dawn nguyen's appeal

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

BRIEF 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

Case 14-4191, Document 64, 06/12/2015, 1531490, Page1 of 87

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES. . . . . . . . . . . . . iv

JURISDICTIONAL STATEMENT . . . . . . . . . . . . 1

ISSUES PRESENTED. . . . . . . . . . . . . 1

STATEMENT OF THE CASE. . . . . . . . . . . . 2

STATEMENT OF FACTS. . . . . . . . . . . . 4

Background. . . . . . . . . . . . 4

The State Court Prosecution. . . . . . . . . . . . 13

The Indictment. . . . . . . . . . . . 15

The Pimintel Letter. . . . . . . . . . . . 16

The Guilty Plea. . . . . . . . . . . . . . . . . . . . . . . . 17

The PSR . . . . . . . . . . . . 20

The Parties’ Sentencing Submissions. . . . . . . . . . . . 23 Sentencing. . . . . . . . . . . . 26 Judgment and the Notice of Appeal. . . . . . . . . . . . 31


ii

Page ARGUMENT. . . . . . . . . . . . 31

I. THE SENTENCE, NEARLY 500% HIGHER THAN THE MIDDLE OF NGUYEN’S GUIDELINES RANGE, IS PROCEDURALLY UNREASONABLE. . . . 34 A. Standard of Review. . . . . . . . . . . . 34

B. The Court Erred in Relying on An Excised Statute, 18 USC § 3553(b)(1) . . . . . . . . . . . 37 1. The District Court’s Erroneous Reliance On 18 USC § 3553(b)(1) Was Not Harmless, Even If The District Court May Be Deemed to have Relied on USSG § 5K2.0 Instead. . . . . . . . 38 C. The District Court Erred In Determining That § 5K2.0(a)(1)(A) Authorized Departure Because § 2K2.1(b)(6)(B) and/or § 2K2.1(c) Show That The Record Here Is One Contemplated By the Guidelines. . . 41 D. The District Court Misapplied The “Knowingly Risked” Element of USSG § § 5K2.1 and 5K2.2. . . . 45

E. The Record Lacks A Basis for At Least Two of the District Court’s Findings of Fact. . . 48

1. The Record Provides No Basis for the Court’s Finding That Spengler Used The Bushmaster or Mossberg, And Not The .32 Caliber Revolver, to Fire From the Berm. . . 48 2. The Record Provides No Basis for the Court’s Finding That Spengler Was “Mentally Unstable”, and that Nguyen Knew It. . . 49


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Page F. The District Court Did Not Consider Avoiding Unwarranted Disparities In Imposing Sentence. . . . 53

II. THE SENTENCE, NEARLY 500% HIGHER THAN THE MIDDLE OF NGUYEN’S GUIDELINES RANGE, IS SUBSTANTIVELY UNREASONABLE. . . . 57 CONCLUSION. . . . . . . . . . . . 61 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . 62 ADDENDUM OF STATUTES AND GUIDELINES after brief


iv

TABLE OF AUTHORITIES

Page(s)

Statutes

18 USC § 922(a)(6). . . . . . . . . . . . . . . . . . . . . 15, 53

18 USC § 922(d)(1) . . . . . . . . . . . . . . . . . . . . 15, 54

18 USC § 922(g)(3), . . . . . . . . . . . . . . . . . . . . ` 15, 54

18 USC § 3231. . . . . . . . . . . . . . . . . . . . . 1

18 USC § 3553(a) . . . . . . . . . . . . . . . . . . . . 23, 29, 39

18 USC § 3553(a)(6) . . . . . . . . . . . . . . . . . . . . 36, 53

18 USC § 3553(b)(1) . . . . . . . . . . . . . . . . . . . . 29, 37-40

28 USC § 1291. . . . . . . . . . . . . . . . . . . . 1

New York Penal Law § 70.00[2], [3]. . . . . . . . . . . . 14

New York Penal Law § 125.20. . . . . . . . . . . . . . 50

New York Penal Law § 175.10. . . . . . . . . 13

Rules

Fed. R. Cr. P. 52(b) . . . . . . . . . . . . . . . . . . . . 36


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Page(s) United States Sentencing Guidleines

§ 2K2.1. . . . . . . . . . . . . . . . . . . . passim

§ 2K2.1(a)(6) . . . . . . . . . . . . . . . . . . . . 16

§ 2K2.1(b)(5) . . . . . . . . . . . . . . . . . . . . 17

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

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

§ 3E1.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

§ 5K2.0. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 39

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

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

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

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

Cases Gall v. United States, 552 U.S. 38 (2007). . . . . . . . 34

Irizarry v. United States, 553 U.S. 708 (2008) . . . 40

United States v. Anati, 457 F.3d 233 (2d Cir. 2006). . 40

United States v. Booker, 543 U.S. 220 (2005). . . . . . . 37

United States v. Campbell, 161 Fed. Appx. 37 (2d Cir. 2005) . . . 54


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Page(s)

United States v. Cavera, 550 F.3d 180 (2d Cir. 2008) (en banc). . . . . . . . 36, 48

United States v. Cossey, 632 F.3d 82 (2d Cir. 2011) (per curiam) . . . . . . . . . . 35

United States v. Chu, 714 F.3d 742 (2d Cir. 2013) (per curiam). . . . . . . . . . . . . . 34

United States v. Douglas, 713 F.3d 694 (2d Cir. 2013). . . . . 55

United States v. Gilmore, 599 F.3d 160 (2d Cir. 2010) . . . . 38

United States v. Hasan, 586 F.3d 161 (2d Cir. 2009) . . . . 34, 41, 46

United States. v. Hertular, 562 F.3d 433 (2d Cir. 2009) . . . . 34

United States v. Hutchinson, 1999 U.S. App. LEXIS 10019 (2d Cir. 1999) . . . . . . . . . 54

United States v. Johnson, 567 F.3d 40 (2d Cir. 2009) . . . . 34, 35

United States v. Legros, 529 F.3d 470 (2d Cir. 2008) . . . . 34

United States v. Leonard, 37 F.3d 32 (2d Cir. 1994) . . . . 43

United States v. Maria, 186 F.3d 65 (2d Cir. 1999) . . . . 34

United States v. McIntosh, 753 F.3d 388 (2d Cir. 2014). . . . . 34

United States v. Morrison, 778 F.3d 396 (2d Cir. 2015) . . . . 37

United States v. Park, 758 F.3d 193 (2d Cir. 2014) . . . . 57

United States v. Pimentel, 932 F.2d 1029 (2d Cir. 1991) . . . . 16


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Page(s)

United States v. Praylor, 2000 U.S. App. LEXIS 3474 (2d Cir. 2000). . . . . . . . . . . . . . . . . . 54

United States v. Rattoballi, 452 F.3d 127 (2d Cir. 2006) . . . . 35, 44, 48

United States v. Rivalta, 892 F.2d 223 (2d Cir. 1989). . . . . 46

United States v. Robinson, 702 F.3d 22, 38 (2d Cir. 2012). . . . . 36

United States v. Schular, 907 F.2d 294 (2d Cir. 1990) . . . . 43

United States v. Selioutsky, 409 F.3d 114 (2d Cir. 2005) . . . . 35, 37, 53

United States v. Soler, 759 F.3d 226 (2d Cir. 2014) . . . . 37

United States v. Sutton, 264 Fed. Appx. 42 (2d Cir. 2008). . . . 54

United States v. Toohey, 448 F.3d 542 (2d Cir. 2006) . . . . 40

United States v. White, 79 F.2d 539 (7th Cir. 1992) . . . . 46

United States v. Whitley, 260 Fed. Appx. 348 (2d Cir. 2008) . . . . 54

United States v. Williams, 524 F.3d 209 (2d Cir. 2008) . . . . 40

Sims v. Blot, 534 F.3d 117 (2d Cir. 2008) . . . . 35

Williams v. United States, 503 US 193 (1992) . . . . 35


1

JURISDICTIONAL STATEMENT

The District Court had jurisdiction under 18 USC § 3231. This Court has

jurisdiction under 28 USC § 1291. A final judgment of conviction and sentence

was entered on September 24, 2014. The notice of appeal filed with the District

Court on November 5, 2014 was timely, because on October 6, 2014, the District

Court extended Nguyen’s time to file a notice of appeal by 30 days. (A:9, docket

entry # 80)1

ISSUES PRESENTED

I. Whether the sentence imposed, nearly 500% above the middle of the

Guidelines range, was procedurally unreasonable?

II. Whether the sentence imposed, nearly 500% above the middle of the

Guidelines range, was substantively unreasonable?

1 An appendix (“A”) has been filed with this brief. A special appendix (“SPA”) and a statutory addendum (SA”) are attached to this brief. A number that follows a colon that follows either an “A”, “SPA” or “SA in this brief refers to the page of that particular document. A copy of the District Court docket is at A:1-10. A copy of the judgment is at SPA:1-6. A copy of the notice of appeal is at A:622.


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STATEMENT OF THE CASE

The local media in Rochester, New York was saturated with coverage of this

case. The government acknowledged that the case received nationwide coverage

too. (A:288-89)

On June 6, 2010, in Henrietta, New York, Nguyen made a “straw purchase”

of two firearms, buying them from a federally-licensed gun dealer for a person she

knew was prohibited by law from possessing them. Specifically, Nguyen, age 21,

purchased a shotgun and a semiautomatic rifle for her neighbor, William Spengler,

age approximately 60, who Nguyen knew had been convicted of a felony.

Approximately 931 days later, on December 24, 2012 (Christmas Eve), in

Webster, New York, firefighters arrived at a fire at Spengler’s home where he

lived with his sister, later determined to have been set by him. From nearby,

Spengler shot and killed two firefighters, and injured two others. Then Spengler

committed suicide, shooting himself in the head with a .32 caliber revolver. In the

remains of the home investigators found the body of Spengler’s sister; Spengler

had shot her in the head with the .32 caliber revolver. Seven homes burned down

as gunfire prevented the firefighters from fighting the fire. The shotgun,

semiautomatic rifle and revolver were found next to Spengler’s corpse.

The government has never alleged that Nguyen ever (i) had actual

knowledge of Spengler’s intentions, (ii) saw or heard of the shotgun or the


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semiautomatic rifle after the date of purchase, or (iii) knew that Spengler possessed

the .32 caliber revolver.

Nguyen was arrested on State and Federal charges on December 28, 2012,

her first. On April 15, 2014, Nguyen was convicted at the State trial, of Falsifying

Business Records in the First Degree, based on a form she delivered to the dealer

to purchase the firearms. She has been imprisoned ever since. On May 19, 2014,

Nguyen was sentenced there to the maximum term of imprisonment, a minimum of

one-and-one-third years, and a maximum of four years.

Here, Nguyen pled guilty on June 26, 2014, in the United States District

Court for the Western District of New York, the Hon. David Larimer presiding, to

all three counts in the indictment arising from the straw purchase, admitting that

she knowingly (i) made false statements in relation to the acquisition of the

firearms, (ii) disposed of the firearms to a person with a felony conviction, and (iii)

possessed the firearms while being an unlawful marijuana user.

At sentencing on September 17, 2014, the District Court agreed with the

government and the Probation Office that Nguyen’s sentencing range under the

Guidelines, based on a criminal history category of I, is 18 to 24 months.

However, in this case scrutinized by Rochester at large, where the AUSA at

sentencing shared her own personal outrage at Nguyen’s crimes “as a member of

this community”, the District Court determined that a variance nearly 500% higher


4

than the middle of the Guidelines range was “sufficient, but not greater than

necessary” to further the purposes of sentencing, and imposed a sentence of 96

months (8 years), to run concurrently with the State sentence.

STATEMENT OF FACTS2

Background

By 2010 Nguyen’s family’s roots ran deep at 193 Lake Road in Webster,

New York, on Lake Ontario. Her sister (born ca. 1983) was raised there by her

grandparents, the house having been built by the sister’s great-grandfather, her

grandfather and his sons. (A:250) Nguyen’s cousin, age 40 in 2014, recalls “fond

childhood memories” visiting his aunt and uncle at the house. (A:261)

Dawn Welsher, Nguyen’s mother, moved into 193 Lake Road in March,

2007, to care for her father after her mother died, and lived there until November

2011, when “we” moved out. (A:251, 508) In 2010 Nguyen, age 21, lived at 193

2 All events in this case occurred in or around Rochester, New York. Our brief relies in part on the exhibits attached to the government’s motion for upward departure/variance of August 21, 2014 (A:270-517), including, without limitation, transcripts of judicial proceedings, statements of witnesses to police, and media reports, all of which the government relied on to support its request for the maximum sentence authorized by law, ten-years imprisonment. We rely also on the Pimintel letter and grand jury minutes, both of which supplement the record on appeal pursuant to an order of this Court dated June 3, 2015. (docket entry # 57) Citations to websites in this brief are ours alone.


