United States v. Steven Wang

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, Nos. 17-10275
Plaintiff-Appellee, 17-10277

v. D.C. Nos.
1:10-cr-00085-FMTG-1
STEVEN WANG, AKA Shui 1:14-cr-00063-FMTG-1
Cheng Wang,
Defendant-Appellant. OPINION

Appeals from the United States District Court
for the District of Guam
Frances Tydingco-Gatewood, Chief District Judge,
Presiding

Argued and Submitted October 23, 2019
University of Hawaii at Manoa

Filed December 16, 2019

Before: SUSAN P. GRABER, MILAN D. SMITH, JR.,
and PAUL J. WATFORD, Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.
2 UNITED STATES V. WANG

SUMMARY *

Criminal Law

The panel reversed and vacated sentences imposed on
the defendant at the same hearing in two cases – one in which
the defendant pleaded guilty to mail fraud, visa fraud, money
laundering, and willful failure to pay over tax; the other in
which the defendant pleaded guilty to conspiracy to commit
visa fraud.

The panel held that because the defendant’s mail fraud
count established a visa fraud offense specifically covered
by U.S.S.G. § 2L2.1, the district court, in calculating the
offense level for the mail fraud count, erred by applying the
general-fraud Guideline, U.S.S.G. § 2B1.1, rather than
applying the visa fraud Guideline, § 2L2.1, pursuant to the
cross-reference set forth in U.S.S.G. § 2B1.1(c)(3).

The panel held that the error was plain, affected the
defendant’s substantial rights, and seriously affected the
fairness, integrity, or public reputation of judicial
proceedings.

Remanding for resentencing, the panel outlined how the
district court generally should approach re-sentencing of the
defendant’s multiple counts pursuant to U.S.S.G. § 5G1.2.

*
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. WANG 3

COUNSEL

Gia Kim (argued), Deputy Federal Public Defender; Hilary
Potashner, Federal Public Defender; Federal Public
Defender’s Office, Los Angeles, California; for Defendant-
Appellant.

Stephen F. Leon Guerrero (argued), Assistant United States
Attorney; Shawn N. Anderson, United States Attorney;
Office of the United States Attorney, Districts of Guam and
the Northern Mariana Islands, Hagatna, Guam; for Plaintiff-
Appellee.

OPINION

M. SMITH, Circuit Judge:

Defendant-Appellant Steven Wang (Wang) appeals his
sentences imposed in two cases that the district court
sentenced in the same hearing. In the first case, Wang
pleaded guilty to mail fraud, visa fraud, money laundering,
and willful failure to pay over tax. In the second case, Wang
pleaded guilty to conspiracy to commit visa fraud. The key
issue in these appeals is whether the district court properly
calculated the offense level for Wang’s mail fraud
conviction pursuant to the United States Sentencing
Guidelines Manual (U.S.S.G. or the Guidelines). 1

1
The district court used the 2013 Guidelines to sentence Wang.
Generally, we review a sentence based on the Guidelines in effect on the
date of the defendant’s sentencing. See United States v. Cuevas-Lopez,
934 F.3d 1056, 1058 n.1 (9th Cir. 2019) (citations omitted). However,
4 UNITED STATES V. WANG

The district court applied § 2B1.1the offense
Guideline that covers general fraud offensesto Wang’s
mail fraud conviction pursuant to 18 U.S.C. § 1341. By
applying § 2B1.1, the court ultimately calculated a
Guidelines imprisonment range of 46 to 57 months. The
court imposed a 57-month term in Wang’s first case, and a
consecutive 57-month term in his second case, resulting in a
total sentence of 114 months. Wang challenges the district
court’s application of § 2B1.1 to his mail fraud conviction
and the imposition of consecutive sentences.

