Square New York, New York 10007 Andrew H. Freifeld, Esq. (1 copy, regular mail) Law Office of Andrew H. Freifeld 30 Vesey Street, 6th Floor New York, New York 10007


Further, pursuant to 2d Cir. Local Rule 25.1 (effective January 20, 2010), that on September 11, 2015, she electronically filed the attached Brief for Appellee, United States of America, which had been found to be virus free using Trend Micro, with the Second Circuit Court of Appeals using its CM/ECF which would then electronically notify the parties listed below. Andrew H. Freifeld, Esq. s/Laura Rogers LAURA ROGERS Legal Assistant Sworn to before me this 11th day of September, 2015 Monica J. Richards MONICA J. RICHARDS Notary Public, State of New York Qualified in Erie County My Commission Expires 11-25-2018


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