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