FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

WEI LIN,

Defendant-Appellant.

No. 15-10152

D.C. No.

1:12-cr-00012-RVM-1

OPINION

Appeal from the United States District Court

for the District of the Northern Mariana Islands

Ramona V. Manglona, Chief Judge, Presiding

Argued and Submitted October 18, 2016

Honolulu, Hawaii

Filed November 14, 2016

Before: J. Clifford Wallace, Jerome Farris,

and Paul J. Watford, Circuit Judges.

Opinion by Judge Farris
2 UNITED STATES V. LIN

SUMMARY*

Criminal Law

The panel vacated a sentence and remanded for

resentencing in a case in which the defendant pled guilty to

conspiracyto commit sex trafficking in violation of 18 U.S.C.

§ 1594(c), which carries no mandatory minimum.

The panel held that common sense, the plain language of

the SentencingGuidelines, and the SentencingCommission’s

commentary, all show that U.S.S.G. § 2G1.1(a)(1), which

provides that the offense level for sex trafficking is 34 “if the

offense of conviction is 18 U.S.C. § 1591(b)(1),” only applies

to defendants who are subject to the fifteen-year mandatory

minimum under 18 U.S.C. § 1591(b)(1). Because the

defendant was not subject to § 1591(b)(1)’s mandatory

minimum, the panel concluded that the district court erred in

applying the base level of 34 set forth in § 2G1.1(a)(1), rather

than the base offense level of 14, set forth in U.S.S.G.

§ 2G1.1(a)(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. LIN 3

COUNSEL

Bruce Berline (argued), Saipan, Commonwealth of the

Northern Mariana Islands, for Defendant-Appellant.

Garth R. Backe (argued), Assistant United States Attorney;

Alicia A.G. Limtiaco, United States Attorney; United States

Attorney’s Office, Saipan, Commonwealth of the Northern

Mariana Islands; for Plaintiff-Appellee.

OPINION

FARRIS, Senior Circuit Judge:

Defendant Wei Lin was charged with conspiracy to

commit sex trafficking, in violation of 18 U.S.C. § 1594(c),

and several counts of sex trafficking, in violation of 18 U.S.C.

§ 1591(a). Lin pled guilty to the conspiracy count, which

carried no mandatoryminimum. See 18 U.S.C. § 1594(c). In

exchange, the substantive sex trafficking offenses, which

carried fifteen-year mandatory minimums, were dismissed. 

See 15 U.S.C. § 1591(b)(1). After the district court made it

clear that the base offense level for Lin’s crime would be 34,

Lin moved to withdraw his guilty plea, based on his

attorney’s erroneous advice that his base offense level would

be 14. The district court denied Lin’s motion, and sentenced

Lin to 235 months in prison. Lin now appeals, and argues

that: (1) the district court erred in determining his base

offense level; (2) if the district court correctly determined his

base offense level, then the court erred in denying his motion

to withdraw his guilty plea; and (3) the district court imposed

a substantively unreasonable sentence. We have jurisdiction

pursuant to 28 U.S.C. §§ 1291, 1294 and 48 U.S.C. §§ 1821,
4 UNITED STATES V. LIN

1824. We hold that the district court erred in calculating

Lin’s base offense level, and we reverse, vacate Lin’s

sentence, and remand for re-sentencing.

1

We review the district court’s interpretation of the

sentencing guidelines de novo. United States v. Rivera,

527 F.3d 891, 908 (9th Cir. 2008).

The base offense level for a conspiracy to commit sex

trafficking is the same as the base offense level for the

underlying substantive sex trafficking crime. See U.S.S.G.

§ 2X1.1(a). The base offense level for sex trafficking is 34

“if the offense of conviction is 18 U.S.C. § 1591(b)(1).” 

U.S.S.G. § 2G1.1(a)(1). Otherwise, the base offense level is

14. U.S.S.G. § 2G1.1(a)(2).

18 U.S.C. § 1591(b)(1) is not a separate offense. See

United States v. Todd, 627 F.3d 329, 334 (9th Cir. 2009). 

18 U.S.C. § 1591(a) describes the offense of sex trafficking,

and § 1591(b) describes the different penalties applicable to

convictions under § 1591(a). Id. 18 U.S.C. § 1591(b)(1)

imposes a fifteen-year mandatory minimum if the offense

involved minors under the age of fourteen, or force, threats of

force, fraud or coercion. Lin’s underlying substantive sex

trafficking offense involved fraud or coercion, but the

mandatory minimum in 18 U.S.C. § 1591(b)(1) does not

apply to conspiracy to commit sex trafficking, see 18 U.S.C.

1 This decision makes Lin’s guilty plea withdrawal argument moot,

since Lin only wanted to withdraw his guilty plea because his base offense

level was set at 34. We need not reach Lin’s substantive unreasonableness

argument, since we vacate his sentence based on the base offense level

error.
UNITED STATES V. LIN 5

§ 1594(c), so Lin was not subject to the fifteen-year

mandatory minimum.

According to Lin’s plea agreement and judgment, Lin was

convicted of violating 18 U.S.C. § 1594(c). The substantive

offense underlying his conspiracy conviction was 18 U.S.C.

§ 1591(a). The plea agreement and judgment do not mention

18 U.S.C. § 1591(b)(1). Nevertheless, the district court found

that, for purposes of determining his base offense level, Lin’s

underlying offense of conviction was 18 U.S.C. § 1591(b)(1),

because the conduct involved in the underlying substantive

offense would have been punished under § 1591(b)(1) if Lin

had been convicted of the substantive offense. We disagree.

The most straightforward interpretation of U.S.S.G.

§ 2G1.1(a)(1) is that a base offense level of 34 applies only

when the defendant is actually convicted of an offense subject

to the punishment provided in 18 U.S.C. § 1591(b)(1). 

