United States v. Tat

97 F.4th 1155

UNITED STATES of America, Plaintiff-Appellee, v. Vivian TAT, Defendant-Appellant.

No. 22-50240

United States Court of Appeals, Ninth Circuit

Argued and Submitted October 5, 2023 Pasadena, California

Filed April 4, 2024

Appeal from the United States District Court for the Central District of California Otis D. Wright II, District Judge, Presiding, D.C. No. 2:14-cr-00702-ODW-2

Alyssa D. Bell (argued) and Michael V. Schafler, Cohen Williams LLP, Los Angeles, California, for Defendant-Appellant.

Bram M. Alden (argued), Assistant United States Attorney Chief, Criminal Appeals Section; Consuel S. Woodhead and Karen I. Meyer, Assistant United States

Attorneys; Joseph T. McNall, United States Attorney; Office of the United States Attorney, United States Department of Justice, Los Angeles, California; for Plaintiff-Appellee.

Before: Daniel P. Collins, Salvador Mendoza, Jr., and Roopali H. Desai, Circuit Judges.

OPINION

MENDOZA, Circuit Judge:

Defendant-Appellant Vivian Tat has twice been sentenced by the district court and twice appealed to this court, stemming from her involvement in a money-laundering scheme and resulting conviction. In 2018, Ms. Tat was convicted on several counts and, in early 2019, she was sentenced to 24 months imprisonment. On appeal in United States v. Tat, 15 F.4th 1248 (9th Cir. 2021) ("Tat I"), we vacated her conviction as to one count, vacated her sentence, and remanded for de novo resentencing. At her second sentencing hearing, the district court resentenced Ms. Tat to 18 months imprisonment. Now, in her second appeal, Ms. Tat asks this court to vacate her sentence and remand so that she may be sentenced for a third time. She argues that the district court abused its discretion in applying the abuse-of-trust and organizer/leader sentencing enhancements, improperly considered "cost" in dismissing her community-service proposal at sentencing, and violated Federal Rule of Criminal Procedure 32 by failing to make findings of fact about certain portions of her presentence report. The government disagrees. It argues that Ms. Tat waived her challenge to the sentencing enhancements by failing to raise them on appeal from her initial sentence in Tat I, and that the district court did not otherwise err when it resentenced her.

Ms. Tat's appeal raises procedural and substantive concerns. First, we address whether Ms. Tat waived her challenge to the district court's application of the sentencing enhancements. Following the Second and Third Circuits' lead, we conclude that a criminal defendant's failure to challenge specific aspects of her initial sentence on a prior appeal does not waive her right to challenge comparable aspects of a newly imposed sentence following de novo resentencing. Second, we turn to the merits of Ms. Tat's challenges to her sentence. We agree with Ms. Tat that the district court erred in applying the organizer/leader enhancement. But we disagree with Ms. Tat regarding the district court's imposition of an abuse-of-trust enhancement and the court's analysis regarding the "cost" of her community-service proposal. Because we vacate the sentence on other grounds, we do not reach whether the district court failed to comply with Rule 32, and we remand to the district court for further proceedings consistent with this opinion.

I.

In 2009, while working as a branch manager for a bank, Ms. Tat participated in a scheme to launder roughly $25,000. See generally Tat I, 15 F.4th at 1249-50.¹ After five years of investigation, the government indicted Ms. Tat. Four years later, she was convicted of one count of conspiring to launder money, in violation of 18 U.S.C. § 1956(h), and two counts of making false entries in bank records, in violation of 18 U.S.C. § 1005.

At Ms. Tat's first sentencing in 2019, the sentencing at issue in Tat I, the parties disputed whether the district court should apply a four-level organizer/leader enhancement under U.S.S.G. § 3B1.1 and a two-level enhancement for abuse of a position of trust under U.S.S.G. § 3B1.3. The district court overruled Ms. Tat's objections to the sentencing enhancements, resulting in a guidelines range of 33 to 41 months, and it sentenced Ms. Tat to 24 months imprisonment followed by two years of supervised release.

Ms. Tat appealed, arguing that there was insufficient evidence to support her conviction on the two false-entry counts. She did not challenge the district court's ruling regarding the organizer/leader and abuse-of-trust sentencing enhancements in her initial appeal. In Tat I, we reversed one count of false entry, vacated the original sentence, and remanded to the district court for de novo resentencing. 15 F.4th at 1253-54.

