In United States v. Wang, --- F.3d ---, No. 17-10275 (9th Cir. 2019), on plain-error review, the Court vacated the defendant's sentences imposed 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.
This case demonstrates how tricky the Guidelines can be when the court holds a single sentencing hearing on two separate cases.
The issue on appeal was the district court's application of section 2B1.1 -- the offense
Guideline that covers general fraud offenses -- to the defendant's mail fraud conviction pursuant to 18 U.S.C. § 1341.
The Court held: "the district court erred by applying § 2B1.1
to calculate the offense level for Wang’s mail fraud count of
conviction. The allegations underlying this count
established an immigration visa fraud offense expressly
covered by § 2L2.1. Therefore, the district court should
have followed the § 2B1.1(c)(3) cross-reference and applied
§ 2L2.1."
In short, section 2B1.1contains a cross-reference directing the district court to apply another Guideline when, among other conditions, “the conduct set forth in the count of conviction establishes an offense specifically covered
by another guideline in Chapter Two."
Here, the conduct alleged in the indictment's mail fraud count established a visa fraud offense specifically
covered by § 2L2.1. Thus, the district court should have applied 2L2.1.
The Court went on to explain why the error was plain and required resentencing. It also detailed the proper method of determining whether to impose consecutive or concurrent time for multiple counts under U.S.S.G. § 5G1.2.
