United States v. Trung Dang

United States Court of Appeals
For the Eighth Circuit
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No. 17-2285
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Trung Dang
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
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Submitted: May 18, 2018
Filed: October 22, 2018
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Before SMITH, Chief Judge, BEAM and COLLOTON, Circuit Judges.
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SMITH, Chief Judge.
Trung Dang appeals his revocation sentence of 60 months’ imprisonment,
arguing that the district court1 procedurally erred by (1) failing to consider the
1
The Honorable James M. Moody Jr., United States District Judge for the
Eastern District of Arkansas.
Chapter 7 policy statement range of 8 to 14 months’ imprisonment; (2) relying
exclusively on unproven, disputed allegations at sentencing; and (3) giving too much
weight to the seriousness of the conduct forming the basis of his violation. He also
argues that his sentence is substantively unreasonable because the court considered
improper sentencing factors and imposed a sentence longer than necessary to satisfy
the goals of sentencing. We affirm.
I. Background
In 2005, Dang was sentenced in the Western District of Arkansas to 92 months’
imprisonment for a drug offense. He began a five-year term of supervised release in
2011. His supervision was transferred to the Eastern District of Arkansas in 2015.
The government filed a superseding petition to revoke his supervised release in 2017.
The petition alleged that Dang had pleaded guilty in state court to first degree
computer child pornography and computer exploitation of a child (first offense).
According to the petition, the victim of his offense was a minor female in his care.
She claimed that he took nude pictures and videos of her without her knowledge, sent
her nude photos of herself, made sexual advances toward her, and touched her
inappropriately. The state court sentenced Dang to 20 years’ imprisonment. The
United States Probation Office filed a violation memorandum with the district court
that substantially tracked the language in the petition.
At the revocation hearing, Dang admitted that he “violated the crimes of
computer child pornography and computer exploitation of a child in the first degree,
first offense. All the other information contained in that paragraph [in the petition
alleging commission of a criminal offense], we deny.” Tr. of Revocation Hr’g at 2,
United States v. Dang. Case No. 4:15-cr-00111-JM (E.D. Ark. May 31, 2017), ECF
No. 25. The government declined to put on any further proof of the allegations,
stating, “I think the conviction itself is satisfactory, Your Honor.” Id. at 3. The court
held that revocation was mandatory, as Dang was charged with a Grade B violation.
The court also acknowledged that Dang had a criminal history category of III.
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Dang requested a Guidelines sentence to run concurrent with his state sentence.
The government asked that any sentence run consecutive to the underlying state
sentence. The district court stated, “After a complete review of the facts, the violation
memorandum, which is the basis for this revocation, and after considering the factors
listed in 18 U.S.C. Section 3553, I am imposing [a prison sentence] . . . of five years
with no term of supervised release to follow.” Id. at 6. In explaining the basis of the
sentence, the court stated the following regarding Dang’s conduct:
Mr. Dang’s current term of supervised release commenced on
September the 21st of 2011. He was under federal supervision and
believed to be in compliance at the time of his arrest for the
above-referenced new criminal conduct in which he exploited a minor
in his care. Without the victim’s consent, Mr. Dang took nude
photographs and videos and later used them in an attempt to coerce the
forced sexual conduct of the victim. The harm Mr. Dang caused his
victim is immeasurable and long-lasting. Considering Mr. Dang was
willing to commit this egregious act while under federal supervision
indicates pervasive criminal thinking and sexual deviancy. Mr. Dang’s
technical compliance may have served as cover to avoid closer
oversight of the probation office.
Id. at 9–10. Pursuant to U.S.S.G. § 7B1.3(f), the court ordered the sentence to run
consecutive to the state term of imprisonment. The district court determined that it
was prohibited from imposing a term of supervised release. Nonetheless, it announced
terms of supervised release to take effect if its authority on the matter changed.
Dang objected on the basis that the court had varied or departed upward “for
reasons that [h]e d[id] not know or agree with” and that the sentence was based on
facts not supported by evidence presented to the court. Revocation Tr. at 10. He also
objected to the term of imprisonment and conditions of possible supervised release
as unreasonable. Dang timely appeals following entry of judgment.
