     Case: 16-30906      Document: 00514118048         Page: 1    Date Filed: 08/16/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals

                                      No. 16-30906
                                                                                 Fifth Circuit

                                                                               FILED
                                                                         August 16, 2017

UNITED STATES OF AMERICA,                                                 Lyle W. Cayce
                                                                               Clerk
              Plaintiff - Appellee

v.

KHANG LE,

              Defendant - Appellant




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:15-CR-202-1


Before DAVIS, GRAVES, and COSTA, Circuit Judges.
PER CURIAM:*
       Defendant Khang Le pleaded guilty to wire fraud for embezzling funds
from the bank accounts he controlled as president of the Vietnamese Buddhist
Association of Southwest Louisiana (the “Temple”). Le was ordered to pay the
total amount taken from the Temple’s bank accounts, $263,463.36. Le appeals
the restitution award, asserting that the district court plainly erred by failing




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                               No. 16-30906
to offset the award amount by an unascertained sum that Le placed back into
the accounts. Finding no error, we AFFIRM.
                                      I.
     Le served as the president and presiding monk of the Temple from 2010
until October 2014. From January 2013 through August 2014, Le withdrew
money without authorization from the Temple’s bank accounts to fund his
gambling trips to a casino in Lake Charles, Louisiana. Wrongfully and with
the intent to defraud, Le withdrew $263,463.36 in total from the Temple’s
accounts.
     Le was charged with wire fraud under 18 U.S.C. § 1343 and pleaded
guilty to the charge, stipulating to the facts above and acknowledging that
restitution was mandatory. Le’s Presentence Investigation Report (“PSR”)
found the Temple’s total loss to be $263,463.36, which was used to set Le’s
range of imprisonment under the Sentencing Guidelines at 27 to 33 months.
The PSR noted that the total loss amount could be less because Le may have
put funds back into the accounts, but the PSR did not suggest a restitution
amount. Le filed a presentence memorandum arguing that he should receive
a downward variance in his offense level because the Temple’s actual loss
amount was less than the amount listed in the PSR. Le’s memorandum did
not address the restitution amount.
     During the sentencing hearing, both Le and the government agreed that
the restitution award was difficult to quantify because of the nature of the
withdrawals and the fact that Le redeposited an unspecified amount back into
the Temple’s bank accounts. There was no dispute that the total amount Le
withdrew from the Temple’s accounts was $263,463.36. But Le argued that
his sentence should be based on an actual loss amount that was closer to
$100,000, but could not produce evidence to prove the amount he redeposited.
The district court imposed a sentence of 30 months’ imprisonment followed by
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                                     No. 16-30906
three years of supervised release, and ordered restitution in the amount of
$263,463.36.     Le made a general objection to the reasonableness of the
sentence, but did not object to the restitution amount.
      Le appeals, arguing that the district court plainly erred by basing its
restitution order on the total loss amount without offsetting the award with
the unquantifiable cash deposits Le made to the Temple’s bank accounts.
                                            II.
      The Mandatory Victim Restitution Act (“MVRA”) requires a district
court to award restitution to victims “directly and proximately harmed as a
result of the commission of [the defendant’s] offense.” 1              “The purpose of
restitution under the MVRA is to compensate victims for losses, not to punish
defendants for ill-gotten gains.” 2 The MVRA “does not permit a court to award
a windfall greater than the victim’s actual loss.” 3 In the case of an offense
involving stolen property, loss is calculated as the greater of the value of the
property on the date of the loss or on the date of sentencing “less . . . the value
. . . of any part of the property that is returned[.]” 4
      The MVRA contemplates a burden-shifting approach. The Government
has the initial burden of proving a victim’s loss. 5 The defendant bears the
burden of demonstrating his or her economic circumstances. 6                  And “[t]he
burden of demonstrating such other matters as the court deems appropriate
shall be upon the party designated by the court as justice requires.” 7 Thus the
MVRA “allocates the various burdens of proof among the parties who are best




      1 18 U.S.C. § 3663A(a)(1)-(2).
      2 United States v. Sharma, 703 F.3d 318, 322 (5th Cir. 2012).
      3 United States v. De Leon, 728 F.3d 500, 506 (5th Cir. 2013).
      4 18 U.S.C. § 3663A(b)(1).
      5 Id. § 3664(e).
      6 Id.
      7 Id.

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                                       No. 16-30906
able to satisfy those burdens and who have the strongest incentive to litigate
the particular issues involved.” 8 Consequently, this Court has construed the
“as justice requires” clause to place the burden on the defendant to establish
any offset to a restitution order. 9 Similarly, as long as the loss amount has an
adequate evidentiary basis, the burden is on the defendant to present rebuttal
evidence demonstrating that the information is “inaccurate or materially
untrue.” 10
         First, Le argues that the district court plainly erred in calculating the
restitution award based on the intended loss amount used for sentencing
enhancement purposes, rather than the Temple’s actual loss. 11 We disagree.
There is no indication in the record that the district court, the probation officer,
or either of the parties viewed the $263,463.36 as an intended loss amount. In
fact, Le’s PSR describes the sum as the “total loss” amount. And Le conceded
that he withdrew $263,463.36 from the Temple’s bank accounts. The record
shows that Le both intended to and actually withdrew $263,463.36 from the
Temple’s accounts. There are no statements in the record about Le’s “intended
loss.”       There is, however, ample evidence that the parties were trying to
calculate “actual loss” based on the limited information available. While the
“value of the property on the date of the loss” was ascertainable, the “value . .
. of any part of the property that [Le] returned” to the bank accounts was not. 12
Therefore, the district court did not err in basing Le’s restitution amount on
the total loss amount of $263,463.36.



         United States v. Sheinbaum, 136 F.3d 443, 449 (5th Cir. 1998).
         8

         Id.; see also, e.g., Sharma, 703 F.3d at 325–26; United States v. Loe, 248 F.3d 449,
         9

470 (5th Cir. 2001).
       10 United States v. Scher, 601 F.3d 408, 413 (5th Cir. 2010).
       11 See U.S.S.G. § 2B1.1 cmt. n.3(A) (defining intended loss as “the pecuniary harm that

the defendant purposely sought to inflict,” which may differ from the actual loss sustained
by the victim).
       12 18 U.S.C. § 3663A(b)(1).

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                                    No. 16-30906
      Second, Le argues that the government failed to prove actual loss by a
preponderance of the evidence, as required by the MVRA. Again, we disagree.
As stated above, the government has the initial burden to prove by a
preponderance the Temple’s loss. 13         The government met this burden by
proving Le withdrew the sum certain amount of $263,463.36 from the Temple’s
bank accounts. Le had the burden to demonstrate that the actual loss should
be offset by funds he redeposited back into the Temple’s accounts. 14 Le was in
the best position to produce evidence as to the amount he returned into the
accounts, so justice would demand that the burden be placed upon him to show
this fact. 15 Le vaguely asserts that he redeposited an unspecified (apparently
unknown) sum back into the Temple’s accounts, so his restitution award
should be offset by this sum. Le failed to carry his burden to produce evidence
of the amount he redeposited, so we find no error in the district court ordering
the full amount withdrawn from the accounts in restitution.
                                           III.
      In sum, we hold that the district court did not commit error, plain or
otherwise, in ordering Le to pay $263,463.36 in restitution. Therefore, we
AFFIRM the district court’s restitution order.




      13 See id. § 3664(e).
      14 See Sheinbaum, 136 F.3d at 449.
      15 See id.

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