Dawn Nguyen's Reply

7/21/2019 Dawn Nguyen's Reply

http://slidepdf.com/reader/full/dawn-nguyens-reply 1/73

14-4191-crUnited 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

REPLY BRIEF AND SUPPLEMENTAL APPENDIX FOR

DEFENDANT-APPELLANT

LAW OFFICE OF A NDREW H. FREIFELD Attorney for Defendant-Appellant30 Vesey Street, 6 th Floor

New York, New York 10007(212) 240-9406

Case 14-4191, Document 94, 09/23/2015, 1605006, Page1 of 73



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TABLE OF CONTENTS

Page

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

I. THE GOVERNMENT MUST ADMIT THAT USSG§§ 2K2.1(b)(6)(B), 2K2.1(c)(1)(A) AND (c)(1)(B)AT LEAST APPEAR TO APPLY HERE . . . . . . . . . . . . . 5

II. THE GOVERNMENT MUST ADMIT THAT USSG§§ 5K2.1 (DEATH) AND 5K2.2 (PHYSICAL INJURY)DO NOT APPLY HERE . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10




ii

TABLE OF AUTHORITIES

United States Sentencing Guidelines Page(s)

USSG § 2A1.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

§ 2K2.1(b)(6)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

§ 2K2.1(c)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

§ 2K2.1(c)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

§ 2X1.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

§ 5K2.0(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

§ 5K2.0(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

§ 5K2.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

§ 5K2.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim




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UNITED STATES COURT OF APPEALSFOR THE SECOND CIRCUIT--------------------------------------------------------------:

:The United States of America, :

:Appellee, :

: Docket # 14-4191vs. :

: Reply BriefDawn Nguyen, :

:Appellant, :

:

--------------------------------------------------------------:

Appellant Dawn Nguyen respectfully submits this reply brief in further

support of her appeal of a judgment of conviction and sentence. Nguyen filed her

brief on June 5, 2015 (the “Brief”). The government filed its response on

September 11, 2015 (the “Response”). 1

Foreseeability could be the fulcrum on which this Court decides this appeal;

if the use to which Spengler put the firearms wasn’t foreseeable to Nguyen, then an

eight-year sentence is unreasonable.

The District Court never used the word “foreseeable” in explaining its

reasons for imposing the eight-year sentence (in any of the word’s grammatical

1 The text of virtually every Guideline discussed herein is set out in an addendumto the Brief at pp. 8-15. With leave from this Court (docket # 85) we are filing asupplemental appendix, attached hereto, which cures the error in our appendix thatomitted the last quarter of Exhibit F to the government’s sentencing memorandumof August 21, 2014 (A:351-474) (testimony of Nicole Stringer at State trial).




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forms), thus distancing itself from the government’s pre-sentencing arguments that

“Spengler’s acts were reasonably foreseeable [to Nguyen]” (A:278, 283, 590).

Tellingly, the word foreseeable doesn’t appear in the Response either; the

government has dropped the argument. Thus, all agree that the use to which

Spengler put the firearms was not foreseeable to Nguyen.

Nguyen’s inability to foresee Spengler’s actions accounts for why neither

the Probation Office, the government nor the District Court chose to consider

USSG § 2K2.1(b)(6)(B), which applies if Nguyen “had reason to believe” that

Spengler would use the firearms to perpetrate another felony, nor §

2K2.1(c)(1)(A), which applies if Nguyen had “knowledge” that Spengler would

use the firearms to assault or murder. Foreseeability makes a part of each of these

mens reas.

This Court should reject the District Court’s apparent determination that the

“knowingly risked” standard at USSG §§5K2.1 and/or 5K2.2 may be satisfied even

where the “had reason to believe” or “knowledge” standards cannot.

Foreseeability is the sine qua non of the “knowingly risked” standard too. A

person who opens the lioness’s cage at a zoo just to see if the beast will walk out

“knowingly risks” that she may hurt people, precisely because the injuries are

foreseeable. The word “risked” does not vitiate the foreseeability element.




