United States v. Steven Yamashiro

I. Factual Background

From December 2005 to December 2007, Steven Yamashiro, a registered investment advisor and securities agent, engaged in a scheme to defraud his clients. The scheme involved more than ten victims and more than $3.5 million. Yamashiro was charged with eight counts of wire fraud in violation of 18 U.S.C. § 1343, two counts of money laundering in violation of 18 U.S.C. § 1957, and two asset forfeiture claims pursuant to 18 U.S.C. §§ 981(a)(1)(C) and 982. On December 27, 2011, Yamashiro pleaded guilty to two counts of wire fraud (Counts 1 & 6) and one count of money laundering (Count 10). Yamashiro waived any right to appeal his convictions, except a claim based on an involuntary plea. He also waived his right to appeal a sentence of 78 months or less.

The Probation Office calculated a total offense level of 26 and a criminal history category of I, resulting in a Sentencing Guidelines range of 63–78 months of imprisonment. The Probation Office recommended a low-end sentence of 63 months.

On September 17, 2012, the day scheduled for sentencing, Yamashiro requested a substitution of counsel. The district court granted the motion, set a new date for sentencing,…

Partial Concurrence and Partial Dissent by Judge BEA.

OPINION

Steven Yamashiro appeals his conviction and sentence for wire fraud and money laundering. We affirm his conviction, but vacate his sentence as a result of structural error and rémand for resentencing before a different judge.

I. Factual Background

From December 2005 to December 2007, Steven Yamashiro, a registered investment ' advisor and securities agent, engaged in a scheme to defraud his clients. The scheme involved more than ten victims and more than $3.5 million. Yamashiro was charged with eight counts of wire fraud in violation of 18 U.S.C. § 1343 , two counts of money laundering in violation of 18 U.S.C. § 1957 , and two asset forfeiture claims pursuant to 18 U.S.C. §§ 981 (a)(1)(C) and 982. On December 27, 2011, Yamashiro pleaded guilty to two counts of wire fraud (Counts 1 & 6) and one count of money laundering (Count 10). Yamashiro waived *1234 any right to appeal his convictions, except a claim based on an involuntary plea. He also waived his right to appeal a sentence of 78 months or less.

The Probation Office calculated a total offense level of 26 and a criminal history category of I, resulting in a…

concurring in part and dissenting in part:

I agree with the majority that we should affirm the district court’s decision to deny Steven Yamashiro’s' motion to withdraw his guilty plea. But I disagree that the district court committed “plain error” when it permitted one victim to allocute without Yamashiro’s preferred counsel present.

The standard of review matters. We must apply plain-error review when, as here, there was no objection lodged in the district court to the claimed error. See Puckett v. United States, 556 U.S. 129, 135 , 129 S.Ct. 1423 , 173 L.Ed.2d 266 (2009). The Supreme Court has explained the plain-error standard is a “limitation on appellate authority” that permits reversal in a small set of circumstances where the defendant forfeits his right to contest the district court’s decision but that forfeiture is excused on appeal. See United States v. Olano, 507 U.S. 725, 732-33 , 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993). The rule is meant to correct “only ‘particularly egregious errors’ ... solely in those circumstances in which a miscarriage of justice would otherwise result.” United States v. Young, 470 U.S. 1, 15 , 105 S.Ct. 1038 , 84 L.Ed.2d 1 (1985) (citations…