United States v. Kalin Thanh Dao

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-1660
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Kalin Thanh Dao, *
* [UNPUBLISHED]
Appellant. *
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Submitted: November 19, 2010
Filed: May 6, 2011
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Before MURPHY, SMITH, and BENTON, Circuit Judges.
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PER CURIAM.
Kalin Thanh Dao pleaded guilty to conspiracy to commit mail and wire fraud,
in violation of 18 U.S.C. §§ 1341, 1343, and 371, and money laundering, in violation
of 18 U.S.C. § 1957. The district court1 sentenced Dao to 24 months' imprisonment
on the fraud count and 120 months' imprisonment on the money-laundering count, to
be served consecutively. On appeal, Dao argues that the district court abused its
discretion by imposing a substantively unreasonable sentence. For the following
reasons, we affirm.
1
The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
I. Background
From approximately April 2006 until September 2008, Dao defrauded
individuals using a variety of investment devices. Through several different
corporations, Dao sold investment programs, representing to investors that these
programs would involve securities, real estate, entertainment, promotions and
commodities investments. She further represented to investors that they would receive
substantial returns and that their principal would be safe from loss. Rather than
investing these investors' funds, Dao diverted substantial sums for her own purposes
and used funds from new investors to make "lulling payments" to existing investors,
in order to create the appearance of investment gains.
On December 18, 2006, Dao entered into a consent order with the Minnesota
Department of Commerce, which prohibited Dao and her corporate entity from selling
securities without a license. Despite this prohibition, on January 24, 2007, Dao
resumed selling investments through a new corporation; ten months later, she
incorporated another company to sell more investment products. On December 15,
2007, Dao conducted an investors' meeting at the MGM Casino in Las Vegas. The
meeting, which an undercover law enforcement agent attended and recorded, lasted
approximately two to three hours. Dao made a 30- to 45-minute presentation, in which
she detailed her supposed investment programs and their performance, using a variety
of visual aids.
Dao was charged in a 50-count indictment on February 19, 2009. On May 28,
2009, Dao pleaded guilty, pursuant to a written plea agreement, to one count of
conspiracy to commit wire and mail fraud and one count of money laundering. In her
plea agreement, Dao reserved the right to make several sentencing arguments. The
presentence investigation report (PSR) calculated an advisory Guidelines range of 151
to 188 months' imprisonment. The PSR also calculated that Dao owed $7,196,151 in
restitution.
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Prior to the sentencing hearing, Dao urged the court to vary downward from the
applicable Guidelines range to a sentence of 72 months' imprisonment. In support,
Dao first challenged the legitimacy of the Guidelines for fraud crimes, asserting that
they are not based on "empirical data" and are frequently ignored by sentencing
judges. Second, Dao argued that empirical data undermines the rationale behind the
Guidelines for fraud crimes—that they serve as a deterrent for other white collar
crimes. Third, she argued that her age and lack of a criminal history suggested little
risk of recidivism. Finally, she argued that her medical conditions would make her
prison sentence substantially more difficult and painful than a similar sentence for an
able-bodied person. Dao detailed her medical history, including her history of polio,
post-polio syndrome, spinal stenosis, problems with her neck and back, migraine
headaches, and severe psoriasis. Dao also contended she had a propensity to fall and
would require assistance with everyday life activities. As a result, she doubted that the
Bureau of Prisons would be able to provide adequate care.
At the sentencing hearing, the district court calculated an adjusted offense level
of 32 and a criminal history category of I, yielding an advisory Guidelines range of
121 to 151 months' imprisonment. Next, the district court considered Dao's argument
for a downward variance to 72 months' imprisonment. The court noted that it had
received three character letters from Dao's family members, and the court allowed a
friend of Dao's to testify on Dao's behalf. The court then heard arguments from Dao
and the government that mirrored the arguments they made in their pre-hearing
position papers. Before announcing the sentence, the court addressed Dao's arguments
for a variance.
The court first addressed Dao's risk of recidivism. The court noted that it had
listened to the recording of Dao's presentation at the Las Vegas investors' meeting,
which "le[d] [the court] to be concerned about what the future might hold in terms of
recidivism because that's not an ability—that performance in fraud is not something
that everybody has the ability to do." Later, the court said:
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As to your ability to recidivate, it's hard to predict the future. . . .
But the most worrisome thing to me about whether or not you're
going to be returning to a law-abiding lifestyle when you get out is the
fact that the state tried to stop you. They said you can't do this. And your
response was to go right out and do it on a grander scale under a
different corporate name.
. . . . They said stop. You didn't stop. You just kept going. So why
should I think if I say stop you'll stop, but maybe you will, and maybe
you won't.
But, hopefully, the sentence that I'm going to give you today will
maximize the chances that you will not do this again.
Next, the court considered the appropriateness of the Guidelines for fraud
crimes and whether other sentencing judges were accepting or rejecting them. The
court explained:
We've got guidelines and we have guidelines that are meant to be helpful
in some way in determining an appropriate sentence for someone who
engages in a massive fraud scheme like you have. There are some people
who think there shouldn't be prison for white collar defendants.
***
So there are opinions all over the map on what the right sentence
should be. But it is not the case that the white collar guidelines are the
subject of wholesale revolt on the part of the bench.
And, in fact, I looked, and I saw the sentencing statistics, and most
judges do sentence within the guideline range on fraud cases. So the fact
that there [are] some who sentence higher, some who sentence lower, is
not something that is particularly persuasive to me. I take it all into
account.
