United States v. Sung Bum Chang , 237 F. App'x 985 ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
August 7, 2007
No. 06-11229
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
SUNG BUM CHANG
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:05-CR-127-1
Before DENNIS, CLEMENT, and PRADO, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:*
Sung Bum Chang appeals the calculation of his offense level under the
Sentencing Guidelines. We AFFIRM.
I. FACTS AND PROCEEDINGS
On June 12, 2006, Chang pleaded guilty to one count of conspiracy in
violation of 18 U.S.C. § 371 and one count of forced labor in violation of 18 U.S.C.
§ 1589. On October 18, 2006, Chang was sentenced to 120 months of
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 06-11229
imprisonment, three years of supervised release, restitution, and a special
assessment fee.
Beginning on or about December 13, 2004, until April 26, 2005, when law
enforcement officials raided Chang’s home, he participated in a ring that
smuggled women into the United States from South Korea. Two of the women
indicated that they had met with brokers in South Korea who arranged for their
travel to Canada. Guides took them across the United States-Canadian border
on foot. After passing through Los Angeles, they were brought to Chang near
Dallas.
Chang owned a club in Coppell, Texas, called Club Wa which was
frequented by Korean businessmen and other Korean nationals. Chang
coordinated with other members of the human trafficking network and paid the
smuggling debts of the women whom he received through it. The women were
required to live at his house and work at his club until they repaid their debts.
Chang held the women’s passports. He also executed contracts requiring them
to repay their smuggling debts. The women needed Chang’s permission to leave
the house, which was equipped with a video surveillance system to monitor their
entries and departures. One woman escaped from the house by leaping from a
second story window and eventually contacted law enforcement. Chang’s wife,
Hyang Kyung Chang, collaborated in the scheme. Under Chang’s direction, she
helped supervise the women at their home, and she worked at Club Wa. Chang
enlisted the support of employees at Club Wa to transport the women, and
escorts monitored the women’s movements. Chang fined the women for violating
his rules, adding the fines to their debts. Between fifty and sixty women lived
in Chang’s home under similar arrangements between 2003 and 2005.
Seven women were living at Chang’s residence when law enforcement
officials raided it. All of the women were in the United States illegally, and they
all spoke little or no English. Chang had taken their passports from them. All
2
No. 06-11229
of the women were in their late twenties or early thirties. Chang told one of the
victims, GHH, that the contract to repay her smuggling debt was enforceable in
the United States. GHH came from a village in South Korea of less than one
hundred people. Her father died when she was three years old, and her family
suffered severe economic hardship.
At sentencing, the district court added a four-point leader/organizer
enhancement to Chang’s offense level under U.S.S.G. § 3B1.1(a) (2005). The
court also added a two-point vulnerable victim enhancement under U.S.S.G. §
3A1.1(b)(1). Chang’s offense level was 30, and his criminal history category was
I. His Guideline range was 97–121 months, and he was sentenced to 120 months
of imprisonment.
Chang appeals the calculation of this Guideline range, specifically
challenging the addition of the four-point leader/organizer enhancement and the
two-point vulnerable victim enhancement to his offense level.
II. STANDARD OF REVIEW
This court reviews de novo the district court’s interpretation of the
Sentencing Guidelines. United States v. Angeles-Mendoza, 407 F.3d 742, 747 (5th
Cir. 2005). Factual findings for sentencing are reviewed for clear error. United
States v. Valencia, 44 F.3d 269, 272 (5th Cir. 1995). “A factual finding is not
clearly erroneous if it is plausible in light of the record read as a whole.” Id.
III. DISCUSSION
A. § 3B1.1(a) organizer
“If the defendant was an organizer or leader of a criminal activity that
involved five or more participants or was otherwise extensive, increase by 4
levels.” U.S.S.G. § 3B1.1(a). In deciding whether a defendant undertook an
organizational or leadership role, the court should consider:
the exercise of decision making authority, the nature of
participation in the commission of the offense, the recruitment of
accomplices, the claimed right to a larger share of the fruits of the
3
No. 06-11229
crime, the degree of participation in planning or organizing the
offense, the nature and scope of the illegal activity, and the degree
of control and authority exercised over others. There can, of course,
be more than one person who qualifies as a leader or organizer of a
criminal association or conspiracy.
U.S.S.G. § 3B1.1 cmt. n.4. “To qualify for the four-level § 3B1.1(a) enhancement,
a person must have been the organizer or leader of at least one other
participant.” United States v. Ronning, 47 F.3d 710, 712 (5th Cir. 1995).
