19

- 734 United States v. Yang

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

AMENDED SUMMARY ORDER

R ULINGS BY SUMMARY ORDER D O NOT HAVE PRECEDENTIAL EFFECT
. C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ' S L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WIT H THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE ( WITH THE NOTATION " SUMMARY ORDER " ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL
.
At a stated term of the United Stat es Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 29 th day of July , two thousand twenty

- one

.
PRESENT: JOHN M. WALKER, JR. , PIERRE N. LEVAL, DENNY CHIN, Circuit Judges ,

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

UNITED STATES OF AMERICA , Appell ee ,

- v - 19

- 734

PAI YANG, Defendant

- Appell ant

.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

FOR APPELL EE : TIMOTHY V. CAPOZZI, Assistant United States Attorney ( Jonathan Rebold and Danielle R. Sassoon , Assistant United States Attorney s , on the brief ) , for Audre y Strauss , United States2 Attorney for the Southern District of New York , New York, New York

.

FOR DEFENDANT

- APPELLANT : DANIEL S. NOOTER, Washington, D.C.
Appeal from the United States District Court for the Southern District of

New York ( Wood , J .).

UP ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the d istrict c ourt is AFFIRMED

.
Defendant

- a ppellant Pai Yang appeals the district court ' s judgment

entered Ma rch 11 , 20 19 , following his guilty plea, convicting him of money laundering
in violation of 18 U.S.C. § 1956( a )(3)(A). The district court sentenced Yang principally to
70 months' imprisonment. On appeal, Yang argues that the district court erred in
accepting his guilt y plea because the magistrate judge erred in advising him on the

elements of the crime and the plea was not supported by a factual basis . He also

contends that his trial attorney provided ineffective assistance of counsel. We assume
the parties ' familiarity with the underlying facts, procedural history of the case, and
issues on appeal.
We review the district court's acceptance of a guilty plea for plain error
where, as here, the defendant did not raise any Rule 11 objections before the district

court. See United States v. Rodriguez , 725 F.3d 271, 276 (2d Cir. 2013); United States v.

Torrellas , 455 F.3d 96, 103 (2d Cir. 2006). To establish plain error, Yang must3 demonstrate that "(1) there was error, (2) the error was plain, (3) the error preju dicially
affected his substantial rights, and (4) the error seriously affected the fairness, integrity
or public reputation of judicial proceedings." United States v. Pattee , 820 F.3d 496, 505
(2d Cir. 2016) (internal quotation marks omitted) (quoting Uni ted States v. Youngs , 687
F.3d 56, 59 (2d Cir. 2012)). In the context of a Rule 11 challenge, a defendant's
substantial rights are affected only where there exists a "reasonable probability that, but
for the error, he would not have entered the plea." Un ited States v. Vaval , 404 F.3d 144,
151 (2d Cir. 2005) (internal quotation marks omitted) (quoting United States v.
Dominguez Benitez , 542 U.S. 74, 83 (2004)). The defendant must satisfy the plain

- error

test. See Greer v. United States , 141 S. Ct. 2090 , 2100 (2021) (applying plain

- error test to

review an error in defendant s ' plea colloqu ies ).

We affirm. First, although the magistrate judge did make an error in the
plea allocution , Yang's substantial rights were not affected . In describing the third

elem ent of the crime, the magistrate judge stated:

THE COURT: Do you understand that in order to establish your guilt at trial, the government would have to prove the following elements beyond a reasonable doubt:

. . . . Third, that you intended to promote the carrying on of the specified unlawful activity, that you intended to conceal or disguise the nature, location, source, ownership or the control of property believed to be the proceeds of a specified unlawful activity

.4 App'x at 31

- 32 (emphasis added). The highlighted language was not necessary, as Yang

was charged specifically with laundering narcotics proceeds with "the intent to promote
the carrying on of that specified unlawful activity," and not with concealing property.
App'x at 14. The addition al language was of no moment, however, as t he magistrate
judge c orrectly instructed Yang that the government had to prove intent to promote the
carrying on of the unlawful activity

. See United States v. Moore , 703 F.3d 562 , 570

- 71
(D.C. Cir. 2012) (affirming conviction, despite district court's error in allocution , on basis

that there was no substantial prejudice )

. Yang has not shown a reasonable probability

that, but for the err ant addition of the concealment language , he woul d not have
plea ded guilty

