United States v. Yijun Zhou

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50288
Plaintiff-Appellee,
D.C. No.
v. 2:13-cr-00766-PSG-1
YIJUN ZHOU,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Argued and Submitted April 6, 2016
Pasadena, California
Filed September 27, 2016
Before: A. Wallace Tashima, Barry G. Silverman,
and Susan P. Graber, Circuit Judges.
Opinion by Judge Graber;
Concurrence by Judge Graber;
Dissent by Judge Tashima
2 UNITED STATES V. ZHOU
SUMMARY*
Criminal Law
The panel affirmed the district court’s restitution order in
a case in which the defendant, who pled guilty to
unauthorized use of access devices, used fraudulent credit
cards at a Target store in Colorado and at Nordstrom stores in
California.
The defendant argued for the first time on appeal that
because the offense of conviction covered only the Nordstrom
charges, and the Mandatory Victims Restitution Act of 1996
authorizes restitution only to victims of the offense, the
district court erred by awarding restitution to victims of both
the Nordstrom and Target purchases.
Because the defendant did not raise the issue before the
district court, the panel reviewed for plain error. The panel
clarified that although this court in some older cases used the
“decline to consider” formulation where a newly-raised issue
hinged on a factual dispute, that formulation is best
understood as an application of the “plain error” standard.
The panel concluded that, for purposes of plain-error
review, the Target charges occurred within the indictment
period. The panel explained that the defendant did not plead
guilty only to the Nordstrom allegations, and that the
fraudulent Target charges fit within the scope of the count to
which he pled guilty. The panel wrote that because the
Nordstrom charges were sufficient to establish a factual basis
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. ZHOU 3
for the defendant’s crime, the government was not required
to mention the Target charges at the plea colloquy.
Because any error was not plain, the district court did not
decide definitively whether the district court erred.
In a concurring opinion, Judge Graber wrote separately to
question the validity of this court’s case law with respect to
the standard of review applicable to arguments raised for the
first time on appeal by criminal defendants. She wrote that a
line of this court’s cases holding that this court is not limited
to plain error review where the appeal presents a “pure
question of law” and there is no prejudice to the opposing
party is contrary to Fed. R. Crim. P. 52(b), Supreme Court
precedent, and the practice of sister circuits.
Dissenting, Judge Tashima wrote that both the text of the
indictment and the record – including the plea colloquy and
the presentence investigation report – show that the Target
charges did not form the basis of the offense of conviction.
COUNSEL
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.
4 UNITED STATES V. ZHOU
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
UNITED STATES V. ZHOU 5
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
6 UNITED STATES V. ZHOU
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 (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
UNITED STATES V. ZHOU 7
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”
8 UNITED STATES V. ZHOU
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.
1
Defendant also cites United States v. May, 706 F.3d 1209 (9th Cir.
2013). That case is inapposite. We never stated the applicable standard
of review, and we concluded that “the district court plainly erred in
ordering restitution for [a company’s] expenses.” Id. at 1215 (emphasis
added). In short, if anything, May supports the conclusion that “plain
error” review applies here.
2
As the Supreme Court recently reiterated, de novo review—and not
“plain error” review—applies to “a nonwaivable limit on federal courts’
subject-matter jurisdiction.” Musacchio v. United States, 136 S. Ct. 709,
716 (2016); see United States v. Pocklington, 792 F.3d 1036, 1039–40
(9th Cir. 2015) (applying the rule); United States v. Doe, 366 F.3d 1069,
1075–76 (9th Cir. 2004) (en banc) (same). But that exception has no
application here because the district court clearly had subject matter
jurisdiction to sentence Defendant and to impose restitution; Defendant
challenges only the extent of restitution. See Doe, 366 F.3d at 1076–77
(describing the limited nature of this exception to plain-error review).
UNITED STATES V. ZHOU 9
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
(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 error,
but only if (4) the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.”
