United States v. Peter Lam

444 F. App'x 168

Opinions

ORDER

Appellant’s petition for panel rehearing filed July 13, 2011, is DENIED. An amended memorandum disposition is filed concurrently with this order. No further petitions shall be entertained.

AMENDED MEMORANDUM

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Lam appeals his convictions and sentence in the District Court for selling illegally imported fish in violation of 18 U.S.C. § 545 and introducing misbranded fish into interstate commerce with the intent to defraud in violation of 21 U.S.C. §§ 331(a) & (c), § 333(a)(2). This court has jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and we affirm the convictions and remand for resentencing.

There was sufficient evidence presented at trial to support defendant’s convictions. Even were we to conclude that some of the government’s comments during closing argument were inappropriate, which we do not, any error would be harmless and have had no impact on the verdict rendered. Furthermore, venue was appropriate pursuant to 18 U.S.C. § 3237(a). Defendant’s convictions are therefore AFFIRMED.

However, there was a procedural error by the District Court in determining the amount of tax loss to assess against defendant. This resulted in a two level enhancement of defendant’s offense level. Accordingly, this matter is remanded for an open resentencing pursuant to Pepper v. United States, — U.S.-, 131 S.Ct. 1229, 1289-40, 179 L.Ed.2d 196 (2011) and United States v. Matthews, 278 F.3d 880, 885-86 (9th Cir.2002). Furthermore, the forfeiture order is hereby vacated. The district court may reconsider the forfeiture as part of the resentencing.

The court REMANDS this matter to the District Court for resentencing consistent herewith.

It is so ordered.

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.