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All agree that Spengler’s use of the firearm was not foreseeable to Nguyen;

this sentence is unreasonable.

The District Court determined that Nguyen’s Guidelines range is 18-24

months, and that § 5K2.0(a)(1)(A) warranted a departure equaling eight years. 2

But the Court never considered whether the enhancement at USSG §

2K2.1(b)(6)(B), or the cross-references at USSG § 2K2.1(c)(1)(A) and (c)(1)(B),

apply here. We maintain at Point I infra , that the government in the Response

necessarily concedes that they must apply. If we are correct, then the sentence

must be vacated, because the government agrees that the District Court severely

miscalculated Nguyen’s Guidelines range.

Moreover, USSG §§ 5K2.1 (death) and 5K2.2 (physical injury), which at

bottom formed the bases for the District Court’s departure, only provide a basis for

departure if the case is “of a kind” not considered by the Sentencing Commission

in promulgating the Guidelines. USSG § 5K2.0(a)(1)(A)

If §§ 2K2.1(b)(6)(B), 2K2.1(c)(1)(A) and/or (c)(1)(B) at least arguably

apply to these facts (and the government chooses not to take on our contention that

it must claim that they do), then this case is necessarily “of a kind” considered by

2 We explain infra why the District Court’s departure was necessarily grounded in§ 5K2.0(a)(1)(A), and not in § 5K2.0(a)(3), the only departure provisions arguablyavailable in this case.




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the Sentencing Commission, as we argue at Point II below. Accordingly, the

departure is error as a matter of law.

In sum, the government should not be permitted to have its cake and eat it

too; it cannot rely on a departure provision which applies only where the case is

“of a kind” not considered unless they flatly deny that §§ 2K2.1(b)(6)(B),

2K2.1(c)(1)(A) and/or (c)(1)(B) apply to this case. This they cannot do; they have

made no denial in the Response at all.

We proposed in the Brief (Summary of Argument at p. 33) that at a

minimum this Court might remand to allow the District Court to determine for the

first time whether §§ 2K2.1(b)(6)(B), 2K2.1(c)(1)(A) and/or (c)(1)(B) apply to this

case. We hasten to add that the Court should first determine that an 8-year

sentence on this record is substantively unreasonable per se .

One matter first before the two Points: The government's contention that

Nguyen faced a maximum thirty-year term (Response, p. 18) is belied in part by

their request below that the District Court impose “the maximum punishment

established by Congress . . . a sentence of 10 years on each count, with each

sentence to run concurrently”. (A:271) More importantly, the District Court never

informed Nguyen that sentences on any of the counts could run consecutively

when the Court accepted her guilty pleas. Indeed, the Court relied on the

government's reading to Ms. Nguyen on the record of its Pimintel letter (A:203-04)




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– which, like the PSR, never mentioned that the sentences could run consecutively.

Accordingly, any sentence above ten years on these guilty pleas would have been

unlawful.

Nguyen faced a ten-year term, not a thirty-year term.

I. THE GOVERNMENT MUST ADMIT THAT USSG §§ 2K2.1(b)(6)(B),§ 2K2.1(c)(1)(A) AND (c)(1)(B) AT LEAST APPEAR TO APPLY HERE

The government argues here (for the first time) that USSG §§ 5K2.1 (death)

and/or 5K2.2 (physical injury) apply because Nguyen “knowingly risked” death or

physical injury in purchasing the firearms for Spengler. Response , p. 30

But if Nguyen “knowingly risked” death or physical injury in purchasing the

firearms for Spengler for purposes of §§ 5K2.1 and 2.2, then as a matter of logic

she necessarily “had reason to believe that the firearm would be used in connection

with another felony” for purposes of § 2K2.1(b)(6)(B).

