United States v. Yeh, Hsin-Yung

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 9, 2001 Decided January 29, 2002

No. 00-3092

United States of America,
Appellee

v.

Hsin-Yung Yeh, a/k/a Yeh Hsin Yung,
Appellant

No. 00-3093

United States of America,
Appellee

v.

Jian Zhou Li,
Appellant

---------

 No. 00-3094

United States of America,
Appellee

v.

Yuan Dian Wang,
Appellant

Appeals from the United States District Court
for the District of Columbia
(No. 99cr00425-01)
(No. 99cr00425-03)
(No. 99cr00425-04)

W. Gregg Spencer, Assistant Federal Public Defender, ar-
gued the cause for the appellants. A. J. Kramer, Federal
Public Defender, and Joanne Vasco and Michael J. McCar-
thy, appointed by the court, were on brief.

Susan A. Nellor, Assistant United States Attorney, argued
the cause for the appellee. Roscoe C. Howard Jr., United
States Attorney, and John R. Fisher, Joseph B. Valder and
Kenneth W. Cowgill, Assistant United States Attorneys, were
on brief.

Before: Henderson and Tatel, Circuit Judges, and
Silberman, Senior Circuit Judge.

Opinion for the court filed by Circuit Judge Henderson.

Karen LeCraft Henderson, Circuit Judge: Appellants
Hsin-Yung Yeh (Yeh), Yuan Dian Wang (Wang) and Jian
Zhou Li (Li) seek vacatur of their sentences and remand to
the district court for resentencing. In their joint brief, Yeh
and Wang offer one challenge each to their sentences and Li
challenges his sentence on two grounds.

 Yeh contends that the district court erred in applying to his
sentence a four-level enhancement pursuant to section
3B1.1(a) of the United States Sentencing Guidelines (U.S.S.G.
or Guidelines) as "an organizer or leader of a criminal activity
that involved five or more participants or was otherwise
extensive." Wang asserts that the court erred in imposing a
five-year mandatory minimum sentence of imprisonment un-
der 8 U.S.C. s 1324(a)(2)(B)(ii) for attempting to "bring[ ]
[three or more unauthorized] aliens" into the United States
"for the purpose of commercial advantage or private financial
gain." Li makes the same assertion as Wang and argues in
addition that the district court improperly applied a two-level
enhancement under U.S.S.G. s 2L1.1(b)(5) for "intentionally
or recklessly creating a substantial risk of death or serious
bodily injury to another person." Their contentions are
without merit and we therefore affirm the sentences of all
three.

I.

On December 6, 1999 a United States Coast Guard aircraft
sighted a freighter 400 miles south of Guatemala sailing
towards the Guatemala-El Salavador coast.1 The Coast
Guard Cutter MUNRO was called to investigate the vessel,
which had no apparent identification or markings. To no
avail, the MUNRO tried to communicate with the freighter.

On December 7 the MUNRO launched an inflatable boat,
the MUNRO 2, to approach the freighter and attempt com-
munications once again. Upon questioning, Yeh and Wang--
who were on the freighter's main deck--told Coast Guard
Petty Officer Andrew Ha, the MUNRO's Chinese interpreter,
that the vessel was named the Wing Fung Lung (WFL) and
that it was headed toward Panama with a load of plywood and
six crewmen aboard. When the Coast Guard asked to board
the WFL, Yeh refused. During this exchange, boarding team
members on the MUNRO 2 noticed numerous faces peering

__________
1 The following factual account is drawn largely from Wang and
Li's presentence reports. See generally Sealed App. of Appellee,
Tabs 1 and 2.

out of portholes beneath the WFL's main deck. Suspecting
that Yeh and Wang were smuggling aliens, the MUNRO
dropped back from the WFL to feign disinterest in the
vessel's activities in order to see if the WFL's crew would
permit the suspected aliens to appear on deck.

