United States of America v. Jonathan Hoang

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JONATHAN HOANG,
Defendant - Appellant.
No. 14-10342
D.C. No. 5:12-cr-00583-EJD-1
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding
Argued and Submitted October 21, 2015
San Francisco, California
Before: BLACK,** CLIFTON, and N.R. SMITH, Circuit Judges.
Jonathan Hoang (“Hoang”) appeals his sentence following his guilty plea to
securities fraud, impersonating a federal agent, and possession of a counterfeit
agency seal. We have jurisdiction under 28 U.S.C. § 1291. We affirm.
FILED
JAN 21 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Susan H. Black, Senior Circuit Judge for the U.S.
Court of Appeals for the Eleventh Circuit, sitting by designation.

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For the first time on appeal, Hoang argues the district court erred in not sua
sponte reducing his offense level by one additional level for acceptance of
responsibility, pursuant to U.S.S.G. § 3E1.1(b).
1. Black’s Law Dictionary defines “sua sponte” as “[w]ithout prompting or
suggestion” or “on its own motion.” Sua sponte, Black’s Law Dictionary (10th ed.
2014). Under circuit precedent, the district court is not required to sua sponte
override the government’s decision to withhold a § 3E1.1(b) motion; rather, the
burden is on the defendant to object specifically to the government exceeding its
discretion under § 3E1.1(b). See United States v. Espinoza-Cano, 456 F.3d 1126,
1138 (9th Cir. 2006) (requiring defendants to meet a “threshold burden” by
presenting “objective evidence of an improper motive on the part of the
government”); United States v. Johnson, 581 F.3d 994, 1001 (9th Cir. 2009)
(holding that when a district court reviews “the government’s refusal to file a
§ 3E1.1(b) motion . . . [t]he burden of showing [improper motive] rests on the
defendant”). Although Amendment 775 expanded the meaning of “improper
motive” to withhold the motion, it did not abrogate pre-amendment case law
relieving the defendant of his obligation to object. See U.S.S.G. supp. app. C,
amend. 775 (2013); see also Espinoza-Cano, 456 F.3d at 1138.
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2. When the appellant raises an argument on appeal that was not raised before
the district court, we review for plain error. United States v. Jackson, 697 F.3d
1141, 1144 (9th Cir. 2012) (per curiam). “A challenge to an adjustment of an
offense level must be raised specifically at sentencing in order to afford the district
court an opportunity to correct any potential error.” United States v. Baker, 63 F.3d
1478, 1500 (9th Cir. 1995). At sentencing, the district court granted Hoang a two-
level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(a). The
government did not move for the additional one-level reduction under § 3E1.1(b).
Although Hoang generally argued he was entitled to the full three-level reduction,
he did not object to the government withholding its § 3E1.1(b) motion. Nor did he
argue the court should sua sponte grant the additional one-level reduction. The
district judge asked three times if there was anything further the parties wanted to
address. First, after the court had granted only the two-level reduction under
§ 3E1.1(a), the court asked if both parties agreed to the calculation of the total
offense level. Both parties agreed. Second, after the court had heard argument from
both parties on the determination of Hoang’s criminal history category, the court
asked again if there was anything further from either party. Hoang made no
objection. Third, after the court heard from the probation office regarding the
determination of Hoang’s criminal history category, the court asked if the parties
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had any further objections. Hoang said that he did, but then objected only to the
recommended amount of restitution.
Thus, Hoang waived his § 3E1.1(b) arguments when he failed to object
specifically in the district court. His general request for a three-level reduction was
insufficient given the requirements of Espinoza-Cano and Johnson. We therefore
review for plain error.
3. Under the plain error standard, relief is not warranted unless (1) there has
been error; (2) the error was plain; (3) the plain error affected substantial rights;
and (4) the plain error seriously affected the fairness, integrity, or public reputation
of the judicial proceedings. See United States v. Gonzalez-Aparicio, 663 F.3d 419,
428 (9th Cir. 2011). “To be plain, the error must be clear or obvious, and an error
cannot be plain where there is no controlling authority on point and where the most
closely analogous precedent leads to conflicting results.” Id. (internal quotation
marks and citation omitted); see also United States v. Budziak, 697 F.3d 1105,
1110 (9th Cir. 2012) (holding that a jury instruction defining “distribution” under
18 U.S.C. § 2252 was not plain error because the Ninth Circuit “had not yet
resolved the issue” of whether “distribution” included file-sharing programs).
Here, even assuming the district court erred in failing to sua sponte grant the
additional one-level reduction, the error was not plain. The Ninth Circuit has not
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yet resolved the issue of how Amendment 775 modifies prior precedent regarding
§ 3E1.1(b). See Gonzalez-Aparicio, 663 F.3d at 428. For this reason, the district
court did not plainly err.
AFFIRMED.
5

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No. 14-10342, United States v. Hoang
CLIFTON, Circuit Judge, dissenting:
I respectfully dissent. In light of Amendment 775, I would vacate the
sentence and remand so that the district court could revisit the sentence on an open
record.
FILED
JAN 21 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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