United States v. Tuan Luong

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-10213

Plaintiff-Appellee,

D.C. No.

v. 4:15-cr-00178-HSG-1

TUAN NGOC LUONG,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the Northern District of California

Haywood S. Gilliam, Jr., District Judge, Presiding

Argued and Submitted November 14, 2017

San Francisco, California

Submission Deferred November 30, 2018

Resubmitted July 10, 2020

Filed July 17, 2020

Before: Johnnie B. Rawlinson and Jay S. Bybee, Circuit

Judges, and William E. Smith,* District Judge.

Opinion by Judge Smith

*

The Honorable William E. Smith, United States District Judge for

the District of Rhode Island, sitting by designation.

2 UNITED STATES V. LUONG

SUMMARY**

Criminal Law

The panel affirmed a defendant’s convictions, vacated his

sentence, and remanded for resentencing in a case in which

the defendant robbed a victim at gun point after luring him to

a train station by posting an advertisement for a used car on

Craigslist.

At the defendant’s first trial, a jury found the defendant

guilty of being a felon in possession of a firearm (18 U.S.C.

§ 922(g)(1)), but did not reach a unanimous verdict on a

Hobbs Act robbery count (18 U.S.C. § 1951(a)) and a

dependent count of brandishing a firearm during and in

relation to a crime of violence (18 U.S.C. § 924(c)(1)(A)(ii)).

At retrial, a second jury convicted the defendant on the Hobbs

Act robbery and brandishing counts.

The panel held that there was sufficient evidence at the

first trial to satisfy the interstate-commerce element of the

Hobbs Act because a rational jury could have concluded that

the defendant advertised a commercial transaction on

Craigslist, a website that facilitates interstate commerce, to

facilitate the robbery. Because there was sufficient evidence

presented at the first trial to sustain a conviction, there was a

fortiori sufficient evidence presented at the retrial.

Rejecting the defendant’s argument that the indictment

was constructively amended during his second trial when the

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

UNITED STATES V. LUONG 3

government presented additional theories to satisfy the

interstate-commerce element of Hobbs Act robbery, the panel

wrote that the indictment was not required to allege facts

specifically outlining how the defendant’s use of Craigslist or

a stolen credit card affected interstate commerce.

The panel held that because the jury was unanimous in

concluding that the defendant’s robbery affected interstate

commerce, and the government’s theories supporting the

interstate-commerce element were based in law, a specific

unanimity instruction was not warranted.

The panel held that the district court did not err in giving

an instruction that an effect on interstate commerce can be

established by proof of a probable or potential impact, which

can be slight but not speculative. The panel added that any

error would have been harmless.

Assuming that the defendant is correct that the

prosecution incorrectly stated the law when it argued to the

jury that the defendant’s robbery had an effect on interstate

commerce based upon “the use of interstate commerce,” the

panel held that the district court did not abuse its discretion in

concluding that this did not rise to the level of incurable

misconduct. The panel held that the prosecutor’s statements

attacking the credibility of defense counsel and telling the

jury that it could only carry out its duty by siding with the

government were plainly improper, but do not warrant

reversal, in the context of both attorneys’ arguments, the

district court’s directive to follow the instructions, the jury

instructions themselves, and the government’s statements at

other times during the argument that the jury must weigh all

of the evidence to reach its conclusion.

4 UNITED STATES V. LUONG

Reviewing for plain error, the panel held that it was clear

error under Rehaif v. United States, 139 S. Ct. 2191 (2019),

for the jury to not have been instructed that knowledge of

felon status was an element of felon-in-possession count, but

even if the district court had so instructed the jury, there is no

reasonable probability that the jury would have reached a

different verdict, and the error therefore did not affect the

defendant’s substantial rights, nor the fairness, integrity, or

public reputation of the first trial.

Following United States v. Dominguez, 954 F.3d 1251

(9th Cir. 2020), the panel held that Hobbs Act robbery

constitutes a predicate crime of violence under 18 U.S.C.

§ 924(c)(3)(A).

The panel held that insofar as the district court declined

to give the defendant a downward adjustment for acceptance

of responsibility under U.S.S.G. § 3E1.1(a) based on his

counsel’s challenges to the federal government’s jurisdiction

to prosecute the alleged offense and to the evidence going to

that question at trial, the district court erred as a matter of

law. Noting that the district court would have acted

according to law by denying the adjustment for the

defendant’s lack of contrition, the panel vacated the sentence

and remanded for resentencing, leaving it for the district court

to make a factual finding on contrition in the first instance.

COUNSEL

Ned Smock (argued), John Paul Reichmuth, and Robin

Packel, Assistant Federal Public Defenders; Steven G. Kalar,

Federal Public Defender; Office of the Federal Public

Defender, Oakland, California; for Defendant-Appellant.

UNITED STATES V. LUONG 5

Philip Kopczynski (argued) and Jonas Lerman, Assistant

United States Attorneys; Merry Jean Chan, Chief, Appellate

Section, Criminal Division; David L. Anderson, United States

Attorney; United States Attorney’s Office, San Francisco,

California; for Plaintiff-Appellee.

OPINION

SMITH, District Judge:

Appellant Tuan Ngoc Luong (“Luong”) robbed Joel

Montellano at gun point after luring him to a Bay Area Rapid

Transit (“BART”) train station in Castro Valley, California,

by posting an advertisement for a used car on a Craigslist site.

On March 26, 2015, a grand jury returned a three-count

indictment charging Luong with (1) a violation of the Hobbs

Act, 18 U.S.C. § 1951(a) (count 1); (2) brandishing a firearm

during and in relation to a crime of violence in violation of

18 U.S.C. § 924(c)(1)(A)(ii) (count 2); and (3) being a felon

in possession of a firearm in violation of 18 U.S.C.

§ 922(g)(1) (count 3). The sole contested issue at trial was

whether the government’s evidence was sufficient to establish

that Luong’s robbery had an effect on interstate commerce, as

required to sustain a conviction under the Hobbs Act. See

18 U.S.C. § 1951(a).

The jury, after deliberating, found Luong guilty of being

a felon in possession of a firearm, but did not reach a

unanimous verdict on the Hobbs Act robbery count and

dependent § 924(c) count. The district court declared a

mistrial on counts 1 and 2. At retrial, the government

expanded its interstate-commerce theory and presented

additional evidence that the robbery affected interstate

6 UNITED STATES V. LUONG

commerce through the testimony of a second Craigslist

representative, as well as testimony that Luong’s attempted

use of a stolen debit card1 caused electronic transmissions to

travel to out-of-state servers. The second jury convicted

Luong on counts 1 and 2, and the district court sentenced him

to 144 months’ imprisonment followed by three years’

supervised release.