Had the Court determined § 2K2.1(b)(6)(B) to be applicable (and the

government here appears to concede the Court should have), then 4 levels are

added to Nguyen’s base offense level, which produces a sentencing range of 30-37

months.

The government can point to nothing to show that Judge Larimer would

have found that the case “differs from the norm” (A: 601) had the Court considered




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§ 2K2.1(b)(6)(B), nor to show that an eight-year sentence would have been

imposed had his Honor considered Nguyen’s Guidelines range to be 30-37 months.

Similarly, the government’s new-found claim that Nguyen “knowingly

risked” death or physical injury under §§ 5K2.1 and 2.2 means that Nguyen

necessarily had “knowledge” that the purchased firearm would be used to assault

or murder for purposes of § 2K2.1(c)(1)(A).

Had the Court determined § 2K2.1(c)(1)(A) to be applicable (and the

government here appears to concede the Court should have), then Nguyen’s

sentencing range is 210-262 months. 3

In sum, if the government is correct that §§ 5K2.1 and 5K2.2 apply here,

then §§ 2K2.1(b)(6)(B), 2K2.1(c)(1)(A) and (c)(1)(B) must necessarily apply here

first. It follows that the government concedes that Nguyen’s Guidelines range as

determined by the District Court is severely mistaken.

3 USSG § 2K2.1(c)(1)(A) directs the Court to USSG § 2X1.1, subsection (a) ofwhich directs that the base offense level is the base offense level for the “guidelinefor the substantive offense”. If Nguyen’s substantive offense is deemed murder,then her base offense level is 43 [USSG § 2A1.1]. If Nguyen’s substantive offenseis deemed assault, then, pursuant to § 2K2.1(c)(1)(B), her base offense level is still43 [USSG § 2A1.1] because death resulted. Nguyen would be entitled to a 3-leveldecrease pursuant to § 2X1.1(b), and a 3-level decrease for acceptance ofresponsibility [USSG § 3E1.1], leaving a final offense level of 37 and acorresponding sentencing range of 210-262 months.




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II. THE GOVERNMENT MUST ADMIT THAT USSG §§ 5K2.1(DEATH) AND 5K2.2 (PHYSICAL INJURY) DO NOT APPLY HERE

A departure from the Guidelines range under USSG § 5K2.0 is authorized

“if there exists an aggravating or mitigating circumstance of a kind, or to a degree,

not adequately taken into consideration by the Sentencing Commission in

formulating the guidelines . . . .” USSG § 5K2.0 (Id.; emphases added)

We argued in the Brief (p. 42) that the District Court therefore erred in

determining that this case is both “of a kind and to a degree” not considered

(Statement of Reasons, p. 2; emphases added). The government ignores the

argument in its Response. But the Court’s holding is not only illogical and

impossible, but also contrary to the language of the Guideline, which is grounded

in the logic; no case can be both.

Moreover, the determination of which type of case is under consideration is

always critical when a Court departs under § 5K2.0, in part because the subsections

of § 5K2.0 direct that different criterion be considered depending on the type;

section USSG § 5K2.0(a)(1)(A) directs that only if the case is “of a kind” not

considered may the court depart based on §§ 5K2.1 (death) or 5K2.2 (physical

injury) (or any of the provisions §§ 5K2.1-23). Section 5K2.0(a)(3) directs that

only if the case is “exceptional” may the court depart where the case is “to a

degree” not considered.




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Below, both the Probation Office and the government argued for a departure

under § 5K2.0(a)(3) only (PSR ¶ 85; A:293), thereby necessarily conceding that

departure is unavailable under § 5K2.0(a)(1)(A). The District Court then wrote the

parties of its view that departure under § 5K2.0(a)(1)(A) may be available:

“. . . . Both the Government and Probation have focused ondeparture under § 5K2.0.****“[The Court hereby gives notice that] “in addition to Guidelines5K2.0 and in addition to considering a variance from the advisoryGuidelines, I am considering the propriety of a departure under

the Guidelines pursuant to 5K2.1 (death) and 5K2.2 (physicalinjury)”.

