United States v. Dung Thi , 692 F.3d 571 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3004
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
D UNG P. T HI, also known as Kathy Thi,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 3:11-cr-00021-bbc-1—Barbara B. Crabb, Judge.
A RGUED JUNE 12, 2012—D ECIDED A UGUST 13, 2012
Before B AUER, K ANNE and W ILLIAMS, Circuit Judges.
P ER C URIAM. Dung Thi, a 24-year-old Vietnamese
woman, pleaded guilty to bank fraud after she and her
boyfriend, Sang Danh, stole debit-card information from
customers of her nail salon and used that information
to make unauthorized ATM withdrawals. See 18 U.S.C.
§ 1344. The district court directed her to pay more than
$77,000 in restitution and sentenced her to 36 months’
imprisonment, 5 months below the bottom of the Guide-
2 No. 11-3004
lines range. On appeal she argues that the district court
failed to adequately consider her arguments in mitiga-
tion, particularly those addressing her minimal role
in the offense, the effect of her sentence on her young
daughter, and the sufficiency of a sentence of home
confinement. We conclude that the court did all that
was necessary to respond to those arguments and
thus affirm the sentence.
I. BACKGROUND
Within a year of moving from California to Wisconsin,
Thi entered into an installment contract to purchase
“Le Nails” salon in Fitchburg, Wisconsin, and she and
Danh began operating the business. Salon customers
were encouraged to pay with debit cards, and Thi and
Danh used a hidden video camera to record them
typing their personal identification numbers (PINs) into
a keypad. The couple stored these numbers in multiple
electronic files, one of which contained more than
800 entries and was found on a flash drive in Thi’s purse
at the time of her arrest. They sent this information to
coconspirators in California, and Thi used it herself to
conduct unauthorized withdrawals in Wisconsin and
California, for a total loss of more than $77,000.
Thi and Danh both were charged with bank fraud
and access-device fraud, though Thi pleaded guilty to
only one count of bank fraud. This count related to six
transactions, captured on ATM surveillance footage,
that she completed using debit cards “recoded” with her
customers’ information. A probation officer calculated
No. 11-3004 3
a total offense level of 22 and a criminal-history category
of I, for a Guidelines range of 41 to 51 months. (Danh
was later convicted by a jury of bank fraud and access-
device fraud and awaits sentencing. See United States
v. Danh, No. 3:11-cr-00021-bbc-2, ECF No. 164 (W.D. Wisc.
Feb. 6, 2012).)
At sentencing, the parties disagreed about the extent
of Thi’s role in the offense, though neither party men-
tioned U.S.S.G. § 3B1.2, which applies to minimal or
minor participants in an offense. Defense counsel
objected to the probation officer’s assertion that Thi
recorded customer information and completed several
fraudulent transactions. Counsel argued that Thi de-
served a lower sentence under § 3553(a) because
another salon employee was the true “mastermind”
behind the scheme, and upon learning of it, Thi
withdrew only about $4,800. The government retorted,
however, that Thi worked at her salon frequently,
that her purse contained the flash drive loaded with
customer PINs and account numbers, and that she was
recorded in jail talking to Danh about customer account
information being stored in their home in Wisconsin
and sent to California. The government advised the
court that Thi may be denying relevant conduct and,
if so, the court should reject the probation officer’s rec-
ommended downward adjustment for acceptance of
responsibility. Fearful of losing this downward ad-
justment, defense counsel withdrew his objections to
the probation officer’s description of Thi’s role in
the offense.
4 No. 11-3004
The district court adopted the probation officer’s
Guidelines calculations and imposed a below-range
sentence of 36 months’ imprisonment. The court acknowl-
edged that Thi was a “young mother who showed great
promise as a high school student.” But the court also
found that Thi knew that her customers were being
videotaped and their information sent to California to
make fraudulent purchases. She exploited customers’
trust, the court added, and showed no signs of stopping
if her criminal activity had not been detected.
II. DISCUSSION
On appeal Thi targets her sentence and argues for the
first time that she deserved a downward adjustment
under § 3B1.2. She maintains that Danh and another
salon employee were the primary perpetrators and that
she “innocently” operated the salon and withdrew
only a small portion of the total loss amount.
