United States v. Wang, No. 17-10275 (9th Cir. 2019)
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The Ninth Circuit reversed defendant's sentences imposed in two cases that the district court sentenced in the same hearing. In the first case, defendant pleaded guilty to mail fraud, visa fraud, money laundering, and willful failure to pay over tax. In the second case, defendant pleaded guilty to conspiracy to commit visa fraud.
The panel held that the district court erred by applying USSG 2B1.1 to calculate the offense level for defendant's mail fraud count of conviction. The panel explained that the allegations underlying this count established an immigration visa fraud offense expressly covered by USSG 2L2.1, and thus the district court should have followed the USSG 2B1.1(c)(3) cross-reference and applied section 2L2.1. The panel further held that the error was plain and substantially affected the sentencing guidelines range the district court used to sentence defendant. Therefore, the panel remanded for resentencing in accordance with USSG 5G1.2.
Court Description: 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. UNITED STATES V. WANG 3
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