United States v. Xiao Hua He

Concurring in part and dissenting in part.

I concur in the majority’s decision with respect to He, Chen, and Chang. I disagree, however, with the majority’s conclusion that the district court did not err by refusing to grant Zhen the three-level reduction for smuggling committed “other than for profit.” U.S.S.G. § 2L1.1. I do not believe that allowing Zhen to pay his full fare two months late amounted to a “payment” or a “discount.” The delay would be more appropriately classified as relief from the physical coercion imposed on other passengers; there was evidence that the smugglers physically attacked and threatened to physically injure passengers who did not pay on time. I would therefore reverse the district court’s refusal to grant Zhen the sentence reduction and remand for resentencing.

MEMORANDUM **

Xiao Hua He, Jin Sheng Chen, Hua Chang, and Wen Mo Zhen appeal their convictions and sentences for alien smuggling in violation of 8 U.S.C. § 1324 (a)(1)(A)(i) & (B)(i). The facts and prior proceedings are known to the parties; they are not recited herein, except as necessary.

I

The appellants claim that the district court erred in striking allegations in the indictment that they acted with a financial motive. The district court did not impermissibly broaden the indictment; the *440 allegations were mere surplusage because financial gain is not an element of the crime for which the appellants were charged. See, e.g., Bargas v. Burns, 179 F.3d 1207 , 1216 n. 6 (9th Cir.1999), cert. denied, 529 U.S. 1073 , 120 S.Ct. 1686 , 146 L.Ed.2d 493 (2000). Further, the appellants were not prejudiced by the district court’s action. E.g., United States v. Aguilar, 756 F.2d 1418, 1423 (9th Cir.1985). The court struck the indictment pretrial. While the appellants claim that they were unfairly surprised by the district court’s action, they could have sought a continuance, but did not.

II

Chen and Zhen appeal the district court’s refusal to apply U.S.S.G. § 2L1.1, which allows…