United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-1468
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota
Diem Quang Nguyen, *
* [UNPUBLISHED]
Appellant. *
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Submitted: February 5, 2004
Filed: March 17, 2004
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Before BYE, McMILLIAN, and RILEY, Circuit Judges.
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PER CURIAM.
Diem Quang Nguyen appeals from the final judgment entered in the District
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Court for the District of Minnesota upon his guilty plea to mail fraud, in violation of
18 U.S.C. §§ 1341 and 2. The district court sentenced appellant to 36 months
imprisonment, 3 years supervised release, a $10,000 fine, and restitution. Counsel
has moved to withdraw and filed a brief under Anders v. California, 386 U.S. 738
(1967), arguing for reversal that the district court erred at sentencing in imposing a
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The Honorable James M. Rosenbaum, Chief Judge, United States District
Court for the District of Minnesota.
2-level increase for obstruction of justice and in denying a 2-level decrease for
acceptance of responsibility.
The district court did not clearly err in finding those calculations justified by
Nguyen’s misrepresentations about his financial condition to the probation officer
preparing his presentence report (PSR), see U.S.S.G. § 3C1.1 comment. (n.4(h))
(obstruction adjustment applies for providing materially false information to
probation officer with respect to PSR), and did not err in granting the enhancement
and denying the reduction based on the same conduct, see U.S.S.G. § 3E1.1 comment.
(n.4) (conduct which supports obstruction-of-justice enhancement “ordinarily
indicates that the defendant has not accepted responsibility”). See United States v.
Calderon-Avila, 322 F.3d 505, 507 (8th Cir. 2003) (per curiam) (clear error review
of factual findings and de novo review of Guidelines construction).
Following our independent review of the record, see Penson v. Ohio, 488 U.S.
75 (1988), we find no nonfrivolous issues. Accordingly, we grant counsel’s motion
to withdraw, and we affirm the judgment of the district court.
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