United States v. Nghiem
432 F. App'x 753
| 10th Cir. | 2011Background
- German BKA identified an IP address sharing child-pornography; IP belonged to Nghiem and led ICE to obtain a federal search warrant.
- Agents seized four computers and six hard drives; Nghiem admitted primary use of three computers and downloading via peer-to-peer networks for personal use.
- Forensic analysis found 405 images and 107 videos of child pornography depicting young girls; files organized in folders with recent access.
- Nghiem was indicted in 2010 for distribution of child pornography and possession; pled guilty to distribution under a Rule 11(c)(1)(C) plea, with a plea sentence of 97 months.
- PSR calculated a guidelines range of 121–151 months (level 32, criminal history I); district court rejected the plea as unwarranted but sentenced Nghiem to 121 months, at the bottom of the range.
- Defendant appealed challenging the substantive reasonableness and raising unpreserved procedural claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the within-guidelines sentence is substantively reasonable | Nghiem argues §2G2.2 is flawed and a within-guideline sentence may be unreasonable | Court should not depart from the guidelines and should not base the sentence on empirical flaws in §2G2.2 | Within-guideline sentence presumed reasonable; court did not abuse discretion in upholding it |
| Whether the district court committed plain-error by relying on disputed facts/impermissible factors | Court relied on conduct and factors not properly established (e.g., continuous child-pornography involvement; use of legal pornography) | Any error was not plain and did not prejudice the outcome | No plain error established; no reversal on procedural grounds |
| Whether the court erred by considering alleged post-release ‘reoffense’ under release conditions that did not prohibit computer use | Court relied on supposed post-release violation to justify sentence | Conditions did not prohibit computer use; error not plain or prejudicial | Reversible error found but harmless given lack of prejudice; overall sentence affirmed |
Key Cases Cited
- United States v. Booker, 543 U.S. 220 (U.S. 2005) (requires reasonableness review of sentences)
- Gall v. United States, 552 U.S. 38 (U.S. 2007) (procedural and substantive reasonableness framework; within-range presumption)
- Sayad, 589 F.3d 1110 (10th Cir. 2009) (two-step reasonableness review; substantive involves 3553(a) factors)
- United States v. Lewis, 594 F.3d 1270 (10th Cir. 2010) (presumption of reasonableness for within-range sentences)
- United States v. Smart, 518 F.3d 800 (10th Cir. 2008) (plain-error review for unpreserved issues)
- United States v. Caraway, 534 F.3d 1290 (10th Cir. 2008) (plain-error standard and burden on defendant)