We hold that the district court erred by applying § 2B1.1
to calculate the offense level for Wang’s mail fraud count of
conviction. The allegations underlying this count
established an immigration visa fraud offense expressly
covered by § 2L2.1. Therefore, the district court should
have followed the § 2B1.1(c)(3) cross-reference and applied
§ 2L2.1. The district court’s error was plain, and it
substantially affected the Guidelines range the court used to
sentence Wang. We reverse and vacate Wang’s sentences,
and remand for re-sentencing.

the 2016 Guidelines version in effect at Wang’s sentencing permitted the
district court to use the Guidelines version in effect on the date when
Wang committed the underlying offenses to avoid ex post facto issues.
See U.S.S.G. § 1B1.11(b)(1) (2016). Because the underlying offenses
occurred severally while different Guidelines versions were in effect, the
district court applied the 2013 Guidelines to all Wang’s offenses as the
version in effect on the date of the latest offense. Id. § 1B1.11(b)(3)
(2016). Thus, all Guidelines citations are to the 2013 version unless
otherwise indicated.
 UNITED STATES V. WANG 5

FACTUAL AND PROCEDURAL BACKGROUND

I. The Indictments and Guilty Pleas

Wang is a naturalized United States citizen and a Guam
resident. Between July 2005 and October 2009, he
defrauded the United States into issuing H-2B nonimmigrant
visas for 173 foreign construction workers in Guam. As part
of his scheme, Wang knowingly mailed I-129 petitions to the
United States Citizenship and Immigration Services
(USCIS) with false statements made under oath.

In 2011, a federal grand jury returned a 128-count
superseding indictment against Wang. Wang pleaded guilty
to one count each of mail fraud in violation of 18 U.S.C.
§ 1341, visa fraud in violation of 18 U.S.C. § 1546(a),
money laundering in violation of 18 U.S.C. § 1957, and
willful failure to pay over tax in violation of 26 U.S.C.
§ 7202. For sentencing purposes, he stipulated to the factual
allegations for all similar counts in the superseding
indictment. Wang also agreed to cooperate with federal law
enforcement, and the Government agreed to recommend a
substantial assistance departure for his cooperation if
warranted. The district court accepted Wang’s plea in
February 2012.

While he awaited sentencing in the first case, a federal
grand jury indicted Wang in November 2014 for conspiracy
to commit visa fraud and visa fraud. These charges stemmed
from Wang’s attempt to secure an L-1 nonimmigrant visa
between December 2012 and May 2014. Wang provided
false employment information to the federal government in
an I-129 petition. In August 2015, Wang pleaded guilty to
one count of conspiracy to commit visa fraud. He again
agreed to cooperate with federal law enforcement, and again
the Government agreed to move for a below-Guidelines
6 UNITED STATES V. WANG

sentence for his substantial assistance. The district court
accepted this plea.

II. Sentencing

The district court sentenced Wang’s cases together at a
June 2017 hearing using the Guidelines range that a
probation officer (PO) calculated. 2

At the hearing, the PO first grouped Wang’s offenses,
placing the first case’s offenses into Group 1 and the second
case’s offense into Group 2. The PO then calculated the
offense level for each offense within each group. In relevant
part, the PO calculated an offense level of 29 for Wang’s
Group 1 mail fraud conviction by applying § 2B1.1. The PO
calculated a base offense level of seven pursuant to
§ 2B1.1(a)(1). The PO then added 20 levels pursuant to
§ 2B1.1(b) as specific offense characteristics. 3 As with all
Wang’s convictions, the PO added two levels as a
§ 3A1.1(b)(1) victim-related adjustment. Wang’s mail fraud
conviction thus had the highest Group 1 offense level. His
money laundering conviction had the next highest Group 1
offense level of 23. The PO then computed a Group 2
offense level of 11 for Wang’s visa fraud conspiracy
conviction.

2
Wang’s final pre-sentencing reports (PSRs) relied on the same
Guidelines and made mostly identical calculations as the PO did at the
hearing. Thus, we do not discuss the PSRs in greater detail.
3
The PO identified the following § 2B1.1(b) specific offense
characteristics: (1) 14 levels pursuant to § 2B1.1(b)(1)(H) based on the
district court’s finding that Wang received a $421,600 gain, (2) four
levels pursuant to § 2B1.1(b)(2)(B) for an offense involving 50 or more
victims, and (3) two levels pursuant to § 2B1.1(b)(10)(B) because a
substantial part of the scheme occurred outside the United States.
 UNITED STATES V. WANG 7

