F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v.

W E I L I N , D efendant-Appellant. No. 15-10152

D.C. No. 1:12-cr-00012-RVM-1

OPI NI ON

A ppeal from the United States District Court for the District of the Northern Mariana I slands Ramona V. Mang lona, Chief J u dg e, Presiding

Arg ued and Submitted October 18, 2016

Honolulu, Hawaii

F iled November 14, 2016

B efore: J . Clifford W allace, J erome F arris, and Paul J . W atford, Circuit J udg es.
Opinion by

J udg e F arrisU N I T E D S T A T E S V

. L I

N 2

SUMMARY *

Crim inal Law

T h e panel vacated a sentence and remanded fo r

r esentencing in a case in w hich the defendant pled g ui l t y t o conspiracy to 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 lang uag e o f the Sentencing Guidelines, and the Sentencing Commiss ion’s commentary , all sho w t h at U.S.S.G. § 2G1.1(a)(1), which provides that the offense level for sex trafficking is 3 4 “if the offense of conviction is 18 U .S.C. § 1 591(b)(1),” only applies
t o d efendants w ho are subject to the fifteen-year mandator y minimum under 1 8 U.S.C. § 1591(b)(1). B ecause the defendant w as not subject to § 1591(b)(1)’s mandatory minimum, the panel c oncluded that the district c ourt erred in apply ing the base level of 34 set forth in § 2G1.1(a)(1), rather
t han the base offense level of 14, set forth in U.S. S

. G

. § 2G1.1(a)(2).

* T h is su m m ary co n stitu

tes n o p art o f th e o pin io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. L I

N 3

COUNSEL

B ruce B erline ( arg u e d), Saipan, Commonwealth of the Northern Mariana I slands, for Defendant-Appellant.

Garth R. B acke (arg

ued), Assistant United States Att o r n ey ; Alicia A.G. L imtiaco, United States Attorney ; United States Attorney ’s Office, Saipan, Commonwealth of t h e Northern Mariana I slands; for Plaintiff-Appellee.

OP INION

F ARRI S, Senior Circuit J u dg e:

Defendant W ei L in was c h ar g ed with conspiracy to commit sex trafficking
, in violation of 1 8 U.S.C. § 1594(c), and several counts of sex trafficking
, in violation of 18 U .S.C. § 1591(a). L in pled g uilty to the conspiracy c o u n t , which carried no mandatory minimum. See 18 U.S.C. § 1594(c). I n

ex c h a ng e , the substantive sex trafficking offen s e s, which

c arried fifteen-year mandatory minimums, were d ismissed

. See 15 U .S.C. § 1591(b)(1). A fte r the d istrict court made it clear that the base o ffense level for L in’s crime would be 34, L in mo v e d to withdraw his g uilty plea, based on his attorney ’s erroneous a dvice that his base offense level would be 14. The d istrict court denied L in’s motion, and sentenced L i n t o 235 months in prison. L in now appeals, and argu e s that: (1) the d istrict court erred i n determining his base offense level; ( 2) if the district court correctly determined his base offense level, then the court e rred in deny ing his motion
to w ithdraw h is g uilty p lea; and (3) the district court imposed

a substantively unreasonable sentence. W e have jurisdiction pursuant to 28 U.S.C. § § 1291, 1294 and 48 U.S.C. §§ 1821,U N I T E D S T A T E S V

. L I

N 4

1824. W e hold that the district c o ur t e rred in calculating L in’s base offense level, and w e rev e r se, vacate L in’s sentence, and remand for re-sentencing

. 1

W e review the district court’s interpretation of the

s e n t e ncing g uidelines de novo. U nited 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 th e b a s e o ffense level for the underly i n g substantive sex trafficking crime. See U.S.S.G. § 2X1.1(a). T he base offense level for se x t rafficking 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 s ep a r a t e offense. See United States v. Todd
, 627 F

. 3d 329, 3 34 ( 9th Cir. 2009). 18 U.S.C. § 1591(a) describes the offense of sex trafficking
, and § 1591(b) describes the d ifferent penalties a pplicable to convictions under § 1591(a). Id. 1 8 U

. S

. C

. § 1591(b)(1) im p o s es a f

ifteen-y ear mandatory minimum if the offense involved minors under the ag e o f fourteen, or force, threats o f force, fraud or coercion. L in’s u n derly ing substantive sex trafficking offen s e i n volved fraud or coercion, but the mandatory minimum in 18 U.S.C. § 159 1(b)(1) does not apply to c onspiracy to commit sex trafficking
, see 18 U .S.C.