Luong appeals from his convictions and sentence,

pressing several arguments. We conclude that the

government presented sufficient evidence to convict Luong

on counts 1 and 2 at the first trial, and a fortiori the second

trial, and affirm Luong’s conviction on all counts, but we

vacate Luong’s sentence and remand for resentencing on

count 3.

BACKGROUND

We recount the facts underlying the robbery, which are

largely undisputed, in the light most favorable to the

government. See United States v. Grovo, 826 F.3d 1207,

1213–14 (9th Cir. 2016) (citing United States v. Nevils,

598 F.3d 1158, 1163–64 (9th Cir. 2010) (en banc)). On

February 15, 2015, Luong posted an advertisement on

Craigslist’s San Francisco Bay Area website for a 1996 Acura

Integra, asking “$1100 or OBO cash only.” Specifically,

Luong posted the advertisement, free of charge, on the

“Dublin/Pleasanton/Livermore” subsection of the “East Bay”

section of the “S.F. Bay Area” Craigslist site. Luong had

posted, but deleted, a similar advertisement three days earlier

1

The terms “debit card” and “credit card” are used interchangeably

throughout this opinion.

UNITED STATES V. LUONG 7

on a different, but close by, subsection of the “East Bay”

section of the “S.F. Bay Area” site.

Joel Montellano, who lived in Hayward, California, saw

the advertisement and arranged to meet Luong shortly

thereafter. Both Montellano and Luong lived in the San

Francisco Bay Area, and the San Francisco-based Craigslist

website refers to itself as “a local service” “that provides

local classifieds and forums.” Luong called Montellano and

said his name was “Michael.” They arranged to meet later

that night at the Castro Valley BART train station for

Montellano to inspect the car.

Montellano’s girlfriend drove him to the BART station.

Once there, at Luong’s suggestion, Luong and Montellano

took the car for a test drive and Montellano agreed to buy the

car. Luong told Montellano that his wife had the title for the

car and directed Montellano to drive to Luong’s house.

When they arrived, Montellano got out of the Acura to further

inspect the car. Luong drew a pistol, pointed it at

Montellano, and shouted: “give me your money.”

Montellano told Luong that the money was not with him, but

was instead with his girlfriend at the BART station. At

Luong’s direction, and with Luong’s gun pointed at him,

Montellano placed his iPhone, his girlfriend’s debit card, and

his U.S. Department of Veterans Affairs medical card on the

car’s trunk. He provided Luong with an incorrect PIN for the

debit card. Luong left the scene in the Acura. Montellano

ran back to the BART station, and once there, his girlfriend

called 911.

About thirty minutes after the robbery, Luong attempted

to use the stolen debit card at nearby Citibank and Bank of

America ATMs, but was unable to withdraw money using the

8 UNITED STATES V. LUONG

incorrect PIN. Two days later, law enforcement arrested

Luong after posing as a potential buyer for the Acura. At the

time of his arrest, Luong possessed a semi-automatic pistol

and ammunition.

At Luong’s first trial, the government solely relied on

Luong’s use of Craigslist to establish an effect on interstate

commerce. From the evidence presented at trial, viewing the

facts in the light most favorable to the government, a rational

factfinder could have concluded the following: Craigslist is

a “local classified and forums service” based in San

Francisco, California. It is “primarily community moderated

and mostly free.” It displays user-posted classifieds in

categories such as housing, various items for sale, and job

postings.

Each month, Craigslist gets approximately 50 billion page

views, approximately 60 million people in the United States

use Craigslist, and 80 million advertisements are posted to the

site. While it has an international audience, “Craigslist is not

one national or worldwide site, [rather,] it’s multiple local

sites around the world,” including 700 sites in more than

70 countries, with approximately 28 of those sites in

California. Anyone in the world with an Internet connection

may view any of the Craigslist sites. A user cannot search

multiple Craigslist sites at once. Instead, a user must select

a particular location site before he or she can search. The

website’s policies prohibit “[n]onlocal content” and

“[p]osting the same ad to multiple locations.” And while

Craigslist has expanded beyond San Francisco, “it still retains

that focus on local searches and local postings” and it

“emphasizes and encourages local face-to-face transactions

at a number of places in its website.”

UNITED STATES V. LUONG 9

On a Craigslist site’s opening page and on its for-sale-by-

owner car pages, Craigslist provides links to “nearby cl” sites

to allow users to access easily the Craigslist sites associated

with nearby physical locations. For example, from the San

Francisco car site (on which Luong posted the advertisement

used to lure Montellano), a user can find the link to the Reno,

Nevada, Craigslist site, in addition to other nearby California

car sites. Similarly, on the Reno site, the San Francisco site

is listed as a nearby site. The jury further heard that on the

Craigslist Reno car site, for example, cars from California

and Oregon were offered for sale.

The government offered anecdotal evidence of users

buying and selling vehicles by using Craigslist sites in other

states. Montellano testified that he had sold a motorcycle to

someone from Nevada who traveled to California for the

transaction after he posted it on Craigslist’s San Francisco

Bay Area site. Special Agent Brian Koh testified that he had

used the Washington, D.C. Craigslist site while living in the

Bay Area, because he might have needed a car for a

temporary assignment in D.C.

Craigslist maintains redundant computer servers in

California and Arizona. A Craigslist representative, William

Powell, testified that he was not “certain if the data is on both

[servers] or one at a time,” but that they are intended to

provide a backup if one server fails. He testified that it was

his understanding that if the California server failed, the

Arizona server would provide the data to the Internet user.

10 UNITED STATES V. LUONG

DISCUSSION

I. Hobbs Act Jurisdictional Nexus

The court reviews de novo the sufficiency of the

evidence, viewing “the evidence in the light most favorable

to the prosecution and ask[ing] whether any rational trier of

fact could have found the essential elements of the crime

beyond a reasonable doubt.” Grovo, 826 F.3d at 1213–14

(citing Nevils, 598 F.3d at 1163–64). “The district court’s

interpretation of a criminal statute and the scope of the

conduct covered by the statute is a question of law reviewed

de novo.” United States v. Sarkisian, 197 F.3d 966, 984 (9th

Cir. 1999) (citing United States v. Ripinsky, 20 F.3d 359, 361

(9th Cir. 1994)). If there was insufficient evidence to support

the convictions on counts 1 and 2 at Luong’s first trial, his

convictions on those counts at the second trial must be

vacated because they would violate the Double Jeopardy

Clause of the Fifth Amendment. See United States v. Brown,

785 F.3d 1337, 1350 (9th Cir. 2015) (stating that, if the

evidence is insufficient to establish guilt at the defendant’s

first trial, retrial is foreclosed). Thus, we focus our discussion

on the sufficiency of the government’s evidence at Luong’s

first trial.

