United States v. Tat, No. 22-50240 (9th Cir. 2024)
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The case under review is an appeal regarding the resentencing of Vivian Tat, who was involved in a money-laundering scheme. At her initial sentencing, Tat was convicted on several counts and sentenced to 24 months imprisonment. However, she appealed and the higher court vacated her conviction on one count and her sentence, remanding for de novo resentencing. At the resentencing hearing, Tat received an 18-month sentence.
Her appeal to this court is her second one, and she argues that the lower court erred in applying sentencing enhancements related to her role as an organizer/leader and her abuse of trust, improperly considered "cost" in dismissing her community-service proposal at sentencing, and violated Federal Rule of Criminal Procedure 32 by failing to make factual findings about certain parts of her presentence report.
The United States Court of Appeals for the Ninth Circuit held that a criminal defendant’s failure to challenge specific aspects of her initial sentence on a prior appeal does not waive her right to challenge comparable aspects of a newly imposed sentence following de novo resentencing. The court found that the lower court had erred in applying an organizer/leader enhancement under U.S.S.G. § 3B1.1, as Tat’s status as a mere member of the criminal enterprise did not bear on whether she was an organizer, leader, manager, or supervisor of the criminal activity, and the criminal conduct was not “otherwise extensive.” However, the district court did not err in applying an enhancement for abuse of trust under U.S.S.G. § 3B1.3, where Tat’s position as a manager at the bank gave her the discretion to carry out transactions like the one at issue here without oversight, and where her position of trust facilitated her role in the underlying offense. The court also found that the lower court did not improperly consider “cost” in dismissing Tat’s community-service proposal. The court vacated Tat’s sentence and remanded to the district court for resentencing consistent with this opinion.
Court Description: Criminal Law In a case stemming from Vivian Tat’s involvement in a money-laundering scheme, the panel vacated the sentence imposed at resentencing and remanded for resentencing.
The panel held that a criminal defendant’s failure to challenge specific aspects of her initial sentence on a prior appeal does not waive her right to challenge comparable aspects of a newly imposed sentence following de novo resentencing.
The panel held that the district court erred in applying an organizer/leader enhancement under U.S.S.G. § 3B1.1 for two reasons: (1) contrary to the district court’s suggestion, Tat’s status as a mere member of the criminal enterprise—even if she was an essential member—does not bear on whether she was an organizer, leader, manager, or supervisor of the criminal activity; and (2) the criminal conduct—a scheme to launder roughly $25,000 via a single transaction involving four participants and one victim—was not “otherwise extensive.” The panel held that the district court did not err in applying an enhancement for abuse of trust under U.S.S.G. § 3B1.3, where Tat’s position as a manager at the bank gave her the discretion to carry out transactions like the one at issue here without oversight, and where her position of trust facilitated her role in the underlying offense. The panel held that the district court did not improperly consider “cost” in dismissing Tat’s community-service proposal. The panel wrote that unlike the cost of imprisonment, which may not be considered, the cost of Tat’s proposed alternative to incarceration, and the lack of measurable goals and violations for probation to work with, are valid concerns that a district court may consider.
Because the panel remanded for resentencing, the panel did not need to reach Tat’s argument that the district court failed to resolve two factual disputes in violation of Fed. R. Crim. P. 32.
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