United States v. Zhou, No. 14-50288 (9th Cir. 2016)
Annotate this CaseDefendant plead guilty to one count of unauthorized use of access devices for his use of fraudulent credit cards at a Target store in Colorado and at Nordstrom stores in California to buy items worth almost $150,000. The district court imposed restitution under the Mandatory Victims Restitution Act of 1996 (MVRA), 18 U.S.C. 3663A, without objection, for both the Nordstrom charges and the Target charges. Defendant argued for the first time on appeal that the district court improperly ordered restitution with respect to the Target charges. Applying plain error review to non-jurisdictional arguments raised for the first time on appeal, the court concluded that the Target charges occurred in July 2011 - within the indictment period. In this case, defendant did not plead guilty only to the Nordstrom allegations, he plead guilty to Count One of the indictment. The fraudulent Target charges fit within the scope of that count, and defendant does not contest that he actually engaged in criminal conduct at the Target store in Colorado that meets the terms of the indictment. Because the Nordstrom charges indisputably were sufficient to establish a factual basis for defendant’s crime, the government was not required to mention the Target charges at the plea colloquy. But the court need not and did not decide definitively whether the district court erred, because any error was not plain. Accordingly, the court affirmed the district court's restitution order.
Court Description: Criminal Law. The panel affirmed the district court’s restitution order in a case in which the defendant, who pled guilty to unauthorized use of access devices, used fraudulent credit cards at a Target store in Colorado and at Nordstrom stores in California. The defendant argued for the first time on appeal that because the offense of conviction covered only the Nordstrom charges, and the Mandatory Victims Restitution Act of 1996 (MVRA) authorizes restitution only to victims of the offense, the district court erred by awarding restitution to victims of both the Nordstrom and Target purchases. The panel held that plain error review applies. The panel clarified that although this court in some older cases used the “decline to consider” formulation where a newly-raised issue hinged on a factual dispute, that formulation is best understood as an application of the “plain error” standard. The panel concluded that, for purposes of plain-error review, the Target charges occurred within the indictment period. The panel explained that the defendant did not plead guilty only to the Nordstrom allegations, and that the fraudulent Target charges fit within the scope of the count to which he pled guilty. The panel wrote that because the Nordstrom charges were sufficient to establish a factual basis UNITED STATES V. ZHOU 3 for the defendant’s crime, the government was not required to mention the Target charges at the plea colloquy. Because any error was not plain, the district court did not decide definitively whether the district court erred. Dissenting, Judge Tashima wrote that both the text of the indictment and the record – including the plea colloquy and the presentence investigation report – show that the Target charges did not form the basis of the offense of conviction.
The court issued a subsequent related opinion or order on August 17, 2016.
The court issued a subsequent related opinion or order on September 27, 2016.
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