The relevant offense of conviction, established by the

Hobbs Act, provides in pertinent part that:

Whoever in any way or degree obstructs,

delays, or affects commerce or the movement

of any article or commodity in commerce, by

robbery or extortion or attempts or conspires

so to do, or commits or threatens physical

violence to any person or property in

UNITED STATES V. LUONG 11

furtherance of a plan or purpose to do

anything in violation of this section shall be

fined under this title or imprisoned not more

than twenty years, or both.

18 U.S.C. § 1951(a) (emphasis added). The Hobbs Act

defines “commerce,” in pertinent part, as “all commerce

between any point in a State . . . and any point outside

thereof; all commerce between points within the same State

through any place outside such State; and all other commerce

over which the United States has jurisdiction.” 18 U.S.C.

§ 1951(b)(3).

The Supreme Court has held that the Hobbs Act “speaks

in broad language, manifesting a purpose to use all the

constitutional power Congress has to punish interference with

interstate commerce by extortion, robbery or physical

violence. The Act outlaws such interference ‘in any way or

degree.’” Stirone v. United States, 361 U.S. 212, 215 (1960)

(quoting 18 U.S.C. § 1951(a)); see also Taylor v. United

States, 136 S. Ct. 2074, 2077 (2016) (stating that the Hobbs

Act “criminalizes robberies and attempted robberies that

affect any commerce ‘over which the United States has

jurisdiction’”); United States v. Lynch, 437 F.3d 902, 908 (9th

Cir. 2006) (“Lynch IV”). This court has similarly held that,

when Congress chooses to use the words “affecting interstate

commerce,” it intends “to regulate to the outer limits of its

Commerce Clause authority[.]” Brown, 785 F.3d at 1351.

The Commerce Clause of the United States Constitution

grants Congress the authority to regulate commerce in “three

broad categories of activity”: (1) “the use of the channels of

interstate commerce[;]” (2) “the instrumentalities of interstate

commerce, or persons or things in interstate commerce, even

though the threat may come only from intrastate activities[;]”

12 UNITED STATES V. LUONG

and (3) “those activities having a substantial relation to

interstate commerce, . . . i.e., those activities that substantially

affect interstate commerce.” United States v. Morrison,

529 U.S. 598, 608–09 (2000) (quotation marks and citations

omitted). This broad authority, however, does not permit the

federal government “to pile inference upon inference in a

manner that would bid fair to convert congressional authority

under the Commerce Clause to a general police power of the

sort retained by the States.” United States v. Lopez, 514 U.S.

549, 567 (1995).

Consistent with this broad reading, the Hobbs Act

interstate-commerce element is satisfied by actual impact

when the government “establish[es] that a defendant’s acts

had a de minimis effect on interstate commerce.” Lynch IV,

437 F.3d at 908 (citing United States v. Atcheson, 94 F.3d

1237, 1241 (9th Cir. 1996); United States v. Phillips,

577 F.2d 495, 501 (9th Cir. 1978)); see also Atcheson,

94 F.3d at 1243 (noting that connection to interstate

commerce need only be “slight” (quoting United States v.

Huynh, 60 F.3d 1386, 1389 (9th Cir. 1995))). Or, in the

absence of actual impact, the interstate-commerce nexus

requirement is met “‘by proof of a probable or potential

impact’ on interstate commerce.” Lynch IV, 437 F.3d at 909

(quoting Huynh, 60 F.3d at 1389).

By using a website that facilitates interstate commerce

(like Craigslist) to advertise a commercial transaction, Luong

necessarily affected or potentially affected “commerce over

which the United States has jurisdiction.” 18 U.S.C.

§ 1951(b)(3). As the evidence at Luong’s first trial

demonstrated, Craigslist is an Internet site that facilitates

commerce on a national and international level. Cf. United

States v. Horne, 474 F.3d 1004, 1006 (7th Cir. 2007) (holding

UNITED STATES V. LUONG 13

eBay “is an avenue of interstate commerce, like an interstate

highway or long-distance telephone service”). The evidence

presented at the first trial included, for example, that the

victim previously sold a motorcycle on Craigslist to a Nevada

buyer who traveled from Nevada to purchase and collect the

motorcycle in California. The victim further testified that he

received inquiries on other vehicles he posted on the Bay

Area site from prospective buyers in Nevada, Texas, and

Florida. He also testified that he had seen car advertisements

posted on the Bay Area site from sellers located in Nevada,

Oregon, Texas, Minnesota, and other states. Finally, the jury

heard that the Reno, Nevada site contained advertisements

from sellers in California and Oregon.

Moreover, despite Craigslist’s stated aspirational goal of

facilitating local transactions, the government highlighted at

trial that Craigslist sites allow a user to search other localities

across state lines. Specifically, local sites provide drop-down

menus that include links to sites for nearby cities. For

example, the Bay Area site links users to the Reno site, which

links its users to the Bay Area site, other California local

sites, and at least one site in Oregon. The jury also heard that

the investigating agent in this case, while still in the Bay

Area, once searched Washington, D.C.’s site for a car to

purchase before he was transferred there on long-term

assignment. From all of this, and viewing the evidence in the

light most favorable to the government, a jury could

reasonably conclude that the Craigslist Bay Area site

facilitated commercial transactions beyond the local area and

operated as an interstate market for used vehicles. Cf. Horne,

474 F.3d at 1006. Thus, Craigslist transactions are

“commerce over which the United States has jurisdiction”

and a robbery occurring within the context of such a

transaction “affect[s] . . . commerce ‘over which the United

14 UNITED STATES V. LUONG

States has jurisdiction.’” Taylor, 136 S. Ct. at 2077 (quoting

18 U.S.C. § 1951(b)(3)).

Even if we view Craigslist as facilitating only local

transactions, the interstate-commerce jurisdictional nexus is

still met here. The Supreme Court’s opinion in Taylor v.

United States, 136 S. Ct. 2074 (2016), guides our analysis. In

Taylor, the Supreme Court concluded that, because Congress

has the authority to regulate the national marijuana market,

including the purely intrastate production, possession, and

sale of marijuana, based on its aggregate effect on interstate

commerce, so too may Congress regulate intrastate marijuana

theft under the Hobbs Act. Id. at 2077. While the Court in

Taylor limited its holding “to cases in which the defendant

targets drug dealers for the purpose of stealing drugs or drug

proceeds[,]” and declined to “resolve what the Government

must prove to establish Hobbs Act robbery where some other

type of business or victim is targeted[,]” id. at 2082, the logic

employed in Taylor readily applies to the facts of this case.

Therefore, the Hobbs Act’s interstate-commerce element is

satisfied in cases like this one, where the government

demonstrates that a person used a commercial website to

advertise a commercial transaction in order to facilitate a

robbery.

