FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 09-10265
v. D.C. No.
3:96-CR-00094-
JOHN THAT LUONG, MHP-1
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 09-10267
Plaintiff-Appellee, D.C. No.
v. 3:96-CR-00094-
MADY CHAN, MHP-13
Defendant-Appellant.
OPINION
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
Filed December 29, 2010
Before: J. Clifford Wallace and Sidney R. Thomas,
Circuit Judges, and Richard Mills, Senior District Judge.*
Opinion by Judge Wallace
*The Honorable Richard Mills, Senior United States District Judge for
the Central District of Illinois, sitting by designation.
20717
20720 UNITED STATES v. LUONG
COUNSEL
Gary K. Dubcoff (argued) for defendant-appellant Mady
Chan.
William L. Osterhoudt (argued) and Dolores Osterhoudt of
Law Offices of William L. Osterhoudt, San Francisco, Cali-
fornia, for defendant-appellant John That Luong.
Robert David Rees, Assistant United States Attorney
(argued), Joseph P. Russoniello, United States Attorney and
Barbara J. Valliere, Assistant United States Attorney for
appellee United States of America.
OPINION
WALLACE, Senior Circuit Judge:
This is John That Luong’s and Mady Chan’s second appeal
from their convictions for the use of a firearm in the commis-
sion of a violent crime. Luong and Chan now ask us either to
transmute their 18 U.S.C. § 924(c) sentences into 18 U.S.C.
§ 924(o) sentences or, for some of their section 924(c) convic-
tions, to overturn them completely. We have jurisdiction pur-
suant to 28 U.S.C. § 1291, and we affirm the district court’s
sentences.
I.
Luong and Chan were members of an organized syndicate
that robbed and attempted to rob computer chip companies at
gunpoint during 1995. A. grand jury issued a superseding
indictment in 1998 and in 2000 a jury convicted them of sub-
stantive violations of the Racketeer Influenced and Corrupt
Organizations Act (RICO), RICO conspiracy, Hobbs Act rob-
bery, use of a firearm in connection with a Hobbs Act rob-
UNITED STATES v. LUONG 20721
bery, and Hobbs Act conspiracy. The jury also convicted
Luong on multiple heroin-related counts.
In their first appeal, Luong and Chan challenged both their
convictions and sentences. United States v. Luong, 215 Fed.
App’x 639 (9th Cir. 2006) (unpublished). We affirmed all of
Luong’s and all but one of Chan’s convictions but remanded
for resentencing, explaining:
Re-sentencing is required because the appellants
were unconstitutionally sentenced under the manda-
tory guidelines scheme. . . . We therefore vacate the
sentences of all of the appellants and remand for a
plenary resentencing. See United States v. Beng-
Salazar, 452 F.3d 1088, 1097 (9th Cir. 2006) (hold-
ing that a defendant who preserved a constitutional
objection to mandatory Guideline sentencing is enti-
tled to full re-sentencing unless the government can
show error was harmless).
Id. at 646-47.
On remand, the district court sentenced Luong to sixty-five
years imprisonment and Chan to fifty-three years and four
months. Twenty-five years of Luong’s sentence were for his
section 924(c) convictions, five on the first and twenty for his
second conviction. Forty-five years of Chan’s sentence were
for his section 924(c) convictions, five for his first and twenty
each for his second and third convictions.
Section 924(c) criminalizes the use of a firearm in the
course of a violent or drug-trafficking crime. Although the
parties do not specify on which of the many versions of sec-
tion 924 they base their argument, their section references
indicate that both parties are applying the version that was in
effect between October 11, 1996 through November 12, 1998,
as opposed to an earlier version (the difference to this case is
only one of subsection lettering). Under both the 1996 version
20722 UNITED STATES v. LUONG
and the earlier version of section 924, there is a mandatory
minimum five-years imprisonment for a defendant’s first vio-
lation and twenty years for every subsequent offense. 18
U.S.C. § 924(c)(1) (1996). These penalties must run consecu-
tively to all other penalties imposed upon a defendant, and
they cannot be reduced by imposing a term of probation. Id.
Luong and Chan used our resentencing remand to challenge
their section 924(c) convictions and sentences. At their resen-
tencing hearing, they argued that (1) they should have been
sentenced under section 924(o) instead of 924(c) because they
never personally used or carried a firearm; (2) they should
have been sentenced to only one count of section 924(c)
because the jury found a single overarching Hobbs Act con-
spiracy; (3) they should have been sentenced to only one
count of section 924(c) because the government did not
charge any of the their section 924(c) violations as “second or
subsequent” offenses; (4) they should not have been sen-
tenced to the initial five-year sentence because the statutory
language precludes such a sentence; (5) their section 924(c)
convictions violated Apprendi v. New Jersey, 530 U.S. 466
(2000); and (6) their section 924(c) convictions violated the
requirements of 18 U.S.C. § 3553. The district court rejected
these arguments, and we affirm.
