     12-57
     USA v. Sang

 1                          UNITED STATES COURT OF APPEALS
 2                              FOR THE SECOND CIRCUIT
 3
 4                               SUMMARY ORDER
 5
 6   RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
 7   TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED
 8   AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND
 9   THIS COURT’S LOCAL RULE 32.1. WHEN CITING A SUMMARY ORDER IN A
10   DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
11   FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
12   “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
13   OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
14
15         At a stated term of the United States Court of Appeals for
16   the Second Circuit, held at the Thurgood Marshall United States
17   Courthouse, 40 Foley Square, in the City of New York, on the
18   25th day of February, two thousand thirteen.
19
20   PRESENT:
21
22         John M. Walker, Jr.,
23         Robert A. Katzmann,
24                   Circuit Judges,
25         Loretta A. Preska,*
26                   District Judge.
27
28   -------------------------------------------X
29
30   UNITED STATES OF AMERICA,
31
32                      Appellee,
33
34                 - v. -                              No. 12-57-cr
35
36   RENEE SUKI SANG,
37
38                      Defendant-Appellant.
39
40   -------------------------------------------X
41   FOR APPELLEE:                 SEAN S. BUCKLEY (Brent S. White on

          * Chief Judge Loretta A. Preska, of the United States
     District Court for the Southern District of New York, sitting by
     designation.
 1                                   the brief) for PREET BHARARA,
 2                                   United States Attorney for the
 3                                   Southern District of New York, New
 4                                   York, NY.
 5
 6   FOR APPELLANT:                  JUSTINE A. HARRIS, Colson & Harris
 7                                   LLP, New York, NY.
 8
 9
10        Appeal from a judgment of the United States District Court

11   for the Southern District of New York (William H. Pauley III,

12   Judge).

13        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

14   DECREED that the district court’s judgment is AFFIRMED.

15        Renee Suki Sang appeals from the district court’s

16   restitution award in the amount of $59,551.08 after pleading

17   guilty to larceny.    Sang, who participated in a scheme to

18   withdraw money from her bank account after a friend deposited a

19   fraudulent $60,000 check, argues that the district court was

20   required to accept as true the statement she made during her

21   allocution that she did not form an intent to steal until

22   approximately $10,000 remained in her account.   She argues that

23   the district court looked beyond the conduct underlying her

24   offense of conviction by ordering restitution in the full amount

25   of her withdrawals.   The district court found that Sang’s intent,

26   which it described as “classic conscious avoidance,” was formed

27   much earlier, such that she should be responsible for the full


                                      -2-
 1   amount of her withdrawals for the purpose of restitution.    We

 2   presume the parties’ familiarity with the facts and procedural

 3   history of this case.

 4           We review a district court’s award of restitution for abuse

 5   of discretion.    United States v. Qurashi, 634 F.3d 699, 701 (2d

 6   Cir. 2011).    The district court’s “findings of adjudicative fact”

 7   in connection with a restitution order are reviewed “for clear

 8   error.”    United States v. Jaffe, 417 F.3d 259, 263 (2d Cir.

 9   2005).

10           In Hughey v. United States, 495 U.S. 411, 413 (1990), the

11   Supreme Court held that the language and structure of the Victim

12   and Witness Protection Act (the “VWPA”) “ma[de] plain Congress’

13   intent to authorize an award of restitution only for the loss

14   caused by the specific conduct that is the basis of the offense

15   of conviction.”    The Mandatory Victim’s Restitution Act (the

16   “MVRA”) states that when a defendant is convicted of “an offense

17   against property,” the court “shall order . . . that the

18   defendant make restitution to the victim of the offense.”    18

19   U.S.C. § 3663A.    In United States v. Oladimeji, 463 F.3d 152,

20   157-58 (2d Cir. 2006), we extended the holding of Hughey to the

21   MVRA.    Pursuant to § 3663A(d), all restitution orders under the

22   MVRA must comply with the requirements of 18 U.S.C. § 3664.

23   Section 3664(e) provides that “[a]ny dispute as to the proper

                                       -3-
 1   amount or type of restitution shall be resolved by the court by

 2   the preponderance of the evidence,” and we have further held that

 3   “under the precedents set by Apprendi, Blakely, and Booker, the

 4   Sixth Amendment does not bar a district court from imposing a

 5   restitution order that is based on findings it has made by a

 6   preponderance of the evidence.” Oladimeji, 463 F.3d at 157

 7   (citing United States v. Reifler, 446 F.3d 65 (2d Cir. 2006)).

 8        We find no abuse of discretion in the district court’s

 9   restitution award or clear error in its factual findings. From

10   its extensive dealings with Sang related to her marijuana use,

11   the district court knew that Sang was a cashier with a yearly

12   income of $2,200 and that she was, in the district court’s words,

13   “no dummy.”   Based on these observations, the district court

14   termed Sang’s failure to question the $60,000 deposit “classic

15   conscious avoidance” and noted that “restitution . . . [was]

16   appropriate in the full amount of what [Sang] had every reason to

17   believe was at risk.”1   Sang’s statement at her allocution that

18   she only formed criminal intent when less than $10,000 remained

19   in her account is but one piece of evidence that the district

20   court weighed, and it was well within its discretion to find that

     1
        When the magistrate judge accepted Sang’s plea, as part of a
     discussion about forfeiture and restitution, the judge asked Sang
     whether she understood that she would be required to forfeit
     “some amount of money to the government, that may be $60,759,”
     and she confirmed that she understood.

                                     -4-
 1   she should be held responsible for the full amount of the

 2   withdrawals.   Although Sang correctly asserts that the district

 3   court may not consider conduct outside of the offense for the

 4   purposes of calculating a restitution award, the court did not do

 5   so here.   The court concluded that she was criminally responsible

 6   for the full amount of the withdrawals.2

 7        A ruling in Sang’s favor could provide an incentive to other

 8   defendants to attempt to limit restitution awards unilaterally by

 9   testifying at their plea allocutions to the bare minimum that

10   would constitute a sufficient plea.   Not only would such a ruling

11   be in contravention of the district court’s ability to make

12   restitution findings by a preponderance of the evidence, it would

13   also conflict with the “primary and overarching purpose of the

14   MVRA [which] is to make victims of crime whole.”   United States

15   v. Pescatore, 637 F.3d 128, 139 (2d Cir. 2011).

16




     2
        In United States v. Adams, 363 F.3d 363, 367 (5th Cir. 2004),
     the Fifth Circuit held that a defendant’s statement during a plea
     allocution narrowed the scope of his offense of conviction (and
     therefore limited his restitution obligations) because the
     parties had reached a “mutual understanding” as to the relevant
     facts. We need not decide whether we would endorse a similar
     rule, however, because there was no “mutual understanding” in
     this case, and unlike in Adams, there was no plea agreement
     between the parties.

                                     -5-
1         We have considered all of Sang’s arguments and find them to

2    be without merit.   For the foregoing reasons, the district

3    court’s judgment is AFFIRMED.

4
 5
 6
 7                             FOR THE COURT:
 8                             Catherine O’Hagan Wolfe, Clerk of Court
 9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28




                                     -6-
