United States v. Kwang Kim

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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.
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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
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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
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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
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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.
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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
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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
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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
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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. § 2421et 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.
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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
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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
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