U.S. v. Nguyen

• Decision Date: 17 May 2002
• Docket Number: No. CR01-4069-MWB.,CR01-4069-MWB.
• Parties: UNITED STATES of America, Plaintiff, v. Tuan NGUYEN, Defendant.
• Court: U.S. District Court — Northern District of Iowa

Page 1008

212 F.Supp.2d 1008

UNITED STATES of America, Plaintiff, v. Tuan NGUYEN, Defendant.

No. CR01-4069-MWB.

United States District Court, N.D. Iowa, Western Division.

May 17, 2002.

William L. Blinkard, Randy S. Hisey, Hisey Law Office, South Sioux City, NE, Patrick Thomas Parry, Forker & Parry, Sioux City, IA, Jeffrey A. Neary, Federal Public Defender, Sioux City, IA, for defendant.

Kevin C. Fletcher, U.S. Attorney's Office, Sioux City, IA, for U.S.

MEMORANDUM OPINION AND ORDER REGARDING DOWNWARD DEPARTURE

BENNETT, Chief Judge.

                TABLE OF CONTENTS
                I. INTRODUCTION AND BACKGROUND ................................................. 1010
                 II. FINDINGS OF FACT ............................................................ 1013
                III. DISCUSSION .................................................................. 1014
                     A. The Acceptance-Of-Responsibility Guideline ............................... 1014
                     B. Discretion To Depart ..................................................... 1017
                     C. The Downward Departure Motion ............................................ 1018
                        1. Has the Commission forbidden departures based on this factor? ......... 1019
                

                2. Has the Commission discouraged departures based on this factor? ....... 1020
                        3. Has the Commission encouraged departures based on this factor? ........ 1021
                        4. What features of this case potentially take it outside the "heartland"? 1023
                           a. The typical acceptance-of-responsibility landscape ................. 1023
                           b. Is this case "exceptional" and outside the "heartland"? ............ 1025
                     D. The Extent Of The Departure .............................................. 1031
                 IV. CONCLUSION .................................................................. 1033
                

This court consistently instructs juries in criminal cases to "remember also that the question before you can never be whether the government wins or loses the case. The government, as well as society, always wins, regardless of whether your verdict is not guilty or guilty, when justice is done." The sentencing issue in this case puts this lofty assertion to task. In this case, a defendant pleaded guilty to possession with intent to distribute fifty or more ounces of crack cocaine and entered an Alford plea on the corresponding conspiracy charge. After his plea, he testified on behalf of his co-defendant and sister, who faced the same charges but exercised her Sixth Amendment right to a jury trial. She was acquitted. At sentencing, this court sua sponte raised the issue of a potential downward departure on the ground that a witness who, risking his own penal interests, truthfully testifies on behalf of a co-defendant and takes total responsibility for the criminal conduct charged may be deserving of a downward departure pursuant to Guideline 5K2.0 for extraordinary acceptance of responsibility when the jury credits such testimony and acquits the co-defendant. The issue in this case, therefore, is whether such extraordinary acceptance of responsibility is outside the "heartland" of the Federal Sentencing Guidelines's acceptance of responsibility provision.

I. INTRODUCTION AND BACKGROUND

This matter is before the court on the court's sua sponte notice of a potential downward departure based on the defendant's extraordinary acceptance of responsibility. In this case, the defendant, Tuan Nguyen ("Mr.Nguyen"), testified on behalf of his co-defendant and sister, My Linh Nguyen ("Ms.Nguyen"). In his testimony at Ms. Nguyen's trial, Mr. Nguyen accepted total responsibility for the charges against Ms. Nguyen, exonerating her fully. In all likelihood, the jury believed Mr. Nguyen's testimony, because it returned a verdict of "not guilty" against Ms. Nguyen on all counts.

On August 21, 2002, a federal grand jury returned a two count indictment against Mr. Nguyen and Ms. Nguyen. Count 1 of the indictment charged that Mr. Nguyen and Ms. Nguyen knowingly and unlawfully conspired with each other and with other persons, known and unknown to the Grand Jury, to distribute and possess with the intent to distribute approximately 49 grams or more of a mixture or substance containing a detectable amount of cocaine base (also known as "crack cocaine") in violation of 21 U.S.C. §§ 841 and 846 (hereinafter referred to as the "conspiracy count"). Count 2 of the indictment charged that Mr. Nguyen and Ms. Nguyen knowingly and intentionally possessed with the intent to distribute 49 grams or more of crack cocaine in violation of 21 U.S.C. § 841¹ (hereinafter referred to as the "possession count").

