                                                                            FILED
                           NOT FOR PUBLICATION                               JAN 21 2016

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-10342

              Plaintiff - Appellee,              D.C. No. 5:12-cr-00583-EJD-1

  v.
                                                 MEMORANDUM*
JONATHAN HOANG,

              Defendant - Appellant.


                    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.


        *
             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.
      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.




                                           2
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


                                           3
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


                                            4
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
                                                                           FILED
No. 14-10342, United States v. Hoang                                        JAN 21 2016

                                                                        MOLLY C. DWYER, CLERK
CLIFTON, Circuit Judge, dissenting:                                       U.S. COURT OF APPEALS



      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.
