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-

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 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…

Defendant Yijun Zhou used fraudulent credit cards at a Target store in Colorado arid 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:

*1010 After Defendant pleaded guilty without the benefit of a plea agreement, the government stated…

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.

Henderson v. United States, — U.S. -, 133 S.Ct. 1121, 1124 , 185 L.Ed.2d 85 *1015 (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, — U.S. -, 136 S.Ct. 1338, 1343 , 194 L.Ed.2d 444 (2016) (“[Because 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 62(b).”); United States v. Dominguez Benitez, 542 U.S. 74, 76 , 124 S.Ct. 2333 , 159 L.Ed.2d 157 (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, — U.S. -, 136 S.Ct.…

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 1013. 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)).

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…