United States v. Jung Yul Yu , 954 F.2d 951 ( 1992 )

OPINION OP THE COURT

GREENBERG, Circuit Judge.

Appellant Jung Yul Yu appeals from a judgment of conviction and sentence entered on May 16, 1991, sentencing him to ten months’ imprisonment on his plea of guilty to two counts of bribery of a public official, in violation of 18 U.S.C. § 201(b)(1)(A). The judgment provided that five months of the sentence could be served in home confinement with work release and church attendance privileges. This appeal raises questions regarding the power of the district court to depart downward from the range provided by the Sentencing Guidelines by reason of claimed cultural differences between Korea, Yu’s country of origin, and the United States.

The essential facts are not in dispute. Yu was born in Korea in 1931 and was graduated from law school there. While in Korea he worked for what his attorney characterizes as the Korean equivalent of the Internal Revenue Service. In 1976, when he was 46 years old, he immigrated to the United States with his wife and four children, and he has become a naturalized citizen.¹ His children have received college educations in this country. Yu took some courses at Temple University and subsequently obtained a doctorate degree through a correspondence course at another institution. He is referred to as “Dr.”, apparently on the basis of either that degree or one earned in Korea. Upon his arrival in the United States, Yu worked in a factory, but in 1980 he opened an accounting office which he describes in his brief as a “tax preparation business.” He seems to have been financially successful, as the presentence report shows that he owns three properties, all with substantial equities above mortgage debt.

Between August 1988 and May 1989, during an audit of Yu’s and his wife’s joint tax return, which was tape recorded without Yu’s knowledge, Yu made certain small payments to the examining agent for the agent’s own use, one payment being $250. Ultimately, he was advised that he owed $27,000 in tax deficiencies and penalties. Yu attempted to take care of this problem by paying the agent $5,000, for which he received a no-change letter. He was indicted for bribery for making the $250 and $5,000 payments.

Yu’s adjusted offense level was 14 and, inasmuch as the court allowed him a 2-level adjustment for acceptance of responsibility, his total offense level was 12. Thus, as his criminal history category was I, his guideline range was 10 to 16 months.

At sentencing Yu urged the district court to depart downward from that range because of cultural differences between the United States and Korea. He seemed to view this case as thereby involving a mitigating circumstance not adequately considered by the Sentencing Commission in formulating the guidelines. See 18 U.S.C. § 3553(b). In support of this contention he made an offer of proof that, based on his Korean experience, he considered the bribe as an honorarium and that it could be viewed as an insult not to offer the payment. He further urged that the plea agreement itself authorized a downward departure. On the other hand, the government contended that, while there might be cultural differences between the United States and Korea, in view of his long residency in this country Yu could not reasonably rely on his Korean background for a departure. Furthermore, the government regarded Yu’s contention as barred by Sentencing Guidelines § 5H1.10 which indicates that “national origin” is not relevant in the determination of a sentence. The district court held that it did not have the power to depart downward but sentenced Yu at the bottom of the applicable range, emphasizing that in refusing to depart it was not exercising discretion. Rather, the district court stated: “just so that it’s clear I’m not exercising any discretion not to use a power that I have, I’m holding that I lack the power.” Yu appeals and we have jurisdiction under 18 U.S.C. § 3742(a)(2).

On this appeal Yu repeats his argument that the cultural differences between Korea and the United States justify the downward departure. While he recognizes that section 5H1.10 provides that “national origin” is not relevant in the determination of a sentence, he urges that this guideline is a non-binding policy statement which, in any event, does not exclude a downward departure on the basis of culture, a factor he regards as distinct from national origin. He further contends that he is elderly and frail and would face danger in prison and that by reason of the publication of his name in Korean and English language newspapers he has “suffered a great loss of face.” He finally urges that since his plea agreement provides that the court “may impose any sentence authorized by law, including a sentence that departs from any applicable sentencing guideline range” the district court had the power to depart downward. The government contends that the guideline is binding and precludes downward departure on the basis of Yu’s place of national origin which is what it believes he is seeking. It also contends that the plea agreement did not authorize a downward departure, as it simply acknowledged that any lawful sentence could be imposed.

If we decided this case by determining whether the Sentencing Commission adequately took into consideration the circumstances which Yu has advanced for departure, see 18 U.S.C. § 3553(b), we would undoubtedly exercise plenary review. United States v. Medeiros, 884 F.2d 75, 78 (3d Cir.1989); United States v. Uca, 867 F.2d 783, 786 (3d Cir.1989); United States v. Ryan, 866 F.2d 604, 610 (3d Cir.1989). However, we see no need to make such a plenary construction of the guidelines, for it is perfectly clear for the reasons we explain below that the district court would have abused its discretion if it had departed downward in this case. Thus, we prefer to leave to another day the question of whether a foreign culture is subsumed within the term “national origin," a factor which the Sentencing Commission, faithful to its congressional mandate, 28 U.S.C. § 994(d), has deemed irrelevant in the determination of a sentence.

