                    FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                No. 15-10152
          Plaintiff-Appellee,
                                            D.C. No.
               v.                    1:12-cr-00012-RVM-1

WEI LIN,
           Defendant-Appellant.               OPINION


      Appeal from the United States District Court
     for the District of the Northern Mariana Islands
      Ramona V. Manglona, Chief Judge, Presiding

        Argued and Submitted October 18, 2016
                  Honolulu, Hawaii

                 Filed November 14, 2016

       Before: J. Clifford Wallace, Jerome Farris,
          and Paul J. Watford, Circuit Judges.

                    Opinion by Judge Farris
2                      UNITED STATES V. LIN

                            SUMMARY*


                           Criminal Law

    The panel vacated a sentence and remanded for
resentencing in a case in which the defendant pled guilty to
conspiracy to commit sex trafficking in violation of 18 U.S.C.
§ 1594(c), which carries no mandatory minimum.

    The panel held that common sense, the plain language of
the Sentencing Guidelines, and the Sentencing Commission’s
commentary, all show that U.S.S.G. § 2G1.1(a)(1), which
provides that the offense level for sex trafficking is 34 “if the
offense of conviction is 18 U.S.C. § 1591(b)(1),” only applies
to defendants who are subject to the fifteen-year mandatory
minimum under 18 U.S.C. § 1591(b)(1). Because the
defendant was not subject to § 1591(b)(1)’s mandatory
minimum, the panel concluded that the district court erred in
applying the base level of 34 set forth in § 2G1.1(a)(1), rather
than the base offense level of 14, set forth in U.S.S.G.
§ 2G1.1(a)(2).




    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                    UNITED STATES V. LIN                       3

                         COUNSEL

Bruce Berline (argued), Saipan, Commonwealth of the
Northern Mariana Islands, for Defendant-Appellant.

Garth R. Backe (argued), Assistant United States Attorney;
Alicia A.G. Limtiaco, United States Attorney; United States
Attorney’s Office, Saipan, Commonwealth of the Northern
Mariana Islands; for Plaintiff-Appellee.


                          OPINION

FARRIS, Senior Circuit Judge:

    Defendant Wei Lin was charged with conspiracy to
commit sex trafficking, in violation of 18 U.S.C. § 1594(c),
and several counts of sex trafficking, in violation of 18 U.S.C.
§ 1591(a). Lin pled guilty to the conspiracy count, which
carried no mandatory minimum. See 18 U.S.C. § 1594(c). In
exchange, the substantive sex trafficking offenses, which
carried fifteen-year mandatory minimums, were dismissed.
See 15 U.S.C. § 1591(b)(1). After the district court made it
clear that the base offense level for Lin’s crime would be 34,
Lin moved to withdraw his guilty plea, based on his
attorney’s erroneous advice that his base offense level would
be 14. The district court denied Lin’s motion, and sentenced
Lin to 235 months in prison. Lin now appeals, and argues
that: (1) the district court erred in determining his base
offense level; (2) if the district court correctly determined his
base offense level, then the court erred in denying his motion
to withdraw his guilty plea; and (3) the district court imposed
a substantively unreasonable sentence. We have jurisdiction
pursuant to 28 U.S.C. §§ 1291, 1294 and 48 U.S.C. §§ 1821,
4                      UNITED STATES V. LIN

1824. We hold that the district court erred in calculating
Lin’s base offense level, and we reverse, vacate Lin’s
sentence, and remand for re-sentencing.1

   We review the district court’s interpretation of the
sentencing guidelines de novo. United States v. Rivera,
527 F.3d 891, 908 (9th Cir. 2008).

    The base offense level for a conspiracy to commit sex
trafficking is the same as the base offense level for the
underlying substantive sex trafficking crime. See U.S.S.G.
§ 2X1.1(a). The base offense level for sex trafficking is 34
“if the offense of conviction is 18 U.S.C. § 1591(b)(1).”
U.S.S.G. § 2G1.1(a)(1). Otherwise, the base offense level is
14. U.S.S.G. § 2G1.1(a)(2).

