FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

STEVEN WANG, AKA Shui 

Cheng Wang,

Defendant-Appellant.

Nos. 17-10275

 17-10277

D.C. Nos. 

1:10-cr-00085-FMTG-1

1:14-cr-00063-FMTG-1

OPINION

Appeals from the United States District Court

for the District of Guam

Frances Tydingco-Gatewood, Chief District Judge, 

Presiding

Argued and Submitted October 23, 2019

University of Hawaii at Manoa

Filed December 16, 2019

Before: SUSAN P. GRABER, MILAN D. SMITH, JR., 

and PAUL J. WATFORD, Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.
2 UNITED STATES V. WANG

SUMMARY*

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.

* This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
UNITED STATES V. WANG 3

COUNSEL

Gia Kim (argued), Deputy Federal Public Defender; Hilary 

Potashner, Federal Public Defender; Federal Public 

Defender’s Office, Los Angeles, California; for DefendantAppellant.

Stephen F. Leon Guerrero (argued), Assistant United States 

Attorney; Shawn N. Anderson, United States Attorney; 

Office of the United States Attorney, Districts of Guam and 

the Northern Mariana Islands, Hagatna, Guam; for PlaintiffAppellee.

OPINION

M. SMITH, Circuit Judge:

Defendant-Appellant Steven Wang (Wang) appeals his 

sentences imposed in two cases that the district court 

sentenced in the same hearing. In the first case, Wang 

pleaded guilty to mail fraud, visa fraud, money laundering, 

and willful failure to pay over tax. In the second case, Wang 

pleaded guilty to conspiracy to commit visa fraud. The key 

issue in these appeals is whether the district court properly 

calculated the offense level for Wang’s mail fraud 

conviction pursuant to the United States Sentencing 

Guidelines Manual (U.S.S.G. or the Guidelines).1 

1 The district court used the 2013 Guidelines to sentence Wang. 

Generally, we review a sentence based on the Guidelines in effect on the 

date of the defendant’s sentencing. See United States v. Cuevas-Lopez, 

934 F.3d 1056, 1058 n.1 (9th Cir. 2019) (citations omitted). However, 
4 UNITED STATES V. WANG

The district court applied § 2B1.1the offense 

Guideline that covers general fraud offensesto Wang’s 

mail fraud conviction pursuant to 18 U.S.C. § 1341. By 

applying § 2B1.1, the court ultimately calculated a 

Guidelines imprisonment range of 46 to 57 months. The 

court imposed a 57-month term in Wang’s first case, and a 

consecutive 57-month term in his second case, resulting in a 

total sentence of 114 months. Wang challenges the district 

court’s application of § 2B1.1 to his mail fraud conviction 

and the imposition of consecutive sentences.

We hold that 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. The district court’s error was plain, and it 

substantially affected the Guidelines range the court used to 

sentence Wang. We reverse and vacate Wang’s sentences, 

and remand for re-sentencing. 

the 2016 Guidelines version in effect at Wang’s sentencing permitted the 

district court to use the Guidelines version in effect on the date when 

Wang committed the underlying offenses to avoid ex post facto issues. 

See U.S.S.G. § 1B1.11(b)(1) (2016). Because the underlying offenses 

occurred severally while different Guidelines versions were in effect, the 

district court applied the 2013 Guidelines to all Wang’s offenses as the 

version in effect on the date of the latest offense. Id. § 1B1.11(b)(3) 

(2016). Thus, all Guidelines citations are to the 2013 version unless 

otherwise indicated.
UNITED STATES V. WANG 5

FACTUAL AND PROCEDURAL BACKGROUND

I. The Indictments and Guilty Pleas

Wang is a naturalized United States citizen and a Guam 

resident. Between July 2005 and October 2009, he 

defrauded the United States into issuing H-2B nonimmigrant

visas for 173 foreign construction workers in Guam. As part 

of his scheme, Wang knowingly mailed I-129 petitions to the 

United States Citizenship and Immigration Services 

(USCIS) with false statements made under oath. 

In 2011, a federal grand jury returned a 128-count 

superseding indictment against Wang. Wang pleaded guilty 

to one count each of mail fraud in violation of 18 U.S.C. 