1 T h i s d ecisio n m ak es Li n ’s g u ilty p lea w i th d raw al arg u m en t m o o t, sin ce L in o n ly w an ted t o w ith d raw h is g u i lty p lea b ecau se h is b ase o f f en s e lev el w as set at 3 4

. W e n eed n o t reach L in ’ s su b stan tiv e u n reaso n ab len ess arg u m en t, sin ce w e v a c a t e h i s s en ten ce b ased on th e b ase o f f en se lev el

erro r.U N I T E D S T A T E S V

. L I

N 5

§ 1594(c), so L in was not subject to the fifteen-ye a r mandatory

minimum.

According to L in’s p lea ag r eement and judg ment, L in was convicted of violating 18 U.S.C. § 1594(c). The substantive offense underly ing his conspiracy conviction was 18 U

. S.C. § 1591(a). The plea ag r eement and judg ment do not mention 18 U.S.C. § 1591(b)(1). Nevertheless, the district court f ound that, f or purposes of determining his base offense level, L in’s underly ing o ffense o f conviction was 18 U.S.C. § 1 5 91(b)(1), because the conduct involved in the u nderlying substantive offense would have been p u nished under § 1591(b)(1) if L in had been convicted of the substantive offense. W e disag ree.

The most straig htforwa r d interpretation of U.S.S.G. § 2G1.1(a)(1) i s that a base offense level of 34 applies only when the defendant is a ctually convicted of an offense subject
to the p unishment provided in 18 U.S.C. § 159 1 ( b ) ( 1 ). However, the district court rejected this i nterpretation o f U.S.S.G. § 2G1.1(a)(1). The d istrict court r e asoned that because 18 U.S.C. § 1591(b)(1) is not a separate offense, no

one can ever be convicted of vio lating 18 U .S.C. § 1 591(b)(1). See Todd
, 627 F

. 3d at 334. I n order for U.S.S.G. § 2G1.1(a)(1) to have any meaning
, then, it must require something o ther than a conviction for violating 18 U.S.C. § 1591(b)(1).

The di s t r ict court then found that L in’s “offense o f conviction” should be determined by looking at his offense conduct. Since L in’s underl y ing substantive offense was a vio l a tion of 18 U.S.C. § 1591(a) by means of fraud o r coercion, and since § 1591(b)(1) punishes violations o f § 1591(a) that are committed by means of fraud or coercion,U N I T E D S T A T E S V

. L I

N 6

t he district court concluded that L in’s offense of convict i o n was 18 U.S.C. § 1591(b)(1).

T h e district court stated that this interpretation w a s consistent w ith the defi n i t i o n of “offense of conviction” found in U.S.S.G. § 1B 1.2(a). B ut U.S.S.G. § 1 B 1.2(a) does
not g ive a g enera l d efinition for the term “offense o f conviction” to be applied throug hout the g uidelines. I nstead, it merely instructs courts o n w hat “offense of co n v iction”

means when “[ d] etermin[ ing ] the offense g uideline section

. . . a pplicable to the offens e of conviction.” U.S.S.G. § 1B 1.2(a). I n this contex t, a conduct-based definition makes perfect sense. Offense g uideline sections are not named with reference to specific statutes, althoug h App e n d i x A to the Sentencing Guidelines provi d e s an index matching c ertain
statutes to their corresponding g ui d e l ine sections. W h en try ing to determine w hich g u ideline sections a pp l y to which crimes, a court must naturally look at the offense conduct of
t h e crime. F or e x ample, in determining which offense
g uideline applies to a 18 U.S.C. § 1 591(a) conviction, a court must ne c e ssarily look a t the offense conduct involved, because there i s n o offense g uideline named “18 U .S.C. § 1591(a).”

