Opinion
21-10019
11-09-2022
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. THY CHANN, Defendant-Appellant.
NOT FOR PUBLICATION
Argued and Submitted October 21, 2022 San Francisco, California
Appeal from the United States District Court for the Eastern District of California D.C. No. 2:99-cr-00433-WBS-3 William B. Shubb, District Judge, Presiding
Before: S.R. THOMAS and M. SMITH, Circuit Judges, and McSHANE, [**] District Judge.
MEMORANDUM [*]
Appellant Thy Chann appeals the 720-month sentence imposed for three counts of conspiracy to commit a robbery affecting interstate commerce in violation of the Hobbs Act, 18 U.S.C. § 1951(a). These counts were the only remaining convictions after multiple appeals spanning the last two decades. As the parties are very familiar with the facts, we do not recount them in detail here.
We review factual determinations made at sentencing for clear error. United States v. Franklin, 18 F.4th 1105, 1115 (9th Cir. 2021), cert denied, 2022 WL 4654800 (U.S. Oct. 3, 2022). "[E]vidence against a defendant in a sentencing hearing must bear sufficient indicia of reliability ...." Id. Reliance on unreliable, materially false information at sentencing violates due process. Id. at 1116 (citing United States v. Weston, 448 F.2d 626 (9th Cir. 1971). "We will find an abuse of discretion if the defendant shows that the district court relied on materially false or unreliable information." F.T.C. v. Am. Nat. Cellular, 868 F.2d 315, 322 (9th Cir. 1989) (citing United States v. Messer, 785 F.2d 832, 834 (9th Cir. 1986)).
At a pre-sentencing status conference, the district judge expressed his concern numerous times over possible sentencing disparities between Chann and three more culpable co-defendants the judge expected to resentence at a later date. For instance, the judge said,
The reason I ask that question now is that I am trying to think and decide whether it makes sense to wait until the appeals of the other three have been finalized and take all of them together rather than taking these four now and then having the next three come back and some new case gets
decided by the Supreme Court or some new argument comes up and we run the risk of some disparity among these defendants.
In response, the Government repeatedly assured the district judge that, although the other defendants originally received concurrent sentences on their Hobbs Act convictions, at resentencing they would be subject to the same consecutive sentences on each count faced by Mr. Chann. For example, in its sentencing memorandum in advance of Chann's resentencing, the Government urged the court to reject Chann's disparity argument. The Government argued that "when [the more culpable co-defendants] come before this Court for resentencing, the Court will have full authority and discretion to impose an overall sentence that it believes is appropriate and can run sentences consecutive on various counts in order to achieve the overall purposes of sentencing under § 3553(a)." At sentencing, the Government made numerous similar statements assuring the judge that any disparity argument was meritless.
The Government's assurances, which appear to be relied upon by the district judge, turned out to be incorrect. None of those more culpable co-defendants ever appeared before the judge for resentencing because the Government's appeal had been dismissed on the Government's own motion and the sentences on the remaining counts had been served. In fact, mere weeks after the judge sentenced Chann to 720 months, two of the more culpable co-defendants were released from prison.
Two of the three more culpable co-defendants were dismissed on the Government's own motion while the third was dismissed for failure to prosecute. See United States v. Huynh, No. 16-10078, 2020 WL 13442412, at *1 (9th Cir. July 27, 2020).
Because Chann has established that the sentencing judge relied on false information in formulating his sentence, the sentence must be set aside. Compare Messer, 785 F.2d at 834 (defendant challenging information used in his sentencing must show 1) that the information is false or unreliable and 2) that the sentencing judge relied on this information), with United States v. Rachels, 820 F.2d 325, 328 (9th Cir. 1987) (per curiam) (affirming sentence because although the judge relied on certain statements in imposing a harsh sentence, "Rachels has offered no evidence that the affidavits submitted by the government attesting to the fraudulent nature of Rachels' dispensing of drugs were either false or unreliable."). While the Government's error appears to be based on a genuine and honest mistake, given the district judge's multiple comments regarding his desire to avoid disparate sentences between the co-defendants, we are unable to say the erroneous assumption played no part in the district judge's formulation of Chann's sentence.
REVERSED AND REMANDED FOR RESENTENCING.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
[**] The Honorable Michael J. McShane, United States District Judge for the District of Oregon, sitting by designation.