U.S. v. Yeh

• Decision Date: 29 January 2002
• Docket Number: No. 00-3093.,No. 00-3094.,No. 00-3092.,00-3092.,00-3093.,00-3094.
• Citation: 278 F.3d 9
• Parties: UNITED STATES of America, Appellee, v. Hsin-Yung YEH, a/k/a Yeh Hsin Yung, Appellant. United States of America, Appellee, v. Jian Zhou Li, Appellant. United States of America, Appellee, v. Yuan Dian Wang, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

278 F.3d 9

UNITED STATES of America, Appellee, v. Hsin-Yung YEH, a/k/a Yeh Hsin Yung, Appellant.

United States of America, Appellee, v. Jian Zhou Li, Appellant.

United States of America, Appellee, v. Yuan Dian Wang, Appellant.

No. 00-3092.

No. 00-3093.

No. 00-3094.

United States Court of Appeals, District of Columbia Circuit.

Argued November 9, 2001.

Decided January 29, 2002.

Appeals from the United States District Court for the District of Columbia (No. 99cr00425-01)(No. 99cr00425-03)(No. 99cr00425-04).

W. Gregg Spencer, Assistant Federal Public Defender, argued the cause for the appellants. A. J. Kramer, Federal Public Defender, and Joanne Vasco and Michael J. McCarthy, appointed by the court, were on brief.

Susan A. Nellor, Assistant United States Attorney, argued the cause for the appellee. Roscoe C. Howard Jr., United States Attorney, and John R. Fisher, Joseph B. Valder and Kenneth W. Cowgill, Assistant United States Attorneys, were on brief.

Before: HENDERSON and TATEL, Circuit Judges, and SILBERMAN, Senior Circuit Judge.

Opinion for the court filed by Circuit Judge HENDERSON.

KAREN LeCRAFT HENDERSON, Circuit Judge:

Appellants Hsin-Yung Yeh (Yeh), Yuan Dian Wang (Wang) and Jian Zhou Li (Li) seek vacatur of their sentences and remand to the district court for resentencing. In their joint brief, Yeh and Wang offer one challenge each to their sentences and Li challenges his sentence on two grounds.

Yeh contends that the district court erred in applying to his sentence a four-level enhancement pursuant to section 3B1.1(a) of the United States Sentencing Guidelines (U.S.S.G. or Guidelines) as "an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive." Wang asserts that the court erred in imposing a five-year mandatory minimum sentence of imprisonment under 8 U.S.C. § 1324(a)(2)(B)(ii) for attempting to "bring[] [three or more unauthorized] aliens" into the United States "for the purpose of commercial advantage or private financial gain." Li makes the same assertion as Wang and argues in addition that the district court improperly applied a two-level enhancement under U.S.S.G. § 2L1.1(b)(5) for "intentionally or recklessly creating a substantial risk of death or serious bodily injury to another person." Their contentions are without merit and we therefore affirm the sentences of all three.

I.

On December 6, 1999 a United States Coast Guard aircraft sighted a freighter 400 miles south of Guatemala sailing towards the Guatemala-El Salavador coast.¹ The Coast Guard Cutter MUNRO was called to investigate the vessel, which had no apparent identification or markings. To no avail, the MUNRO tried to communicate with the freighter.

On December 7 the MUNRO launched an inflatable boat, the MUNRO 2, to approach the freighter and attempt communications once again. Upon questioning, Yeh and Wang — who were on the freighter's main deck — told Coast Guard Petty Officer Andrew Ha, the MUNRO's Chinese interpreter, that the vessel was named the Wing Fung Lung (WFL) and that it was headed toward Panama with a load of plywood and six crewmen aboard. When the Coast Guard asked to board the WFL, Yeh refused. During this exchange, boarding team members on the MUNRO 2 noticed numerous faces peering out of portholes beneath the WFL's main deck. Suspecting that Yeh and Wang were smuggling aliens, the MUNRO dropped back from the WFL to feign disinterest in the vessel's activities in order to see if the WFL's crew would permit the suspected aliens to appear on deck.

On December 9, lookouts aboard the MUNRO observed red flares over the WFL and scores of people frantically waving their arms on the WFL's deck. Recognizing the flares as an international signal of distress, the MUNRO launched both of its small boats with rescue and boarding teams. Once aboard the WFL, the teams determined that the vessel was flooding due to mechanical problems with the engines. The boarding team counted over two hundred aliens on the main deck. Coast Guard security officers identified certain crew members they believed to be shipboard "enforcers" and separated the fifteen to twenty enforcers from the aliens to keep them from inciting the aliens to violence. When the officers began handcuffing the enforcers, Yeh refused to comply with directions. He struggled with the officers and managed to seize a revolver from one of them. Yeh shot at Officer Robert Borowczak but missed. Yeh was then successfully restrained and handcuffed.

