                                                                 FILED
                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS         Tenth Circuit

                                TENTH CIRCUIT                                 July 29, 2015
                       ___________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
v.                                                             No. 14-5080
NAM QUOC LE, a/k/a Jimmy Nam Quoc                  (D.C. No. 4:14-CR-00007-GKF-1)
Le,                                                          (N.D. Okla.)

       Defendant-Appellant.
                    ____________________________________

                            ORDER AND JUDGMENT*
                       ____________________________________

Before BRISCOE, BALDOCK, and EBEL, Circuit Judges.
                 ____________________________________

       Defendant Nam Quoc Le pleaded guilty to a single count of Theft From Gaming

Establishments on Indian Lands, in violation of 18 U.S.C. §1167, based on a cheating

scheme that ran from at least January 14, 2013, to February 16, 2013. The only issue in

this appeal is the amount of restitution Defendant owes the Casino where he cheated.

Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C § 3742, we affirm the

district court’s restitution calculation method, but remand for the court to correct a minor

but clear error it committed while performing that calculation.




*
  This order and judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                             I.

       At least as early as mid-January 2013, Defendant joined forces with Misty White,

a blackjack dealer at Osage Casino, in order to cheat at blackjack. Although blackjack

rules can vary from casino to casino, the basic goal is to get a combination of cards worth

more than the combination dealt to the dealer, but no greater than 21 (“bust”). After

being dealt an initial two cards, the player must choose whether to ask for another card

(“hit”) which he can do as many times as he likes before exceeding 21, or to “stay” with

the cards he has been dealt thus far. If the player’s combination ends up being less than

the dealer’s, or exceeds 21, he loses his bet. If the player and the dealer tie, there is a

“push,” and the player keeps his bet. If the player’s cards are worth more than the

dealer’s, or the dealer exceeds 21, the player wins the amount he bet. If the player’s

initial two cards are an ace and a face card then he has a blackjack, and if the dealer does

not also have a blackjack, the player wins 150% of his bet. Defendant and Ms. White’s

cheating scheme involved Ms. White, as the dealer, discretely showing Defendant the

next card he would be dealt if he chose to hit (the “hole card”). This way, Defendant

knew ahead of time whether hitting would increase his odds of beating the dealer, or

would instead cause him to bust.

       With this advantage up his sleeve, Defendant’s gambling habits changed

markedly. He began betting more money per hand, and would quit while he was ahead

rather than gambling until he’d lost any winnings he might have amassed, as he had in

the past. Indeed, Defendant’s winnings/losses from June 29, 2010 through November 27,

2012 totaled negative $120,267 but his winnings/losses from December 4, 2012 through

                                            -2-
February 13, 2013 totaled positive $96,891. This dramatic change in fortune piqued the

interest of the Casino’s Table Games Director, Ken Shepherd, who initiated the Casino’s

investigation of Defendant. The investigation revealed that Defendant often followed

Ms. White as she moved from table to table, and ultimately the Casino captured on video

Ms. White flashing hole cards to Defendant in 119 out of the 228 hands played from

February 12 through February 16. The Casino terminated Ms. White on February 16,

2013, and she ultimately pleaded guilty to Theft by an Employee of Gaming

Establishment on Indian Lands in excess of $1,000. Ms. White then cooperated with the

government by describing Defendant’s role in the scheme. As a result, Defendant was

charged with, and pleaded guilty to, one count of Theft From Gaming Establishments on

Indian Lands, in violation of 18 U.S.C. §1167.

       Defendant’s Presentence Report (PSR) calculated the restitution Defendant owed

the Casino under the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A, to

be $59,936.50, which Defendant owed jointly and severally with Ms. White.             This

number was based on (1) Defendant’s winnings during the times Ms. White was working

from January 12, 2013 through February 16, 2013 as recorded on Defendant’s “Konami

card”1 and (2) Ms. White’s restitution order for the same amount. Unlike Ms. White,

Defendant objected to the PSR’s restitution calculation.        He argued the Casino’s

“Konami card” records were not precise and were inflated because the Konami card does


1
 The Konami card is a casino management system which tracks the holder’s gambling
patterns, wins, and losses, primarily for marketing purposes. It automatically tracks wins
and losses for slot machines, but wins and losses from table games must be manually
entered into a computer by casino staff.
                                           -3-
not automatically register winnings for table games like blackjack so the Casino

managers must manually observe and enter a player’s winnings/losses into the Konami

system, leaving room for human error. Defendant also asserted that the Konami card

system showed there were times that Ms. White was working but he gambled at a table

other than the one Ms. White was dealing at, and that the Konami card records did not

add up with the video records of his cheating scheme. Given these issues, Defendant

argued the restitution order should be calculated by taking the discrete instances in which

he was caught cheating on camera, and using statistics to extrapolate the win/loss results

of that sample of discrete “cheats” to cover the total amount of time he played blackjack

during the period in which he was engaged in this scheme.

