MEMORANDUM AND ORDER RE: SENTENCING MOTIONS
The facts of this case are well known to the parties and do not bear repeating. Presently before the court are defendant John That Luong's sentencing motions and motions to dismiss the Indictment. The court has previously ruled on many of the issues raised by defendant Luong's motions during the course of trial and in the court's prior Order of May 14, 2009. United States v. Luong, No. 99-0433, 2009 WL 1393406 (E.D. Cal. May 15, 2009). To the extent that Luong's new motions raise issues already decided by this court in this case, the court incorporates its previous rulings on those issues by reference.
A. John That Luong's Sentencing Motions (Docket No. 1307)
1. The Relevant Penalty Structure for Defendant Luong's § 924(c) Conviction Is Found in 18 U.S.C. § 924(o) Which Should Be Applied
Luong moves to be sentenced under 18 U.S.C. § 924(o) rather than under § 924(c) as convicted and charged in the Indictment on the ground that § 924(c) cannot be applied to convictions that are based on Pinkerton*fn1 conspiratorial liability and that § 924(o) properly applies to such convictions. The court has previously ruled on a nearly identical motion by Luong (Docket No. 1226) in its prior Order. Luong, No. 99-0433, 2009 WL 1393406, at *17. Luong's prior motion argued the legislative history of § 924(c) demonstrated that Congress intended that section to single out the actual user or carrier of a gun in the commission of a violent crime. (Docket No. 1226, at 3.) The present motion makes substantially the same argument about Congressional intent and cites the same cases, but is framed around the canon of statutory construction that a specific statutory provision (§ 924(o)) controls over a more general provision (§ 924(c)). (Compare Docket No. 1307, at 2, with Docket No. 1226, at 4.)
As previously explained, the Ninth Circuit has held that § 924(c) may be applied to convictions based on Pinkerton liability. See United States v. Allen, 425 F.3d 1231 (9th Cir. 2005). The court has already considered Luong's argument that Congress intended § 924(o) to exclusively apply to convictions based on Pinkerton liability and rejected it. Accordingly, this motion will be denied.
2. Argument that Defendant Luong Should Not Be Subject To the Mandatory Minimum Sentence for a Second and a Subsequent Gun Use Because the Second and Subsequent Nature of the Offense Was Not Charged in the Indictment and Decided by the Jury on Proof Beyond a Reasonable Doubt
Luong argues that being sentenced a twenty-year mandatory minimum sentences for a second and subsequent gun use under § 924(c)(1) would violate the Sixth Amendment because the second and subsequent nature was not charged in the indictment and found by a jury beyond a reasonable doubt as required by Apprendi v. New Jersey, 530 U.S. 466 (2000).
Luong acknowledges that Deal v. United States, 508 U.S. 129 (1993), applies, which made clear that "when the government charges more than one § 924(c) offense in a single indictment, each additional count is to be treated as a 'second or subsequent conviction' . . . ." United States v. Beltran-Moreno, 556 F.3d 913, 915 (9th Cir. 2009). Luong argues that Deal is inapplicable to addressing what pleading requirement is necessary to trigger the increased penalty. (John That Luong's Sentencing Mots., at 4.)
Luong relies on United States v. Rodriguez-Gonzales, 358 F.3d 1156 (9th Cir. 2004) to distinguish the case from Deal. In that case, Rodriguez-Gonzales was charged with two counts of illegal entry in violation of 8 U.S.C. § 1325(a). Under section 1325, a first illegal entry is a misdemeanor offense and a second illegal entry is a felony. 8 U.S.C. § 1325(a)(3). The Information did not state that the second count was a subsequent entry or specifically reference the first count, and the district court stated that it believed the government had to specifically prove the second count was a subsequent entry to receive the benefit of the enhanced sentencing for the second count.
On appeal by the government, the Ninth Circuit held that because the earlier offense transformed the second offense from a misdemeanor into a felony, the prior offense was more than a sentencing factor such that Apprendi required it be charged explicitly in the second count and Almendarez-Torres v. United States, 523 U.S. 224 (1998) (prior offense may be used to increase sentence even if not pled), did not apply. Id. at 1160 ("[W]e hold that because a subsequent commission under 8 U.S.C. § 1325(a) changes the nature of the crime, the prior commission must be charged.").
Such is not the case here. Both a first and second or subsequent gun offense under Section 924(c) constitute felonies.
18 U.S.C. § 924(c). A first conviction, therefore, therefore is nothing more than a sentencing factor under Almendarez-Torres. Therefore, Rodriguez-Gonzales is inapplicable and Luong's motion will we denied.
3. Punishing Defendant for Convictions of Section 924(c) and Section 1951(A) (Hobbs Act Conspiracy) Each Based Exclusively on Conspiratorial Liability Would Constitute Cumulative Punishment Not Authorized by Congress
This motion recites almost verbatim the arguments made in a previous motion submitted by Luong (See Docket No. 1228) and decided by the court in its May 14, 2009 Order. Luong, No. 99-0433, 2009 WL 1393406, at *18. Because the motion raises no issues ...