                                                                              FILED
                           NOT FOR PUBLICATION                                DEC 12 2012

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 11-10565

              Plaintiff - Appellee,              D.C. No. 3:10-cr-00099-LRH-
                                                 VPC-1
  v.

HUNG QUOC BUI,                                   MEMORANDUM*

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Nevada
                    Larry R. Hicks, District Judge, Presiding

                          Submitted December 6, 2012**
                            San Francisco, California

Before: O’SCANNLAIN, THOMAS, and CALLAHAN, Circuit Judges.

       Hung Quoc Bui (“Bui”) appeals his 78-month sentence for three counts of

Access Device Fraud, 18 U.S.C. § 1029(a)(2), and three counts of Aggravated

Identity Theft, 18 U.S.C. § 1028A. Bui complains that the district court plainly


        *
             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).
erred when it: 1) failed to properly consider and apply United States Sentencing

Guidelines (“U.S.S.G.”) § 5G1.2 in sentencing Bui consecutively on two of his

Access Device Fraud convictions; and 2) failed to properly address U.S.S.G.

§ 5G1.2, Application Note 2(B), when imposing consecutive sentences on two of

Bui’s Aggravated Identity Theft convictions. Bui further complains that the

district court’s decision to run two of the Aggravated Identity Theft sentences

consecutively was based on its clearly erroneous finding that multiple victims were

involved in those counts. We have jurisdiction pursuant to 28 U.S.C. § 1291, and

we affirm.1

      “A district court’s sentencing decisions are generally reviewed for abuse of

discretion.” United States v. Rangel, 697 F.3d 795, 800 (9th Cir. 2012). “Only a

procedurally erroneous or substantively unreasonable sentence should be set

aside.” Id. Where, as here, “a procedural sentencing error is raised for the first

time on appeal, it is reviewed for plain error.” Id. To show “plain error,” a

defendant must demonstrate that:

      (1) there is an “error”; (2) the error is “clear or obvious, rather than
      subject to reasonable dispute”; (3) the error “affected the appellant's
      substantial rights, which in the ordinary case means” it “affected the
      outcome of the district court proceedings”; and (4) “the error seriously


      1
        Because the parties are familiar with the facts and procedural history, we
do not restate them here except as necessary to explain our decision.
                                          2
         affect[s] the fairness, integrity or public reputation of judicial
         proceedings.”

United States v. Marcus, 130 S. Ct. 2159, 2164 (2010) (quoting Puckett v.

United States, 556 U.S. 129, 135 (2009)). Bui has not pointed to any plain

error.

         First, the district court permissibly imposed consecutive sentences on

two of Bui’s convictions pursuant to the court’s statutory authority under 18

U.S.C. § 3584. The court was therefore not required to address U.S.S.G. §

5G1.2(c). See Rangel, 697 F.3d at 801 n.3; see also United States v. Steffen,

251 F.3d 1273, 1278 (9th Cir. 2001) (“We have made clear that the

Sentencing Guidelines do not and cannot deprive the district court of the

discretion it is directed to exercise under” 18 U.S.C. § 3584(b) and “18

U.S.C. § 3553(a) in determining whether to impose a consecutive rather than

a concurrent sentence.”). In addition, Bui’s argument that the district court

intended to sentence Bui consecutively as to the Access Device Fraud counts

only if permitted by the Guidelines is not borne out by the record.

         Second, the court did not plainly err by imposing consecutive

sentences on two of Bui’s Aggravated Identity Theft counts because the

court sufficiently addressed the factors set forth in the U.S.S.G. § 5G1.2,



                                           3
Application Note 2(B), when it discussed the seriousness of Bui’s offense

and the purposes of sentencing underlying 18 U.S.C. § 3553(a). Bui’s

related argument that the district court clearly erred in determining the

Aggravated Identity Theft counts involved multiple victims fails as well.

Even assuming the district court erred, any error was harmless because the

court retained the discretion to sentence Bui consecutively regardless of the

number of victims. See U.S.S.G. § 5G1.2, Application Note 2(B)

(recommending, but not mandating, the imposition of concurrent sentences

when counts are groupable based on the number of victims).

      AFFIRMED.




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