On December 9, lookouts aboard the MUNRO observed
red flares over the WFL and scores of people frantically
waving their arms on the WFL's deck. Recognizing the
flares as an international signal of distress, the MUNRO
launched both of its small boats with rescue and boarding
teams. Once aboard the WFL, the teams determined that
the vessel was flooding due to mechanical problems with the
engines. The boarding team counted over two hundred aliens
on the main deck. Coast Guard security officers identified
certain crew members they believed to be shipboard "enforc-
ers" and separated the fifteen to twenty enforcers from the
aliens to keep them from inciting the aliens to violence.
When the officers began handcuffing the enforcers, Yeh
refused to comply with directions. He struggled with the
officers and managed to seize a revolver from one of them.
Yeh shot at Officer Robert Borowczak but missed. Yeh was
then successfully restrained and handcuffed.

On deck, the Coast Guard found one life raft and only
twenty life jackets, enough for the enforcers, but not the
aliens, to escape the WFL in an emergency. Coast Guard
engineers determined that the engines were inoperable and
that the ship had to be towed to Guatemala. The Guatemalan
authorities granted the Coast Guard permission to tow the
WFL into port. During the tow, the Coast Guard provided
the aliens with much-needed food and medical attention, after
learning that they had been without food for over forty-eight
hours and without water for over twenty-four hours. The
WFL had only one small toilet area, which was reserved for
females. Most of the aliens had been forced to relieve
themselves in their sleeping areas. Rats and cockroaches
infested the sleeping quarters and food lockers. The aliens
were kept below deck during daylight hours and were only
infrequently allowed on deck for a few hours at night. When
questioned by the Coast Guard, they stated that their desti-

nation was the United States and that the cost of the trip was
$40,000 per person. The fee was to be paid off or worked off
upon arrival in the United States.

Appellant Yeh pleaded guilty to attempting to "bring[ ]
[unauthorized] aliens" into the United States for financial
gain, in violation of 8 U.S.C. s 1324(a)(2), to aiding and
abetting the same, in violation of 18 U.S.C. s 2, and to
assaulting a federal officer while armed, in violation of 18
U.S.C. s 111(a)(1), (b).

At Yeh's sentencing on September 14, 2000 the district
court stated that it believed a four-level enhancement under
U.S.S.G. s 3B1.1(a) was applicable. Wayne Justice, captain
of the MUNRO, testified that Officer Borowczak led the
MUNRO's boarding party and was given the task of deter-
mining who was in charge of the WFL. He stated that
Borowczak observed Yeh giving orders to the aliens to start
fires and jump ship. Borowczak himself testified that Yeh
was indeed the shipboard leader and that the other enforcers
did not make a move without Yeh's approval. Petty Officer
Ha testified that Yeh volunteered the location of the WFL's
documentation, knowledge that suggested Yeh's leadership
role. Finally, at Wang's earlier sentencing, Wang had testi-
fied that Yeh sailed the ship and possessed one of the two
satellite phones on the WFL. The district court concluded
from the foregoing testimony that there was sufficient evi-
dence to support a four-level enhancement under section
3B1.1(a) for Yeh's role as an "organizer or leader of a
criminal activity that involved five or more participants or
was otherwise extensive."

Appellant Wang pleaded guilty to attempting to "bring[ ]
[unauthorized] aliens" into the United States for financial
gain, in violation of 8 U.S.C. s 1324(a)(2), and to aiding and
abetting the same, in violation of 18 U.S.C. s 2. With the aid
of an interpreter, Wang stated that he had signed and
understood the plea agreement and that he understood his
possible prison term to be "not less than three years and up
to ten years for the first two aliens" and "not less than five

years and up to fifteen years for each of the third through the
two hundred[th] aliens." App. of Appellants, Tab B, at 9.

At his sentencing on August 25, 2000 Wang testified that he
had boarded the WFL as a passenger but that, as a fisher-
man, he was subsequently asked to pilot the WFL in ex-
change for a reduction in his $40,000 fee. Wang admitted
that he knew that bringing unauthorized aliens into the
United States was illegal and that by piloting the ship he was
helping to get the WFL to its ultimate destination.