Comparing Wang’s grouped offenses, the PO calculated
a total offense level of 29. Based on Wang’s Criminal
History Category (I), the PO calculated a pre-departure
Guidelines range of 87 to 108 months. Accounting for the
six-level substantial assistance downward departure the
district court had granted for Wang’s cooperation pursuant
to § 5K1.1, the PO calculated Wang’s post-departure
Guidelines range as 46 to 57 months for all counts. The
district court imposed 57-month imprisonment terms in each
of Wang’s cases, with the terms to run consecutively. 4
Wang timely appealed.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291. We
apply plain error review when a defendant raises a
procedural objection to his sentence that he did not raise in
the district court, like the objection that Wang raises to the
application of § 2B1.1 to the mail fraud conviction. 5 Puckett
v. United States, 556 U.S. 129, 135 (2009); United States v.
Campbell, 937 F.3d 1254, 1256 (9th Cir. 2019). “Plain error
is (1) error, (2) that is plain, and (3) that affects substantial
rights. If these three conditions are met, [we] may then
exercise [our] discretion to grant relief if the error seriously

4
The district court also sentenced Wang to three years of supervised
release and ordered him to pay restitution in the total amount of
$1,905,446.57. Wang does not challenge these aspects of his sentences
on appeal.
5
Relying on United States v. Evans-Martinez, 611 F.3d 635, 642
(9th Cir. 2010), Wang contends that we should review de novo because
his challenge to the district court’s application of § 2B1.1 involves a pure
question of law. “To the extent we have discretion not to apply plain
error review, we decline to exercise that discretion in this instance.”
United States v. Burgum, 633 F.3d 810, 812 n.2 (9th Cir. 2011).
8 UNITED STATES V. WANG

affects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Hammons, 558 F.3d 1100,
1103 (9th Cir. 2009) (citations and internal quotation marks
omitted).

ANALYSIS

I. The District Court Erred by Applying § 2B1.1
Instead of § 2L2.1 to Wang’s Mail Fraud Conviction

Under the first prong of plain error review, we determine
whether the district court erred. Wang objects that the
district court erred by applying § 2B1.1 instead of § 2L2.1 to
calculate the offense level for his mail fraud conviction
under 18 U.S.C. § 1341. 6 He argues that (1) the
§ 2B1.1(c)(3) cross-reference and (2) its commentary, in
light of our decision in United States v. Velez, 113 F.3d 1035
(9th Cir. 1997), show error.

The Guidelines are the “starting point and the initial
benchmark for the sentencing process.” United States v.
Bernardo, 818 F.3d 983, 985 (9th Cir. 2016) (citations and
internal quotation marks omitted). For this reason, “[t]he
district court must correctly calculate the recommended
Guidelines sentence[.]” United States v. Hymas, 780 F.3d
1285, 1292 (9th Cir. 2015) (citation omitted).

6
We reject the Government’s suggestion that Wang affirmatively
waived his objection. If a defendant has intentionally relinquished or
abandoned an objection, we do not review for error, plain or otherwise.
See United States v. Depue, 912 F.3d 1227, 1232 (9th Cir. 2019) (en
banc). We require “actual evidence” that the defendant knew of his
rights and nevertheless chose to relinquish them. Id. at 1233. Wang’s
failure to raise his objection to the district court is not actual evidence of
intentional abandonment. Id. at 1233−34.
 UNITED STATES V. WANG 9

The calculation error at issue here requires us to examine
the Guidelines. “Our interpretation of the Guidelines ‘will
most often begin and end with the text and structure of the
[g]uidelines’ provisions’ themselves.” United States v.
Cuevas-Lopez, 934 F.3d 1056, 1061 (9th Cir. 2019) (quoting
United States v. Martinez, 870 F.3d 1163, 1166 (9th Cir.
2017)). We also may consider commentary that interprets or
explains a Guideline. Martinez, 870 F.3d at 1166.
“[C]ommentary . . . is authoritative unless it . . . is
inconsistent with, or a plainly erroneous reading of, that
guideline.” Stinson v. United States, 508 U.S. 36, 38 (1993);
United States v. Martin, 796 F.3d 1101, 1108 (9th Cir. 2015).
We consider § 2B1.1(c)(3)’s text and commentary, and then
address the Government’s response.

