United States v. Huy Chi Luong ( 2011 )

FILED
NOT FOR PUBLICATION MAR 04 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10420
Plaintiff - Appellee, D.C. No. 3:96-cr-00094-MHP-2
v.
MEMORANDUM *
HUY CHI LUONG, AKA Chi Fei, AKA
Jimmy Luong,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Marilyn H. Patel, Senior District Judge, Presiding
Argued and Submitted September 14, 2010
San Francisco, California
Before: WALLACE and THOMAS, Circuit Judges, and MILLS, Senior District
Judge.**
Luong appeals from the district court’s imposition of a five-year consecutive
sentence for one violation of 18 U.S.C. § 924(c)(1) (1997). We review a district
*
32 This disposition is not appropriate for publication and is not precedent
33 except as provided by 9th Cir. R. 36-3.
**
34 The Honorable Richard Mills, Senior United States District Judge for the
35 Central District of Illinois, sitting by designation.
court’s construction and application of a mandatory minimum sentence provision
de novo. United States v. Hoyt, 879 F.2d 505, 511 (9th Cir. 1989), as amended,
888 F.3d 1257 (9th Cir. 1989). We have jurisdiction over this timely appeal under
28 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm.
18 U.S.C. § 924(c) requires a mandatory consecutive five-year sentence for
its violation, and the district court had no choice but to impose it in sentencing
Luong. See United States v. Hungerford, 465 F.3d 1113, 1118 (9th Cir. 2006).
Luong contends that in a separate case filed in the Eastern District of California,
the district court’s money laundering sentences improperly considered his section
924(c) conviction which is before us. However, it is the Eastern District of
California court’s sentence with which Luong actually takes issue, not this appeal
from the Northern District of California Court. His double jeopardy challenge can
be raised in his appeal from the Eastern District of California sentence.
AFFIRMED.