United States v. Luong
627 F.3d 1306
| 9th Cir. | 2010Background
- Luong and Chan were convicted in 2000 of RICO, Hobbs Act robbery, conspiracy, and firearm offenses; the district court later resentenced them after a prior panel vacated mandatory-guideline sentences.
- On remand, Luong received 65 years and Chan 53 years 4 months, with substantial portions for §924(c) violations.
- Luong and Chan argued on remand they should be sentenced under §924(o) (conspiracy to use a firearm) rather than §924(c) (actually using a firearm).
- The court treated §924(c) as the applicable statute, applying the 1996 version with mandatory consecutive five-year and twenty-year penalties; the district court denied new sentencing arguments.
- The Ninth Circuit addressed whether its remand permitted considerations beyond the mandate, and whether Luong/Chan’s challenges were sentencing or conviction-based.
- The court affirmed the district court’s sentences and dismissed several conviction-based challenges as outside the remand mandate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court had jurisdiction to consider the §924(o) argument on remand. | Luong/Chan argue remand permits §924(o) analysis as sentencing issue. | Luong/Chan contend §924(o) is a correct sentencing remedy under the mandate. | Jurisdiction denied; issue treated as conviction challenge outside the remand mandate. |
| Whether §924(c) vs §924(o) is a sentencing or a conviction issue. | Luong/Chan treat as different crimes; should be §924(o). | Government treats as §924(c) conviction-related matter; within remand scope. | Difference between §924(c) and §924(o) is substantive; district court lacked jurisdiction to review as sentencing issue. |
| Whether Luong/Chan could be sentenced on multiple §924(c) counts for a single conspiracy. | Convictions duplicate for same predicate conduct. | Multiple §924(c) violations permissible for separate counts under conspiracy. | Not reviewable on remand; issue is conviction-related and outside mandate. |
| Whether the initial five-year mandatory sentence under §924(c) was proper under the 1996 version. | Statutory language precludes stacked five-year sentence per §924(c). | Abbott interpretation not applicable to 1996 version; mandatory minimums correct. | Sentence proper under §924(c) framework; §3553(a) does not override mandatory minimums. |
| Whether §3553(a) allows altering mandatory §924(c) sentences given the statute. | §3553(a) should mitigate mandatory minimums. | Statutory directives override §3553(a) in §924(c) cases. | Court joined circuits; §3553(a) does not reduce mandatory §924(c) terms. |
Key Cases Cited
- United States v. Thrasher, 483 F.3d 977 (9th Cir. 2007) (jurisdictional limits on reviewing remand proceedings)
- Pit River Tribe v. U.S. Forest Serv., 615 F.3d 1069 (9th Cir. 2010) (law of the case and mandate compliance in remand)
- United States v. Booker, 543 U.S. 220 (U.S. 2005) (guidelines are advisory; court may consider other statutory factors)
- United States v. Radmall, 340 F.3d 798 (9th Cir. 2003) (remand decisions must adhere to mandate; cannot relitigate waived issues)
- United States v. Edwards, 595 F.3d 1004 (9th Cir. 2010) (application of de novo resentencing principles on remand)
- United States v. Clay, 579 F.3d 919 (8th Cir. 2009) (§924(c) vs §924(o) raise different crimes; jurisdictional concerns)
- Abbott v. United States, 131 S. Ct. 18 (S. Ct. 2010) (reaffirmed stacking/consecutive §924(c) penalties under 1996 version)
- United States v. Wahid, 614 F.3d 1009 (9th Cir. 2010) (sentencing arguments tied to guidelines and history; not ultimately dispositive)
- Ressam v. United States, 593 F.3d 1095 (9th Cir. 2010) (examples of sentencing arguments raised at sentencing as to cooperation/credit)