United States v. Bang, Juliane

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued February 22, 2007
Decided September 24, 2007
Before
Hon. RICHARD D. CUDAHY, Circuit Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 06-3060
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Northern
District of Illinois, Western Division
v.
No. 05 CR 50008-2
JULIANE BANG,
Defendant-Appellant. Philip G. Reinhard,
Judge.
ORDER
Juliane Bang ran a prostitution business under the guise of a massage spa.
She appeals her 18-month prison sentence for conspiring to use interstate facilities
to aid a racketeering enterprise and conspiring to commit money laundering. Bang
argues that the district judge was unaware of his discretion to impose a sentence
outside of the guidelines’ range and failed to consider the statutory sentencing
factors enumerated in 18 U.S.C. § 3553(a). Because the district court freely chose
the sentence after meaningfully considering the § 3553(a) factors, and because
Bang’s sentence is reasonable, we affirm it.
Bang owned and operated the Osaka Spa in Rockford, Illinois from October
2004 until February 27, 2005. She told a United States probation officer that when
she purchased the spa she thought it was a legitimate massage therapy business,
but, after taking title, she discovered that it was actually a front for prostitution.
No. 06-3060 Page 2
Bang says she tried various tactics to make the business legitimate, including
shutting down the spa at times, seeking a buyer, and attempting to recruit actual
massage therapists. Nevertheless, she continued to run the Osaka Spa, knowing
that her employees were selling sex, because she needed the money.
Bang pleaded guilty to two counts: conspiring to use interstate facilities to
aid a racketeering enterprise, in violation of 18 U.S.C. §§ 371 and 1952(a), and
conspiring to commit money laundering, in violation of 18 U.S.C. § 1956(h).
Because the two counts caused essentially the same harm, the sentencing court
grouped them together and calculated her sentence based only on the racketeering-
conspiracy conviction. See U.S.S.G. §§ 3D1.2(b), 3D1.3(a). The court then properly
calculated her advisory guidelines sentencing range: with a base offense level of 14,
see id. §§ 2E1.2, 2G1.1, a 4-level adjustment for being an organizer or leader of
criminal activity involving five or more persons, see id. § 3B1.1(a), and a 3-level
reduction for acceptance of responsibility, see id. § 3E1.1, her adjusted offense level
was 15; with a criminal history category of I, her guidelines range was 18 to 24
months, see id. Ch. 5, Pt. A.
Bang did not challenge the guidelines calculation. But at sentencing her
attorney asked the court to “consider a variance downward,” arguing that Bang was
unaware that Osaka Spa was a prostitution ring when she purchased it, that she
attempted to legitimize business there, and that she allowed the prostitution to
continue only because of her difficult financial situation. Her attorney noted that
Bang had no prior criminal history, felt deep remorse, and was training to become a
therapist at a sleep apnea clinic.
Although the district judge described the guidelines’ range as “advisory,” he
began his sentencing decision by echoing Bang’s attorney’s language: “I first have to
consider whether I ought to grant a variance from the guideline range of 18 to 24
months, which is presumed to be reasonable.” He then said that he had “looked at
the statutory factors under [section] 3553(a).” The judge discussed the fact that
Bang did not have a prior criminal record, expressed remorse, and had engaged in
the criminal conduct only for a short time. He also discussed Bang’s control over
the illegal operation, the exploitation of the women who worked for her, and the
need to deter Bang and others from committing the same crime in the future. The
district judge concluded that “the guideline range is reasonable considering all of
the factors that are set forth in [section] 3553(a),” and selected a sentence at the low
end of the guidelines’ range. The court imposed concurrent sentences of 18 months’
imprisonment for each count, as well as three years’ supervised release, a $100 fine,
and a $200 special assessment.
On appeal, Bang argues that the district judge gave undue weight to the
guidelines’ range and did not adequately consider other sentencing factors, as
§ 3553(a) requires. Specifically, Bang argues that the court failed to consider
No. 06-3060 Page 3
“mitigating factors,” including her ignorance of Osaka Spa’s true services when she
bought it, her attempts to legitimize the business, the fact that she never forced her
employees to engage in sex acts, and the fact that she did not turn a profit in the
months she owned Osaka Spa. She also argues that the court ignored the disparity
between her sentence and her co-conspirators’ sentences.
Since this appeal was argued, the Supreme Court held in United States v.
