United States v. Peter Chui Lin Wong

2 F.3d 927 UNITED STATES of America, Plaintiff-Appellee, v. Peter Chui Lin WONG, Defendant-Appellant. No. 90-10356. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 15, 1992. Decided Aug. 10, 1993. Harold J. Rosenthal, Riordan & Rosenthal, San Francisco, CA, for defendant-appellant. Rory K. Little, and Daniel A. Saunders, Law Student Intern, U.S. Atty.'s Office, San Francisco, CA, for plaintiff-appellee. Appeal from the United States District Court for the Northern District of California. Before: SCHROEDER, NORRIS, and BRUNETTI, Circuit Judges. SCHROEDER, Circuit Judge: 1 In this case, we once again are asked to review the relevant conduct provisions of the Sentencing Guidelines, U.S.S.G. Sec. 1B1.3. Appellant Peter Chui Lin Wong contends that these provisions, which allow the consideration of total losses from groupable offenses as identified in section 3D1.2(d), violate the statutory mandate of the Sentencing Guidelines' authorizing legislation. He asks us to determine that the Sentencing Commission exceeded the scope of its statutory authority when it promulgated the relevant conduct provisions of the Sentencing Guidelines. The Eighth Circuit en…

In this case, we once again are asked to review the relevant conduct provisions of the Sentencing Guidelines, U.S.S.G. § 1B1.3. Appellant Peter Chui Lin Wong contends that these provisions, which allow the consideration of total losses from groupable offenses as identified in section 3D1.2(d), violate the statutory mandate of the Sentencing Guidelines’ authorizing legislation. He asks us to determine that the Sentencing Commission exceeded the scope of its statutory authority when it promulgated the relevant conduct provisions of the Sentencing Guidelines. The Eighth Circuit en banc has recently rejected a similar contention, United States v. Galloway, 976 F.2d 414 (8th Cir.1992) (en banc). We conclude that we must reach the same result.

Wong was charged in 1989 with 18 counts of bank fraud in violation of 18 U.S.C. § 1344 and five counts of false claims in violation of 18 U.S.C. § 1001 in a superseding indictment. Wong was alleged to have used his business, the Pacific Atlantic Trading Company (“PATCO”), to receive loans or extensions of credit from a number of banks based on false bills of lading. Wong pleaded guilty to two counts. The first was a bank fraud count against the…

dissenting:

This appeal requires us to decide whether the Sentencing Commission exceeded the limits of its statutory rulemaking authority in promulgating guideline lB1.3(a)(2), the controversial 1 relevant conduct provision. I believe that it did.

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In the Sentencing Reform Act, Congress created the Sentencing Commission and charged it with the mission of promulgating sentencing guidelines — that is, of defining categories of offenses and categories of defendants and establishing sentencing ranges for each combination of categories. See 28 U.S.C. § 994 (b)(1). The Congress did not, however, give the Commission carte blanche in carrying out its mission. Rather, Congress “legislated a full hierarchy of punishment ... and stipulated the most important offense and offender characteristics to place defendants within these categories.” Mistretta v. United States, 488 U.S. 361, 377 , 109 S.Ct. 647, 657 , 102 L.Ed.2d 714 (1989). That is, Congress spelled out with great care and specificity how the Sentencing Guidelines should structure criminal punishment.

The statute isolates two factors as the major determinants of a sentence: the seriousness of the offense of conviction and…