United States v. Van Nguyen

Filing

PER CURIAM OPINION FILED - THE COURT: James B. Loken, Diana E. Murphy and Duane Benton (UNPUBLISHED) [4478403] [16-3120]

United States Court of Appeals
For the Eighth Circuit
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No. 16-3120
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Van Phong Nguyen
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Davenport
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Submitted: November 30, 2016
Filed: December 12, 2016
[Unpublished]
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Before LOKEN, MURPHY, and BENTON, Circuit Judges.
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PER CURIAM.
Federal prisoner Van Phong Nguyen appeals the district court’s1 denial of his
Federal Rule of Criminal Procedure 36 motion. We affirm.

1

The Honorable John A. Jarvey, Chief Judge, United States District Court for
the Southern District of Iowa.

Appellate Case: 16-3120

Page: 1

Date Filed: 12/12/2016 Entry ID: 4478403

In 2008, Nguyen was sentenced to 210 months in prison, after a jury in the
Southern District of Iowa convicted him of conspiracy to distribute
methylenedioxymethamphetamine, a.k.a. ecstasy, in violation of 21 U.S.C. §§ 846,
841(b)(1)(C), 851. In his Rule 36 motion, Nguyen sought to have his sentence
modified to reflect the district court’s intent to give him sentencing credit for time
served on an undischarged 108-month prison sentence for an earlier conspiracy to
distribute the same drug in the District of Minnesota.
While Nguyen may be correct that the district court could have fashioned a
sentence that took into account his Minnesota sentence by downwardly adjusting his
prison term and expressly referencing U.S.S.G. § 5G1.3(b), see Coloma v. Holder,
445 F.3d 1282, 1284-85 (11th Cir. 2006) (per curiam), the district court did not do so.
The district court is now without authority under Rule 36 to modify the sentence it
imposed. See United States v. Yakle, 463 F.3d 810, 811 (8th Cir. 2006) (per curiam)
(Rule 36 relief is available only for “mere scrivener’s mistake”); United States v.
Tramp, 30 F.3d 1035, 1037 (8th Cir. 1994) (Rule 36 does not authorize sentence
modification at any time); see also 18 U.S.C.§ 3582(c).
Accordingly, we affirm the denial of Rule 36 relief.
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Appellate Case: 16-3120

Page: 2

Date Filed: 12/12/2016 Entry ID: 4478403