Rita, 127 S. Ct. 2456 (2007), that, although appellate courts may accord a
presumption of reasonableness to guidelines sentences, “the sentencing court does
not enjoy the benefit of a legal presumption that the Guidelines sentence should
apply.” Id. at 2465; United States v. Schmitt, No. 06-2207, 2007 U.S. App. LEXIS
18662, at *10 (7th Cir. Aug. 7, 2007); see United States v. Demaree, 459 F.3d 791,
794-95 (7th Cir. 2006) (explaining that district court may not presume that
guidelines sentence is correct). Rather, the sentencing court must subject the
sentence to the “thorough adversarial testing contemplated by federal sentencing
procedure.” Rita, 127 S. Ct. at 2465. As we have recently explained, that procedure
demands that the court “sentence based on 18 U.S.C. § 3553(a) without any thumb
on the scale favoring a guideline sentence.” United States v. Sachsenmaier, 491
F.3d 680, 685 (7th Cir. 2007). “If, however, a district court freely decides that the
guidelines suggest a reasonable sentence, then on appellate review the defendant
must explain why the district court was wrong.” Id.A fair reading of the district court’s decision shows that, while the judge
acknowledged our presumption of reasonableness, he sentenced Bang based on the
§ 3553(a) factors “without any thumb on the scale favoring a guideline sentence,”
Sachsenmaier, 491 F.3d at 685. Although the judge used loose language—he echoed
Bang’s attorney’s discussion about whether to “grant a downward variance,” and he
said that the guidelines are “presumed to be reasonable”—we are unconvinced that
it made a substantive difference in this case. See United States v. Dale, No. 06-
3224, 2007 U.S. App. LEXIS 19582, at *15 n.6 (7th Cir. Aug. 17, 2007) (ignoring
district court’s reference to “departures” where court applied correct sentencing
procedure); cf. United States v. Griffin, 493 F.3d 856, 868 (7th Cir. 2007) (vacating
sentence and remanding where district court actually applied rebuttable
presumption of reasonableness to guidelines range). The district judge
acknowledged that the guidelines are advisory and explained that he chose a
sentence within the guidelines’ range because he thought it would best comport
with the statutory sentencing factors—not because he thought a guidelines sentence
was presumptively “correct,” Demaree, 459 F.3d at 794-95. Cf. Schmitt, 2007 U.S.
App. LEXIS 18662, at *11-12 (vacating sentence where judge’s remarks indicated
that he thought his discretion was constrained). Indeed, rather than indicating a
“presumption” to sentence within the guidelines, the transcript shows that the
district judge based the sentence on Bang’s history and personal characteristics, see
18 U.S.C. § 3553(a)(1), the nature and circumstances of the offense, see id., the need
to provide just punishment for a serious offense, see id. § 3553(a)(2)(A), and the
No. 06-3060 Page 4
need for the sentence to afford adequate deterrence to criminal conduct, see id.
§ 3553(a)(2)(B). The court acknowledged that Bang operated the spa for a
“relatively short duration,” that she had no prior criminal record, and that she
expressed remorse. But the district judge explained that Bang “had to know as the
owner that this was going on, and she could have shut it down right then and there,
but she did not,” despite knowing that the women who worked there were being
exploited. Additionally, the district judge explained that, although he believed that
Bang would not commit the crime again, a sentence of imprisonment would deter
others. Based on these considerations, the court reasonably concluded that a
sentence of 18 months’ imprisonment was appropriate. And, as we have said
repeatedly, we will not reweigh the statutory sentencing factors here. See, e.g.,
United States v. Baker, 445 F.3d 987, 991-92 (7th Cir. 2006); United States v.
Newsom, 428 F.3d 685, 686-87 (7th Cir. 2005).
Bang’s other argument—that the district court failed to consider the
disparity between her and her co-conspirators’ sentences, see 18 U.S.C.
§ 3553(a)(6)—has been squarely rejected by this court. See United States v. Babul,
476 F.3d 498, 501-02 (7th Cir. 2007); United States v. Boscarino, 437 F.3d 634, 638
(7th Cir. 2006). Section 3553(a)(6) is intended to reduce unjustified disparity in
sentences across districts rather than among defendants in a particular case, and a
within-guidelines sentence “cannot be treated as unreasonable” with respect to this
sentencing factor. Boscarino, 437 F.3d at 638. In any event, the district court
explained that Bang deserved her sentence because, as the owner, she had ultimate
control over Osaka Spa and the power to cease the illegal activity. Thus, any
disparity between the sentence imposed for her and for her co-conspirators would be
justified.
AFFIRMED.