United States v. Wang

• Citation: 944 F.3d 1081
• Decision Date: 16 December 2019
• Docket Number: 17-10277,Nos. 17-10275,s. 17-10275
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Steven WANG, AKA Shui Cheng Wang, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

944 F.3d 1081

UNITED STATES of America, Plaintiff-Appellee,

v.Steven WANG, AKA Shui Cheng Wang, Defendant-Appellant.

Nos. 17-10275

17-10277

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 23, 2019 University of Hawaii at Manoa

Filed December 16, 2019

Gia Kim (argued), Deputy Federal Public Defender; Hilary Potashner, Federal Public Defender; Federal Public Defender’s Office, Los Angeles, California; for Defendant-Appellant.

Stephen F. Leon Guerrero (argued), Assistant United States Attorney; Shawn N. Anderson, United States Attorney; Office of the United States Attorney, Districts of Guam and the Northern Mariana Islands, Hagatna, Guam; for Plaintiff-Appellee.

Before: SUSAN P. GRABER, MILAN D. SMITH, JR., and PAUL J. WATFORD, Circuit Judges.

M. SMITH, Circuit Judge:

Defendant-Appellant Steven Wang (Wang) appeals his sentences imposed in two cases that the district court sentenced in the same hearing. In the first case, Wang pleaded guilty to mail fraud, visa fraud, money laundering, and willful failure to pay over tax. In the second case, Wang pleaded guilty to conspiracy to commit visa fraud. The key issue in these appeals is whether the district court properly calculated the offense level for Wang’s mail fraud conviction pursuant to the United States Sentencing Guidelines Manual (U.S.S.G. or the Guidelines).¹

The district court applied § 2B1.1—the offense Guideline that covers general fraud offenses—to Wang’s mail fraud conviction pursuant to 18 U.S.C. § 1341. By applying § 2B1.1, the court ultimately calculated a Guidelines imprisonment range of 46 to 57 months. The court imposed a 57-month term in Wang’s first case, and a consecutive 57-month term in his second case, resulting in a total sentence of 114 months. Wang challenges the district court’s application of § 2B1.1 to his mail fraud conviction and the imposition of consecutive sentences.

We hold that the district court erred by applying § 2B1.1 to calculate the offense level for Wang’s mail fraud count of conviction. The allegations underlying this count established an immigration visa fraud offense expressly covered by § 2L2.1. Therefore, the district court should have followed the § 2B1.1(c)(3) cross-reference and applied § 2L2.1. The district court’s error was plain, and it substantially affected the Guidelines range the court used to sentence Wang. We reverse and vacate Wang’s sentences, and remand for re-sentencing.

FACTUAL AND PROCEDURAL BACKGROUND

I. The Indictments and Guilty Pleas

Wang is a naturalized United States citizen and a Guam resident. Between July 2005 and October 2009, he defrauded the United States into issuing H-2B nonimmigrant visas for 173 foreign construction workers in Guam. As part of his scheme, Wang knowingly mailed I-129 petitions to the United States Citizenship and Immigration Services (USCIS) with false statements made under oath.

In 2011, a federal grand jury returned a 128-count superseding indictment against Wang. Wang pleaded guilty to one count each of mail fraud in violation of 18 U.S.C. § 1341, visa fraud in violation of 18 U.S.C. § 1546(a), money laundering in violation of 18 U.S.C. § 1957, and willful failure to pay over tax in violation of 26 U.S.C. § 7202. For sentencing purposes, he stipulated to the factual allegations for all similar counts in the superseding indictment. Wang also agreed to cooperate with federal law enforcement, and the Government agreed to recommend a substantial assistance departure for his cooperation if warranted. The district court accepted Wang’s plea in February 2012.

While he awaited sentencing in the first case, a federal grand jury indicted Wang in November 2014 for conspiracy to commit visa fraud and visa fraud. These charges stemmed from Wang’s attempt to secure an L-1 nonimmigrant visa between December 2012 and May 2014. Wang provided false employment information to the federal government in an I-129 petition. In August 2015, Wang pleaded guilty to one count of conspiracy to commit visa fraud. He again agreed to cooperate with federal law enforcement, and again the Government agreed to move for a below-Guidelines sentence for his substantial assistance. The district court accepted this plea.

II. Sentencing

The district court sentenced Wang’s cases together at a June 2017 hearing using the Guidelines range that a probation officer (PO) calculated.²

At the hearing, the PO first grouped Wang’s offenses, placing the first case’s offenses into Group 1 and the second case’s offense into Group 2. The PO then calculated the offense level for each offense within each group. In relevant part, the PO calculated an offense level of 29 for Wang’s Group 1 mail fraud conviction by applying § 2B1.1. The PO calculated a base offense level of seven pursuant to § 2B1.1(a)(1). The PO then added 20 levels pursuant to § 2B1.1(b) as specific offense characteristics.³ As with all Wang’s convictions, the PO added two levels as a § 3A1.1(b)(1) victim-related adjustment. Wang’s mail fraud conviction thus had the highest Group 1 offense level. His money laundering conviction had the next highest Group 1 offense level of 23. The PO then computed a Group 2 offense level of 11 for Wang’s visa fraud conspiracy conviction.

Comparing Wang’s grouped offenses, the PO calculated a total offense level of 29. Based on Wang’s Criminal History Category (I), the PO calculated a pre-departure Guidelines range of 87 to 108 months. Accounting for the six-level substantial assistance downward departure the district court had granted for Wang’s cooperation pursuant to § 5K1.1, the PO calculated Wang’s post-departure Guidelines range as 46 to 57 months for all counts. The district court imposed 57-month imprisonment terms in each of Wang’s cases, with the terms to run consecutively.⁴ Wang timely appealed.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291. We apply plain error review when a defendant raises a procedural objection to his sentence that he did not raise in the district court, like the objection that Wang raises to the application of § 2B1.1 to the mail fraud conviction.⁵ Puckett v. United States , 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) ; United States v. Campbell , 937 F.3d 1254, 1256 (9th Cir. 2019). "Plain error is (1) error, (2) that is plain, and (3) that affects substantial rights. If these three conditions are met, [we] may then exercise [our] discretion to grant relief if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." United States v. Hammons , 558 F.3d 1100, 1103 (9th Cir. 2009) (citations and internal quotation marks omitted).

ANALYSIS

I. The District Court Erred by Applying § 2B1.1 Instead of § 2L2.1 to Wang’s Mail Fraud Conviction

Under the first prong of plain error review, we determine whether the district court erred. Wang objects that the district court erred by applying § 2B1.1 instead of § 2L2.1 to calculate the offense level for his mail fraud conviction under 18 U.S.C. § 1341.⁶ He argues that (1) the § 2B1.1(c)(3) cross-reference and (2) its commentary, in light of our decision in United States v. Velez , 113 F.3d 1035 (9th Cir. 1997), show error.

The Guidelines are the "starting point and the initial benchmark for the sentencing process." United States v. Bernardo , 818 F.3d 983, 985 (9th Cir. 2016) (citations and internal quotation marks omitted). For this reason, "[t]he district court must correctly calculate the recommended Guidelines sentence[.]" United States v. Hymas , 780 F.3d 1285, 1292 (9th Cir. 2015) (citation omitted).

The calculation error at issue here requires us to examine the Guidelines. "Our interpretation of the Guidelines ‘will most often begin and end with the text and structure of the [g]uidelines’ provisions’ themselves." United States v. Cuevas-Lopez , 934 F.3d 1056, 1061 (9th Cir. 2019) (quoting United States v. Martinez , 870 F.3d 1163, 1166 (9th Cir. 2017) ). We also may consider commentary that interprets or explains a Guideline. Martinez , 870 F.3d at 1166. "[C]ommentary ... is authoritative unless it ... is inconsistent with, or a plainly erroneous reading of, that guideline." Stinson v. United States , 508 U.S. 36, 38, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993) ; United States v. Martin , 796 F.3d 1101, 1108 (9th Cir. 2015). We consider § 2B1.1(c)(3) ’s text and commentary, and then address the Government’s response.

A. The § 2B1.1(c)(3) Cross-Reference Text

Section 2B1.1 is the offense Guideline that generally applies to an 18 U.S.C. § 1341 conviction like Wang’s mail fraud conviction. U.S.S.G. § 2B1.1 ; see also U.S.S.G. app. A (Statutory Index). Section 2B1.1, however, is subject to certain cross-references that are set forth after § 2B1.1 ’s general provisions. See U.S.S.G. § 2B1.1(c)(1)–(4). These cross-references instruct a court to calculate an offense level for a conviction using an offense Guideline other than § 2B1.1 when certain requirements are satisfied. We focus on the § 2B1.1(c)(3) cross-reference.

Section 2B1.1(c)(3) contains three requirements. First, subdivisions 2B1.1(c)(1) and (c)(2)—references for offenses involving firearms, explosives, or arson type crimes—must not apply. U.S.S.G. § 2B1.1(c)(3)(A). Second, the conviction at issue must be "under a statute proscribing false, fictitious, or fraudulent statements or representations generally," which expressly includes 18 U.S.C. § 1341. Id. § (c)(3)(B). Third, "the conduct set forth in the count of conviction [must] establish[ ] an offense specifically covered by another guideline in Chapter Two[.]" Id . § (c)(3)(C). When these requirements are met, the cross-reference instructs a court to "apply that other guideline." Id .

We readily conclude that Wang’s mail fraud count of conviction met the first and second requirements. Subdivisions (c)(1) and (c)(2) did not apply to Wang’s mail fraud conviction, and his conviction was under a general fraud statute.

Wang also satisfied...