United States v. Hung Quoc Bui , 500 F. App'x 658 ( 2012 )

FILED
NOT FOR PUBLICATION DEC 12 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10565
Plaintiff - Appellee, D.C. No. 3:10-cr-00099-LRH-
VPC-1
v.
HUNG QUOC BUI, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted December 6, 2012**
San Francisco, California
Before: O’SCANNLAIN, THOMAS, and CALLAHAN, Circuit Judges.
Hung Quoc Bui (“Bui”) appeals his 78-month sentence for three counts of
Access Device Fraud, 18 U.S.C. § 1029(a)(2), and three counts of Aggravated
Identity Theft, 18 U.S.C. § 1028A. Bui complains that the district court plainly
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
erred when it: 1) failed to properly consider and apply United States Sentencing
Guidelines (“U.S.S.G.”) § 5G1.2 in sentencing Bui consecutively on two of his
Access Device Fraud convictions; and 2) failed to properly address U.S.S.G.
§ 5G1.2, Application Note 2(B), when imposing consecutive sentences on two of
Bui’s Aggravated Identity Theft convictions. Bui further complains that the
district court’s decision to run two of the Aggravated Identity Theft sentences
consecutively was based on its clearly erroneous finding that multiple victims were
involved in those counts. We have jurisdiction pursuant to 28 U.S.C. § 1291, and
we affirm.1
“A district court’s sentencing decisions are generally reviewed for abuse of
discretion.” United States v. Rangel, 697 F.3d 795, 800 (9th Cir. 2012). “Only a
procedurally erroneous or substantively unreasonable sentence should be set
aside.” Id. Where, as here, “a procedural sentencing error is raised for the first
time on appeal, it is reviewed for plain error.” Id. To show “plain error,” a
defendant must demonstrate that:
(1) there is an “error”; (2) the error is “clear or obvious, rather than
subject to reasonable dispute”; (3) the error “affected the appellant's
substantial rights, which in the ordinary case means” it “affected the
outcome of the district court proceedings”; and (4) “the error seriously
1
Because the parties are familiar with the facts and procedural history, we
do not restate them here except as necessary to explain our decision.
2
affect[s] the fairness, integrity or public reputation of judicial
proceedings.”
United States v. Marcus, 130 S. Ct. 2159, 2164 (2010) (quoting Puckett v.
United States, 556 U.S. 129, 135 (2009)). Bui has not pointed to any plain
error.
First, the district court permissibly imposed consecutive sentences on
two of Bui’s convictions pursuant to the court’s statutory authority under 18
U.S.C. § 3584. The court was therefore not required to address U.S.S.G. §
5G1.2(c). See Rangel, 697 F.3d at 801 n.3; see also United States v. Steffen,
251 F.3d 1273, 1278 (9th Cir. 2001) (“We have made clear that the
Sentencing Guidelines do not and cannot deprive the district court of the
discretion it is directed to exercise under” 18 U.S.C. § 3584(b) and “18
U.S.C. § 3553(a) in determining whether to impose a consecutive rather than
a concurrent sentence.”). In addition, Bui’s argument that the district court
intended to sentence Bui consecutively as to the Access Device Fraud counts
only if permitted by the Guidelines is not borne out by the record.
Second, the court did not plainly err by imposing consecutive
sentences on two of Bui’s Aggravated Identity Theft counts because the
court sufficiently addressed the factors set forth in the U.S.S.G. § 5G1.2,
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Application Note 2(B), when it discussed the seriousness of Bui’s offense
and the purposes of sentencing underlying 18 U.S.C. § 3553(a). Bui’s
related argument that the district court clearly erred in determining the
Aggravated Identity Theft counts involved multiple victims fails as well.
Even assuming the district court erred, any error was harmless because the
court retained the discretion to sentence Bui consecutively regardless of the
number of victims. See U.S.S.G. § 5G1.2, Application Note 2(B)
(recommending, but not mandating, the imposition of concurrent sentences
when counts are groupable based on the number of victims).
AFFIRMED.
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