A. The § 2B1.1(c)(3) Cross-Reference Text

Section 2B1.1 is the offense Guideline that generally
applies to an 18 U.S.C. § 1341 conviction like Wang’s mail
fraud conviction. U.S.S.G. § 2B1.1; see also U.S.S.G. app.
A (Statutory Index). Section 2B1.1, however, is subject to
certain cross-references that are set forth after § 2B1.1’s
general provisions. See U.S.S.G. § 2B1.1(c)(1)–(4). These
cross-references instruct a court to calculate an offense level
for a conviction using an offense Guideline other than
§ 2B1.1 when certain requirements are satisfied. We focus
on the § 2B1.1(c)(3) cross-reference.

Section 2B1.1(c)(3) contains three requirements. First,
subdivisions 2B1.1(c)(1) and (c)(2)—references for offenses
involving firearms, explosives, or arson type crimes—must
not apply. U.S.S.G. § 2B1.1(c)(3)(A). Second, the
conviction at issue must be “under a statute proscribing false,
fictitious, or fraudulent statements or representations
generally,” which expressly includes 18 U.S.C. § 1341. Id.
§ (c)(3)(B). Third, “the conduct set forth in the count of
10 UNITED STATES V. WANG

conviction [must] establish[] an offense specifically covered
by another guideline in Chapter Two[.]” Id. § (c)(3)(C).
When these requirements are met, the cross-reference
instructs a court to “apply that other guideline.” Id.

We readily conclude that Wang’s mail fraud count of
conviction met the first and second requirements.
Subdivisions (c)(1) and (c)(2) did not apply to Wang’s mail
fraud conviction, and his conviction was under a general
fraud statute.

Wang also satisfied the third requirement because his
mail fraud count established a visa fraud offense specifically
covered by § 2L2.1. To explain why this is so, we compare
the superseding indictment’s mail fraud count with the
elements of 18 U.S.C. § 1546(a). U.S.S.G.
§ 2B1.1(c)(3)(C); see also United States v. Garcia, 590 F.3d
308, 315 (5th Cir. 2009) (“[A] sentencing court may apply a
cross-reference provision under U.S.S.G. § 2B1.1(c)(3) only
if the application of that provision is supported by the
conduct alleged in the indictment.”); United States v. Genao,
343 F.3d 578, 583 (2d Cir. 2003) (holding that district court
correctly declined to apply § 2B1.1(c)(3) because the
indictment did not allege the exact elements of the cross-
referenced offense). 7

A § 1546(a) offense requires that: the defendant
(1) knowingly (2) made a false statement (3) that was
material (4) and under oath (5) in an application required by

7
We have endorsed this approach in two unpublished dispositions.
See United States v. Davis, 304 F. App’x 473, 474 (9th Cir. 2008)
(explaining that § 2B1.1(c)(3) “is limited to situations where the fraud
charge proves all elements of another offense”); United States v. Kim, 95
F. App’x 857, 861–62 (9th Cir. 2004) (considering application of
§ 2B1.1(c)(3) based on the indictment’s allegations).
 UNITED STATES V. WANG 11

the immigration laws or immigration regulations. See
18 U.S.C. § 1546(a); see also United States v. Chu, 5 F.3d
1244, 1247 (9th Cir. 1993). Here, the Government alleged
that Wang knowingly, and for the purpose of his fraudulent
scheme, caused I-129 petitions with false statements made
under penalty of perjury to be mailed to the USCIS. These
false statements concerned employment information that
federal regulations required a Guam-based employer to
include in an I-129 petition for an H-2B nonimmigrant visa.
See 8 C.F.R. § 214.2(h)(6). Wang falsely represented that
his company would pay the Guam prevailing hourly wage to
the foreign construction workers for whom he sought H-2B
visas. These allegations established a § 1546(a) offense.

