United States v. Qiong Lu Pua , 694 F. App'x 608 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 3 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10100
Plaintiff-Appellee, D.C. No.
1:15-cr-00008-RVM-1
v.
QIONG LU PUA, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of the Northern Mariana Islands
Ramona V. Manglona, Chief Judge, Presiding
Submitted June 16, 2017**
Honolulu, Hawaii
Before: FISHER, PAEZ and NGUYEN, Circuit Judges.
Qiong Lu Pua appeals a jury conviction for conspiring to arrange the
fraudulent marriages of Norma Nekaifes and Benigno Mettao, both United States
citizens, respectively to Pua’s brother (Zhenqing Lu) and friend (Baoqin Ding),
both immigrants from China. Mettao and Nekaifes testified against Pua. On
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
appeal, Pua makes four arguments: (1) the government introduced insufficient
evidence at trial from which to procure a guilty verdict; (2) the base offense level
should have been set by U.S.S.G. § 2L2.2, not § 2L2.1; (3) if § 2L2.1 was applied,
she should have received a three-level reduction because the offense was not for
profit; and (4) the district court abused its discretion by applying a four-level
enhancement because insufficient evidence supported a conclusion that she played
a leadership role in the conspiracy. We affirm.
First, sufficient evidence supported the jury’s guilty verdict. Although
accomplice testimony is inherently suspect, see United States v. Bernard, 625 F.2d
854, 857 (9th Cir. 1980), that does not mean a jury may not rely on it, especially
when corroborating evidence is offered to support such testimony. Here, even
without Nekaifes’ and Mettao’s testimony, Pua’s significant participation in both
weddings and the circumstances surrounding each was highly suspect. A rational
jury could therefore believe Nekaifes and Mettao despite their admitted past
perjury.
Second, the district court did not abuse its discretion by sentencing Pua
under U.S.S.G. § 2L2.1. Sentencing courts are given discretion to “determine
which of the referenced guideline sections is most appropriate for the offense
conduct charged in the count of which the defendant was convicted.” U.S.S.G.
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§ 1B1.2 cmt. n.1. The district court chose the appropriate guideline that fit Pua’s
conduct, as opposed to some of her co-conspirators’ conduct.
Third, after reviewing the evidence submitted during the sentencing hearing,
the district court concluded Pua “did, in fact, make a statement to law enforcement
that she did receive money” for aiding in the conspiracy. This finding was
supported by the record and was not clearly erroneous. In light of this factual
finding, we need not consider which, if any, of the parties’ interpretations of the
guidelines’ commentary is correct. The district court did not abuse its discretion
by denying a three-level reduction under U.S.S.G. § 2L2.1(b)(1).
Fourth, the district court did not abuse its discretion by applying a four-level
increase for Pua’s role as a leader of the conspiracy under U.S.S.G. § 3B1.1(a). As
the district court outlined in detail, Pua was the “common connection between all
the conspirators in this case.” The district court properly relied, in part, on
Nekaifes’ and Mettao’s testimony to reach this conclusion. To most reasonable
observers, Pua’s undisputed participation in admittedly fraudulent marriages would
be highly indicative of guilt. The district court neither clearly erred by concluding
she was a leader in the conspiracy, nor abused its discretion in applying the
adjustment.
AFFIRMED.
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