(A:520) The letter rests on at least two apparently false premises. In fact, the

government and Probation proposed departure under § 5K2.0(a)(3) only. Also, the

Court would not be considering departure under §§ 5K2.1 and 5K2.2 “in addition”

to departure under § 5K2.0; rather, §§ 5K2.1 and 5K2.2 may be considered as part

of a § 5K2.0(a)(1)(A) departure.

The correspondence presented the government with a conundrum, indeed the

same one it faces on this appeal. The government knew and knows that if

anything, this is a “to a degree” case under § 5K2.0(a)(3), yet the District Court

was proposing consideration of §§5K2.1 and/or 5K2.2, criterion applicable only to

an “of a kind” case under § 5K2.0(a)(1)(A).

Below the government opted to do nothing; in its final sentencing

memorandum and at sentencing, the government navigated carefully to avoid




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adopting the erroneous views espoused by the Court that USSG §§5K2.1 and/or

5K2.2 applied here. Thus the government, knowing full well that this is a §

5K2.0(a)(3) case, stood silent while the Court at sentencing erroneously applied

§§5K2.1 and/or 5K2.2, and, contrary to law and logic, determined that this case is

both “of a kind and to a degree” not considered. (Statement of Reasons, p. 2;

emphases added) This was error that the government foresaw, yet opted not to

forestall.

The government’s choice on appeal is less righteous. The government could

have either abandoned the District Court’s argument that §§5K2.1 and/or 5K2.2

apply here, because this it knows that this is a “to a degree” case, or argue that they

do apply, and simply never address our contention that this is not an “of a kind”

case, a matter to which the government essentially admitted below.

The government’s choice to argue in the Response that §§5K2.1 and/or

5K2.2 apply here, while knowing full well that this is a not a § 5K2.0(a)(1)(A)

case, appears to lack complete intellectual honesty.

In sum, the government cannot argue that that §§5K2.1 and/or 5K2.2 apply

here unless it flatly denies that this a 5K2.0(a)(3) case. This they have not done,

and cannot do. Indeed, the government has explicitly asserted that this is a

5K2.0(a)(3) case. (A: 293)




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It follows that the government must necessarily concede that §§5K2.1 and/or

5K2.2 -- provisions at the heart of the District Court’s reasons for the eight-year

sentence -- do not apply here.

CONCLUSION

For these reasons, for the reasons stated in the Brief, and for reasons that this

Court may deem just and proper, the sentence should be vacated, and the case

should be remanded for sentencing anew.

Dated: September 22, 2015 New York, New York

Respectfully submitted,

s/AndrewFreifeldLaw Office of Andrew H. FreifeldBy: Andrew H. FreifeldAttorneys for Defendant-Appellant

Dawn Nguyen30 Vesey Street, 6th Floor

New York, New York 10007(212) 240-9406




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CERTIFICATE OF

COMPLIANCE

1. This brief complies with the type-volume limitation of Fed. R. App. P.32(a)(7)(B)(ii) because this brief contains approximately 2,099 words, excludingthe parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P.32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this

brief has been prepared in a proportionally spaced typeface using Microsoft Word2007 in 14-point font size, using Times New Roman style.

s/Andrew FreifeldAndrew FreifeldAttorney for Appellant

Dawn Nguyen

Dated: September 22, 2015 New York, New York




SUPPLEMENTAL APPENDIX




i

TABLE OF CONTENTSPage

Motion for Upward Departure/Variance, byGovernment, dated August 21, 2014(Omitted herein)

Exhibit F to Motion -Excerpt of Transcript of Testimony at State Trialof Nicole Stringer, dated April 9, 2014 .................. SA-1




Case 6:13-cr-06044-DGL-MWP Document 69-7 Filed 08/21/14 Page 1 of 57

SA 1Case 14-4191, Document 94, 09/23/2015, 1605006, Page17 of 73



















































































































































































































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