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II. Discussion
On appeal, Dang argues that the district court procedurally erred by (1) failing
to consider the Chapter 7 policy statement range of 8 to 14 months’ imprisonment;
(2) relying exclusively on unproven, disputed allegations at sentencing; and (3)
giving too much weight to the seriousness of the conduct forming the basis of his
violation. He also argues that his sentence is substantively unreasonable because the
court considered improper sentencing factors and imposed a sentence longer than
necessary to satisfy the goals of sentencing.
“We review the district court’s imposition of a revocation sentence for abuse
of discretion, first questioning whether the court committed procedural error and then
ensuring the sentence was substantively reasonable.” United States v. Pitts, No.
17-1174, 2018 WL 3202775, at *1 (8th Cir. June 29, 2018) (citing United States v.
Richey, 758 F.3d 999, 1001 (8th Cir. 2014)). “A district court abuses its discretion
when it (1) fails to consider a relevant factor that should have received significant
weight; (2) gives significant weight to an improper or irrelevant factor; or (3)
considers only the appropriate factors but in weighing those factors commits a clear
error of judgment.” United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en
banc) (cleaned up).
A. Procedural Error
1. Consideration of Sentencing Range
Dang argues that the district court’s failure to expressly state his sentencing
range constitutes reversible procedural error. “A failure to properly calculate the
advisory Guidelines range is a significant procedural error, and a non-harmless error
in calculating the guidelines range requires a remand for resentencing.” United States
v. Woods, 670 F.3d 883, 886 (8th Cir. 2012) (citation omitted). Dang did not object
before the district court. Consequently, we review only for plain error. See United
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States v. Black, 670 F.3d 877, 881 (8th Cir. 2012). Under this standard, the appellant
must show
(1) an error; (2) that is plain; and (3) that affects substantial rights. An
error affects a substantial right if it is prejudicial, meaning that there is
a reasonable probability the defendant would have received a lighter
sentence but for the error. Even if that showing is made, this court will
correct such an error only if it seriously affects the fairness, integrity, or
public reputation of judicial proceedings.
Id. (cleaned up).
“Chapter 7 of the United States Sentencing Guidelines sets forth advisory
policy statements related to the revocation of supervised release.” United States v.
Nelson, 453 F.3d 1004, 1006 (8th Cir. 2006) (citing U.S.S.G. § 7B). We have
previously held that a district court’s failure to consider the recommended sentencing
range set forth by Chapter 7 when imposing a revocation sentence did not constitute
reversible error under the circumstances. For instance, in United States v. Fallin, the
district court failed to consider the recommended range set forth in U.S.S.G.
§ 7B1.4(a)(2) and imposed the statutory maximum term of imprisonment. 946 F.2d
57, 58 (8th Cir. 1991) (per curiam). The length of this sentence exceeded the top end
of the Guidelines range. Id. Though “[w]e agree[d] [with the appellant that] the
district court should have considered the policy statements in chapter seven of the
guidelines when sentencing” him, we ultimately decided that “[a]ny error resulting
from the district court’s oversight was harmless,” as the defendant had an extensive
record of violations of his conditions of release. Id.
We held similarly in United States v. Synowiecki, 218 F. App’x 543 (8th Cir.
2007) (per curiam). In that case, the district court “indicated its awareness of the need
to [consider the Chapter 7 policy statements]” but “failed to acknowledge the precise
Chapter 7 revocation range” that applied to the case. Id. at 544. There was also some
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indication that the probation violation worksheet prepared for the case was incorrect.
Id. However, we held that “regardless of whether any resulting error is reviewed for
plain error or harmless error, the revocation sentence must be affirmed.” Id. This was
because “a district court remains free to impose a revocation sentence outside the
Guidelines range suggested by the policy statements, if in its discretion the court
believes that a higher sentence is warranted.” Id. (citation omitted). In addition, the
“record convince[d] us that the district court was firm on [the sentence imposed]
because of [the defendant’s] history of supervised release violations and flouting of
authority, as well as his need for rehabilitation and to be incapacitated to protect
society.” Id. (citations omitted).