Ms. Tat's second sentencing proceeded in two parts. The first took place on September 14, 2022, and opened with the district court stating, "as a practical matter, [the overturned count] is not going to result in any change but we're going to go through the motions nonetheless." The district court then heard argument regarding the organizer/leader and abuse-of-trust enhancements. With regard to the organizer/leader enhancement, the presentence report ("PSR") stated:

In analyzing Tat's role in this offense, the Probation Officer initially recommended that Tat did not occupy a mitigating role or aggravating role in this offense. The Court, however, has concluded that Tat occupied an aggravating role in this offense and a 4-level increase has been applied.

And with respect to the abuse-of-trust enhancement, the PSR stated:

Here, Tat served as the bank manager at the time of the offense. As such, her position as the bank manager significantly facilitated the commission of the offense. She was clearly aware of the [Bank Secrecy Act] reporting requirements and manipulated bank policies to secure the initial three cashier's checks. Further, throughout this offense, Tat used her role as bank manager to circumvent [the bank's] policies and practices to detect and track large cash transactions. Accordingly, Tat abused a position of trust; and, a 2-level increase has been applied.

The district court ultimately applied both enhancements over Ms. Tat's objection.

Ms. Tat also asked the court to resolve two factual disputes: the first related to her deteriorating mental health, as evidenced by Dr. Christine Wong's report; the second to her alleged pattern of criminal behavior. With regard to the former, the district court suggested "that the cause of any anxiety and depression [Ms. Tat] feels is quite clearly this case and the fact that the one thing that's unresolved is the punishment issue and it is reasonable that she's feeling some mental distress about that. No question. And I didn't need a psychotherapist to tell me that." And with regard to the latter, the district court heard argument as to whether Ms. Tat's conduct was part of a pattern of criminal activity.

The district court then moved on to potential sentencing options for Ms. Tat and asked the parties to address whether "alternatives to incarceration [ ] might be beneficial to the community." The district court asked defense counsel whether Ms. Tat had thought of ways she could use her knowledge and skillset to help others, while discouraging others from following in her footsteps. After defense counsel, and Ms. Tat herself, suggested a few community-service projects, the court shifted gears to focus on whether she had already engaged in community service, or demonstrated signs of growth and remorse to distinguish herself from the person who had committed the crime a decade prior. Defense counsel highlighted Ms. Tat's years of compliance with pretrial release and specific facts in Dr. Wong's report. The district court asked Ms. Tat herself:

Now, there is no correct answer as to what you might be able to do. I'm just wondering whether or not you've given it any thought about what you might be able to do to correct this wrong; and if you haven't, that's fine, absolutely fine. I'm certainly not going to hold it against you but if you have, if you really have, then I'd really love to hear that because it's one thing for the attorneys to stand up here and make argument, it's something else entirely for the principals involved to talk about concrete things that they would like to do.

The district court then gave defense counsel 30 days to confer with Ms. Tat before reconvening to discuss alternatives to incarceration.

A month later, on October 14, 2022, the court reconvened for part two of Ms. Tat's resentencing. In lieu of confinement, Ms. Tat proposed that she complete a minimum of 20 hours per week of community service; disseminate a public service announcement ("PSA") to her community about the pitfalls of money laundering; and partner with banks to conduct presentations to her former peers about this issue. The district court applauded Ms. Tat's creative efforts, but expressed concern with how "costly" her proposal was, and how difficult it would be for probation to monitor her compliance, stating: "trying to manage this unwieldy thing that's also going to be expensive which also --it probably is going to mean that it's not going to happen." Defense counsel conceded that Ms. Tat could not, at that moment, afford the PSA, but registered their "hop[e] that [they] could fundraise for that part of the program." The district court commended defense counsel for their proposal but ultimately rejected it. The court then found Ms. Tat's guideline range remained 33 to 41 months—which accounted for the four-level organizer/leader enhancement and the two-level abuse-of-trust enhancement—and sentenced Ms. Tat to 18 months of imprisonment.

Ms. Tat timely appealed.

II.

We have jurisdiction to review this sentence under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We review the district court's interpretation of the United States Sentencing Guidelines de novo, its application of the Guidelines to the facts of the case for abuse of discretion, and its factual findings for clear...