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

a simple matching ex ercise can b e d o n e t o determine if the offense of convict i o n i s 18 U.S.C. § 1591(b)(1) – simply b y looking a t the judg ment. This i s not a situation where we must translate from state statutes to federal statutes, or from plain Eng lish names o f c r ime s to federal statutes. We a re trans l a ting from federal statutes to federal statutes. I t seems tortured to say that, when we know what federal statutes the defendant w as convicted of, a nd we are asked to determine if the defendant’s offense of convi c t i o n was a specific federalU N I T E D S T A T E S V

. L I

N 7

statute , we should b reak those statutes down into their offense conduct and then compare that conduct, as opposed to simply compari ng the federal statutes that we have on both sides o f the equation.

W ith reg ards to the arg ument that 18 U.S.C. § 1591(b)(1) describes a punishm e n t , a n d not an offense, there is a much simpler answer than the one g iven by the d i strict court. T o determine if 18 U.S.C. § 1591(b)(1) is the o ffense o f conviction, courts should sim p l y ask if the defendant was convicted of an offense subject to the p u nishment provided in 18 U.S.C. § 1 591(b)(1) – that is, was the defendant subject to the statute’s fifteen-year mandatory minimum sentence. This solution is not only simple, and as close to a literal reading o f U.S.S.G. § 2G1.1(a)(1) as possible without rendering the
g uideline meaning less, it i s a lso most likely what the Sentencing Commission intended.

F irst, it i s unlikely that the Sentencing Commission intended a

n offense conduct c omparis o n , because the Sentencing Co m m i s s ion k n ew how to require such a comparison ex plicitly
, a

n d did not do so. F or ex ample, later in the same g uideline section, U.S.S.G. § 2G1.1(c)(1) directs
courts to apply a

nothe r g uideline “[ i] f the offense involved conduct described in 18 U.S.C. § 2241(a)

. . .” I f the Sentencing Commission wanted § 2G1.1(a)(1) to a pply whenever the defen d a

n t ’s offense involved conduct described in 18 U.S.C. § 1591(b)(1), the Commission would have used the same lang uag e in § 2G1.1(a)(1) as it used in § 2G1.1(c)(1). The Commission’s choice not to use that lang uag e indicates that it was not their intention to require an offense conduct comparison.U N I T E D S T A T E S V

. L I

N 8

Second, the Commission likely intended § 2G1.1(a)(1) to apply o n l y w hen the defendant received a fifteen-ye ar mandatory minimum s e n tence, b ecause the hig her base offense level in § 2G1.1(a)(1) w as created in direct response to Cong r ess’s creation of the fifteen-year mandatory minimum. S

ee United States Sentencing Commission, Ame ndments to the Sentencing Guidelines 27 ( 2007) available at h t t p : / / w w w

. u s s c

. g o v/

L e g a l / A m e n d m e n t s / O

f f i c i a l

_ T e x t / 20070501_Amendments.pdf (“[ T] he Adam W alsh Act added

a new mandatory minimum

. . . o f 15 y ears under 18 U .S.C. § 1591(b)(1)

. . . I n response, the amendment provides a new base offense level of 34

. . . if the o ffense of conviction is 18 U.S.C. § 1591(b)(1), but retains a base offense level of 1 4 for

a l l other o ffenses

. ”). T h e Commission therefore likely d i d
not want the h ig her base of f e nse level to apply when the defendant w as n ot subject to § 1 5 9 1(b)(1)’s fifteen-ye ar mandatory

minimum.

I n sum, common sense, the plain lang uag e o f t h e g uidelines, and the Sentencing Commission’s com mentary , 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. § 1 591(b)(1). Since L in

was not subject to 18 U.S.C. § 1 591(b)(1)’s mandatory minimum, the district co u r t erred in apply ing § 2G1.1(a)(1)
to L in. This error was not harmless. See United States v

. Munoz-Camarena
, 631 F .3d 1028, 1030–31 (9th Cir. 2011). W e therefore reverse the district court’s base offense level determination
, v a cate L in’s sentence, and remand f or resentencing

.
REVERSED, VACATED, and REMANDED.