United States v. Yang, Hwei-Chen , 153 F. App'x 379 ( 2005 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0880n.06
Filed: November 1, 2005
Case No. 03-4092
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE NORTHERN
HWEI-CHEN YANG, ) DISTRICT OF OHIO
)
Defendant-Appellant. )
)
_______________________________________ )
)
)
BEFORE: GUY, BATCHELDER, and GIBSON*, Circuit Judges.
ALICE M. BATCHELDER, Circuit Judge. Hwei-Chen Yang appeals her sentence
following conviction for conspiracy to steal trade secrets. Because her sentence was imposed in
violation of her Sixth Amendment rights, we VACATE her sentence and REMAND the case for
resentencing.
Following Yang’s conviction, the district court initially sentenced her to one year’s probation
and a fine of $5,000. This sentence included a substantial downward departure for what the district
court viewed as the victim’s participation in, and manipulation of, the government’s evidence. Yang
appealed her conviction and sentence, and the government challenged the district court’s downward
departure. We affirmed Yang’s conviction and, finding that the district court had abused its
*
The Honorable John R. Gibson, United States Circuit Judge for the Eighth Circuit, sitting by designation.
discretion by departing downward, vacated Yang’s sentence and remanded for resentencing. Upon
resentencing, the district court, treating the United States Sentencing Guidelines as mandatory,
eliminated the downward departure and sentenced Yang to twenty-four months imprisonment.
Prior to our initial remand, Yang fled the country. She failed to appear at the resentencing
hearing and filed this appeal in absentia. On August 12, 2005, we held that we would dismiss
Yang’s appeal under the fugitive disentitlement doctrine unless she submitted to custody of the
United States Marshal within thirty days of the filing date of the order. See United States v. Yang,
2005 Fed. App. 0702N (6th Cir. 2005). Yang voluntarily surrendered on September 12, 2005.
Accordingly, we now reach the merits of her appeal.
Yang argues that the district court abused its discretion by declining to revisit the propriety
of its downward departure during resentencing. When the Sixth Circuit “vacates a sentence and
remands to the district court for ‘resentencing,’ that order is considered a general one that allows the
district court to resentence the defendant de novo.” United States v. Helton, 349 F.3d 294, 299 (6th
Cir. 2003) (quoting United States v. Moore, 131 F.3d 595, 598 (6th Cir. 1997); see also United
States v. Hough, 276 F.3d 884, 891 n.3 (6th Cir. 2002).
We review the district court’s decision not to revisit an issue during resentencing for abuse
of discretion. United States v. Thomas, 167 F.3d 299, 305-306 (6th Cir. 1999). We have never held
that a general remand for resentencing requires a district court to revisit each issue. To the contrary,
we have repeatedly held that a district court, acting in its discretion, may choose not to reconsider
the entire sentencing procedure. United States v. Rodgers, 278 F.3d 599, 602 (6th Cir. 2002) (citing
United States v. Bond, 171 F.3d 1047, 1048 (6th Cir. 1999)); United States v. Hough, 276 F.3d 884,
891 n.3 (6th Cir. 2002).
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Yang asserts that the district court did not engage in resentencing de novo because it refused
to reconsider downward departure. We disagree. The district court plainly stated during
resentencing that it had authority to revisit the issue but declined to do so. Our initial opinion in this
case held that the district court’s original basis for downward departure was insufficient, and the
court’s refusal to scour the record for an alternative basis was clearly not an abuse of discretion.
Yang also challenges the district court’s refusal to recalculate the amount of loss suffered
by the victim. She contends that the district court relied on perjured testimony in the original
sentencing hearing, a contention that she attempted to prove during resentencing. Because Yang did
not take this issue up during her initial appeal, we need not consider it. Were we to reach its merits,
however, we would likely conclude, for reasons stated above, that the district court did not abuse
its discretion by refusing to recalculate the victim’s loss.
Finally, Yang argues that her sentence violates the Sixth Amendment because the district
court relied on facts not proven before a jury when enhancing her sentence under the United States
Sentencing Guidelines. Because Yang did not raise an objection on Sixth Amendment grounds in
the district court, we review her sentence for plain error. United States v. Booker, 125 S. Ct. 738,
769 (2005). A plain error has occurred when (1) there is an error, (2) the error is plain, and (3) the
error affects the defendant’s substantial rights. United States v. Oliver, 397 F.3d 369, 378 (6th Cir.
2005). If these conditions are met, we may address the forfeited error if it seriously affects the
fairness, integrity or public reputation of the proceedings. Id.
The district court enhanced Yang’s sentence based on the amount of the victim’s loss.
Because the loss amount was determined by the judge rather than the jury, and because the judge
treated the United States Sentencing Guidelines as mandatory, Yang’s sentence violates the Sixth
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Amendment under Booker. Id. at 378-79. Had the Guidelines not been mandatory at the time of
Yang’s sentencing, the district court’s consideration of the loss amount or other relevant facts would
have been appropriate; however, under United States v. Oliver, the use of judge-found facts within
a mandatory Guidelines regime is an error that is plain. Id. Moreover, the sentence necessarily
affects Yang’s substantial rights. Id. at 379-80. A Sixth Amendment violation that results in a more
severe sentence than is supported by the verdict also diminishes the reputation and integrity of the
judicial system. Id. at 380. Based on the foregoing, we find that Yang’s sentence was a clear error
under United States v. Oliver. Accordingly, we VACATE the sentence and REMAND the case to
the district court for resentencing de novo.
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