Section 2L2.1 specifically covered the § 1546(a) offense
that Wang’s mail fraud count of conviction established. See
U.S.S.G. § 2L2.1; U.S.S.G. app. A (Statutory Index). Thus,
the district court should have followed the cross-reference
and applied § 2L2.1 to this conviction. The court erred by
failing to do so.

B. The § 2B1.1(c)(3) Cross-Reference Commentary

Wang also relies on § 2B1.1(c)(3)’s commentary and
Velez to argue that the district court erred. We agree.

Section 2B1.1(c)(3)’s commentary explains that, in
some instances, offenses involving fraudulent statements are
prosecuted under a general fraud statute although a more
specific statute covers the offense. U.S.S.G. § 2B1.1 cmt.
n.16. Additionally, a defendant may be charged under
“relatively broad statutes,” like 18 U.S.C. § 1341, “primarily
as jurisdictional bases for prosecution of other offenses.” Id.
Thus, “[s]ubsection (c)(3) provides a cross-reference to
another [offense] guideline . . . in cases in which the
defendant is convicted of a general fraud statute, and the
12 UNITED STATES V. WANG

count of conviction establishes an offense involving
fraudulent conduct that is more aptly covered by another
guideline.” Id.

We relied on similar commentary in Velez to find that a
district court committed the same error that Wang claims
here. In Velez, the defendant was convicted of several
offenses that were part of a large-scale immigration fraud
scheme. 113 F.3d at 1035–36. Velez sent hundreds of false
immigration applications to the federal government, for
which he charged applicants fees. Id. at 1036. The district
court applied § 2F1.1, the then-applicable general fraud
guideline, to calculate Velez’s offense level. Id. at 1037.
The court added a 13-level loss enhancement to account for
profit and sentenced Velez to a total of 75 months. Id. We
found error, and thus reversed and vacated Velez’s
sentences. Id. at 1037–39.

We explained that § 2F1.1’s commentary directed a
court to apply another offense Guideline when the
indictment or information setting forth the count of
conviction established an offense that another Guideline
more aptly covered. Id. at 1037 (quoting U.S.S.G. § 2F1.1
cmt. n.13). We determined that § 2L2.1 was “the more
applicable guideline” because “[b]y its very title § 2L2.1
concerns false statements relating to naturalization and
immigration.” Id. at 1038. We also relied on § 2L2.1’s
specific offense characteristics. In particular, we noted that
§ 2L2.1(b)(1) accounts for profit from an immigration fraud
offense and that § 2L2.1(b)(2) accounts for use of up to 100
or more documents. Id. We therefore interpreted § 2L2.1’s
“substantive language [to] appl[y] to large-scale
conspiracies,” including those “involving fraudulent
conduct in immigration matters[.]” Id. Although not
dispositive, we noted the problems with applying § 2F1.1’s
 UNITED STATES V. WANG 13

loss level enhancement when the Government is the alleged
victim of the defendant’s fraud. Id.

Velez reinforces our conclusion that the district court
erred given § 2B1.1(c)(3)’s materially identical
commentary. Although Wang pleaded guilty to mail fraud
under a general fraud statute, immigration visa fraud was at
the heart of the scheme underlying his conviction. For
reasons Velez set forth, § 2L2.1 more aptly covered the
conviction. Velez, 113 F.3d at 1038; see also United States
v. Aragbaye, 234 F.3d 1101, 1105 (9th Cir. 2000),
(concluding that district court properly applied the more
specific §§ 2T1.4 and 2T1.9 tax fraud guidelines rather than
the general fraud guideline because “the entire scheme was
based on filing fraudulent tax returns”), superseded by
statute on other grounds as recognized by United States v.
McEnry, 659 F.3d 893, 899 n.8 (9th Cir. 2011).

C. The Government’s Response

The Government concedes that Wang’s mail fraud count
established an offense that § 2L2.1 specifically covered.
Nevertheless, the Government responds that § 2B1.1(c)(3)
does not apply to this case because Wang also pleaded guilty
to money laundering and willful failure to pay over tax. The
Government further contends that application note 3 to
§ 1B1.5 is the “more applicable guideline,” which the
district court did not err in applying.

