FILED
NOT FOR PUBLICATION MAR 18 2011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. 09-10414
Plaintiff - Appellee, D.C. No. 3:96-cr-00094-MHP-7
v.
MEMORANDUM *
HOANG AI LE,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Marilyn H. Patel, Senior District Judge, Presiding
Submitted March 14, 2011 **
San Francisco, California
Before: PAEZ, BERZON, and BEA, Circuit Judges.
Hoang Ai Le (“Le”) appeals the 240-month sentence imposed by the district
court. We have jurisdiction over this appeal pursuant to 18 U.S.C. § 3742(a), and
*
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).
we affirm.1
The district court did not abuse its discretion in determining the sentence
imposed by failing to consider a yet-to-be-imposed sentence in another prosecution
pending in the Eastern District of California. A sentence imposed by a district
court “must be sufficient, but not greater than necessary, to comply with the
purposes of punishment.” United States v. Crowe, 563 F.3d 969, 977 (9th Cir.
2009); 18 U.S.C. § 3553(a). A possible future sentence does not fit squarely
within any of the factors listed in 18 U.S.C. § 3553(a) which district courts must
consider during sentencing.
Moreover, from a practical standpoint, it is impossible for a district court to
consider during sentencing in one case a sentence in another case which has yet to
be handed down. The district court would have had to make an educated guess as
to what the subsequent sentence in the Eastern District would be, including
whether that sentencing judge would run the sentence concurrent or consecutive to
the subject sentence. Educated guesses do not comply with the district court’s
evidentiary standard of proof. See United States v. Treadwell, 593 F.3d 990, 1000
(9th Cir. 2010) (“Ordinarily, a district court uses a preponderance of the evidence
1
Because the parties are familiar with the facts, we recite them here only as
necessary.
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standard of proof when finding facts at sentencing . . . .”). Indeed, in this case Le
was facing a maximum of 40 years (480 months) in the Eastern District, but was
sentenced to only 340 months in prison—a difference of over 11 years. If the
district court had taken into consideration the possible 40-year sentence in the
Eastern District, it may well have under-sentenced Le in the current case by over a
decade. Further, any number of contingencies could have affected Le’s future
sentence in the Eastern District—for example, Le could have successfully argued
for downward departures in sentencing memoranda before that court. None of
these contingencies could be known to the district court in this case at the time of
sentencing, and thus the district court did not abuse its discretion in refusing to
consider this future sentence.
Punishing Le for both conspiracy in this case, and for an attempted robbery
in the Eastern District case which was part of the conspiracy here, is not “double
counting.” This court has previously held that “[a] substantive crime and a
conspiracy to commit that crime are not the same offense for double jeopardy
purposes.” United States v. Saccoccia, 18 F.3d 795, 798 (9th Cir. 1994). For the
same reason, the district court did not “double count” in sentencing Le on the
conspiracy charge despite a pending sentence on the attempted robbery charge.
Moreover, the district court in this case explicitly stated that the DFI robbery—the
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basis of the Eastern District attempted robbery case—“was not something that
really played a role in the sentence that was imposed in this case.” Thus, even if
“double counting” could somehow be considered an abuse of discretion, no such
double counting took place in this case.
AFFIRMED.
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