United States v. Kwon Woo Sung

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 21 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10518
Plaintiff-Appellee, D.C. No.
1:16-cr-00013-FMTG-1
v.
KWON WOO SUNG, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Guam
Frances Tydingco-Gatewood, Chief Judge, Presiding
Argued and Submitted August 8, 2017
Pasadena, California
Before: CALLAHAN and OWENS, Circuit Judges, and FABER,** District Judge.
Defendant Kwon Woo Sung (“Sung”) appeals from the sentence imposed
following his guilty plea to one count of interference with flight crew members and
attendants in violation of 49 U.S.C. § 46504. As the parties are familiar with the
facts, we do not recount them here. We have jurisdiction under 18 U.S.C. § 3742*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable David A. Faber, United States District Judge for the
Southern District of West Virginia, sitting by designation.
and 28 U.S.C. § 1291. We vacate the sentence and remand for resentencing.
“We review a district judge’s sentence for abuse of discretion.” United
States v. Blinkinsop, 606 F.3d 1110, 1114 (9th Cir. 2010). This “requires
determining: (1) whether there was procedural error in formulating the sentence,
and (2) whether the sentence is substantively reasonable.” Id.While now advisory, the Sentencing Guidelines “should be the starting point
and the initial benchmark” for sentencing determinations. Gall v. United States,
552 U.S. 38, 49 (2007). Reversible procedural error exists where a district court
“use[s] the statutory maximum rather than the guidelines range as the baseline for
sentencing.” United States v. Burgum, 633 F.3d 810, 813 (9th Cir. 2011).
Although here the district court mentioned the zero to six month Guidelines
range several times during sentencing, the record indicates that it used 49 U.S.C.
§ 46504’s statutory maximum—and not the Guidelines—as the baseline for
sentencing. The district court repeatedly stated that its “initial thought was to
sentence the defendant to ten years’ imprisonment.” Further, it explained that it
had “thrown out the sentencing guidelines,” and was “sentencing [Sung] under the
statute.” Accordingly, because the district court did not use the Guidelines as the
baseline for sentencing, it committed reversible procedural error.
Where reversible procedural error exists, we “remand for resentencing
pursuant to 18 U.S.C. § 3742(f), without reaching the question of whether the
2
sentence as a whole is reasonable in light of [18 U.S.C.] § 3553(a).” United States
v. Cantrell, 433 F.3d 1269, 1280 (9th Cir. 2006). Accordingly, we do not reach the
sentence’s substantive reasonableness.1
VACATED and REMANDED.
1
We also do not reach Sung’s contention that the district court erred in finding him
ineligible for home confinement under U.S.S.G. § 5C1.1.
3