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Lake Road with her mother and other family.3 (A:357) Nguyen told the Probation

Office that she lived there for a year (PSR ¶ 72); the government lodged no

objection. By December, 2010 Nguyen was living at 129 Alpine Road, Greece,

New York (A:33), where she apparently lived with family until her arrest here.

(id.; PSR, page 3, ¶ 72; A:512)

William Spengler, approximately age 57 when Welsher moved in, was

Welsher’s next door neighbor living at 191 Lake Road during the entire period that

she lived there. (PSR ¶ 18; A:508)4 His sister Cheryl Spengler lived with him.

(PSR ¶ 18)

The two houses were in “almost like a cottage-type setting”; about 4-5 feet

separated them; from one house to the other, its “literally right there”. (A:32-33)

Spengler’s family’s roots at 191 Lake Road ran as deep as Nguyen’s

family’s at 193 Lake Road. Nguyen’s sister who grew up at 193 Lake Road told

the Court that Spengler “lived next door to me for many years”. (A:250) The

media reported that Spengler and his sister lived at 191 Lake Road since

childhood. http://www.usatoday.com/story/news/nation/2012/12/30/firefighters-

3 Based on ¶ 70 of the PSR, filed in August, 2014, Nguyen was then 25 years old, and had two sisters Jade Osborne, age 27, and Katie Nguyen, age 24, a half-sister, Amber Wilk, age 31, and a brother, Stephen Nguyen, age 19. 4 Press accounts are unanimous that Spengler was 62 years old on December 24, 2012. E.g., http://www.nytimes.com/2012/12/25/nyregion/2-firefighters-killed-in-western-new-york.html.


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shot-new-york-home-sale/1799037/ Also, Spengler was convicted in 1981 of

Manslaughter in the First Degree in State court for striking and killing his

grandmother with a hammer in 193 (sic) Lake Road, and was sentenced to 18 years

in prison. (PSR ¶ 21) Spengler so informed Welsher in 2007. (A:508)

Jacob Ostrander testified before the Federal grand jury that he dated Nguyen

for nine months in 2011, and had a business relationship with Welsher. (A:24, 30-

31, 33) Ostrander visited 193 Lake Road 15-20 times, and saw Spengler there

“about a handful of times”. (A:30, 33)

Ostrander testified that Welsher’s family called Spengler “Uncle Billy”.

(A:31-32) His house was about 4-5 feet away from Welsher’s. (id.)

Ostrander also testified that members of Welsher’s family weren’t the only

folks in town who knew that Spengler killed his grandmother. To the contrary,

everyone knew it (it was “common knowledge”; “the neighbors all knew it”; “it

was talked about. . . . It wasn’t a secret”). (A:34-35)

On occasion during the summer of 2011, Ostrander and others, including

Spengler, congregated at 193 Lake Road because it had a yard, a deck, a swimming

pool and was on the lake. (A:36-37) Ostrander sometimes docked his boat there,

and brought friends. (A:30) Food was served. (A:51)

Ostrander observed Spengler and Welsher smoking marijuana together at

one of the fetes. (A:36) At another, Spengler offered Ostrander advice because


7

the latter had been indicted: “Spengler had obviously been in jail before, so the

topic came up. . . . [Spengler] was trying to advise me . . . because he had been in

the system before”. (A:50)

Ostrander never observed anything at 193 Lake Road to warrant the

conclusion that Nguyen and her family owned guns. (A:39-40, 51, 54)

Spengler was apparently at 193 Lake Road all the time. Nguyen’s brother

stated that Spengler “used to come over every day to talk to my mom. I think he

had a crush on her”. (A:302)

Thus, we embrace the District Court’s finding at sentencing, as urged by

government, that Nguyen and her family were “close” to Spengler. (A:280, 283,

288 n.9, 613) They were more than neighbors; they were friends, good friends,

attributable in part one may be sure to their families’ long histories as next door

neighbors. Some in Welsher’s family called Spengler “Uncle Billy”. (PSR ¶ 30)

Welsher’s family and Spengler shared mutual trust. In a letter to the court

before sentencing Nguyen’s sister called him: “the man we knew in our hearts to

be Uncle Billy”. (A:249) Another sister recounted: “[Spengler] seemed really to

care about us”. (A:247) Their relationship continued even after the family moved

from 193 Lake Road. (PSR ¶ 28)


8

A report from the Associated Press, combined with Welsher and Spengler

families’ longstanding status as next door neighbors, perhaps accounts best for the

trust that Welsher and her family placed in Spengler despite his criminal past:

“William Spengler raised no alarms in prison for 17 years and for more than a decade afterward. Well-spoken, well-behaved and intelligent, his demeanor was praised by four straight parole boards that nevertheless denied him parole, worried that bludgeoning his 92-year-old grandmother with a hammer showed a violent streak that could explode again. “The transcripts reveal a well-spoken man, proud to be staying out of trouble in prison and earning positions of trust and responsibility, even time out of prison with a work crew that did renovation work in places including a century-old chapel. The board members mention Spengler testing high for intelligence and noted he came to prison with no other crimes on his record, had only dabbled in drug use and had a spotty work history. . . .”

http://www.huffingtonpost.com/2012/12/29/william-spengler-parole-dawn-

nguyen-charged_n_2380394.html (last viewed June 2, 2015)

On June 6, 2010, Nguyen, age 21, accompanied Spengler to Gander

Mountain, a federally-licensed firearms dealer in Henrietta, New York, at his

request, where she paid $1,425.58 with $1,500 cash provided to her by Spengler to

purchase two firearms for him that he chose, a Bushmaster .223 caliber semi-

automatic rifle (the “Bushmaster”), and a Mossberg 12 gauge shotgun (the

“Mossberg”). (A:63 (receipt for firearms); PSR ¶ 23; A:228-29) Spengler


9

removed the firearms from the counter; Nguyen never touched them, nor saw

them again. (A:214, 522-23, 574)5

To accomplish the sale, Nguyen filled out and submitted to Gander

Mountain an ATF Form 4473, on which she falsely wrote that she was not a

marijuana user, and that she was the actual buyer of the firearms. (A:210-12)6

Approximately 931 days later, on December 24, 2012 (Christmas Eve) at

5:36am, emergency personnel responded to 191 Lake Road upon a report that a

vehicle fire had spread to the house. (PSR ¶ 18) They were met with gunfire from

an elevated berm nearby. (id.) Two West Webster firefighters were killed and two

were injured. (id.) Seven homes on Lake Road burned down, including 191 and

193, as the gunfire prevented responders from fighting the fire. (PSR ¶ 22; A:250)

At approximately 5:58am, investigators heard a nearby gunshot, which they

later determined was Spengler’s suicide, by gunshot to the head. (PSR ¶ 19; A:66)

Near his body they found a suicide note, the Bushmaster, Mossberg, ammunition,

and a Smith and Wesson .38 caliber revolver. (PSR ¶ 19; A:301)

5 Before sentencing, Nguyen denied receiving consideration for the straw purchase (A:229), and the government claimed that Spengler paid her a $1,000 fee (A:280) We agree with the District Court determination that whether Nguyen received consideration to make the straw purchase was irrelevant to sentencing. (A:609) 6 The ATF Form 4473 completed by Nguyen on June 6, 2010 is at A:57-62.


10

Cheryl Spengler’s remains were found in the remnants of 191 Lake Road.

(PSR ¶ 22) An autopsy showed that she had been shot in the head. (id.) The

government concedes that Spengler used the .38 caliber revolver to kill her.

(A:284, footnote 6 and accompanying text)

Law enforcement stated that Spengler had also used the .38 caliber revolver

to kill himself. http://www.usatoday.com/story/news/nation/2014/06/26/nguyen-

ny-firefighters-ambush-guilty-plea/11422997/ (“Authorities say he shot [his sister]

in the head with a handgun before setting the fire. Using the same handgun,

Spengler killed himself”) (last viewed June 2, 2015)7

The government has never alleged that Nguyen ever (i) had actual

knowledge of Spengler’s intentions, (ii) saw or heard of the Bushmaster or

Mossberg after the date of purchase, or (iii) knew that Spengler possessed the .32

caliber revolver.

The shootings were immediately covered by the media, who, by 2:15 pm,

identified Spengler as the shooter. (A:250; 278) The execution of search warrants

targeting Nguyen’s cell phone disclosed that Nguyen sent text messages that day

that included: “Dude billy was at my house three weeks ago. I wake up at 9. See

what’s happening and KNOW FOR SURE whos (sic) doing it”, “we were really

7 Common sense also suggests that of the revolver, shotgun and semiautomatic rifle, Spengler likely used the revolver to kill his sister and himself.


11

close to the killer”, “we knew he was going to kill his sister” and Spengler was

“real crazy”. (PSR ¶¶ 28-29)

Spengler’s typed, single-spaced, 2¼ page suicide note (A:236-38)

demonstrates his substantial familiarity with Welsher and her family, and with

Welsher’s affairs. Spengler references Welsher’s father, step-father, brothers and

children, and two insurance settlements that she received, including one for the

pool, and that she receives money from “S.S.D. for mental health issues”.8

Virtually the entire note consists of his efforts to persuade law enforcement to

arrest Welsher, for her “schemes”, and states that she is responsible for the straw

purchase:

“I got the Bushmaster and the Mossberg cruiser from [Welsher] for cost plus $1000. . . . But . . . she sent her daughter to get them because she doesn’t like to leave a paper trail. Needless to say, her daughter isn’t the brightest person in the world and went for whatever bullshit story [Welsher ] gave her. . . . So the dummy will take the heat for the weapons while the person who set it up and made the profit skates.”

(A:236) Spengler urged for the “right one [to] take the hit”: “On the one hand you

have the daughter who is going to school to try to make something of herself and

was basically duped and the [low-life] mother who sent her to get them”. (A:238)

The police visited Nguyen and Welsher as they congregated with family for

Christmas Eve at 249 Alpine Road on the night of December 24, 2012. They took 8 The PSR states that Nguyen had mental health issues growing up. (PSR ¶¶ 70, 74) Welsher also says she did. (A:550)


12

a statement from Welsher at the police station, and from Nguyen in their vehicle.

(A:77, 144-45, 508-10; PSR, p.3, ¶ 72)

Welsher stated that in mid-2007, three months she moved into 193 Lake

Road, she heard that Spengler had killed his grandmother and asked him about it.

(A:508) Spengler admitted that he had served 17 years in prison for killing his

grandmother with a hammer, telling Welsher that “he would do it again (sic). . . .

He said killing was no big deal to him. It was like turning a light switch on and off

to him” (A:508-09) Welsher also told police that in 2008 or 2009, Spengler stated

that “when his mother died, he was going to kill Cheryl. He said he was going to

put her in the lake with bricks”. (A:509)

Nguyen truthfully told police that she purchased the firearms accompanied

by Spengler, and that he chose them. She also truthfully told them that Spengler

had stated that he intended to kill his sister. Nguyen falsely told the police that she

purchased the firearms for herself for personal protection, and that the firearms

were later stolen from her vehicle. (PSR ¶ 24; A:97, 275)9

Welsher has never been arrested for the straw purchase of June 6, 2010.

Nguyen was arrested on State and Federal charges on December 28, 2012. (PSR ¶

3) 9 At sentencing, Nguyen maintained that she wasn’t fully truthful because she panicked when her interrogators told her that Spengler had used the purchased firearms that morning. (A:229, 242)


13

The State Court Prosecution

Nguyen was tried in the Supreme Court of the State of New York, Monroe

County in Rochester, under Indictment # 2013-0269, on ten dates in April, 2014.

(PSR p.2, ¶ 51) Before opening statements, defense counsel moved for a mistrial

because the jury had observed a courtroom was filled with people in firefighter

uniforms, firefighter T-shirts and “similar gear”.

http://www.usatoday.com/story/news/nation/2014/04/07/nguyen-trial/7447831/

(last viewed June 2, 2015)

The Court denied the motion, but ordered that no more than 10 firefighters

in dress uniform be present in the courtroom at one time, and that they sit in groups

of no more than three. (id.; A:488) The media confirmed “how intently

firefighters are watching the trial”. (id.)

