United States v. Sung Hong

FILED
NOT FOR PUBLICATION
MAR 17 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-30224
Plaintiff-Appellee, D.C. No.
2:17-cr-00163-TSZ-1
v.
SUNG HONG, AKA Laurence Hong, MEMORANDUM*
AKA Lawrence Hong,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 18-30227
Plaintiff-Appellee, D.C. No.
2:17-cr-00163-TSZ-2
v.
HYUN JOO HONG, AKA Grace Hong,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Submitted March 5, 2020**
Seattle, Washington
Before: IKUTA and R. NELSON, Circuit Judges, and OLIVER,*** District Judge.
Lawrence and Grace Hong appeal the district court’s judgments sentencing
Lawrence Hong to a 180 month custodial term and Grace Hong to a 72 month
custodial term. We have jurisdiction under 28 U.S.C. § 1291.
The Hongs claim that the district court violated their First Amendment right
to free exercise of religion and their Fifth Amendment right to due process by
mentioning religion in the sentencing hearing. Because they raise this claim for the
first time on appeal, we review it for plain error. See United States v. Chi Mak,
683 F.3d 1126, 1133 (9th Cir. 2012). The district court did not plainly err in
describing how the Hongs used religion to carry out their fraudulent scheme, in
commenting on video footage showing Grace Hong speaking to a church group, or
in mentioning the spiritual harm suffered by the Hongs’ victims. The Hongs point
to no binding legal authority precluding a sentencing court from considering the
religion of the victims or noting the spiritual impact of an offense on the victims.
And the evidence that the Hongs point to clearly contradicts their assertions that
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Solomon Oliver, Jr., United States District Judge for
the Northern District of Ohio, sitting by designation.
2
the court discriminated against them on the basis of their religion, see Zant v.
Stephens, 462 U.S. 862, 885 (1983), and that the court based their sentences on its
own religious convictions.
The district court did not err in considering information in the government’s
supplemental sentencing memorandum pertinent to Grace Hong. See Nichols v.
United States, 511 U.S. 738, 747 (1994); 18 U.S.C. § 3661. The government gave
Grace Hong the information during discovery, and she acknowledged in her plea
agreement that information of this sort might be introduced “at the time of
sentencing.” Grace Hong had the opportunity to dispute the information at her
sentencing hearing. See United States v. Brady, 895 F.2d 538, 542 (9th Cir. 1990).
Although she objected to the district court’s consideration of the information, she
failed to challenge the information’s veracity or request a continuance. Because
she had knowledge of the adverse information on which her sentence was based
and an opportunity to contest that information, her claim fails. Cf. Gardner v.
Florida, 430 U.S. 349, 358, 362 (1977) (plurality opinion); United States v. Perri,
513 F.2d 572, 574 (9th Cir. 1975).
Because the Hongs’ sentences were not illegal, see United States v. Torres,
828 F.3d 1113, 1125 (9th Cir. 2016), and they were sentenced below the
3
Guidelines ranges that the court determined at the time of sentencing, the Hongs’
appellate waivers apply.
DISMISSED.
4