§ 1341, visa fraud in violation of 18 U.S.C. § 1546(a), 

money laundering in violation of 18 U.S.C. § 1957, and 

willful failure to pay over tax in violation of 26 U.S.C. 

§ 7202. For sentencing purposes, he stipulated to the factual 

allegations for all similar counts in the superseding 

indictment. Wang also agreed to cooperate with federal law

enforcement, and the Government agreed to recommend a 

substantial assistance departure for his cooperation if 

warranted. The district court accepted Wang’s plea in 

February 2012. 

While he awaited sentencing in the first case, a federal 

grand jury indicted Wang in November 2014 for conspiracy 

to commit visa fraud and visa fraud. These charges stemmed 

from Wang’s attempt to secure an L-1 nonimmigrant visa 

between December 2012 and May 2014. Wang provided 

false employment information to the federal government in 

an I-129 petition. In August 2015, Wang pleaded guilty to 

one count of conspiracy to commit visa fraud. He again 

agreed to cooperate with federal law enforcement, and again 

the Government agreed to move for a below-Guidelines 
6 UNITED STATES V. WANG

sentence for his substantial assistance. The district court 

accepted this plea.

II. Sentencing

The district court sentenced Wang’s cases together at a 

June 2017 hearing using the Guidelines range that a 

probation officer (PO) calculated.2

At the hearing, the PO first grouped Wang’s offenses, 

placing the first case’s offenses into Group 1 and the second 

case’s offense into Group 2. The PO then calculated the 

offense level for each offense within each group. In relevant 

part, the PO calculated an offense level of 29 for Wang’s 

Group 1 mail fraud conviction by applying § 2B1.1. The PO 

calculated a base offense level of seven pursuant to 

§ 2B1.1(a)(1). The PO then added 20 levels pursuant to 

§ 2B1.1(b) as specific offense characteristics.3 As with all 

Wang’s convictions, the PO added two levels as a 

§ 3A1.1(b)(1) victim-related adjustment. Wang’s mail fraud 

conviction thus had the highest Group 1 offense level. His 

money laundering conviction had the next highest Group 1 

offense level of 23. The PO then computed a Group 2 

offense level of 11 for Wang’s visa fraud conspiracy 

conviction. 

2 Wang’s final pre-sentencing reports (PSRs) relied on the same 

Guidelines and made mostly identical calculations as the PO did at the 

hearing. Thus, we do not discuss the PSRs in greater detail.

3 The PO identified the following § 2B1.1(b) specific offense 

characteristics: (1) 14 levels pursuant to § 2B1.1(b)(1)(H) based on the 

district court’s finding that Wang received a $421,600 gain, (2) four

levels pursuant to § 2B1.1(b)(2)(B) for an offense involving 50 or more 

victims, and (3) two levels pursuant to § 2B1.1(b)(10)(B) because a 

substantial part of the scheme occurred outside the United States. 
UNITED STATES V. WANG 7

Comparing Wang’s grouped offenses, the PO calculated 

a total offense level of 29. Based on Wang’s Criminal 

History Category (I), the PO calculated a pre-departure 

Guidelines range of 87 to 108 months. Accounting for the 

six-level substantial assistance downward departure the 

district court had granted for Wang’s cooperation pursuant 

to § 5K1.1, the PO calculated Wang’s post-departure 

Guidelines range as 46 to 57 months for all counts. The 

district court imposed 57-month imprisonment terms in each 

of Wang’s cases, with the terms to run consecutively.4

Wang timely appealed. 

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291. We 

apply plain error review when a defendant raises a 

procedural objection to his sentence that he did not raise in 

the district court, like the objection that Wang raises to the 

application of § 2B1.1 to the mail fraud conviction.5 Puckett 

v. United States, 556 U.S. 129, 135 (2009); United States v. 