Luong advances several arguments against a jurisdictional

nexus, none of which is convincing. First, Luong argues that

the Ninth Circuit Model Criminal Jury Instructions

undermine the government’s theory of the case. The Ninth

Circuit Model Criminal Jury Instruction for the “affecting

interstate commerce” element of the Hobbs Act was updated

in December 2016 to state that, “[c]onduct affects interstate

commerce if it in any way involves, interferes with, changes,

or alters the movement or transportation or flow of goods,

UNITED STATES V. LUONG 15

merchandise, money, or other property in commerce between

or among the states or between the United States and a

foreign country.” 9th Cir. Crim. Jury Instr. 8.143B. Luong

avers that the government’s Internet data-transmission theory

is insufficient under the model instruction, emphasizing that

the criminal conduct must affect “goods, merchandise,

money, or other property in commerce.”

This argument fails. Pattern jury instructions are

not authoritative legal pronouncements. See Caveat, 9th Cir.

Crim. Jury Instr. iv, available at http://www3.ce9.uscourts.gov/

jury-instructions/sites/default/files/WPD/Criminal_Instructions

_2019_12_0.pdf (“The Ninth Circuit Court of Appeals does

not adopt these instructions as definitive. Indeed,

occasionally the correctness of a given instruction may be the

subject of a Ninth Circuit opinion.”). In any event, we do not

rely on the government’s data-transmission theory, and

instead we conclude that the jurisdictional element is met

because Luong’s use of a service like Craigslist had an actual

impact on interstate commerce. For this reason, whether the

data-transmission theory comports with the model instruction

is of no import here.

Second, Luong argues that the Hobbs Act’s jurisdictional

language—requiring that the offense conduct “obstruct[],

delay[], or affect[] commerce,” 18 U.S.C. § 1951(a)—

provides a narrower jurisdictional grant than those criminal

statutes requiring the defendant to “us[e] the mail or any

facility or means of interstate . . . commerce,” see, e.g., 18

U.S.C. § 2422(b). In contrast, the government asserted

during oral argument that the mere use of any instrumentality

of interstate commerce is sufficient under the Hobbs Act. We

do not need to reach this question, however, because the

evidence was sufficient to show that Luong clearly affected

16 UNITED STATES V. LUONG

interstate commerce by robbing his victim as part of a

commercial transaction facilitated by a website that forms an

interstate market for used cars.

This conclusion does not render the interstate-commerce

element of the Hobbs Act superfluous. See Taylor, 136 S. Ct.

at 2081 (stating that while the Hobbs Act, “unlike the

criminal provisions of the [Controlled Substances Act],

applies to forms of conduct that, even in the aggregate, may

not substantially affect commerce,” the Hobbs Act interstate-

commerce element is not superfluous). While the Hobbs Act

is implicated by robberies involving commercial transactions

facilitated by electronic marketplaces, this does not mean

every local robbery is a Hobbs Act robbery simply because

the robber touched his smart phone to check the weather or

plan a get-away route. See, e.g., Lynch IV, 437 F.3d

at 909–10 (adopting depletion-of-assets test in Hobbs Act

cases involving crimes directed toward individuals with an

indirect effect on interstate commerce (citing United States v.

Collins, 40 F.3d 95, 99 (5th Cir. 1994))); United States v.

Turner, 272 F.3d 380, 387 (6th Cir. 2001) (concluding that

there was insufficient evidence to satisfy interstate-commerce

element because the government did not demonstrate that the

victim, “as an individual victim, had a substantial connection

to ‘a business engaged in interstate commerce,’ or that the

defendants were motivated by [the victim]’s connection to

interstate commerce” (internal citation omitted)), amended

sub nom. United States v. James, 280 F.3d 1078 (6th Cir.

2002); United States v. Peterson, 236 F.3d 848, 853 (7th Cir.

2001) (noting that “the government rightly concedes that the

out-of-state origin of the currency alone is insufficient to

satisfy the commerce element of the Hobbs Act” (quotation

omitted)), abrogated on other grounds by Taylor, 136 S. Ct.

UNITED STATES V. LUONG 17

2074. In this case, the Craigslist website was an integral

element of the robbery, not a peripheral afterthought.

Accordingly, because a rational juror could have

concluded that Luong advertised a commercial transaction on

Craigslist to facilitate the robbery, the evidence was sufficient

to satisfy the interstate-commerce element of the Hobbs Act.

Because there was sufficient evidence presented at Luong’s

first trial to sustain a conviction, there was a fortiori

sufficient evidence presented at Luong’s retrial.

II. Constructive Amendment of the Indictment

The court reviews de novo an argument that the

indictment was constructively amended. United States v.

Adamson, 291 F.3d 606, 612 (9th Cir. 2002).

It is axiomatic that “after an indictment has been

returned[,] its charges may not be broadened through

amendment except by the grand jury itself.” Stirone,

361 U.S. at 215–16 (citing Ex parte Bain, 121 U.S. 1, 7

(1887)). “[A] court cannot permit a defendant to be tried on

charges that are not made in the indictment against him.” Id.

at 217. A constructive amendment to the indictment occurs

“where . . . there is a complex of facts presented at trial

distinctly different from those set forth in the charging

instrument.” United States v. Hui Hsiung, 778 F.3d 738, 757

(9th Cir. 2015) (alterations omitted) (quoting Adamson,

291 F.3d at 615). If the court determines that the indictment

was constructively amended, a reversal is always in order.

Adamson, 291 F.3d at 615.

Count 1 of the indictment, alleging a violation of the

Hobbs Act, 18 U.S.C. § 1951(a), states that Luong

18 UNITED STATES V. LUONG

knowingly obstructed, delayed, and affected

commerce and the movement of articles and

commodities in commerce by robbery, in that

[he] did unlawfully take and obtain against the

victim’s will by means of actual and

threatened force, by violence, and by fear of

injury to the victim’s person, personal

property from the victim, namely the victim’s

iPhone 6, credit card, driver’s license, and

medical card, by purporting to offer for sale

on Craigslist, an online marketplace allowing

users to advertise merchandise and services

for sale throughout the United States, a 1996

Acura Integra, and when the victim met the

defendant in order to purchase the car, the

defendant robbed the victim at gunpoint.

Luong argues that the indictment was constructively amended

during his second trial when the government presented

additional theories to the jury to satisfy the interstate-

commerce element. Specifically, Luong argues that the

indictment, as written, did not allege that he had affected

interstate commerce by triggering out-of-state electronic

transmissions by the attempted use of the credit card at an

ATM after the robbery.

An indictment generally “is sufficient if it sets forth the

elements of the charged offense” so as to provide the

defendant with fair notice of the charges against him and to

ensure that the defendant is not placed in double jeopardy.