We fail to see how these other convictions or the district
court’s treatment of them foreclose the error we find here.
In a multi-count case, the district court must correctly
calculate each conviction’s offense level. U.S.S.G.
§ 1B1.1(a)(4); see also United States v. Cooper, 886 F.3d
146, 156 (D.C. Cir. 2018) (explaining that a district court
must “correctly calculat[e] the offense level for each
14 UNITED STATES V. WANG

conviction”). Section 2B1.1(c)(3)’s text and commentary
and our precedent show that the district court erred in
calculating the offense level for Wang’s mail fraud
conviction. Thus, we proceed to the next prong.

II. The District Court’s Error Was Plain

Next, we consider whether the district court’s error was
plain. For error to be plain, “the legal error must be clear or
obvious, rather than subject to reasonable dispute.” Puckett,
556 U.S. at 135. “An error is plain if it is ‘contrary to the
law at the time of appeal . . .’” United States v. Ameline, 409
F.3d 1073, 1078 (9th Cir. 2005) (en banc) (quoting Johnson
v. United States, 520 U.S. 461, 468 (1997)). An appellate
case need not answer the precise question to show plain
error. United States v. Joseph, 716 F.3d 1273, 1280 (9th Cir.
2013). The clear text and structure of a statute or the
Guidelines may also suffice to show plain error. Id. We find
plain error for two reasons that largely follow from our error
analysis.

For one, the district court plainly erred based on
§ 2B1.1’s structure and § 2B1.1(c)(3)’s clear text.
Subsections (a) and (b) of § 2B1.1 set forth the means to
calculate the offense level for an offense to which § 2B1.1
applies in the first instance. U.S.S.G. § 2B1.1(a)–(b).
Subsection (c), however, sets forth four cross-references that
instruct a court to apply an offense Guideline other than
§ 2B1.1 depending on the nature of the offense and the cross-
reference requirements. Id. § 2B1.1(c)(1)–(4). Section
2B1.1’s structure demonstrates that although subsections (a)
and (b) will generally apply to calculate the offense level for
an offense that § 2B1.1 covers, the subsection (c) cross-
references may be a necessary component of the proper
application of the Guideline.
 UNITED STATES V. WANG 15

Here, the district court relied on subsections (a) and (b)
to calculate the offense level for Wang’s mail fraud
conviction, ignoring the cross-references altogether. The
district court’s failure to account for the cross-references was
particularly inapt because the § 2B1.1(c)(3) cross-reference
concerns convictions under a general fraud statute.
Critically, Wang’s mail fraud conviction satisfied the
§ 2B1.1(c)(3) cross-reference. Thus, pursuant to the cross-
reference’s clear text, application of § 2L2.1 was necessary
to properly calculate the offense level for this conviction.

Second, the district court’s application of § 2B1.1 to
Wang’s mail fraud conviction contravened our precedent.
Velez interpreted commentary to the general-fraud guideline
to find error in a district court’s failure to apply § 2L2.1 to
an offense concerning an immigration fraud scheme. See
Velez, 113 F.3d at 1037–39. We note that at least one of our
sister circuits found the same error and vacated a sentence
for reasons similar to the ones we identified in Velez. United
States v. Kuku, 129 F.3d 1435, 1439−41 (11th Cir. 1997).
Although Velez did not consider the cross-reference, Velez
applies to § 2B1.1(c)(3)’s materially identical commentary.
Thus, we conclude that the district court’s application of
§ 2B1.1 rather than § 2L2.1 to Wang’s mail fraud conviction
was contrary to law.

III. The District Court’s Error Affected Wang’s
Substantial Rights

We next consider whether the error affected Wang’s
substantial rights. Ameline, 409 F.3d at 1078. Wang “must
establish ‘that the probability of a different result is
sufficient to undermine confidence in the outcome of the
proceeding.’” Id. (quoting United States v. Dominguez
Benitez, 542 U.S. 74, 83 (2004)). “[I]n the ordinary case a
defendant will satisfy his burden to show prejudice by
16 UNITED STATES V. WANG

pointing to the application of an incorrect, higher Guidelines
range and the sentence he received thereunder.” Molina-
Martinez v. United States, 136 S. Ct. 1338, 1347 (2016).

