United States of America v. Y A Yang

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-1059
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
Y A Y ANG,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:19-cr-136-jdp-5 — James D. Peterson, Chief Judge.
____________________
A RGUED NOVEMBER 8, 2021 — DECIDED NOVEMBER 19, 2021
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Before S CUDDER , K IRSCH , and JACKSON -A KIWUMI , Circuit
Judges.
K IRSCH , Circuit Judge. Ya Yang appeals his below-guide-
lines sentence, arguing that the district court erred because it
considered an audio file at sentencing that was not publicly
available on the court’s electronic docket. Finding no merit in
that argument, we affirm.

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2 No. 21-1059
I
Based on his involvement with a drug-trafficking ring, Ya
Yang agreed to plead guilty to possession of methampheta-
mine with intent to distribute in violation of 21 U.S.C.
§ 841(a)(1). Before his plea-and-sentencing hearing, Yang ob-
jected to the inclusion of one ounce of methamphetamine in
the drug-quantity calculation listed in the Presentence Inves-
tigation Report (PSR). In response to the objection, the gov-
ernment pointed Yang and the district court to an audio file
of a recorded phone call between Yang and a co-conspirator
that supported the PSR’s inclusion of the one ounce of meth-
amphetamine in the drug-quantity calculation. Both Yang
and his counsel acknowledged that they had listened to the
recording before sentencing.
At sentencing, the district court agreed that the audio file
supported the PSR’s drug-quantity calculation and overruled
Yang’s objection. The district court then sentenced Yang to 30
months’ imprisonment, which was 21 months below the bot-
tom of the applicable guidelines range. Yang has appealed
that sentence.
II
Although the parties dispute the proper standard of re-
view, this appeal fails under any standard. Yang argues only
that the district court committed reversible error because it
considered an audio file at sentencing that was not publicly
available on the court’s electronic docket. But he has not ex-
plained how that amounts to error. District courts routinely
review evidence at sentencing that is not publicly available on
the court’s docket.

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No. 21-1059 3
Moreover, to the extent Yang argues that the appellate rec-
ord is insufficient without electronic access to the recording
on the district court’s docket, the federal judiciary’s case man-
agement and electronic case filing system (CM/ECF) does not
support the submission of audio files.1 Instead, like other ex-
hibits not available electronically on CM/ECF, audio files are
maintained by the district court, which transmits those files to
the court of appeals if requested. See Circuit Rule 10(a)(2)
(“The clerk of the district court must prepare and hold any
confidential record or exhibit not available electronically on
the district court docket. If the court of appeals requests any
such document, the district court must transmit it to the court
of appeals.”); F ED. R. APP . P. 11(b)(2). That is what happened
here. The government sent the district court an audio file,
which Yang and his counsel reviewed before sentencing, and
that submission was recorded on the docket. See R. 270-2; R.
271. After Yang appealed his sentence to this court, the circuit
clerk requested and received the audio file from the district
court. All judges on this panel thus had an opportunity to re-
view the recording.
Because Yang has not shown that the recording needed to
be made publicly available on the court’s docket or that the
district court failed to maintain the audio file for appellate re-
view, there was no error.
A FFIRMED
1 See, e.g., Practitioner's Handbook for Appeals to the United States Court of
Appeals for the Seventh Circuit 147 (2020 ed.) (“If a video (or audio) record-
ing is submitted as evidence in the district court, it is generally submitted
on a DVD, CD-ROM, or flash drive and therefore is not available to view
on the district court’s docket.”).

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