United States v. Rodriguez, 360 F.3d 949, 958 (9th Cir. 2004)

(quoting United States v. Woodruff, 50 F.3d 673, 676 (9th

Cir. 1995) (“Woodruff I”)). To secure a conviction for Hobbs

Act robbery, a grand jury must set forth in the indictment, and

UNITED STATES V. LUONG 19

the government must prove, two elements: “(1) that the

defendant either committed or attempted to commit a

robbery, and (2) a nexus between the defendant’s acts and

interstate commerce.” Id. (quoting United States v. Woodruff,

122 F.3d 1185, 1185 (9th Cir. 1997) (“Woodruff II”)). But

while “the interstate commerce nexus is an element that ‘must

be proved at trial[,] . . . it need not . . . be expressly described

in the indictment.’” Id. (quoting Woodruff I, 50 F.3d at 677).

In Woodruff I, the court held that “[a]lthough the indictment

contained no facts alleging how interstate commerce was

interfered with, and did not state any theory of interstate

impact,” the indictment was sufficient on its face. 50 F.3d

at 676.

The indictment here alleges that Luong committed Hobbs

Act robbery by offering a car for sale on Craigslist and then

robbing the victim at gunpoint of his credit card and other

personal effects. The government proved as much at the

second trial. The indictment was not required to allege facts

specifically outlining how Luong’s use of Craigslist or the

stolen credit card affected interstate commerce. See

Rodriguez, 360 F.3d at 958. Luong was tried on the same

“complex of facts” as that set forth in the indictment, and

thus, Luong had notice of the charges against him. See Hui

Hsiung, 778 F.3d at 757–58 (finding no constructive

amendment where the “facts in the indictment necessarily

supported” the evidence presented at trial and thus “gave fair

notice” of the facts proved at trial).

III. Specific Unanimity Instruction

Where, as here, the issue has been preserved, the court

reviews for abuse of discretion the district court’s denial of a

20 UNITED STATES V. LUONG

defendant’s request for a specific unanimity instruction.

United States v. Kim, 196 F.3d 1079, 1082 (9th Cir. 1999).

“[I]n the ordinary case, a general instruction that the

verdict must be unanimous will be sufficient to protect the

defendant’s rights.” United States v. Anguiano, 873 F.2d

1314, 1319 (9th Cir. 1989) (quoting United States v.

Echeverry, 719 F.2d 974, 974 (9th Cir. 1983)). Under certain

circumstances, however, a specific unanimity instruction

should be given, instructing the jury not to return a guilty

verdict unless it “unanimously agree[s] to a particular set of

facts.” Id. (alteration in original) (quoting Echeverry, 719

F.2d at 975). A specific unanimity instruction is necessary

“where it appears that ‘there is a genuine possibility of jury

confusion or that a conviction may occur as the result of

different jurors concluding that the defendant committed . . .

acts’” consisting of different legal elements. Id. (quoting

Echeverry, 719 F.2d at 975). In general, “jurors are not

constitutionally required to unanimously agree on alternative

theories of criminal liability,” and accordingly, no specific

unanimity instruction is warranted where jurors may find

criminal liability based on alternative means of committing

a single element of a crime. Kim, 196 F.3d at 1083.

At his retrial, Luong requested an instruction requiring the

jury to unanimously agree on the factual basis underpinning

the interstate-commerce element. The district court declined,

concluding that the government’s two theories went to the

same offense element, and accordingly, the jury did not need

to “agree to the specific means by which interstate commerce

was affected.” On appeal, Luong contends that the district

court abused its discretion in failing to give a specific

unanimity instruction because, in his view, there was “more

than a ‘genuine possibility’ of jury confusion in this case.”

UNITED STATES V. LUONG 21

The district court did not abuse its discretion in denying

Luong’s request for a specific unanimity instruction. The

government’s interstate-commerce theories were alternative

means the jury could have found satisfied a single element of

Hobbs Act robbery, and “jurors are not constitutionally

required to unanimously agree on alternative theories of

criminal liability.” Kim, 196 F.3d at 1083. Because the jury

was unanimous in concluding that Luong’s robbery affected

interstate commerce and the government’s theories

supporting the interstate-commerce element were based in

law, a specific unanimity instruction was not warranted.

IV. Hobbs Act Jury Instruction

The court reviews de novo Luong’s next preserved claim

of error: whether the district court erred in crafting the jury

instruction at Luong’s retrial. See United States v. Hofus,

598 F.3d 1171, 1174 (9th Cir. 2010). A district court “has

substantial latitude” in crafting jury instructions, provided

that they “fairly and adequately cover the issues presented.”

United States v. Hicks, 217 F.3d 1038, 1045 (9th Cir. 2000)

(quoting United States v. Frega, 179 F.3d 793, 806 n.16 (9th

Cir. 1999)). Thus the question on appeal is whether “the

instructions, viewed as a whole, ‘were misleading or

inadequate to guide the jury’s deliberation.’” United States

v. Kaplan, 836 F.3d 1199, 1215 (9th Cir. 2016) (quoting

United States v. Moore, 109 F.3d 1456, 1465 (9th Cir. 1997)

(en banc)). Jury instructions only require reversal where they

prejudiced the defendant. Id.

At the retrial, the district court, over Luong’s objection,

instructed the jury in relevant part that the government was

required to prove, beyond a reasonable doubt, that

22 UNITED STATES V. LUONG

the robbery affected interstate commerce in

some way. An effect on interstate commerce

is established by proof of an actual impact,

however small, or in the absence of an actual

impact, proof of a probable or potential

impact. This impact can be slight, but not

speculative.

(emphasis added). Luong argues on appeal that this

instruction misstated the law and allowed the jury to

impermissibly convict “if it found that his robbery had no

more than a potential slight impact on interstate commerce.”

Even putting aside the inquiry into whether there is any

meaningful difference between a slight potential effect and

great potential effect when the character of any potential

effect cannot be known, the district court did not err in giving

this instruction. This court has intimated that it is sufficient

for the government to prove a de minimis, probable effect on

interstate commerce, so long as it is not purely speculative.

See United States v. Lynch, 282 F.3d 1049, 1052 (9th Cir.

2002), overruled on other grounds, 437 F.3d 902 (9th Cir.

2006) (stating that Atcheson supported a finding of “only a de

minimis effect on interstate commerce, including a de minimis

effect that was probable rather than actual” (citing Atcheson,

94 F.3d at 1243)); cf. United States v. Reyes, 363 F. App’x

192, 195 (3d Cir. 2010) (stating that the government was

“required to prove only a minimal, potential effect on

interstate commerce”).

Moreover, any error would have been harmless. It is clear

beyond a reasonable doubt that a rational jury could have

found Luong guilty because, as stated above, Luong clearly

affected interstate commerce by robbing his victim as part of

UNITED STATES V. LUONG 23

a commercial transaction facilitated by a website that forms

an interstate market for used cars.

