United States v. William Lee ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 26 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10425
Plaintiff-Appellee, D.C. No.
1:16-cr-00069-LJO-SKO-10
v.
MEMORANDUM*
WILLIAM LEE,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Lawrence O’Neill, District Judge, Presiding
Submitted May 13, 2020
San Francisco, California
Before: WALLACE and R. NELSON, Circuit Judges, and GWIN,** District
Judge.
Defendant William Lee appeals from his conviction and sentence after Lee
pleaded guilty to conspiring to commit murder in aid of racketeering, in violation
of 18 U.S.C. § 1959(a)(5). We have jurisdiction under 28 U.S.C. § 1291, and we
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.
affirm.
Lee first challenges his conviction on the grounds that 18 U.S.C. § 1959 is
vague because he did not receive the acceptance-of-responsibility sentencing
reduction despite his plea and admission. Assuming that his vagueness challenge
is not waived, Lee’s argument is incorrect. Whether or not a district court applies
the acceptance-of-responsibility reduction following a defendant’s guilty plea and
factual proffer is not the test for a vagueness challenge. See Schwartzmiller v.
Gardner, 752 F.2d 1341, 1345 (9th Cir. 1984) (explaining that a statute is void for
vagueness if it fails to give adequate notice to people of ordinary intelligence
concerning the conduct it proscribes, or if it invites arbitrary and discriminatory
enforcement). Accordingly, we reject Lee’s vagueness challenge.
Lee also challenges his sentence. Lee argues that the district court plainly
erred by using the wrong cross-reference in calculating Lee’s base offense level.
The district court used U.S.S.G. § 2A1.5—which applies to “Conspiracy or
Solicitation to Commit Murder”—and sets the base offense level at 33. Lee argues
that the district court should have used U.S.S.G. § 2A2.1—which applies to
“Assault with Intent to Commit Murder; Attempted Murder”—and sets the offense
level at 27 if the object of the offense would not have constituted first degree
murder.
Lee’s sentencing challenge fails. The district court correctly used the
conspiracy to commit murder cross-reference listed at U.S.S.G. § 2A1.5(a). The
object of Lee and his coconspirators’ conspiracy, as stated clearly in the
indictment, was first degree murder. Lee admitted to conspiring to commit murder
at his plea hearing. Thus, the district court used the correct cross-reference.
AFFIRMED.