Court: Court of Appeals for the D.C. Circuit; May 20, 1994; Federal Appellate Court
Ung Kim, a mortgage broker, pled guilty to submitting a false bank loan application and challenged a district court's decision to impose a two-level upward adjustment in sentencing due to "more than minimal planning." The case arose when Mr. Sung Joon Ham solicited Kim's assistance to secure a home equity line of credit without the consent of his mother and sister. Kim facilitated the submission of a fraudulent loan application to Citibank, which was approved for $232,000, and later assisted Ham in obtaining notarized power of attorney forms that Ham used to forge signatures.
Kim's presentence report recommended a sentencing level of 12, which included a two-level increase based on the U.S. Sentencing Guidelines for more than minimal planning, as it indicated repeated acts over time. The court upheld the increase, interpreting the actions taken by Kim—specifically the repeated acquisition of blank notarized forms—as indicative of significant planning beyond what is typically involved in such offenses. The district court ultimately sentenced Kim to 10 months of imprisonment, asserting that his involvement was crucial for the fraudulent loan to be successful.
The government contends that the crime involved "more than minimal planning," citing the appellant's procurement of blank power of attorney forms as repeated acts. The appellant argues that "repeated" implies more than two acts, a position supported by two other circuits, while the government has not found precedent for its interpretation that two acts suffice. The context of the sentencing guidelines suggests that "repeated acts" entails at least three actions, as clarified by examples in the guidelines that differentiate between minimal and more than minimal planning. The district court, however, based its two-level enhancement not on repeated acts but on the assertion that the appellant engaged in "more planning than is typical," which the appellant disputes, claiming that his actions were part of his regular duties. The resolution hinges on the standard of review for the district court's application of guidelines to facts, which has not been definitively addressed by the court. Existing precedent indicates that factual findings are reviewed for clear error, while legal applications may be assessed for correctness de novo.
The court in Irabor addressed whether the sentencing guidelines' two-level enhancement applies to conduct occurring post-initiation of criminal proceedings, framing it as a legal question reviewed de novo. The Second Circuit, referenced in Barry, differentiates between factual conclusions, which are reviewed under the 'clearly erroneous' standard, and legal questions. It established that the determination of whether conduct constitutes 'obstruction of justice' is a factual conclusion, allowing district judges discretion in applying the guidelines to specific facts, thus subjecting this category to 'clearly erroneous' review.
The distinction between 'obstruction of justice' under section 3C1.1 and 'more than minimal planning' under section 2F1.1(b)(2)(A) is highlighted as similar. The Seventh Circuit similarly applies the 'clearly erroneous' standard to district court findings regarding 'more than minimal planning.' In contrast, the Tenth Circuit emphasizes the review standards set by 18 U.S.C. Sec. 3742(e), which delineates a trichotomy: purely legal questions are reviewed de novo, factual findings are affirmed unless 'clearly erroneous,' and there is 'due deference' to district courts' applications of guidelines to facts.
This due deference aims to balance uniformity in sentencing with the flexibility needed for district courts to apply guidelines appropriately. District judges' determinations regarding 'obstruction of justice' or 'more than minimal planning' will likely differ across cases, reducing the need for strict uniformity typical of legal questions. The statute suggests a review approach akin to that applied to administrative agency determinations of mixed questions, contrasting with straightforward legal questions like the definition of 'repeated.'
The district court's determination regarding the level of planning involved in Kim's criminal actions is afforded deference. The government argues that the crime involved more planning than typical because it includes both the submission of a false application and the subsequent use of forged powers of attorney to conceal the initial falsehood. This aligns with sentencing guidelines that recognize actions taken to conceal a crime as indicative of more than minimal planning. In contrast, Kim contends these actions are part of a single loan process, likening it to a shoplifter discreetly hiding stolen goods within a store, which would not qualify as more than minimal planning.
The guidelines emphasize assessing planning based on typical offense forms, not simply the most basic aspects. A single false statement alone does not meet the threshold for more than minimal planning. However, Kim's actions—filing forged documents after the initial application—suggest a deliberate effort to conceal the falsehood, which the district judge interpreted as separate from the application process. The court distinguished this case from precedent where a defendant's actions were deemed routine and not indicative of extra planning.
Ultimately, the trial court's conclusion that Kim's actions constituted more than minimal planning is upheld. Additionally, Kim's challenge regarding the district court's reasoning for the sentence increase was waived, as it was not raised during earlier proceedings. Claims about the necessity of his expertise were dismissed as he played a significant role in drafting and submitting the application. The argument that the complexity of the loan process itself suggests more planning was deemed unnecessary to address, given the existing conclusion on Kim’s specific conduct. The district court's decision is affirmed.