The government raises a threshold argument that Thi
waived any request for a § 3B1.2 adjustment when
she withdrew her objections to the probation officer’s
description of her role in the offense. But waiver does not
apply here because, as Thi emphasizes, her attorney at
sentencing never sought—or abandoned any request
for—an adjustment under § 3B1.2. Waiver is the inten-
tional abandonment of a known right and precludes
appellate review of an issue, but when an attorney or
a defendant negligently bypasses a valid argument, the
argument is forfeited, not waived, and we review it for
plain error. See United States v. Vasquez, 673 F.3d 680, 684
No. 11-3004 5
(7th Cir. 2012); United States v. Johnson, 668 F.3d 540,
542 (7th Cir. 2012). Although Thi’s attorney down-
played Thi’s role in this offense and later withdrew his
arguments, he framed these arguments only in terms of
§ 3553(a), not § 3B1.2. Because waiver principles must
be construed liberally in favor of defendants, see Vasquez,
673 F.3d at 684; United States v. Anderson, 604 F.3d 997,
1002 (7th Cir. 2010), we will treat Thi’s § 3B1.2 argument
as forfeited rather than waived and review it for
plain error.
But Thi’s § 3B1.2 argument is nevertheless unpersuasive.
To qualify for any reduction under § 3B1.2, Thi needed to
demonstrate that she was “substantially less culpable”
than the average participant in the scheme. United States
v. Leiskunas, 656 F.3d 732, 739 (7th Cir. 2011); United
States v. Sorich, 523 F.3d 702, 717 (7th Cir. 2008). Because
the record shows that Thi was at least as culpable
as her coconspirators, she did not meet this standard.
Investigators reported that, based on their surveillance
of Thi’s salon, she appeared to be one of three “primary
employees” at “Le Nails,” along with Danh. Yet Thi
alone agreed to buy the salon and was caught carrying
the flash drive that stored the private financial infor-
mation of hundreds of salon customers. As the dis-
trict court found, Thi knew that customer information
was being trafficked to California (to make fraudulent
purchases) and actively participated in this scheme by
ingratiating herself with customers, stealing their private
financial information, and siphoning money from their
bank accounts.
6 No. 11-3004
Thi also faults the district court for not taking into
account the adverse effect her imprisonment will have
on her family—especially her (and Danh’s) young
daughter—because the Guidelines encourage courts to
consider whether a defendant’s incarceration will
result in a “loss of caretaking” that “substantially ex-
ceeds” the typical harm of incarceration. See U.S.S.G.
§ 5H1.6, cmt. n.1(B)(ii); United States v. O’Doherty, 643
F.3d 209, 215-16 n.3 (7th Cir. 2011); United States v.
Poetz, 582 F.3d 835, 839 (7th Cir. 2009). Thi emphasizes
that her three-year-old daughter faces not only the in-
carceration of both parents, but also a cross-country re-
location to live with a grandmother who speaks little
English and comes from a different cultural back-
ground. Thi’s circumstances indeed are unusual in that
both parents face prison time, see United States v. Gary,
613 F.3d 706, 710 (7th Cir. 2010), and the court’s discus-
sion about this issue is bare-bones: it remarked only
that Thi is a “young mother” and did not mention the
possibility of Danh’s imprisonment. But the court also
recommended that Thi serve her below-range prison
term “as close as possible to her family” and in a “resi-
dential reentry center” (a halfway house)—recommenda-
tions that may allow for outside visitation opportunities.
Although it might have been helpful for the court
to say more, the court said enough to satisfy us that it
understood and took account of Thi’s family circum-
stances. See Gary, 613 F.3d at 710; Poetz, 582 F.3d at 839-40.
Finally, Thi for the first time relies on § 3553(a) to
argue that her sentence is unreasonable because the
district court did not impose a “split sentence” including
No. 11-3004 7
home confinement as an alternative to imprisonment.
But Thi’s below-range sentence is presumed reasonable
and in no way undermined by a prison term rather
than home detention. See Poetz, 582 F.3d at 838;
United States v. McIlrath, 512 F.3d 421, 426-27 (7th
Cir. 2008). Moreover, the Sentencing Guidelines ad-
vise against home imprisonment for defendants like
Thi—who have a Guidelines range in Zone D of the
sentencing table—and recommend instead that they
serve a prison term at least as long as the low end of
the range. See U.S.S.G. § 5C1.1(f) & cmt. n.9.
A FFIRMED.
8-13-12