United States v. Kouangvan, 15-3784

• Decision Date: 04 January 2017
• Docket Number: No. 15-3784,15-3784
• Citation: 844 F.3d 996
• Parties: United States of America, Plaintiff–Appellee v. Julilath Kouangvan, also known as Julilath Sisauyhoat, Defendant–Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

844 F.3d 996

United States of America, Plaintiff–Appellee

v.Julilath Kouangvan, also known as Julilath Sisauyhoat, Defendant–Appellant

No. 15-3784

United States Court of Appeals, Eighth Circuit.

Submitted: September 19, 2016

Filed: January 4, 2017

Counsel who represented the appellant was Alfredo G. Parrish of Des Moines, IA.

Counsel who represented the appellee was Rachel J. Scherle, AUSA, of Des Moines, IA.

Before RILEY, Chief Judge, MURPHY and SMITH, Circuit Judges.

RILEY, Chief Judge.

Julilath Kouangvan claims the length of her prison sentence was influenced by race or national origin (both hers and the victims'), the fact she immigrated to the United States, and her anticipated inability to afford to pay restitution—or at least that someone observing her sentencing hearing could have gotten that impression. We detect no reliance on forbidden considerations in the district court's¹ explanation of Kouangvan's sentence, nor any encouragement of such reliance in the government's position at sentencing. With appellate jurisdiction under 28 U.S.C. § 1291, we therefore affirm.

I. BACKGROUND

Kouangvan pled guilty to filing a false income-tax return. See26 U.S.C. § 7206(1). At sentencing, several of her friends and acquaintances testified they gave Kouangvan hundreds of thousands of dollars to invest, with the expectation she would earn them high rates of return. She did not. Instead, she spent some of the money and shuffled the rest around, making enough repayments to keep her investors mollified while urging them to "reinvest" their gains—that is, to give her more money and let her keep what she already had.

By the time Kouangvan fell behind in her scheme and the money ran out, the large amounts of cash moving through her bank accounts—along with documents she submitted when she unsuccessfully filed for bankruptcy—attracted the attention of several law enforcement agencies, including the Criminal Investigation Division of the Internal Revenue Service. In exchange for the government dropping other charges, Kouangvan pled guilty to the tax-fraud count, on the theory that she should have reported the money she received as income. She also agreed to pay restitution to eight of the people who gave her the money. See18 U.S.C. § 3663(a)(3) (authorizing restitution "to the extent agreed to by the parties in a plea agreement").

At sentencing, the district court adopted the advisory sentencing range recommended in the plea agreement (10 to 16 months) and heard argument on what sentence to impose. Arguing for probation, Kouangvan emphasized her difficult childhood, including the nearly two years her family spent as refugees in Thailand after fleeing the communist regime in Laos. Kouangvan also introduced testimony about the practice of informal money lending in Lao immigrant communities, suggesting that even though the district court had already determined the amounts she received were investments, not loans, "[t]here [still] was some semblance of recognition and interaction within that culture that allowed these payments or percentages to continue." And Kouangvan suggested probation offered the "best opportunity" for her to pay the substantial restitution award—over $522,000 to the investors, plus nearly $200,000 in unpaid taxes—because she could keep cleaning houses, which was her only real source of income.

This appeal is about what came next in the government's counterargument and the district court's explanation of how it set Kouangvan's sentence. The first statement Kouangvan takes issue with was the prosecutor's opening line: "What happened here is not cultural, it's criminal, and she should be punished as such. She victimized her fellow Laotians . I think most notable here, considering she's discussing so much about her culture, she victimized fellow Laotians ." (Emphasis added). The other statements were from the district court:

I looked at the pictures from the refugee camp and I felt badly, and then I thought, what a way to pay back the United States of America for giving you a far, far, far better life than you could have dreamed of there , to come here and dupe your fellow Laotians , promised them a lot, gave them phony collateral, and then you paid them back and then took it back. And then ... you did threaten them. You made it look like they could be in trouble, too, and they had done nothing wrong. You took people—you crushed little people, and that's the part that is just so painful to watch because I know how this is going to go. We're going to try and squeeze every nickel we can out of you, and we're just not going to get a lot. And so you've hurt irrevocably some good people that worked hard their whole life and you just took it from them.

....