Nguyen was convicted on April 14, 2014 of the single charge submitted,

New York Penal Law § 175.10, Falsifying Business Records in the First Degree,

based on her false statement in the ATF Form 4473 submitted to Gander Mountain

on June 6, 2010 that she was the actual buyer of the firearms listed on the Form

(when in fact Spengler was). (PSR ¶ 51) She has been incarcerated ever since.10

10 It’s a bit hard to conceive how Nguyen falsified Gander Mountain’s business records by placing false information on the ATF Form, but Nguyen is not raising that issue with this Court just yet.


14

At sentencing on May 19, 2014, defense counsel pointed to “all these

individuals sitting right in front of [the Court] . . . [here] to represent West Webster

Police (sic) Department [,]”, and the first responders who died and were injured.

(A:496)

The Court, clearly frustrated that the law hindered his ability to sentence

Nguyen to more, sentenced Nguyen to the maximum term of imprisonment

authorized by law, a minimum of one-and-one-third years and a maximum of four

years (id.; Penal Law § 70.00[2], [3]). (A:500-01) Somehow, someway, the Court

determined that the jail term “does not in any way punish [Nguyen] for what she

did . . .” (A:501)11

11 The government actually argued here that the District Court should consider as a sentencing factor under § 3553(a) the State court’s regret that the law prevented him from sentencing Nguyen to more jail time. (A:292, footnote 9 and accompanying text)


15

The Indictment12

A three-count indictment filed in the Western District of New York on

March 14, 2013 against Nguyen alone charged that each count occurred there on

June 6, 2010. The first count charged Nguyen with violating 18 USC § 922(a)(6),

in that she knowingly made false and fictitious statements to a licensed firearms

dealer, Gander Mountain, to wit, she was not an unlawful user of marijuana, and

she was acquiring the firearms for herself, which were intended and likely to

deceive Gander Mountain as to facts material to the lawfulness of the sale to her by

Gander Mountain of the Bushmaster and Mossberg. (A:18)

The second count charged Nguyen with violating 18 USC § 922(d)(1), in

that she knowingly disposed of the Bushmaster and Mossberg to William Spengler,

a person that she knew or had reasonable cause to believe had been convicted of a

crime punishable by a term exceeding one year. (A:19)

The third count charged Nguyen with violating 18 USC § 922(g)(3), in that

she knowingly and unlawfully possessed the Bushmaster and Mossberg while

being an unlawful user of marijuana. (A:20)

12 The indictment is at A:18-20.


16

The Pimintel Letter

The government in a Pimintel13 letter dated May 22, 2014, and the Probation

Office in the Pre-Sentence Report (the “PSR”), stated that the maximum sentence

to which Nguyen is subject for each of her three guilty pleas is a ten-year term of

imprisonment, a $250,000 fine, and three years of supervised release. (A:188-89)

The Pimintel letter, the PSR, and the District Court at sentencing all

calculated Nguyen’s sentencing range under the United States Sentencing

Guidelines (“USSG” or the “Guidelines”) in the same manner, employing § 2K2.1

to determine Nguyen’s offense conduct. Significantly, none considered the

enhancements at §§ USSG § 2K2.1(b)(6)(B) and/or 2K2.1(c). We maintain here

that these enhancements undermine the District Court’s determination that the facts

here are not contemplated by the Guidelines, which alone opened the way for

departure from Nguyen’s sentencing range.14

The government maintained that Nguyen’s sentencing range is 18 to 24

months, based on a Criminal History Category I, and a final offense level of 15,

determined as follows: a base offense level of 14 [USSG § 2K2.1(a)(6)], a four-

13 United States v. Pimentel, 932 F.2d 1029 (2d Cir. 1991). The Pimintel letter is at A:177-96. 14 The entirety of § 2K1.2, is set out at SA:8-11.


17

level increase for trafficking in two or more firearms [USSG 2K2.1(b)(5)], and a

three level decrease for Nguyen’s acceptance of responsibility [USSG § 3E1.1]

The Guilty Plea

With no plea agreement, Nguyen proffered guilty pleas to all three counts in

the indictment on June 26, 2014, under oath. (A:200)15

Nguyen acknowledges that she reviewed the terms of the government’s

Pimintel letter with her counsel, and understands that the government contends that

her maximum sentencing exposure on each count is a 10-year term of

imprisonment, a fine of up to $250,000, a term of supervised release of three years,

and a special assessment of $100. (A:201, 203-04) Nguyen understands also that

the sentence ultimately imposed here may run consecutively or concurrently with

the State sentence she is serving. (A:216) Nguyen understands from the Pimintel

letter that the government contends that her sentencing range under the Guidelines

includes 18-24 months of imprisonment, and is based on an offense level of 15,

and a Criminal History Category I. (A:206) Nguyen is aware that the Guidelines

range is not mandatory, that she may be sentenced to a greater term. (Id.)

The government set out the elements of the three offenses:

“For Count 1, if this case were to proceed to trial, the Government would be required to prove each of the following elements beyond a reasonable doubt.

15 The transcript of the change of plea proceeding is at A:197-227.


18

“First: That the defendant knowingly made false -- a false and fictitious statement to a federally licensed firearm dealer. “Second: That the false and fictitious statement was made in connection with the acquisition or attempted acquisition of a firearm. “And third: That the false and fictitious statement was likely to deceive the federally licensed firearm dealer as to the lawfulness of the sale of the firearm to the defendant. “For Count 2, the Government would have to show: “First: That the defendant knowingly sold or otherwise disposed of a firearm to another person. “Second: That the other person at the time he or she received the firearm had been convicted of a felony, a crime punishable by a term of imprisonment for more than one year. “And third: That the defendant at the time of the sale or the disposition knew or had reasonable cause to believe that the other person had been convicted of a felony or a crime punishable by imprisonment for a term exceeding one year. “And, finally, for Count 3, at trial the Government would need to prove beyond a reasonable doubt: “First: That the defendant knowingly possessed the firearms as charged. “Second: That at the time the defendant possessed the firearms, the defendant was an unlawful user of a controlled substance. “And third: That the possession of the firearms was in or affecting interstate or foreign commerce.”


19

(A:208-09) The government added that the firearms were not manufactured in

New York. (A:211)

Nguyen understands the elements. (A:209) As to count one, Nguyen

acknowledged making two false statements on an ATF Form 4473 to a federally-

licensed firearms dealer in connection with her purchase of a semi-automatic rifle

and a Mossberg .12 gauge shotgun, to wit, she is the actual buyer of the firearms

and she is not a marijuana user. (A:210-11)

As to count two, Nguyen acknowledges that she transferred the firearms to a

person that she knew had been convicted of a felony in connection with the death

of his grandmother. (A:213)

As to count three, Nguyen acknowledges that she possessed the firearms on

June 6, 2010 while being an unlawful user of marijuana. (A:214)

Nguyen understands that she has the right to see this case to trial, where a

jury would decide “guilt or innocence”, that the government there would have to

prove her guilt beyond a reasonable doubt, and that she would have the benefit of

counsel who could cross-examine witnesses and use subpoena power. (A:218-19)

Nguyen acknowledges that she is giving up all of these rights by pleading guilty,

and that there will be no trial. (A:220)

Nguyen has had sufficient time to consult with her counsel before making

the decision to plead guilty, and she is satisfied with his advice. (A:220) After the


20

Court read each count to Nguyen, she responded “guilty”. (A:221-22) The Court

accepted the guilty pleas. (A:222)

The PSR16

In its final PSR dated August 8, 2014, the Probation Office reports that

Nguyen is 25 years old. She was born in Rochester, New York, and raised by her

mother in the area. (PSR ¶¶ 70, 72) Since moving from 193 Lake Road, Nguyen

has been living at 249 Alpine Road in Greece, New York, where she lives with her

mother, stepfather, and two sisters. (id. at 72) Nguyen earned her GED at age 18,

and Associate’s degree in 2012. She attended college for a Bachelor’s Degree in

Business at SUNY Geneseo when she was arrested on this case. (PSR ¶ 78-79)

Nguyen’s State conviction, based on the facts here, is her only other contact

with the criminal justice system. (id. at ¶¶ 50-51, 54-55)

The PSR concurs with the Pimintel letter that (i) the maximum sentence to

which Nguyen is subject for each guilty plea is a ten-year term of imprisonment, a

$250,000 fine, and three years of supervised release, and (ii) Nguyen’s Guidelines

range is 18 to 24 months, based on a final offense level of 15, and a Criminal

History category of I (PSR ¶¶ 36-53, 56, 57).

16 The PSR will be filed with this Court under seal at or about the time that this Brief is filed.


21

Like the government in the Pimintel letter, the Probation Office determined

that § 2K2.1 measures Nguyen’s offense conduct, but did not acknowledge the

enhancements at §§ USSG § 2K2.1(b)(6)(B) and/or 2K2.1(c).

Nguyen and her family knew that Spengler had spent time in prison in

connection with the death of his grandmother. (PSR ¶ 31) Nevertheless, there was

“a close relationship between NGUYEN and Spengler”; Nguyen and others in her

family referred to Spengler as “Uncle Billy”. (PSR ¶ 30)

The Probation Office maintains that Nguyen’s “offense conduct” includes

the ghastly events of December 24, 2012, setting out six lengthy paragraphs in the

that section before even mentioning Nguyen’s actual offense conduct, which

occurred on June 6, 2010 only. (PSR ¶¶ 18-24) The next section, under the

heading “Victim Impact”, brings the point home: “[t]here are many victims” of

Nguyen’s conduct. (id. at ¶ 32)

The Probation Office attached letters from each of the injured firefighters to

the PSR. One said that Spengler’s crimes “directly resulted” from Nguyen’s

crimes, and asked the Court to consider the gravity of the former in connection

with sentencing on the latter. (PSR attachment, p. 1) The other regretted that “the

laws do not allow [Nguyen] to be charged as a conspirator” of Spengler’s. (id at p.

3) Both asked the Court to sentence Nguyen to a ten-year term of imprisonment.


22

For reasons about which one can only speculate, the PSR knowingly and

repeatedly falsely states that Spengler was convicted of murder (PSR ¶¶ 31, 32,

86), and that Nguyen knew it. (PSR ¶ 32; in fact he was convicted of manslaughter

as the PSR acknowledges once at ¶21).17

The PSR proffers only USSG § 5K2.(a)(3) as a basis for a departure (PSR ¶

85), thus acknowledging that (i) this case is of a “kind” considered under the

Guidelines, if not of a “degree”, and that accordingly (ii) the Guidelines only

authorize a non-Guidelines sentence if this case is “exceptional”. Reasons to

depart upward only are proffered. The Probation Office would have the Court

believe that the “typical straw purchase” (quotation marks theirs) involves a

defendant purchasing “a firearm for a friend or family member who has a felony

conviction and the firearm is to be used for sporting purposes or home defense”.

However, the Probation Office quickly purported to back off from their apparent

naiveté: reference to an upward departure only (and the foregoing as a basis for it)

“does not necessarily constitute a recommendation”. (Id. at 87) (emphasis added)

The Probation Office also offered reasons for a variance based on 18 USC §

3553(a), upward only, pointing only to the nature and circumstances of the offense,

the history and characteristics of the defendant, the seriousness of the offense, and

the need to provide just punishment and afford adequate deterrence. (Id. at 88). 17 The elements of the crime of Manslaughter in the first degree under New York law in 1981 are set out at SA:7.


23

The Probation Office again hastily disclaimed, though half-heartedly at best here

too: reference to an upward variance and these factors only, “does not necessarily

constitute a recommendation”. (id. at 89) (emphasis added)

In the end, the Probation Office made no recommendation regarding

sentencing.

The Parties’ Sentencing Submissions18 Nguyen filed a sentencing memorandum on August 14, 2014 (A:228-69),

and the government moved for an “upward departure/variance” a week later.

(A:270-517) By letter to the parties dated August 26, 2014 the District Court

stated that in addition to the § 3553(a) sentencing factors, the Court at sentencing

would consider too its departure authority under USSG § 5K2.0, specifically, §§

5K2.1 (death) and 5K2.2 (physical injury), based on the events of December 24,

2012. (A:520)19 Nguyen responded to the motion on September 5, 2014 (A:521-

43), and the government filed a reply six days later. (A:544-56)

18 Nguyen’s sentencing filings included among its attachments, without limitation, Spengler’s suicide note (A:236-38), Nguyen’s letter to the Court dated August 1, 2014 (A:240-43) and letters of support from friends and family (A:245-68) The government’s memoranda (A:270-94, 544-48) included among their attachments, without limitation, transcripts of judicial proceedings, statements of witnesses to police, and media reports. (A:295-514, 549-56) 19 USSG §§ 5K2.0, 5K2.1 and 5K2.2 are set out at SA:12-15.