Campbell, 937 F.3d 1254, 1256 (9th Cir. 2019). “Plain error 

is (1) error, (2) that is plain, and (3) that affects substantial 

rights. If these three conditions are met, [we] may then 

exercise [our] discretion to grant relief if the error seriously 

4 The district court also sentenced Wang to three years of supervised 

release and ordered him to pay restitution in the total amount of 

$1,905,446.57. Wang does not challenge these aspects of his sentences 

on appeal.

5 Relying on United States v. Evans-Martinez, 611 F.3d 635, 642 

(9th Cir. 2010), Wang contends that we should review de novo because 

his challenge to the district court’s application of § 2B1.1 involves a pure 

question of law. “To the extent we have discretion not to apply plain 

error review, we decline to exercise that discretion in this instance.” 

United States v. Burgum, 633 F.3d 810, 812 n.2 (9th Cir. 2011). 
8 UNITED STATES V. WANG

affects the fairness, integrity, or public reputation of judicial 

proceedings.” United States v. Hammons, 558 F.3d 1100, 

1103 (9th Cir. 2009) (citations and internal quotation marks 

omitted). 

ANALYSIS

I. The District Court Erred by Applying § 2B1.1 

Instead of § 2L2.1 to Wang’s Mail Fraud Conviction 

Under the first prong of plain error review, we determine 

whether the district court erred. Wang objects that the 

district court erred by applying § 2B1.1 instead of § 2L2.1 to 

calculate the offense level for his mail fraud conviction 

under 18 U.S.C. § 1341.6 He argues that (1) the 

§ 2B1.1(c)(3) cross-reference and (2) its commentary, in 

light of our decision in United States v. Velez, 113 F.3d 1035 

(9th Cir. 1997), show error. 

The Guidelines are the “starting point and the initial 

benchmark for the sentencing process.” United States v. 

Bernardo, 818 F.3d 983, 985 (9th Cir. 2016) (citations and 

internal quotation marks omitted). For this reason, “[t]he 

district court must correctly calculate the recommended 

Guidelines sentence[.]” United States v. Hymas, 780 F.3d 

1285, 1292 (9th Cir. 2015) (citation omitted). 

6 We reject the Government’s suggestion that Wang affirmatively 

waived his objection. If a defendant has intentionally relinquished or 

abandoned an objection, we do not review for error, plain or otherwise. 

See United States v. Depue, 912 F.3d 1227, 1232 (9th Cir. 2019) (en

banc). We require “actual evidence” that the defendant knew of his 

rights and nevertheless chose to relinquish them. Id. at 1233. Wang’s 

failure to raise his objection to the district court is not actual evidence of 

intentional abandonment. Id. at 1233−34.
UNITED STATES V. WANG 9

The calculation error at issue here requires us to examine 

the Guidelines. “Our interpretation of the Guidelines ‘will 

most often begin and end with the text and structure of the 

[g]uidelines’ provisions’ themselves.” United States v. 

Cuevas-Lopez, 934 F.3d 1056, 1061 (9th Cir. 2019) (quoting 

United States v. Martinez, 870 F.3d 1163, 1166 (9th Cir. 

2017)). We also may consider commentary that interprets or 

explains a Guideline. Martinez, 870 F.3d at 1166. 

“[C]ommentary . . . is authoritative unless it . . . is 

inconsistent with, or a plainly erroneous reading of, that 

guideline.” Stinson v. United States, 508 U.S. 36, 38 (1993); 

United States v. Martin, 796 F.3d 1101, 1108 (9th Cir. 2015). 

We consider § 2B1.1(c)(3)’s text and commentary, and then 

address the Government’s response. 

A. The § 2B1.1(c)(3) Cross-Reference Text 

Section 2B1.1 is the offense Guideline that generally 

applies to an 18 U.S.C. § 1341 conviction like Wang’s mail 

fraud conviction. U.S.S.G. § 2B1.1; see also U.S.S.G. app. 

A (Statutory Index). Section 2B1.1, however, is subject to 

certain cross-references that are set forth after § 2B1.1’s 

general provisions. See U.S.S.G. § 2B1.1(c)(1)–(4). These 

cross-references instruct a court to calculate an offense level 

for a conviction using an offense Guideline other than 

§ 2B1.1 when certain requirements are satisfied. We focus 

on the § 2B1.1(c)(3) cross-reference.

