Opinion
CR. NO. 2:99-00433 WBS
04-18-2016
UNITED STATES OF AMERICA, Plaintiff, v. HOANG AI LE, Defendant.
ORDER RE: DEFENDANT'S MOTION TO DISMISS COUNT NINE
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Presently before the court is defendant Hoang Ai Le's motion to dismiss count nine of the Indictment pursuant to Federal Rules of Criminal Procedure 12(b)(2) and 12(b)(3) in light of the recent Supreme Court decision, Johnson v. United States, 135 S. Ct. 2551 (2015). (Docket No. 1692.)
A jury found Le guilty of count eight, conspiracy to commit a robbery affecting interstate commerce, 18 U.S.C. § 1951(a), and count nine, use of a firearm during a crime of violence, 18 U.S.C. § 924(c). This court sentenced Le to 100 months of imprisonment on count eight and 240 months on count nine, to be served consecutively, for a total of 340 months. (Docket No. 1410.) There were several co-defendants also charged, convicted, and sentenced in this case.
On direct appeal, the Ninth Circuit affirmed the convictions on counts eight and nine. (Ninth Cir. Mandate at 4, 6 (Docket No. 1624).) The Ninth Circuit remanded only with respect to counts with which Le was not charged. As a result, the Ninth Circuit remand did not affect Le's sentence and his case is no longer pending in this court. See Clay v . United States, 537 U.S. 522, 525, 527 (2003) (finding a judgment of conviction becomes final in the context of post-conviction relief when the Supreme Court affirms the conviction and sentence on the merits or denies a timely filed petition for certiorari, or when the time for seeking certiorari review expires); United States v . Rios-Hernandez, Cr. No. 3:93-00091 HDM, 2013 WL 4857952, at *1 (D. Nev. Sept. 10, 2013) (holding a "case is no longer 'pending' within the meaning of Rule 12(b) after the judgment becomes final."). The court accordingly finds that Le's claim is not cognizable on a motion to dismiss pursuant to Rules 12(b)(2) and 12(b)(3).
Although the Supreme Court held today that Johnson is retroactive to cases on collateral review, see Welch v . United States, 578 U.S. ___ (Apr. 18, 2016) (No. 15-6418), this court expresses no opinion as to the merits of Le's claim should he decide to file a habeas petition.
IT IS THEREFORE ORDERED that Le's motion to dismiss (Docket No. 1692) be, and the same hereby is, DENIED without prejudice. Dated: April 18, 2016
/s/_________
WILLIAM B. SHUBB
UNITED STATES DISTRICT JUDGE