V. Prosecutorial Misconduct

The court reviews for abuse of discretion preserved

claims of prosecutorial misconduct, applying a harmless error

analysis. United States v. Del Toro-Barboza, 673 F.3d 1136,

1150 (9th Cir. 2012). This requires viewing the “challenged

conduct ‘in the entire context of the trial,’ and revers[ing]

‘only if it appears more probable than not that prosecutorial

misconduct materially affected the fairness of the trial.’”

United States v. Alcantara-Castillo, 788 F.3d 1186, 1190–91

(9th Cir. 2015) (quoting United States v. Ruiz, 710 F.3d 1077,

1082 (9th Cir. 2013)). Where the defendant failed to object

to a statement at trial, the court reviews for plain error. Id.

at 1190. On plain error review, reversal is warranted only if

“(1) there was error; (2) it was plain; (3) it affected the

defendant’s substantial rights; and (4) ‘viewed in the context

of the entire trial, the impropriety seriously affected the

fairness, integrity, or public reputation of judicial

proceedings.’” Id. at 1191 (quoting United States v. Combs,

379 F.3d 564, 568 (9th Cir. 2004)). While there is no

question that the tenor of the parties’ arguments was tense

and accusatory, we ultimately conclude that nothing in them

requires reversal.

Luong first argues that the government committed

misconduct by misstating the law; specifically, he contends

that the prosecutor repeatedly argued to the jury that Luong’s

robbery had an effect on interstate commerce based upon “the

use of interstate commerce.” This issue was preserved, and

thus we review whether the district court abused its discretion

24 UNITED STATES V. LUONG

in finding that any alleged error was cured by its instructions.

See Del Toro-Barboza, 673 F.3d at 1150.

Because we do not reach whether the mere use of the

Internet, no matter how slight, is sufficient to satisfy the

Hobbs Act jurisdictional nexus, we assume the defendant is

correct that the government incorrectly stated the law. Even

so, the district court did not abuse its discretion in concluding

that this did not rise to the level of incurable misconduct. The

district court and the government admonished the jury several

times that the jury instructions controlled over the

government’s recitation of the law, and the jury instructions

clearly stated that a conviction required the jury to find that

Luong’s robbery had affected interstate commerce. As

discussed above, there was considerable evidence that

Craigslist formed an interstate market for used cars and that

Luong affected interstate commerce by robbing his victim as

part of a commercial transaction facilitated by Craigslist.

Therefore, the prosecutor’s statements when considered “in

the entire context of the trial” amounted to harmless error.

See Alcantara-Castillo, 788 F.3d at 1190 (quoting Ruiz,

710 F.3d at 1082).

Luong next attacks the prosecutor’s statements that the

jury needed to do its “job” or “duty” and convict the

defendant, as well as the prosecutor’s accusations that

defense counsel had asked the jury to disobey the instruction

and “[f]eign[ed] re[v]erence for the Constitution.” The

district court’s denial of the defendant’s motion for new trial

is reviewed for plain error because defense counsel did not

contemporaneously object. See United States v. Sanchez,

176 F.3d 1214, 1218 (9th Cir. 1999).

UNITED STATES V. LUONG 25

This court has held that it is “improper for the prosecutor

to state that the duty of the jury is to find the defendant

guilty.” Id. at 1224–25 (citing United States v. Polizzi,

801 F.2d 1543, 1558 (9th Cir. 1986)); see also United States

v. Young, 470 U.S. 1, 18, 20 (1985) (stating that the

prosecutor erred in trying “to exhort the jury to ‘do its job’

[because] that kind of pressure, whether by the prosecutor or

defense counsel, has no place in the administration of

criminal justice,” but ultimately concluding that, “reviewed

in context,” the statements did not undermine fundamental

fairness and “contribute to a miscarriage of justice”). The

court, in Sanchez, observed that

[t]here is perhaps a fine line between a proper

and improper “do your duty” argument. It is

probably appropriate for a prosecutor to argue

to the jury that “if you find that every element

of the crime has been proved beyond a

reasonable doubt, then, in accord with your

sworn duty to follow the law and apply it to

the evidence, you are obligated to convict,

regardless of sympathy or other sentiments

that might incline you otherwise.”

Id. at 1225. In Sanchez, the court concluded that the

prosecutor’s argument had been improper in part because the

prosecutor “did not tell the jury that it had a duty to find the

defendant guilty only if every element of the crime had been

proven beyond a reasonable doubt. Nor did he remind the

jury that it had the duty to acquit Sanchez if it had a

reasonable doubt regarding his guilt.” Id.; see also United

States v. Gomez, 725 F.3d 1121, 1131 (9th Cir. 2013)

(holding prosecutor’s statement was proper where prosecutor

argued that “if the jury finds that the prosecution has met its

26 UNITED STATES V. LUONG

burden of proving the elements beyond a reasonable doubt,

then it is the jury’s duty to convict” (emphasis in original)).

The government’s statements plainly were improper: the

government impermissibly attacked the credibility of defense

counsel and told the jury that it could only carry out its duty

by siding with the government. But, in the context of both

attorneys’ arguments, the district court’s directive to follow

the instructions, the jury instructions themselves, and the

government’s statements at other times during the argument

that the jury must weigh all of the evidence to reach its

conclusion, these statements do not warrant reversal. See

United States v. Frederick, 78 F.3d 1370, 1380 (9th Cir.

1996) (disapproving of a prosecutor’s statements maligning

defense counsel to the jury, but concluding that those

comments did not “cross[] the line sufficiently to warrant”

reversal).

VI. Felon in Possession Conviction under Section

922(g)(1)

After this case was argued and submitted, the Supreme

Court decided Rehaif v. United States, in which it held that,

in order to convict a defendant under 18 U.S.C. § 922(g), the

government “must prove both that the defendant knew he

possessed a firearm and that he knew he belonged to the

relevant category of persons barred from possessing a

firearm.” 139 S. Ct. 2191, 2200 (2019) (emphasis added).

We granted Luong leave to file supplemental briefing to

address the impact of Rehaif on his conviction on count 3 for

being a felon in possession of a firearm pursuant to 18 U.S.C.

§ 922(g)(1).

UNITED STATES V. LUONG 27

The following is undisputed: the indictment did not

charge the requisite knowledge of status; Luong stipulated to

the fact that he had, at the time of the robbery, been convicted

of a crime punishable by imprisonment for a term exceeding

one year; and the government did not present evidence to the

jury that Luong knew he was a convicted felon when he

possessed the firearm. Luong argues that the district court’s

failure to instruct the jury that knowledge of his felon status

was an element of the felon-in-possession count constituted

plain error. The government concedes that, with respect to

this knowledge-of-status element, an obvious error occurred,

but it argues that such error did not affect Luong’s substantial

rights, nor does it seriously affect the fairness, integrity, or

public reputation of the judicial proceedings.