Hence, we do not decide that “national origin,” as that term appears in the Sentencing Guidelines, includes within it any and all cultural differences. Although the concept of sentencing based upon one’s culture raises a number of questions as to whether differences in culture within the same society should be, or can be, identified as focal points for sentencing or whether cultural differences deemed to be a matter for sentencing consideration should be restricted to cultures which are foreign to American shores, we leave those questions to be answered by the Sentencing Commission which Congress has designated to deal with such issues. Suffice it to say, this case does not require resolution of “cultural” v. “natural origin” issues.

Accordingly, as there was no basis to depart here, we will simply assume without deciding that in some cases the cultural differences between the United States and another country may justify downward departure. Thus, it is conceivable that an unschooled recent immigrant or a foreign traveler might reasonably point to practices in his country of origin that would justify a downward departure on the grounds that while he intended to do the acts for which he was convicted and was thus criminally liable, he did not recognize the extent of his culpability in this country.² But this is not such a case. While Yu points to his Korean origin as the source of his cultural values, he never contended in the district court that at the time of the bribes in this case he did not understand that his actions violated our laws. This point was not lost on us when we examined the record and thus at oral argument we directly asked whether Yu contended that, at the time of the offenses, he thought his conduct in bribing the agent was consistent with the culture of this country. We did not receive an affirmative response.³

Of course, this is hardly surprising. Yu had been in this country for about 12 years and was a naturalized citizen when he committed the offenses. He was a professional tax preparer who had accumulated property and accordingly had at least some familiarity with United States laws. In addition, he had some college-level and legal education in this country and had been well educated in Korea. Indeed, he almost admits that he had no reason to believe that the culture in this country countenanced the bribery of IRS agents. He implicitly demonstrates this by pointing out that when he sought to cooperate with the government to encourage it to move for a downward departure pursuant to Sentencing Guidelines § 5K1.1,⁴ he was unsuccessful for, as he explains in his brief, he could not cooperate with the government because he had no criminal associates. Accordingly, Yu contends that he “was not able to provide the government with any valuable information.” Brief at 18. He then, in effect, reiterates that he knew the American way, and indeed usually lived by it, describing his own conduct as a single act “of aberrant behavior.” The fact is that insofar as we can ascertain from the record, Yu has been a model citizen except for the conduct which led to these proceedings. In the circumstances, there is no basis to avoid the obvious conclusion that Yu was motivated to offer a $5,000 bribe to avoid a $27,000 tax liability by a desire to save $22,000, rather than by his belief that he was culturally bound to make the offer.⁵ The bottom line is that, while immigrants lawfully entering the United States are welcome to bring their cultures with them, the aspect of a culture which justifies the bribing of federal agents must be left abroad.⁶

Some of Yu’s other arguments were not raised in the district court and thus to that extent have not been preserved and in any event are without merit. See United States v. Batka, 916 F.2d 118, 120 (3d Cir.1990). There is no reason to conclude that Yu cannot be adequately protected for the short time he will be in actual custody. Furthermore, the shame which he has felt upon conviction from a few newspaper articles does not differ in character from that felt by many otherwise law-abiding persons upon being criminally convicted. Finally, we construe the plea agreement, which recognizes the court’s right to depart from the applicable sentencing range, simply to mean that the court can impose a sentence authorized by law and the guidelines. This standard language does nothing more than preclude a defendant from claiming surprise if the court departs from the guidelines range and certainly could not be the basis to jettison the guidelines.

The judgment of conviction and sentence of May 16, 1991, will be affirmed.

1 . The presentence report does not indicate that he was naturalized but the assistant United States attorney made that representation at the sentencing and was not contradicted by Yu’s attorney. App. at 55.

2 . Actually it is doubtful at best that cultural differences are allowable under the guidelines, even if it would appear to be reasonable to depart on that basis in a particular case. See United States v. Natal-Rivera, 879 F.2d 391 (8th Cir.1989).

3 . While the dissent suggests that there is a disputed factual issue regarding whether or not Yu knew that in this country bribing of revenue agents is not tolerated, and further suggests that we resolved the matter against him by our inquiry at oral argument, this is not so. Our inquiry at oral argument simply confirmed our understanding of the record that Yu never contended in the district court that he did not understand that he was violating the law. Thus, there cannot possibly be a dispute of fact on the issue of Yu's knowledge of the law and we need not remand the matter to see if Yu can prove a contention he has never made.

4 . § 5K1.1. Substantial Assistance to Authorities (Policy Statement)

Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.

5 . While we reach our result on an abuse of discretion analysis, we point out that the same result might well be reached by a plenary conclusion that a downward departure can never be justified on the basis of the defendant's cultural background when the defendant understood the culture of this country. See United States v. Medeiros, 884 F.2d at 78. This plenary analysis, of course, would be different than ascertaining whether cultural differences are subsumed within the term "national origin.” It is, however, not necessary to make this plenary determination as the downward departure could not be sustained even on a deferential standard of review.

6 .The parties have cited a number of other cases implicating the culture differences issue. See United States v. Jagmohan, 909 F.2d 61 (2d Cir.1990); United States v. Big Crow, 898 F.2d 1326 (8th Cir.1990); United States v. Natal-Rivera, 879 F.2d 391 (8th Cir.1989). However, we see no profit in discussing them as none formulates an overarching principle that we could follow to resolve this case, which is obviously dependent upon its particular facts.