On September 1, 2026, in the Northern District of California, four numbers were on the table at the same sentencing hearing. The advisory guideline range was zero to six months, a range that permitted a sentence with no prison time at all. The government asked for 70 months. The defense asked for three months of home confinement. U.S. District Judge Vince Chhabria imposed 12 months less one day in prison, plus two years of supervised release, restitution to Google, and a fine.
The defendant was Linwei Ding, a former Google engineer convicted of stealing artificial intelligence trade secrets. But the reason this hearing matters to anyone else facing federal sentencing has nothing to do with who he is. It is that the judge looked at a calculated range permitting probation and said, per the Associated Press account of the hearing, that a range of zero to six months "doesn't adequately capture the crime" and that "the idea of a noncustodial sentence is hard to swallow for me." He described the conduct as a "systematic, brazen effort to steal Google's property."
If you are weeks out from your own sentencing in a fraud or trade-secrets case and your lawyer has given you a projected range, two questions follow. Can a judge simply go above it? And does anyone have to warn you first? The answers are yes, and mostly no.
The advisory range is a recommendation, not a ceiling
Federal sentencing runs on two separate tracks that people routinely confuse. The first is the guideline calculation, which the probation office performs and sets out in the presentence report. The second is the sentencing statute itself, 18 U.S.C. § 3553, which is what actually authorizes the judge to impose a sentence.
Section 3553(a) instructs the court to impose a sentence "sufficient, but not greater than necessary" to accomplish the purposes of sentencing. It then lists the factors the court weighs: the nature and circumstances of the offense and the history and characteristics of the defendant, the need for the sentence to reflect the seriousness of the offense and afford deterrence, the need to protect the public, the kinds of sentences available, the guideline range, any pertinent policy statements from the Sentencing Commission, the need to avoid unwarranted disparities among similar defendants, and the need to provide restitution.
Read that list again and notice where the guideline range sits. It is one factor among seven. It is not the cap, and it is not the floor. The real outer limit is the statutory maximum for the counts of conviction. In Ding's case, the jury convicted on seven counts of trade-secret theft under 18 U.S.C. § 1832, each carrying a maximum of ten years, according to the Justice Department's charging announcement. The judge had 70 years of statutory exposure available and a guideline range that started at zero. He varied upward to 364 days.
Why the range was so low, and why that generalizes
Two things drove the number on the page down, and both are common in white collar cases.
First, the guideline for theft and fraud offenses, § 2B1.1, is built around loss amount. The more provable dollar loss, the higher the offense level. That works reasonably well for a straightforward embezzlement. It works badly for trade secrets, proprietary designs, source code, and internal research, where the harm is real but the dollar figure is contested, speculative, or nearly impossible to prove to a court's satisfaction. When the loss number comes in low or unresolved, the range collapses even though the conduct at trial looked serious.
Second, the most serious counts dropped out. A jury convicted Ding on all 14 counts on January 30, 2026, seven for economic espionage under § 1831 and seven for trade-secret theft under § 1832, as reported at the time of the verdict. In August 2026 the judge vacated the seven economic-espionage convictions, finding insufficient evidence that Ding knowingly acted to benefit the Chinese government. The trade-secret counts survived. Stripping out the espionage counts removed the enhancements that would have driven the range up.
Meanwhile the conduct the judge had spent a trial hearing about did not shrink. The government's charging documents describe an engineer hired in 2019 who uploaded more than 1,000 unique files of confidential information to a personal cloud account between roughly May 2022 and May 2023, covering chip infrastructure and custom networking, while affiliating with companies based in China. At sentencing the government put the total at 1,255 documents, roughly 14,000 pages, according to Courthouse News coverage of the hearing.
That gap, between a range that permits probation and a record the judge finds serious, is where upward variances live. If your projected range looks surprisingly light relative to what the government has been saying about your case for two years, treat that as a warning, not a win.
Departure and variance are not the same thing
This distinction gets skipped in most conversations between defendants and counsel, and it controls what warning you are entitled to.
A departure is a move made from inside the guidelines system. Section 3553(b) permits a sentence outside the range when the court finds an aggravating or mitigating circumstance "of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission." Departures have their own recognized grounds, and the Sentencing Commission publishes a primer on departures and variances cataloguing them.
A variance is a sentence outside the range imposed on the § 3553(a) factors generally. It exists because the guidelines became advisory rather than mandatory. The judge does not need a guidelines-recognized ground. The judge needs to weigh the statutory factors and explain the result.
The one-line test: if the judge is reasoning within the guidelines manual, it is a departure. If the judge is reasoning from the sentencing statute about this offense and this person, it is a variance. What happened to Ding was a variance. The judge did not find a technical guidelines ground. He said the calculated range failed to capture the offense and imposed a different sentence.