II.
Luong and Chan were convicted of section 924(c) viola-
tions under a Pinkerton theory of liability. “Under Pinkerton
v. United States, [328 U.S. 640, 646-47 (1946)], a conspirator
is criminally liable for the substantive offenses committed by
a co-conspirator when they are reasonably foreseeable and
committed in furtherance of the conspiracy.” United States v.
Moreland, 622 F.3d 1147, 1169 (9th Cir. 2010) (quotations
omitted). A defendant may be convicted under a Pinkerton
theory of using or carrying a firearm in violation of section
924(c). United States v. Allen, 425 F.3d 1231, 1234 (9th Cir.
2005); United States v. Alvarez-Valenzuela, 231 F.3d 1198,
UNITED STATES v. LUONG 20723
1203 (9th Cir. 2000); United States v. Winslow, 962 F.2d 845,
853 n.2 (9th Cir. 1992).
[1] Luong and Chan argue that the relatively lenient sec-
tion 924(o) should apply to their firearm convictions instead
of the harsher section 924(c). Section 924(o) criminalizes
conspiring to use a firearm in the commission of a violent or
drug-trafficking crime, while section 924(c) criminalizes actu-
ally using one. Luong and Chan maintain that because there
was no evidence that they personally used or carried a fire-
arm, but were instead convicted of the use of a firearm
through their participation in a conspiracy, they should be
sentenced under the conspiracy-focused section 924(o).
[2] Before addressing the merits of this argument, we must
first be satisfied that the district court had jurisdiction to hear
it. We remanded this case instructing the district court to
resentence Luong and Chan stating that “we . . . vacate the
sentences of all of the appellants and remand for a plenary
resentencing.” Luong, 215 Fed. App’x at 646-47. In doing so,
we explicitly affirmed each of the convictions that Luong and
Chan now attempt to challenge. Id. at 647. The question is
whether Luong’s and Chan’s argument falls within our sen-
tencing mandate. If not, then the district court had no jurisdic-
tion to rule on it, United States v. Thrasher, 483 F.3d 977, 982
(9th Cir. 2007) (“[I]f a district court errs by violating the rule
of mandate, the error is a jurisdictional one”), cert. denied,
553 U.S. 1007 (2008), and we would have no power to review
that argument, see Katzir’s Floor & Home Design, Inc. v.
M-MLS.com, 394 F.3d 1143, 1148 (9th Cir. 2004) (“We can-
not reach [the Rule 60(b) motion] issue. The district court
lacked jurisdiction to entertain the Rule 60(b) motion”). We
review de novo the district court’s compliance with our man-
date. Pit River Tribe v. U.S. Forest Serv., 615 F.3d 1069,
1080 (9th Cir. 2010).
“[A]s a general matter, if a district court errs in sentencing,
we will remand for resentencing on an open record — that is,
20724 UNITED STATES v. LUONG
without limitation on the evidence that the district court may
consider. . . . On remand, the district court generally should
be free to consider any matters relevant to sentencing, even
those that may not have been raised at the first sentencing
hearing, as if it were sentencing de novo.” United States v.
Matthews, 278 F.3d 880, 885-86 (9th Cir. 2002) (en banc)
(emphasis added), cert. denied, 535 U.S. 1120 (2002); see
also United States v. Edwards, 595 F.3d 1004, 1010 (9th Cir.
2010) (applying Matthews to full resentencings).
[3] Although resentencing may allow the district court to
entertain new evidence and arguments under certain circum-
stances, it does not give parties carte blanche to relitigate
their cases: “When a case has been decided by an appellate
court and remanded, the court to which it is remanded must
proceed in accordance with the mandate and such law of the
case as was established by the appellate court.” Firth v.
United States, 554 F.2d 990, 993 (9th Cir. 1977). For exam-
ple, in United States v. Radmall, we ordered the district court
to resentence the defendant and, immediately prior to his
resentencing hearing, the defendant filed a new claim con-
tending ineffective assistance of counsel. 340 F.3d 798, 801
(9th Cir. 2003). The district court denied the motion and we
affirmed, holding that defendant was “not entitled to hold
issues back for a string of appeals.” Id. at 802. In a similar
case, United States v. Elizondo, 475 F.3d 692, 696-97 (5th
Cir. 2007), a defendant raised a number of arguments in his
remanded resentencing hearing, one of which the court enter-
tained, regarding his prior conduct as it affected his sentence,
and one it refused to consider, regarding previously ordered
restitution. The Fifth Circuit explained that “[w]e remanded
for resentencing in accordance with Booker, which does not
implicate the statute under which [the defendant] was ordered
to pay restitution . . . . The district court would have exceeded
its mandate if it changed the amount of restitution . . . .” Id.
at 697.
