FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Nos. 17-10275 Plaintiff-Appellee, 17-10277 v. D.C. Nos. 1:10-cr-00085-FMTG-1 STEVEN WANG, AKA Shui 1:14-cr-00063-FMTG-1 Cheng Wang, Defendant-Appellant. OPINION Appeals from the United States District Court for the District of Guam Frances Tydingco-Gatewood, Chief District Judge, Presiding Argued and Submitted October 23, 2019 University of Hawaii at Manoa Filed December 16, 2019 Before: SUSAN P. GRABER, MILAN D. SMITH, JR., and PAUL J. WATFORD, Circuit Judges. Opinion by Judge Milan D. Smith, Jr. 2 UNITED STATES V. WANG SUMMARY * Criminal Law The panel reversed and vacated sentences imposed on the defendant at the same hearing in two cases – one in which the defendant pleaded guilty to mail fraud, visa fraud, money laundering, and willful failure to pay over tax; the other in which the defendant pleaded guilty to conspiracy to commit visa fraud. The panel held that because the defendant’s mail fraud count established a visa fraud offense specifically covered by U.S.S.G. § 2L2.1, the district court, in calculating the offense level for the mail fraud count, erred by applying the general-fraud Guideline, U.S.S.G. § 2B1.1, rather than applying the visa fraud Guideline, § 2L2.1, pursuant to the cross-reference set forth in U.S.S.G. § 2B1.1(c)(3). The panel held that the error was plain, affected the defendant’s substantial rights, and seriously affected the fairness, integrity, or public reputation of judicial proceedings. Remanding for resentencing, the panel outlined how the district court generally should approach re-sentencing of the defendant’s multiple counts pursuant to U.S.S.G. § 5G1.2. * 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. WANG 3 COUNSEL 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. OPINION 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 1 The district court used the 2013 Guidelines to sentence Wang. Generally, we review a sentence based on the Guidelines in effect on the date of the defendant’s sentencing. See United States v. Cuevas-Lopez, 934 F.3d 1056, 1058 n.1 (9th Cir. 2019) (citations omitted). However, 4 UNITED STATES V. WANG The district court applied § 2B1.1the offense Guideline that covers general ...
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals