United States v. Yijun Zhou

838 F.3d 1007

United States of America, Plaintiff–Appellee,

v.Yijun Zhou, Defendant–Appellant.

No. 14-50288

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 6, 2016 Pasadena, California

Filed September 27, 2016

Jonathan D. Libby (argued), Deputy Federal Public Defender; Hilary L. Potashner, Federal Public Defender; Federal Public Defender's Office, Los Angeles, California; for Defendant–Appellant.

Jean–Claude Andre (argued), Assistant United States Attorneys; Robert E. Dugdale, Chief, Criminal Division; United States Attorney's Office, Los Angeles, California; for Plaintiff–Appellee.

Before: A. Wallace Tashima, Barry G. Silverman, and Susan P. Graber, Circuit Judges.

Concurrence by Judge Graber ;

Dissent by Judge Tashima

OPINION

GRABER, Circuit Judge:

Defendant Yijun Zhou used fraudulent credit cards at a Target store in Colorado and at Nordstrom stores in California to buy items worth almost $150,000. The government indicted him on one count of unauthorized use of access devices. Defendant pleaded guilty to that count. At the plea colloquy, the government stated that it would prove the fraudulent Nordstrom charges at trial but did not mention the Target charges. At sentencing, the district court imposed restitution under the Mandatory Victims Restitution Act of 1996 (“MVRA”), without objection, for both the Nordstrom charges and the Target charges. Defendant timely appeals, arguing for the first time on appeal that the district court improperly ordered restitution with respect to the Target charges. We hold that the district court did not plainly err in imposing restitution and, therefore, affirm.

FACTUAL AND PROCEDURAL HISTORY

Defendant was indicted on one count of unauthorized use of access devices, and aiding and abetting others to do so, in violation of 18 U.S.C. §§ 2(a) and 1029(a)(2). The indictment charged:

Beginning ... no earlier than on or about March 13, 2011, and continuing through on or about December 17, 2011, in Los Angeles and Orange Counties, within the Central District of California, and elsewhere, defendant Yijun Zhou, together with others ..., aiding and abetting one another, ... knowingly and with intent to defraud used unauthorized access devices, ... specifically, credit cards, ... and by such conduct obtained things of value ... together totaling $1,000 or more.

After Defendant pleaded guilty without the benefit of a plea agreement, the government stated that it would prove at trial that Defendant used fraudulent credit cards to make purchases at Nordstrom stores in California. Defendant understood those allegations and agreed that they were true. He also answered “Yes” to the question: “Are you pleading guilty because you did the things charged in Count [One] of the indictment?” The court also advised Defendant that the amount of restitution could be as high as $160,000.

The probation office prepared a presentence report and an accompanying letter recommending a Guidelines range of 30 to 37 months, a sentence of 37 months' imprisonment, and restitution of $146,725.02, payable in varying amounts to 30 identified victims. The restitution amount, and the identified victims, concerned two different sets of events. About half of the restitution amount stemmed from Defendant's fraudulent credit card purchases at Nordstrom stores in California. The remainder related to Defendant's fraudulent credit card purchases at a Target store in Colorado. Both in their written memoranda and in their oral presentations at the sentencing hearing, the parties disputed the calculation of the Guidelines range and the appropriate term of imprisonment, but neither party challenged the award of restitution.

At sentencing, the district court ruled in Defendant's favor on one of the disputed issues and ruled in the government's favor on the other disputed issue. The court calculated the Guidelines range to be 24 to 30 months, and it imposed a sentence of 30 months' imprisonment. The court also ordered Defendant to pay $146,725.02 in restitution, in accordance with the list created by the probation office, which included the victims of both the Nordstrom and Target purchases.

Defendant timely appeals, challenging only the restitution order. He argues that the district court erred by awarding restitution to persons who were not victims of the offense of conviction, because the offense of conviction covered only the Nordstrom charges and the MVRA authorizes restitution only to victims of the offense. Defendant acknowledges, as he must, that he did not raise that argument (or any argument concerning restitution) to the district court.

STANDARD OF REVIEW

Because Defendant did not raise the issue before the district court, we review for plain error. The ordinary rule in criminal cases—established by Federal Rule of Criminal Procedure 52(b) and by Supreme Court precedent—is that “plain error” review applies to arguments raised for the first time on appeal. See Fed. R. Crim. P. 52(b) (“A plain error that affects substantial rights may be considered even though it was not brought to the court's attention.”); United States v. Olano , 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Time and again, we have reviewed challenges to restitution orders—made for the first time on appeal—for plain error. See, e.g. , United States v. Rizk , 660 F.3d 1125, 1136 (9th Cir. 2011) (reviewing for plain error a dispute about the propriety of restitution); United States v. Fu Sheng Kuo , 620 F.3d 1158, 1162 (9th Cir. 2010) (“[W]e review only for plain error when the defendant failed to object to the [restitution order] in the district court.”). Indeed, in United States v. Bright , 353 F.3d 1114, 1120 (9th Cir. 2004), the defendant raised the same argument that Defendant makes here—that “the amount of restitution imposed was excessive because the court was authorized to order restitution only for the counts of conviction”—and we held that the defendant “did not challenge the amount of the restitution order before the district court, so we review [the] claim for plain error.” See also United States v. Weinstein , 834 F.2d 1454, 1456 (9th Cir. 1988) (reviewing for “plain error” whether the restitution amount “exceeds the actual damages or loss occasioned by the offense of which [the defendant] was convicted”). As a three-judge panel, we must apply the same standard of review—plain error. See Miller v. Gammie , 335 F.3d 889, 899–900 (9th Cir. 2003) (en banc).

The government points to a subset of our cases where we have “decline[d] to consider” an argument that hinged on an unresolved factual issue. E.g. , United States v. Napier , 463 F.3d 1040, 1045–46 (9th Cir. 2006). The better reading of those cases is not as an exception to the “plain error” standard, but as an application of the “plain error” standard. At a minimum, an error that hinges on a factual dispute is not “obvious” as required by the “plain error” standard. See, e.g. , United States v. Scrivner , 114 F.3d 964, 968 (9th Cir. 1997) (“[F]actual disputes do not rise to the level of plain error.” (internal quotation marks omitted)). Accordingly, by the time we determine that an issue hinges on a factual dispute, we have concluded that any error is not “plain.” Whether we “decline[d] to consider” an argument that hinges on a factual dispute or simply hold that any error is not plain, the result—affirming the district court's decision—is the same. We clarify that, if the government thinks that a newly raised issue hinges on an unresolved factual dispute, the proper heading for that argument is under the “plain error” standard. Although we occasionally used the “decline to consider” formulation in some older cases, that formulation is best understood as an application of the “plain error” standard.

For his part, Defendant points to cases that, he contends, applied “de novo” review and rejected the application of “plain error” review. Defendant's argument fails at the outset. In the two cases cited by Defendant where we applied “de novo” review, United States v. Yeung , 672 F.3d 594 (9th Cir. 2012) ; United States v. Reed , 80 F.3d 1419 (9th Cir. 1996),¹ the government did not request that we apply “plain error” review, so we had no occasion to consider the issue. Accordingly, those cases do not—and as three-judge decisions could not—overrule the earlier authority, such as Weinstein, requiring that we apply “plain error” review to non-jurisdictional arguments raised for the first time on appeal.² Miller , 335 F.3d at 899–900.

In one line of cases, we have held that “we are not limited to [the plain-error] standard of review where the appeal presents a pure question of law and there is no prejudice to the opposing party.” United States v. Gonzalez–Aparicio , 663 F.3d 419, 426 (9th Cir. 2011). In those circumstances, “we possess the discretion to refrain from applying the default plain error standard of review.” Id. Here, Defendant's argument requires that we apply the legal standard in the MVRA to the particular factual details in the record—the indictment, the plea colloquy transcript, the presentence report, and the sentencing transcript. In these circumstances, the issue is best characterized as a “mixed question of law and fact,” not a “pure question of law.” See, e.g. , TSC Indus., Inc. v. Northway, Inc. , 426 U.S. 438, 450, 96 S.Ct. 2126, 48 L.Ed.2d 757 (1976) (describing a “mixed question of law and fact” as “the application of a legal standard to a particular set of facts”). To the extent that we have discretion to apply a different standard of review, we decline to exercise it here. Gonzalez–Aparicio , 663 F.3d at 426–27. We see no compelling reason to depart from our established case law applying “plain error” review to the same type of argument raised by Defendant here.

MERITS

“Plain error is (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, we may then exercise our discretion to notice a forfeited...