24

By its sentencing filings, the government agreed with the Probation Office

that Nguyen’s Guidelines range was 18-24 months. Still, in meting out sentence,

the Court should consider the “impact [of Nguyen’s crimes] on the local

community”. (A:271). Accordingly, the government moved for an “upward

departure/variance”, asking that Nguyen be sentenced to a ten-year term of

imprisonment “as sought by the victims in this case”, to run consecutively to the

State sentence. (id; id. at 274)

The government claimed that on June 6, 2010 “Spengler’s murderous

rampage was clearly foreseeable [to Nguyen] and she was aware of Spengler’s

intent”, and that she had “armed a person who [she] knew would kill again”.

(A:278, 283). Indeed, the government repeatedly called the firefighters killed and

injured by Spengler Nguyen’s “victims” (A:271) (as the Probation Office did in the

PSR, and as the District Court did at sentencing). Nguyen’s conduct had led

“inexorably” to the deaths and injuries on December 24, 2012. (A:274)

The government acknowledged that Nguyen and Spengler shared a “close

relationship”, and that she and/or other members of her family referred to him as

“Uncle Billy”. (A:280)

The government appeared to acknowledge that Nguyen knew nothing of the

.32 caliber revolver, and therefore could never have prevented the death of Cheryl

Spengler. (A:284) But the government deemed Spengler’s use of the.32 caliber


25

revolver to kill his sister to be, for Nguyen, but “fortuitous”, in light of the

Bushmaster and Mossberg. (A:284, footnote 6 and accompanying text). Thus (the

government conjectured), if Nguyen had not made the straw purchase, then

“perhaps . . . the tragedy would have ended” with the death of Cheryl Spengler

only. (A:284)20

The government maintained that the State court’s consternation that the law

restricted Nguyen’s sentence to no more than one-and-one-third to four years

imprisonment is a factor that the District Court should consider when sentencing

Nguyen here. (A:292 at footnote 9)

In her sentencing filings, Nguyen disputed the government and Probation

Office’s contention that Nguyen’s sentencing range under the Guidelines was 18-

24 months, averred that her sentencing range was 8-14 months, and asked that the

Court impose a Guidelines sentence, to run concurrent with the State sentence.

(A:233, 533)

Nguyen stated that she purchased the firearms for Spengler at Welsher’s

request, believing that he wanted them for hunting, and that she was thereby doing

a favor for her mother and a “family friend”. (A:228, 527)

20 The government fails to acknowledge that Spengler could have committed all of the same crimes just as readily by using only the .32 caliber revolver, and the government never alleged that Nguyen knew anything about the revolver.


26

In response to the government’s claim that she knew of Spengler’s stated

intention to kill his sister, Nguyen maintained that no one had taken Spengler’s talk

seriously (A:232), and pointed to the fact that no one had ever reported his

statements to the police. (A:523)

Nguyen argued that the Court should avoid any unwarranted sentencing

disparity (A:529), and attached the March 3, 2014 judgment (and FBI press

release) in the case styled United States v. Stevie Marie Ann Vigil, 13-cr-00327-

CMA-0.1 (DC Colo.). (A:534-42) There, defendant made a straw purchase of a

9mm handgun in 2013 for Evan Ebel, who she knew was only recently released on

parole. Eleven days later Ebel used the firearm to kill a pizza delivery man that he

had lured there. Two days later, Ebel used the firearm to kill the Executive

Director of the Colorado Department of Corrections. Two days later Ebel used the

firearm to shoot a pursuing officer in the face. (A:529-30)

Vigil was sentenced to a 27-month term of imprisonment. (A:536) Sentencing

The District Court imposed sentence on September 17, 2014 (A:557-621),

and filed a Statement of Reasons for its sentence under seal, which we will file

under seal with this Court on or near the date of the filing of this Brief. We cite to

either throughout the brief in setting out the District Court’s reasoning.


27

The government at sentencing noted “the presence of many members from

the West Webster Fire Department, including [the two injured by Spengler]”.

(A:587)

The District Court acknowledged reading the letters attached to the PSR

from the injured firefighters, calling them “victim statements”. (A:562) The Court

referred to the two deceased firefighters likewise as Nguyen’s “victims”. (id.)

The government maintained that Nguyen had “destroyed the lives of many

and . . . left deep scars in the fabric of this community.” (A:588) The AUSA

thought fit to share “as a member of this community” her personal outrage at

Nguyen’s actions. (A:589) The government joined “[t]he surviving victims in this

case” in their pleas for a 10-year term of imprisonment. (A:593)

Defense counsel argued that notwithstanding her text message of December

24, 2012 stating “I wake up at 9. See what’s happening and KNOW FOR SURE

whos (sic) doing it”, Nguyen did not then “know” that Spengler was the shooter:

“That's text. If you had a conversation with her, do you think she really knew that it was him? Or if you live in the neighborhood can you guess one guy, that if a shooting is going on there, that's the guy who did it. . . . . 30 years go by and this nice neighbor who is quirky, a little weird . . . doesn't do anything violent. . . . Do you think she really knew that that was him? Or was she guessing? * * * * * “She didn't know who was doing it. That was her old neighborhood. Of course she was curious. Of course she had


28

guesses. You would, I would, [the AUSA] would. We would all guess who it would be”.

(A:578-79) (emphases added) Counsel also referred to Nguyen’s text messages

before Spengler was publicly identified as the perpetrator (which are not in the

record, but appear to have been in evidence at the State trial) wherein she asks a

friend in local law enforcement whether the shooter has yet been identified, which

shows that she did not “know” who the shooter was. (A:577)

Counsel argued that notwithstanding her text message “we knew he was

going to kill his sister”, Nguyen did not “know” Spengler was going to kill his

sister. Counsel analogized: if California falls into the ocean tomorrow, then “half

of America is going to say oh, I knew for sure that was going to happen. They got

earthquakes out there”. (A:576-77)

As the government and Probation Office recommended, the Court used §

2K2.1 to determine Nguyen’s offense level. Like the government and Probation

Office, the Court never addressed whether §§ § 2K2.1(b)(6)(B) and/or 2K2.1 (c)

apply here.21

The District Court determined that Nguyen’s sentencing range under the

Guidelines is 18-24 months, based on a final offense level of 15 and a Criminal

History Category I. However, the Court imposed an incarceratory sentence at

21 The entirety of § 2K1.2 is set out at SA:8-11.


29

variance from the Guidelines range, sentencing Nguyen to an eight-year term of

imprisonment, to run concurrently with the State sentence, three years of

supervised release, a $1,000 fine, and a special assessment of $300. (SPA:1-6)

The District Court determined that 18 USC § 3553(b) “warranted a variance

from the applicable Guidelines range” based on aggravating circumstances “of a

kind and (sic) to a degree” not adequately considered by the Sentencing

Commission in the formulating the Guidelines. (Statement of Reasons, p. 2)22

The Court stated that besides § 3553(b)(1)23, “[i]n considering the variance,

and the extent of it, I also considered the several factors listed under 18 USC §

3553(a)”. (Statement of Reasons, p. 4)

The Court determined that Nguyen “knowingly risked that death or serious

injury could occur based on what she knew” (A:614-15), and that therefore §§

5K2.1 and 5K2.2 were applicable (A:614), stating “[k]nowingly risked. Not

knowingly intended, but knowingly risked. When you risk something and it comes

to pass, there is a price to pay”. (A:614-15)

22 We argue infra, at Point I.C. that manifestly, no case can be both “of a kind” and “to a degree”, not considered by the drafters of the Guidelines. 23 There will be no dispute on this appeal that the Court was relying on subsection (1) of § 3553(b) only.


30

The Court determined that “the nature of [Nguyen’s] offense” included

“Spengler’s . . . killing two firefighters and wounding two others”. (Statement of

Reasons, p. 4)

The Court made the following findings of fact, which the Court stated

warranted the variance and its extent: at the time that she purchased the firearms,

Nguyen (i) knew not merely that Spengler had killed his grandmother but knew

also “the gory details of pushing her down the stairs and hitting her with a

hammer” (A:650; Statement of Reasons, p. 4)24, (ii) knew that Spengler suffered

from “mental instability” (id. at p.4; A:606), and (iii) knew that Spengler had

stated an intention to kill his sister. (Statement of Reasons, p 4 (cont)

The District Court found that Nguyen “recklessly initiated a chain of

circumstances that resulted in death and injury and, therefore, a departure because

of those deaths is warranted”. (Statement of Reasons, p. 4 cont.))

“In short, I believe Ms. Nguyen created an unreasonable risk of harm by

providing Mr. Spengler the weapons that she did”. (A:613)

24 Neither the government nor the Probation Office asserted that Spengler had pushed his grandmother down the stairs. The court appears to be relying on Nguyen’s mother’s statement to the police on December 24, 2012, that Spengler had so informed her. (A:509)


31

Judgment and the Notice of Appeal

Judgement entered on September 24, 2014. (SPA:1-6) Nguyen filed a

notice of appeal with the District Court on November 5, 2014 (A:622), timely,

because on October 6, 2014, the District Court had extended Nguyen’s time to file

a notice of appeal by 30 days. (A:9, docket entry # 80)

ARGUMENT

We respectfully submit as self-evident that if Spengler had lived to be

prosecuted for his December 24, 2012 crimes, then Dawn Nguyen would have

been sentenced to considerably less time than eight years in prison.

We respectfully submit as self-evident that if the identical fact pattern with

the following one immaterial change had been what had occurred here in fact, then

Nguyen would have been sentenced to considerably less time than eight years in

prison: Nguyen commits the same crimes, and Spengler commits the same crimes,

except that Spengler uses the .32 caliber revolver to shoot at the first responders,

then kills himself, and authorities later discover the Bushmaster and Mossberg in

Spengler’s rented storage unit.

It bears repeating again: the government has never maintained that Nguyen

ever (i) had actual knowledge of Spengler’s intentions, (ii) saw or heard of the


32

Bushmaster or Mossberg after the date of purchase, or (iii) knew that Spengler

possessed the .32 caliber revolver.

There is no dispute that USSG § 2K2.1 (SA:8-11) determines the measure of

Nguyen’s offense conduct, indeed that of all straw firearms purchasers. Not

surprisingly, the Sentencing Commission provided enhancements where the

purchaser has reason to believe that the firearm might be used by a person in

connection with another felony, § 2K2.1(b)(6)(B), and/or when she knows that the

purchase might result in death or serious injury. § 2K2.1(c)

The District Court properly determined that Nguyen’s offense conduct

should be measured under § 2K2.1. However, the Court never addressed whether

§ 2K2.1(b)(6)(B) and/or § 2K2.1(c) apply to Nguyen’s conduct, which made

possible the Court’s determination under § 5K2.0(a)(1)(A) that these facts were not

considered by the Sentencing Commission in formulating the Guidelines.

One argument that we make here is purely of law, to wit, sections

2K2.1(b)(6) and 2K2.1(c) wholly undermine the District Court’s determination that

this record is one that the Sentencing Commission did not consider in formulating

the Guidelines, which in turn undermined the sole legal basis for the District

Court’s determination that § 5K2.0(a)(1)(A) opened the way to departure from the

Guidelines range, which in turn undermined the Court’s reliance on §§ 5K2.1 and

5K2.2, which was the primary basis for the variance and it extent.


33

Accordingly, this Court should hold that as a matter of law §§

2K1.1(b)(6)(B) and/or 2K1.1(c) mean that the facts here were considered by the

Sentencing Commission in formulating the Guidelines, which, given the centrality

of the departure to the District Court’s reasons for the variance and its extent,

warrants remand for sentencing anew. At the very least this Court should remand

for sentencing anew to permit the District Court to address §§ 2K1.1(b)(6)(B)

and/or 2K1.1(c) for the first time, including whether the provisions change the

Court’s determination that the facts here were not considered by the Sentencing

Commission in formulating the Guidelines.25

25 The storage locker hypothetical is offered only for argument’s sake; nothing in this brief should be deemed an admission by us that Spengler used other than the .32 caliber revolver to fire from the berm. Indeed, we argue at Point I.D. infra, that the record lacks a basis for the District Court’s determination that Spengler used the firearms that Nguyen purchased. We argue further that in any event, the firearm that Spengler used is irrelevant to sentencing here (as the storage locker hypothetical illustrates).


34

I.

