United States v. David Han , 551 F. App'x 422 ( 2014 )

FILED
NOT FOR PUBLICATION JAN 06 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50481
Plaintiff - Appellee, D.C. No. 2:10-cr-01089-R-1
v.
MEMORANDUM*
DAVID HAN, AKA Ki Jong Han, AKA
Young He Kim, AKA Renshou Ma,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted December 4, 2013
Pasadena, California
Before: WATFORD and HURWITZ, Circuit Judges, and SMITH, Chief District
Judge.**
Appellant David Han was sentenced to 37 months imprisonment and a five
year term of supervised release, including conditions requiring him to perform
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable William E. Smith, Chief District Judge for the U.S.
District Court for the District of Rhode Island, sitting by designation.
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community service and abstain from consuming alcohol, following his guilty plea
in relation to a mortgage fraud scheme. Han appeals his sentence, claiming that the
district court (1) erroneously calculated the loss attributable to him and thus
determined an improper sentencing guideline range; (2) failed to resolve factual
disputes in violation of Federal Rule of Criminal Procedure 32 (“Rule 32”); and (3)
failed to provide required advance notice of the community service and alcohol-
related supervised release conditions, also in violation of Rule 32. We affirm.
1. Loss Calculation
We review the district court’s interpretation of the sentencing guidelines de
novo, application of the guidelines to the facts for abuse of discretion, and factual
findings for clear error. United States v. Lambert, 498 F.3d 963, 966 (9th Cir.
2007). “In order to determine the defendant’s accountability for the conduct of
others . . . the court must first determine the scope of the criminal activity the
particular defendant agreed to jointly undertake . . . [t]he conduct of others that was
both in furtherance of, and reasonably foreseeable in connection with, the criminal
activity jointly undertaken by the defendant is relevant conduct under this
provision.” U.S. Sentencing Guidelines Manual (“USSG”) § 1B1.3 cmt. n.2
(2010).
Page 3 of 6
Appellant contends that the district court erred in applying a 16-level
enhancement under the sentencing guidelines for total losses exceeding
$1,000,000, arguing that he should not have been held responsible for
approximately $326,000 obtained as a result of fraudulent checks that were issued
and cashed in his name. Appellant maintains that he did not sign these counterfeit
checks or access these funds. The losses for which he should have been held
accountable, Appellant suggests, are less than $1,000,000, and therefore a 14-level
enhancement would have been appropriate. See id. at § 2B1.1(b)(1) (2013).
In finding that the 16-level enhancement applied, the district court had been
presented with sufficient evidence to conclude that Appellant was responsible for
the full scope of the scheme’s losses, irrespective of his involvement in the
counterfeit checks. For example, the evidence indicated that Appellant
collaborated with two brokers who arranged the scheme, provided him with false
identification, and helped him to complete the mortgage paperwork. The evidence
also indicated that Appellant took instructions from the brokers and retained
approximately 30% of the scheme’s proceeds, while the brokers shared the
remaining 70%. Given this close collaboration, the district court did not abuse its
discretion in finding that the losses associated with the counterfeit checks were in
furtherance of the scheme and reasonably foreseeable to Appellant.
Page 4 of 6
2. Factual Dispute Resolution
We review the district court’s compliance with Rule 32 de novo. United
States v. Grajeda, 581 F.3d 1186, 1188 (9th Cir. 2009). When the district court
does not make required Rule 32 findings at the sentencing hearing, we must
remand for resentencing. United States v. Thomas, 355 F.3d 1191, 1200 (9th Cir.
2004). However, to comply with Rule 32, the district court need not expressly
resolve a defendant’s purely legal objections to the presentence report. See, e.g.,
Grajeda, 581 F.3d at 1188-89.
The presentence report (“PSR”) in this case concluded that it could not be
determined who signed and drew the counterfeit checks. Nevertheless, the PSR
recommended that Appellant be held responsible for the losses associated with the
counterfeit checks as relevant conduct. See USSG § 1B1.3(a)(1)(B). Appellant
objected to this recommendation on grounds that the evidence of his involvement
with the counterfeit checks was insufficient.
Appellant contends that the district court violated Rule 32 when it failed to
resolve this objection prior to imposing sentence. But, that objection did not call
into question factual matters contained in the PSR. Indeed, the PSR effectively
reached the same conclusion as Appellant: it could not be established that he
signed or accessed funds made available by the counterfeit checks. The PSR’s
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recommendation that Appellant nonetheless be held responsible for the counterfeit
checks as relevant conduct, and Appellant’s resulting objection to that
recommendation, raise legal rather than factual issues. In these circumstances, the
district court was under no obligation to resolve Appellant’s objection.
3. Advance Notice of Supervised Release Conditions
“Before the court may depart from the applicable sentencing range on a
ground not identified for departure either in the presentence report or in a party’s
prehearing submission, the court must give the parties reasonable notice that it is
contemplating such a departure.” Fed. R. Crim. P. 32(h). “Where a condition of
supervised release is not on the list of mandatory or discretionary conditions in the
sentencing guidelines, notice is required before it is imposed . . . .” United States
v. Wise, 391 F.3d 1027, 1033 (9th Cir. 2004). Because the sentencing guidelines
contemplate both of the supervised release conditions at issue in this case –
community service and an alcohol prohibition – we reject Appellant’s argument
that the district court was required to give him advance notice of these conditions.
“Community service may be imposed as a condition of supervised release.”
USSG § 5D1.3(e)(3). Appellant contends that the district court’s imposition of a
20 hour per week community service obligation was excessive and required
advance notice. We disagree. The district court afforded Appellant substantial
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flexibility, excusing him from community service obligations in the event that he
becomes employed, is engaged in schooling or training, or is otherwise excused by
his probation officer for acceptable reasons.
The sentencing guidelines clarify further that a standard condition of
supervised release may be for the defendant to “refrain from excessive use of
alcohol . . . .” Id. at § 5D1.3(c)(7). Appellant highlights for us the distinction
between a ban on the “excessive” use of alcohol, and the blanket prohibition on
consumption at issue here. We have previously approved of complete bans on
drugs and/or alcohol in cases such as this, where evidence indicates that the
defendant’s criminal behavior resulted from substance abuse. See, e.g., United
States v. Sales, 476 F.3d 732, 735-36 (9th Cir. 2007); United States v. Maciel-
Vasquez, 458 F.3d 994, 996 (9th Cir. 2006); United States v. Johnson, 998 F.2d
696, 699 (9th Cir. 1993); United States v. Miller, 549 F.2d 105, 107 (9th Cir.
1976). We view the complete ban on alcohol consumption imposed by the district
court as merely having amplified the standard condition in the guidelines, and we
note the appropriateness of such a condition in this case where ample evidence
suggests that Appellant undertook his criminal activity in large part due to an
untreated alcohol addiction.
AFFIRMED.