      At Defendant’s sentencing hearing, Mr. Shepherd testified that the Casino’s

win/loss records for particular players are “almost spot on,” but admitted they may not be

100% accurate all the time. Shepherd also agreed that the most accurate way to calculate

loss would be if there were records of each individual hand played. Defendant then had a

statistics professor testify as an expert to explain how one could use a sample size

comprised of the video recorded instances of Defendant’s cheating and extrapolate the

amount of loss from that sample. The statistics expert opined that, based on the video

record sample, the amount of loss attributable to discrete “cheats” was only about

$6,363.63 assuming one defined (1) a “cheat” as only those instances where Ms. White

flashed a hole card and Defendant then deviated from what a typical blackjack player

would do with no knowledge of the hole card, and (2) loss as only the amount of the

Casino’s payout to Defendant as a result of those “cheats.” The government also offered,

                                            -4-
in its sentencing memorandum, an alternative extrapolation method for calculating

restitution. Using the same data as Defendant’s expert, but defining cheating more

broadly (under the premise that Defendant’s cheating altered the entire course of the

game) and defining loss as not only the money Defendant won, but also the money he

would have otherwise lost to the Casino, the Government arrived at an extrapolated loss

amount of about $82,300.

       Ms. White also testified at the hearing. She stated that, in return for her flashing

hole cards, Defendant tipped her between $4,000 and $5,000 over the course of the

scheme. She also stated that, based on her firsthand knowledge of the scheme, $59,000

was a fair estimate of the loss suffered by the Casino as the result of the cheating scheme

and that, although she didn’t know the exact amount, the actual loss attributed to the

scheme could not be less than $59,000.

       After hearing the evidence, the court noted that Defendant and the government

were essentially asking it to do a variation of the same thing (extrapolate), but then

remarked: “Another way to look at it is [Defendant] cheat[ed] the entire time between . . .

January 13th and February 14th. You take [his] gains, you subtract [his] losses, and

that’s the loss to the Casino.” The court also noted that Defendant’s asserted restitution

amount was not plausible because he gave Ms. White more than half that amount in tips.

Ultimately, the court adopted the PSR’s restitution calculation of $59,936.50, but credited

Defendant for the periods of play during the scheme that resulted in net losses of

$19,299.50 under U.S.S.G § 2B1.1. According to the court, “this reduction resulted in a



                                            -5-
restitution amount of $41,436.50,” and it ultimately imposed restitution in that amount.

Defendant timely appealed.

                                            II.

      “We review the district court’s application of the MVRA de novo and its factual

findings for clear error, while ultimately assessing the amount of the restitution award

under an abuse of discretion standard.” United States v. Ferdman, 779 F.3d 1129, 1131

(10th Cir. 2015). “[T]he principal aim” of restitution under the MVRA is to “restor[e]

victims to the position they occupied before the crime.” Id. at 1132. “Any dispute as to

the proper amount . . . of restitution shall be resolved by the court by a preponderance of

the evidence. The burden of demonstrating the amount of loss sustained by the victim as

a result of the offense shall be on . . . the Government.” 18 U.S.C. § 3664(e). That said,

“the restitution phase of criminal sentencings should [not] become a substitute for civil

trials.” Ferdman, 779 F.3d at 1133. “Speculation and rough justice are not permitted.”

Id. (quoting United States v. Anderson, 741 F.3d 938, 954 (9th Cir. 2013)). But “the

MVRA does not require a court to calculate a victim’s actual loss with exact precision.”

Id.

      Defendant argues the district court committed clear error by failing to consider

credible evidence that supported Defendant’s extrapolation theory. This is simply untrue.