However, the district court rejected this interpretation of

U.S.S.G. § 2G1.1(a)(1). The district court reasoned that

because 18 U.S.C. § 1591(b)(1) is not a separate offense, no

one can ever be convicted of violating 18 U.S.C.

§ 1591(b)(1). See Todd, 627 F.3d at 334. In order for

U.S.S.G. § 2G1.1(a)(1) to have any meaning, then, it must

require something other than a conviction for violating

18 U.S.C. § 1591(b)(1).

The district court then found that Lin’s “offense of

conviction” should be determined by looking at his offense

conduct. Since Lin’s underlying substantive offense was a

violation of 18 U.S.C. § 1591(a) by means of fraud or

coercion, and since § 1591(b)(1) punishes violations of

§ 1591(a) that are committed by means of fraud or coercion,
6 UNITED STATES V. LIN

the district court concluded that Lin’s offense of conviction

was 18 U.S.C. § 1591(b)(1).

The district court stated that this interpretation was

consistent with the definition of “offense of conviction”

found in U.S.S.G. § 1B1.2(a). But U.S.S.G. § 1B1.2(a) does

not give a general definition for the term “offense of

conviction” to be applied throughout the guidelines. Instead,

it merely instructs courts on what “offense of conviction”

means when “[d]etermin[ing] the offense guideline section

. . . applicable to the offense of conviction.” U.S.S.G.

§ 1B1.2(a). In this context, a conduct-based definition makes

perfect sense. Offense guideline sections are not named with

reference to specific statutes, although Appendix A to the

Sentencing Guidelines provides an index matching certain

statutes to their corresponding guideline sections. When

trying to determine which guideline sections apply to which

crimes, a court must naturally look at the offense conduct of

the crime. For example, in determining which offense

guideline applies to a 18 U.S.C. § 1591(a) conviction, a court

must necessarily look at the offense conduct involved,

because there is no offense guideline named “18 U.S.C.

§ 1591(a).”

However, the situation at hand is much different. Here,

a simple matching exercise can be done to determine if the

offense of conviction is 18 U.S.C. § 1591(b)(1) – simply by

looking at the judgment. This is not a situation where we

must translate from state statutes to federal statutes, or from

plain English names of crimes to federal statutes. We are

translating from federal statutes to federal statutes. It seems

tortured to say that, when we know what federal statutes the

defendant was convicted of, and we are asked to determine if

the defendant’s offense of conviction was a specific federal
UNITED STATES V. LIN 7

statute, we should break those statutes down into their offense

conduct and then compare that conduct, as opposed to simply

comparing the federal statutes that we have on both sides of

the equation.

With regards to the argument that 18 U.S.C. § 1591(b)(1)

describes a punishment, and not an offense, there is a much

simpler answer than the one given by the district court. To

determine if 18 U.S.C. § 1591(b)(1) is the offense of

conviction, courts should simply ask if the defendant was

convicted of an offense subject to the punishment provided in

18 U.S.C. § 1591(b)(1) – that is, was the defendant subject to

the statute’s fifteen-year mandatoryminimum sentence. This

solution is not only simple, and as close to a literal reading of

U.S.S.G. § 2G1.1(a)(1) as possible without rendering the

guideline meaningless, it is also most likely what the

Sentencing Commission intended.

First, it is unlikely that the Sentencing Commission

intended an offense conduct comparison, because the

Sentencing Commission knew how to require such a

comparison explicitly, and did not do so. For example, later

in the same guideline section, U.S.S.G. § 2G1.1(c)(1) directs

courts to apply another guideline “[i]f the offense involved

conduct described in 18 U.S.C. § 2241(a) . . .” If the

Sentencing Commission wanted § 2G1.1(a)(1) to apply

whenever the defendant’s offense involved conduct described

in 18 U.S.C. § 1591(b)(1), the Commission would have used

the same language in § 2G1.1(a)(1) as it used in

§ 2G1.1(c)(1). The Commission’s choice not to use that

language indicates that it was not their intention to require an

offense conduct comparison.
8 UNITED STATES V. LIN

Second, the Commission likely intended § 2G1.1(a)(1) to

apply only when the defendant received a fifteen-year

mandatory minimum sentence, because the higher base

offense level in § 2G1.1(a)(1) was created in direct response

to Congress’s creation of the fifteen-year mandatory

minimum. See United States Sentencing Commission, Ame

ndments to the Sentencing Guidelines 27 (2007) available at

http://www.ussc.gov/Legal/Amendments/Official_Text/

20070501_Amendments.pdf (“[T]he Adam Walsh Act added

a new mandatory minimum . . . of 15 years under 18 U.S.C.

§ 1591(b)(1) . . . In response, the amendment provides a new

base offense level of 34 . . . if the offense of conviction is 18

U.S.C. § 1591(b)(1), but retains a base offense level of 14 for

all other offenses.”). The Commission therefore likely did

not want the higher base offense level to apply when the

defendant was not subject to § 1591(b)(1)’s fifteen-year

mandatory minimum.

In sum, common sense, the plain language of the

guidelines, and the Sentencing Commission’s commentary,

all show that U.S.S.G. § 2G1.1(a)(1) only applies to

defendants who are subject to a fifteen-year mandatory

minimum sentence under 18 U.S.C. § 1591(b)(1). Since Lin

was not subject to 18 U.S.C. § 1591(b)(1)’s mandatory

minimum, the district court erred in applying § 2G1.1(a)(1)

to Lin. This error was not harmless. See United States v.

Munoz-Camarena, 631 F.3d 1028, 1030–31 (9th Cir. 2011). 

We therefore reverse the district court’s base offense level

determination, vacate Lin’s sentence, and remand for resentencing.

REVERSED, VACATED, and REMANDED.