United States v. Chao Fan Xu

MEMORANDUM

Defendants Chao Fan Xu (Chaofan), Guo Jun Xu (Guojun), Wan Fang Kuang (Wanfang), and Ying Yi Yu (Yingyi) appeal, for the second time, the sentences imposed following their convictions for racketeering conspiracy, conspiracy to transport and transact in criminally derived funds in violation of 18 U.S.C. §§ 1957 and 2314, and immigration fraud. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742 . For the following reasons, we vacate and remand.

1. In defendants’ first appeal, we held that on remand the district court could not apply a one-level sentencing enhancement under U.S.S.G. § 2Sl.l(b)(2)(A) for a substantive violation of 18 U.S.C. § 1957 . See United States "v. Chao Fan Xu, 706 F.3d 965, 993 (9th Cir. 2013), abrogated on other grounds by RJR Nabisco, Inc. v. European Cmty., — U.S. -, 136 S.Ct. 2090 , 195 L.Ed.2d 476 (2016). On remand, however, the district court continued to apply a one-level sentencing enhancement under U.S.S.G. § 2Sl.l(b)(2)(A). This was error. See Gall v. United States, 552 U.S. 38, 51 , 128 S.Ct. 586 , 169 L.Ed.2d 445 (2007) (stating that “failing to calculate (or improperly calculating) the Guidelines range” constitutes…