FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA , No. 11-50237
Plaintiff-Appellee,
D.C. No.
v. 3:10-cr-03099-
JAH-1
ARTURO HUIZAR-VELAZQUEZ,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Argued and Submitted
October 11, 2012—Pasadena, California
Filed July 2, 2013
Before: Andrew J. Kleinfeld and M. Margaret McKeown,
Circuit Judges, and Gordon J. Quist, District Judge.*
Opinion by Judge Kleinfeld
*
The Honorable Gordon J. Quist, District Judge for the United States
District Court for the W estern District of Michigan, sitting by designation.
2 UNITED STATES V . HUIZAR-VELAZQUEZ
SUMMARY**
Criminal Law
Vacating a sentence imposed for importing wire hangers
without paying the proper duties and remanding, the panel
held that the district court erred by applying U.S.S.G. § 2C1.1
(bribery) rather than U.S.S.G. § 2T3.1 (smuggling).
Regarding amount of loss, the panel left to the district
court on remand the question of which duty rates apply to
which hangers under the proper sentencing guideline. The
panel emphasized that the district court cannot merely defer
to the government expert witness’s calculation.
COUNSEL
Kenneth J. Troiano (argued), San Diego, California, for
Defendant-Appellant.
Timothy C. Perry (argued), Assistant United States Attorney,
San Diego, California, for Plaintiff-Appellee.
**
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 . HUIZAR-VELAZQUEZ 3
OPINION
KLEINFELD, Senior Circuit Judge:
We address sentencing issues relating to evasion of
duties.
FACTS
Arturo Huizar-Velazquez pleaded guilty to importing wire
hangers without paying the proper duties. In 2008, the United
States imposed antidumping duties on Chinese steel wire
hangers to combat perceived “dumping”1 in the United States.
Wire hangers from exporters who did not apply for and
receive separate rates were subject to a “PRC-Wide” rate of
187.25 percent.2 Huizar-Velazquez evaded these duties by
purchasing hangers in China, importing them to the United
States for shipment to Mexico, and then repackaging the
hangers in Mexico and stamping them “Made in Mexico” so
that he could then sell them duty-free in the United States,
under the North American Free Trade Agreement.
The 55-count indictment alleged, inter alia, conspiracy to
defraud the United States by interference with governmental
functions3 and entry of goods by means of false statements.4
1
“Dumping” is “the sale or likely sale of goods at less than fair value.”
19 U.S.C. § 1677(34).
2
73 Fed. Reg. 47,587, 47,591 (Aug. 14, 2008); 73 Fed. Reg. 53,188,
53,189 (Sept. 15, 2008).
3
18 U.S.C. § 371.
4
18 U.S.C. § 542.
4 UNITED STATES V . HUIZAR-VELAZQUEZ
The district court applied Sentencing Guidelines § 2C1.1 and
accepted the government’s position that Huizar-Velazquez
illegally avoided approximately $3.5 million in tax and
interest. The district court sentenced Huizar-Velazquez to 70
months’ imprisonment and ordered roughly $3.5 million in
restitution and forfeiture of $4.2 million.
ANALYSIS
1. Choice of Guideline
The district court applied Sentencing Guidelines § 2C1.1,
entitled “Offering, Giving, Soliciting, or Receiving a Bribe;
Extortion Under Color of Official Right; Fraud Involving the
Deprivation of the Intangible Right to Honest Services of
Public Officials; Conspiracy to Defraud by Interference with
Governmental Functions.”5 This was the wrong guideline to
apply.6 The official commentary to § 2C1.1 generally
addresses corruption of government officials, not evasion of
import duties by smugglers trying to fool rather than corrupt
government officials. The only remark in the commentary
that, taken out of context, might seem to support the
government is “Section 2C1.1 also applies to fraud involving
the deprivation of the intangible right to honest services of
government officials . . . and conspiracy to defraud by
5
U.S.S.G. § 2C1.1 (emphasis added).
6
W e have previously “noted ‘an intracircuit conflict as to whether the
standard of review for application of the Guidelines to the facts is de novo
or abuse of discretion.’” United States v. Cabrera-Gutierrez, No. 12-
30233, 2013 W L 2378574, at *5 n.8 (9th Cir. June 3, 2013) (quoting
United States v. Swank, 676 F.3d 919, 921–22 (9th Cir. 2012)). “[W ]e
need not resolve this conflict because our conclusion is the same under
either standard.” Id.
