                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 13-4191


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

KWANG HEE KIM, a/k/a Sharky,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:12-cr-00280-JCC-4)


Submitted:   August 27, 2013                 Decided:    September 5, 2013


Before TRAXLER,   Chief   Judge,    and   NIEMEYER      and   AGEE,   Circuit
Judges.


Affirmed by unpublished per curiam opinion.


Marvin D. Miller, LAW OFFICES OF MARVIN D. MILLER, Alexandria,
Virginia, for Appellant.      Neil H. MacBride, United States
Attorney, Michael J. Frank, Assistant United States Attorney,
Marc J. Birnbaum, Special Assistant United States Attorney,
Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Kwang Hee Kim appeals his sentence for conspiracy to commit

extortion        under       the    Hobbs     Act.      See      18       U.S.C.    § 1951(a).

Finding no reversible error, we affirm.

                                               I.

       From approximately January 2011 through November 2011, Kim

was a member of a gang called the “Korean Night Breeders” (the

“KNBs”),         which    used       force,    fear,    violence,          and     threats    of

violence to extort businesses in Fairfax County, Virginia.                                   The

KNBs       targeted      for       extortion    businesses       that       were     owned    or

operated         by   South        Koreans.      They     extorted         taxi     companies,

restaurants, bars that sold alcohol after 2:00 a.m., businesses

owned       by    illegal      aliens,        businesses       that       employed     illegal

aliens, and “doumi” businesses. *                       To intimidate            victims, the

gang’s members, dressed in black, would surround victims while

one     member        brandished       a    knife.       The     gang       also     generated

additional revenue by selling illegal narcotics.

       Kim regularly attended gang meetings during which the KNBs

discussed and planned their future crimes.                            While he was not a

gang       leader,     Kim     made    suggestions        to    the       leader     regarding

potential         extortion         targets,     served     as        a    driver    on   some

       *
        Doumi businesses were escort services.        The record
reflects that federal agents learned that some doumis provided
commercial sexual services to some of their customers.



                                                2
extortion missions, made phone calls to victims in attempts to

extort    money,      provided   a    physical       presence    (with      other       gang

members)    while      victims   were    being      threatened,       and    personally

retrieved      extortion      money    from   victims.          Kim   also     obtained

marijuana      that    the    gang    members    consumed       before       and    after

extortion missions.

     As    a   member    of    the    KNBs,   Kim     received    a    share       of    the

extortion proceeds, along with free food and drinks at certain

businesses that the gang shook down.                   He remained a member of

the gang until he was kicked out after a disagreement with the

KNBs’ leader.

     On September 5, 2012, a grand jury charged Kim and three

other defendants in a six-count superseding indictment.                                 The

indictment charged Kim with one count of conspiracy to commit

extortion and two substantive extortion counts.                             Kim pleaded

guilty, without a plea agreement, to the conspiracy count, and

the district court, on the government’s motion, dismissed the

remaining two counts against him.

     A    probation      officer      subsequently      prepared      a     presentence

report (“PSR”) for Kim’s case, and later an amended PSR.                                 The

defense raised numerous objections to the reports, including, as

is   relevant         here,    objections       to     suggested       offense-level

enhancements for possessing or brandishing a dangerous weapon

and taking advantage of a vulnerable victim, and objections to

                                          3
consideration of losses suffered by criminal enterprises, which

Kim maintained were outside the scope of the Hobbs Act.

      The district court overruled these objections and largely

adopted the findings and conclusions in the PSR.                       Accordingly,

the court determined that Kim’s initial offense level was 18.

See U.S.S.G. § 2B3.2(a).             The court increased the offense level

by two because the offense involved an express or implied threat

of death or bodily injury, see U.S.S.G. § 2B3.2(b)(1); one level

because    the    loss     was   more   than   $10,000   but     not     more    than

$50,000,    see   U.S.S.G.       § 2B3.2(b)(2);     three    levels      because   a

dangerous     weapon     was     brandished    or   possessed,     see     U.S.S.G.

§ 2B3.2(b)(3)(A)(v);           two   levels    because   a   victim      sustained

bodily    injury,    see    U.S.S.G.    § 2B3.2(b)(4)(A);        and    two   levels

because the defendant knew or should have known that a victim of

the offense was a vulnerable victim, see U.S.S.G. § 3A1.1(b)(1).

The   court   also     decreased      Kim’s    offense   level    by     three   for

acceptance of responsibility, see U.S.S.G. § 3E1.1, leaving a

total offense level of 25.              Combined with a Criminal History

Category of II, the offense level yielded an advisory range of

63-78 months’ imprisonment.

      The court imposed a sentence of 60 months.                   In so doing,

the court noted the “very serious” nature of the offense but

added that the choice of a sentence three months below the low

end of the advisory range was due to Kim’s initial cooperation

                                         4
with the government and some then-recent efforts by Kim toward

rehabilitation.             J.A. 162.       The court also noted that although

it had overruled several of Kim’s sentencing objections, the

court     would      sentence     Kim       to       60   months        regardless         of    the

correctness of the court’s decisions on those subsidiary issues,

given    the   seriousness           of    the       offense      and    Kim’s          involvement

therein.