The court applies plain error review to a sufficiency-of-

the-evidence argument that was not raised before the district

court. See United States v. Benamor, 937 F.3d 1182, 1188

(9th Cir. 2019), cert. denied, 140 S. Ct. 818 (2020) (citing

United States v. Flyer, 633 F.3d 911, 917 (9th Cir. 2011)).

To establish plain error, a defendant must demonstrate “(1) an

error (2) that was obvious and (3) that affected the

defendant’s substantial rights and (4) that seriously affected

the fairness, integrity, or public reputation of judicial

proceedings[.]” Id. (citing United States v. Olano, 507 U.S.

725, 734, 736 (1993)).

It was clear error, under Rehaif, for the jury to not have

been instructed that knowledge of status was an element of

count 3. See Henderson v. United States, 568 U.S. 266, 272

(2013) (“Even where a new rule of law is at issue, Rule 52(b)

does not give a court of appeals authority to overlook a

failure to object unless an error not only ‘affect[s] substantial

rights’ but also ‘seriously affect[s] the fairness, integrity or

28 UNITED STATES V. LUONG

public reputation of judicial proceedings.’” (quoting Olano,

507 U.S. at 732)); see also Griffith v. Kentucky, 479 U.S. 314,

321 & n.6 (1987) (holding that Supreme Court decisions

govern criminal cases pending on direct appeal). Still,

however, Luong cannot satisfy the third and fourth

requirements of the plain error test. For an error to affect a

defendant’s substantial rights, in the ordinary case, the

defendant must demonstrate “‘a reasonable probability that,

but for the error,’ the outcome of the proceeding would have

been different[.]” Molina-Martinez v. United States, 136 S.

Ct. 1338, 1343 (2016) (quoting United States v. Dominguez

Benitez, 542 U.S. 74, 76, 82 (2004)).

Luong had at least six prior felony convictions at the time

he possessed the charged firearm, four of which resulted in

prison sentences exceeding one year. In total, these

convictions resulted in Luong being incarcerated for more

than a decade. In light of this, while clear error did occur

here, we conclude that, even if the district court had

instructed the jury on the knowledge-of-status element, there

is no reasonable probability that the jury would have reached

a different verdict on count 3. See Rehaif, 139 S. Ct. at 2198

(noting that it would not be burdensome for the government

to prove a defendant’s knowledge of status where

“knowledge can be inferred from circumstantial evidence”

(quoting United States v. Staples, 511 U.S. 600, 615 n.11

(1994))). For this reason, the error did not affect Luong’s

substantial rights, nor the fairness, integrity, or public

reputation of the first trial. See Benamor, 937 F.3d at 1189

(holding plain error did not affect the defendant’s substantial

rights, nor the fairness, integrity, or public reputation of the

trial, where the defendant had seven prior convictions: three

resulting in sentences of more than one year of imprisonment,

including one for being a felon in possession of a firearm, and

UNITED STATES V. LUONG 29

one for being a felon in possession of ammunition); see also

United States v. Johnson, No. 17-10252, 2020 WL 3458969,

at *5 (9th Cir. June 25, 2020) (holding that uncontroverted

evidence of felony convictions for which a defendant served

sentences exceeding one year “will ordinarily preclude a

defendant from satisfying the fourth prong of plain-error

review when challenging the sufficiency of the evidence that

he knew of his status as a convicted felon”). Thus, we affirm

Luong’s conviction on count 3.

VII. Hobbs Act Robbery as a Predicate Crime of

Violence under Section 924(c)

The court reviews “de novo whether a criminal conviction

is a crime of violence under § 924(c)(3).” United States v.

Dominguez, 954 F.3d 1251, 1256 (9th Cir. 2020) (citing

United States v. Begay, 934 F.3d 1033, 1037 (9th Cir. 2019)).

In his penultimate challenge on appeal, Luong argues that

the district court erred in denying his motion to dismiss count

2 of the indictment, which charged Luong with brandishing

a firearm during and in relation to a crime of violence in

violation of 18 U.S.C. § 924(c)(1)(A)(ii). As the basis for his

challenge, Luong argues that Hobbs Act robbery does not

constitute a predicate crime of violence as defined in

§ 924(c)(3)(A). During the pendency of this appeal, another

panel of this court “reaffirm[ed] that Hobbs Act robbery is a

crime of violence under 18 U.S.C. § 924(c)(3)(A),”

Dominguez, 954 F.3d at 1261, thus foreclosing Luong’s

argument. For the same reasons as those set forth in

Dominguez, we hold Hobbs Act robbery constitutes a

predicate crime of violence, and therefore affirm Luong’s

conviction on count 2.

30 UNITED STATES V. LUONG

VIII. Credit for Acceptance of Responsibility

In his final challenge on appeal, Luong argues that the

district court erred in declining to give him a two-level

downward adjustment for acceptance of responsibility under

the United States Sentencing Guidelines (“U.S. Sentencing

Guidelines” or “U.S.S.G.”). “We review de novo whether the

district court misapprehended the law with respect to the

acceptance of responsibility reduction.” United States v.

Garrido, 596 F.3d 613, 617 (9th Cir. 2010) (quoting United

States v. Cortes, 299 F.3d 1030, 1037 (9th Cir. 2002)).

“Whether or not the defendant has accepted responsibility for

his crime is a factual finding that we review for clear error.”

Id. (citing United States v. McKinney, 15 F.3d 849, 852 n.6

(9th Cir. 1994)).

The U.S. Sentencing Guidelines provide for a two-level

decrease to a defendant’s offense level where the defendant

“clearly demonstrates acceptance of responsibility for his

offense[.]” U.S.S.G. § 3E1.1(a). A defendant’s decision to

go to trial does not necessarily foreclose him from receiving

this offense-level decrease. U.S.S.G. § 3E1.1 cmt. 2; see also

McKinney, 15 F.3d at 854 (vacating sentence and concluding

the defendant was eligible for a reduction where he confessed

and assisted police upon apprehension, tried to plead guilty

but was rebuffed, and went to trial on conspiracy charge).

The comments to § 3E1.1(a) state, in relevant part:

In rare situations a defendant may clearly

demonstrate an acceptance of responsibility

for his criminal conduct even though he

exercises his constitutional right to a trial.

This may occur, for example, where a

defendant goes to trial to assert and preserve

UNITED STATES V. LUONG 31

issues that do not relate to factual guilt (e.g.,

to make a constitutional challenge to a statute

or a challenge to the applicability of a statute

to his conduct).

