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United States v. Nguyen

United States District Court, W.D. New York

April 19, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DAWN NGUYEN, Defendant.

          DECISION AND ORDER

          DAVID G. LARIMER United States District Judge

         Dawn Nguyen (“Nguyen”), pursuant to a plea of guilty, was convicted of three counts of an indictment, charging firearms offenses. She was sentenced to a total term of 96 months of imprisonment. Familiarity with the underlying facts-which involve the fatal shooting of several firefighters in Webster, New York on December 24, 2012, by an assailant, William Spengler, who was armed with guns that had been purchased and provided to him by Nguyen-is assumed.

         Now represented by her third attorney, Nguyen has filed a motion to vacate (Dkt. #90)[1], pursuant to 28 U.S.C. § 2255. She requests that she “be sentenced within the guidelines range.” (Dkt. #90 at 13).

         Defendant's motion is denied. The motion raises issues that either have already been raised and decided by the Court of Appeals for the Second Circuit on Nguyen's direct appeal, or that could have been raised on direct appeal. The motion also fails to establish any constitutional violation in the first place. The Court further denies a certificate of appealability, since Nguyen has not made a substantial showing of the denial of a constitutional right.[2]

         BACKGROUND

         The background facts are not in dispute. Defendant was indicted and charged with three firearms-related offenses: making a false statement in relation to the acquisition of a firearm; disposing of a firearm to a convicted felon; and possession of a firearm by an unlawful drug user. (Dkt. #9.) Nguyen pleaded guilty on June 26, 2014 to all three counts, without a plea agreement. (Dkt. #66.) During a thorough and extensive plea colloquy, defendant was advised of the potential sentence she could receive under the United States Sentencing Guidelines (“Guidelines”), as well as the maximum statutory penalties that could be imposed.

         Nguyen appeared before this Court for sentencing on September 17, 2014, at which time she was sentenced principally to a 96-month term of imprisonment on each count, to run concurrently with each other and with a previously-imposed New York State court sentence, on related charges. The Guideline range was 18 to 24 months, but in a lengthy sentencing proceeding, this Court set forth in detail its reasons for imposing a non-Guideline sentence of 96 months. The Government has included the transcript of that sentencing proceeding as an exhibit to its response to defendant's § 2255 motion. (Dkt. #94-1.)

         Defendant, represented by new assigned counsel, appealed from the judgment and sentence. In that appeal, Nguyen raised essentially the same arguments now raised in her present § 2255 motion: in sum and substance, that the non-Guideline sentence imposed by this Court was procedurally erroneous and substantively unreasonable. The Court of Appeals rejected those arguments and affirmed the judgment and conviction in all respects, by Decision entered December 16, 2015. 622 Fed.Appx. 89. The Second Circuit's mandate was issued shortly thereafter, affirming the judgment of this Court. (Dkt. #87.)

         Nguyen, now represented by a new attorney, filed a motion in the Court of Appeals to withdraw that court's mandate on March 29, 2016. (2d Cir. Case 14-4191, Dkt. #126.) She argued in that motion, as she now does in her § 2255 motion, that this Court's sentence was procedurally unreasonable and that the enhanced sentence was impermissibly based on “vicarious liability.” Nguyen's motion to withdraw the mandate was denied by the Second Circuit on April 12, 2016. (Dkt. #136.)

         As stated, in her § 2255 motion now pending in this Court, Nguyen makes essentially the same arguments: that the Court's upward departure was improper and that, because it was allegedly based on “vicarious criminal liability, ” her rights to due process were violated. As mentioned, the relief sought in the present motion is not that her conviction itself be vacated, in toto, but only that she be resentenced within the original Guideline range.

         DISCUSSION

         As the Second Circuit has stated, § 2255 was never intended to provide a substitute for direct appeal, nor is it a vehicle to reargue matters that were raised and decided on direct appeal. See United States v. Munoz, 143 F.3d 632, 637 (2d Cir. 1998) (a “motion under § 2255 is not a substitute for an appeal”); United States v. Perez, 129 F.3d 255, 260 (2d Cir. 1997) (“A § 2255 motion may not relitigate issues that were raised and considered on direct appeal”).

         Proceeding from those general principles, I conclude that defendant's motion is subject to denial on a number of grounds. First, to obtain relief pursuant to § 2255, a defendant must establish “a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes a fundamental defect which inherently results in a complete miscarriage of justice.” United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (internal quotation marks and citation omitted). See also Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006) (2255 petitioner must demonstrate “an error of constitutional magnitude”; a sentence “outside the statutory limits”; or “an error of fact or law that was so fundamental as to render the entire proceeding invalid”). Defendant has not made, and cannot make, any such showing here.

         Even a cursory review of defendant's § 2255 motion shows that the essence of her claim is that the Court's non-Guideline sentence was procedurally and substantively erroneous. As indicated above, this is not the first time that defendant has made that argument. The Second Circuit seemingly put this issue to rest in its decision affirming this Court's sentence on direct appeal. The parties are undoubtedly familiar with the Court of Appeals' December ...


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