Properly calculated, Wang’s mail fraud conviction has
the same offense level—22—that the district court
calculated for his visa fraud conviction. Wang correctly
calculates an offense level of 20 for his mail fraud conviction
pursuant to § 2L2.1. See U.S.S.G § 2L2.1(a) (setting a base
offense level of 11), (b)(2)(C) (increasing nine levels for use
of 100 or more documents). We add two levels given the
district court’s unchallenged § 3A1.1(b)(1) victim-related
adjustment. The resulting 22-offense level is significantly
lower than the 29-offense level the district court calculated
for Wang’s mail fraud conviction pursuant to § 2B1.1.

Although Wang focuses solely on the lower offense
level, we must confirm whether his Guidelines range would
likely be different as a result. The record shows that it would
be. When § 2L2.1 is applied to Wang’s mail fraud
conviction, the money laundering conviction would have the
highest offense level of the Group 1 offenses at 23. This
would become Wang’s Group 1 offense level. 8 Compared

8
Wang’s first case offenses would remain grouped. See U.S.S.G.
§ 3D1.2(d) (instructing that a court should group offenses to which
offense Guidelines § 2L2.1 (immigration fraud), § 2S1.1 (money
laundering), § 2T1.6 (tax offenses) apply). The Group 1 offense level
would remain 23 because Wang’s money laundering offense would
produce the highest offense level. Id. § 3D1.3(b) (directing a court to
apply the offense guideline that produces the highest offense level when
the counts involve offenses of the same general type to which different
guidelines apply).
 UNITED STATES V. WANG 17

to the Group 2 offense level, Wang’s pre-departure total
offense level would be 23. See U.S.S.G. § 3D1.4. 9

Based on Wang’s Criminal History Category (I), his pre-
departure Guidelines range would be 46 to 57 months. See
U.S.S.G., ch. 5, Sentencing Table. Applying the six-level
downward departure, Wang’s post-departure range would be
24 to 30 months and thus the starting point for the sentencing
on his counts of conviction. This range is well below the one
that the district court calculated and used to impose the
sentences in both Wang’s cases. Thus, we conclude that the
district court’s error affected Wang’s substantial rights.

IV. The Error Seriously Affected the Fairness, Integrity,
or Public Reputation of Judicial Proceedings

Finally, we must consider whether the district court’s
error seriously affected the fairness, integrity, or public
reputation of judicial proceedings, such that we may exercise
our discretion to address the error. Joseph, 716 F.3d at 1281.
“We have regularly deemed the fourth prong of the plain
error standard to have been satisfied where . . . the sentencing
court committed a legal error that may have increased the
length of a defendant’s sentence.” United States v. Tapia,
665 F.3d 1059, 1063 (9th Cir. 2011) (citations omitted).
“[T]here is little reason not to correct plain sentencing errors
when doing so is so simple a task[.]” Id. (quoting United
States v. Castillo-Casiano, 198 F.3d 787, 792 (9th Cir.
1999), as amended, 204 F.3d 1257 (9th Cir. 2000)).

9
A total offense level of 23 would result because (1) Wang’s Group
2 11-offense level would be nine levels less serious than Wang’s Group
1 offense level, see U.S.S.G. § 3D1.4(c), and (2) his Group 1 offense
level would represent only one unit, id. § 3D1.4(a). Thus, no additional
levels would be added.
18 UNITED STATES V. WANG

Here, the district court used the high-end—57 months—
of the Guidelines range it erroneously calculated by applying
§ 2B1.1 instead of § 2L2.1 to Wang’s mail fraud conviction.
The court then imposed 57-month consecutive sentences in
Wang’s first and second cases, resulting in a 114-month total
sentence. For reasons we have already discussed, Wang’s
Guidelines range is properly calculated as 24 to 30 months.
We have no doubt that the plain error we have identified
increased Wang’s sentences, and we will exercise our
discretion to correct the error.

