United States v. Soon Kyung Park

MEMORANDUM *

Soon Kyung Park (“Park”) appeals his conviction for three counts of foreign transportation of persons in execution of a scheme to defraud. He also challenges his sentence. We affirm the conviction but remand under United States v. Ameline, 409 F.3d 1073, 1074 (9th Cir.2005) (en banc), for reconsideration of the sentence.

1. The district court did not commit plain error by submitting to the jury a special verdict form that combined questions of guilt with supplemental questions relevant to sentencing. We review for plain error the district court’s use of the special verdict form because Park did not object to it. United States v. O’Looney, 544 F.2d 385, 392 (9th Cir.1976).

The district court did not plainly err under current law in using the special verdict form. United States v. Olano, 507 U.S. 725, 734 , 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993) (explaining that we “cannot correct [a plain] error ... unless the error is clear under current law”). The court structured the form so that the jury first decided whether Park was guilty and then, only if it found him guilty, answered the supplemental questions dealing with sentencing factors. By employing this structure,…