NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        OCT 22 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    19-10032

                Plaintiff-Appellee,             D.C. No. 1:12-cr-00012-1

 v.
                                                MEMORANDUM*
WEI LIN,

                Defendant-Appellant.

                   Appeal from the United States District Court
                  for the District of the Northern Mariana Islands
                     David O. Carter, District Judge, Presiding

                           Submitted October 20, 2020**
                               Honolulu, Hawaii

Before: WALLACE, BEA, and BENNETT, Circuit Judges.

      Defendant Wei Lin pleaded guilty to conspiracy to commit sex trafficking,

in violation of 18 U.S.C. § 1594(c). Lin appeals from his 120-month sentence,

arguing that the district court erred in applying United States Sentencing Guideline

§ 2G1.1(c) for the first time on resentencing. He also challenges the district


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
court’s denial of his motion to withdraw his guilty plea. We have jurisdiction

under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and we affirm.

      1.     As relevant here, § 2G1.1(c) applies if an offense involves conduct

described in 18 U.S.C. § 2242. U.S.S.G. § 2G1.1(c). Conduct described in § 2242

includes “causing another person to engage in . . . a sexual act with another person

by threatening or placing the victim in fear (other than by threatening or placing

the victim in fear that any person will be subject to death, serious bodily injury, or

kidnapping). . . .” U.S.S.G. § 2G1.1, cmt. n.4(B).

      Lin argues that “fear” as used in § 2242 must be construed narrowly to mean

fear of bodily harm, excluding other types of fear such as fear of deportation. We

need not decide whether “fear” under § 2242 includes fear other than fear of bodily

harm because the district court correctly found that Lin threatened his victims with

physical violence to force them to engage in commercial sex. We review the

district court’s factual findings for clear error. See United States v. Yi, 

, 805 (9th Cir. 2013).

      The victims all told very similar stories in their written statements. Lin lured

the victims to travel to Saipan under the false promise of lawful employment and

charged them thousands of dollars in fees. Once the victims arrived in Saipan, Lin

took their passports and told them that they would be “hostesses” who had sex with

customers. They were afraid of Lin because, among other things, he threatened



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them with physical harm. The victims’ statements were consistent with one

another, and they were also corroborated by statements of other witnesses. For

example, Yanchun Li (Lin’s co-conspirator) signed a plea deal in which Li

admitted that the conspirators caused the victims to engage in commercial sex acts

by “verbally abusing them; threatening them with physical violence; and falsely

claiming to have favorable relationships with corrupt government officials.” The

district court properly considered the victims’ and Li’s hearsay statements because

they were accompanied by at least “some minimal indicia of reliability.” United

States v. Berry, 

, 976 (9th Cir. 2001) (quoting United States v. Petty,

, 1369 (9th Cir. 1993)). Based on the substantial evidence showing

that Lin threatened his victims with physical harm, the district court did not clearly

err in finding that clear and convincing evidence1 supported that Lin threatened his

victims with physical harm to cause them to engage in commercial sex.

      We are unpersuaded by Lin’s remaining arguments challenging the

application of § 2G1.1(c). Lin does not identify any case that has held the

government violated due process by relying on a new guideline during

resentencing. Indeed, such a position goes against our general rule that “[o]n

remand, the district court generally should be free to consider any matters relevant


1
 The parties agree that the government needed to present clear and convincing
evidence to support the application of § 2G1.1(c) because it greatly increased Lin’s
base offense level from 14 to 30.

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to sentencing, even those that may not have been raised at the first sentencing

hearing, as if it were sentencing de novo.” United States v. Matthews, 

, 885–86 (9th Cir. 2002). Lin cannot rely on the Sixth Amendment’s speedy

trial guarantee, as the Supreme Court has held that the right does not apply once

the defendant has pleaded guilty. See Betterman v. Montana, 

,

1617–18 (2016). Lin also argues that the defense of laches bars the government

from requesting the application of a new sentencing guideline on resentencing.

But he fails to identify any case that has applied laches in the criminal context, and

he offers no convincing policy reason why laches should apply.

      For the reasons stated above, we conclude that the district court did not err in

applying § 2G1.1(c) on resentencing.

      2.     Lin argues that his guilty plea cannot stand because his attorney failed

to inform him accurately of the sentencing range he faced. The district court

denied Lin’s motion to withdraw his guilty plea because the record shows that Lin

understood his sentencing exposure before pleading guilty. We review the district

court’s denial for abuse of discretion. See United States v. Garcia, 

,

1348 (9th Cir. 1990).

      The district court did not abuse its discretion. The record shows that

although Lin’s attorney provided him with an erroneous sentencing prediction, Lin

was well-aware that he was facing a potential sentence of up to life in prison. See



                                          4

established that an erroneous prediction by a defense attorney

concerning sentencing does not entitle a defendant to challenge his guilty plea.”).

Lin’s plea agreement clearly informed him that he faced a “maximum statutory

sentence [of] life imprisonment,” and that “the Court [had] not yet determined a

sentence and that any estimate of the advisory sentencing range . . . the defendant

may have received from the defendant’s counsel . . . is a prediction, not a promise,

and is not binding on . . . the Court.” The colloquy between the court and Lin

during the change of plea hearing also shows that he was aware of his sentencing

exposure. Finally, Lin’s own declaration shows that his attorney advised him that

the maximum potential sentence was life in prison.

      AFFIRMED.




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