While Radmall and Elizondo illustrate the types of argu-
ments that fall outside of a resentencing mandate, the Court’s
UNITED STATES v. LUONG 20725
decision in United States v. Booker, 543 U.S. 220 (2005),
illustrates what types fall within it. Under Booker, “a sentenc-
ing court [must] consider Guidelines ranges . . . , but [the fed-
eral sentencing statute] permits the court to tailor the sentence
in light of other statutory concerns as well.” Id. at 245 (inter-
nal citations omitted). To consider arguments that do not fall
within these general parameters would allow an appellant to
“use the serendipitous fact of reversal” as a basis for waging
an attack on his conviction that should have been asserted in
a prior appeal. See Radmall, 340 F.3d at 802, citing United
States v. Morris, 259 F.3d 894, 898 (7th Cir. 2001) (“parties
cannot use the accident of remand to reopen waived issues”).
Returning to the facts before us, Luong and Chan contend
that, notwithstanding that they were indicted for violations of
section 924(c), the jury was instructed pursuant to section
924(c), and the jury convicted them pursuant to that provi-
sion, Luong and Chan should have been sentenced pursuant
to section 924(o). They argue that they “are not here asking
this Court to vacate their 924(c) convictions or to replace
them with 924(o) convictions; they are asking, instead, for
sentencing consonant with Congressional intent,” i.e., a sen-
tence under section 924(o).
The government raises a procedural objection to Luong’s
and Chan’s argument: Luong’s and Chan’s section 924(c)
convictions were already upheld in their first appeal and thus
the “law-of-the-circuit” doctrine—under which a three-judge
panel has “no discretion to depart from precedential aspects
of [a] prior decision”—applies. Old Person v. Brown, 312
F.3d 1036, 1039 (9th Cir. 2002) (emphasis added), cert.
denied, 540 U.S. 1016 (2003). But only “where a panel con-
fronts an issue germane to the eventual resolution of the case,
and resolves it after reasoned consideration in a published
opinion, that ruling becomes the law of the circuit . . . .”
United States v. Johnson, 256 F.3d 895, 914 (9th Cir. 2001)
(en banc) (opinion of Kozinski, J.) (plurality). Our previous
decision in this case was, with respect to the section 924(c)
20726 UNITED STATES v. LUONG
convictions, neither reasoned nor published, and therefore the
law of the circuit doctrine does not apply. See generally
Luong, 215 Fed. App’x at 643.
That the government did not make a mandate-related objec-
tion to Luong’s and Chan’s argument is of no moment, how-
ever, because we must still decide the issue because it is
jurisdictional. Thrasher, 483 F.3d at 982. “[A] party may not
waive a defect in subject-matter jurisdiction or invoke federal
jurisdiction simply by consent.” Pennsylvania v. Union Gas
Co., 491 U.S. 1, 26 (1989), overruled on other grounds by
Seminole Tribe v. Florida, 517 U.S. 44 (1996).
[4] Thus, we must address the question whether Luong’s
and Chan’s section 924(o) argument is actually a sentencing
argument or is instead a challenge to their convictions, and
thus exceeds our resentencing mandate. While none of our
cases have been cited to us answering this question, two cir-
cuits have held that the distinction between sections 924(c)
and 924(o) is not one of sentencing or penalties, but of differ-
ent crimes. “[B]ecause [sections 924(c) and 924(o)] require
different levels of proof as to conduct and mens rea and call
for vastly different penalties, they consequently charge differ-
ent offenses.” United States v. Clay, 579 F.3d 919, 933 (8th
Cir. 2009), citing United States v. Stubbs, 279 F.3d 402, 409
(6th Cir. 2002), overruled on other grounds by United States
v. Helton, 349 F.3d 295, 299 (6th Cir. 2003). Although both
Clay and Stubbs were applied to the constitutionally imper-
missible act in which the district court increased the penalty
for a section 924(o) conviction using the harsher penalty set
forth in section 924(c), their reasoning that these sections
delineate different crimes is sound and we adopt it.
[5] It follows that the district court was without jurisdiction
to review Luong’s and Chan’s argument. Luong and Chan are
not challenging their sentences but instead are challenging
their convictions, a challenge that falls outside of the resen-
tencing mandate of our previous decision. See Luong, 215
UNITED STATES v. LUONG 20727
Fed. App’x at 646-47. Consequently, the district court had no
jurisdiction to rule on Luong’s and Chan’s arguments, and we
have no power to review them. See Thrasher, 483 F.3d at 982.
III.
Luong and Chan make a number of other arguments as to
why their section 924(c) sentences cannot stand. They argue
that, because each section 924(c) conviction was tied to the
same overarching conspiracy, the district court erred in con-
victing them of multiple violations of section 924(c). They
rely on a District of Columbia Circuit case which held that
“only one [section] 924(c)(1) violation may be charged in
relation to one predicate crime.” United States v. Anderson,
59 F.3d 1323, 1334 (D.C. Cir. 1995). Relying on United
States v. Rodriguez-Gonzales, 358 F.3d 1156, 1158 (9th Cir.
