United States v. Steven Wang (9th Cir. December 2019)

The Federal Docket

January 15, 2020

Sentencing Guidelines – It was plain error for the district court to apply the general-fraud Guidelines under U.S.S.G. § 2B1.1 when a defendant’s mail fraud conviction establishes a visa fraud offense specifically covered under U.S.S.G. § 2L2.1, the Guideline for visa fraud.

Steven Wang was convicted of mail fraud, visa fraud, money laundering, and other offenses. On appeal, the Ninth Circuit held that the sentencing court had committed plain error in calculating Wang’s Guidelines range under § 2B1.1, the Guidelines for general fraud offenses.

U.S.S.G. § 2B1.1(c) provides instructions for when the sentencing court should cross-reference to another Guidelines chapter. Specifically, § 2B1.1(c)(3) directs courts to apply the relevant Guideline when “the conduct set forth in the count of conviction establishes an offense specifically covered by another guideline in Chapter Two.”

Here, the Court held that Wang’s conviction for mail fraud was ultimately based on a visa fraud offense, so the court should have applied § 2L2.1. The Court cited the superseding indictment’s count alleging mail fraud, explaining that it also simultaneously alleged a visa fraud offense under 18 U.S.C. § 1546(a).

The Court concluded that the district court’s error was plain based on the text and structure of § 2B1.1 and subsection (c)(3) and how it clearly contravened Ninth Circuit precedent. The Court also found that Wang was prejudiced by this error, since his offense level and corresponding Guidelines range would be substantially lower under the § 2L2.1 Guideline. The error also “seriously affected the fairness, integrity, or public reputation of judicial proceedings.”

On Appeal from the District of Guam

Opinion by Smith, joined by Graber and Watford

Click here to read the opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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