THE SENTENCE, NEARLY 500% HIGHER THAN THE MIDDLE OF NGUYEN’S GUIDELINES RANGE, IS PROCEDURALLY UNREASONABLE

A. Standard of Review

This Court reviews sentences for reasonableness. United States v. McIntosh,

753 F.3d 388, 393-394 (2d Cir. 2014). “Reasonableness review requires an

examination of the length of the sentence (substantive reasonableness) as well as

the procedure employed in arriving at the sentence (procedural reasonableness)”.

United States v. Johnson, 567 F.3d 40, 51 (2d Cir. 2009). The standard of review

under each “amounts” to one for “abuse of discretion”. United States v. Chu, 714

F.3d 742, 746 (2d Cir. 2013) (per curiam) (internal quotation marks omitted); Gall

v. United States, 552 U.S. 38, 40 (2007) (“courts of appeals must review all

sentences . . . under a deferential abuse-of-discretion standard”).

Still, this Court reviews a sentencing court’s interpretation of a Guidelines

provision de novo, a standard in sentencing jurisprudence that “capture[s]” the

abuse-of-discretion standard required under Gall. United States v. Hasan, 586

F.3d 161, 169 (2d Cir. 2009) (merely because “appellate courts apply the term

‘abuse of discretion’ to the overall review of a district court's implementation of a

sentence . . . does not imply discretion on the part of the district judge in deciding a

matter of law, [thus] we review the District Court's interpretation of the Guidelines


35

here de novo”); United States. v. Hertular, 562 F.3d 433, 449 (2d Cir. 2009) (“In

general, we review a district court's determination that a defendant deserves a[n] . .

. enhancement . . . de novo . . . .”); United States v. Legros, 529 F.3d 470, 473 (2d

Cir. 2008) (“[t]he abuse-of-discretion standard incorporates de novo review of

questions of law (including interpretation of the Guidelines). . . .”); United States

v. Maria, 186 F.3d 65, 70 (2d Cir. 1999) (whether a Guideline has been misapplied

is “a purely legal question”, reviewed de novo).26

A District Court’s error in determining the “availability of [its] departure

authority” can render a sentence procedurally unreasonable. United States v.

Selioutsky, 409 F.3d 114, 118 (2d Cir. 2005) (remanding on such error); United

States v. Rattoballi, 452 F.3d 127, 132 (2d Cir. 2006) (same); Williams v. United

States, 503 US 193, 200 (1992) (“it is an incorrect application of the Guidelines for

a district court to depart from the applicable sentencing range based on a factor that

the Commission has already fully considered in establishing the guideline range”)

A sentence is also procedurally unreasonable if the sentencing court “does

not properly consider the [18 USC] § 3553(a) factors”, United States v. Cossey,

632 F.3d 82, 86 (2d Cir. 2011) (per curiam), United States v. Johnson, 567 F.3d

26 See generally, Sims v. Blot, 534 F.3d 117, 132 (2d Cir. 2008), (“[a] district court has abused its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence or rendered a decision that cannot be located within the range of permissible decisions”) (emphasis added) (internal alteration, citations, and quotation marks omitted)


36

40, 51-52 (2d Cir. 2009), or “fails to consider the [18 U.S.C.] § 3553(a) factors”,

United States v. Robinson, 702 F.3d 22, 38 (2d Cir. 2012).

A district court also commits procedural error where its sentence rests on “a

clearly erroneous finding of fact”. United States v. Cavera, 550 F.3d 180, 190 (2d

Cir. 2008) (en banc).

None of our claims of error may assessed by this Court under the plain error

standard at Fed. R. Cr. P. 52(b) in part because before sentence was imposed: (i)

Nguyen objected to the PSR’s statements that her offense conduct included

Spengler’s crimes, and that Spengler’s victims were her victims (A:229, 231); (ii)

Nguyen objected to the PSR’s statement that USSG § 5K2.0(a)(3) could form the

basis for a departure, arguing that there is nothing “exceptional” about this case

(A:530-31); (iii) Nguyen pointed to the absence of a basis in the record to support a

finding that she could have reasonably foreseen how Spengler would use the

firearms, a finding that is the sine qua non of the Court’s departure authority under

USSG §§ 5K2.1 and 5K2.2 (A:532-33); and (v) Nguyen argued that the Court

should “avoid unwarranted sentence disparities” as required by § 3553(a)(6).

(A:529-30; 581-83).


37

B. The Court Erred in Relying on An Excised Statute, 18 USC § 3553(b)(1) The District Court’s erroneous interpretation that 18 USC § 3553(b)(1)

provides a basis for the variance and its extent presents an error of law reviewed de

novo. United States v. Morrison, 778 F.3d 396, 399 (2d Cir. 2015) (“[w]e review

‘[a] district court['s] interpretation of a federal statute de novo.’”, quoting United

States v. Soler, 759 F.3d 226, 229 (2d Cir. 2014)). See supra, at Point I.A.

Section 3553(b)(1) provides in pertinent part:

“§ 3553 - Imposition of a sentence “(b) Application of Guidelines in Imposing a Sentence.— “(1) In general.— [T]he court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless the court finds that 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 that should result in a sentence different from that described.” But § 3553(b)(1) is of no legal consequence because it was totally excised

from the Sentencing Reform Act of 1984 by the Supreme Court in United States v.

Booker, 543 U.S. 220, 259-60 (2005). See, United States v. Selioutsky, 409 F.3d

114, 118, n. 6 (2005) (“in Booker the Supreme Court could have . . . excised only

the portion of § 3553(b)(1) making application of the relevant Guideline range

compulsory, thereby leaving viable the portion of subsection 3553(b)(1) that


38

authorized departures. However, the Court . . . excised the entirety of subsection

3553(b)(1)”) (emphasis added).

We acknowledge that based on United States v. Gilmore, 599 F.3d 160 (2d

Cir. 2010), this Court may choose to deem the District Court’s erroneous reliance

on excised § 3553(b)(1) to have been “harmless”, because the Court could have

relied on § 5K2.0(a)(1)(A) instead. 599 F. 3d at 169. Since the two provisions

contain the same language, this Court may reason that any error “consisted of

nothing more than using the wrong label for the rule in question”. Id.

But the error here was not harmless.

1. The District Court’s Erroneous Reliance On 18 USC § 3553(b)(1) Was Not Harmless, Even If The District Court May Be Deemed to have Relied on USSG § 5K2.0 Instead Even if the District Court here may be deemed to have not relied on §

3553(b)(1), but on § 5K2.0(a)(1)(A) instead, the error is not harmless, because the

District Court afforded the same weight to the alleged “aggravating circumstances”

under § 3553(b)(1) (or under § 5K2.0(a)(1)(A), either way, its a “label” under

Gilmore), as it afforded the factors listed at § 3553(a).27

The record shows near pristinely that the District Court considered §

3553(b)(1), and/or USSG § 5K2.0(a)(1)(A), to stand on an equal footing with the §

27 Section 3553(a) is set out at SA:4-5.


39

3553(a) factors. In its letter to the parties of August 26, 2014, the Court

acknowledged it:

“The Government has discussed at length in its motion for a departure the deaths and the physical injury that occurred on December 24, 2012. These matters could certainly be considered under Guidelines 5K2.0, as well as all the sentencing factors listed at § 3553(a)”.

(A:520) (emphasis added)

Similarly, in its Statement of Reasons (at p. 4), the District Court stated:

“[i]n considering the variance, and the extent of it, I also considered [beside §

3553(b)(1)] the several factors listed under 18 USC § 3553(a)”. (emphasis added)

At sentencing, the Court again acknowledged its conclusion that §

3553(b)(1) stands equal to the § 3553(a) factors: “the Court can also consider” §

3553(b)(1), in addition to § 3553(a) (A:599), and again, beside § 3553(b)(1), the

Court “must also consider the factors under § 3553(a)”. (A:610)

By deeming § 5K2.0(a)(1)(A) equal to the § 3553(a) factors, the Court made

a mountain from a molehill. Section 5K2.0(a)(1)(A) is but one Guidelines

provision, among hundreds, and the Guidelines are but one single factor, among

approximately ten, which § 3553(a) directs sentencing courts to alone consider in

determining whether to impose a non-Guidelines sentence. The departure


40

provision at § 5K2.0(a)(1)(A) thus shows up small indeed when juxtaposed with

the breadth and volume of the § 3553(a) factors.28

In United States v. Anati, 457 F.3d 233, 236-237 (2d Cir. 2006), overruled

on other grounds, Irizarry v. United States, 553 U.S. 708 (2008), this Court

acknowledged the expanse separating the “circumscribed opportunity” to depart

based on “specific grounds” afforded by § 5K2.0, and the “somewhat broader

opportunity to sentence above or below that range based on a consideration of the

factors outlined in section 3553(a)”.

The error here, equating either §3553(b)(1) or § 5K2.0(a)(1)(A) with the

factors listed in 18 U.S.C. § 3553(a), is one that fails to give adequate

consideration to the factors listed in 18 U.S.C. § 3553(a), rendering the variance

and its extent procedurally unreasonable. United States v. Toohey, 448 F.3d 542,

545 (2d Cir. 2006) (vacating sentence for failure to give requisite consideration of

the § 3553(a) factors where record shows either a “misunderstanding” about their

applicability, or a “misperception about their relevance”); United States v.

Williams, 524 F.3d 209 (2d Cir. 2008) (district court’s reliance on matters related

but tangentially to § 3553(a) factors was procedural error).

28 Perhaps the Court has the tail wagging the dog too.


41

C. The District Court Erred In Determining That § 5K2.0(a)(1)(A) Authorized Departure Because § 2K2.1(b)(6)(B) and/or § 2K2.1(c) Show That The Record Here Is One Contemplated Under the Guidelines The District Court properly determined that § 2K1.2 should measure

Nguyen’s offense conduct. However, the District Court erred by never addressing

whether § 2K2.1(b)(6)(B) and/or § 2K2.1(c) apply to this case, which allowed the

Court to determine under § 5K2.0(a)(1)(A) that these facts had not been considered

by the Sentencing Commission in formulating the Guidelines.

The District Court’s erroneous determination that the variance and its extent

is authorized by §5K2.0(a)(1)(A), which alone opened the way to departure under

§§ 5K2.1 and 5K2.2, is a misinterpretation of a Guideline, and is therefore

reviewed here de novo. Hasan, 586 F.3d at 169. See supra, at Point I.A.

By the plain terms of § 5K2.0(a)(1)(A), sections 5K1.1 and 5K2.2 authorize

a departure from a Guidelines sentence only where the case includes “aggravating

or mitigating circumstances” that are “of a kind” or “to a degree” not considered

by the Sentencing Commission in formulating the Guidelines.

Where the circumstances are “of a kind” not contemplated by the

Guidelines, a departure is always authorized. USSG §5K2.0(a)(2) Where the

circumstances are “to a degree” not contemplated by the Guidelines, a departure is

authorized only if the case is “exceptional”. USSG §5K2.0(a)(3)


42

The District Court deemed the way open to departure under §§ 5K2.1 and

5K2.2 based on aggravating circumstances “of a kind and to a degree” not

contemplated pursuant to § 5K2.0(a)(1)(A). (Statement of Reasons, p. 2)

(emphasis added) But no case can be both: the “degree” to which a circumstance

was not considered will arise only where the circumstance was “of a kind”

considered. This error alone shows that the District Court misapplied §

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

In any event, this case is plainly “of a kind” contemplated under the

Guidelines.29 It should surprise no one that the Sentencing Commission foresaw

the possibility that some straw purchasers might have reason to believe that the

actual purchaser wished to possess the firearm to use in another crime. Thus,

USSG § 2K1.2(b)(6)(B) mandates an enhancement where the defendant/straw

purchaser “transferred any firearm . . . with knowledge, intent, or reason to believe

that it would be used or possessed in connection with another felony offense”.30

29 The Probation Office never maintained that the circumstances here were “of a kind” not contemplated by the Guidelines, only that they were “to a degree” not contemplated. (PSR ¶¶ 85-87) Although the government took no position below as to whether departure was authorized by the “kind” or “degree” prong, we suspect that the government on appeal will concede, as the record demands, and as the Probation Office conceded, that the circumstances here plainly are of a “kind” considered under the Guidelines. 30 The entirety of USSG § 2K1.2, Nguyen’s offense Guideline here, is set out at SA:8-11.


