Dawn Nguyen's Reply

Case 14-4191, Document 94, 09/23/2015, 1605006, Page1 of 73
14-4191-cr
United 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 ANDREW H. FREIFELD

Attorney for Defendant-Appellant
30 Vesey Street, 6th Floor
New York, New York 10007
(212) 240-9406
TABLE OF CONTENTS
Page
Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I.
II.
ii
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 MUST ADMIT THAT USSG

5K2.1 (DEATH) AND 5K2.2 (PHYSICAL INJURY)
DO NOT APPLY HERE . . . . . . . . . . . . . . . . . . . . . . . . . . .
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
10
TABLE OF AUTHORITIES
United States Sentencing Guidelines
Page(s)
USSG 2A1.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2K2.1(b)(6)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
passim
2K2.1(c)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
passim
2K2.1(c)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
passim
2X1.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5K2.0(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
passim
5K2.0(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
passim
5K2.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
passim
5K2.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
passim
ii
UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT
--------------------------------------------------------------:
:
The United States of America,
:
:
Appellee,
:
:
vs.
:
:
Dawn Nguyen,
:
:
Appellant,
:
:
--------------------------------------------------------------:
Docket # 14-4191
Reply Brief
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 wasnt 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 words grammatical
text of virtually every Guideline discussed herein is set out in an addendum

to the Brief at pp. 8-15. With leave from this Court (docket # 85) we are filing a
supplemental appendix, attached hereto, which cures the error in our appendix that
omitted the last quarter of Exhibit F to the governments sentencing memorandum
of August 21, 2014 (A:351-474) (testimony of Nicole Stringer at State trial).
1
The
forms), thus distancing itself from the governments pre-sentencing arguments that
Spenglers acts were reasonably foreseeable [to Nguyen] (A:278, 283, 590).
Tellingly, the word foreseeable doesnt 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.
Nguyens inability to foresee Spenglers 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 Courts 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 lionesss 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.
All agree that Spenglers use of the firearm was not foreseeable to Nguyen;
this sentence is unreasonable.
The District Court determined that Nguyens 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 Nguyens Guidelines range.
Moreover, USSG 5K2.1 (death) and 5K2.2 (physical injury), which at
bottom formed the bases for the District Courts 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
We explain infra why the District Courts departure was necessarily grounded in
5K2.0(a)(1)(A), and not in 5K2.0(a)(3), the only departure provisions arguably
available in this case.
3
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)
4
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 Nguyens 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
2K2.1(b)(6)(B), nor to show that an eight-year sentence would have been

imposed had his Honor considered Nguyens Guidelines range to be 30-37 months.
Similarly, the governments 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 Nguyens
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 Nguyens Guidelines range as
determined by the District Court is severely mistaken.
USSG 2K2.1(c)(1)(A) directs the Court to USSG 2X1.1, subsection (a) of

which directs that the base offense level is the base offense level for the guideline
for the substantive offense. If Nguyens substantive offense is deemed murder,
then her base offense level is 43 [USSG 2A1.1]. If Nguyens substantive offense
is deemed assault, then, pursuant to 2K2.1(c)(1)(B), her base offense level is still
43 [USSG 2A1.1] because death resulted. Nguyen would be entitled to a 3-level
decrease pursuant to 2X1.1(b), and a 3-level decrease for acceptance of
responsibility [USSG 3E1.1], leaving a final offense level of 37 and a
corresponding sentencing range of 210-262 months.
6
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 Courts 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.
7
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 on
departure under 5K2.0.
****
[The Court hereby gives notice that] in addition to Guidelines
5K2.0 and in addition to considering a variance from the advisory
Guidelines, I am considering the propriety of a departure under
the Guidelines pursuant to 5K2.1 (death) and 5K2.2 (physical
injury).
(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
8
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 governments choice on appeal is less righteous. The government could
have either abandoned the District Courts 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 governments 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)
It follows that the government must necessarily concede that 5K2.1 and/or
5K2.2 -- provisions at the heart of the District Courts 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/AndrewFreifeld
Law Office of Andrew H. Freifeld
By: Andrew H. Freifeld
Attorneys for Defendant-Appellant
Dawn Nguyen
30 Vesey Street, 6th Floor
New York, New York 10007
(212) 240-9406
10
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, excluding
the 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 Word
2007 in 14-point font size, using Times New Roman style.
s/Andrew Freifeld
Andrew Freifeld
Attorney for Appellant
Dawn Nguyen
Dated: September 22, 2015
New York, New York
11
SUPPLEMENTAL APPENDIX
i
TABLE OF CONTENTS
Page
Motion for Upward Departure/Variance, by
Government, dated August 21, 2014
(Omitted herein)
Exhibit F to Motion Excerpt of Transcript of Testimony at State Trial
of Nicole Stringer, dated April 9, 2014 ..................
SA-1
SA-1
Case 6:13-cr-06044-DGL-MWP Document 69-7 Filed 08/21/14 Page 1 of 57
SA-2
SA-3
SA-4
SA-5
SA-6
SA-7
SA-8
SA-9
SA-10
SA-11
SA-12
SA-13
SA-14
SA-15
SA-16
SA-17
SA-18
SA-19
SA-20
SA-21
SA-22
SA-23
SA-24
SA-25
SA-26
SA-27
SA-28
SA-29
SA-30
SA-31
SA-32
SA-33
SA-34
SA-35
SA-36
SA-37
SA-38
SA-39
SA-40
SA-41
SA-42
SA-43
SA-44
SA-45
SA-46
SA-47
SA-48
SA-49
SA-50
SA-51
SA-52
SA-53
SA-54
SA-55
SA-56
SA-57

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

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

REPLY BRIEF AND SUPPLEMENTAL APPENDIX FOR

LAW OFFICE OF ANDREW H. FREIFELD

Case 14-4191, Document 94, 09/23/2015, 1605006, Page2 of 73

THE GOVERNMENT MUST ADMIT THAT USSG

THE GOVERNMENT MUST ADMIT THAT USSG

Case 14-4191, Document 94, 09/23/2015, 1605006, Page3 of 73

Case 14-4191, Document 94, 09/23/2015, 1605006, Page4 of 73

UNITED STATES COURT OF APPEALS

Appellant Dawn Nguyen respectfully submits this reply brief in further

text of virtually every Guideline discussed herein is set out in an addendum

Case 14-4191, Document 94, 09/23/2015, 1605006, Page5 of 73

Case 14-4191, Document 94, 09/23/2015, 1605006, Page6 of 73

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

Case 14-4191, Document 94, 09/23/2015, 1605006, Page8 of 73

THE GOVERNMENT MUST ADMIT THAT USSG 2K2.1(b)(6)(B),

Case 14-4191, Document 94, 09/23/2015, 1605006, Page9 of 73

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

USSG 2K2.1(c)(1)(A) directs the Court to USSG 2X1.1, subsection (a) of

Case 14-4191, Document 94, 09/23/2015, 1605006, Page10 of 73

THE GOVERNMENT MUST ADMIT THAT USSG 5K2.1

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

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September 22, 2015

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Dawn Nguyen's Reply

Dawn Nguyen's Reply