United States v. Dae Hyuck Ko

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4284
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAE HYUCK KO,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District
Judge. (1:15-cr-00109-LO-5)
Submitted: March 21, 2017 Decided: March 30, 2017
Before MOTZ and TRAXLER, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Douglas A. Steinberg, LAW OFFICES OF DOUGLAS A. STEINBERG,
Alexandria, Virginia, for Appellant. Dana J. Boente, United
States Attorney, Grace L. Hill, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dae Hyuck Ko appeals from his conviction and 180-month
prison sentence for conspiracy to commit bank fraud, in
violation of 18 U.S.C. § 1349 (2012), 18 counts of bank fraud,
in violation of 18 U.S.C. §§ 2, 1344 (2012), and four counts of
aggravated identity theft, in violation of 18 U.S.C. §§ 2, 1028A
(2012). We affirm.
Dae Hyuck Ko challenges the district court’s denial of his
Fed. R. Crim. P. 29 motion for judgment of acquittal, which we
review de novo. United States v. Clarke, 842 F.3d 288, 297 (4th
Cir. 2016). Dae Hyuck Ko contends that some of the testimony
supporting his conspiracy and bank fraud convictions came from
three coconspirators whose answers to certain questions at trial
rendered them “discredited sources.” However, it is the
exclusive province of the jury “to weigh the credibility of the
witnesses, and to resolve any conflicts in the evidence.”
United States v. Dinkins, 691 F.3d 358, 387 (4th Cir. 2012).
Accordingly, we will not make credibility determinations on
appeal. United States v. Cabrera-Beltran, 660 F.3d 742, 754
(4th Cir. 2011).
Next, Ko argues that the district court should have
provided a multiple conspiracies instruction to the jury. Dae
Hyuck Ko did not request this instruction at the charge
conference, nor did he object to its omission; accordingly, we
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review only for plain error. United States v. Brown, 202 F.3d
691, 698 n.13 (4th Cir. 2000).
“[A] multiple conspiracy instruction is not required unless
the proof at trial demonstrates that the defendant was involved
only in a separate conspiracy unrelated to the overall
conspiracy charged in the indictment.” United States v.
Stockton, 349 F.3d 755, 762 (4th Cir. 2003) (brackets and
internal quotation marks omitted). The failure to give a
multiple conspiracies instruction is reversible error only where
the defendant establishes substantial prejudice by showing that
“the evidence of multiple conspiracies [was] so strong in
relation to that of a single conspiracy that the jury probably
would have acquitted on the conspiracy count had it been given a
cautionary multiple-conspiracy instruction.” United States v.
Bartko, 728 F.3d 327, 344 (4th Cir. 2013) (internal brackets and
quotation marks omitted).
Here, the evidence adduced at trial supported a finding
that Dae Hyuck Ko was involved in the single conspiracy charged
in the indictment. Moreover, Dae Hyuck Ko has failed to
articulate any prejudice resulting from the omission of the
multiple conspiracies jury instruction. Therefore, we conclude
that the district court’s decision not to provide such an
instruction was not erroneous.
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Finally, Dae Hyuck Ko challenges the length of his
sentence, which we review for reasonableness, applying a
deferential abuse-of-discretion standard. Gall v. United
States, 552 U.S. 38, 51-52 (2007). The district court properly
calculated the Sentencing Guidelines range to be 210 to 262
months for the first 19 counts, plus a mandatory consecutive
sentence of 24 months for the remaining 4 counts. See 18 U.S.C.
§ 1028A(a)(1), (b)(2), (4), (c)(5). We presume Dae Hyuck Ko’s
below-Guidelines range sentence of 180 months to be
substantively reasonable. United States v. Louthian, 756 F.3d
295, 306 (4th Cir. 2014). Dae Hyuck Ko can rebut that
presumption only “by showing that the sentence is unreasonable
when measured against the 18 U.S.C. § 3553(a) factors.” Id.
Dae Hyuck Ko complains that three of his codefendants, each
of whom pleaded guilty, received substantially shorter
sentences. A court’s obligation to avoid imposing disparate
sentences, however, does not require the court “to sentence
similarly individuals who go to trial and those who plead
guilty. They are not similarly situated for sentencing
purposes.” United States v. Susi, 674 F.3d 278, 288 (4th Cir.
2012); see 18 U.S.C. § 3553(a)(6). Moreover, the district court
found that the codefendants were less culpable than Dae Hyuck
Ko, who was “the brains” of the conspiracy. Thus, we conclude
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that Dae Hyuck Ko has failed to rebut the presumption that his
sentence was reasonable.
Accordingly, we affirm the judgment of the district court.
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
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