43

The “knowledge, intent or reason to believe” enhancement at §

2K1.2(b)(6)(B) undermines the District Court’s legal determination that the

Guidelines do not contemplate that straw purchasers might have reason to believe

that the actual purchaser aimed to use the firearm in another crime. The provision

means that the circumstances here are necessarily “of a kind” considered by the

drafters of the Guidelines. United States v. Schular, 907 F.2d 294 (2d Cir. 1990)

(§ 5K2.0(a)(1)(A) provided no basis for departure based on number of firearms

transferred (177), because Guidelines included just such an enhancement); United

States v. Leonard, 37 F.3d 32, 37 (2d Cir. 1994) (rejecting District Court’s reasons

for non-Guidelines sentence because “it is plain to us that they were already

considered by the Sentencing Commission in formulating the guidelines”).

Therefore, § 5K2.0(a)(1)(A) can provide no basis for a departure here,

unless this case is “to a degree” not considered by the Sentencing Commission, and

if so, only if the case is “exceptional”. USSG § 5K2.0(a)(3)

This case is also “to a degree” considered under the Guidelines. Naturally,

the Sentencing Commission contemplated that some straw firearms purchasers

might foresee that the crimes that the actual purchaser intended to commit could

result in death or injury. Accordingly, USSG § 2K1.2(c) provides in pertinent part:


44

“(c) Cross Reference

“(1) If the defendant . . . transferred a firearm or ammunition with knowledge or intent that it would be used or possessed in connection with another offense, apply --

“(A) §2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to that other offense, if the resulting offense level is greater than that determined [under § 2K1.2(a), (b)]; or “(B) if death resulted, the most analogous offense guideline from Chapter Two, Part A, Subpart 1 (Homicide), if the resulting offense level is greater than that determined [under § 2K1.2(a), (b)].

Thus, § 2K1.2(c) undermines the District Court’s legal determination that

the Sentencing Commission did not consider that straw purchasers of firearms

might be aware that the actual purchaser of the firearm aimed to use it to kill or

injure. Section 2K1.2(c) thus establishes that the circumstances here are

necessarily “to a degree” (and a “of a kind”) contemplated by the Guidelines, and

that the District Court therefore erred when it determined that § 5K2.0(a)(1)(A)

opens the way for departure under §§ 5K1.2 or 5K2.2. United States v. Rattoballi,

452 F.3d 127, 132 (2d Cir. 2006) (“we will view as inherently suspect a non-

Guidelines sentence that rests primarily upon factors that are not unique or

personal to a particular defendant, but instead reflects attributes common to all

defendants”)

Because this case is not “to a degree” not contemplated under §

5K2.0(a)(1)(A), a fortiori, there is also nothing “exceptional” about it for purposes


45

of § 5K2.0(a)(3). Moreover, the District Court never determined that these

circumstances were “exceptional”, a sine qua non of a departure based on the

degree prong of § 5K2.0(a)(1)(A). USSG § 5K2.0(a)(3) Instead, the Court

determined merely that the case was “atypical”, “unusual” and “differs from the

norm”. (A:600-01)

Thus, even if this Court determines that the circumstances here are “to a

degree” not contemplated by the Guidelines, then the departure was still not

authorized under the Guidelines, because the District Court never determined that

those circumstances are “exceptional” for purposes of § 5K2.0(a)(3) (nor could it).

For these reasons, the District Court erred in determining that departure from

Nguyen’s Guidelines range was authorized under § 5K2.0(a)(1)(A), which alone

opened the way to departure under §§ 5K2.1 and 5K2.2.

D. The District Court Misapplied The “Knowingly Risked” Element of USSG § § 5K2.1 and 5K2.231

Assuming arguendo that this case is “of a kind” or “to a degree” not

contemplated by the Guidelines for purposes of § 5K2.0(a)(1)(A), and if the latter,

also that the case is “exceptional” for purposes of § 5K2.0(a)(3), then still the

District Court misinterpreted the departures authorized by §§ 5K1.1 (Death) and 31 The entirety of §§ 5K2.0, 5K2.1 and 5K2.2 are at SA:12-15. We treat §§ 5K2.1 and 5K2.2 as one here, as the District Court did below, and in keeping with language in § 5K2.2: “In general, the same considerations apply as in §5K2.1.”


46

5K2.2 (Physical Injury), provisions at the core of the Court’s stated basis for the

variance and its extent. This Court reviews this claim of a misinterpreted

Guidelines provision de novo. Hasan, 586 F.3d at 169. See supra, at I.A.

Section 5K2.1 may not form the basis for an upward departure in the

absence of a showing that defendant either “intended” or “knowingly risked”

death. United States v. Rivalta, 892 F.2d 223, 232 (2d Cir. 1989). Accord, United

States v. White, 79 F.2d 539 (7th Cir. 1992) (citing Rivalta, “We follow the Second

Circuit in requiring that § 5K2.1 departures be supported by findings that death

was intentionally or knowingly risked. By setting forth this standard, the

Sentencing Commission indicated that such departures are appropriate only when

the defendant is actually aware that a fatal outcome is likely”).

Our point that the District Court erred when it failed to consider §

2K1.2(b)(6)(B) (supra, at I.C.) applies with like force here. By never addressing

the “knowledge, intent or reason to believe” enhancement at § 2K1.2(b)(6)(B)

(SA:10), the District Court must be deemed to have determined sub silencio that it

did not apply. But no amount of reasoning can harmonize the Court’s conclusion

that Nguyen did not have “knowledge, intent or reason to believe” that Spengler

would use the firearms for murder and assault on the hand, with the Court’s finding

that Nguyen “knowingly risked” the death and injury on December 24, 2012 on the


47

other. This error alone illustrates that the sentence is a product of the Guidelines

misapplied.

The District Court appears to have confused its mens reas too, deeming

significant that §§ 5K2.1 and 5K2.2 provides “[k]nowingly risked. Not knowingly

intended, but knowingly risked”. (A:614-15) There is of course no such thing as

“knowingly intended” under the law; knowingly and intentionally are separate

mens reas.

More to the point, “knowingly” and “recklessly” are also separate mens reas.

Knowingly is the only mens rea in §§ 5K2.1 and 5K2.2. But the District Court

found that Nguyen had “recklessly initiated a chain of circumstances that resulted

in death and injury and, therefore, a departure because of those deaths is

warranted”. (Statement of Reasons, p. 4 cont.) (underscore added)

And perhaps even more to the point, the Court also applied a negligence

standard: “In short, I believe Ms. Nguyen created an unreasonable risk of harm by

providing Mr. Spengler the weapons that she did”. (A:613)

There is procedural error because the record is unclear as to whether the

District Court was applying the “knowingly” standard when it determined the

applicability of §§ 5K2.1 and 5K2.2, or some other mens rea. Moreover, for the

reasons set out infra, at Point I.E.2. and Point II, particularly that Nguyen and her


48

family trusted Spengler, the record shows that Nguyen did not knowingly risk

Spengler’s December 24, 2012 crimes in any event.

E. The Record Lacks A Basis for At Least Two of the District Court’s Findings of Fact

The record afforded the District Court no basis for its “findings of fact” that

(i) Spengler used the Bushmaster and Mossberg to fire from the berm, and (ii)

Spengler was “mentally unstable”, and Nguyen knew it. This Court reviews these

findings to determine if they are clearly erroneous. United States v. Cavera, 550

F.3d 180, 190 (2d Cir. 2008) (en banc); United States v. Rattoballi, 452 F.3d 127,

132 (2d Cir. 2006). See supra at Point I.A.

1. The Record Provides No Basis for the Court’s Finding That Spengler Used The Bushmaster or the Mossberg, And Not The .32 Caliber Revolver, to Fire From the Berm The government, the Probation Office and the District Court deemed the

firearm that Spengler used to shoot from the berm decidedly relevant for

sentencing purposes. We maintain that the firearm that Spengler used is legally

irrelevant, as illustrated by the storage locker hypothetical, supra, at p. 31.

But assuming its relevance, the PSR at ¶ 18 provides the only basis in the

record for the District Court’s finding that Spengler used the Bushmaster and

Mossberg, not the .32 caliber revolver, to shoot at the firefighters. (PSR ¶ 18: the

“firefighters . . . were ambushed and shot at with a rifle. . . .”)


49

By contrast to that bald conclusion, the PSR points to actual evidence to

support its statement that Spengler used the revolver to kill his sister, an autopsy

report. (PSR ¶ 22) One reasonably suspects that ample similar evidence exists to

show which firearm Spengler used from the berm, be it eyewitness, crime scene

forensics, e.g., empty magazines or shell cases, autopsies, medical reports, etc., but

the PSR proffers none.

Accordingly, the PSR’s unsupported statement that Spengler used “a rifle”

to shoot from the berm should be deemed an inadequate basis for the Court’s

finding that Spengler did not use the revolver, a finding that the District Court, the

Probation Office and the government judged to be of great moment for sentencing

purposes.

2. The Record Provides No Basis for the Court’s Finding That Spengler Was “Mentally Unstable”, and that Nguyen Knew It Central to the variance and its extent lay three “findings of fact”, which the

Court deemed “aggravating circumstances” under §§ 5K2.1 and 5K2.1: Nguyen

knew at the time of the straw purchase that Spengler (i) had been imprisoned in

connection with the death of his grandmother, as well as “the gory details of

pushing her down the stairs and hitting her with a hammer”; (ii) was “mentally

unstable”, and (iii) had spoken of his intention to kill his sister.

On appeal we dispute the basis in the record for finding (ii) only.


50

Experience dictates that far more people who have served 18 years in prison

for manslaughter (which includes “heat of passion” murder), followed by 12 years

at liberty without arrest, present themselves as mentally stable than as mentally

unstable.32 So the finding that Nguyen knew that Spengler had served time in

prison for the death of his grandmother cannot alone support the conclusion that

Nguyen knew Spengler to be “mentally unstable”.

In fact, the record shows that Spengler showed himself to Welsher and

family -- to the whole world -- as a person of sound mind, not an unprecedented

feat by a psychopath.33 Thus, Nguyen’s older sister wrote the court that Spengler

“was always very nice and polite and seemed to really care about us”. (A:247)

Ostrander testified that Spengler appeared at the Welsher home regularly,

socializing with family and others. (A:31-37) Nguyen described her relationship

with the family neighbor to the District Court (A:240):

“Mr. Spengler was a nice, quiet and quirky old man. He was kind to me and my family, often doing odd jobs for us and giving us little presents on birthdays and holidays.”

Nguyen’s brother said that Spengler visited their home every day. (A:302)

The family also maintained contact with “Uncle Billy” after moving from Lake 32 New York Penal Law § 125.20 in 1981, titled manslaughter in the first degree, is at SA:7. The statute criminalizes two scenarios: (i) “heat of passion” murder, and (ii) intent to cause serious physical injury with resulting death. The record does not tell under which subdivision Spengler was convicted. 33 Jeffrey Dahmer, John Wayne Gacy, and Ted Bundy are infamous examples.


51

Road; in a text sent on December 24, 2012 Nguyen stated that Spengler had been

at their house only three weeks ago. (PSR ¶ 28)

Welsher and Spengler were close for years even after Spengler told her in

mid-2007 that he had served 17 years in prison for killing his grandmother with a

hammer, adding “he would do it again (sic). . . . He said killing was no big deal to

him. It was like turning a light switch on and off to him” (A:508-09) Spengler

had also told Welsher that “he was going to kill Cheryl. He said he was going to

put her in the lake with bricks”. (A:509)

Plainly, Nguyen and her family determined such patter to be wholly

unaccompanied by intent, as they kept close to Spengler for years anyway.

All of these circumstances undermine the District Court’s conclusions that

Spengler was mentally unstable, and that Nguyen knew it.

The only evidence in the record that Spengler was mentally unstable and that

Nguyen knew it is: (i) the PSR states that unidentified “friends and associates . . .

indicated that Nguyen and her family . . . at times referred to [Spengler] as ‘Crazy

Billy’” (PSR ¶ 31), though the person to whom these unidentified “friends and

associates” spoke is likewise unidentified, (ii) Nguyen’s 18-year old brother told a

reporter in late December, 2012 that his neighbor was “nice, but he was a little

crazy” (A:302), and (iii) Nguyen’s three text messages of December 24, 2012

stating (a) “I wake up at 9. See what’s happening and KNOW FOR SURE whos


52

(sic) doing it”, (b) “we knew he was going to kill his sister”, and (c) Spengler was

“real crazy”. (PSR ¶¶ 28-29)

The evidence undermines the PSR’s unsupported allegation that Nguyen and

her family called Spengler “Crazy Billy”. In fact, he was a next door neighbor

over years with whom the family frequently spent time, and they called him

“Uncle Billy”. Not only would Spengler of course know if the family was calling

him “Crazy Billy” in his presence, but Spengler would know too if they did so to

others, given his home’s close proximity to theirs, and his regular presence there.