United States v. Myers, 804 F.3d 1246, 1257 (9th Cir. 2015)
(alterations and internal quotation marks omitted), cert.
denied, 136 S. Ct. 1393 (2016). Here, any error is not plain,
so the second criterion is not satisfied.
10 UNITED STATES V. ZHOU
The MVRA provides that, in cases involving certain
crimes (including unauthorized use of access devices), “the
court shall order . . . that the defendant make restitution to the
victim of the offense.” 18 U.S.C. § 3663A(a)(1).3 The
statute defines the term “victim” as
a person directly and proximately harmed as
a result of the commission of an offense for
which restitution may be ordered including, in
the case of an offense that involves as an
element a scheme, conspiracy, or pattern of
criminal activity, any person directly harmed
by the defendant’s criminal conduct in the
course of the scheme, conspiracy, or pattern.
Id. § 3663A(a)(2).
This is not a “case of an offense that involves as an
element a scheme, conspiracy, or pattern of criminal
activity.” Id. Title 18 U.S.C. § 1029(a)(2) provides that
whoever “knowingly and with intent to defraud traffics in or
uses one or more unauthorized access devices during any
one-year period, and by such conduct obtains anything of
value aggregating $1,000 or more during that period . . . shall,
if the offense affects interstate or foreign commerce, be
punished.” That statute does not have “as an element a
scheme, conspiracy, or pattern of criminal activity.” Id.§ 3663A(a)(2); see United States v. Gordon, 480 F.3d 1205,
1211 (10th Cir. 2007) (holding that § 1029(a)(2) does not
3
The statute also authorizes restitution to “persons other than the victim
of the offense,” if the parties so agree in a plea agreement. 18 U.S.C.
§ 3663A(a)(3). Because there was no plea agreement here, that provision
does not apply.
UNITED STATES V. ZHOU 11
contain as an element a scheme, conspiracy, or pattern of
criminal activity); accord United States v. Acosta, 303 F.3d
78, 87 (1st Cir. 2002); United States v. Blake, 81 F.3d 498,
506 (4th Cir. 1996). Accordingly, the only issue is whether
the Target victims were persons “directly and proximately
harmed as a result of the commission of” Defendant’s crimes
of conviction. 18 U.S.C. § 3663A(a)(2).
We have interpreted that statutory text to mean that “a
court may award restitution under the MVRA only for loss
that flows directly from the specific conduct that is the basis
of the offense of conviction. Thus, a court is authorized to
order restitution for the offense of conviction and not for
other related offenses of which the defendant was not
convicted.” May, 706 F.3d at 1214 (citations, internal
quotation marks, and footnote omitted). In addition, the
statute requires the court to award restitution in full for each
victim of the offense. 18 U.S.C. § 3664(f)(1)(A). The parties
dispute whether it was plain error to order restitution to the
victims of the Target charges.4
Defendant correctly points out that, at the plea colloquy,
the government asserted that it would prove (and Defendant
admitted) factual allegations concerning Nordstrom only; the
Target transactions were not mentioned. Defendant cogently
contends that everyone implicitly understood that only the
Nordstrom charges constituted the offense of conviction. But
the government correctly points out that Defendant pleaded
4
Defendant does not argue—and cannot argue—that he was misled
during the plea colloquy as to the potential amount of restitution. As
previously noted, the district court advised Defendant that restitution could
be as high as $160,000. Instead, Defendant argues that the restitution
exceeded the court’s statutory authority.
12 UNITED STATES V. ZHOU
guilty to Count One of the indictment and that its text is broad
enough to cover both the Nordstrom charges and the Target
charges.
The count charged Defendant with fraudulent credit card
use “in Los Angeles and Orange Counties, within the Central
District of California, and elsewhere,” (emphasis added),
which includes Colorado, the site of the Target charges.
Similarly, the count charged Defendant with fraudulent credit
card use “no earlier than on or about March 13, 2011, and
continuing through on or about December 17, 2011.”
