United States v. Spencer Dang , 492 F. App'x 730 ( 2012 )

FILED
NOT FOR PUBLICATION AUG 09 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50605
Plaintiff - Appellee, D.C. No. 8:08-cr-00252-JVS-1
v.
MEMORANDUM *
SPENCER TND DANG, AKA Thinh
Nguyen Duy Dang, AKA Mikey, AKA
Tinh Lin Nyah,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Argued and Submitted August 6, 2012
Pasadena, California
Before: REINHARDT, SILVERMAN, and NGUYEN, Circuit Judges.
Defendant Spencer Dang appeals his sentence, imposed after he pled guilty
for bank fraud. At sentencing, the district court ordered restitution for $795,225.
Dang argues that this number should be reduced by $40,933 because, for that
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
amount, the government relied on bank records indicating check payments to
co-schemers when the government did not have photocopies of the checks in its
possession. Dang also contends that the district court erred in failing to waive
post-judgment interest, despite its finding that Dang is only able to pay a nominal
restitution amount due to his indigency. Dang never objected or requested a
waiver of the interest.
We review a district court’s factual findings for clear error, its restitution
order for abuse of discretion, and the legality of the restitution order de novo.
United States v. Waknine, 543 F.3d 546, 555 (9th Cir. 2008). The government
must establish the proper amount of restitution by a preponderance of the evidence.
Id. at 556. A district court’s determination “that a particular item of evidence is
sufficiently reliable [to be considered at sentencing] is reviewed for abuse of
discretion.” United States v. Marin-Cuevas, 147 F.3d 889, 895 (9th Cir. 1998).
Here, the district court did not abuse its discretion in finding that the bank
records possessed sufficient indicia of reliability to support a restitution order. See
United States v. Ali, 620 F.3d 1062, 1066, 1072 (9th Cir. 2010); Waknine, 543 F.3d
at 555. In any event, Dang admitted the ultimate loss amount in his objections to
the Presentence Report. Therefore, the district court was within its discretion in
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finding that the evidence possessed sufficient indicia of reliability to support the
full loss amount of $795,225.
Dang argues that the district court plainly erred in not waiving post-
judgment interest on unpaid restitution.1 To prevail under plain error review, there
must be: (1) an error; (2) that is plain (under then existing law); (3) that affects
substantial rights; and (4) that seriously “affects the fairness, integrity, or public
reputation of judicial proceedings. Puckett v. United States, 556 U.S. 129, 135
(2009).
Under 18 U.S.C. § 3612(f)(3), waiver of interest on unpaid restitution is
discretionary. Indigency is a necessary, but not in itself a sufficient, condition to
waiver. Therefore, while the district court could have waived post-judgment
interest once it found that Dang was unable to pay, the district court was not
required to do so, and Dang never requested a waiver.
That the district court waived interest for Dang’s co-schemers is of no
moment. Ngai and Tran cooperated with the government. Dang did not, and “a
sentencing disparity based on cooperation is not unreasonable.” United States v.
Carter, 560 F.3d 1107, 1121 (9th Cir. 2009) (internal quotations omitted). No
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Dang concedes that the district court’s failure to waive post-judgment
interest is reviewed for plain error due to his failure to raise the objection below.
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defendant was more culpable than Dang and Dang was the only one who did not
cooperate. There was no error, let alone plain error, with respect to the interest.
AFFIRMED.
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