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9th Circuit: Guidelines base offense level corresponds to federal sex-trafficking statute of conviction, not conduct underlying conviction

United States v. Lin, — F.3d —, 2016 WL 6678368 (9th Cir. Nov. 14, 2016): District court erred in looking to underlying conduct, rather than specific statute of sex-trafficking conspiracy conviction, in setting Guidelines base offense level

Okay, so here’s the awkward part: Section 2G1.1(a)(1) of the United States Sentencing Guidelines specifies that the base offense level for a sex-trafficking conviction is 34 if the “offense of conviction” is 18 U.S.C. 1591(b)(1). What’s awkward about that, you ask? Just this: Section 1591(b)(1) does not identify an “offense of conviction.” Rather than defining an offense, it’s one of those subsection-(b) provisions that sets a minimum sentence for people who commit “an offense under subsection (a)” in a particular way. (Specifically, a 15-year minimum for people who commit sex trafficking by certain means, or with people under 14 years old.) How may this circle be squared? The district court’s solution was to look to the underlying conduct, and determine whether it fit the specifications in Section 1591(b)(1). In this case that meant that Mr. Lin, who was actually convicted under 18 U.S.C. 1594(c) – conspiracy to commit sex trafficking, which has no mandatory minimum – was subject to Section 2G1.1(a)(1), because his underlying conduct fit the specifications of Section 1591(b)(1). This approach served to more than double Mr. Lin’s base offense level, from the default level of 14 up to 34. But the Ninth Circuit rejected this approach, holding that a sentencing court should in this context look no further than the offense of conviction. The Ninth Circuit reasoned that, had the Sentencing Commission intended to direct sentencing courts to look to the underlying offense conduct, it would have told them to do that, rather than telling them to look to the “offense of conviction.” Awkwardness aside, the Ninth Circuit reasoned, the better interpretation of Section 2G1.1(a)(1) is that it “only applies to defendants who are subject to a fifteen-year mandatory minimum sentence under 18 U.S.C. 1591(b)(1).” Because Mr. Lin was convicted under Section 1594(c), which expressly states that it has no minimum sentence, it was harmful error to sentence him under Section 2G1.1(a)(1). The court vacated Mr. Lin’s sentence and remanded the case for resentencing.

This holiday miracle brought to you by our faithful friend, the categorical approach.

(Congratulations to Bruce Berline of Saipan, Commonwealth of the Northern Mariana Islands.)

(Dan Kaplan is an Assistant Federal Public Defender in Phoenix, Arizona.)

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