United States v. Kwang Kim , 539 F. App'x 171 ( 2013 )


Menu:
  •                                UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 13-4191
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    KWANG HEE KIM, a/k/a Sharky,
    Defendant - Appellant.
    Appeal from the United States District Court for the Eastern
    District of Virginia, at Alexandria. James C. Cacheris, Senior
    District Judge. (1:12-cr-00280-JCC-4)
    Submitted:   August 27, 2013                 Decided:    September 5, 2013
    Before TRAXLER,   Chief   Judge,    and   NIEMEYER      and   AGEE,   Circuit
    Judges.
    Affirmed by unpublished per curiam opinion.
    Marvin D. Miller, LAW OFFICES OF MARVIN D. MILLER, Alexandria,
    Virginia, for Appellant.      Neil H. MacBride, United States
    Attorney, Michael J. Frank, Assistant United States Attorney,
    Marc J. Birnbaum, Special Assistant United States Attorney,
    Alexandria, Virginia, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Kwang Hee Kim appeals his sentence for conspiracy to commit
    extortion        under       the    Hobbs     Act.      See      
    18 U.S.C. § 1951
    (a).
    Finding no reversible error, we affirm.
    I.
    From approximately January 2011 through November 2011, Kim
    was a member of a gang called the “Korean Night Breeders” (the
    “KNBs”),         which    used       force,    fear,    violence,          and     threats    of
    violence to extort businesses in Fairfax County, Virginia.                                   The
    KNBs       targeted      for       extortion    businesses       that       were     owned    or
    operated         by   South        Koreans.      They     extorted         taxi     companies,
    restaurants, bars that sold alcohol after 2:00 a.m., businesses
    owned       by    illegal      aliens,        businesses       that       employed     illegal
    aliens, and “doumi” businesses. *                       To intimidate            victims, the
    gang’s members, dressed in black, would surround victims while
    one     member        brandished       a    knife.       The     gang       also     generated
    additional revenue by selling illegal narcotics.
    Kim regularly attended gang meetings during which the KNBs
    discussed and planned their future crimes.                            While he was not a
    gang       leader,     Kim     made    suggestions        to    the       leader     regarding
    potential         extortion         targets,     served     as        a    driver    on   some
    *
    Doumi businesses were escort services.        The record
    reflects that federal agents learned that some doumis provided
    commercial sexual services to some of their customers.
    2
    extortion missions, made phone calls to victims in attempts to
    extort    money,      provided   a    physical       presence    (with      other       gang
    members)    while      victims   were    being      threatened,       and    personally
    retrieved      extortion      money    from   victims.          Kim   also     obtained
    marijuana      that    the    gang    members    consumed       before       and    after
    extortion missions.
    As    a   member    of    the    KNBs,   Kim     received    a    share       of    the
    extortion proceeds, along with free food and drinks at certain
    businesses that the gang shook down.                   He remained a member of
    the gang until he was kicked out after a disagreement with the
    KNBs’ leader.
    On September 5, 2012, a grand jury charged Kim and three
    other defendants in a six-count superseding indictment.                                 The
    indictment charged Kim with one count of conspiracy to commit
    extortion and two substantive extortion counts.                             Kim pleaded
    guilty, without a plea agreement, to the conspiracy count, and
    the district court, on the government’s motion, dismissed the
    remaining two counts against him.
    A    probation      officer      subsequently      prepared      a     presentence
    report (“PSR”) for Kim’s case, and later an amended PSR.                                 The
    defense raised numerous objections to the reports, including, as
    is   relevant         here,    objections       to     suggested       offense-level
    enhancements for possessing or brandishing a dangerous weapon
    and taking advantage of a vulnerable victim, and objections to
    3
    consideration of losses suffered by criminal enterprises, which
    Kim maintained were outside the scope of the Hobbs Act.
    The district court overruled these objections and largely
    adopted the findings and conclusions in the PSR.                       Accordingly,
    the court determined that Kim’s initial offense level was 18.
