United States v. Nhan Nguyen

Filing

PER CURIAM OPINION FILED - THE COURT: Lavenski R. Smith, Pasco M. Bowman and C. Arlen Beam (UNPUBLISHED) [3979381] [11-3517]

United States Court of Appeals
For the Eighth Circuit
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No. 11-3517
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Nhan Nguyen
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Arkansas - Ft. Smith
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Submitted: November 12, 2012
Filed: November 29, 2012
[Unpublished]
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SMITH, BOWMAN, and BEAM, Circuit Judges.
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PER CURIAM.
Nhan Nguyen pleaded guilty to conspiring to distribute more than fifty grams
of a mixture or substance containing methamphetamine, 21 U.S.C. §§ 841(a)(1),

Appellate Case: 11-3517

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Date Filed: 11/29/2012 Entry ID: 3979381

841(b)(1)(B)(viii), and 846, and the District Court1 sentenced Nguyen to 125 months
in prison. On appeal, Nguyen challenges his sentence, arguing that the court erred in
adopting a base-offense level of 32 as recommended in the Presentence Investigation
Report without requiring the government to prove by reliable evidence a quantity of
methamphetamine attributable to him that supports a base-offense level of 32 under
the drug-quantity table at §2D1.1 of the U.S. Sentencing Guidelines Manual.
We need not address Nguyen’s argument that the District Court’s drug-quantity
calculation was flawed because Nguyen’s sentence was based not on the quantity of
methamphetamine attributable to him but on the court’s conclusion that Nguyen is a
career offender—a conclusion that Nguyen does not challenge on appeal. See United
States v. Gaddy, 532 F.3d 783, 790 (8th Cir.) (“[W]e need not determine whether
sufficient evidence supports the district court’s finding because the drug quantity
finding was superseded by [the defendant’s] status as a career offender.”), cert. denied,
555 U.S. 1019 (2008); cf. United States v. Adams, 154 F. App’x 562 (8th Cir. 2005)
(unpublished per curiam) (holding that district court’s error in drug-quantity
calculation was harmless given defendant’s career-offender status). Thus, even if
Nguyen’s base-offense level had been determined on the lesser quantity of
methamphetamine that Nguyen argues is attributable to him, his sentencing range
under the advisory guidelines would still be driven by the higher base-offense level
applicable to Nguyen as a career offender. See U.S. Sentencing Guidelines Manual
§ 4B1.1. Accordingly, we reject Nguyen’s argument and affirm the judgment of the
District Court.
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1

The Honorable Robert T. Dawson, United States District Judge for the Western
District of Arkansas.
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Date Filed: 11/29/2012 Entry ID: 3979381