     The district court also ordered Kim to pay restitution in

the amount of $12,100 to victims of KNBs’ extortions.

                                                II.

     Kim first contends that the district court clearly erred in

enhancing      his     offense       level       for      possession         of     a    dangerous

weapon.    We disagree.

     In     considering          a        challenge        to      a     district           court’s

application       of    the    Sentencing            Guidelines,        we    review       factual

findings for clear error and legal determinations de novo.                                       See

United States v. Allen, 446 F.3d 522, 527 (4th Cir. 2006).                                         A

sentencing court clearly errs only when we are “left with the

definite and firm conviction that a mistake has been committed.”

United    States       v.    Harvey,      532    F.3d      326,    337       (4th       Cir.    2008)

(internal quotation marks omitted).

     Sentencing Guidelines § 2B3.2(b)(2)(A)(v) provides that a

defendant’s offense level should be increased by three “if a



                                                 5
dangerous weapon was brandished or possessed.”                     In this context,

“dangerous weapon”

       means (i) an instrument capable of inflicting death or
       serious bodily injury; or (ii) an object that is not
       an instrument capable of inflicting death or serious
       bodily injury but (I) closely resembles such an
       instrument; or (II) the defendant used the object in a
       manner that created the impression that the object was
       such an instrument (e.g. a defendant wrapped a hand in
       a towel during a bank robbery to create the appearance
       of a gun).

U.S.S.G. § 1B1.1 cmt. n.1(D); see U.S.S.G. § 2A2.2 cmt. n.1.

“The    Guideline-sanctioned           definition           of    dangerous      weapon

encompasses       an    extremely   broad       range       of   instrumentalities,”

including knives.         United States v. Passaro, 577 F.3d 207, 222

(4th Cir. 2009).         Even if a defendant himself did not possess a

weapon,     his    offense     level    can     be     increased     when     his     co-

conspirator       possessed     a      weapon     in        furtherance     of      their

conspiracy.       See United States v. Hunter, 19 F.3d 895, 896 (4th

Cir. 1994).        The government bears the burden of proving the

applicability      of    the   enhancement       by     a    preponderance       of   the

evidence.     See United States v. Garnett, 243 F.3d 824, 828 (4th

Cir. 2001).

       Kim maintains that the record was not sufficient to support

the conclusions that Je Hyung Yoo carried the knife during Kim’s

time in the conspiracy and that the knife actually qualified as

a dangerous weapon.        We disagree.




                                          6
       The amended PSR contained statements from co-defendant Tae

Won Kang that Kim “was aware that co-defendant Je Hyung Yoo

carried a knife during extortions,” that “Yoo would often take

his knife out, open it up, and play with the blade on the way to

extort people,” and that “Yoo sometimes took the knife out of

his     pocket        and    displayed         the     blade     to    victims      during

extortions.”           J.A. 272.         These statements provide sufficient

support for the district court’s finding that Yoo carried the

knife       during    the    time   of    the       conspiracy.        And,   no   further

description of the weapon was needed to justify an inference

that it qualified as a deadly weapon; the fact that it was a

knife       that     Je     Hyung   Yoo       used     to   intimidate        people     was

sufficient.          See United States v. Scott, 91 F.3d 1058, 1064 (8th

Cir.       1996)   (holding     that     testimony       that    defendant     threatened

victim with a knife was sufficient to support enhancement even

in the absence of a description of the knife).

                                              III.

       Kim next argues that the district court erred in enhancing

his    offense       level    because     the       conspiracy    targeted     vulnerable

victims.       We find no reversible error.

       Under       § 3A1.1(b)(1)         of     the     Sentencing       Guidelines,       a

defendant’s          offense    level     is        increased     by    two    “[i]f     the

defendant knew or should have known that a victim of the offense

was    a    vulnerable       victim.”         This    enhancement      “is    intended    to

                                                7
reflect the fact that some potential crime victims have a lower

than average ability to protect themselves from the criminal.

Because criminals incur reduced risks and costs in victimizing

such people, a higher than average punishment is necessary to

deter the crimes against them.”                   United States v. Etoty, 679

F.3d    292,     296    (4th   Cir.       2012)    (internal    quotation     marks

omitted).        “[T]he    role    that    a   victim’s    disability      plays   in

making it less likely that a crime will be discovered is one of

the key reasons why a sentencing enhancement is necessary for

defendants who prey on vulnerable victims.”                Id. at 295.

       The district court here found:

            In this case, the defendant and his co-defendants
       primarily    targeted   for   extortion   victims   with
       unlicensed businesses and victims who were illegally
       in the United States. In addition, these victims were
       immigrants from the Republic of Korea, some of whom
       didn’t    speak   English   well.       All   of  these
       characteristics made them unlikely to report their
       victimization to the authorities, whether for lack of
       understanding or ability to navigate the U.S. law
       enforcement system for fear of legal repercussions.