    See U.S.S.G. § 2B3.2(a).             The court increased the offense level
    by two because the offense involved an express or implied threat
    of death or bodily injury, see U.S.S.G. § 2B3.2(b)(1); one level
    because    the    loss     was   more   than   $10,000   but     not     more    than
    $50,000,    see   U.S.S.G.       § 2B3.2(b)(2);     three    levels      because   a
    dangerous     weapon     was     brandished    or   possessed,     see     U.S.S.G.
    § 2B3.2(b)(3)(A)(v);           two   levels    because   a   victim      sustained
    bodily    injury,    see    U.S.S.G.    § 2B3.2(b)(4)(A);        and    two   levels
    because the defendant knew or should have known that a victim of
    the offense was a vulnerable victim, see U.S.S.G. § 3A1.1(b)(1).
    The   court   also     decreased      Kim’s    offense   level    by     three   for
    acceptance of responsibility, see U.S.S.G. § 3E1.1, leaving a
    total offense level of 25.              Combined with a Criminal History
    Category of II, the offense level yielded an advisory range of
    63-78 months’ imprisonment.
    The court imposed a sentence of 60 months.                   In so doing,
    the court noted the “very serious” nature of the offense but
    added that the choice of a sentence three months below the low
    end of the advisory range was due to Kim’s initial cooperation
    4
    with the government and some then-recent efforts by Kim toward
    rehabilitation.             J.A. 162.       The court also noted that although
    it had overruled several of Kim’s sentencing objections, the
    court     would      sentence     Kim       to       60   months        regardless         of    the
    correctness of the court’s decisions on those subsidiary issues,
    given    the   seriousness           of    the       offense      and    Kim’s          involvement
    therein.
    The district court also ordered Kim to pay restitution in
    the amount of $12,100 to victims of KNBs’ extortions.
    II.
    Kim first contends that the district court clearly erred in
    enhancing      his     offense       level       for      possession         of     a    dangerous
    weapon.    We disagree.
    In     considering          a        challenge        to      a     district           court’s
    application       of    the    Sentencing            Guidelines,        we    review       factual
    findings for clear error and legal determinations de novo.                                       See
    United States v. Allen, 
    446 F.3d 522
    , 527 (4th Cir. 2006).                                         A
    sentencing court clearly errs only when we are “left with the
    definite and firm conviction that a mistake has been committed.”
    United    States       v.    Harvey,      
    532 F.3d 326
    ,    337       (4th       Cir.    2008)
    (internal quotation marks omitted).
    Sentencing Guidelines § 2B3.2(b)(2)(A)(v) provides that a
    defendant’s offense level should be increased by three “if a
    5
    dangerous weapon was brandished or possessed.”                     In this context,
    “dangerous weapon”
    means (i) an instrument capable of inflicting death or
    serious bodily injury; or (ii) an object that is not
    an instrument capable of inflicting death or serious
    bodily injury but (I) closely resembles such an
    instrument; or (II) the defendant used the object in a
    manner that created the impression that the object was
    such an instrument (e.g. a defendant wrapped a hand in
    a towel during a bank robbery to create the appearance
    of a gun).
    U.S.S.G. § 1B1.1 cmt. n.1(D); see U.S.S.G. § 2A2.2 cmt. n.1.
    “The    Guideline-sanctioned           definition           of    dangerous      weapon
    encompasses       an    extremely   broad       range       of   instrumentalities,”
    including knives.         United States v. Passaro, 
    577 F.3d 207
    , 222
    (4th Cir. 2009).         Even if a defendant himself did not possess a
    weapon,     his    offense     level    can     be     increased     when     his     co-
    conspirator       possessed     a      weapon     in        furtherance     of      their
    conspiracy.       See United States v. Hunter, 
    19 F.3d 895
    , 896 (4th
    Cir. 1994).        The government bears the burden of proving the
    applicability      of    the   enhancement       by     a    preponderance       of   the
    evidence.     See United States v. Garnett, 
    243 F.3d 824
    , 828 (4th
    Cir. 2001).
