NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 25, 2017
Decided July 27, 2017
Before
RICHARD A. POSNER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 16‐3283
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff‐Appellee, District Court for the Northern District
of Illinois, Eastern Division.
v.
No. 14 CR 294‐1
VIET NGUYEN,
Defendant‐Appellant. Sharon Johnson Coleman,
Judge.
O R D E R
Viet Nguyen is before us a second time challenging his sentence for wire fraud,
18 U.S.C. § 1343, and income tax evasion, 26 U.S.C. § 7201. Initially the district court
sentenced him below the guidelines range to 96 months’ imprisonment and 3 years’
supervised release, but on direct appeal we granted the parties’ joint motion to remand
for resentencing in light of United States v. Thompson, 777 F.3d 368 (7th Cir. 2015). On
remand the district court reimposed the same sentence except for revising the conditions
of supervised release. Now, in this second appeal, Nguyen argues that the district court
did not give enough weight to his postsentencing rehabilitative efforts and that his
No. 16‐3283 Page 2
prison sentence is greater than necessary to achieve the purposes of sentencing. We
reject these contentions.
Nguyen owned and operated three companies providing Internet marketing and
technology services. His codefendant, Adelina Miguel, managed the offices and kept the
companies’ books. From January 2008 until March 2012, Nguyen, Miguel, and other
employees under Nguyen’s direction charged more than $1.2 million to customers’
credit cards and bank accounts for marketing services never provided. During 2010 and
2011 alone, at least 600 customers filed complaints against the companies. To keep the
card issuers and banks from denying payment after receiving customers’ complaints
about Nguyen’s companies, his employees altered existing documents or created phony
ones. For example, a contract calling for a single payment would be altered to provide
for recurring payments.
In addition to fraudulently billing clients, Nguyen and his companies cheated on
their taxes. He understated his income on his individual return for 2009 and did not even
file returns for 2010 through 2012. And on the companies’ returns from 2008 to 2010,
Nguyen and Miguel claimed deductions for personal expenses or failed to report as
income amounts diverted from company accounts to pay for mortgages, car loans, and
other personal expenses. The companies gave their employees inaccurate W‐2 forms and
filed false payroll tax returns with the State of Illinois. All told, Nguyen owes the IRS
roughly $1.5 million.
Illinois authorities began investigating Nguyen and his businesses after receiving
multiple complaints about false billing. Around the same time, one of Nguyen’s
employees, Andrea Tyler, alerted the FBI about the billing fraud. And Nguyen’s
employees complained to the IRS because they had received incorrect W‐2 forms.
Nguyen pleaded guilty to the charges of fraud and tax evasion, but in his first
appeal he did not raise any claim about his prison sentence. Instead, the parties filed a
joint motion to remand for resentencing because of problems with the conditions of
supervised release. The parties asserted that the district judge had imposed
discretionary conditions of supervised release without adequately relating those
conditions to the factors in 18 U.S.C. § 3553 and also had included in the judgment
additional conditions not orally pronounced at sentencing. We granted the parties’
motion and remanded for resentencing in accordance with Thompson.
No. 16‐3283 Page 3
On remand the government asserted, as did the probation officer, that
amendments to the sentencing guidelines which took effect in November 2015 had
lowered the imprisonment range. Instead of the range of 121 to 151 months used
previously, the government and probation officer said that the new imprisonment range
was 87 to 108 months. But the government asked the district court to impose the same
sentence of 96 months because, the government said, a term of that length was “squarely
within the middle of the applicable sentencing range.” (R. 133 at 2.) The government also
contended that recorded phone conversations Nguyen had made at the Metropolitan
Correctional Center while awaiting resentencing showed that he was not contrite. While
speaking with a friend, Nguyen had admitted committing tax evasion but said the fraud
charge was “absolutely nonsense.” (R. 143‐1 at 1.) During that same conversation he also
said that the district judge had “made a rookie mistake” and, since “she mentioned
appeal eight times,” apparently had wanted him to appeal so she could resentence him
to a shorter term. (Id. at 2–3.) The district judge “didn’t want to look weak in front of the
reporters,” he asserted. (Id. at 2.)
The government also contended that Nguyen had manipulated other inmates so
“he could use the names of those inmates, and their prisoner accounts, to make phone
calls and send emails.” (R. 143 at 5.) Nguyen’s use of other prisoners’ accounts, the
government explained, made it difficult for prison staff to monitor him and showed he
had “not changed his patterns, despite serving time in prison, taking courses while in
prison, and providing some limited information to prison authorities.” (Id. at 6–7.)
This reference to taking courses and providing information to prison authorities
relates to Nguyen’s contention, through counsel, that his postsentencing efforts to
rehabilitate himself warranted a sentence lower than the putative guidelines minimum
of 87 months. According to counsel, after Nguyen’s first sentencing he had endangered
his safety at two different federal prisons by alerting authorities to the presence of
contraband. FBI investigative reports confirm that Nguyen had provided some
information to prison authorities in an “attempt to have his sentence reduced.” (R. 142‐2
at ¶ 4.) Counsel also asserted that Nguyen had taught computer skills to other inmates
and taken coursework in carpentry and paralegal studies, to name a few. Finally,
counsel cited statistics purporting to establish that Nguyen’s risk of recidivism is low.
At resentencing, Nguyen did not testify or offer any further evidence. The district
court adopted the probation officer’s revised presentence investigation report with its
lower guidelines range but still reimposed the same sentence of 96 months’
imprisonment and 3 years’ supervised release. The court emphasized that Nguyen
No. 16‐3283 Page 4
repeatedly had manipulated and preyed on many people. The court told him that the
public needed to be protected from him because “even after your plea declaration, even
throughout court, you were still trying to manipulate up to the very end.” (R. 154 at 51.)
Nguyen “still didn’t seem to understand,” the court said, that not only had he been
convicted but that he was “going to be sentenced and that it was going to be a serious
sentence.” (Id.) “This Court does not know on what planet you were living,” the judge
added. (Id.) The judge told Nguyen, “You thought this Court had some type of
connection with you, sympathy for you.” (Id.) The court explained that Nguyen’s
recorded conversations showed that he had not been deterred, that he was “trying to
game the system,” that he was arrogant to think the case would go away, and that he
had disrespected the court. (Id. at 52–53.)
Addressing Nguyen’s claim of postsentencing rehabilitation, the district court
opined that he had exaggerated his helpfulness to prison authorities but did commend
him for taking classes, even if he did so in hopes of receiving a lighter sentence. When
imposing the term of supervised release, the court explained each condition imposed,
confirmed with Nguyen that he understood those conditions, and asked if he had any
objections, which he did not.
In this second appeal, Nguyen challenges only the substantive reasonableness of
his prison sentence. Before addressing his arguments, we note that the parties and the
probation officer understated the guidelines range as 87 to 108 months, and the district
court adopted that miscalculation. The true range did not change from the 121 to
151 months calculated for the first sentencing hearing. When calculating a range of
imprisonment for her updated presentence report, the probation officer switched to the
2015 version of the sentencing guidelines (Nguyen’s crimes were committed from 2008
to 2012). The 2015 version includes a new amendment to U.S.S.G. § 2B1.1(b)(2) that
reduced the upward adjustment for number of victims, U.S.S.G. Supp. to App. C,
Amend. 792 (2015), and the probation officer reduced Nguyen’s offense level by five
because of that amendment. Yet when resentencing a defendant, a judge must calculate
the guidelines range using the version of the guidelines in effect at the initial sentencing.
18 U.S.C. § 3742(g)(1); United States v. Angle, 598 F.3d 352, 360 (7th Cir. 2010);
United States v. Tanner, 544 F.3d 793, 795 (7th Cir. 2008). The 2015 version became
effective on November 1, 2015, and Nguyen’s initial sentencing was in June 2015, so the
district court should not have reduced the previous imprisonment range of 121 to
151 months.
No. 16‐3283 Page 5
That being said, the district court’s mistake only helped Nguyen because it set up
his illusory appellate claim that he didn’t receive a below‐range prison sentence as he
did at his initial sentencing. At his resentencing Nguyen argued that, since the district
court previously had sentenced him below the guidelines range, he also should get a
discount off the recalculated range. Nguyen had received 36.5% off the high end of the
previous range (121 to 151 months), though on remand he contended that his new
sentence should be just 55 months—36.5% off the low end of the revised range (87 to
108 months). The district court responded that it does not look at percentages, whether
at an initial sentencing or a resentencing, but instead decides what punishment is
“appropriate” based on the pertinent sentencing factors as a whole. (R. 154 at 56.) And
96 months, the count opined, was still the appropriate sentence, even if the guidelines
range had changed.
As to the substantive reasonableness of Nguyen’s prison sentence, the overall
term of 96 months—whether viewed as within the recalculated range of 87 to
108 months or below the true range of 121 to 151 months—is entitled to a presumption of
reasonableness. Rita v. United States, 551 U.S. 338, 347–351 (2007); United States v. Purham,
795 F.3d 761, 765 (7th Cir. 2015); United States v. Liddell, 543 F.3d 877, 885 (7th Cir. 2008).
Nguyen has not given a persuasive reason to reject that presumption.
Nguyen argues that the district court cited specific deterrence as a factor
justifying his sentence even though, he says, statistics show he is unlikely to become a
recidivist. But a district court need not discuss “stock arguments,” like this one, that are
not unique to the defendant. United States v. Anglin, 846 F.3d 954, 966 (7th Cir. 2017);
United States v. Grzegorczyk, 800 F.3d 402, 406 (7th Cir. 2015). A district judge must make
an “individualized assessment based on the facts presented.” United States v. Warner,
792 F.3d 847, 855 (7th Cir. 2015) (quoting Gall v. United States, 552 U.S. 38, 50 (2007)).
Nguyen presented these same statistics in his resentencing memo to the district court.
The judge chose not to discuss them in detail in open court but still considered all of the
written material. The court instead focused on the facts as a whole to conclude that, at
the time of resentencing, Nguyen had not learned his lesson and continued to think he
was above the law. The court’s conclusion is reasonable.
Nguyen next argues that the district court did not give sufficient weight to his
postsentencing efforts to better himself. But we will not substitute our judgment for that
of the district court. Warner, 792 F.3d at 856. “The fact that the appellate court might
reasonably have concluded that a different sentence was appropriate is insufficient to
justify reversal of the district court.” Gall, 552 U.S. at 51. Here the district court
No. 16‐3283 Page 6
considered Nguyen’s postsentencing conduct and concluded that, while it was
commendable that Nguyen had taken classes to better himself, the help that he provided
to prison authorities was overstated. The court thought that Nguyen’s phone
conversation with his friend showed his arrogance, that he remained undeterred, and
that he had put a “thumb in the eye of the Court.” (R. 154 at 58.) There is no reason to
disturb the district court’s well‐reasoned judgment, and so it is AFFIRMED.