United States v. Truong

142 F. App'x 968

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 10, 2005
• Docket: No. 04-10336
• Status: Published

Opinion

MEMORANDUM

*

Defendant Tu Minh Truong appeals his conviction for arson resulting in death and the life sentence imposed by the district court. We affirm in part and dismiss the appeal in part.

Truong argues that the district court lacked subject matter jurisdiction because the interstate commerce element of the federal arson statute, 18 U.S.C. § 844(i), is a jurisdictional prerequisite and the home destroyed by the fire was not used in an activity affecting interstate commerce. We do not need to address the legal issue raised by that argument. Even assuming that the interstate commerce element of the statute is a prerequisite to subject matter jurisdiction, the requirement was satisfied here because the budding destroyed was in use as a rental property and business property “per se substantially affects interstate commerce.” See United States v. Gomez, 87 F.3d 1093, 1096 (9th Cir.1996).

We lack jurisdiction to consider Truong’s remaining substantive challenges (which, if reached, would fail on the merits) because he waived his right to appeal. That waiver was not invalidated by the district judge’s negative opinion of the case, see Liteky v. United States, 510 U.S. 540, 550-51, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994), the judge’s description of the right to appeal and waiver at sentencing, see United States v. Schuman, 127 F.3d 815, 817 (9th Cir.1997), or the recent developments in sentencing law, United States v. Cardenas, 405 F.3d 1046, 1048 (9th Cir. 2005).

AFFIRMED in part and DISMISSED in part.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.