Although there is some evidence to the contrary, much
evidence in the record would support a finding that the Target
charges occurred in July 2011. For example, the presentence
report itemized the Target charges and noted that they
occurred “in July 2011.” On plain-error review, the burden
is on Defendant to demonstrate error. To the extent that the
record is unclear as to the date of the transactions, the fault
rests with Defendant for failing to object before the district
court in order to make a more complete record. Accordingly,
we conclude that, for purposes of plain-error review, the
Target charges occurred in July 2011—within the indictment
period.
Defendant did not plead guilty only to the Nordstrom
allegations—he pleaded guilty to Count One of the
indictment. “A guilty plea conclusively admits all factual
allegations of the indictment . . . .” United States v. Kubick,
205 F.3d 1117, 1129–30 (9th Cir. 1999) (internal quotation
marks omitted). The fraudulent Target charges fit within the
scope of that count, and Defendant does not contest that he
actually engaged in criminal conduct at the Target store in
Colorado that meets the terms of the indictment. Especially
given “the MVRA’s broad remedial purpose,” United States
UNITED STATES V. ZHOU 13
v. Eyraud, 809 F.3d 462, 468 (9th Cir. 2015), Congress likely
intended restitution to all victims within the scope of an
admitted crime, even if the parties focused primarily on one
set of victims at the plea colloquy.
The Fourth Circuit’s decision in United States v. Bailey,
975 F.2d 1028, 1033–34 (4th Cir. 1992), supports that
conclusion. In that case, the defendant pleaded guilty to a
count in the indictment of defrauding investors of more than
$15 million. Id. at 1033. The court rejected his argument on
appeal that restitution was proper only with respect to
investors specifically named in the indictment. Id. The court
reasoned that his “offense was defined broadly in the
indictment,” he pleaded guilty to the broadly defined charge
and, accordingly, restitution was appropriate for all investors
within the indictment, not just those investors named
specifically. Id. The same reasoning applies here:
Defendant pleaded guilty to Count One of the indictment, and
restitution is therefore appropriate for all victims of that
count. See also United States v. Jackson, 982 F.2d 1279,
1283–84 (9th Cir. 1992) (holding that restitution is
appropriate for all victims of the count of conviction, even
though other counts, involving the same victims and the same
loss, were dismissed).
Moreover, the “factual basis” requirement for the plea
colloquy does not mandate that the government list all facts
constituting the crime; the government merely must
demonstrate that “there is sufficient evidence to support the
conclusion that the defendant is guilty.” United States v.
Covian-Sandoval, 462 F.3d 1090, 1093 (9th Cir. 2006)
(internal quotation marks omitted). The purpose of the
“factual basis” requirement is simply “to ensure that the
defendant is not mistaken about whether the conduct he
14 UNITED STATES V. ZHOU
admits to satisfies the elements of the offense charged.”
United States v. Mancinas-Flores, 588 F.3d 677, 682 (9th Cir.
2009). Because the Nordstrom charges indisputably were
sufficient to establish a factual basis for Defendant’s crime,
the government was not required to mention the Target
charges at the plea colloquy.
But we need not and do not decide definitively whether
the district court erred, because any error was not plain. We
agree with the First Circuit’s treatment of this issue in Acosta.
In that case, the defendant pleaded guilty to a one-count
indictment for credit-card fraud during a 10-month period, in
violation of § 1029(a)(2), the same statute at issue here.
Acosta, 303 F.3d at 81. Before accepting the plea, the district
court had suppressed evidence of some of the fraudulent
transactions. Id. At sentencing, the district court ordered the
defendant to pay restitution to all victims, including victims
of the suppressed transactions. Id. at 82. The defendant did
not object. Id. On appeal, the First Circuit held that “there
was no plain error in the district court’s use of the suppressed
evidence to calculate restitution.” Id. at 90. For the same
reasons, we conclude that any error here was not plain.
AFFIRMED.