2004), Luong and Chan then argue that the district court erred
in imposing more than one sentence pursuant to section
924(c) because the superseding indictment did not charge any
of the section 924(c) violations as “second or subsequent”
offenses. Finally, they argue that the district court’s sentences
cannot stand because the jury never determined that any of the
firearm convictions were “second or subsequent” convictions.
But as explained earlier, the district court did not have
jurisdiction over Luong’s and Chan’s challenges. The man-
date we issued to the district court was to resentence Luong
and Chan, not revisit their convictions under section 924(c).
Each of Luong’s and Chan’s arguments listed above is a
conviction-related argument masquerading as a sentencing
claim. Although Luong and Chan are correct that, for exam-
ple, their convictions of multiple section 924(c) violations
affect their sentences, this fact alone does not make it a sen-
tencing argument. Instead, by its terms, their argument is
conviction-related: it deals directly with Luong’s and Chan’s
indictments and jury convictions, not with their resultant sen-
tences. See, e.g., Booker, 543 U.S. at 245 (discussing “Guide-
lines ranges,” and other matters directly related to
20728 UNITED STATES v. LUONG
sentencing); United States v. Wahid, 614 F.3d 1009, 1012 (9th
Cir. 2010) (“At his sentencing hearing, Wahid argued that his
criminal history category over-represented the seriousness of
his criminal record”); United States v. Ressam, 593 F.3d
1095, 1106 (9th Cir. 2010) (“At the sentencing hearing, Res-
sam argued that his cooperation was worth a greater reduction
in his sentence”); United States v. Bays, 589 F.3d 1035, 1036-
37 (9th Cir. 2009) (“At the sentencing hearing for the federal
firearm and drug convictions, Bays argued that certain prior
state convictions should not be included when calculating his
criminal history category because they were expunged by a
pardon”).
Because Luong’s and Chan’s arguments are a far cry from
actual sentencing arguments, the district court lacked jurisdic-
tion over these arguments on remand. Accordingly, there is no
issue for us to review. See Thrasher, 483 F.3d at 982.
IV.
Luong and Chan make two arguments that do not exceed
our resentencing mandate. First, they argue that the district
court erred in imposing the initial five-year sentences for the
first section 924(c) convictions because the prefatory lan-
guage precludes such a sentence by its express terms. Accord-
ing to Luong and Chan, the “ ‘except’ clause” of section
924(c) prohibits them from being “subject to stacked sen-
tences” for each of their section 924(c) infractions. See Abbott
v. United States, 131 S. Ct. 18, 23 (2010) (“A defendant is
subject to a mandatory, consecutive sentence for a § 924(c)
conviction, and is not spared from that sentence by virtue of
receiving a higher mandatory minimum on a different count
of conviction” (emphasis added)). In their joint reply brief,
however, Luong and Chan retract this argument, recognizing
that they applied an incorrect version of the statute to the facts
at issue. Indeed, Abbott is inapplicable here because Luong
and Chan were charged, indicted, and sentenced pursuant to
UNITED STATES v. LUONG 20729
the 1996 version of section 924(c), which does not contain the
“except clause” on which they rely. Id. at 25.
[6] Second, Luong and Chan argue that the district court
violated 18 U.S.C. § 3553 by imposing the statutorily required
minimum penalties of section 924(c). We join our sister cir-
cuits in rejecting this argument. See United States v. Franklin,
499 F.3d 578, 584-85 (6th Cir. 2007); United States v. Kel-
lum, 356 F.3d 285, 288-89 (3d Cir. 2004). Section 3553(a)
expressly provides that the sentencing factors apply only if
there is not some other statutory directive. 18 U.S.C.
§ 3551(a) (“Except as otherwise specifically provided, a
defendant who has been found guilty of an offense described
in any Federal statute . . . shall be sentenced in accordance
with the provisions of this chapter so as to achieve the pur-
poses set forth in subparagraphs (A) through (D) of section
3553(a)(2) to the extent that they are applicable in light of all
the circumstances of the case”) (emphasis added). The spe-
cific provision at issue here, section 924(c), requires a manda-
tory minimum of five-years imprisonment for a criminal
defendant’s first violation and imposes a twenty-year mini-
mum for each additional offense. See 18 U.S.C. § 942(c)(1)
(1996). Because section 924(c) required the sentences
imposed, the district court did not err by giving Luong and
Chan the mandatory sentences. See United States v. Duncan,
479 F.3d 924, 930 (7th Cir. 2007) (“Courts may not apply
§ 3553(a) to reduce a statutory mandatory minimum sen-
tence”).
AFFIRMED.