Here, the district court found that Dang had admitted to a Grade B violation
and that his criminal history category was III. It also expressly invoked a provision
from Chapter 7 of the Guidelines, § 7B1.3(f), when it announced the basis for running
the revocation sentence consecutive to the state sentence. These facts, combined with
our “presum[ption] ‘that district judges know the law,’ especially when it comes to
clear rules in the area of criminal sentencing,” United States v. Olson, 716 F.3d 1052,
1056 (8th Cir. 2013) (citation omitted), show that the court considered the range set
forth in § 7B1.4. Moreover, the court’s language at sentencing, including the lengthy
discussion of restrictive, hypothetical conditions of supervised release, reflect the
court’s assessment that Dang’s offense warranted revocation and a substantial prison
sentence. The court imposed the maximum available sentence. See 18 U.S.C.
§ 3583(e)(3). Therefore, even if this was an error, it was not plain error prejudicial to
Dang nor did it seriously affect the fairness, integrity, or public reputation of the
judicial proceedings.
2. Improper Factfinding
Dang argues that the district court improperly relied on the violation
memorandum to provide an evidentiary basis for the revocation. Though the
government concedes that a court may not rely on unproven, disputed facts in
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fashioning a revocation sentence, it contends that the statutes under which Dang was
convicted provided a sufficient basis for the district court’s factual findings. Dang
preserved his objection on this point.
“It is well established that a district court commits procedural error under Gall
by basing a sentence on unproven, disputed allegations rather than facts.” United
States v. Richey, 758 F.3d 999, 1002 (8th Cir. 2014) (citation omitted). “[A]
revocation sentence may not be based on disputed, unproven allegations in the
probation officer’s reports.” Id. at 1003.
We agree with the government’s assertion that the statutes of conviction suffice
to show the nature of Dang’s conduct warranting revocation. Arkansas defines
computer child pornography as follows:
(a) A person commits computer child pornography if the person
knowingly:
(1) Compiles, enters into, or transmits by means of computer, makes,
prints, publishes, or reproduces by other computerized means,
knowingly causes or allows to be entered into or transmitted by means
of computer or buys, sells, receives, exchanges, or disseminates any
notice, statement, or advertisement or any child’s name, telephone
number, place of residence, physical characteristics, or other descriptive
or identifying information for purposes of facilitating, encouraging,
offering, or soliciting sexually explicit conduct of or with any child or
another individual believed by the person to be a child, or the visual
depiction of the conduct; or
(2) Utilizes a computer online service, Internet service, or local bulletin
board service to seduce, solicit, lure, or entice or attempt to seduce,
solicit, lure, or entice a child or another individual believed by the
person to be a child, to engage in sexually explicit conduct.
Ark. Code Ann. § 5-27-603(a).
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Computer exploitation of a child is defined as follows:
(a)(1) A person commits computer exploitation of a child in the first
degree if the person:
(A) Causes or permits a child to engage in sexually explicit
conduct; and
(B) Knows, has reason to know, or intends that the
prohibited conduct may be:
(i) Photographed;
(ii) Filmed;
(iii) Reproduced;
(iv) Reconstructed in any manner, including
on the Internet; or
(v) Part of an exhibition or performance.
Id. § 5-27-605(a).
Dang’s convictions on these offenses required proof of the required factual
elements beyond a reasonable doubt. To have been convicted under § 605, Dang had
to have been involved in putting a child in or allowing a child to be in a sexual
situation and memorializing it or showing it to others. The conduct prohibited by
§ 603 requires a finding that a person used a computer to seek sexual conduct or
visual representation of such conduct with a child or someone believed to be a child.
Unquestionably, the commission of acts sufficient to support a conviction for these
offenses satisfy the requisite misconduct to warrant revocation of supervised release.
