U.S. v. Kim

• Decision Date: 15 February 1990
• Docket Number: D,No. 539,539
• Citation: 896 F.2d 678
• Parties: UNITED STATES of America, Appellee, v. Won Tae KIM, Defendant-Appellant. ocket 89-1221.
• Court: U.S. Court of Appeals — Second Circuit

Page 678

896 F.2d 678

2 Fed.Sent.R. 266

UNITED STATES of America, Appellee, v. Won Tae KIM, Defendant-Appellant.

No. 539, Docket 89-1221.

United States Court of Appeals Second Circuit.

Argued Dec. 5, 1989.

Decided Feb. 15, 1990.

Colleen P. Cassidy, New York City (The Legal Aid Society, New York City, on the brief), for defendant-appellant.

Steven Abrams, Asst. U.S. Atty., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty., Emily Berger, Asst. U.S. Atty., Brooklyn, N.Y., on the brief), for appellee.

Before LUMBARD, NEWMAN, and WINTER, Circuit Judges.

JON O. NEWMAN, Circuit Judge:

This appeal of a sentence poses procedural and substantive issues concerning the exercise of a district court's authority to impose a sentence above the range specified in the applicable sentencing guideline, i.e., to make an upward "departure." Won Tae Kim appeals from the May 12, 1989, judgment of the District Court for the Eastern District of New York (Thomas C. Platt, Jr., Chief Judge) convicting him on a plea of guilty of making a false statement concerning immigration matters, in violation of 18 U.S.C. Sec. 1001 (1988), and sentencing him to six months in prison and a $10,000 fine. Though the prison term has been served and only the fine is now contested, we conclude that the upward departure was improperly made and that the fine must be reconsidered.

Facts

Kim, an alien, was arrested at John F. Kennedy International Airport on December 27, 1988, when he attempted to smuggle two illegal aliens into the United States. Kim had escorted the aliens from Korea to Spain and then to the United States. Although he knew the aliens were Korean, he falsely stated to United States Customs officials at J.F.K. that the aliens were Japanese. A search of Kim disclosed fifty counterfeit $50 Federal Reserve notes in his possession.

Kim was charged in a six-count indictment. Four of the counts related to Kim's effort to escort the aliens into the United States. Counts 1 and 2 charged smuggling each of the two aliens, in violation of 8 U.S.C. Sec. 1324(a)(1)(D) (1988); Count 3 charged making a false statement on a customs declaration by misrepresenting the name and nationality of one of the aliens, in violation of 18 U.S.C. Sec. 1001 (1988); and Count 6 charged obtaining his own entry unlawfully by concealing his role in assisting the illegal entry of the two aliens, in violation of 8 U.S.C. Sec. 1325(a)(3) (1988). The other two counts involved Kim's possession of the counterfeit Federal Reserve notes. Count 4 charged possession of counterfeit money with intent to defraud, in violation of 18 U.S.C. Sec. 472 (1988), and Count 5 charged importation of the counterfeit money with knowledge that it was brought into the United States contrary to law, in violation of 18 U.S.C. Sec. 545 (1988). Pursuant to a plea agreement, Kim pled guilty to Count 3, the false statement count, and all other charges were dismissed.

The presentence report, after a revision, determined that Kim's adjusted offense level was 2. Starting with a base offense level of 6 for the false statement offense, United States Sentencing Guidelines (hereinafter "U.S.S.G.") Sec. 2F1.1(a) (Nov.1989) [all citations are to the 1989 version of the Guidelines, unless otherwise indicated], the report accorded Kim a two-level reduction for Kim's minor role in the scheme, id. Sec. 3B1.2(b), and a further two-level reduction for acceptance of responsibility, id. Sec. 3E1.1(a). For offense level 2 and Criminal History Category I, which applies to Kim, the sentencing table applicable to offenses committed between November 1, 1987, and November 1, 1989, called for a prison term between zero and two months, U.S.S.G. Ch. 5, Pt. A (sentencing table) (1987), ¹ and a fine between $100 and $1,000, id. Sec. 5E4.2(c)(3) (fine table). ²

The report identified two grounds for a possible upward departure:

Per Guideline 5K2.0, the aggravating offense conduct factor of alien smuggling may be considered as a basis for upward departure. Further, at the time of his arrest, the defendant was found by agents to be in possession of 50 counterfeit $50 Federal reserve notes. This criminal conduct, since there was no conviction or adjudication for that crime could not be computed into the determination of the criminal history category. However, since there is a preponderance of evidence that he possessed the counterfeit bills, that criminal conduct may be considered as a basis for upward departure per Guideline 4A1.3.

