Dawn Nguyen's Appeal

Case 14-4191, Document 64, 06/12/2015, 1531490, Page1 of 87
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
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES. . . . . . . . . . . . .
iv
JURISDICTIONAL STATEMENT . . . . . . . . . . . .
ISSUES PRESENTED. . . . . . . . . . . . .
STATEMENT OF THE CASE. . . . . . . . . . . .
STATEMENT OF FACTS. . . . . . . . . . . .
Background. . . . . . . . . . . .
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
Page
ARGUMENT. . . . . . . . . . . .
I.
31
THE SENTENCE, NEARLY 500% HIGHER

THAN THE MIDDLE OF NGUYENS 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 Courts 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
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
The District Court Misapplied The Knowingly

Risked Element of USSG 5K2.1 and 5K2.2. . . .
45
The Record Lacks A Basis for At Least

Two of the District Courts Findings of Fact. . .
48
C.
D.
E.
1.
2.
The Record Provides No Basis for the

Courts Finding That Spengler Used The
Bushmaster or Mossberg, And Not The
.32 Caliber Revolver, to Fire From the Berm. . .
48

Courts Finding That Spengler Was
Mentally Unstable, and that Nguyen Knew It. . . 49
ii
Page
F.
II.
The District Court Did Not Consider Avoiding

Unwarranted Disparities In Imposing Sentence. . . .
53

RANGE, IS SUBSTANTIVELY UNREASONABLE. . . . 57
CONCLUSION. . . . . . . . . . . .
61
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . .
62
ADDENDUM OF STATUTES AND GUIDELINES
iii
after brief
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. . . . . . . . . . . . . . . . . . . . .
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. . . . . . . . . . . . . . . . . . . .
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) . . . . . . . . . . . . . . . . . . . .
iv
36
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

v
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
vi
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
vii
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 Nguyens 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?
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.
1
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 Spenglers 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 Spenglers 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 Spenglers corpse.
The government has never alleged that Nguyen ever (i) had actual
knowledge of Spenglers intentions, (ii) saw or heard of the shotgun or the
2
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 Nguyens 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 Nguyens crimes as a member of
this community, the District Court determined that a variance nearly 500% higher
3
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 FACTS 2
Background
By 2010 Nguyens familys 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 sisters great-grandfather, her
grandfather and his sons. (A:250) Nguyens cousin, age 40 in 2014, recalls fond
childhood memories visiting his aunt and uncle at the house. (A:261)
Dawn Welsher, Nguyens 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
All events in this case occurred in or around Rochester, New York. Our brief
relies in part on the exhibits attached to the governments 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.
4
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
Welshers 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)
Spenglers familys roots at 191 Lake Road ran as deep as Nguyens
familys at 193 Lake Road. Nguyens 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-
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-inwestern-new-york.html.
5
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, 3031, 33) Ostrander visited 193 Lake Road 15-20 times, and saw Spengler there
about a handful of times. (A:30, 33)
Ostrander testified that Welshers family called Spengler Uncle Billy.
(A:31-32) His house was about 4-5 feet away from Welshers. (id.)
Ostrander also testified that members of Welshers family werent 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 wasnt 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
6
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. Nguyens 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 Courts 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 Welshers family called Spengler Uncle Billy. (PSR 30)
Welshers family and Spengler shared mutual trust. In a letter to the court
before sentencing Nguyens 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)
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-dawnnguyen-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 semiautomatic rifle (the Bushmaster), and a Mossberg 12 gauge shotgun (the
Mossberg). (A:63 (receipt for firearms); PSR 23; A:228-29) Spengler
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 Spenglers 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)
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.

9
Cheryl Spenglers 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/nguyenny-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 Spenglers 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 Nguyens 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
whats happening and KNOW FOR SURE whos (sic) doing it, we were really
Common sense also suggests that of the revolver, shotgun and semiautomatic
rifle, Spengler likely used the revolver to kill his sister and himself.
10
close to the killer, we knew he was going to kill his sister and Spengler was
real crazy. (PSR 28-29)
Spenglers typed, single-spaced, 2 page suicide note (A:236-38)
demonstrates his substantial familiarity with Welsher and her family, and with
Welshers affairs. Spengler references Welshers 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 doesnt like to leave a paper trail. Needless to say, her
daughter isnt 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)
11
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 wasnt fully truthful because she
panicked when her interrogators told her that Spengler had used the purchased
firearms that morning. (A:229, 242)
12
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
Its a bit hard to conceive how Nguyen falsified Gander Mountains business
records by placing false information on the ATF Form, but Nguyen is not raising
that issue with this Court just yet.
13
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 courts regret that the law prevented
him from sentencing Nguyen to more jail time. (A:292, footnote 9 and
accompanying text)
14
The Indictment 12
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.

15
The Pimintel Letter

The government in a Pimintel 13 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 Nguyens sentencing range under the United States Sentencing
Guidelines (USSG or the Guidelines) in the same manner, employing 2K2.1
to determine Nguyens 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 Courts determination that the facts
here are not contemplated by the Guidelines, which alone opened the way for
departure from Nguyens sentencing range. 14
The government maintained that Nguyens 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.

