United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois  60604

Argued August 5, 2008

Decided October 15, 2008

Before

RICHARD A. POSNER, Circuit Judge

JOHN L. COFFEY, Circuit Judge

DANIEL A. MANION, Circuit Judge

No. 07‐3559

UNITED STATES OF AMERICA,

Plaintiff‐Appellee,

v.

HUAN NGUYEN,

Defendant‐Appellant.

Appeal from the United States District

Court for the Western District of

Wisconsin.

No. 07‐CR‐045‐S‐01

John C. Shabaz,

Judge.

O R D E R

Huan Nguyen was charged and pleaded guilty to possessing with intent to

distribute marijuana, see 21 U.S.C. § 841(a)(1); distributing marijuana, see id.; and conspiring

to possess with intent to distribute marijuana, see id. §§ 846, 841(a)(1).  The district court

sentenced him to a total of 121 months’ imprisonment.  Nguyen appeals and contends that

the sentencing court erred in applying a two‐level upward adjustment after finding that he

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 07‐3559 Page 2

1 The record does not specifically reveal how it was known that the $2,700 came from

the previous transaction. Presumably, the bills were marked.

possessed a firearm in connection with his drug activity.  Nguyen also argues that the court

improperly denied him a two‐level reduction for acceptance of responsibility.   We affirm.

Background

Police officers in Minneapolis, Minnesota, and Oneida County, Wisconsin,

investigated a drug‐trafficking operation that ultimately led them to Huan Nguyen.  In late

2005 the officers arranged several controlled buys of cocaine and marijuana between a

confidential informant and Darryl Chapman.  When they arrested Chapman in January

2006, he named Nguyen as his supplier.  Based on Chapman’s statements, officers went to

Nguyen’s fast‐food restaurant one week later and placed him under arrest.  At the time of

his apprehension, Nguyen was carrying a handgun and had a permit to purchase the gun as

well as a permit to carry a concealed weapon.  The officers also searched Nguyen’s home

and found 1.5 kilograms of marijuana and over $116,000 in cash.  According to the

presentencing report, some of that money, $2,700, had been used in one of the controlled

buys of cocaine and marijuana.1

  Nguyen had not yet been indicted at the time of his arrest,

so the officers released him from custody.  Then in April 2007, after Nguyen had been

issued an indictment on ten counts of possession, sale, and conspiracy to sell cocaine and

marijuana in the Western District of Wisconsin, officers arrested him at his home and at this

time found additional marijuana, drug paraphernalia, and roughly $14,000 in his bedroom,

and a second handgun, distinct from the one Nguyen possessed at the time of his arrest,

was found in his dresser drawer.

In August 2007 Nguyen was charged and entered a plea of guilty to the three earlier‐

mentioned counts.  After the acceptance of his plea, the assigned probation officer prepared

a presentence investigation report, and in the report she included the 2,608 grams of cocaine

that Chapman had sold as part of Nguyen’s relevant conduct.  Nguyen denied that he

supplied Chapman with cocaine, and pointed out that the officers did not find cocaine

either in his home nor in his possession at the time of his arrest.  The probation officer

maintained that Nguyen was Chapman’s supplier, and because Nguyen failed to admit his

involvement with the cocaine, the officer suggested that the court should deny him a

downward adjustment for acceptance of responsibility.

At sentencing the government called Chapman as a witness.  Chapman testified that

he had lived with Nguyen for approximately five years, and during that time he had

observed Nguyen store cocaine in his refrigerator as well as marijuana in his basement.  In
No. 07‐3559 Page 3

2 Chapman’s wife did not specify how long her weekly trips to buy drugs from

Nguyen continued, but she testified that she and her husband purchased drugs from

Nguyen as late as December 2005.

2002 Chapman agreed to sell marijuana, which he procured from Nguyen.  According to

Chapman, after he got married in December 2003, he and his wife moved from Nguyen’s

home in Minneapolis to Wisconsin.  Nguyen and Chapman continued their business

relationship, and Chapman started selling cocaine as well as marijuana.  Chapman testified

that he and his wife would drive to Nguyen’s home or restaurant to pick up the drugs and

also stated that he generally would put the cocaine and marijuana into black socks to avoid

detection.  According to Chapman, he obtained the cocaine that he sold to the confidential

informant from Nguyen.

Chapman’s wife also took the stand and testified that, after she and her husband

moved to Wisconsin in early 2004, she drove them to either Nguyen’s home or restaurant at

least once a week and helped her husband pick up and deliver drugs.2

  Chapman’s wife

said that after they picked up the marijuana and cocaine, she would assist her husband

place the drugs into black socks, and her husband would then sell the drugs.  According to

Chapman’s wife, Nguyen was her husband’s only drug source.

An agent from the Drug Enforcement Administration also testified that  he had

searched Nguyen’s residence in January 2006 and subsequently arrested him at his home in

April of 2007.  During the first search, the agent found over $116,000 in cash, over a

kilogram of marijuana, and ammunition in Nguyen’s basement.  And in the second search

of Nguyen’s home, the agent again discovered money and marijuana in the basement, and

also found a handgun nearby.  

