2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-14-2010

USA v. Huy Luong

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-3435

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Recommended Citation

"USA v. Huy Luong" (2010). 2010 Decisions. Paper 616.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 09-3435

____________

UNITED STATES OF AMERICA

v.

HUY TRONG LUONG,

 Appellant

____________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 1-09-cr-00232-001)

District Judge: Honorable Jerome B. Simandle

____________

Submitted Pursuant to Third Circuit LAR 34.1(a)

September 14, 2010

Before: RENDELL, FISHER and GARTH, Circuit Judges.

Filed: September 14, 2010

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OPINION OF THE COURT

____________

FISHER, Circuit Judge.

Defendant Huy Trong Luong (“Luong”) pled guilty in the United States District

Court for the District of New Jersey to two counts of bank robbery in violation of 18

U.S.C. §§ 2113(a). The District Court imposed a sentence of 144 months of
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imprisonment, from which Luong now appeals. For the reasons stated herein, we will

affirm the District Court’s sentence.

I.

We write exclusively for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

Between January 11, 2008, and May 5, 2008, Luong robbed or attempted to rob

nine banks in New Jersey and Connecticut. Two separate indictments – one in New

Jersey and one in Connecticut – were filed charging Luong with the robberies. The

indictments were then consolidated in the United States District Court for the District of

New Jersey.

On March 31, 2009, Luong pled guilty, pursuant to a written plea agreement, to a

one-count information charging him with the robbery of a Commerce Bank in

Bergenfield, New Jersey and to one count of a three-count indictment charging him with

the robbery of a Wachovia Bank in Greenwich, Connecticut. At his plea hearing, Luong

acknowledged his robbing or attempting to rob seven additional banks.

The plea agreement contemplated a base offense level of 30, but provided for a

3-level reduction for acceptance of responsibility and timely notification of intent to plead

guilty, resulting in an offense level of 27. The parties agreed not to seek departures from

this offense level, and agreed that “a sentence within the Guidelines range that results
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have 1

jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

3

from the agreed total Guidelines offense level of 27 is reasonable.” (App. 207.) The plea

agreement did not specify what criminal history category would apply to Luong.

In Luong’s presentence report, the probation office determined that Luong’s

criminal history, which included prior convictions for possession of crack cocaine with

intent to distribute and aggravated assault, made Luong a career offender pursuant to

U.S.S.G. § 4B1.1. Under the Guidelines, career offender status elevated Luong’s offense

level to 29 and increased his criminal history category from IV to VI.

At Luong’s sentencing hearing, he did not dispute the applicability of the career

offender status, but argued that he should be sentenced based on the Guidelines range of

100-125 months that corresponded with the lower criminal history category of IV and the

offense level of 27 contained in the plea agreement. The District Court, in an effort to

honor the spirit of the plea agreement, sentenced Luong as if his offense level were 27;

however, the Court reasoned that the criminal history category of VI was appropriate and

therefore sentenced Luong to 144 months’ imprisonment based on a criminal history

category of VI and an offense level of 27.

This timely appeal followed.1
4

II.

In imposing a sentence, a district court must calculate the advisory Guidelines

sentence, formally rule on the motions of both parties and state whether it is granting a

departure and how that departure affects the Guidelines calculation, and consider the

relevant 18 U.S.C. § 3553(a) factors. See United States v. Ali, 508 F.3d 136, 142 (3d Cir.

2007). Sentences are reviewed for reasonableness, which is assessed by “whether the

record as a whole reflects rational and meaningful consideration of the factors

enumerated in 18 U.S.C. § 3553(a).” United States v. Grier, 475 F.3d 556, 571 (3d Cir.

2007) (en banc). The “meaningful consideration” that we look for on appellate review

does not require discussion of every argument advanced by a litigant; the record need

only reflect that the court considered the appropriate factors and any meritorious

argument raised by the parties. See United States v. Cooper, 437 F.3d 324, 329 (3d Cir.

2006).

On appeal, Luong argues that the District Court committed procedural error by

allegedly failing to address his arguments for why the career offender enhancement

should not apply to him. Specifically, Luong contends first that the District Court did not

respond to his argument that career offender status was intended to deter a different class

of criminal offenders, and second that the Court’s reasoning improperly focused on his

recent string of bank robberies and not on the prior convictions that resulted in his career
5

offender status. Because these arguments are plainly contrary to the record, we reject

them.

Our review of the record reveals thoughtful and thorough consideration by the

District Court of each argument raised by Luong. As to the first argument, Luong raised

a facial challenge to the career offender guidelines on the grounds that the Commission

was acting outside of its expertise and statutory authority in expanding the application of

the career offender status to individuals such as himself. In response, the District Court

noted Luong’s argument that “the Guideline itself is flawed” but concluded:

I find that the career offender Guideline set forth in 4B1.1 . . . is not

irrational and does not offend the mandate that the Sentencing Commission

is called upon to fulfill. . . . The particular mandate from Congress for the

strict sentencing of individuals that fall within this category is contained in

Section 994(h), the Supreme Court has interpreted as unambiguous and case

after case has upheld the availability of such an enhancement for

appropriate situations.

(App. 49.) The District Court clearly considered and rejected this argument, and no

procedural flaw is present in its reasoning.

Second, Luong contends that the District Court improperly focused on his present

offenses – including the actual and attempted bank robberies to which he admitted but of

which he was not convicted – as opposed to his prior convictions in determining whether

he was the type of criminal to which the career offender status should apply. Again, we

find this contention flatly contrary to the record. The District Court reasoned that “[o]ne

of the factors that the career offender status is seeking to predict is the prospect of
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recidivism.” (App. 32.) The Court then specifically considered whether Luong’s entire

criminal history demonstrated a pattern of recidivism, and concluded that it did:

It’s a case where career offender status appears to be appropriate . . . not

only the technical sense that he has the predicate convictions, but also the

real life sense that he indeed shares the characteristics of career offender

with other individuals who recidivism is well-documented and predictable.

I have considered whether his two predicate crimes are serious enough that

they should be called upon to pull this amount of freight. And they are,

they qualify again not only technically but also in actuality.

(App. 51-52.) Regardless of Luong’s arguments that the District Court noted the extent

of his more recent bank robbery spree, the Court clearly stated that his predicate crimes –

the drug offense and the aggravated assault – were themselves enough to justify career

offender status. We see no procedural flaw in this reasoning.

III.

For the foregoing reasons, we will affirm the sentence of the District Court.