Although Wang had earlier acknowledged the court's obli-
gation to impose a five-year minimum sentence on a defen-
dant who transports three or more aliens into the United
States for financial gain, he protested that he had attempted
to smuggle only himself. The district court concluded, how-
ever, that "legally" Wang was "helping with the enterprise" of
bringing other unauthorized aliens. Id., Tab C, at 37. The
court therefore sentenced Wang to the five-year mandatory
minimum sentence of imprisonment under 8 U.S.C.
s 1324(a)(2)(B)(ii).

Appellant Li pleaded guilty to attempting to "bring[ ] [un-
authorized] aliens" into the United States for financial gain, in
violation of 8 U.S.C. s 1324(a)(2), and to aiding and abetting
the same, in violation of 18 U.S.C. s 2. The district court
determined that Li had signed and understood the plea
agreement and that he understood his possible prison term to
be "not less than three years and up to ten years for each of
the first two aliens" and "not less than five years and up to
fifteen years for each of the 3rd [through] the 200th alien[s]."
App. of Appellee, Tab 2, at 11.

Li did not contest the government's assertions that he was
one of the chief "enforcer[s] on the boat" and that he bore the
responsibility "for keeping order, for keeping the aliens in
their places[,] ... for distributing food and water to them ...
[and for] permitt[ing] them to come up on top of the deck to
get air and to exercise." Id., Tab 2, at 18, 22. He also
admitted that he performed these tasks "to save a couple of
thousand dollars" of his $40,000 fare. App. of Appellants,
Tab D, at 64.

 The district court determined that by signing his plea
agreement, Li (like Wang) had acknowledged that the court
was obligated to impose a five-year minimum sentence be-
cause Li had aided and abetted in bringing three or more
unauthorized aliens into the United States for financial gain.
At Li's sentencing on August 29-30, 2000 the court also
concluded that at Li's hands the aliens had endured "a filthy
hold with terrible sanitation and inadequate food." Id., Tab
D, at 60. Because Li was responsible for "keeping order"
among the aliens and for "distributing food and water to
them," App. of Appellee, Tab 2, at 18, the district court added
a two-level enhancement under U.S.S.G. s 2L1.1(b)(5) for
"intentionally or recklessly creating a substantial risk of
death or serious bodily injury" to them.

II.

In reviewing the appellants' sentencing challenges, which
we address seriatim, we "accept the findings of fact of the
district court unless they are clearly erroneous" and "give due
deference to the district court's application of the [G]uidelines
to the facts." 18 U.S.C. s 3742(e); see also United States v.
McCoy, 242 F.3d 399, 403-04 (D.C. Cir.), cert. denied, 122
S. Ct. 166 (2001). We review issues of law de novo. See
McCoy, 242 F.3d at 404; United States v. Drew, 200 F.3d 871,
876 (D.C. Cir. 2000).

On three grounds, Appellant Yeh challenges the district
court's application of a four-level enhancement under U.S.S.G.
s 3B1.1(a) for his actions as an "organizer or leader of a
criminal activity that involved five or more participants or
was otherwise extensive." All three of his arguments are
without merit.

First, Yeh argues that "there was insufficient evidence of a
fifth participant"--besides Yeh, Wang, Li and their co-
defendant Lin Jian (who does not appeal here)--in the smug-
gling activity. Br. of Appellants at 7. This assertion has no
support in the record, which instead indicates the involvement
of at least five participants, if not more. Li testified at his
(Li's) sentencing hearing that three men named Ton Wei Ki,