Section 2B1.1(c)(3) contains three requirements. First, 

subdivisions 2B1.1(c)(1) and (c)(2)—references for offenses 

involving firearms, explosives, or arson type crimes—must 

not apply. U.S.S.G. § 2B1.1(c)(3)(A). Second, the 

conviction at issue must be “under a statute proscribing false, 

fictitious, or fraudulent statements or representations 

generally,” which expressly includes 18 U.S.C. § 1341. Id.

§ (c)(3)(B). Third, “the conduct set forth in the count of 
10 UNITED STATES V. WANG

conviction [must] establish[] an offense specifically covered 

by another guideline in Chapter Two[.]” Id. § (c)(3)(C). 

When these requirements are met, the cross-reference 

instructs a court to “apply that other guideline.” Id. 

We readily conclude that Wang’s mail fraud count of 

conviction met the first and second requirements. 

Subdivisions (c)(1) and (c)(2) did not apply to Wang’s mail 

fraud conviction, and his conviction was under a general 

fraud statute. 

Wang also satisfied the third requirement because his 

mail fraud count established a visa fraud offense specifically 

covered by § 2L2.1. To explain why this is so, we compare 

the superseding indictment’s mail fraud count with the 

elements of 18 U.S.C. § 1546(a). U.S.S.G. 

§ 2B1.1(c)(3)(C); see also United States v. Garcia, 590 F.3d 

308, 315 (5th Cir. 2009) (“[A] sentencing court may apply a 

cross-reference provision under U.S.S.G. § 2B1.1(c)(3) only 

if the application of that provision is supported by the 

conduct alleged in the indictment.”); United States v. Genao, 

343 F.3d 578, 583 (2d Cir. 2003) (holding that district court 

correctly declined to apply § 2B1.1(c)(3) because the 

indictment did not allege the exact elements of the crossreferenced offense).7 

A § 1546(a) offense requires that: the defendant 

(1) knowingly (2) made a false statement (3) that was 

material (4) and under oath (5) in an application required by 

7 We have endorsed this approach in two unpublished dispositions. 

See United States v. Davis, 304 F. App’x 473, 474 (9th Cir. 2008) 

(explaining that § 2B1.1(c)(3) “is limited to situations where the fraud 

charge proves all elements of another offense”); United States v. Kim, 95 

F. App’x 857, 861–62 (9th Cir. 2004) (considering application of 

§ 2B1.1(c)(3) based on the indictment’s allegations). 
UNITED STATES V. WANG 11

the immigration laws or immigration regulations. See 

18 U.S.C. § 1546(a); see also United States v. Chu, 5 F.3d 

1244, 1247 (9th Cir. 1993). Here, the Government alleged 

that Wang knowingly, and for the purpose of his fraudulent 

scheme, caused I-129 petitions with false statements made 

under penalty of perjury to be mailed to the USCIS. These 

false statements concerned employment information that 

federal regulations required a Guam-based employer to 

include in an I-129 petition for an H-2B nonimmigrant visa. 

See 8 C.F.R. § 214.2(h)(6). Wang falsely represented that 

his company would pay the Guam prevailing hourly wage to 

the foreign construction workers for whom he sought H-2B 

visas. These allegations established a § 1546(a) offense.

Section 2L2.1 specifically covered the § 1546(a) offense 

that Wang’s mail fraud count of conviction established. See 

U.S.S.G. § 2L2.1; U.S.S.G. app. A (Statutory Index). Thus, 

the district court should have followed the cross-reference 

and applied § 2L2.1 to this conviction. The court erred by 

failing to do so.

B. The § 2B1.1(c)(3) Cross-Reference Commentary

Wang also relies on § 2B1.1(c)(3)’s commentary and 

Velez to argue that the district court erred. We agree.

Section 2B1.1(c)(3)’s commentary explains that, in 

some instances, offenses involving fraudulent statements are 

prosecuted under a general fraud statute although a more 

specific statute covers the offense. U.S.S.G. § 2B1.1 cmt. 

n.16. Additionally, a defendant may be charged under 

“relatively broad statutes,” like 18 U.S.C. § 1341, “primarily 

as jurisdictional bases for prosecution of other offenses.” Id. 

