United States v. Steven Wang, 944 F.3d 1081

Steven Wang, a naturalized U.S. citizen in Guam, mailed false I-129 petitions from 2005–2009 to obtain H-2B visas for 173 workers; charged in a 128-count superseding indictment.
In Case 1 Wang pleaded guilty to mail fraud (18 U.S.C. § 1341), visa fraud (18 U.S.C. § 1546(a)), money laundering, and willful failure to pay tax; in Case 2 he pleaded guilty to conspiracy to commit visa fraud (later conduct involving an L-1 petition).
At a single sentencing (June 2017) the probation officer and district court applied the general-fraud Guideline §2B1.1 to the mail fraud conviction, producing a higher offense level (29); after a §5K1.1 6-level departure the court imposed 57 months in each case to run consecutively (114 months total).
On appeal Wang argued §2B1.1(c)(3) required cross-referencing to the immigration-specific Guideline §2L2.1 because the mail-fraud count established conduct proscribing visa fraud under §1546(a).
The Ninth Circuit held the district court plainly erred by applying §2B1.1 instead of §2L2.1, concluded the error affected Wang’s substantial rights (reducing the combined Guidelines exposure substantially), reversed and vacated the sentences, and remanded for resentencing with §5G1.2 guidance.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether §2B1.1 or §2L2.1 governs calculation of the offense level for mail-fraud count	Govt conceded the mail-fraud count established visa-fraud conduct but argued other convictions and application note 3 to §1B1.5 justified the district court’s approach	Wang: §2B1.1(c)(3) cross-reference and commentary (and Velez) require applying §2L2.1 because the count established a §1546(a) offense	Court: District court erred; §2B1.1(c)(3) applies and the mail-fraud count should have been sentenced under §2L2.1; error was plain and affected substantial rights; vacated and remanded
Whether the sentencing error warrants resentencing and how to apply §5G1.2 on remand	Govt did not contest remand consequence if error found	Wang: district court also misapplied §5G1.2 in imposing consecutive terms	Court: Remand required; provided §5G1.2 guidance—identify total punishment under combined Guidelines, run concurrent if the count with highest statutory maximum suffices, otherwise impose consecutive terms only as necessary per §5G1.2(d)
Standard of review / waiver: whether Wang forfeited objection or merits de novo review	Govt argued forfeiture/waiver or that review should not be plain error	Wang argued legal question supports de novo review	Court: Rejected waiver; applied plain-error review (error, plain, affected substantial rights, and seriously affected fairness)

United States v. Velez, 113 F.3d 1035 (9th Cir. 1997) (district court must apply more specific immigration guideline when fraud count establishes immigration offense)
Puckett v. United States, 556 U.S. 129 (2009) (plain error standard for forfeited objections)
Molina-Martinez v. United States, 136 S. Ct. 1338 (2016) (defendant can show prejudice by pointing to an incorrect, higher Guidelines range)
United States v. Joetzki, 952 F.2d 1090 (9th Cir. 1991) (use combined Guidelines range to select total punishment and §5G1.2 guidance on concurrency)
United States v. Cuevas-Lopez, 934 F.3d 1056 (9th Cir. 2019) (rules on which Guidelines edition to apply at sentencing)