Friday, November 18, 2016

Case o' The Week: Lin Win - Lin, Sex Trafficking Conspiracy and Guideline Sentencing

The Honorable Judge Jerome Farris
  The Ninth confirms what we thought we knew - look to the guidelines for a crime of conviction.
United States v. Wei Lin, 2016 WL 6678368 (9th Cir. Nov. 14, 2016), decision available here

Players: Decision by Senior Judge Farris, joined by Judges Wallace and Watford.

Facts: Wei Lin was charged with conspiracy to commit sex trafficking, in violation of 18 USC § 1594(c), and with counts of sex trafficking, in violation of 18 USC § 1591(a). Id. at *1. He pled to a conspiracy count. In exchange, the substantive sex-trafficking offenses were dismissed (charges that carried fifteen-year mandatory minimums). Id. His defense attorney told Lin the base offense level would be 14, under USSG § 2G1.1(a)(2). Id. Instead, the district court found the base to be 34, using a guideline that is tied to the mand-min punishment provision of the substantive sex trafficking offense. Id. The court denied Lin’s motion to withdraw based on his previous understanding of the guideline range, and sentenced Lin to 235 months. Id.

Issue(s): Is the base offense level for conspiracy to commit a sex trafficking offense 14, under USSG § 2G1.1(a)(2)? Or is it 34, for Lin’s “offense conduct” and the guideline for the substantive sex trafficking crime?

Held:We hold that the district erred in calculating Lin’s base offense level. . . ..” Id. at *1. “In sum, common sense, the plain language of the guidelines, and the Sentencing Commission’s commentary, all show that USSG § 2G1.1(a)(1) only applies to defendants who are subject to a fifteen-year mandatory minimum sentence under 18 USC § 1591(b)(1). Since Lin was not subject to 18 USC § 1591(b)(1)’s mandatory minimum, the district court erred in applying § 2G1.1(a)(1) to Lin.” Id. at *3.

Of Note: Peculiar sentencing. The district court’s theory was that the offense conduct underlying the conspiracy was the sex trafficking counts – and those counts carried a 15-year mand-min and the associated high guideline range. Id. at *2. 
  Judge Farris however, isn’t keen on looking at offense conduct to match federal statutes to federal statutes. Id. To the Ninth, “[i]t seems tortured” to break federal statutes down and compare their conduct, as opposed to simply comparing the federal statutes on both sides of the equation. Id. at *2. In this case, the simple question is to ask whether the defendant had been convicted of an offense subject to the (15 year) punishment in § 1591(b)(1). Id. at *3. Lin had not: his plea was to a different statute (conspiracy), with no mand-min.  
  Lin is a good, practical decision, emphasizing the obvious link between the controlling guideline, and the offense of conviction.

How to Use: For sentencing wonks, Lin is a useful explanation of how the “offense of conviction” instructions in USSG § 1B1.2(a) is actually supposed to be used. Id. at *2. In a nutshell, a court shouldn’t be rummaging about in the offense conduct when a simple matching of the statute of conviction, listed in the judgment, will do.
For Further Reading: Whither the Sentencing Commission, in the post-11/8 world? Well, the Commission needs four members for a voting quorum. See 28 USC § 991(a). At the end of this year, only two confirmed Commissioners will remain: Judge William Pryor and Commissioner Rachel Barkow. While Commission Vice Chair Judge Charles Breyer has been re-nominated and Judge Danny Reeves has been nominated and has had his hearing, neither have been confirmed. 
  It remains theoretically possible that Judges Breyer and Reeves could be confirmed by the current lame-duck Senate. If not, the Commission will effectively lapse, and no amendments can be voted through until a future Senate confirms Judges Breyer and Reeves (or confirms whomever is nominated by President Trump).  Recall that Section 991(a) of Title 28 requires that no more than 4 of the 7 potential members of the Commission be of the same party. (The practice has been to pair a Republican and Democrat as nominees sent to the Senate). 
  What will be the priorities, when (or if) a new quorum-Commission is constituted? No one can know, though a "presumptive guidelines" speech by Judge Pryor may be prescient. See text of Judge Pryor’s speech here.


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


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