"Little Japanese" and Da Sa supervised Li in his capacity as
an enforcer. Li stated that "it's no secret ... some of the
most culpable persons were not indicted in this case," includ-
ing Little Japanese. App. of Appellants, Tab D, at 28. He
also told the district court that Little Japanese was in charge
of security and ordered him to "help keep peace [in] the
bottom of the boat." Id. As the government points out, this
evidence is undisputed. At the very least, then, the district
court did not clearly err in finding as a fact that there were
five or more participants in the smuggling operation. Appli-
cation Note 1 to section 3B1.1 states that "[a] 'participant' is a
person who is criminally responsible for the commission of
the offense, but need not have been convicted." U.S.S.G.
Manual s 3B1.1 cmt. n.1 (2001). There can be no question on
this record that Little Japanese was at least as criminally
responsible as his subordinate, Li, was.2 Thus, Little Japa-
nese qualifies as a "participant" under section 3B1.1(a), bring-
ing the headcount to five.

Next, Yeh contends that even if the evidence supports a
finding of five or more participants, the four-level enhance-
ment under section 3B1.1(a) must nonetheless be set aside
because "the district court failed to identify [the fifth] partici-
pant." Br. of Appellants at 7 (emphasis added). He argues
that the enhancement "cannot apply unless the sentencing
court 'identifies a participant over whom the defendant exer-
cised managerial or organizational control.' " Id. at 8 (quot-
ing United States v. Luca, 183 F.3d 1018, 1024 (9th Cir.
1999)). Yeh's argument is unavailing. In United States v.
Sobin, 56 F.3d 1423 (D.C. Cir.), cert. denied, 516 U.S. 936
(1995), we held that a defendant who did not object at
sentencing to the district court's failure to make factual
findings to support a four-level enhancement under section
3B1.1(a) "waived his right to challenge the enhancement on
this ground." Sobin, 56 F.3d at 1428; cf. United States v.
Wider, 951 F.2d 1283, 1287 (D.C. Cir. 1991) (following "gener-
al rule ... that a federal appellate court does not consider an

__________
2 Li argued as much at his sentencing hearing. See App. of
Appellants, Tab D, at 27-29.

issue not passed upon below" (quoting Singleton v. Wulff, 428
U.S. 106, 120 (1976))). In such circumstances, "we are bound
to uphold the district court's enhancement if supported by the
record." Sobin, 56 F.3d at 1428. As we discussed supra, the
record supports the district court's finding of a fifth partici-
pant. Furthermore, as we have cautioned elsewhere, "it
would be both anomalous and inefficient to place [the appel-
lant] in a better position for having neglected to raise a
relevant [sentencing] argument" in district court, United
States v. Whren, 111 F.3d 956, 960 (D.C. Cir. 1997), cert.
denied, 522 U.S. 1119 (1998); had Yeh objected at sentencing
to the district court's omission, the court could easily have
cited back to him the five perpetrators--Yeh himself, Wang,
Li, Lin Jian and Little Japanese--thereby preempting Yeh's
"failure-to-identify" ground of appeal.

Finally, Yeh claims that the government failed to prove by
a preponderance of the evidence that he was an organizer or
leader of the smuggling activity. Once again, his contention
lacks merit. Abundant evidence supports the district court's
imposition of the four-level enhancement under section
3B1.1(a) for Yeh's role as an organizer or leader. First, at
his plea hearing, Yeh did not contest the government's asser-
tion that were it not for him, "the boat and the people would
not have made it to America." App. of Appellee, Tab 2, at 18,
22. Second, at Yeh's sentencing, his counsel conceded that
Yeh was "in charge of maintaining ... the operation of the
boat." App. of Appellants, Tab A, at 5. Third, Wang testi-
fied at his sentencing that Yeh "was in charge of the boat"
and that "[w]henever phone calls came in from Taiwan"
giving instructions about the smuggling scheme, "Yeh was the
one to receive it [sic]." Id., Tab C, at 29. Fourth, the fact
that Yeh denied the Coast Guard's request to board the WFL
suggests his authority to act on behalf of those aboard.
Fifth, Officer Borowczak testified that Yeh "was the one all
the other enforcers ... looked to before they made any move
at all." App. of Appellee, Tab 4, at 37. Sixth, Officer Ha's
testimony that Yeh told him (Ha) where to find the WFL's
documentation also suggests Yeh's responsibility for the en-
tire ship.