U.S.S.G. § 3E1.1 cmt. 2. At bottom, the district court must

determine whether a defendant “manifest[ed] a genuine

acceptance of responsibility for his actions.” Cortes, 299 F.3d

at 1038 (quoting McKinney, 15 F.3d at 852). “If [the

defendant’s] statements and conduct made it clear that his

contrition was sincere, he [is] entitled to the reduction.” Id.

The focus of this inquiry must be “on the defendant’s

personal contrition, rather than on his exercise of his

constitutional rights” in order to “best serve[] the purposes of

the acceptance of responsibility reduction.” McKinney,

15 F.3d at 853. And just as the U.S. Sentencing Guidelines

do not aim to “penalize the exercise of the constitutional right

to go to trial[,]” id. at 852, the Guidelines do not set out to

penalize a defendant for preventing constitutionally infirm or

otherwise inadmissible evidence from reaching the jury. See

United States v. Ochoa-Gaytan, 265 F.3d 837, 844 (9th Cir.

2001) (holding that the district court erred in denying

acceptance of responsibility adjustment on the basis that the

defendant moved to suppress a constitutionally infirm

statement).

At trial, Luong admitted his factual guilt—specifically,

that he used a gun to rob Montellano—but he moved to

exclude evidence supporting the government’s interstate-

commerce theory. To illustrate, Luong objected to the

testimony of Patrice Alexander-Lee, a product manager at

STAR Networks, on the grounds of personal knowledge, lack

of expert notice, and hearsay, as well as to the testimony of

Jeffrey Jackson, a Bank of America operations analyst and

32 UNITED STATES V. LUONG

custodian of records, on the basis of lack of personal

knowledge. The district court allowed Alexander-Lee and

Jackson to testify but later struck portions of Jackson’s

testimony. Luong further objected to, on hearsay and

Confrontation Clause grounds, the testimony of William

Powell, Craigslist’s director of government and law

enforcement relations, regarding information he had learned

from coworkers at Craigslist. The district court agreed the

testimony would be hearsay, and ruled that “the only server-

related information to which he may testify is his knowledge

of the location of the servers.” In response to this ruling, the

government summoned to testify Dallas Wisehaupt, a

Craigslist system manager, that same day. The district court

overruled an objection that it was expert testimony for which

Luong had not been provided proper notice and time to

prepare.

At the sentencing hearing, the district court acknowledged

that Luong’s decision to go to trial was not reason in itself to

deny the two-level decrease. The district court stated that

Luong had challenged only the jurisdictional element of the

Hobbs Act, and commented on counsel’s zealous

performance in challenging that single element. The district

court noted that, while Luong’s challenges to the

government’s evidence on the interstate-commerce element

constituted a “legitimate strategy,” they were not consistent

with contrition. Making no other findings as to the

defendant’s contrition, the district court concluded that, under

these circumstances, a reduction for acceptance of

responsibility was not warranted.

The district court erred, Luong contends, because his

evidentiary objections went only to whether the interstate-

commerce nexus was satisfied, he presented no evidence in

UNITED STATES V. LUONG 33

his defense, and his cross-examination was confined to

challenging the interstate-commerce element and any

suggestion that he was dangerous or violent. The government

counters that Luong fought to exclude a range of government

evidence, including cell phone evidence, photo line-up

evidence, other-acts and prior-conviction evidence, Craigslist

evidence, and testimony from Bank of America, STAR

Network, and Craigslist employees, among others.

The commentary to the U.S. Sentencing Guidelines

explicitly provides that a defendant may admit factual guilt

but go to trial to “challenge . . . the applicability of a statute

to his conduct.” U.S.S.G. § 3E1.1(a) cmt. 2. Here, Luong

admitted factual guilt, but proceeded to trial to assert that his

offense conduct did not fall within the scope of the Hobbs

Act’s jurisdictional nexus. Challenging the federal

government’s jurisdiction to prosecute the alleged offense

conduct is not inconsistent with contrition. Nor is a

defendant foreclosed from receiving credit for acceptance of

responsibility because his attorney made good-faith

challenges at trial to evidence going to that question. Insofar

as the district court declined to give the adjustment based on

such challenges by Luong’s counsel, it erred as a matter of

law.

To hold otherwise would be to mandate that defense

counsel sit on her hands while the government proffers

affidavits in lieu of live testimony, or lay witnesses rather

than qualified experts to provide expert opinions, or surprise

witnesses a la Perry Mason. Here, Luong’s evidentiary

challenges, some of which were sustained and resulted in

stricken testimony, were part and parcel of Luong’s challenge

to the interstate-commerce nexus. See United States v Rojas-

Flores, 384 F.3d 775, 780–81 (9th Cir. 2004) (holding that

34 UNITED STATES V. LUONG

the district court erred in denying adjustment for acceptance

of responsibility where the defendant went to trial to

challenge the applicability of the statute of offense instead of

his factual guilt, and the defendant cross-examined

witnesses); United States v. Ing, 70 F.3d 553, 556 (9th Cir.

1995) (vacating sentence and remanding case for

resentencing, noting that “an entrapment defense is not

necessarily incompatible with acceptance of responsibility”);

McKinney, 15 F.3d at 852 (noting that a defense that relied on

cross-examination and presented no affirmative defense “is

hardly the kind of defense that refutes the strong inference

that [the defendant] accepted responsibility”).

While the government also takes issue with Luong’s

counsel’s use of the word “innocence” during closing

arguments and Luong’s failure to demonstrate, in the

government’s view, meaningful contrition, these arguments

are non-starters. Luong’s attorney argued that he was

innocent under the statute because the interstate-commerce

nexus was not satisfied. See, e.g., ER 364 (“He is innocent of

the charges in Counts One and Two because this robbery did

not affect or potentially affect interstate commerce . . . .

[T]he Defense is not here to deny that a robbery occurred; to

deny the experience of the victim in this case, Mr.

Montellano. Nobody should have to experience being

robbed. But what happened was not a federal crime on

February 15th, 2015.”). But as discussed above, this is not

inconsistent, as a matter of law, with contrition. And while

the district court clearly would have acted according to law

by denying the adjustment for the defendant’s lack of

contrition, in light of his failure to allocute and his brief letter

of contrition, the district court did not state that it relied on

these factors. See, e.g., United States v. McKittrick, 142 F.3d

1170, 1178 (9th Cir. 1998) (concluding that the defendant’s

UNITED STATES V. LUONG 35

challenge to regulation’s intent requirement did not foreclose

an adjustment for acceptance of responsibility and,

accordingly, vacating and remanding case to determine

whether the denial was based on an impermissible ground).

We vacate Luong’s sentence and remand for resentencing,

leaving it for the district court to make a factual finding on

contrition in the first instance.

CONCLUSION

For the foregoing reasons, the judgment of the district

court is AFFIRMED in part and VACATED in part. The

case is REMANDED to the district court for further

proceedings consistent with this opinion.