. See Torrellas , 455 F.3d at 105 ; s ee also United States v. Lloyd , 901 F.3d 111,

122 (2d Cir. 2018) ; Rodriguez , 725 F.3d at 276

. Indeed, he received significant benefits
from pleading guilty, including acceptance of responsibility credit, dismissal of the
conspiracy charge, and a limiting of the loss amount.
Second, Yang's contention that the record lacked a sufficient factual bas is
as to his intent to promote narcotics activity also fails. As noted above, a conviction for
promotional money laundering under 18 U.S.C. § 1956(a)(3)(A) requires more than an
intent to simply " conceal or disguise " the proceeds of the specified unlawful activity.
Cf. 18 U.S.C. § 1956(a)(3)(B). Instead, it requires " e vidence that the receipt and deposit

of laundered funds was made with the intent to promote the specified underlying
unlawful activity, be it, for example, by promoting continued illegal activity or by being5 essential to the completion of the scheme

. " See United States v. Thorn , 317 F.3d 107, 133
(2d Cir. 2003) (emphasis added). While we ackno wledge that, during his plea colloquy,
Yang stated only that he intended to " conceal " funds that were represented to be
proceeds of narcotics transactions, see App ' x 39

- 40, the record as a whole provides an
adequate factual basis for his plea.
Yang admit ted to laundering more than $250,000 of what he believed to be
drug proceeds. 1 Yang's contributions to the operation

-- multiple transfers of proceeds
to place them beyond government reach

-- were essential to the success and

continuation of what he beli eved to be a narcotics scheme

. See United States v.

Piervinanzi , 23 F.3d 670, 679 (2d Cir. 1994) (where defendant's actions were integral to
illegal scheme's success, defendant did "promote" underlying conduct)

. Moreover, in
making a factual

- basis determination, we are " not limited to considering statements
available at the time of the change of ple a. " Lloyd , 901 F.3d at 123

- 24. Nor are we
required " to rely solely on the defendant 's own admissions. " United States v. Maher , 108
F.3d 1513, 1524 (2d Cir. 1997) (permitting reliance on the government ' s factual proffers

1 It is of no significance that the money Yang laundered was provided to him as part of a government sting operation, such that Yang was not " in fact " promoting narcotics activity. The statute prohibits transactions involving property " represented to be " th e proceeds of specified unlawful activity. 18 U.S.C. § 1956(a)(3) (defining " represented " to include representations

" made by a law enforcement officer " )

. W e have held that a g overnment sting qualifies for a conviction under 18 U.S.C. § 1956(a)(3) when t he record shows that the defendant believed the funds were proceeds of an unlawful activity and acted with the requisite intent. See United States v. Nektalov , 461 F.3d 309, 314 (2d Cir. 2006).6 and the presentence report, when available). Accordingly, we may consider the

government ' s proffer at sentencing that Yang " held himself out as someone who had
contact to international narcotics, kilo weight traffickers, and offered to the agents if
they needed assistance having drugs mo ved, he could put them in touch with his
contacts throughout the world. " App ' x 67

- 68. Neither Yang nor his attorney disputed
these factual allegations, which support the reasonable inference that Yang intended to

" promote, " not merely " conceal, " what he believed to be the distribution of narcotics. As
Yang acknowledged at his sentencing, money laundering "[n]ot only . . . helps criminals
to legitimatize illegal proceeds, . . . it also helps furtherance of crime." App'x 63.
Third, as to Yang's ineffe ctive assistance claim, because the record in this
respect is not fully developed , we decline to hear the claim, leaving it to Yang to raise

the issue as part of a subsequent motion for relief pursuant to 28 U.S.C. § 2255

. See

United States v. DeLaura , 858 F.3d 738, 743 (2d Cir. 2017) ; accord United States v. Oladimeji , 463 F.3d 152, 154 (2d Cir. 2006) (where facts necessary for resolution of the
claim do not appear in the record, "our usual practice is not to consider the claim on the
direct appeal, but to leave it to the defendant to raise the claims on a petition for habeas
corpus under 28 U.S.C. § 2255" )

.

* * *7 We have considered Yang ' s remaining arguments and conclude they are

without merit. Accordingly, we AFFIRM the judgment of the district court

.
FOR THE COURT: Catherine O ' Hagan Wolfe, Clerk