 Yeh points out that some of the evidence could lead to
conclusions other than the one the district court reached--
that he was an organizer or leader of the smuggling opera-
tion. For example, he observes that his knowledge of the
ship's documentation might merely "substantiate his role as
an engineer who had knowledge of ... the ship's engines."3
Br. of Appellants at 11. Nevertheless, because we "give due
deference to the district court's application of the [G]uidelines
to the facts," 18 U.S.C. s 3742(e), we cannot say that the
court erred in adding a four-level enhancement to Yeh's

__________
3 Yeh suggests that the facts of the Seventh Circuit's decision in
United States v. Parmelee, 42 F.3d 387 (7th Cir. 1994), cert. denied,
516 U.S. 813 (1995), are "strikingly similar to those in the instant
case." Br. of Appellants at 10. We disagree. In Parmelee, the
Seventh Circuit found that the district court had erroneously im-
posed a three-level enhancement for Parmelee's role as a "manager
or supervisor" in an alien smuggling ring. Parmelee, 42 F.3d at
395. According to the court's recital of the facts, Parmelee met
unauthorized Polish aliens at Grimsby Airpark, a rural airstrip
located just north of the United States-Canada border, whence he
flew them in a small Piper Cherokee airplane to DuPage County
Airport in West Chicago, Illinois. Id. at 389. From the airport,
Parmelee drove them to a prearranged rendezvous point in Chica-
go, where he delivered the aliens to one of his co-defendants,
Tadeusz Sobiecki. Id. In attempting to demonstrate Parmelee's
role as a "manager or supervisor," the government relied on his
"receipt of money from Sobiecki for his services, his purchase of a
beeper to inform Sobiecki of flight departures and arrivals, and his
upkeep and rental of the plane." Id. at 395. The court found,
however, that such activities might have been "merely inherent in
Parmelee's role as pilot and [did] not necessarily indicate that
Parmelee managed or supervised others." Id.

Contrary to Yeh's assertions, the facts here are in nowise similar
to Parmelee's. Unlike Yeh, Parmelee did not have (and could not
have had) aboard his small aircraft several "enforcers" who "were
responsible for keeping the aliens in their places" and "looked to
[him] before they made any move at all." Moreover, unlike the
months-long smuggling operation aboard the "slow boat [from]
China," which involved hundreds of aliens, the brief flight aboard

offense level for his role as "an organizer or leader of a
criminal activity that involved five or more participants or
was otherwise extensive." Accordingly, we affirm the en-
hancement.

Appellants Wang and Li both dispute the district court's
imposition of five-year mandatory minimum sentences of im-
prisonment under 8 U.S.C. s 1324(a)(2) for attempting to
bring three or more unauthorized aliens into the United
States "for the purpose of commercial advantage or private
financial gain." Their challenge fails.

Wang and Li claim that they were attempting to smuggle
themselves only into the United States, that each therefore
committed only one violation of the statute and that under
section 1324(a)(2) the three-year mandatory minimum for a
first violation applies.4 Their argument is countered by the
clearly expressed will of the Congress and the undisputed
facts of this case.

In 1996, the Congress amended section 1324(a)(2) in pass-
ing the Illegal Immigration Reform and Immigrant Responsi-
bility Act (IIRIRA). See IIRIRA of 1996, Pub. L. No.
104-21 208, 110 Stat. 3009-546. Before the amendment,
section 1324(a)(2) mandated that punishment be administered