    18 U.S.C. § 1591(b)(1) is not a separate offense. See
United States v. Todd, 627 F.3d 329, 334 (9th Cir. 2009).
18 U.S.C. § 1591(a) describes the offense of sex trafficking,
and § 1591(b) describes the different penalties applicable to
convictions under § 1591(a). Id. 18 U.S.C. § 1591(b)(1)
imposes a fifteen-year mandatory minimum if the offense
involved minors under the age of fourteen, or force, threats of
force, fraud or coercion. Lin’s underlying substantive sex
trafficking offense involved fraud or coercion, but the
mandatory minimum in 18 U.S.C. § 1591(b)(1) does not
apply to conspiracy to commit sex trafficking, see 18 U.S.C.



    1
       This decision makes Lin’s guilty plea withdrawal argument moot,
since Lin only wanted to withdraw his guilty plea because his base offense
level was set at 34. We need not reach Lin’s substantive unreasonableness
argument, since we vacate his sentence based on the base offense level
error.
                   UNITED STATES V. LIN                      5

§ 1594(c), so Lin was not subject to the fifteen-year
mandatory minimum.

    According to Lin’s plea agreement and judgment, Lin was
convicted of violating 18 U.S.C. § 1594(c). The substantive
offense underlying his conspiracy conviction was 18 U.S.C.
§ 1591(a). The plea agreement and judgment do not mention
18 U.S.C. § 1591(b)(1). Nevertheless, the district court found
that, for purposes of determining his base offense level, Lin’s
underlying offense of conviction was 18 U.S.C. § 1591(b)(1),
because the conduct involved in the underlying substantive
offense would have been punished under § 1591(b)(1) if Lin
had been convicted of the substantive offense. We disagree.

    The most straightforward interpretation of U.S.S.G.
§ 2G1.1(a)(1) is that a base offense level of 34 applies only
when the defendant is actually convicted of an offense subject
to the punishment provided in 18 U.S.C. § 1591(b)(1).
However, the district court rejected this interpretation of
U.S.S.G. § 2G1.1(a)(1). The district court reasoned that
because 18 U.S.C. § 1591(b)(1) is not a separate offense, no
one can ever be convicted of violating 18 U.S.C.
§ 1591(b)(1). See Todd, 627 F.3d at 334. In order for
U.S.S.G. § 2G1.1(a)(1) to have any meaning, then, it must
require something other than a conviction for violating
18 U.S.C. § 1591(b)(1).

    The district court then found that Lin’s “offense of
conviction” should be determined by looking at his offense
conduct. Since Lin’s underlying substantive offense was a
violation of 18 U.S.C. § 1591(a) by means of fraud or
coercion, and since § 1591(b)(1) punishes violations of
§ 1591(a) that are committed by means of fraud or coercion,
6                  UNITED STATES V. LIN

the district court concluded that Lin’s offense of conviction
was 18 U.S.C. § 1591(b)(1).

    The district court stated that this interpretation was
consistent with the definition of “offense of conviction”
found in U.S.S.G. § 1B1.2(a). But U.S.S.G. § 1B1.2(a) does
not give a general definition for the term “offense of
conviction” to be applied throughout the guidelines. Instead,
it merely instructs courts on what “offense of conviction”
means when “[d]etermin[ing] the offense guideline section
. . . applicable to the offense of conviction.” U.S.S.G.
§ 1B1.2(a). In this context, a conduct-based definition makes
perfect sense. Offense guideline sections are not named with
reference to specific statutes, although Appendix A to the
Sentencing Guidelines provides an index matching certain
statutes to their corresponding guideline sections. When
trying to determine which guideline sections apply to which
crimes, a court must naturally look at the offense conduct of
the crime. For example, in determining which offense
guideline applies to a 18 U.S.C. § 1591(a) conviction, a court
must necessarily look at the offense conduct involved,
because there is no offense guideline named “18 U.S.C.
§ 1591(a).”