16
level increase for trafficking in two or more firearms [USSG 2K2.1(b)(5)], and a
three level decrease for Nguyens 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 governments
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.

17
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.
18
(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 federallylicensed 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
19
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 Associates degree in 2012. She attended college for a Bachelors Degree in
Business at SUNY Geneseo when she was arrested on this case. (PSR 78-79)
Nguyens 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) Nguyens 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.
20
Like the government in the Pimintel letter, the Probation Office determined
that 2K2.1 measures Nguyens 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 Nguyens offense conduct includes
the ghastly events of December 24, 2012, setting out six lengthy paragraphs in the
that section before even mentioning Nguyens 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
Nguyens conduct. (id. at 32)
The Probation Office attached letters from each of the injured firefighters to
the PSR. One said that Spenglers crimes directly resulted from Nguyens
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 Spenglers. (id at p.
3) Both asked the Court to sentence Nguyen to a ten-year term of imprisonment.
21
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
naivet: 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.
22
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 Submissions 18
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:52143), and the government filed a reply six days later. (A:544-56)
18
Nguyens sentencing filings included among its attachments, without limitation,

Spenglers suicide note (A:236-38), Nguyens letter to the Court dated August 1,
2014 (A:240-43) and letters of support from friends and family (A:245-68) The
governments 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.

23
By its sentencing filings, the government agreed with the Probation Office
that Nguyens Guidelines range was 18-24 months. Still, in meting out sentence,
the Court should consider the impact [of Nguyens 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 Spenglers murderous
rampage was clearly foreseeable [to Nguyen] and she was aware of Spenglers
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 Nguyens victims (A:271) (as the Probation Office did in the
PSR, and as the District Court did at sentencing). Nguyens 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 Spenglers use of the.32 caliber
24
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 courts consternation that the law
restricted Nguyens 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
Offices contention that Nguyens sentencing range under the Guidelines was 1824 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 Welshers
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.
25
In response to the governments claim that she knew of Spenglers stated

intention to kill his sister, Nguyen maintained that no one had taken Spenglers 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-00327CMA-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 Courts reasoning.
26
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 Nguyens 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
Nguyens 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 whats 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
27
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 Nguyens 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 Nguyens 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 Nguyens 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.

28
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.
29
The Court determined that the nature of [Nguyens] offense included

Spenglers . . . 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
Nguyens mothers statement to the police on December 24, 2012, that Spengler
had so informed her. (A:509)
30
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 Nguyens 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
Spenglers rented storage unit.
It bears repeating again: the government has never maintained that Nguyen
ever (i) had actual knowledge of Spenglers intentions, (ii) saw or heard of the
31
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
Nguyens 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 Nguyens 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 Nguyens conduct, which made
possible the Courts 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 Courts 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
Courts determination that 5K2.0(a)(1)(A) opened the way to departure from the
Guidelines range, which in turn undermined the Courts reliance on 5K2.1 and
5K2.2, which was the primary basis for the variance and it extent.
32
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 Courts 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
Courts 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 arguments 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 Courts 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).
33
I.
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 courts 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
34
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 Courts 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)
35
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 PSRs statements that her offense conduct included
Spenglers crimes, and that Spenglers victims were her victims (A:229, 231); (ii)
Nguyen objected to the PSRs 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 Courts 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).
36
B.
The Court Erred in Relying on An

Excised Statute, 18 USC 3553(b)(1)
The District Courts 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
37
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 Courts 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 Courts 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.

38
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
39
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 courts reliance on matters related
but tangentially to 3553(a) factors was procedural error).
28
Perhaps the Court has the tail wagging the dog too.
40
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
Nguyens 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 Courts 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)
41
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, Nguyens offense Guideline here, is set out at
SA:8-11.
42
The knowledge, intent or reason to believe enhancement at

2K1.2(b)(6)(B) undermines the District Courts 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 Courts 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:
43
(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 Courts 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 nonGuidelines 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
44
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
Nguyens 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 5K2.2 31
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.
45
5K2.2 (Physical Injury), provisions at the core of the Courts 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 Courts 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 Courts finding
that Nguyen knowingly risked the death and injury on December 24, 2012 on the
46
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
47
family trusted Spengler, the record shows that Nguyen did not knowingly risk
Spenglers December 24, 2012 crimes in any event.
E.
The Record Lacks A Basis for At Least

Two of the District Courts 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.

Courts 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 Courts 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. . . .)
48
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 PSRs unsupported statement that Spengler used a rifle
to shoot from the berm should be deemed an inadequate basis for the Courts
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.

