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OVER-THINKING THE PROBLEM

Sometimes, a defense attorney’s best sentencing work is done before a plea deal is reached. By convincing the government to drop some counts and let the defendant plead to others, the Sentencing Guidelines can be leveraged – or played, depending on your point of view – to provide a sentencing outcome beneficial to a defendant.

A simple, elegant solution – that’s what Wei Lin’s lawyer thought he had. Wei 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). Wei’s attorney engineered a deal in which Wei pled guilty to the conspiracy count, which carried no mandatory minimum sentence, and the government dropped the substantive sex trafficking offenses, which carried 15-year mandatory minimums. Wei and his lawyer believed that this plea would give him a Guidelines base offense level of 14, instead of the 34 carried by the substantive counts.

Chef Tell would have approved: Very simple, very easy.

Well, maybe so, at least until the district court decided to mangle the application of the Guidelines. Notwithstanding the plain language of U.S.S.G. § 2G1.1(a)(1), the sentencing judge held that the base offense level for Wei’s crime would be remain at 34, and sentenced him to 235 months in prison.

Wei appealed, and on Monday, the 9th Circuit reversed his sentence.

U.S.S.G. § 2X1.1(a) provides that the base offense level for a conspiracy to commit sex trafficking is the same as the base offense level for the underlying substantive crime. 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, it’s 14. U.S.S.G. § 2G1.1(a)(2).

Sex trafficking under 18 U.S.C. § 1591(b)(1) is a lot like drug distribution under 21 U.S.C. Sec 841 – there’s only one crime, but many different penalties, depending on the facts of the case. For instance, if the sex crime includes fraud or coercion, a 15-year mandatory minimum applies. If the crime is merely conspiracy, no mandatory minimum applies. 18 U.S.C. § 1594(c). Wei’s underlying substantive crime involved fraud or coercion, but those counts were dropped.

Wei’s plea agreement and judgment said he was convicted of an 18 U.S.C. § 1594(c) conspiracy only. Nevertheless, the district court found that, for purposes of determining his base offense level, Win’s underlying offense of conviction was 18 U.S.C. § 1591(b)(1), because the conduct involved in the substantive offense would have been punished under § 1591(b)(1) if Wei had been convicted of the substantive offense. The 9th Circuit said that was right, but hardly relevant.

The Court of Appeals said the trial court had over-thought the issue. “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).” The judgment said Wei was convicted of a 1594(c) conspiracy. The Court observed that “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 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.”

The Circuit noted that the Sentencing Commission intended § 2G1.1(a)(1) to apply only when the defendant received a 15-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 15-year mandatory minimum in the Adam Walsh Act. The Court said that “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 15-year mandatory minimum sentence under 18 U.S.C. § 1591(b)(1).”

Wei was not, and his 235-month sentence thus had to be thrown out. His lawyer’s plea strategy was vindicated.

United States v. Lin, Case No. 15-10152 (9th Cir.  Nov. 14, 2016)