    Kim maintains that the record was not sufficient to support
    the conclusions that Je Hyung Yoo carried the knife during Kim’s
    time in the conspiracy and that the knife actually qualified as
    a dangerous weapon.        We disagree.
    6
    The amended PSR contained statements from co-defendant Tae
    Won Kang that Kim “was aware that co-defendant Je Hyung Yoo
    carried a knife during extortions,” that “Yoo would often take
    his knife out, open it up, and play with the blade on the way to
    extort people,” and that “Yoo sometimes took the knife out of
    his     pocket        and    displayed         the     blade     to    victims      during
    extortions.”           J.A. 272.         These statements provide sufficient
    support for the district court’s finding that Yoo carried the
    knife       during    the    time   of    the       conspiracy.        And,   no   further
    description of the weapon was needed to justify an inference
    that it qualified as a deadly weapon; the fact that it was a
    knife       that     Je     Hyung   Yoo       used     to   intimidate        people     was
    sufficient.          See United States v. Scott, 
    91 F.3d 1058
    , 1064 (8th
    Cir.       1996)   (holding     that     testimony       that    defendant     threatened
    victim with a knife was sufficient to support enhancement even
    in the absence of a description of the knife).
    III.
    Kim next argues that the district court erred in enhancing
    his    offense       level    because     the       conspiracy    targeted     vulnerable
    victims.       We find no reversible error.
    Under       § 3A1.1(b)(1)         of     the     Sentencing       Guidelines,       a
    defendant’s          offense    level     is        increased     by    two    “[i]f     the
    defendant knew or should have known that a victim of the offense
    was    a    vulnerable       victim.”         This    enhancement      “is    intended    to
    7
    reflect the fact that some potential crime victims have a lower
    than average ability to protect themselves from the criminal.
    Because criminals incur reduced risks and costs in victimizing
    such people, a higher than average punishment is necessary to
    deter the crimes against them.”                   United States v. Etoty, 
    679 F.3d 292
    ,     296    (4th   Cir.       2012)    (internal    quotation     marks
    omitted).        “[T]he    role    that    a   victim’s    disability      plays   in
    making it less likely that a crime will be discovered is one of
    the key reasons why a sentencing enhancement is necessary for
    defendants who prey on vulnerable victims.”                
    Id. at 295
    .
    The district court here found:
    In this case, the defendant and his co-defendants
    primarily    targeted   for   extortion   victims   with
    unlicensed businesses and victims who were illegally
    in the United States. In addition, these victims were
    immigrants from the Republic of Korea, some of whom
    didn’t    speak   English   well.       All   of  these
    characteristics made them unlikely to report their
    victimization to the authorities, whether for lack of
    understanding or ability to navigate the U.S. law
    enforcement system for fear of legal repercussions.
    J.A. 148-49 (citation omitted).                Kim argues that there was no
    evidence that any of the particular victims who were illegally
    in this country were actually made vulnerable by their illegal
    presence    in    the     United   States.         He   adds   that   no   evidence
    supports a conclusion that any of the victims could not speak
    English well or were unfamiliar with the American legal system
    or were recent immigrants.            And, he further maintains that the
    8
    vulnerable victim enhancement was designed to protect people who
    are unusually easy targets through no fault of their own.                                 Thus,
    he    argues    that      considering         people      to    be    vulnerable       based    on
    their decisions to engage in illegal activity is improper.
    We need not resolve the merits of Kim’s argument, however,
    because any error committed by the district court in imposing
    the    enhancement         was     harmless.            The     court       stated    that     its
    decision       to   sentence       Kim      to    60   months’       imprisonment       did    not
    depend on the correctness of the two-level enhancement, and the
    court noted that it would select the very same sentence were we
    to hold that the enhancement did not apply.                                  Accordingly, so
    long as the alternative sentence was not an abuse of discretion,
    any error in applying the enhancement was harmless.                                  See United
    States v. Savillon-Matute, 
    636 F.3d 119
    , 123 (4th Cir. 2011)
    (holding       that       when    a    district        court        gives    an   alternative,
    substantive basis for a sentence, it is reviewed for abuse of
    discretion,         and    if    it    is    found      to     be    reasonable,       then    any
    remaining,          alleged      procedural            errors       are     presumed     to     be
    harmless); see also United States v. Hargrove, 
    701 F.3d 156
    , 163
    (4th    Cir.    2012)       (rejecting           the   argument       that    Savillon-Matute
    should be read to narrowly apply in unique circumstances).
