United States v. Tien Truong Nguyen

MEMORANDUM

Tien Nguyen appeals from the 151-month sentence imposed following his plea of guilty to conspiracy to commit computer fraud and access device fraud, in violation of 18 U.S.C. § 371 , access device fraud, in violation of 18 U.S.C. § 1029 (a)(2), possession of more than 15 unauthorized access devices, in violation of 18 U.S.C. § 1029 (a)(3), aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(l), and being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922 (g)(1). We have jurisdiction under 28 U.S.C. § 1291 . We affirm.

1. Nguyen challenges his sentence under the Ex Post Facto Clause. “Ex post facto challenges are reviewed de novo. However, an ex post facto claim raised for the first time on appeal is reviewed for plain error.” United States v. Chi Mak, 683 F.3d 1126, 1134 (9th Cir.2012) (internal citations omitted). A district court properly applies the version of the Sentencing Guidelines in effect at the time of sentencing, unless doing so would violate the Ex Post Facto Clause. U.S.S.G. §§ lBl.ll(a), (b)(1). In this case, the district court applied the definition of “victim” in effect at the time of the offense, U.S.S.G. §…