GRABER, Circuit Judge, concurring:
I concur in full in the majority’s opinion. I write
separately to question the validity of our case law with
respect to the standard of review applicable to arguments
raised for the first time on appeal by criminal defendants.
UNITED STATES V. ZHOU 15
A federal court of appeals normally will
not correct a legal error made in criminal trial
court proceedings unless the defendant first
brought the error to the trial court’s attention.
See United States v. Olano, 507 U.S. 725, 731
(1993). But Federal Rule of Criminal
Procedure 52(b), creating an exception to the
normal rule, says that “[a] plain error that
affects substantial rights may be considered
even though it was not brought to the [trial]
court’s attention.”
Henderson v. United States, 133 S. Ct. 1121, 1124 (2013)
(brackets in original) (emphasis omitted). Except in unusual
circumstances, that is all there is to it: we must review new,
unpreserved arguments for plain error. See, e.g., Molina-
Martinez v. United States, 136 S. Ct. 1338, 1343 (2016)
(“[B]ecause the defendant failed to object to the
miscalculation [of the Guidelines range], appellate review of
the error is governed by Federal Rule of Criminal Procedure
52(b).”); United States v. Dominguez Benitez, 542 U.S. 74, 76
(2004) (“Because the claim of [Federal Rule of Criminal
Procedure 11] error was not preserved by timely objection,
the plain-error standard of Rule 52(b) applies . . . .”).
An exception applies when the new issue concerns “a
nonwaivable limit on federal courts’ subject-matter
jurisdiction.” Musacchio v. United States, 136 S. Ct. 709,
716 (2016); see United States v. Doe, 366 F.3d 1069,
1075–76 (9th Cir. 2004) (en banc) (describing the limited
nature of this exception). But when the relevant statute “does
not impose a jurisdictional limit, the failure to raise it at or
before trial means that it is reviewable on appeal—if at
all—only for plain error.” Musacchio, 136 S. Ct. at 718
16 UNITED STATES V. ZHOU
(citing Fed. R. Crim. P. 52(b)); see also United States v.
Cotton, 535 U.S. 625, 631 (2002) (“Freed from the view that
indictment omissions deprive a court of jurisdiction, we
proceed to apply the plain-error test of Federal Rule of
Criminal Procedure 52(b) to respondents’ forfeited claim.”).
The Supreme Court has noted the possibility that Rule
52(b) may not apply if “some other provision authorizes the
error’s correction.” Olano, 507 U.S. at 732. But the Court
has rejected attempts to read exceptions into Rule 52(b)’s
“plain error” standard. See United States v. Vonn, 535 U.S.
55 (2002) (holding that Rule 11 does not create an exception
to plain-error review); Jones v. United States, 527 U.S. 373(1999) (holding that the Federal Death Penalty Act of 1994
did not create an exception to plain-error review).
The Supreme Court has left very little room—if any at
all—for the judicial creation of exceptions to Rule 52(b). The
Court has “cautioned against any unwarranted expansion of
Rule 52(b).” Johnson v. United States, 520 U.S. 461, 466
(1997). “Even less appropriate than an unwarranted
expansion of the Rule would be the creation out of whole
cloth of an exception to it, an exception which we have no
authority to make.” Id.; see also Puckett v. United States,
556 U.S. 129, 135–36 (2009) (noting this principle).
Our own case law generally accords with the principles
noted above: we review run-of-the-mill new, unpreserved
arguments for plain error. But one persistent line of our cases
allows a judicially created exception: “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); accord United States v.
UNITED STATES V. ZHOU 17
Torres, No. 14-10210, 2016 WL 3770517, at *7 (9th Cir. July
14, 2016); United States v. Joseph, 716 F.3d 1273, 1276 n.4
(9th Cir. 2013); United States v. Evans-Martinez, 611 F.3d
635, 642 (9th Cir. 2010); United States v. Saavedra-
Velazquez, 578 F.3d 1103, 1106 (9th Cir. 2009); United
States v. Flores-Montano, 424 F.3d 1044, 1047 (9th Cir.
