Case o' The Week: The Ninth Gets Cross at Christmas (Cross-References, that is!) - Wang and Sentencing Guidelines

  Steven Wang contemplated the snowy hills around FCI Herlong while mulling his 2025 release date  -- the end of his 114 month sentence.

  Then a week before Christmas, he gets this call from his Federal Public Defender . . . 

   United States v. Steven Wang, 2019 WL 6835332 (9th Cir. Dec. 16, 2019), decision available here. 

Hon. Judge Milan Smith

Players: Decision by Judge M. Smith, joined by Judges Graber and Watford. 

  Admirable win for CD Cal AFPD Gia Kim.  

Facts: Wang facilitated visa fraud in Guam, by mailing I-129 petitions to Immigration that contained false statements. Id. at *2. Among (many) other counts of conviction, Want pleaded guilty to mail fraud, under 18 USC § 1341. Id. at *4. At sentencing, the district court applied USSG § 2B1.1 – the guideline for general fraud offenses – to the mail fraud convictions. The district court imposed consecutive sentences, resulting in a 114 month term. Id.

Issue(s): “[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. . . .” Id. at *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.” Id.

Held: “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 remand for re-sentencing.” Id. at *2.

Of Note: The Ninth corrects, on plain error, the district court’s failure to cross-reference to the correct (and much lower) immigration visa fraud guideline. Judge Milan Smith strongly signals along the way that the consecutive sentences imposed were un peu trop. Id. at *8. 

  Wade through the Guideline morass, and the ultimate holding in this opinion is a great holiday outcome: a corrected guideline range that is probably 25% of the “plainly erroneous” original sentence.

How to Use: In a Grinch-ish gambit, the government tries to dodge plain error by arguing that Wang waived this guideline argument. 

  Judge M. Smith is unimpressed. 

 The Ninth “reject[s] the Government’s suggestion that Wang affirmatively waived his objection. If a defendant has intentionally relinquished or abandoned an objection, we do not review for error, plain or otherwise . . . . We require 'actual evidence' that the defendant knew of his rights and nevertheless chose to relinquish them. . . . Wang’s failure to raise his objection to the district court is not actual evidence of intentional abandonment.” Id. at *3 & n.6 (internal citations and quotations omitted).

  When the government next tries to ruin the Whoville Feast, remember the Judge Smith's waiver-saver in footnote 6.

                                               

For Further Reading: Tragic opioid deaths have sparked a trend of federal prosecutions, as addicts are charged with mand-min offenses. See  generally Press Release here. 

  Turns out, however, that the massive federal resources poured into prosecuting addicts don't actually reduce the rate of fatal overdoses. 

  For a thoughtful piece on the true realities of heroin and fentanyl offenses, see Vaidya Gullapali, Seeing the Humanity of People Who Sell Drugs, available here. 

Image of the Honorable Judge Milan Smith from https://www.marshall.usc.edu/news/law-and-business

Image of “The Grinch” from https://jambareeqi.com/2018/11/08/how-the-grinch-stole-christmas-1966-tv-movie-review/

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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