On deck, the Coast Guard found one life raft and only twenty life jackets, enough for the enforcers, but not the aliens, to escape the WFL in an emergency. Coast Guard engineers determined that the engines were inoperable and that the ship had to be towed to Guatemala. The Guatemalan authorities granted the Coast Guard permission to tow the WFL into port. During the tow, the Coast Guard provided the aliens with much-needed food and medical attention, after learning that they had been without food for over forty-eight hours and without water for over twenty-four hours. The WFL had only one small toilet area, which was reserved for females. Most of the aliens had been forced to relieve themselves in their sleeping areas. Rats and cockroaches infested the sleeping quarters and food lockers. The aliens were kept below deck during daylight hours and were only infrequently allowed on deck for a few hours at night. When questioned by the Coast Guard, they stated that their destination was the United States and that the cost of the trip was $40,000 per person. The fee was to be paid off or worked off upon arrival in the United States.

Appellant Yeh pleaded guilty to attempting to "bring[] [unauthorized] aliens" into the United States for financial gain, in violation of 8 U.S.C. § 1324(a)(2), to aiding and abetting the same, in violation of 18 U.S.C. § 2, and to assaulting a federal officer while armed, in violation of 18 U.S.C. § 111(a)(1), (b).

At Yeh's sentencing on September 14, 2000 the district court stated that it believed a four-level enhancement under U.S.S.G. § 3B1.1(a) was applicable. Wayne Justice, captain of the MUNRO, testified that Officer Borowczak led the MUNRO's boarding party and was given the task of determining who was in charge of the WFL. He stated that Borowczak observed Yeh giving orders to the aliens to start fires and jump ship. Borowczak himself testified that Yeh was indeed the shipboard leader and that the other enforcers did not make a move without Yeh's approval. Petty Officer Ha testified that Yeh volunteered the location of the WFL's documentation, knowledge that suggested Yeh's leadership role. Finally, at Wang's earlier sentencing, Wang had testified that Yeh sailed the ship and possessed one of the two satellite phones on the WFL. The district court concluded from the foregoing testimony that there was sufficient evidence to support a four-level enhancement under section 3B1.1(a) for Yeh's role as an "organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive."

Appellant Wang pleaded guilty to attempting to "bring[] [unauthorized] aliens" into the United States for financial gain, in violation of 8 U.S.C. § 1324(a)(2), and to aiding and abetting the same, in violation of 18 U.S.C. § 2. With the aid of an interpreter, Wang stated that he had signed and understood the plea agreement and that he understood his possible prison term to be "not less than three years and up to ten years for the first two aliens" and "not less than five years and up to fifteen years for each of the third through the two hundred[th] aliens." App. of Appellants, Tab B, at 9.

At his sentencing on August 25, 2000 Wang testified that he had boarded the WFL as a passenger but that, as a fisherman, he was subsequently asked to pilot the WFL in exchange for a reduction in his $40,000 fee. Wang admitted that he knew that bringing unauthorized aliens into the United States was illegal and that by piloting the ship he was helping to get the WFL to its ultimate destination.

Although Wang had earlier acknowledged the court's obligation to impose a five-year minimum sentence on a defendant who transports three or more aliens into the United States for financial gain, he protested that he had attempted to smuggle only himself. The district court concluded, however, that "legally" Wang was "helping with the enterprise" of bringing other unauthorized aliens. Id., Tab C, at 37. The court therefore sentenced Wang to the five-year mandatory minimum sentence of imprisonment under 8 U.S.C. § 1324(a)(2)(B)(ii).

Appellant Li pleaded guilty to attempting to "bring[] [unauthorized] aliens" into the United States for financial gain, in violation of 8 U.S.C. § 1324(a)(2), and to aiding and abetting the same, in violation of 18 U.S.C. § 2. The district court determined that Li had signed and understood the plea agreement and that he understood his possible prison term to be "not less than three years and up to ten years for each of the first two aliens" and "not less than five years and up to fifteen years for each of the 3rd [through] the 200th alien[s]." App. of Appellee, Tab 2, at 11.

Li did not contest the government's assertions that he was one of the chief "enforcer[s] on the boat" and that he bore the responsibility "for keeping order, for keeping the aliens in their places[,] ... for distributing food and water to them ... [and for] permitt[ing] them to come up on top of the deck to get air and to exercise." Id., Tab 2, at 18, 22. He also admitted that he performed these tasks "to save a couple of thousand dollars" of his $40,000 fare. App. of Appellants, Tab D, at 64.

The district court determined that by signing his plea agreement, Li (like Wang) had acknowledged that the court was obligated to impose a five-year minimum sentence because Li had aided and abetted in bringing three or more unauthorized aliens into the...