UNITED STATES V . HUIZAR-VELAZQUEZ 5
interference with governmental functions . . . .”7 The
government urges that any dishonest “interference with
governmental functions,” whether or not it involves
corruption of officials, falls within this guideline. The next
sentence, though, explains that “[s]uch fraud offenses
typically involve an improper use of government influence
that harms the operation of government in a manner similar
to bribery offenses.”8 The government’s out-of-context,
overly general reading is mistaken.
Huizar-Velazquez did not engage in “improper use of
government influence,” bribery, or extortion, nor did he
conspire to do so. He schemed to trick the government out of
its money, not to corrupt government officials. Stamping
“Made in Mexico” on Chinese coat hangers cannot be
confused with bribing public officials and is not subject to the
same sentencing guideline. The district court erred by
applying § 2C1.1. Had Huizar-Velazquez bribed Customs
and Border Protection (“Customs”) agents to let his
shipments through, that would be a § 2C1.1 case. Sneaking
shipments past Customs agents to evade duties is not subject
to as harsh a punishment as bribing Customs agents.
The district court should have used Sentencing Guidelines
§ 2T3.1, entitled “Evading Import Duties or Restrictions
(Smuggling); Receiving or Trafficking in Smuggled
Property.” When more than one guideline section is indicated
for violations of the same statute, the General Application
Principles of the Guidelines direct the court to select the
7
U.S.S.G. § 2C1.1 Background (emphasis added).
8
Id. (emphasis added).
6 UNITED STATES V . HUIZAR-VELAZQUEZ
“most appropriate” guideline.9 Where the offense involved
a conspiracy, the court should refer to § 2X1.1, as well as the
guideline for the substantive offense.10 As with most statutes
and quasi-statutes, a provision particular to the conduct is
usually more appropriate than a broader, more general
provision not addressing the particular issue.11 Since Huizar-
Velazquez’s crime was conspiring to evade import duties, the
appropriate guideline was the one particularly addressing
“evading import duties,” not the one addressing bribery of
public officials.
The government argues that § 2C1.1 was the proper
guideline because it resulted in a greater offense level, and
“[w]here two or more guideline provisions appear equally
applicable, [the court should] use the provision that results in
the greater offense level.”12 This argument fails because
§ 2C1.1 (bribery) and § 2T3.1 (smuggling) are not “equally
applicable” to smuggling. They are unequally applicable
because one is more appropriate than the other. Application
Note 5 is not a license to shoehorn an offense into an ill-
suited sentencing guideline simply because the guideline
imposes a longer sentence than a more appropriate guideline.
9
U.S.S.G. § 1B1.2 Application Note 1.
10
Id.
11
See United States v. Wenner, 351 F.3d 969, 975 (9th Cir. 2003)
(quoting Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222,
228–29 (1957)) (“Specific terms prevail over the general in the same or
another statute which otherwise might be controlling.”).
12
U.S.S.G. § 1B1.1 Application Note 5.
UNITED STATES V . HUIZAR-VELAZQUEZ 7
The district court stated that the offense involved a
contraband item specifically covered by another guideline
section that would result in a greater offense level, so § 2T3.1
could not apply. That reasoning is incorrect because, as
explained above, evading import duties by smuggling wire
hangers was not covered by another, more specific guideline
section. Nor are wire hangers the type of contraband for
which importation is “prohibited or restricted for non-
economic reasons” and to which “[o]ther, more specific
criminal statutes apply.”13 Section 2T3.1 is the most specific,
appropriate guideline to apply in this case.
Finally, the government argues that the district court’s use
of the wrong sentencing guideline is harmless error because
the judge commented that if he applied § 2T3.1, Huizar-
Velazquez would likely qualify for an upward adjustment
under § 5K2.7 for “significant disruption of a governmental
function.” We disagree. We cannot know from this
statement what the result would have been had the court
applied the correct guideline.
2. Amount of Loss
Huizar-Velazquez argues that the district court also erred
in calculating the amount of loss under § 2C1.1. The
government’s expert witness calculated the loss using a duty
rate of 187.25 percent. The Department of Commerce
derived this rate by taking into account normal values and the
calculated rates for certain Chinese exporters for which it had
significant data.14 This duty rate applied to all Chinese wire
13
U.S.S.G. § 2T3.1 Introductory Commentary.