The notice you are entitled to, and the notice you are not
Federal Rule of Criminal Procedure 32(h) requires the court to give the parties "reasonable notice" before departing on a ground not identified in the presentence report or in a party's prehearing submission. On its face that sounds like meaningful protection.
It is narrower than it sounds. In Irizarry v. United States, 553 U.S. 708 (2008), the Supreme Court held that "Rule 32(h) does not apply to a variance from a recommended Guidelines range." The notice rule reaches departures. It does not reach variances.
Say that plainly: an upward variance can arrive for the first time from the bench, at the hearing, with no advance warning that it was coming, and there is no Rule 32(h) violation in that.
The counterweights are procedural rather than substantive. The court must still resolve disputed matters and allow the parties to argue for the sentence they think appropriate. Rule 32(i)(1)(B) permits the court to allow the parties to introduce evidence on objections and, in practice, provides the hook for a continuance request when a genuinely new ground surfaces mid-hearing. If a judge raises an aggravating theory nobody briefed, asking for time to respond is the move. It is granted more often than defendants expect, and refusing to ask forfeits the argument that you were denied a chance to be heard.
What you can actually do before the hearing
The window for influencing an above-range sentence is almost entirely before you walk into the courtroom. Rule 32 sets a clock, and it is short.
-
The presentence report is disclosed at least 35 days before sentencing. Read every line of it yourself. Do not rely on a summary. Factual errors in the PSR become the factual record the judge sentences on and the appellate court reviews.
-
Written objections are due within 14 days of disclosure. This is the deadline that quietly destroys sentencing positions. An unobjected-to fact is generally treated as established. If the offense conduct section overstates what you did, the time to fight is here, not at the hearing.
-
The final report goes to the court at least 7 days before sentencing. By then the record is largely fixed.
-
Read the government's sentencing memorandum for variance language even when it is not labeled a variance request. Prosecutors frequently argue that the range "does not reflect the seriousness of the conduct" without ever using the word variance. That sentence is the tell. A 70-month request against a zero-to-six-month range is not a guidelines argument.
-
File a responsive memorandum that addresses the § 3553(a) factors directly, not just the guideline calculation. If your only filing argues the math, you have left the judge's actual decision unaddressed.
-
Prepare allocution seriously. Rule 32(i) guarantees you the right to speak before sentence is imposed. In a case where the judge is weighing whether the range captures the offense, this is not a formality.
What the judge owes you on the record
When a court sentences outside the range, § 3553(c)(2) requires it to state "the specific reason for the imposition of a sentence different from that described," with specificity, and to put it in the written judgment. This is a real obligation, and a thin or boilerplate explanation is itself a procedural error you can raise on appeal.
Understand what that means in practice, though. A judge who explains carefully makes the sentence harder to overturn, not easier. Chhabria did exactly that. He articulated on the record why a range permitting no prison did not capture the offense, tied it to the conduct he heard at trial, and characterized the reasoning. That is a well-insulated sentence. The appealable version is the judge who varies upward and says almost nothing.
How the appeal actually works
Under 18 U.S.C. § 3742(a), a defendant may appeal a sentence that "is greater than the sentence specified in the applicable guideline range." The right exists. The odds are the harder part.
Gall v. United States, 552 U.S. 38 (2007), sets the standard. Appellate courts "must review all sentences, whether inside, just outside, or significantly outside the Guidelines range, under a deferential abuse-of-discretion standard." The Court rejected any requirement of extraordinary circumstances to justify a sentence outside the range, and rejected a proportionality test tying the size of the variance to the strength of the justification by formula. What the district court must do is adequately explain the chosen sentence, with a justification sufficiently compelling to support the degree of variation.
Appeals of above-range sentences run on two tracks:
-
Procedural error. The court miscalculated the guideline range, treated the guidelines as mandatory, relied on clearly erroneous facts, failed to consider the § 3553(a) factors, or failed to explain the sentence adequately. These are the claims that win.
-
Substantive unreasonableness. The calculation was right, the explanation was given, and the sentence is simply too long on these facts. These claims are brought often and succeed rarely.
One piece of good news on preservation. In Holguin-Hernandez v. United States, decided February 26, 2020, the Supreme Court held that a defendant who argued in the district court for a shorter sentence has already preserved a substantive-reasonableness challenge. There is no need for a separate formal objection after the sentence is pronounced, and no need to use the word "reasonableness." Asking for less preserves the claim that more was too much.
The appeal rights are also asymmetric. Under § 3742(b), the government may appeal a below-range sentence, but it "may not further prosecute such appeal without the personal approval of the Attorney General, the Solicitor General, or a deputy solicitor general." No comparable sign-off gates your appeal of an above-range sentence.