The district court found that Chapman and his wife were credible witnesses, and

also since Nguyen had been less than truthful in denying that he distributed cocaine, the

court concluded that he failed to qualify for a reduction for acceptance of responsibility.

The court also found that Nguyen was responsible for supplying Chapman with the

marijuana and cocaine.  Furthermore, the sentencing judge also added an additional two

levels to Nguyen’s base offense level because a gun was discovered present or in close

proximity to the drug paraphernalia in his home, and it was not clearly improbable that the

gun was connected to the offense.  See U.S.S.G. § 2D1.1(b)(1) cmt. n.3. Nguyen’s total offense

level of 30, combined with a criminal history category I, resulted in a guidelines

imprisonment range of 97 to 121 months.  Nguyen was sentenced to 121 months.
No. 07‐3559 Page 4

Analysis

Initially Nguyen argues that the district court erred in increasing his offense level

under U.S.S.G. § 2D1.1(b)(1) for his using a handgun while in the commission of a drug

offense.  We review the court’s factual findings at sentencing for clear error.  See United

States v. Idowu, 520 F.3d 790, 793 (7th Cir. 2008); United States v. Womack, 496 F.3d 791, 797

(7th Cir. 2007).  Before applying the upward adjustment, the district court found, by a

preponderance of the evidence, that Nguyen possessed the gun.  See United States v. Olson,

450 F.3d 655, 684 (7th Cir. 2006); United States v. Starks, 309 F.3d 1017, 1026‐28 (7th Cir. 2002).

The commentary to this section provides that the adjustment be applied if the weapon was

present, or in close proximity, unless it is clearly improbable that the weapon was connected

with the offense.  U.S.S.G. § 2D1.1(b)(1) cmt. n. 3; see Starks, 309 F.3d at 1026.

Nguyen asserts that he had been a lawful gun owner for at least nine years before he

became involved with drugs.  But the fact that he possessed the weapon legally does not

make it clearly improbable that Nguyen used it to further his drug activity. See United States

v. Pigee, 197 F.3d 879, 892‐93 (7th Cir. 1999) (“In its discussions on the application of the

weapons enhancement, this court has rejected arguments by defendants that the mere

presence of firearms in their residences does not warrant application of the enhancement

provided in § 2D1.1(b)(1).”); United States v. Grimm, 170 F.3d 760, 767‐68 (7th Cir. 1999)

(finding it not clearly improbable that licensed gun owner used weapon to help further

delivery of drugs).  The DEA agent found Nguyen’s gun in near proximity to a large

amount of cash and a small amount of marijuana, and, as we have noted, “firearms found in

close proximity to illegal drugs create a presumption that they are possessed in connection

with the drug offense.”  United States v. Luster, 480 F.3d 551, 558 (7th Cir. 2007).  And though

Nguyen stated that he used the weapon only to protect his restaurant, we agree with the

trial judge’s ruling that he has failed to rebut the presumption that he also used it to further

his drug activity.  See Idowu, 520 F.3d at 795.

Nguyen also contends that the sentencing court erred in denying him credit for

acceptance of responsibility, see U.S.S.G. § 3E1.1.  A defendant is not automatically entitled

to receive a reduction in his sentence with the entry of a plea of guilty; but he must also

demonstrate that he is entitled to it.  United States v. Gordon, 495 F.3d 427, 431 (7th Cir. 2007).

We review the district court’s denial of a reduction in offense level for acceptance of

responsibility under the clear error standard.  See United States v. Silvious, 512 F.3d 364, 370

(7th Cir. 2008); United States v. King, 506 F.3d 532, 535 (7th Cir. 2007).  In this case the district

court denied the reduction because Nguyen refused to admit that he had supplied

Chapman with cocaine, which conflicted with the other more convincing testimony offered.

See generally United States v. Chen, 497 F.3d 718, 720 (7th Cir. 2007) (noting that defendant
No. 07‐3559 Page 5

who denies relevant conduct that court determines to be true has not accepted responsibility

for his actions ).  Nguyen argues that Chapman and his wife were the “sole reason for

consideration of cocaine” and he contends that they were not credible witnesses, but “as a

matter of sound jurisprudence we do not second‐guess the sentencing judge’s credibility

determinations.  For they are in the best position to observe the verbal and non‐verbal

movement and behavior of the witnesses focusing on the subject’s reactions and responses, .

. . their facial expressions, attitudes, tone of voice, nervousness, posture, and body

movements . . . in contrast with merely looking at a cold appellate record.” United States v.

Woods, 288 F.3d 482, 484 (7th Cir. 2000) (internal quotation marks omitted).  See also United

States v. Hernandez‐Rivas, 513 F.3d 753, 758 (7th Cir. 2008); United States v. Fiasche, 520 F.3d

694, 697 (7th Cir. 2008); United States v. Peterson‐Knox, 471 F.3d 816, 823 (7th Cir. 2006). The

trial court determined that Chapman and his wife were credible and that Nguyen was less

than truthful, thus the court refused to grant him a reduction for acceptance of

responsibility.  None of these findings were in error.

We AFFIRM.