Thus, “[s]ubsection (c)(3) provides a cross-reference to 

another [offense] guideline . . . in cases in which the 

defendant is convicted of a general fraud statute, and the 
12 UNITED STATES V. WANG

count of conviction establishes an offense involving 

fraudulent conduct that is more aptly covered by another 

guideline.” Id. 

We relied on similar commentary in Velez to find that a 

district court committed the same error that Wang claims 

here. In Velez, the defendant was convicted of several 

offenses that were part of a large-scale immigration fraud 

scheme. 113 F.3d at 1035–36. Velez sent hundreds of false 

immigration applications to the federal government, for 

which he charged applicants fees. Id. at 1036. The district 

court applied § 2F1.1, the then-applicable general fraud 

guideline, to calculate Velez’s offense level. Id. at 1037. 

The court added a 13-level loss enhancement to account for 

profit and sentenced Velez to a total of 75 months. Id. We 

found error, and thus reversed and vacated Velez’s 

sentences. Id. at 1037–39. 

We explained that § 2F1.1’s commentary directed a 

court to apply another offense Guideline when the 

indictment or information setting forth the count of 

conviction established an offense that another Guideline 

more aptly covered. Id. at 1037 (quoting U.S.S.G. § 2F1.1 

cmt. n.13). We determined that § 2L2.1 was “the more 

applicable guideline” because “[b]y its very title § 2L2.1 

concerns false statements relating to naturalization and 

immigration.” Id. at 1038. We also relied on § 2L2.1’s 

specific offense characteristics. In particular, we noted that 

§ 2L2.1(b)(1) accounts for profit from an immigration fraud 

offense and that § 2L2.1(b)(2) accounts for use of up to 100 

or more documents. Id. We therefore interpreted § 2L2.1’s 

“substantive language [to] appl[y] to large-scale 

conspiracies,” including those “involving fraudulent 

conduct in immigration matters[.]” Id. Although not 

dispositive, we noted the problems with applying § 2F1.1’s 
UNITED STATES V. WANG 13

loss level enhancement when the Government is the alleged 

victim of the defendant’s fraud. Id.

Velez reinforces our conclusion that the district court 

erred given § 2B1.1(c)(3)’s materially identical 

commentary. Although Wang pleaded guilty to mail fraud 

under a general fraud statute, immigration visa fraud was at 

the heart of the scheme underlying his conviction. For 

reasons Velez set forth, § 2L2.1 more aptly covered the 

conviction. Velez, 113 F.3d at 1038; see also United States 

v. Aragbaye, 234 F.3d 1101, 1105 (9th Cir. 2000), 

(concluding that district court properly applied the more 

specific §§ 2T1.4 and 2T1.9 tax fraud guidelines rather than 

the general fraud guideline because “the entire scheme was 

based on filing fraudulent tax returns”), superseded by 

statute on other grounds as recognized by United States v. 

McEnry, 659 F.3d 893, 899 n.8 (9th Cir. 2011). 

C. The Government’s Response

The Government concedes that Wang’s mail fraud count 

established an offense that § 2L2.1 specifically covered. 

Nevertheless, the Government responds that § 2B1.1(c)(3) 

does not apply to this case because Wang also pleaded guilty 

to money laundering and willful failure to pay over tax. The 

Government further contends that application note 3 to 

§ 1B1.5 is the “more applicable guideline,” which the 

district court did not err in applying. 

We fail to see how these other convictions or the district 

court’s treatment of them foreclose the error we find here. 

In a multi-count case, the district court must correctly 

calculate each conviction’s offense level. U.S.S.G. 

§ 1B1.1(a)(4); see also United States v. Cooper, 886 F.3d 

146, 156 (D.C. Cir. 2018) (explaining that a district court 

must “correctly calculat[e] the offense level for each 
14 UNITED STATES V. WANG

conviction”). Section 2B1.1(c)(3)’s text and commentary 

and our precedent show that the district court erred in 

calculating the offense level for Wang’s mail fraud 

conviction. Thus, we proceed to the next prong.