The district court relied on United States v. Ventura, 353 F.3d 84, 89–90
(1st Cir. 2003), in which the First Circuit affirmed a § 3B1.1(a) enhancement
when the defendant had been the “organizer or leader of a discrete part of the
operation.” That court’s reasoning comports with U.S.S.G. § 3B1.1 cmt. n.4,
which states that there can be more than one leader or organizer of a criminal
conspiracy. While Ventura’s holding is persuasive, Chang’s role as the leader or
organizer of the forced labor at Club Wa is sufficient to affirm the district court’s
decision.
Chang concedes that the criminal activity that was the subject of his
conviction was otherwise extensive. He argues that he did not participate as a
leader or organizer in the smuggling network. However, the district court did
not rely solely on Chang’s involvement in the smuggling network. Over a three
year period, Chang organized the forced labor of between 50 and 60 women.
Chang controlled the activities at Club Wa and directed his wife and club
employees in the criminal activity related to Club Wa. In light of Chang’s
ownership of the club and testimony that the club had gross receipts of several
million dollars, the district court’s finding that Chang received a larger portion
of the fruits of the criminal activity there was plausible. Also, the district court’s
finding of Chang’s involvement in the human trafficking ring that provided
women to work as forced labor at his club was plausible. While Chang was not
in overall command of the human trafficking network, he did command the
4
No. 06-11229
criminal conspiracy that was the subject of his conviction, namely the forced
labor at his club. Therefore, the district court’s determination that Chang was
the leader or organizer of criminal activity was not clearly erroneous.
B. § 3A1.1 vulnerable victim
U.S.S.G. § 3A1.1(b) “applies to offenses involving an unusually vulnerable
victim in which the defendant knows or should have known of the victim’s
unusual vulnerability. . . . Do not apply subsection (b) if the factor that makes
the person a vulnerable victim is incorporated in the offense guideline.” U.S.S.G.
§ 3A1.1 cmt. n.2. “A condition that occurs as a necessary prerequisite to the
commission of a crime cannot constitute an enhancing factor under § 3A1.1.”
United States v. Moree, 897 F.2d 1329, 1335 (5th Cir. 1990). For example,
“[b]ecause an alien’s illegal status is a prerequisite to the crime of alien
smuggling, it is error for a district court to find unusual vulnerability based on
that status.” United States v. Medina-Argueta, 454 F.3d 479, 482 (5th Cir. 2006).
The forced labor statute is violated by whomever “knowingly provides or obtains
the labor or services of a person . . . by means of the abuse or threatened abuse
of law or the legal process.” 18 U.S.C. § 1589.
The district court found that one victim, GHH, came from an impoverished
background in a small village and spoke limited English. These factors and her
illegal status made her particularly susceptible to Chang’s criminal conduct.
Specifically, the court found that Chang took advantage of GHH’s background
and immigration status when telling her that the contract to repay her
smuggling debt was enforceable in the United States. The court found that
illegal status was an unusual vulnerability that was present in only some
victims of forced labor.
Chang argues that the district court did not find that GHH was unusually
vulnerable, that she and other victims “made the conscious choice to cross into
this country illegally, and that they came here voluntarily and of their own free
5
No. 06-11229
will in an effort to earn money.” Chang also contends that the vulnerability
criteria are already incorporated within the Guidelines, and that, according to
Fifth Circuit precedent, those conditions are inherent in forced labor.
First, the district court’s specific findings about GHH’s unusual
vulnerabilities are documented in the record, as are the court’s findings of all of
the women’s limited ability to speak English and their illegal status. Second, the
women’s choice to violate the law of the United States does not preclude them
from receiving its protections.
Third, Chang is incorrect in asserting that illegal immigration status is
incorporated in the Guidelines for this offense. Illegal status is not a
prerequisite to the violation of 18 U.S.C. § 1589, unlike the alien smuggling
violations at issue in Angeles-Mendoza, 407 F.3d at 745. Chang’s victims were
more like the illegal alien victims in United States v. Garza, 429 F.3d 165, 168
(5th Cir. 2005), who were defrauded by defendants posing as immigration
agents. In Garza, a vulnerable victim enhancement was proper because the
victim’s illegal immigration status was not a prerequisite to the crime and “was
not taken into account by the base-level offense.” Id. at 173.
The district court properly analyzed the vulnerability of the women forced
to labor at Club Wa. Unlike the district court in Angeles-Mendoza, 407 F.3d at
747–48, the court here made specific findings about an individual victim of
which Chang knowingly took advantage. See Garza, 429 F.3d at 173 (noting
that the district court made findings of specific vulnerabilities of individual
victims).
Because the district court’s findings are plausible in light of the record and
comport with this circuit’s precedent, they are not clearly erroneous.
IV. CONCLUSION
Chang’s sentence is AFFIRMED.
6