2005) (per curiam); United States v. Si, 343 F.3d 1116, 1128
n.2 (9th Cir. 2003); United States v. Echavarria-Escobar,
270 F.3d 1265, 1267–68 (9th Cir. 2001); United States v.
Maldonado, 215 F.3d 1046, 1051 n.5 (9th Cir. 2000); United
States v. Petty, 80 F.3d 1384, 1387 (9th Cir. 1996); United
States v. Robertson, 52 F.3d 789, 791 (9th Cir. 1995); United
States v. Bruce, 976 F.2d 552, 554–55 (9th Cir. 1992); United
States v. Flores-Payon, 942 F.2d 556, 558 (9th Cir. 1991);
United States v. Patrin, 575 F.2d 708, 712 (9th Cir. 1978).
Our “pure question of law” exception contradicts Rule 52(b)
and the Supreme Court’s case law. Usually questions of law
are not jurisdictional, and certainly questions of law are not
necessarily jurisdictional, so the exception for jurisdictional
questions almost never applies. In my view, no legal source
authorizes the exception.
We first announced our “pure question of law” exception
in a criminal appeal in our 1978 decision in Patrin, 575 F.2d
at 712, and we have perpetuated the rule ever since by citing
Patrin or one of its progeny. Here’s how Patrin announced
the rule:
As a general rule, “a federal appellate
court does not consider an issue not passed
upon below.” Singleton v. Wulff, 428 U.S.
106, 120 (1976). . . .
....
18 UNITED STATES V. ZHOU
Our circuit has apparently recognized a
. . . narrow exception to the general rule.
When the issue conceded or neglected in the
trial court is purely one of law and either does
not affect or rely upon the factual record
developed by the parties, cf. Golden Gate
Bridge & Highway Dist. v. United States,
125 F.2d 872, 875 (9th Cir. 1942) (whether a
contract is ambiguous will be considered by
court of appeals although appellee had
conceded the ambiguity below), or the
pertinent record has been fully developed, see
United States v. Merrill, 211 F.2d 297,
302–03 & n.4 (9th Cir. 1954), the court of
appeals may consent to consider it. The
evident principle underlying this exception is
that the party against whom the issue is raised
must not be prejudiced by it. Thus, if he
might have tried his case differently either by
developing new facts in response to or
advancing distinct legal arguments against the
issue, it should not be permitted to be raised
for the first time on appeal.
Patrin, 575 F.2d at 712 (citations and footnote omitted). All
three of the cited cases are civil cases, in which Federal Rule
of Criminal Procedure 52(b) has no application. Cf. Shinseki
v. Sanders, 556 U.S. 396, 410–11 (2009) (distinguishing the
harmless error rule in civil and administrative cases from the
harmless error standard in criminal cases). Similarly,
Patrin’s explanation following the citations makes sense in
civil appeals, but it has no merit in criminal appeals, where
Rule 52(b)’s contrary prescription applies. Given the
Supreme Court’s statement that we have “no authority to
UNITED STATES V. ZHOU 19
make” “an exception” to Rule 52(b), Johnson, 520 U.S. at
466, our importation of a civil standard into the criminal
context cannot withstand scrutiny. Our “pure question of
law” exception is incorrect.
I have not uncovered a single sister circuit that applies our
“pure question of law” exception in criminal appeals. To the
contrary, our sister circuits routinely review pure questions of
law for plain error. See, e.g., United States v. Fuertes,
805 F.3d 485, 497 (4th Cir. 2015) (holding that the
defendant’s claim “is a purely legal one” and that “his claim
may be reviewed only for plain error”); United States v.
Angel, 355 F.3d 462, 469 (6th Cir. 2004) (holding that the
defendant raises a “pure question of law” and that, because it
“is being raised for the first time on appeal, we will apply the
‘plain error’ standard of review”). The Fifth Circuit’s
experience is telling. For a time, that court applied a version
of our “pure question of law” exception. E.g., United States
v. Bullard, 13 F.3d 154, 156 n.5 (5th Cir. 1994) (per curiam).