II. The District Court’s Error Was Plain

Next, we consider whether the district court’s error was 

plain. For error to be plain, “the legal error must be clear or 

obvious, rather than subject to reasonable dispute.” Puckett, 

556 U.S. at 135. “An error is plain if it is ‘contrary to the 

law at the time of appeal . . .’” United States v. Ameline, 409 

F.3d 1073, 1078 (9th Cir. 2005) (en banc) (quoting Johnson 

v. United States, 520 U.S. 461, 468 (1997)). An appellate 

case need not answer the precise question to show plain 

error. United States v. Joseph, 716 F.3d 1273, 1280 (9th Cir. 

2013). The clear text and structure of a statute or the 

Guidelines may also suffice to show plain error. Id. We find 

plain error for two reasons that largely follow from our error 

analysis. 

For one, the district court plainly erred based on 

§ 2B1.1’s structure and § 2B1.1(c)(3)’s clear text. 

Subsections (a) and (b) of § 2B1.1 set forth the means to 

calculate the offense level for an offense to which § 2B1.1 

applies in the first instance. U.S.S.G. § 2B1.1(a)–(b). 

Subsection (c), however, sets forth four cross-references that 

instruct a court to apply an offense Guideline other than 

§ 2B1.1 depending on the nature of the offense and the crossreference requirements. Id. § 2B1.1(c)(1)–(4). Section 

2B1.1’s structure demonstrates that although subsections (a) 

and (b) will generally apply to calculate the offense level for 

an offense that § 2B1.1 covers, the subsection (c) crossreferences may be a necessary component of the proper 

application of the Guideline. 
UNITED STATES V. WANG 15

Here, the district court relied on subsections (a) and (b) 

to calculate the offense level for Wang’s mail fraud 

conviction, ignoring the cross-references altogether. The 

district court’s failure to account for the cross-references was 

particularly inapt because the § 2B1.1(c)(3) cross-reference 

concerns convictions under a general fraud statute. 

Critically, Wang’s mail fraud conviction satisfied the 

§ 2B1.1(c)(3) cross-reference. Thus, pursuant to the crossreference’s clear text, application of § 2L2.1 was necessary 

to properly calculate the offense level for this conviction. 

Second, the district court’s application of § 2B1.1 to 

Wang’s mail fraud conviction contravened our precedent. 

Velez interpreted commentary to the general-fraud guideline 

to find error in a district court’s failure to apply § 2L2.1 to 

an offense concerning an immigration fraud scheme. See 

Velez, 113 F.3d at 1037–39. We note that at least one of our 

sister circuits found the same error and vacated a sentence 

for reasons similar to the ones we identified in Velez. United 

States v. Kuku, 129 F.3d 1435, 1439−41 (11th Cir. 1997). 

Although Velez did not consider the cross-reference, Velez

applies to § 2B1.1(c)(3)’s materially identical commentary. 

Thus, we conclude that the district court’s application of 

§ 2B1.1 rather than § 2L2.1 to Wang’s mail fraud conviction 

was contrary to law. 

III.The District Court’s Error Affected Wang’s 

Substantial Rights

We next consider whether the error affected Wang’s 

substantial rights. Ameline, 409 F.3d at 1078. Wang “must 

establish ‘that the probability of a different result is 

sufficient to undermine confidence in the outcome of the 

proceeding.’” Id. (quoting United States v. Dominguez 

Benitez, 542 U.S. 74, 83 (2004)). “[I]n the ordinary case a 

defendant will satisfy his burden to show prejudice by 
16 UNITED STATES V. WANG

pointing to the application of an incorrect, higher Guidelines 

range and the sentence he received thereunder.” MolinaMartinez v. United States, 136 S. Ct. 1338, 1347 (2016). 