Courts 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.
49
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, Nguyens 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.
Nguyens 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.
50
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 Courts 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) Nguyens 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) Nguyens three text messages of December 24, 2012
stating (a) I wake up at 9. See whats happening and KNOW FOR SURE whos
51
(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 PSRs 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 homes 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 Nguyens brothers comment to the media that Spengler was nice,
but he was a little crazy (A:302) support a conclusion that Nguyens family
thought Spengler mentally unstable, because the conclusion is undermined by
the brothers 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, Nguyens text messages dont show that Nguyen knew that Spengler
was mentally unstable either. As counsel argued at sentencing, everyone from in
52
and around Lake Road watching the news that day before Spenglers 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 Nguyens text that Spengler was
real crazy.
For these reasons, the Courts 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 Courts finding were
inadequate to support Courts 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
53
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 Courts 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
54
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 others 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 defendants 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.
55
by Michael Elliott in Mississippi.

http://www.dnainfo.com/chicago/20130424/river-north/off-duty-cop-killed-byweapon-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 Nguyens 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)
56
In none of these cases, local or nationwide, did a defendant receive a

sentence even half of Nguyens, and none is even close to half, except one. The
Courts 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.
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, 199200 (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
57
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 Nguyens 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 Nguyens
offense conduct because they know that Spenglers actions are not part of
Nguyens 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
[Nguyens] offense included Spenglers . . . killing two firefighters and
wounding two others. (Statement of Reasons, p. 4) (See also PSR, setting out 6
paragraphs of Spenglers conduct as Nguyens 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,
58
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 Spenglers 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 governments
claims; the word foreseeable appears nowhere in the Courts explanations of its
sentence.
The government made the offensive claim that Spenglers use of the
revolver to kill his sister, and not the purchased firearms, was fortuitous from
Nguyens 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 Nguyens 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.
59
This case caused the State court to state that Nguyens 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. Nguyens brother told
the Court that the media made Nguyen out to be a monster (A:253); her sisters
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 Courts finding that Nguyen
and Spengler were close. Contrary to the District Courts determination,
however, we contend that the closeness in no way aggravates Nguyens 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
dont dispute that finding. To the contrary, if everyone in Welshers family knew
60
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 Spenglers threats.
(A:576) His sister hadnt either. In this connection, we incorporate by reference
here our argument at Point I.E.2 about the intimacy shared between the Welshers
and Spenglers 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
61
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
62
ADDENDUM
TABLE OF CONTENTS TO
ADDEDUM OF STATUTES AND GUIDELINES
Page
18 USC 922(a)(6)..
18 USC 922(d)(1)..
18 USC 922(g)(3)..
18 USC 3553(a) ..
18 USC 3553(b)(1) ..
NY Penal Law 125.20 (in 1981) .
NY Penal Law 125.25(a) (in 1981) .
USSG 2K2.1 (and Application Notes 14 and 16) .
USSG 5K2.0
12
USSG 5K2.1
14
USSG 5K2.2
15
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;
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;
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.
Section 3553(a) of Title 18 of the United States Code provides:

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
4
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)
(5)
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);
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.
Section 3553(b)(1) of Title 18 of the Unites States Code provides in

pertinent part:
(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.
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.
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
8
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
(A)
(B)
(C)
(D)
(E)
Increase in Level
3-7
8-24
25-99
100-199
200 or more
add 2
add 4
add 6
add 8
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
9
(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
10
(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
part 1:
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.
11
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
12
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.
13
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.
14
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.
15

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

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

BRIEF FOR DEFENDANT-APPELLANT

LAW OFFICE OF ANDREW H. FREIFELD

Case 14-4191, Document 64, 06/12/2015, 1531490, Page2 of 87

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

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

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

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

The Parties Sentencing Submissions. . . . . . . . . . . .

Judgment and the Notice of Appeal. . . . . . . . . . . .

Case 14-4191, Document 64, 06/12/2015, 1531490, Page3 of 87

THE SENTENCE, NEARLY 500% HIGHER

The Court Erred in Relying on An

1. The District Courts Erroneous Reliance On

The District Court Erred In Determining That

The District Court Misapplied The Knowingly

The Record Lacks A Basis for At Least

The Record Provides No Basis for the

The Record Provides No Basis for the

Case 14-4191, Document 64, 06/12/2015, 1531490, Page4 of 87

The District Court Did Not Consider Avoiding

THE SENTENCE, NEARLY 500% HIGHER

ADDENDUM OF STATUTES AND GUIDELINES

Case 14-4191, Document 64, 06/12/2015, 1531490, Page5 of 87

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

New York Penal Law 125.20. . . . . . . . . . . . . .

New York Penal Law 175.10. . . . . . . . .

Case 14-4191, Document 64, 06/12/2015, 1531490, Page6 of 87

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

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

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

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

Case 14-4191, Document 64, 06/12/2015, 1531490, Page7 of 87

United States v. Cossey, 632 F.3d 82 (2d Cir.

United States v. Chu, 714 F.3d 742

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

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

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

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

United States v. Hutchinson, 1999 U.S. App.

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

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

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

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

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

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

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

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

Case 14-4191, Document 64, 06/12/2015, 1531490, Page8 of 87

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

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

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

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

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

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

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

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

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

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

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

Case 14-4191, Document 64, 06/12/2015, 1531490, Page9 of 87

Guidelines range, was procedurally unreasonable?