14
73 Fed. Reg. 53,188, 53,189 (Sept. 15, 2008).
8 UNITED STATES V . HUIZAR-VELAZQUEZ
hanger exporters unless the exporter could sufficiently prove,
inter alia, that it was independent of the Chinese government
and should be subject to a lower rate.15 Huizar-Velazquez
offered to prove, by invoices, wire transfer documents, and a
spreadsheet based on them, that three of the five Chinese
companies he bought from were subject to the much lower
“antidumping duty” of 55.31 percent. The government’s
expert refused to consider this evidence, justifying her
refusal with the explanation that “[i]n cases of fraud such as
this one, it is the practice of CBP [Customs and Border
Protection] to require more than invoices and documentation
of wires to establish the true identity of the manufacturer.”
The district court accepted the loss calculation made by the
government’s expert. Of course, it is the district court, not
the government’s witness, who has the duty to determine
what evidence suffices under the “reasonable estimate”16
standard of the Sentencing Guidelines to determine amount
of loss.17
A few weeks before sentencing, unbeknownst to counsel
and the court, the duty was retroactively reduced to 1.71
percent for three companies from which Huizar-Velazquez
claims to have purchased more than three-quarters of the
15
See 74 Fed. Reg. 61,658 (Nov. 25, 2009).
16
U.S.S.G. § 2T1.1 Application Note 1, § 2B1.1 Application Note 3(C).
17
See United States v. Innie, 7 F.3d 840, 848 (9th Cir. 1993) (“The
sentencing court must use its independent judgment to resolve the issues
before it.”); U.S.S.G. § 2T1.1 Application Note 1 (“[T]he guidelines
contemplate that the court will simply make a reasonable estimate based
on the available facts.”) (emphasis added).
UNITED STATES V . HUIZAR-VELAZQUEZ 9
hangers.18 The government’s expert did not tell the district
court or counsel about this huge reduction. She did not testify
at sentencing, so she was not subject to cross examination.
Her opinion was set out in a declaration drafted prior to the
reduction to 1.71 percent. She filed a “Second Declaration”
subsequent to the reduction to 1.71 percent, but did not
mention the change. In spite of this new 1.71 percent rate and
Huizar-Velazquez’s supporting documentation justifying the
previous 55.31 percent rate for much or most of his duty
fraud, the government’s expert, and the court, applied the
187.25 percent rate to all of Huizar-Velazquez’s shipments.
We review the district court’s findings of fact for clear
error.19 Subsequent to argument, the government filed a
“28(j) letter”20 amounting to a new brief, arguing that Huizar-
Velazquez would not be entitled to take advantage of the
new, retroactively applicable, far lower rates. The
government argued two different theories for letting the
district court’s finding of fact stand even though the court was
not advised of the new rates. Because the government’s
purported 28(j) letter really amounted to a supplemental brief,
we invited a response from the defense. Defense counsel
argued that the government’s arguments about which rate
18
76 Fed. Reg. 27,994, 27,997 (May 13, 2011).
19
United States v. Treadwell, 593 F.3d 990, 999 (9th Cir. 2010).
20
Fed. R. App. P. 28(j) (“If pertinent and significant authorities come to
a party’s attention after the party’s brief has been filed—or after oral
argument but before decision— a party may promptly advise the circuit
clerk by letter, with a copy to all other parties, setting forth the citations.
The letter must state the reasons for the supplemental citations, referring
either to the page of the brief or to a point argued orally. The body of the
letter must not exceed 350 words.”).
10 UNITED STATES V . HUIZAR-VELAZQUEZ
applies ought properly to be raised first before the district
court on remand.
We do not resolve the question of which rates apply to
which wire hangers, but leave that question for the district
court to decide on remand under the proper sentencing
guideline. The court below calculated the amount of loss in
the context of § 2C1.1. The language of the proper guideline,
§ 2T3.1, differs. The court must calculate the “tax loss”
under § 2T3.1, which simply states “the ‘tax loss’ is the
amount of the duty.”21 The district court “is responsible for
making an independent determination as to the amount of loss
the victim suffered as a result of the defendant’s conduct.”22
The court cannot merely defer to the government expert
witness’s calculation. The restitution and forfeiture amounts,
as well as the sentence, are vacated so that a proper
determination can be made in the resentencing.
CONCLUSION
VACATED and REMANDED for resentencing.
21
W e note that “[t]he government bears the burden of establishing the
base offense level, and hence, here, the amount of tax loss, by a
preponderance of the evidence.” United States v. Montano, 250 F.3d 709,
713 (9th Cir. 2001).
22
United States v. Najjor, 255 F.3d 979, 984 (9th Cir. 2001).