The charges against Mr. Nguyen and Ms. Nguyen stemmed from a July 30, 2001 traffic stop in Sioux City, Iowa. On that day, a Sioux City police officer was conducting surveillance of a home, acting on information supplied by a confidential informant regarding the distribution and "cooking" of cocaine at that residence. The officer observed Mr. Nguyen park his car in front of the residence. The officer then observed Mr. Nguyen enter the front door of the residence under surveillance and then exit through that same door five minutes later. The officer immediately initiated a traffic stop after he observed Mr. Nguyen make a U-turn. Mr. Nguyen, Ms. Nguyen, Hoa Nong, and Binh Nguyen² were all inside the car.

According to Mr. Nguyen, no one else in the car knew (1) that Mr. Nguyen had purchased crack cocaine that day; and (2) that he had gone to the Sioux City residence to do so. The group of friends had traveled from Lincoln, Nebraska to Sioux City, Iowa in order to return a key to Mr. Nguyen and Ms. Nguyen's sister. Mr. Nguyen testified both at his plea hearing and at Ms. Nguyen's trial that he stopped at the Sioux City house to buy a personal use amount of crack cocaine, but because he was offered a "good deal" and because he was intimidated, he bought a significantly larger amount — specifically, Mr. Nguyen purchased 45.47 grams of crack cocaine for approximately $1,000. When the police officer initiated the traffic stop after Mr. Nguyen's crack cocaine purchase, Mr. Nguyen states that he reached toward the back of the car where Ms. Nguyen was seated and placed the crack inside her purse without her knowledge, because he knew his driver's license was revoked.

To be sure, during the traffic stop, dispatch notified the officer that Mr. Nguyen indeed did not have a valid driver's license, and he placed Mr. Nguyen under arrest. The officer then asked the passengers to exit the car, and, using a K-9, he searched the vehicle. Ms. Nguyen had left her purse in the car, and the K-9 gave a strong indication on it. The officer then searched the purse and found Mr. Nguyen's crack cocaine. At that time, the officer placed all occupants of the vehicle under arrest, and in August of 2002, the federal grand jury returned a two count indictment against both Mr. Nguyen and Ms. Nguyen. The other occupants of the vehicle were not charged.

On October 29, 2001, Magistrate Judge Paul A. Zoss presided over Mr. Nguyen's first attempted change-of-plea hearing. At this first hearing, the parties intended to introduce and enter into a written plea agreement. The terms of Mr. Nguyen's October 29, 2001 written plea agreement provided that, if Mr. Nguyen pleaded guilty to the conspiracy count, the government would move to dismiss the possession count. (Doc. No. 33, Exh. 1). However, in order to accept a guilty plea, the presiding judge must be satisfied that there exists a factual predicate to support a defendant's plea of guilty. FED. R. CRIM. P. 11(f); e.g., CHARLES ALAN WRIGHT, ET AL., 1A FED. PRAC. & PROC. CRIM.3d 11 (Supp. 2001) ("[T]he court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea."); cf. FED. R. CRIM. P. 11(c)(1) (requiring that the court "inform the defendant of, and determine that the defendant understands ... the nature of the charge to which the plea is offered"); White v. United States, 858 F.2d 416, 423 (8th Cir.1988) (citation omitted) (defining factual basis as "`sufficient evidence at the time of the plea upon which a court may reasonably determine that the defendant likely committed the offense.'").

In this case, the plea agreement provided the following:

On July 30, 2001, in the Northern District of Iowa and elsewhere, defendant Tuan Nguyen, Mylinh [sic] Nguyen, Hoa Nong, Binh Nguyen, Larry Williams, and others, reached an agreement or came to an understanding to distribute and possess with the intent to distribute 45.47 grams or more of a mixture or substance containing a detectable amount of cocaine base (also known as crack cocaine).

(Doc. No. 33, Exh. 1, at ¶ 21-A). Even though Mr. Nguyen initialed this portion of the plea agreement, at his change-of-plea hearing, he refused to stipulate to the fact that he conspired with Ms. Nguyen, Hoa Nong, or Binh Nguyen, because Mr. Nguyen insisted that they had no knowledge of his drug involvement. Further, he would not stipulate that he "handed the drugs" to Ms. Nguyen, but rather asserted that he "stuck" the drugs in her purse without her knowledge.

In essence, Mr. Nguyen disavowed part of the written plea agreement by refusing to stipulate to these facts. Consequently, the court would not accept Mr. Nguyen's guilty plea without the government's consent to Mr. Nguyen's modification of the agreement, which the government, understandably, was not willing to give. Magistrate Judge Zoss, therefore, adjourned the plea hearing without having accepted Mr. Nguyen's guilty plea to the conspiracy count. At the close of the hearing, the parties agreed that they would consult and attempt to reach an agreement as to an adequate factual basis.

The parties, however, were unable to reach such an agreement, and on November 13, 2001, Mr. Nguyen again appeared before Magistrate Judge Zoss. At this second attempted change-of-plea hearing, Mr. Nguyen intended to plead ...