United States v. Huy Chi Luong

FILED NOT FOR PUBLICATION MAR 04 2011 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 09-10420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.