Without announcing the prospect of an upward departure, Chief Judge Platt imposed a sentence of six months' imprisonment, three years of supervised release, a fine of $10,000, and a $50 special assessment. When defense counsel said he assumed the Judge was upwardly departing, Chief Judge Platt replied, "Definitely, for the two reasons stated by the Probation Department in this memorandum." Since the term of incarceration has been served, Kim challenges on appeal only the amount of the fine, which remains unpaid.

Discussion

Initially, we encounter a procedural problem with the upward departure, in light of United States v. Palta, 880 F.2d 636, 640 (2d Cir.1989), and United States v. Cervantes, 878 F.2d 50 (2d Cir.1989). Though these decisions were announced after Kim's sentencing and were obviously not then available to Chief Judge Platt, they nonetheless apply to our direct review of the sentence. See Griffith v. Kentucky, 479 U.S. 314, 322, 107 S.Ct. 708, 713, 93 L.Ed.2d 649 (1987); United States v. Coe, 891 F.2d 405, 412 (2d Cir.1989). Palta emphasized the importance of "prior notice of the court's intention to depart" and "an opportunity to be heard as to why an upward departure [is] unwarranted." 880 F.2d at 640. Consonant with the statutory requirement that the sentencing judge must state "the specific reason" for departing from an applicable sentence range, 18 U.S.C. Sec. 3553(c)(2) (1988), a sentencing judge contemplating an upward departure should inform the defendant of the factors that the judge is planning to rely upon and offer some brief explanation as to why these factors warrant a departure. That will alert counsel to the need to present any available challenge to the accuracy of such factors and to the propriety of their use for a departure.

Though counsel always can be expected to urge leniency in addressing a district judge at sentencing, under the Guidelines system his argument will normally be cast quite differently depending on whether the judge has indicated that an upward departure is contemplated. Without such indication, counsel will focus on those aspects of the case that merit leniency, arguing for a sentence at the low end of the applicable guideline range, or, if unusual mitigating factors are present, urging a downward departure. Faced with the prospect of an upward departure, however, counsel must focus on the technical issues of whether an upward departure is permissible under the statutory standard, 18 U.S.C. Sec. 3553(b) (1988), whether a departure, if made, will be pursuant to part 4A or part 5K of the Guidelines, see United States v. Coe, 891 F.2d at 408-12, and whether anything in the Guidelines precludes such a departure, see, e.g., U.S.S.G. Sec. 5K2.0, at 5.43 (limiting harms as a basis for departure to those relevant to the offense of conviction under section 1B1.3). Counsel will also be concerned with appealing more generally to the judge's discretion not to make an upward departure or to make at most only a slight departure. This dual approach to sentencing arguments was not necessary prior to the Guidelines.

This case illustrates the value of notice of an intention to depart. The presentence report mentioned possession of counterfeit money as a possible ground for departure but did not indicate whether Kim was aware of the counterfeit nature of the money, a necessary element of the crimes charged in Counts 4 and 5. See United States v. Asbury, 586 F.2d 973, 977-98 (2d Cir.1978). In addition, the report identified possession of the money as a ground for a departure under section 4A1.3, which permits an increase in the criminal history category, yet the sentencing judge appears to have made a part 5K departure since he made no mention of any criminal history.

Turning to the substantive validity of the upward departure, we start with the statutory standard: A sentence is to be imposed within the applicable guideline range "unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." 18 U.S.C. Sec. 3553(b) (1988). This standard requires an exploration of the categories of circumstances the Commission "adequately" considered in formulating the Guidelines. Pertinent to the issues on this appeal, our inquiry must focus on the consideration given by the Commission to the acts of misconduct by the defendant other than the offense of conviction, since the District Judge sought to justify the upward departure in this case on the basis of the defendant's misconduct relating to the smuggling of aliens and the possession and importation of counterfeit money, neither of which formed the basis for conviction.

The Commission treated misconduct not resulting in conviction in four ways, each of which is instructive as to the issues on this appeal. First, the Commission identified, by examining thousands of prior sentences and presentence reports, those acts of misconduct that had traditionally influenced the sentences imposed for various crimes prior to the Guidelines. See U.S.S.G. Ch. 1, Pt. A Sec. 4(b), at 1.7. This type of misconduct concerns acts that typically occur in the course of the offense for which the defendant was convicted and that aggravate the offense, for example, display of a weapon, infliction of injury, and taking large sums of money in...