    Assuming       that       the   enhancement           was     erroneously       applied,
    Kim’s offense level would have been 23 rather than 25 and his
    advisory guideline range would have been 51-63 months.                                       Under
    9
    that scenario, the 60-month sentence would have been within the
    guidelines range.             A within-guidelines sentence is presumed to
    be reasonable, see United States v. Mendoza-Mendoza, 
    597 F.3d 212
    , 217 (4th Cir. 2010), and the presumption is rebutted only
    by a showing “that the sentence is unreasonable when measured
    against the [18 U.S.C.] § 3553(a) factors,” United States v.
    Montes-Pineda,         
    445 F.3d 375
    ,       379    (4th    Cir.    2006)      (internal
    quotation marks omitted).                 No facts in the record are sufficient
    to rebut that presumption here.
    IV.
    Kim     finally    argues      that    the       district   court      applied     the
    Hobbs Act in an unconstitutional manner by ordering payment of
    restitution       to    victims      who    Kim    maintains       engaged      in    illegal
    conduct.        He specifically claims that three of the victims to
    whom     he    was     ordered       to    pay     restitution         ran    prostitution
    businesses and one of those transported a young woman across
    state lines in violation of the Mann Act.                        See 
    18 U.S.C. § 2421
    et   seq.       He     also    alleges      that       those   business      employed    and
    exploited       illegal       immigrants.          While       Congress      may     regulate
    commerce “among the several States,” U.S. Const. art. I., § 8,
    cl. 3,        Kim maintains that “commerce” in this context “does not
    include illegal business activity.”                       Appellant’s brief at 28.
    We disagree.
    10
    The       Commerce      Clause      authorizes      Congress      to   regulate     (1)
    “the       use   of     the    channels     of    interstate       commerce,”       (2)   “the
    instrumentalities of interstate commerce, or persons or things
    in interstate commerce, even though the threat may come only
    from intrastate activities,” and (3) “those activities having a
    substantial relation to interstate commerce.”                            United States v.
    Lopez, 
    514 U.S. 549
    , 558-59 (1995).                         We have previously noted
    that “Congress exercised the full extent of this authority in
    the Hobbs Act.”               United States v. Williams, 
    342 F.3d 350
    , 354
    (4th Cir. 2003).              The Hobbs Act provides in relevant part:
    Whoever in any way or degree obstructs, delays,
    or affects commerce or the movement of any article or
    commodity in commerce, by robbery or extortion or
    attempts or conspires so to do, or commits or
    threatens physical violence to any person or property
    in furtherance of a plan or purpose to do anything in
    violation of this section [shall be punished].
    
    18 U.S.C. § 1951
    (a) (emphasis added).                       “Commerce is sufficiently
    affected under the Hobbs Act where a robbery depletes the assets
    of     a    business          that    is    engaged        in   interstate      commerce.”
    Williams,         
    342 F.3d at 354-55
    .         On    that    basis,     we   held    in
    Williams         that    the    robbery      of   a   drug      dealer    “satisfies       the
    ‘affecting commerce’ element of the Hobbs Act, inasmuch as such
    a robbery depletes the business assets of the drug dealer.”                                
    Id.
    Considering our recognition in Williams that the scope of the
    Hobbs Act is coextensive with that of the Commerce Clause, see
    11
    
    id. at 354
    , Williams forecloses Kim’s argument that “commerce”
    does not include illegal business activity in this context.
    V.
    In    sum,    finding      no   reversible      error,   we    affirm   Kim’s
    sentence.    We dispense with oral argument because the facts and
    legal    contentions      are   adequately     presented      in   the   materials
    before    this    court   and   argument     would    not   aid    the   decisional
    process.
    AFFIRMED
    12