J.A. 148-49 (citation omitted).                Kim argues that there was no

evidence that any of the particular victims who were illegally

in this country were actually made vulnerable by their illegal

presence    in    the     United   States.         He   adds   that   no   evidence

supports a conclusion that any of the victims could not speak

English well or were unfamiliar with the American legal system

or were recent immigrants.            And, he further maintains that the


                                           8
vulnerable victim enhancement was designed to protect people who

are unusually easy targets through no fault of their own.                                 Thus,

he    argues    that      considering         people      to    be    vulnerable       based    on

their decisions to engage in illegal activity is improper.

       We need not resolve the merits of Kim’s argument, however,

because any error committed by the district court in imposing

the    enhancement         was     harmless.            The     court       stated    that     its

decision       to   sentence       Kim      to    60   months’       imprisonment       did    not

depend on the correctness of the two-level enhancement, and the

court noted that it would select the very same sentence were we

to hold that the enhancement did not apply.                                  Accordingly, so

long as the alternative sentence was not an abuse of discretion,

any error in applying the enhancement was harmless.                                  See United

States v. Savillon-Matute, 636 F.3d 119, 123 (4th Cir. 2011)

(holding       that       when    a    district        court        gives    an   alternative,

substantive basis for a sentence, it is reviewed for abuse of

discretion,         and    if    it    is    found      to     be    reasonable,       then    any

remaining,          alleged      procedural            errors       are     presumed     to     be

harmless); see also United States v. Hargrove, 701 F.3d 156, 163

(4th    Cir.    2012)       (rejecting           the   argument       that    Savillon-Matute

should be read to narrowly apply in unique circumstances).

       Assuming       that       the   enhancement           was     erroneously       applied,

Kim’s offense level would have been 23 rather than 25 and his

advisory guideline range would have been 51-63 months.                                       Under

                                                   9
that scenario, the 60-month sentence would have been within the

guidelines range.             A within-guidelines sentence is presumed to

be reasonable, see United States v. Mendoza-Mendoza, 597 F.3d

212, 217 (4th Cir. 2010), and the presumption is rebutted only

by a showing “that the sentence is unreasonable when measured

against the [18 U.S.C.] § 3553(a) factors,” United States v.

Montes-Pineda,         445    F.3d    375,       379    (4th    Cir.    2006)      (internal

quotation marks omitted).                 No facts in the record are sufficient

to rebut that presumption here.

                                             IV.

       Kim     finally    argues      that    the       district   court      applied     the

Hobbs Act in an unconstitutional manner by ordering payment of

restitution       to    victims      who    Kim    maintains       engaged      in    illegal

conduct.        He specifically claims that three of the victims to

whom     he    was     ordered       to    pay     restitution         ran    prostitution

businesses and one of those transported a young woman across

state lines in violation of the Mann Act.                        See 18 U.S.C. § 2421

et   seq.       He     also    alleges      that       those   business      employed    and

exploited       illegal       immigrants.          While       Congress      may     regulate

commerce “among the several States,” U.S. Const. art. I., § 8,

cl. 3,        Kim maintains that “commerce” in this context “does not

include illegal business activity.”                       Appellant’s brief at 28.

We disagree.



                                              10
       The       Commerce      Clause      authorizes      Congress      to   regulate     (1)

“the       use   of     the    channels     of    interstate       commerce,”       (2)   “the

instrumentalities of interstate commerce, or persons or things

in interstate commerce, even though the threat may come only

from intrastate activities,” and (3) “those activities having a

substantial relation to interstate commerce.”                            United States v.

Lopez, 514 U.S. 549, 558-59 (1995).                         We have previously noted

that “Congress exercised the full extent of this authority in

the Hobbs Act.”               United States v. Williams, 342 F.3d 350, 354

(4th Cir. 2003).              The Hobbs Act provides in relevant part:

            Whoever in any way or degree obstructs, delays,
       or affects commerce or the movement of any article or
       commodity in commerce, by robbery or extortion or
       attempts or conspires so to do, or commits or
       threatens physical violence to any person or property
       in furtherance of a plan or purpose to do anything in
       violation of this section [shall be punished].

18 U.S.C. § 1951(a) (emphasis added).                       “Commerce is sufficiently

affected under the Hobbs Act where a robbery depletes the assets

of     a    business          that    is    engaged        in   interstate      commerce.”

Williams,         342    F.3d    at   354-55.         On    that    basis,     we   held    in

Williams         that    the    robbery      of   a   drug      dealer    “satisfies       the

‘affecting commerce’ element of the Hobbs Act, inasmuch as such

a robbery depletes the business assets of the drug dealer.”                                Id.

Considering our recognition in Williams that the scope of the

Hobbs Act is coextensive with that of the Commerce Clause, see




                                                 11
id. at 354, Williams forecloses Kim’s argument that “commerce”

does not include illegal business activity in this context.

                                        V.

     In    sum,    finding      no   reversible      error,   we    affirm   Kim’s

sentence.    We dispense with oral argument because the facts and

legal    contentions      are   adequately     presented      in   the   materials

before    this    court   and   argument     would    not   aid    the   decisional

process.

                                                                           AFFIRMED




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