__________
the Piper Cherokee, which involved only a handful of aliens, re-
quired less supervision.

4 Wang and Li also assert that "the penalty provisions of 8 U.S.C.
s 1324(a)(2)(B)(ii) are unconstitutionally vague and ambiguous" and
that "the rule of lenity should apply to all sentences imposed in this
case." Br. of Appellants at 13. We reject their "conclusory asser-
tions"--which occupy no more than one sentence of their brief--
because they are not properly before this court. See Wash. Legal
Clinic for the Homeless v. Barry, 107 F.3d 32, 39 (D.C. Cir. 1997)
(litigant did not properly raise issue by addressing it in "cursory
fashion" with only "bare-bones arguments" (quotation omitted));
see also Ry. Labor Executives' Ass'n v. United States R.R. Ret. Bd.,
749 F.2d 856, 859 n.6 (D.C. Cir. 1984) (declining to resolve question
"on the basis of briefing which consisted of only three sentences ...
and no discussion of the relevant statutory text ... or relevant case
law").

"for each transaction constituting a violation of this para-
graph, regardless of the number of aliens involved." See
United States v. Ortega-Torres, 174 F.3d 1199, 1201 (11th
Cir.) (quoting 8 U.S.C. s 1324(a)(2) (1996)) (emphasis added),
cert. denied, 528 U.S. 911 (1999). In section 203(d)--entitled
"Applying Certain Penalties on a Per Alien Basis"--the
IIRIRA deleted "for each transaction ... regardless of the
number of aliens involved" and replaced it with the current
phraseology, "for each alien in respect to whom a [smuggling]
violation ... occurs." Ortega-Torres, 174 F.3d at 1201 (quot-
ing IIRIRA, Pub. L. No. 104-208, 110 Stat. 3009-546,
3009-566) (emphasis added).

Like the Eleventh Circuit, we are of the opinion that "[i]n
changing the text of the statute, Congress clearly expressed
its intent that district courts determine the penalties for alien
smuggling offenses based on the number of aliens the defen-
dant[s] smuggled into the United States." Id. Both Wang
and Li admitted to conduct amounting to an attempt to bring
into the United States all 200 aliens aboard the WFL. Wang
acknowledged that he had piloted the WFL in exchange for a
reduction in his $40,000 fee. Li conceded that he was one of
the chief "enforcer[s] on the boat," App. of Appellee, Tab 2, at
18, 22, and that he acted in that capacity "to save a couple of
thousand dollars" of his $40,000 fare, App. of Appellants, Tab
D, at 64. Accordingly, we affirm the district court's imposi-
tion of five-year sentences upon Wang and Li.

Appellant Li also disputes the district court's application of
a two-level enhancement pursuant to U.S.S.G. s 2L1.1(b)(5)
for "intentionally or recklessly creating a substantial risk of
death or serious bodily injury" to the aliens aboard the WFL.
Because Li did not raise his section 2L1.1(b)(5) objection at
sentencing, we may reverse for "plain error" only, see United
States v. Dawson, 990 F.2d 1314, 1316 (D.C. Cir. 1993), that
is, error "so obvious and substantial or so serious and mani-
fest that it affects the very integrity of the trial process." Id.
(quotations omitted).

Li claims that he "had no control over the conditions
aboard the [WFL], ... was not responsible for [them] and

should not be held accountable for them." Br. of Appellants
at 15. His assertion disregards the record. Li admitted to
the district court that he was responsible--and received
compensation--"for keeping order, for keeping the aliens in
their places[,] ... for distributing food and water to them ...
[and for] permitt[ing] them to come up on top of the deck to
get air and to exercise." App. of Appellee, Tab 2, at 18, 22.
Notwithstanding Li's responsibilities, the aliens had suffered
without food or water for at least several hours by the time
the MUNRO arrived. This fact alone--to say nothing of the
appalling conditions below deck--is ample evidence that Li
"recklessly creat[ed] a substantial risk of ... serious bodily
injury" to the aliens he was paid to help bring into the United
States. The district court, therefore, committed no error,
plain or otherwise, in applying to Li's offense level a two-level
enhancement pursuant to section 2L1.1(b)(5).

For the foregoing reasons, the sentences of Yeh, Wang and
Li are

Affirmed.