The court acknowledged that it had essentially three options before it for calculating

restitution, all supported by some evidence: (1) Defendant’s extrapolated amount of

$6,363.63, (2) the government’s extrapolated amount of $82,300, or (3) the middle road

amount of Defendant’s net winnings minus his net losses over the course of his blackjack

                                            -6-
cheating scheme. The court properly considered Defendant’s extrapolation evidence, but

rejected the number it yielded as inconsistent with other evidence, namely, the amount

Defendant had tipped Ms. White for her role in the scheme.

      Defendant relies primarily on Hughey v. United States, 495 U.S. 411 (1990), and

its progeny to argue that the district court impermissibly held him responsible for

uncharged relevant conduct. In Hughey, the defendant had been charged with a single act

of credit card fraud involving a loss to the victim of $10,412, but there was evidence the

defendant had committed other related fraud causing total losses of $147,646.89. The

district court ordered restitution in the larger amount based on the relevant uncharged

conduct, but the Supreme Court reversed. In reversing the district court, the Court stated

that the VWPA, predecessor to the MVRA, “is intended to compensate victims only for

losses caused by the conduct underlying the offense of conviction.”           Id. at 416.

Defendant argues he pleaded guilty to cheating, and so the amount of loss should cover

only the amount the Casino paid him for the particular hands where he cheated—i.e., was

flashed a hole card and deviated from basic blackjack strategy.

      Defendant’s reliance on Hughey and its progeny is misplaced. For one thing,

Defendant’s guilty plea admits that, from at least mid-January through February 16,

2013, he engaged in a cheating “scheme . . . designed to give [him] an advantage in the

blackjack game” at the Casino. This overarching scheme was therefore just as much the

basis for the offense of conviction as any particular hands in which Defendant took

advantage of his ability to see a hole card. And Defendant’s attempt to define cheating as

only those instances where he was flashed a hole card and deviated from basic blackjack

                                           -7-
strategy ignores the overall advantage he gained from this scheme and the way in which

his gambling habits changed as a result of that advantage. Moreover, Defendant’s narrow

definition of loss risks benefitting him while undercompensating the Casino because it

fails to account for the fact that, when he cheated at a hand and won, the Casino lost not

only its payout but also potentially lost the bet Defendant would have forfeited to the

Casino had he not cheated and then lost the hand.

       Rather than adopt the extrapolation approach, which requires sifting through

expert testimony and conflicting definitions of “cheating” and “loss,” the district court

chose to simply restore both Defendant and the Casino to essentially the positions they

occupied before Defendant initiated his cheating scheme. This approach is consistent

with our precedent interpreting the MVRA, which aims to “restor[e] victims to the

position they occupied before the crime,” and disfavors turning “the restitution phase of

criminal sentencings” into “a substitute for civil trials.” Ferdman, 779 F.3d at 1132–33.

       Defendant argues the court’s calculation is based on Casino records that are

flawed for various reasons. But the court’s calculation is supported by the testimony of

Mr. Shepherd, who stated that the Casino’s records were “almost spot on,” and the

testimony of Defendant’s partner in crime, who stated that $59,000 was a fair and indeed

bare-minimum estimate of the loss attributable to the cheating scheme. And the MVRA

does not require exact precision, anyway. Id. at 1133. Given that record evidence

supports the court’s calculation method, we cannot say the court abused its discretion by

choosing to award restitution in the amount of Defendant’s net winnings minus his net

losses over the course of his blackjack cheating scheme.

                                            -8-
                                                III.

       Although we affirm the court’s restitution calculation method as consistent with

the law and the sentencing guidelines, we note that the court appears to have committed a

minor arithmetical error that rendered its ultimate restitution award clearly erroneous.

The court essentially adopted the PSR’s restitution calculation of $59,936.50 but then

credited Defendant for the periods of play during the scheme that resulted in a net loss of

$19,299.50 under U.S.S.G. § 2B1.1. According to the court, “this reduction resulted in a

restitution amount of $41,436.50,” and it ultimately imposed restitution in that amount.

But $59,936.50 minus $19,299.50 equals a loss to the Casino of $40,637.00, not

$41,436.50. Accordingly, we REMAND with the limited instruction that the district

court correct this clear arithmetical error.


                                               Entered for the Court,



                                               Bobby R. Baldock
                                               United States Circuit Judge




                                                 -9-