(A:30, 33, 36-37, 302) Common sense tells that he would not likely tolerate the

indignity, and would not likely have remained close to the family over years as he

did if such insults came to his attention.

Nor does Nguyen’s brother’s comment to the media that Spengler was “nice,

but he was a little crazy” (A:302) support a conclusion that Nguyen’s family

thought Spengler “mentally unstable”, because the conclusion is undermined by

the brother’s simultaneous observation that Spengler was in their home every day.

(id.) It seems unlikely that a person the family deemed “mentally unstable” would

be welcome in the home, apparently day or night, where he apparently had a crush

on Welsher. (id.)

Finally, Nguyen’s text messages don’t show that Nguyen knew that Spengler

was “mentally unstable” either. As counsel argued at sentencing, everyone from in


53

and around Lake Road watching the news that day before Spengler’s name was

released at 2:15pm pondered whom the killer might be, and this record shows that

they all naturally thought it was Spengler, including Nguyen and her sister.

(A:512)

As counsel also argued, everyone who thought Spengler the perpetrator

before 2:15pm, likely claimed afterwards that they “knew” it was him as soon as

they heard the news, when they know that they were in fact speculating. The term

is poetic license common to human communication; the “knew” is understood not

to be deemed literal. A similar analysis applies to Nguyen’s text that Spengler was

“real crazy”.

For these reasons, the Court’s “finding of fact” that Spengler was “mentally

unstable” and that Nguyen knew it, was clearly erroneous. United States v.

Selioutsky, 409 F.3d 114, 119 (2d Cir. 2005) (District Court’s finding were

inadequate to support Court’s conclusion that Guidelines authorized departure).

F. The District Court Did Not Consider Avoiding Unwarranted Disparities In Imposing Sentence

The Court committed procedural error by giving no consideration to §

3553(a)(6), which directs a court to “avoid unwarranted sentence disparities”.

Nguyen was convicted for violating three statutes: 18 USC § 922(a)(6), in

that she knowingly made false and fictitious statements to a licensed firearms


54

dealer, 18 USC § 922(d)(1), in that she knowingly disposed of firearms to a person

that she had reasonable cause to believe had been convicted of a crime punishable

by more than one year, and 18 USC § 922(g)(3), in that she possessed firearms

while being an unlawful user of a controlled substance (marijuana).

Our survey of some of this Court’s jurisprudence upon convictions under

these three statutes discloses that this variance and its extent create unwarranted

sentencing disparities: United States v. Sutton, 264 Fed. Appx. 42, 43 (2d Cir.

2008) (summary order affirming sentence of 37 months from the WDNY by Judge

Larimer for conviction under 18 U.S.C. § 922(a)(6)); United States v. Whitley, 260

Fed. Appx. 348 (2d Cir. 2008) (summary order affirming sentence of 46 months

imposed at the NDNY for conviction under § 922(a)(6)); United States v. Praylor,

2000 U.S. App. LEXIS 3474 (2d Cir. 2000) (summary order affirming sentence of

30 months from the WDNY for conviction under 18 U.S.C. § 922(g)(3) where

defendant traded a pistol to a drug dealer for three bags of cocaine and three of

marijuana); United States v. Campbell, 161 Fed. Appx. 37 (2d Cir. 2005)

(summary order affirming sentence of five months’ imprisonment imposed at the

SDNY in violation of § 922(a)(6)); United States v. Hutchinson, 181 F.3d 83,

1999 U.S. App. LEXIS 10019 (2d Cir. 1999) (decision without published opinion)

(sentence in WDNY of 46-months imprisonment for violating § 922(a)(6) affirmed


55

where straw purchaser knowingly transferred firearms to felon, then filed false

police report stating that firearms were missing one day after felon was arrested).34

Our survey for convictions under these three statutes on the internet, backed

up by PACER, also discloses that the variance and its extent create unwarranted

sentencing disparities.

On June 9, 2009 two Milwaukee police officers approached Julius Burton

because he was riding his bicycle on the sidewalk. Burton shot both officers in the

face with a .40-caliber Taurus pistol. One suffered brain injury, and his left eye

was removed; a bullet entered the other’s jaw, shattering bone and teeth. Jacob

Collins bought the gun for Burton as a straw purchaser.

(http://www.jsonline.com/news/milwaukee/85398887.html and

http://www.jsonline.com/news/milwaukee/80971787.html) (last visited 04/28/15)

A federal court sentenced Collins to a twenty-four month term of imprisonment.

United States v. Collins, 2:09-cr-00155-LA-1 (ED Wis. 2010) (docket entry # 29)

On May 19, 2010 off-duty police officer Thomas Wortham IV, was killed in

Chicago during an attempted robbery. The firearm was traced to a straw purchase

34 We acknowledge that our survey lacks the scientific rigor of defendant’s survey for the same purposes in United States v. Douglas, 713 F.3d 694 (2d Cir. 2013), but note that defendant there was convicted of a single charge, possession of controlled substances while an inmate of a federal prison, commonly unenforced, whereas Nguyen here was convicted of three charges, the first two of which are commonly enforced, as well as that defendant there, son of actor Michael Douglas, likely has far greater resources than Nguyen.


56

by Michael Elliott in Mississippi.

http://www.dnainfo.com/chicago/20130424/river-north/off-duty-cop-killed-by-

weapon-bought-by-straw-purchaser-lawsuit-claims (last viewed June 4, 2015)

Elliott was sentenced, albeit before the murder, to a six-month term of

imprisonment. United States v. Elliott, 3:09-cr-00112-MPM-SAA-4 (D. Miss.

2010).

In the Baltimore-area, in January and February 2011, Jonathan Sutton made

straw purchases for a convicted felon, providing him with a Smith & Wesson

MP5-22, a Mossberg Persuada 500, a Century Arms SKS, a Marlin rifle and two

.22 caliber firearms, a Remington Arms 597 and a Ruger Single Six, both .22

caliber.

http://www.stardem.com/easternshore/news/queen_annes_county/article_50bd2ffc

-72d2-582a-a585-ceae002cbd33.html (last viewed June 4, 2015) Sutton was

sentenced to three years probation. United States v. Sutton, 1:14-cr-00495-CCB-2

D. Md. 2015)

Finally, we join Nguyen’s counsel below (A:534-42; 580-81) in relying on

United States v. Stevie Marie Ann Vigil, 13-cr-00327-CMA-0.1 (DC Colo.), where

the actual purchaser killed two with the firearm, including the Executive Director

of the Colorado Department of Corrections, and injured another, and the straw

purchaser was sentenced to a 27-month term of imprisonment. (A:536)


57

In none of these cases, local or nationwide, did a defendant receive a

sentence even half of Nguyen’s, and none is even close to half, except one. The

Court’s failure to give consideration to § 3553(a)(6), which directs a court to

“avoid unwarranted sentence disparities” was procedural error. United States v.

Rattoballi, 452 F.3d 127, 132 (2d Cir. 2006) (“we will view as inherently suspect a

non-Guidelines sentence that rests primarily upon factors that are not unique or

personal to a particular defendant, but instead reflects attributes common to all

defendants”).

II.

THE SENTENCE, NEARLY 500% HIGHER THAN THE MIDDLE OF NGUYEN’S GUIDELINES RANGE, IS SUBSTANTIVELY UNREASONABLE

Review for the substantive reasonableness of a sentence “is akin to review

under an abuse-of-discretion standard”. United States v. Park, 758 F.3d 193, 199-

200 (2d Cir. 2014) A district court abuses its discretion if its sentence is “based on

an erroneous view of the law or on a clearly erroneous assessment of the evidence,

or a decision that cannot be located within the range of permissible decisions.” Id.

(internal quotation marks and alteration omitted).

At Point I we established that the variance and its extent is based on an

erroneous view of the law. At Point I.E.2, we showed that the variance and its

extent is based on an erroneous assessment of the evidence. We make that point


58

here at Point II also, and that the sentence is not within the range of permissible

decisions.

Perhaps unspeakable tragedy ironically drives people to say what they

otherwise would not say because human nature is too feeble to make sense of the

horror.

In no sane universe are the firefighters killed and injured the legal or moral

“victims” of Nguyen’s crimes, yet the government, the Probation Office and the

District Court were compelled to say otherwise. (A:271, 562; PSR ¶ 32)

In the final analysis, neither the Probation Office nor the government raised

§ 2K2.1(b)(6)(B) and/or § 2K2.1(c) in connection with measuring Nguyen’s

offense conduct because they know that Spengler’s actions are not part of

Nguyen’s offense conduct as a matter of law. The lack of legal nexus between the

events of June 6, 2010 and December 24, 2012 for punishment purposes is

manifest. Nevertheless, the District Court determined that “the nature of

[Nguyen’s] offense” included “Spengler’s . . . killing two firefighters and

wounding two others”. (Statement of Reasons, p. 4) (See also PSR, setting out 6

paragraphs of Spengler’s conduct as Nguyen’s offense conduct at ¶¶ 18-24)

To try to sell the Court on a departure the Probation Office was driven by

this tragedy to make the patently silly claim that the “typical straw purchase”

involves a purchaser buying on behalf of one dear who has a felony conviction,


59

who wishes to use the firearm for sport or home defense. Besides being false, the

proposal removes the focus from the only legal issue: not what is a typical straw

purchase, but rather whether this straw purchase is one considered by the

Sentencing Commission in formulating the Guidelines.35

The tragedy also forced the Probation Office to state repeatedly that

Spengler had murdered his grandmother, when it knew that in fact he had been

convicted of manslaughter, perhaps heat of passion manslaughter on this record.

This tragedy made the government assert the fantastic claims that Nguyen

“knew” that Spengler “would kill again”, and that “Spengler’s murderous rampage

was clearly foreseeable” to her. (e.g., A:274, 278, 283, 288, 278, 589-90) Indeed,

the District Court appears to have carefully navigated away from the government’s

claims; the word “foreseeable” appears nowhere in the Court’s explanations of its

sentence.

The government made the offensive claim that Spengler’s use of the

revolver to kill his sister, and not the purchased firearms, was “fortuitous” from

Nguyen’s perspective, as if Nguyen is merely lucky that she is not guilty of

murder. The government also went ultra vires at sentencing, as the AUSA shared

her personal outrage at Nguyen’s conduct “as a member of this community”.

35 We have shown that §§ 2K2.1(b)(6)(B) and 2K2.1(c) dispose of that issue. See supra, at I.C.


60

This case caused the State court to state that Nguyen’s sentence there, 16-48

months, “does not in any way punish [Nguyen] for what she did . . .” (A:501)

This case was indeed unusual after all. It received nationwide media

coverage, with massive coverage in and around Rochester. Nguyen’s brother told

the Court that the media made Nguyen out to be a “monster” (A:253); her sister’s

father-in-law stated she had been painted as a “heartless creature”. (A:257)

The courtroom was full with firefighters and their supporters on both cases; to keep

the State trial less unfair, the court was constrained to rule that ten firefighters at

most in dress uniform may be present in the courtroom at once, and may sit in

groups of no more than three.

We noted earlier that we embrace the District Court’s finding that Nguyen

and Spengler were “close”. Contrary to the District Court’s determination,

however, we contend that the closeness in no way aggravates Nguyen’s crimes; if

anything, it mitigates them. For example, application Note 15 to § 2K2.1 of the

Guidelines (SA:11) proposes a departure for a straw firearms purchaser who is

“motivated by an intimate or familial relationship” (provided other conditions are

met).

The District Court determined that since Spengler had told Welsher in 2007

of his intent to kill his sister, then Nguyen must have known about it by 2010. We

don’t dispute that finding. To the contrary, if everyone in Welsher’s family knew


61

that Spengler voiced his intent to kill his sister, then we submit that the sister knew

it too. In this light, we maintain that the Court was wrong for being critical of

Nguyen for never having notified law enforcement about Spengler’s threats.

(A:576) His sister hadn’t either. In this connection, we incorporate by reference

here our argument at Point I.E.2 about the intimacy shared between the Welsher’s

and Spengler’s families.

CONCLUSION

For these reasons the sentence should be vacated, and the case should be

remanded for sentencing anew.