Sitting en banc, the court overruled Bullard and other similar
cases, and the court described the “plain error” standards
pursuant to Olano’s teachings. United States v. Calverley,
37 F.3d 160, 163–64 (5th Cir. 1994) (en banc), overruled in
other part by Johnson, 520 U.S. 461.
In sum, our line of the cases permitting an exception for
“pure questions of law” is contrary to Rule 52(b), Supreme
Court precedent, and the practice of our sister circuits. Here,
the standard of review may dictate the outcome.1 We ought
1
Arguably, the question here is a question of law, United States v. Reed,
80 F.3d 1419, 1421 n.3 (9th Cir. 1996), instead of a mixed question of law
and fact.
20 UNITED STATES V. ZHOU
to reconsider our errant line of cases en banc, either now or
in a future appropriate case.
TASHIMA, Circuit Judge, dissenting:
The majority holds that the district court did not plainly
err in ordering restitution for the Colorado Target charges
because “the text [of Count One] is broad enough to cover
both the Nordstrom charges and the Target charges.” Maj.
Op. at 11–12. Because I disagree with the majority’s strained
reading of the indictment – especially in light of the rest of
the record – I respectfully dissent.
As the majority notes, the district court “may award
restitution . . . only for loss that flows directly from ‘the
specific conduct that is the basis of the offense of
conviction.’” United States v. May, 706 F.3d 1209, 1214 (9th
Cir. 2013) (quoting United States v. Gamma Tech Indus.,
Inc., 265 F.3d 917, 927 (9th Cir. 2001)). “Thus, a court is
authorized to order restitution ‘for the offense of conviction
and not for other related offenses of which the defendant was
not convicted.’” Id. (quoting United States v. Batson,
608 F.3d 630, 636 (9th Cir. 2010)).1
1
The MVRA also authorizes restitution to “any person directly harmed
by the defendant’s criminal conduct in the course of [a] scheme,
conspiracy, or pattern,” 18 U.S.C. § 3663A(a)(2); see United States v.
Thomsen, 2016 WL 4039711, at 12 (9th Cir. Jul. 28, 2016), but that
broadened scheme-or-conspiracy exception doesn’t apply here. The
majority adopts the interpretation from the Tenth, First, and Fourth
Circuits that 18 U.S.C. § 1029(a)(2) does not “involve[] as an element a
scheme, conspiracy, or pattern of criminal activity.” See Maj. Op. at
10–11.
UNITED STATES V. ZHOU 21
The issue in this case is what “specific conduct” formed
“the basis of the offense of conviction.” To ascertain Zhou’s
offense of conviction, the Court must look to Count One of
the indictment, the charge to which Zhou pleaded guilty. See
United States v. Kubick, 205 F.3d 1117, 1129–30 (9th Cir.
1999).
An indictment must meet the following requirements:
An indictment must provide the defendant
with a description of the charges against him
sufficient to (1) enable him to prepare his
defense; (2) ensure him that he is being
prosecuted on the basis of facts presented to
the grand jury; (3) enable him to plead double
jeopardy against a later prosecution; and
(4) inform the court of the facts alleged so that
it can determine the sufficiency of the charge.
United States v. Livingston, 725 F.3d 1141, 1145 (9th Cir.
2013) (quoting United States v. Bohonus, 628 F.2d 1167,
1173 (9th Cir. 1980)).
