UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-5273

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

VIET NGUYEN,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,

Chief District Judge. (3:05-cr-00252-01)

Submitted: September 26, 2007 Decided: October 17, 2007

Before KING and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit

Judge.

Affirmed by unpublished per curiam opinion.

Frank A. Abrams, Arden, North Carolina, for Appellant. Gretchen

C. F. Shappert, United States Attorney, Charlotte, North Carolina,

Amy E. Ray, Assistant United States Attorney, Asheville, North

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
*United States v. Booker, 543 U.S. 220 (2005).

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PER CURIAM: 

Viet Nguyen challenges his 210-month sentence, imposed

upon his guilty plea to conspiracy to possess with intent to

distribute and to distribute MDMA (“ecstasy”) in violation of 21

U.S.C.A. §§ 846, 841(b)(1)(C) (West 2000 & Supp. 2006), and

possession with intent to distribute ecstacy on April 21, 2005, in

violation of 18 U.S.C. § 2, 21 U.S.C. § 841(a)(1) (2000). Nguyen

argues that the district court violated his Sixth Amendment rights

by making factual findings to calculate his advisory guideline

range under U.S. Sentencing Guidelines Manual (“USSG”) (2005).

Nguyen also contends the court erred in determining the drug

quantity attributable to him and by enhancing his sentence based on

his leadership role in the offense. For the reasons that follow,

we affirm.

After Booker,* a district court is no longer bound by the

range prescribed by the sentencing guidelines. Cunningham v.

California, 127 S. Ct. 856, 875 (2007); United States v. Hughes,

401 F.3d 540, 546 (4th Cir. 2005). Because Nguyen was sentenced

under an advisory guideline scheme, the district court did not

violate the Sixth Amendment by making findings for sentencing

purposes under a preponderance of the evidence standard. See

United States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005), cert.
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denied, 127 S. Ct. 121 (2006) (Booker did “not in the end move any

decision from judge to jury, or change the burden of persuasion”).

A district court’s determination of the drug quantity

attributable to a defendant is a factual finding reviewed for clear

error. United States v. Randall, 171 F.3d 195, 210 (4th Cir.

1999). “The Government bears the burden of proving by a

preponderance of the evidence the quantity of drugs for which a

defendant should be held accountable at sentencing.” United States

v. Gilliam, 987 F.2d 1009, 1013 (4th Cir. 1993). 

In this case, the evidence amply supported the drug

quantity (14,141.4 grams, converted to 7,070.7 kilograms of

marijuana) for which Nguyen was held responsible. The Government

presented reliable evidence at sentencing that established that

Nguyen was responsible for 14,000 grams of ecstacy supplied to and

sold by an accomplice over a seven-month period and 141.4 grams

delivered by a co-conspirator during a controlled purchase. These

amounts total 14,141.4 grams. There was also credible evidence

that Nguyen was responsible for additional drugs not included in

this calculation, including 20,000 ecstacy tablets (5,045 grams)

that a courier was delivering to Nguyen, and approximately 2,500

ecstasy tablets purchased by undercover officers from coconspirators who were supplied by Nguyen. We conclude the district

court committed no error. 
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A district court’s determination of the defendant’s role

in the offense is also reviewed for clear error. United States v.

Sayles, 296 F.3d 219, 224 (4th Cir. 2002). A four-level adjustment

for role in the offense is appropriate when “the defendant was an

organizer or leader of a criminal activity that involved five or

more participants or was otherwise extensive.” USSG § 3B1.1(a).

An enhancement for an aggravating role requires, at a minimum, that

“the defendant must have been the organizer, leader, manager, or

supervisor of one or more other participants.” USSG § 3B1.1,

comment. (n.2); United States v. Harriott, 976 F.2d 198, 200 (4th

Cir. 1992) (enhancement appropriate where defendant directed

activities of one other person); United States v. Kincaid, 964 F.2d

325, 329 (4th Cir. 1992) (same). 

As the district court concluded, there were at least five

participants in the conspiracy, and there was evidence that Nguyen

directed the actions of at least two members of the conspiracy by

sending them to conduct transactions on his behalf. Accordingly,

the district court did not err in determining that the enhancement

based on Nguyen’s leadership role was warranted. 

Accordingly, we affirm Nguyen’s sentence. We dispense

with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.

 AFFIRMED