Properly calculated, Wang’s mail fraud conviction has 

the same offense level—22—that the district court 

calculated for his visa fraud conviction. Wang correctly 

calculates an offense level of 20 for his mail fraud conviction 

pursuant to § 2L2.1. See U.S.S.G § 2L2.1(a) (setting a base 

offense level of 11), (b)(2)(C) (increasing nine levels for use 

of 100 or more documents). We add two levels given the 

district court’s unchallenged § 3A1.1(b)(1) victim-related 

adjustment. The resulting 22-offense level is significantly 

lower than the 29-offense level the district court calculated 

for Wang’s mail fraud conviction pursuant to § 2B1.1.

Although Wang focuses solely on the lower offense 

level, we must confirm whether his Guidelines range would 

likely be different as a result. The record shows that it would 

be. When § 2L2.1 is applied to Wang’s mail fraud 

conviction, the money laundering conviction would have the 

highest offense level of the Group 1 offenses at 23. This 

would become Wang’s Group 1 offense level.8 Compared 

8 Wang’s first case offenses would remain grouped. See U.S.S.G. 

§ 3D1.2(d) (instructing that a court should group offenses to which 

offense Guidelines § 2L2.1 (immigration fraud), § 2S1.1 (money 

laundering), § 2T1.6 (tax offenses) apply). The Group 1 offense level 

would remain 23 because Wang’s money laundering offense would 

produce the highest offense level. Id. § 3D1.3(b) (directing a court to 

apply the offense guideline that produces the highest offense level when 

the counts involve offenses of the same general type to which different 

guidelines apply).
UNITED STATES V. WANG 17

to the Group 2 offense level, Wang’s pre-departure total 

offense level would be 23. See U.S.S.G. § 3D1.4.9

Based on Wang’s Criminal History Category (I), his predeparture Guidelines range would be 46 to 57 months. See

U.S.S.G., ch. 5, Sentencing Table. Applying the six-level 

downward departure, Wang’s post-departure range would be 

24 to 30 months and thus the starting point for the sentencing 

on his counts of conviction. This range is well below the one 

that the district court calculated and used to impose the 

sentences in both Wang’s cases. Thus, we conclude that the 

district court’s error affected Wang’s substantial rights.

IV.The Error Seriously Affected the Fairness, Integrity, 

or Public Reputation of Judicial Proceedings

Finally, we must consider whether the district court’s 

error seriously affected the fairness, integrity, or public 

reputation of judicial proceedings, such that we may exercise 

our discretion to address the error. Joseph, 716 F.3d at 1281. 

“We have regularly deemed the fourth prong of the plain 

error standard to have been satisfied where . . . the sentencing 

court committed a legal error that may have increased the 

length of a defendant’s sentence.” United States v. Tapia, 

665 F.3d 1059, 1063 (9th Cir. 2011) (citations omitted). 

“[T]here is little reason not to correct plain sentencing errors 

when doing so is so simple a task[.]” Id. (quoting United 

States v. Castillo-Casiano, 198 F.3d 787, 792 (9th Cir. 

1999), as amended, 204 F.3d 1257 (9th Cir. 2000)). 

9 A total offense level of 23 would result because (1) Wang’s Group 

2 11-offense level would be nine levels less serious than Wang’s Group 

1 offense level, see U.S.S.G. § 3D1.4(c), and (2) his Group 1 offense 

level would represent only one unit, id. § 3D1.4(a). Thus, no additional 

levels would be added.
18 UNITED STATES V. WANG

Here, the district court used the high-end—57 months—

of the Guidelines range it erroneously calculated by applying 

§ 2B1.1 instead of § 2L2.1 to Wang’s mail fraud conviction. 

The court then imposed 57-month consecutive sentences in 

Wang’s first and second cases, resulting in a 114-month total 

sentence. For reasons we have already discussed, Wang’s 

Guidelines range is properly calculated as 24 to 30 months. 

We have no doubt that the plain error we have identified 

increased Wang’s sentences, and we will exercise our 

discretion to correct the error. 