    However, the situation at hand is much different. Here,
a simple matching exercise can be done to determine if the
offense of conviction is 18 U.S.C. § 1591(b)(1) – simply by
looking at the judgment. This is not a situation where we
must translate from state statutes to federal statutes, or from
plain English names of crimes to federal statutes. We are
translating from federal statutes to federal statutes. It seems
tortured to say that, when we know what federal statutes the
defendant was convicted of, and we are asked to determine if
the defendant’s offense of conviction was a specific federal
                    UNITED STATES V. LIN                       7

statute, we should break those statutes down into their offense
conduct and then compare that conduct, as opposed to simply
comparing the federal statutes that we have on both sides of
the equation.

    With regards to the argument that 18 U.S.C. § 1591(b)(1)
describes a punishment, and not an offense, there is a much
simpler answer than the one given by the district court. To
determine if 18 U.S.C. § 1591(b)(1) is the offense of
conviction, courts should simply ask if the defendant was
convicted of an offense subject to the punishment provided in
18 U.S.C. § 1591(b)(1) – that is, was the defendant subject to
the statute’s fifteen-year mandatory minimum sentence. This
solution is not only simple, and as close to a literal reading of
U.S.S.G. § 2G1.1(a)(1) as possible without rendering the
guideline meaningless, it is also most likely what the
Sentencing Commission intended.

    First, it is unlikely that the Sentencing Commission
intended an offense conduct comparison, because the
Sentencing Commission knew how to require such a
comparison explicitly, and did not do so. For example, later
in the same guideline section, U.S.S.G. § 2G1.1(c)(1) directs
courts to apply another guideline “[i]f the offense involved
conduct described in 18 U.S.C. § 2241(a) . . .” If the
Sentencing Commission wanted § 2G1.1(a)(1) to apply
whenever the defendant’s offense involved conduct described
in 18 U.S.C. § 1591(b)(1), the Commission would have used
the same language in § 2G1.1(a)(1) as it used in
§ 2G1.1(c)(1). The Commission’s choice not to use that
language indicates that it was not their intention to require an
offense conduct comparison.
8                   UNITED STATES V. LIN

    Second, the Commission likely intended § 2G1.1(a)(1) to
apply only when the defendant received a fifteen-year
mandatory minimum sentence, because the higher base
offense level in § 2G1.1(a)(1) was created in direct response
to Congress’s creation of the fifteen-year mandatory
minimum. See United States Sentencing Commission, Ame
ndments to the Sentencing Guidelines 27 (2007) available at
http://www.ussc.gov/Legal/Amendments/Official_Text/
20070501_Amendments.pdf (“[T]he Adam Walsh Act added
a new mandatory minimum . . . of 15 years under 18 U.S.C.
§ 1591(b)(1) . . . In response, the amendment provides a new
base offense level of 34 . . . if the offense of conviction is 18
U.S.C. § 1591(b)(1), but retains a base offense level of 14 for
all other offenses.”). The Commission therefore likely did
not want the higher base offense level to apply when the
defendant was not subject to § 1591(b)(1)’s fifteen-year
mandatory minimum.

    In sum, common sense, the plain language of the
guidelines, and the Sentencing Commission’s commentary,
all show that U.S.S.G. § 2G1.1(a)(1) only applies to
defendants who are subject to a fifteen-year mandatory
minimum sentence under 18 U.S.C. § 1591(b)(1). Since Lin
was not subject to 18 U.S.C. § 1591(b)(1)’s mandatory
minimum, the district court erred in applying § 2G1.1(a)(1)
to Lin. This error was not harmless. See United States v.
Munoz-Camarena, 631 F.3d 1028, 1030–31 (9th Cir. 2011).
We therefore reverse the district court’s base offense level
determination, vacate Lin’s sentence, and remand for re-
sentencing.

    REVERSED, VACATED, and REMANDED.