Dated: June 12, 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


62

CERTIFICATE OF

COMPLIANCE 1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 13,821 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: June 12, 2015 New York, New York


ADDENDUM


i

TABLE OF CONTENTS TO ADDEDUM OF STATUTES AND GUIDELINES

Page 18 USC § 922(a)(6)…………………………….. 1 18 USC § 922(d)(1)…………………………….. 2 18 USC § 922(g)(3)…………………………….. 3 18 USC § 3553(a) …………………………….. 4 18 USC § 3553(b)(1) …………………………….. 6 NY Penal Law § 125.20 (in 1981) ………………. 7 NY Penal Law § 125.25(a) (in 1981) ………………. 7 USSG § 2K2.1 (and Application Notes 14 and 16) …. 8 USSG § 5K2.0 …………………………………… 12 USSG § 5K2.1 …………………………………… 14 USSG § 5K2.2 …………………………………… 15


1

ADDEDUM OF STATUTES AND GUIDELINES Statutes Section 922(a)(6) of Title 18 of the United States Code provides: “Unlawful acts

(a) It shall be unlawful—

(6) for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter;


2

Section 922(d)(1) of Title 18 of the United States Code provides:

“(d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person—

(1) is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;


3

Section 922(g)(3) of Title 18 of the United States Code provides: “(g) It shall be unlawful for any person—

“(3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.


4

Section 3553(a) of Title 18 of the United States Code provides: “§ 3553 - Imposition of a sentence “a) Factors To Be Considered in Imposing a Sentence.— The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider— “(1) the nature and circumstances of the offense and the history and characteristics of the defendant; “(2) the need for the sentence imposed— “(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; “(B) to afford adequate deterrence to criminal conduct; “(C) to protect the public from further crimes of the defendant; and “(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; “(3) the kinds of sentences available; “(4) the kinds of sentence and the sentencing range established for— “(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines— “(i) issued by the Sentencing Commission pursuant to section 994 (a)(1) of title 28, United States Code, subject to any amendments made to such guidelines by act of Congress (regardless of whether such amendments have yet to be incorporated by the


https://www.law.cornell.edu/uscode/text/28/994

https://www.law.cornell.edu/uscode/text/28/usc_sec_28_00000994----000-#a_1

https://www.law.cornell.edu/uscode/text/28

5

Sentencing Commission into amendments issued under section 994 (p) of title 28); and “(ii) that, except as provided in section 3742 (g), are in effect on the date the defendant is sentenced; or (B) in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to section 994 (a)(3) of title 28, United States Code, taking into account any amendments made to such guidelines or policy statements by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994 (p) of title 28); (5) any pertinent policy statement— (A) issued by the Sentencing Commission pursuant to section 994 (a)(2) of title 28, United States Code, subject to any amendments made to such policy statement by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994 (p) of title 28); and (B) that, except as provided in section 3742 (g), is in effect on the date the defendant is sentenced. [1] (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and (7) the need to provide restitution to any victims of the offense.



https://www.law.cornell.edu/uscode/text/28/usc_sec_28_00000994----000-#p



https://www.law.cornell.edu/uscode/text/18/usc_sec_18_00003742----000-#g














https://www.law.cornell.edu/uscode/text/18/usc_sec_18_00003742----000-#g

https://www.law.cornell.edu/uscode/text/18/3553#FN-1

6

Section 3553(b)(1) of Title 18 of the Unites States Code provides in

pertinent part:

“§ 3553 - Imposition of a sentence “(b) Application of Guidelines in Imposing a Sentence.— “(1) In general. [T]he court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless the court finds that 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 that should result in a sentence different from that described.”


7

In 1981 New York Penal Law § 125.20, entitled Manslaughter in the first

degree, provided:

“A person is guilty of manslaughter in the first degree when: “1. With intent to cause serious physical injury to another person, he causes the death of such person or of a third person; or “2. With intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance, as defined in paragraph (a) of subdivision one of section 125.25. The fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subdivision. Paragraph (a) of subdivision one of Penal Law § 125.25 provided: “a) The defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.


8

Guidelines Section 2K2.1 of the United States Sentencing Guidelines provides: “§2K2.1. Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition “(a) Base Offense Level (Apply the Greatest): “(1) 26, if (A) the offense involved a (i) semiautomatic firearm that is capable of accepting a large capacity magazine; or (ii) firearm that is described in 26 U.S.C. § 5845(a); and (B) the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense; “(2) 24, if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense; “(3) 22, if (A) the offense involved a (i) semiautomatic firearm that is capable of accepting a large capacity magazine; or (ii) firearm that is described in 26 U.S.C. § 5845(a); and (B) the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense; “(4) 20, if— “(A) the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense; or “(B) the (i) offense involved a (I) semiautomatic firearm that is capable of accepting a large capacity magazine; or (II) firearm that is described in 26 U.S.C. § 5845(a); and (ii) defendant (I) was a prohibited person at the time the defendant committed the instant offense; (II) is convicted under 18 U.S.C. § 922(d); or (III) is convicted under 18 U.S.C. § 922(a)(6) or § 924(a)(1)(A) and committed the offense with knowl-edge, intent, or reason to


9

believe that the offense would result in thetransfer of a firearm or ammunition to a prohibited person; “(5) 18, if the offense involved a firearm described in 26 U.S.C. § 5845(a); “(6) 14, if the defendant (A) was a prohibited person at the time the defendant committed the instant offense; (B) is convicted under 18 U.S.C. § 922(d); or (C) is convicted under 18 U.S.C. § 922(a)(6) or § 924(a)(1)(A) and committed the offense with knowledge, intent, or reason to believe that the offense would result in the transfer of a firearm or ammunition to a prohibited person; “(7) 12, except as provided below; or “(8) 6, if the defendant is convicted under 18 U.S.C. § 922(c), (e), (f), (m), (s), (t), or (x)(1). “(b) Specific Offense Characteristics “(1) If the offense involved three or more firearms, increase as follows: Number of Firearms Increase in Level (A) 3-7 add 2 (B) 8-24 add 4 (C) 25-99 add 6 (D) 100-199 add 8 (E) 200 or more add 10. “(2) If the defendant, other than a defendant subject to subsection (a)(1), (a)(2),(a)(3), (a)(4), or (a)(5), possessed all ammunition and firearms solely for lawful sporting purposes or collection, and did not unlawfully discharge or otherwise unlawfully use such firearms or ammunition, decrease the offense level determined above to level 6. “(3) If the offense involved— “(A) a destructive device that is a portable rocket, a missile, or a device for use in launching a portable rocket or a missile, increase by 15 levels; or


10

“(B) a destructive device other than a destructive device referred to in subdivision (A), increase by 2 levels. “(4) If any firearm (A) was stolen, increase by 2 levels; or (B) had an altered or obliterated serial number, increase by 4 levels. “The cumulative offense level determined from the application of subsections (b)(1) through (b)(4) may not exceed level 29, except if subsection (b)(3)(A) applies. “(5) If the defendant engaged in the trafficking of firearms, increase by 4 levels. “(6) If the defendant— “(A) possessed any firearm or ammunition while leaving or attempting to leave the United States, or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be transported out of the United States; or “(B) used or possessed any firearm or ammunition in connection with another felony offense; or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense, increase by 4 levels. If the resulting offense level is less than level 18, increase to level 18. “(7) If a recordkeeping offense reflected an effort to conceal a substantive offense involving firearms or ammunition, increase to the offense level for the substantive offense. “(c) Cross Reference “(1) If the defendant used or possessed any firearm or ammunition in connection with the commission or attempted commission of another offense, or possessed or transferred a firearm or ammunition with knowledge or intent that it would be used or possessed in connection with another offense, apply—


11

“(A) §2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to that other offense, if the resulting offense level is greater than that determined above; or “(B) if death resulted, the most analogous offense guideline from Chapter Two, Part A, Subpart 1 (Homicide), if the resulting offense level is greater than that determined above. Application Note 14 to USSG § 2K2.1 speaks to the specific offense

characteristic at subsection (b)(6)(B), which at sentencing provided in pertinent

part1: “14. ‘In Connection With’.— “(A) In General.—Subsection[ ] (b)(6)(B) . . . appl[ies] if the firearm . . . facilitated, or had the potential of facilitating, another felony offense . . . .. “(C) Definitions.— ‘Another felony offense’, for purposes of subsection (b)(6)(B) , means any federal, state, or local offense, other than the explosive or firearms possession or trafficking offense, punishable by imprisonment for a term exceeding one year, regardless of whether a criminal charge was brought, or a conviction obtained.”

Application Note 15 to USSG § 2K2.1 provides in pertinent part:

“15. Certain Convictions Under 18 U.S.C. §§ 922(a)(6), 922(d), and 924(a)(1)(A). In a case in which the defendant is convicted under 18 U.S.C. §§ 922(a)(6), 922(d), or 924(a)(1)(A), a downward departure may be warranted if . . . (B) the defendant was motivated by an intimate or familial relationship, and (C) the defendant received no monetary compensation from the offense”.

1 Changes to Application Note 14 effected by a November 1, 2014 amendment, see Guidelines Manual, Appendix C, Amendment 784, are not material on this appeal.


12

Section 5K2.0 of the United States Sentencing Guidelines provides: 5K2.0 Grounds for Departure (Policy Statement)

(a) UPWARD DEPARTURES IN GENERAL AND DOWNWARD DEPARTURES IN CRIMINAL CASES OTHER THAN CHILD CRIMES AND SEXUAL OFFENSES.— (1) IN GENERAL.—The sentencing court may depart from the applicable guideline range if— (A) in the case of offenses other than child crimes and sexual offenses, the court finds, pursuant to 18 U.S.C. § 3553(b)(1), that there exists an aggravating or mitigating circumstance; or (B) in the case of child crimes and sexual offenses, the court finds, pursuant to 18 U.S.C. § 3553(b)(2)(A)(i), that there exists an aggravating circumstance, of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that, in order to advance the objectives set forth in 18 U.S.C. § 3553(a)(2), should result in a sentence different from that described. (2) DEPARTURES BASED ON CIRCUMSTANCES OF A KIND NOT ADEQUATELY TAKEN INTO CONSIDERATION.— (A) IDENTIFIED CIRCUMSTANCES.—This subpart (Chapter Five, Part K, Subpart 2 (Other Grounds for Departure)) identifies some of the circumstances that the Commission may have not adequately taken into consideration in determining the applicable guideline range (e.g., as a specific offense characteristic or other adjustment). If any such circumstance is present in the case and has not adequately been taken into consideration in determining the applicable guideline range, a departure consistent with 18 U.S.C. § 3553(b) and the provisions of this subpart may be warranted. (B) UNIDENTIFIED CIRCUMSTANCES.—A departure may be warranted in the exceptional case in which there is present a circumstance that the


13

Commission has not identified in the guidelines but that nevertheless is relevant to determining the appropriate sentence. (3) DEPARTURES BASED ON CIRCUMSTANCES PRESENT TO A DEGREE NOT ADEQUATELY TAKEN INTO CONSIDERATION. — A departure may be warranted in an exceptional case, even though the circumstance that forms the basis for the departure is taken into consideration in determining the guideline range, if the court determines that such circumstance is present in the offense to a degree substantially in excess of, or substantially below, that which ordinarily is involved in that kind of offense.


14

Section 5K2.1 of the Guidelines provides: “Death (Policy Statement)

“If death resulted, the court may increase the sentence above the authorized guideline range. “Loss of life does not automatically suggest a sentence at or near the statutory maximum. The sentencing judge must give consideration to matters that would normally distinguish among levels of homicide, such as the defendant's state of mind and the degree of planning or preparation. Other appropriate factors are whether multiple deaths resulted, and the means by which life was taken. The extent of the increase should depend on the dangerousness of the defendant's conduct, the extent to which death or serious injury was intended or knowingly risked, and the extent to which the offense level for the offense of conviction, as determined by the other Chapter Two guidelines, already reflects the risk of personal injury. For example, a substantial increase may be appropriate if the death was intended or knowingly risked or if the underlying offense was one for which base offense levels do not reflect an allowance for the risk of personal injury, such as fraud”.


15

Section 5K2.2 of the Guidelines provides:

“Physical Injury (Policy Statement) “If significant physical injury resulted, the court may increase the sentence above the authorized guideline range. The extent of the increase ordinarily should depend on the extent of the injury, the degree to which it may prove permanent, and the extent to which the injury was intended or knowingly risked. When the victim suffers a major, permanent disability and when such injury was intentionally inflicted, a substantial departure may be appropriate. If the injury is less serious or if the defendant (though criminally negligent) did not knowingly create the risk of harm, a less substantial departure would be indicated. In general, the same considerations apply as in §5K2.1.”


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