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3. Seriousness of Offense
Dang asserts that the district court gave too much weight to the seriousness of
the conduct forming the basis of his violation. This is, in essence, an assertion that the
court improperly considered factors set forth in 18 U.S.C. § 3553(a)(2)(A). Because
Dang did not object on this point at sentencing, we review for plain error. See Black,
670 F.3d at 881.
We acknowledge that 18 U.S.C. § 3583(e), which governs revocation
sentences, omits the factors set forth in § 3553(a)(2)(A)—reflecting seriousness of
the offense, promoting respect for the law, and providing just punishment—from the
list of factors courts are to consider when imposing a revocation sentence. However,
we have yet to hold that consideration of the § 3553(a)(2)(A) factors constitutes
procedural error. United States v. Dull, 641 F. App’x 669, 671 (8th Cir. 2016) (per
curiam). “Thus, even assuming it was error, the error is not plain.” Id.
Dang also makes the related argument that the district court “essentially
violate[d] the Double Jeopardy Clause” by sentencing him to imprisonment for
conduct that also formed the basis of his state conviction. Appellant’s Br. at 8 (citing
United States v. Johnson, 640 F.3d 195, 203 (6th Cir. 2011) (“When the violations
are criminal and the subject of a separate prosecution, as in this case, the defendant
may be placed in double jeopardy if punished for the same conduct in both
proceedings.” (citation omitted))). Dang’s argument fails. We have previously
rejected the argument that “consecutive sentences for [a criminal] offense and the
supervised release violation for the same conduct violated the Double Jeopardy
Clause.” United States v. Moore, 624 F.3d 875, 878 (8th Cir. 2010); see also United
States v. Bennett, 561 F.3d 799, 802 (8th Cir. 2009) (holding post-revocation
penalties for the same underlying conduct do not implicate the Double Jeopardy
Clause).
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B. Substantive Reasonableness
Having found no procedural error, we are left with Dang’s contention that his
sentence is substantively unreasonable because it is longer than necessary to achieve
the goals of sentencing and is the result of the district court giving significant weight
to improper factors—specifically, the seriousness of the offense and the nature and
circumstances of the offense. The seriousness-of-the-offense argument is essentially
a restatement of that which we addressed in Part II.A.3 of this opinion. Regarding the
nature of circumstances of the offense, Dang maintains that if this factor is considered
in a revocation proceeding, it is to be applied to “the original offense of conviction,”
not the conduct that is the basis of the revocation. Appellant’s Br. at 20 (quoting
Johnson, 640 F.3d at 203).
As stated in the previous section, this circuit has not prohibited sentencing
courts’ consideration of the seriousness of the conduct underlying a petition to
revoke. Even accepting the Sixth Circuit’s interpretation in Johnson, a district court
is not forbidden to consider the severity of the offender’s violation of his conditions
of supervised release. See Johnson, 640 F.3d at 204; United States v. Ryser, 883 F.3d
1018, 1021 (8th Cir. 2018) (“A sentencing court acts within its discretion in
considering the nature and circumstances of a defendant’s probation violation . . . .”
(citations omitted)).
Finally, the sentence as a whole is not substantively unreasonable. Dang asserts
that “[t]he revocation sentence is also far greater than necessary to satisfy the goals
of sentencing. The district court imposed a sentence in excess of 400 percent above
the high end of the recommended range of 8–14 months’ imprisonment. Such a
substantial upward variance is not supported by the record.” Appellant’s Br. at 20–21.
However, we have previously rejected this percentage-based argument,
noting that deviations from the Guidelines range will always appear
more extreme—in percentage terms—when the range itself is low and
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concluding that the percentage of the variance is thus not sufficient in
and of itself to find a defendant’s sentence substantively unreasonable.
United States v. Godfrey, 863 F.3d 1088, 1099 (8th Cir. 2017) (cleaned up). Further,
the district court had “considerable discretion” in weighing the sentencing factors.
United States v. Ruelas-Mendez, 556 F.3d 655, 658 (8th Cir. 2009). Under these facts,
the court’s decision to weigh them in favor of the statutory maximum is a
“permissible exercise” of that discretion. Id. Accordingly, we conclude that Dang’s
sentence was not substantively unreasonable.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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