V. The Application of § 5G1.2 to Wang’s Multiple 

Counts on Remand

In addition to challenging the district court’s application 

of § 2B1.1 instead of § 2L2.1 to his mail fraud conviction, 

Wang claims that the district court erred by failing to follow 

the procedure set forth in § 5G1.2 for imposing concurrent 

or consecutive sentences on multiple counts. Noticing the 

district court’s plain error in applying § 2B1.1 instead of 

§ 2L2.1 to Wang’s mail fraud conviction makes it 

unnecessary to address the specific § 5G1.2 errors Wang 

claims in the 114-month total sentence the district court 

imposed. See Velez, 113 F.3d at 1037; see also United 

States v. Doe, 705 F.3d 1134, 1154 (9th Cir. 2013) (“[T]he 

failure accurately to state the Guidelines range at the onset 

derailed the sentencing proceeding before it even began.”). 

Nevertheless, we believe it is prudent to account for the 

errors Wang claims by outlining how the district court 

generally should approach re-sentencing of Wang’s multiple 

counts on remand pursuant to § 5G1.2. See United States v. 

Williams, 291 F.3d 1180, 1192 (9th Cir. 2002) (“Section 

5G1.2 of the Sentencing Guidelines instructs the district 

court, in general, about when concurrent or consecutive 

sentences are appropriate when sentencing a defendant on 
UNITED STATES V. WANG 19

multiple counts.”), abrogated on other grounds by United 

States v. Gonzalez, 506 F.3d 940, 942 (9th Cir. 2007) (en 

banc).

For one, the district court should expressly identify the 

total punishment applicable to all Wang’s counts in 

accordance with the proper 24- to 30-month Guidelines 

range we have identified. See U.S.S.G. § 3D1.5; U.S.S.G. 

§ 5G1.2(b); see also United States v. Joetzki, 952 F.2d 1090, 

1097 (9th Cir. 1991) (explaining that a court uses the 

sentencing range that results from the combined offense 

level and criminal history category to select an appropriate 

sentence and the chosen sentence becomes the total 

punishment).10 Second, the district court should run 

concurrently the sentences on all counts of conviction—

across Wang’s first and second cases—if the sentence the 

district court imposes on the count carrying the highest 

statutory maximum is adequate to achieve the total 

punishment. See U.S.S.G. § 5G1.2(c); Joetzki, 952 F.2d at 

1097. Wang’s mail fraud conviction under 18 U.S.C. § 1341 

has the highest statutory maximum of 20 years. Third, if the 

district court imposes a sentence on Wang’s mail fraud 

conviction that is less than the total punishment the district 

court identifies, then the Guidelines permit the district court 

to impose a consecutive sentence on another count of 

conviction “only to the extent necessary to produce a 

combined sentence equal to the total punishment.” U.S.S.G. 

§ 5G1.2(d). 

10 Section 5G1.2(a) is inapplicable because Wang’s counts of 

conviction do not require consecutive terms of imprisonment. Thus, 

§ 5G1.2(b) applies to the sentencing of Wang’s multiple counts of 

conviction.
20 UNITED STATES V. WANG

We recognize that, notwithstanding the Guidelines 

range, the district court may vary a sentence based on its 

consideration of the factors set forth in 18 U.S.C. § 3553(a). 

See United States v. Carty, 520 F.3d 984, 991–92 (9th Cir. 

2008) (en banc). We further recognize that “the district court 

retains discretion under 18 U.S.C. § 3584(a) to sentence 

either concurrently or consecutively despite the guidelines.” 

United States v. Pedrioli, 931 F.2d 31, 32 (9th Cir. 1991) 

(citing United States v. Wills, 881 F.2d 823 (9th Cir. 1989)). 

We underscore, however, that the district court should start 

with the Guidelines and keep them in mind during Wang’s 

re-sentencing. Gall v. United States, 552 U.S. 38, 49 (2007); 

Cuevas-Lopez, 934 F.3d at 1058–59.

CONCLUSION

We hold that the district court plainly erred when it 

applied § 2B1.1 instead of § 2L2.1 to Wang’s mail fraud 

conviction. We reverse and vacate Wang’s sentences, and 

remand to the district court. We instruct the district court to 

apply § 2L2.1 to Wang’s mail fraud conviction and to 

appropriately re-sentence Wang in accordance with § 5G1.2.

SENTENCES REVERSED AND VACATED; 

REMANDED for re-sentencing with instructions.