Why 364 days is not a rounding error
The sentence was 12 months less one day. That specific number is chosen, not approximated, and it does two things at once.
Federal good conduct time under 18 U.S.C. § 3624(b) is available only on sentences of more than one year. A 364-day sentence earns none, so it is served nearly in full. In raw time served, 364 days is close to a 12-month sentence and can exceed what a slightly longer sentence would actually require.
The offsetting reason is immigration. A theft offense with a term of imprisonment of at least one year can qualify as an aggravated felony under immigration law, with severe consequences including removal. One day under the line avoids that trigger. Ding is a Chinese national who became a lawful permanent resident in 2021, and reporting on the case notes his defense raised potential removal consequences. For a non-citizen defendant, the day matters more than the year.
If you are not a U.S. citizen, this is a conversation to have with counsel well before sentencing, and ideally before any plea. The number that looks better on paper and the number that protects your status are not always the same number.
What this means for your plea calculus
Most people reading this are not weeks from sentencing. They are deciding whether to plead. The Ding sentencing is a useful corrective at that stage for one reason: a low projected guideline range is not a promise about the sentence.
Bring these questions to your next meeting with counsel:
-
What guideline range do you project, and how much of it turns on a loss figure the government has not yet proven?
-
What is the government likely to argue at sentencing, and has it signaled that it thinks the range understates the conduct?
-
Does the plea agreement restrict either side from seeking a variance, or only from seeking a departure? Those are different promises.
-
Does the agreement contain an appellate waiver, and does it waive my right to appeal a sentence above the range?
-
What is the statutory maximum on each count I would plead to, and does the agreement cap exposure below it?
-
If I am not a citizen, what sentence length changes my immigration exposure, and is that length achievable here?
-
When will I see the presentence report, and what is the exact date my written objections are due?
The last question is the one people forget. The 14-day objection deadline arrives during the period when most defendants have mentally moved on from the case, and it is the point at which the factual record hardens.
A four-line glossary
-
PSR (presentence report): the probation office's report on the offense, your history, and the guideline calculation. Disclosed at least 35 days before sentencing.
-
Departure: a sentence outside the range based on a ground within the guidelines system, under § 3553(b). Advance notice required under Rule 32(h) if the ground was not previously identified.
-
Variance: a sentence outside the range based on the § 3553(a) factors. No Rule 32(h) notice required, per Irizarry.
-
Allocution: your right under Rule 32(i) to personally address the court before sentence is imposed.
One note on the figures in this case. News accounts of the September 1 hearing report restitution to Google of roughly $190,000 plus a fine, but the reported amounts differ between syndications of the same wire story. Anyone citing exact dollar figures should confirm them against the judgment entered on the district court docket.
Related reading
-
[Does an Expunged Case Still Show Up on a Background Check?](/news/does-an-expunged-case-still-show-up-on-a-background-check)
Sources
-
Ex-Google Engineer Gets Nearly 1 Year for Stealing AI Secrets (Associated Press via KQED)
-
Ex-Google engineer gets nearly 1 year in prison for stealing AI trade secrets (American Bazaar)
-
Ex-Google engineer who stole trade secrets sentenced to nearly 12 months (Courthouse News)
-
Ex-Google engineer convicted of stealing AI secrets (The Register)
-
Superseding Indictment Charges Chinese National in Relation to Alleged Plan to Steal Proprietary AI Technology (U.S. Department of Justice)
-
18 U.S.C. § 3553, Imposition of a sentence (Cornell Legal Information Institute)
-
Federal Rule of Criminal Procedure 32, Sentencing and Judgment (Cornell Legal Information Institute)
-
Gall v. United States, 552 U.S. 38 (2007) (syllabus)
-
Holguin-Hernandez v. United States, No. 18-7739 (Feb. 26, 2020)
-
18 U.S.C. § 3742, Review of a sentence (Cornell Legal Information Institute)
-
Departures and Variances Primer (U.S. Sentencing Commission, October 2024)
Note: This article contains AI-assisted content and has been reviewed by our editorial team.
IMPORTANT NOTICE: GavelDaily.com is an advertising and information service, not a law firm. Submitting this form does not create an attorney-client relationship. The information you provide will be shared with licensed criminal defense attorneys in your area who may contact you about your inquiry. All submissions are treated as confidential by our service, but attorney-client privilege does not attach until you formally retain an attorney. Any attorney you connect with through this service is independently responsible for their legal advice and representation. Free consultations are subject to individual attorney availability. If you are facing an immediate legal emergency, contact your local public defender's office or call 911.