... I've had many situations where bank vice presidents embezzle three, four hundred thousand dollars from a bank, and each of them has done prison time. The difference is this isn't an institutional theft, not to diminish the importance of institutional theft, but rather a theft from unsophisticated, trusting persons from other countries .

(Emphasis added).

The district court ultimately sentenced Kouangvan to 14 months in prison. Kouangvan did not make any objection to the sentence or the district court's reasons given at the time. The only issue she raises on appeal is the claimed impact of improper considerations on her sentence. See, e.g., United States v. Mees, 640 F.3d 849, 856 (8th Cir. 2011) (recognizing "race, ... national origin, ... and socioeconomic status are not relevant in the determination of a sentence"); United States Sentencing Guidelines § 5H1.10.

II. DISCUSSION

Usually, we do not consider asserted mistakes that were not first raised to the district court unless the error is "plain" on appeal and "affects [a party's] substantial rights." Fed. R. Crim. P. 52(b) ; see alsoUnited States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005) (en banc). We have sometimes followed this approach in cases closely resembling this one. See, e.g., United States v. Burnette, 518 F.3d 942, 949 (8th Cir. 2008) ("[The defendant] argues that the district court considered an improper factor ... [in setting his sentence]. This is a claim of procedural error, reviewed here for plain error."). But in other, equally analogous cases, we have gone directly to the merits without requiring a contemporaneous objection, apparently reasoning consideration of "ethnicity and other improper factors" would make a sentence substantively unreasonable, rather than procedurally defective. Mees, 640 F.3d at 856 ; accordUnited States v. Pena, 339 F.3d 715, 717–18 (8th Cir. 2003) ; see alsoUnited States v. Bain, 586 F.3d 634, 641 (8th Cir. 2009) (per curiam) ("No objection is needed to preserve an attack on the substantive reasonableness of a sentence."). But cf.United States v. Wiley, 509 F.3d 474, 477 (8th Cir. 2007) ("[S]uch a requirement [of an objection in the district court] is not warranted, at least where a party asserts only that the length of the sentence is unreasonable."). We need not resolve the apparent conflict between these two lines of cases here, because Kouangvan is not entitled to relief even if we leave the heightened plain-error standard aside and simply review for abuse of discretion. SeeMees, 640 F.3d at 856 (" ‘A district court abuses its discretion when it ... gives significant weight to an improper or irrelevant factor.’ " (quoting United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc))).

We begin with the statements Kouangvan believes reflect improper consideration of "race, national origin, and immigration status," namely the government and district court repeatedly referring to her conning her "fellow Laotians." Although nationality and such characteristics must not play any role in shaping a defendant's sentence, the district court is not forbidden from ever acknowledging or mentioning them. SeePena, 339 F.3d at 718. Taking the challenged statements in context, we think it clear the point of emphasizing the background Kouangvan shared with many of the people whose money she took was to explain the district court's perception of "the nature and circumstances of the offense," 18 U.S.C. § 3553(a)(1), and the severity of her misconduct, id.§ 3553(a)(2)(A) —how she used her place in the Lao immigrant community to develop connections she then exploited to convince vulnerable people to hand over their financial "nest eggs" in return for vague promises and worthless papers. The district court's immediately preceding sentences made the contextual meaning explicit: "You [Kouangvan] duped relatively unsophisticated investors and you used their culture against them. That's how you were able to get their trust, and you took advantage of that association."

We note Kouangvan first introduced and emphasized her Laotian heritage and culture as a basis for sentencing leniency because informal loans allegedly are common within the Laotian culture, and she was pursuing this practice. The district court did not accept Kouangvan's proposition. Having raised her race and national origin, as the government asserts, Kouangvan, without more, should not be permitted to use her Laotian culture as both a shield and a sword.

Kouangvan also emphasizes the "striking[ ] similar[ity]" between the district court's comment "what a way to pay back the United States of America for giving you a far, far, far better life than you could have dreamed of [as a refugee in Thailand], to come here and dupe your fellow Laotians" and a portion of the explanation we found to necessitate resentencing in United States v. Onwuemene: " ‘This country was good enough to allow you to come in here and to confer upon you ... a number of the benefits of this society, form of government, and its opportunities, and you repay that kindness by committing a crime like this.’ " United States v. Onwuemene, 933 F.2d 650, 651 (8th Cir. 1991) (omission in original). We acknowledge the similarity of the statements taken in...