To support its position that the indictment included the
Colorado Target charges, the majority relies entirely on only
two words: that Count One of the indictment alleges that the
fraud occurred in the Central District of California “and
elsewhere” (emphasis added). This bare assertion cannot
bear the weight the majority asks it to carry. If “and
elsewhere” were a catch-all encompassing literally every
location where Zhou might have committed credit card fraud
during the specified time period, it would be entirely unclear
what conduct was encompassed by the charge. An indictment
that referred, not to specific fraudulent conduct, but to
22 UNITED STATES V. ZHOU
fraudulent conduct anywhere in the United States, would not
meet Livingston’s requirements because it would not
sufficiently limit the facts the government could adduce at
trial to prove the charge. Cf. United States v. Doss, 630 F.3d
1181, 1191 (9th Cir. 2011) (noting that the indictment
sufficiently identified the time and place of the conduct
underlying the offense of conviction to give the defendant
“notice of what evidence might be presented at trial”).
Further, as the majority acknowledges, the record shows
that both the government and the district court understood
that the offense of conviction included only the California
Nordstrom charges. For example, during the plea colloquy,
the government stated that it would be prepared to prove the
fraudulent Nordstrom charges at trial, but did not mention the
Target charges. The purpose of the government’s showing as
to the factual basis for the plea “is to ensure that the
defendant is not mistaken about whether the conduct he
admits to satisfies the elements of the offense charged.”
United States v. Mancinas-Flores, 588 F.3d 677, 682 (9th Cir.
2009). This purpose cannot be satisfied if the court never
asks the defendant to confirm that the government’s
allegations regarding his conduct are correct. In this case, the
district court asked Zhou whether “everything” the
government said about his conduct and intent was true and
correct; but the government’s proffer referred only to the
Nordstrom charges. Because the court never asked Zhou
about his Colorado conduct, the Rule 11(b)(1) colloquy is not
susceptible to the reading necessary to support the majority’s
position that Zhou admitted to that conduct.
Additionally, the Presentence Investigation Report
explicitly differentiates between the Nordstrom charges and
UNITED STATES V. ZHOU 23
the Target charges:2 It refers to the Nordstrom charges as
“the transactions charged in the instant offense,” while it
characterizes the Target charges as conduct “relevant . . . to
the instant conviction” (emphasis added). The government
argued that Zhou should pay restitution for this “relevant”
conduct, in addition to the Nordstrom charges, and the district
court agreed.
Indeed, the district court understood that it was ordering
restitution not only for the offense of conviction, but for all
relevant conduct as well. The district court explicitly
acknowledged that “[t]he amount of restitution is not limited
to the amounts alleged in the count to which [Zhou pleaded]
guilty and will include losses arising from the count
dismissed as well as all relevant conduct in connection with
those counts” (emphasis added). The court accordingly
advised Zhou that the amount of restitution could be as high
as $160,000. The district court’s statement of the law, and
the corresponding restitution calculation, directly contravene
our case law, which holds that a district court is not
authorized to order restitution for conduct that is merely
related to the offense of conviction, but is not an element of
the offense. See May, 706 F.3d at 1215.
Both the text of the indictment and the record – including
the plea colloquy and the Presentence Investigation Report –
show that the Colorado Target charges did not form the basis
of the offense of conviction. The district court thus plainly
erred in ordering restitution for the losses attributable to
2
“To the extent that we refer here to facts contained exclusively in the
presentence report, we pro tanto lift the order sealing that document.”
United States v. Pimentel-Lopez, 2016 WL 3874414, at *4 n. 3 (9th Cir.
July 15, 2016).
24 UNITED STATES V. ZHOU
relevant conduct, rather than the offense of conviction. See
id. I thus would vacate the restitution order and remand with
directions that the district court limit its restitution order to
only the Nordstrom California charges, i.e., the losses
attributable to the offense of conviction.
I respectfully dissent.3
3
Because the issue under review here “is best characterized as a ‘mixed
question of law and fact,’ not a ‘pure question of law,’” Maj. Op. at 9
(citation omitted), I fail to see the need for or utility of the concurrence’s
extended discussion of our standard of review, in a plain error context, of
a pure question of law. Moreover, while the concurrence asserts that
“[h]ere, the standard of review may dictate the outcome,” Concur. Op. at
19, it doesn’t explain how that can be when the issue we are reviewing is
a mixed question of law and fact, not a pure question of law.