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The court then addressed the need for deterrence in fraud sentences and,
generally and specifically with respect to Dao, stated its belief that "a very low
sentence will not serve the purpose of deterrence, and it is not an appropriate
punishment for the crime that you committed because it's a very serious crime. It's
deserving of a very serious sentence."
Finally, the court addressed Dao's medical needs, stating:
It's true, as your lawyer says, that time in prison for you is going
to be different than time in prison is for an able-bodied person. No doubt
you will be incarcerated at Carswell. I've read the statements of the
medical people there who indicate that they will be able to handle your
medical situation.[2] That they in fact have a lot of people there who have
even more serious physical challenges than you do. So that will be taken
into account. But yes, the time will be different. Whether it's harder, I
don't know. But it certainly is going to be different time.
After announcing that it would sentence Dao to 144 months' imprisonment, the
court explained that "what I intend to do with this is to punish you appropriately, but
give you the opportunity to change your life and to impose conditions of supervised
release that are going to help you to get there." The court also sentenced Dao to three
years' supervised release, to follow her term of imprisonment, and ordered Dao to pay
$7,196,151.09 in restitution.
II. Discussion
Dao argues that the district court abused its discretion by imposing a
substantively unreasonable sentence. First, she argues that the court failed to give
"serious consideration" to her arguments based on her medical conditions. Second, she
2
Prior to the sentencing hearing, the government produced two declarations
from the Bureau of Prisons attesting to the bureau's ability to accommodate Dao at the
Federal Medical Center (FMC) Carswell facility in Fort Worth, Texas.
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contends that the court gave "undue weight to its perception for the need for a longer
prison sentence in order to deter Ms. Dao and others from future criminal conduct."
On this point, Dao maintains that the court unreasonably concluded that she posed a
risk of recidivism. Dao contends that the district court ignored the evidence she
presented to show that longer sentences do not serve as a greater deterrent and instead
relied on its own anecdotal experience. Finally, Dao contends that her sentence was
greater than necessary to accomplish the goals of federal sentencing.
"When we review the imposition of sentences, whether inside or outside the
Guidelines range, we apply a deferential abuse-of-discretion standard." United States
v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (quotations and citations omitted). "We
'must first ensure that the district court committed no significant procedural error,'"
including "'failing to calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing to adequately explain
the chosen sentence—including an explanation for any deviation from the Guidelines
range.'" Id. (quoting Gall v. United States, 552 U.S. 38, 51 (2007)).
Because Dao has not alleged any form of procedural error, "we bypass the first
part of our review and move directly to review the substantive reasonableness of [her]
sentence." United States v. O'Connor, 567 F.3d 395, 397 (8th Cir. 2009). We review
the substantive reasonableness of the sentence imposed using a deferential
abuse-of-discretion standard. Feemster, 572 F.3d at 461. In making this determination,
we must "take into account the totality of the circumstances." Gall, 552 U.S. at 51. If
the sentence imposed is within the advisory Guidelines range, we "may, but [are] not
required to, apply a presumption of reasonableness." Id. In any case, our substantive
review of Dao's sentence is "narrow and deferential." Feemster, 572 F.3d at 464. The
district court should make "an individualized assessment based on the facts presented,
specifically addressing the defendant's proffered information in its consideration of
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the 18 U.S.C. § 3553(a) sentencing factors." United States v. Jordan, 573 F.3d 586,
590 (8th Cir. 2009) (internal quotations, citations, and alterations omitted).
The district court did not abuse its discretion in sentencing Dao to 144 months'
imprisonment. First, the court imposed a sentence within the applicable Guidelines
range based on its consideration of several of the § 3553(a) factors. The record reflects
that the court considered "the nature and circumstances of the offense and the history
and characteristics of the defendant"; "the need for the sentence imposed . . . to afford
adequate deterrence to criminal conduct . . . to protect the public from further crimes
of the defendant . . . [and] to provide the defendant with needed . . . medical care"; and
"the need to provide restitution to any victims of the offense." 18 U.S.C. § 3553(a)(1),
(2)(B), (2)(C), (2)(D), and (7). On this record, we presume Dao's sentence to be
reasonable.
Moreover, the record reflects that the district court carefully considered each
of the arguments Dao raised in her pre-hearing position paper and at the sentencing
hearing. The court considered whether Dao's medical conditions warranted a more
lenient sentence but concluded, based on the evidence, that the Bureau of Prisons
would be able to accommodate Dao's medical needs. Additionally, the court found
Dao's fraudulent activities, especially the resumption of her scheme after entering into
a consent decree with the state of Minnesota, demonstrated that Dao would likely
recidivate. Although the court may not have addressed, at the hearing, some of Dao's
sub-arguments on sentence duration (such as her evidence that longer sentences do not
serve as a greater deterrent), we discern no abuse of discretion. Cf. United States v.
Miles, 499 F.3d 906, 909–10 (8th Cir. 2007) (finding that although the sentencing
court did not discuss certain issues at the hearing, the fact that the parties argued those
issues at the hearing demonstrates that the court properly considered those issues).
Finally, the record reflects that the court imposed a sentence that it believed to be
sufficient but not greater than necessary to accomplish the statutory purposes of §
3553(a). The court stated that its sentence would appropriately punish Dao while
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giving her time and assistance (i.e., supervised release) to turn her life around upon
the completion of her sentence. We conclude that the district court made a proper
individualized assessment of Dao and did not abuse its discretion in imposing its
sentence.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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