                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                  UNITED STATES COURT OF APPEALS
                           FIFTH CIRCUIT                       July 26, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 06-41461


                    UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

                              versus

          POK SEONG KWONG, also known as Freddy Kwong,

                                                Defendant-Appellant.



          Appeal from the United States District Court
                for the Eastern District of Texas
                          (4:05-CR-1-1)


Before HIGGINBOTHAM, DAVIS, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     Pok Seong Kwong challenges his conviction and sentence for

aiding and abetting the sabotage of his former employer’s computer

system, and conspiring to do the same, in violation of 18 U.S.C. §§

2, 371, 1030(a)(5)(A).   AFFIRMED.

                                I.

     In 2001, Kwong was employed as the director of information

technology (IT) for American Flood Research, Inc. (AFR), a provider

of electronic flood-zone certifications.     Kwong supervised two



     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
other IT employees:         Wei Chen, a program analyst; and An Yuan, a

systems administrator.

       On 15 November 2001, Kwong, Chen, and Yuan submitted a letter

to AFR charging, inter alia, race discrimination and demanding

compensation.       The next day, AFR discovered numerous computer-

system problems.       Investigation revealed the problems were caused

by harmful programs installed on AFR’s computer system.

       On 13 October 2005, Kwong was charged with, inter alia, aiding

and abetting Chen to “knowingly cause[] the transmission of a

program ... [to] intentionally cause[] damage ... to a protected

computer”, in violation of 18 U.S.C. §§ 2, 1030(a)(5)(A).                 A jury

found Kwong guilty on that, and a related conspiracy, count.                    He

was    sentenced,     inter    alia,   to      concurrent   51-month    terms   of

imprisonment and $707,823 in restitution.

                                       II.

                                       A.

       Kwong claims the evidence was insufficient to support the

verdict, contending, inter alia, the 26 October 2001 amendments to

18    U.S.C.   §   1030   should    not       apply   because   the   indictment,

consistent     with   the     pre-amendment      statute,   charged     him   with

“caus[ing] loss ... to one or more individual[]”, 18 U.S.C. §

1030(e)(8) (amended 26 October 2001) (emphasis added), rather than,

pursuant to the amended statute, with “caus[ing] ... loss to 1 or

more person[]”, 18 U.S.C. § 1030(a)(5)(B)(i) (emphasis added).


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      Kwong’s properly-preserved sufficiency challenge is reviewed

in the light most favorable to the verdict, inquiring only whether

a rational juror could find the offense elements established beyond

a reasonable doubt.     E.g., United States v. Cuellar, 478 F.3d 282,

287 (5th Cir. 2007) (en banc).            Of course, a district court’s

application of a statute is reviewed de novo.         See United States v.

Phillips, 219 F.3d 404, 409 (5th Cir. 2000).

      For both the substantive and conspiracy counts, the indictment

charged, and the jury was required to find, conduct occurring after

the statutory-amendment date.         Accordingly, Kwong’s contention,

based on a single word from the indictment, is unavailing.                   See

United States v. Harms, 442 F.3d 367, 372 (5th Cir. 2006), cert.

denied, 127 S. Ct. 2875 (2007); United States v. Garcia-Abrego, 141

F.3d 142, 167 (5th Cir. 1998).

      Along that line, Kwong concedes:         AFR is a “corporation”; and

the   Government   established   loss     to   AFR   of   at   least   $5,000.

Moreover, the evidence established, inter alia:                Kwong and Chen

were alone at AFR when harmful programs were loaded onto AFR’s

system from Chen’s computer; and several harmful programs were

written in programming language in which only Kwong was proficient.

Kwong’s   sufficiency     challenge       fails.      See      18   U.S.C.    §§

1030(a)(5)(A)(i), (a)(5)(B)(i), (e)(12); Int’l Airport Centers, LLC

v. Citrin, 440 F.3d 418, 419-20 (7th Cir. 2006); United States v.

Freeman, 434 F.3d 369, 376 (5th Cir. 2005).

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                                 B.

     Relatedly, Kwong maintains the indictment was constructively

amended by the jury instructions’ requiring the Government to prove

loss to one or more “persons”.   “A[] ... constructive amendment of

the indictment, constituting reversible error, occurs when it

permits ... convict[ion] upon a factual basis that effectively

modifies an essential element of the offense charged or ... on a

materially different theory or set of facts than that ... charged.”

United States v. Reasor, 418 F.3d 466, 475 (5th Cir. 2005).

     As discussed supra, the October 2001 amendments to § 1030

apply.   Particularly in the light of the indictment’s numerous

references to AFR in the conspiracy count, there was no reversible

error.   See id.; United States v. Nuñez, 180 F.3d 227, 231 (5th

Cir. 1999).

                                 C.

     Kwong also contends the conspiracy-count jury instructions, by

repeating the substantive-offense elements, rendered the counts

multiplicitous. Although multiplicity issues are reviewed de novo,

see United States v. Soape, 169 F.3d 257, 265 (5th Cir. 1999),

Kwong’s failure at trial to object to the instructions on this

basis mandates only plain-error review.   See FED. R. CRIM. P. 30(d);

United States v. Dixon, 273 F.3d 636, 641-42 (5th Cir. 2001).

     Because the conspiracy-count instructions articulated properly

the required elements of a conspiracy, see Freeman, 434 F.3d at


                                 4
376, Kwong fails to show plain error.       See United States v. Reedy,

304 F.3d 358, 368-69 (5th Cir. 2002); United States v. Duvall, 846

F.2d 966, 976 (5th Cir. 1988).

                                   D.

     For   his   final   contention,    Kwong   challenges   the   district

court’s loss calculation for the purposes of both his 14-level

amount-of-loss enhancement, pursuant to Sentencing Guidelines §

2B1.1(b)(1)(H), and restitution. A district court’s interpretation

and application of the Guidelines is reviewed de novo; its loss

calculation, a factual finding, only for clear error. E.g., United

States v. Jones, 475 F.3d 701, 705 (5th Cir. 2007).          A restitution

award is reviewed for abuse of discretion.        E.g., United States v.

Onyiego, 286 F.3d 249, 256 (5th Cir. 2002).

     The loss calculation was based on testimony from an AFR vice

president establishing, inter alia, the retail value of AFR’s lost

electronic-certification orders approximated the lost net profit on

such orders.     The loss calculation was not clearly erroneous.        See

Jones, 475 F.3d at 705. Concomitantly, the imposed restitution was

not an abuse of discretion.

                                  III.

     For the foregoing reasons, the judgment is

                                                             AFFIRMED.




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