V. The Application of § 5G1.2 to Wang’s Multiple
Counts on Remand

In addition to challenging the district court’s application
of § 2B1.1 instead of § 2L2.1 to his mail fraud conviction,
Wang claims that the district court erred by failing to follow
the procedure set forth in § 5G1.2 for imposing concurrent
or consecutive sentences on multiple counts. Noticing the
district court’s plain error in applying § 2B1.1 instead of
§ 2L2.1 to Wang’s mail fraud conviction makes it
unnecessary to address the specific § 5G1.2 errors Wang
claims in the 114-month total sentence the district court
imposed. See Velez, 113 F.3d at 1037; see also United
States v. Doe, 705 F.3d 1134, 1154 (9th Cir. 2013) (“[T]he
failure accurately to state the Guidelines range at the onset
derailed the sentencing proceeding before it even began.”).

Nevertheless, we believe it is prudent to account for the
errors Wang claims by outlining how the district court
generally should approach re-sentencing of Wang’s multiple
counts on remand pursuant to § 5G1.2. See United States v.
Williams, 291 F.3d 1180, 1192 (9th Cir. 2002) (“Section
5G1.2 of the Sentencing Guidelines instructs the district
court, in general, about when concurrent or consecutive
sentences are appropriate when sentencing a defendant on
 UNITED STATES V. WANG 19

multiple counts.”), abrogated on other grounds by United
States v. Gonzalez, 506 F.3d 940, 942 (9th Cir. 2007) (en
banc).

For one, the district court should expressly identify the
total punishment applicable to all Wang’s counts in
accordance with the proper 24- to 30-month Guidelines
range we have identified. See U.S.S.G. § 3D1.5; U.S.S.G.
§ 5G1.2(b); see also United States v. Joetzki, 952 F.2d 1090,
1097 (9th Cir. 1991) (explaining that a court uses the
sentencing range that results from the combined offense
level and criminal history category to select an appropriate
sentence and the chosen sentence becomes the total
punishment). 10 Second, the district court should run
concurrently the sentences on all counts of conviction—
across Wang’s first and second cases—if the sentence the
district court imposes on the count carrying the highest
statutory maximum is adequate to achieve the total
punishment. See U.S.S.G. § 5G1.2(c); Joetzki, 952 F.2d at
1097. Wang’s mail fraud conviction under 18 U.S.C. § 1341
has the highest statutory maximum of 20 years. Third, if the
district court imposes a sentence on Wang’s mail fraud
conviction that is less than the total punishment the district
court identifies, then the Guidelines permit the district court
to impose a consecutive sentence on another count of
conviction “only to the extent necessary to produce a
combined sentence equal to the total punishment.” U.S.S.G.
§ 5G1.2(d).

10
Section 5G1.2(a) is inapplicable because Wang’s counts of
conviction do not require consecutive terms of imprisonment. Thus,
§ 5G1.2(b) applies to the sentencing of Wang’s multiple counts of
conviction.
20 UNITED STATES V. WANG

We recognize that, notwithstanding the Guidelines
range, the district court may vary a sentence based on its
consideration of the factors set forth in 18 U.S.C. § 3553(a).
See United States v. Carty, 520 F.3d 984, 991–92 (9th Cir.
2008) (en banc). We further recognize that “the district court
retains discretion under 18 U.S.C. § 3584(a) to sentence
either concurrently or consecutively despite the guidelines.”
United States v. Pedrioli, 931 F.2d 31, 32 (9th Cir. 1991)
(citing United States v. Wills, 881 F.2d 823 (9th Cir. 1989)).
We underscore, however, that the district court should start
with the Guidelines and keep them in mind during Wang’s
re-sentencing. Gall v. United States, 552 U.S. 38, 49 (2007);
Cuevas-Lopez, 934 F.3d at 1058–59.

CONCLUSION

We hold that the district court plainly erred when it
applied § 2B1.1 instead of § 2L2.1 to Wang’s mail fraud
conviction. We reverse and vacate Wang’s sentences, and
remand to the district court. We instruct the district court to
apply § 2L2.1 to Wang’s mail fraud conviction and to
appropriately re-sentence Wang in accordance with § 5G1.2.

SENTENCES REVERSED AND VACATED;
REMANDED for re-sentencing with instructions.