                                                                           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                           NOT FOR PUBLICATION                              MAR 18 2011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.

                                          2
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


                                           3
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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