FILED
NOT FOR PUBLICATION
AUG 12 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50250
Plaintiff - Appellee, D.C. No. 2:12-cr-01085-CAS-1
v.
MEMORANDUM*
YONGDA HUANG HARRIS,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Submitted August 5, 2015**
Pasadena, California
Before: O’SCANNLAIN, SILVERMAN, and WARDLAW, Circuit Judges.
Yongda Huang Harris appeals his conviction and five-year sentence of
probation following his guilty plea to making false statements in a customs
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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declaration form, in violation of 18 U.S.C. § 1001. We have jurisdiction under 28
U.S.C. § 1291. We AFFIRM IN PART AND REMAND IN PART.
Harris may appeal his conviction despite indicating in his notice of appeal
that he was appealing his “sentence only” because both parties fully briefed the
matter. United States v. Littlefield, 105 F.3d 527, 528 (9th Cir. 1997) (per curiam);
United States v. Shin, 953 F.2d 559, 560-61 (9th Cir. 1992). Any difficulty the
government may have in re-prosecuting the case were we to reverse Harris’s
conviction is speculative and would not be caused by Harris’s omission. Nor is
this appeal barred by the appeal waiver in the plea agreement because the
agreement specifically preserves Harris’s right to appeal on the ground that his plea
was involuntary and the right to appeal the sentencing issues he now raises.
When Harris pled guilty to making a false statement, he was advised that it
is a crime to willfully make a false statement, to do so deliberately and with
knowledge that the statement is untrue. He was not specifically advised that the
government was also required to prove that he knew that making a knowing and
deliberately false customs declaration is illegal. Even assuming that Harris should
have been advised that the government had to prove that he knew that willfully
making a false statement is a crime, Harris did not show that he suffered any
prejudice as a result. There is no reason to believe that Harris, who was
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represented by counsel, did not know that it is a crime to make a false statement.
Nor is there any claim that he would not have pled guilty if he had been informed
by the court that “willfully” requires proof that he knew that lying on a customs
declaration is a crime. Thus, on plain error review, United States v. Anderson, 741
F.3d 938, 945-46 (9th Cir. 2013), we conclude that any error did not “affect[] the
outcome of the district court proceedings” or the “fairness, integrity or public
reputation of judicial proceedings,” United States v. Marcus, 560 U.S. 258, 262
(2010) (internal quotation marks omitted).
The district court was not required to credit the five months Harris spent in
pretrial detention toward his term of probation because, by its plain language, 18
U.S.C. § 3585(b)(1) only applies to sentences of imprisonment, not sentences of
probation. Given the items Harris was carrying in his luggage and the files found
on his laptop at the time he made the false statements on his customs declaration
form, the district court did not abuse its discretion in deciding that a five-year term
of probation was the appropriate sentence, despite the fact that Harris had spent
five months in pretrial detention. Pretrial detention is not a term of imprisonment
and therefore the five months Harris spent in pretrial detention does not cause
Harris’s sentence to exceed the statutory maximum or run afoul of 18 U.S.C. §
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3561(a)(3)’s prohibition on sentencing a defendant to both a term of probation and
a term of imprisonment.
Rather than meeting Harris’s arguments about the constitutionality of the
condition of probation prohibiting contact with minors unless Harris secures
advance permission from his probation officer, the government does not oppose a
remand to the district court for clarification of the condition as written to accord
with the discussion at sentencing. We therefore remand this aspect of Harris’s case
to the district court for clarification.
AFFIRMED IN PART AND REMANDED IN PART.