UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-41223
United States of America,
Plaintiff-Appellee,
v.
John W. Chung
Defendant-Appellant,
Appeal from the United States District Court for the
Eastern District of Texas
August 10, 2001
Before DAVIS and JONES, Circuit Judges, and PRADO,* District Judge.
EDITH H. JONES, Circuit Judge:
Appellant Dr. John Chung challenges his sentence
following his conviction for concealing bankruptcy assets and
making false statements to federal agents. We affirm his sentence.
FACTUAL AND PROCEDURAL HISTORY
After plea negotiations between the government and Chung
collapsed, a grand jury indicted Chung in February 2000 on charges
related to his concealment of personal assets from bankruptcy
*
District Judge of the Western District of Texas, sitting by
designation.
creditors. A few days before his June 2000 trial date, Chung
signed a plea agreement with the government. As part of this
agreement, Chung pled guilty to concealing bankruptcy assets under
18 U.S.C. § 152(1) and making false statements to federal agents
under 18 U.S.C. § 1001. At that time, Chung also disclosed new
concealed property to the government.
Chung’s plea agreement contained the following provision:
6. FINANCIAL STATEMENT: The defendant agrees to
truthfully complete a financial statement form . . . and
provide such completed form to the United States Attorney
NO LATER THAN TWO WEEKS PRIOR TO SENTENCING. This form
shall be used for determination and collection of any
fine or restitution to be ordered by the Court. . . . The
parties agree that the defendant’s failure to timely and
accurately complete this form . . . shall constitute the
defendant’s failure to accept responsibility pursuant to
Section 3E1.1 of the Sentencing Guidelines.
A probation officer issued Chung’s presentence report
(PSR) in July 2000. The PSR estimated the value of Chung’s
concealed assets for sentencing purposes. It also recommended an
obstruction of justice enhancement because Chung made false
statements to the government in 1999 to conceal an asset.
Chung filed timely objections to this report on August 4.
He objected, inter alia, that the PSR overvalued the concealed
assets because he only partly owned a hotel in Scotland that was
community property. Chung also asserted that he was entitled to an
acceptance of responsibility adjustment. He attached a letter
admitting his guilt and accepting responsibility for his actions.
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Chung’s sentencing hearing was on October 10. That
morning, Chung submitted the financial statement that was due under
his plea agreement two weeks before. Chung’s attorney explained
this failure only by stating, “[Chung] travels or moves every 30
days. . . . it’s a logistical issue as opposed to an unwillingness
issue on some things.”
Chung also filed supplemental objections to the PSR on
the day of the hearing. He did not provide an explanation for the
late submission of these objections. Included in these objections
was a claim that three homes in the United States were community
property. Chung did not present evidence of this. He further
objected that the PSR overvalued the hotel because the hotel was
subject to a mortgage. As evidence, Chung presented a July 2000
letter from a bank reflecting the value of the mortgage and
indicating that mortgage payments on the hotel were late.
The district judge refused to consider the supplemental
objections:
I’m fairly tolerant about this sort of thing, but in view
of the long period of time that the Defendant has had the
[PSR] and the fact that it just places the Government at
a disadvantage of dealing with all of these different
objections. And I just feel like I should not consider
them.
The judge rejected Chung’s request for an acceptance of
responsibility adjustment because of Chung’s failure to file the
financial statement on time. Chung was sentenced to forty-one
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months imprisonment and restitution sufficient to pay his
bankruptcy creditors. He appeals.
DISCUSSION
Chung first argues that his supplemental objections were
timely because they were “just a continuation” of his original
objections. We disagree. The supplemental objections were
obviously distinct from Chung’s original objections.
Chung further asserts that Fed. R. Crim. P. 32(c)(1)
requires the district court to make a finding on even untimely
objections to a PSR. We review applications of Rule 32(c)(1) de
novo. United States v. Medina, 161 F.3d 867, 874 (5th Cir.1998).
Rule 32 contains the following provisions:
(b) Presentence Investigation and Report.
(6) Disclosure and Objections.
(B) Within 14 days after receiving the
presentence report, the parties shall communicate in
writing to the probation officer, and to each other, any
objections to . . . the presentence report. . . .
(D) . . . For good cause shown, the court may
allow a new objection to be raised at any time before
imposing sentence.
(c) Sentence.
(1) Sentencing Hearing. At the sentencing hearing,
the court must afford counsel for the defendant and for
the Government an opportunity to comment on the probation
officer's determinations and on other matters relating to
the appropriate sentence, and must rule on any unresolved
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objections to the presentence report. The court may, in
its discretion, permit the parties to introduce testimony
or other evidence on the objections. For each matter
controverted, the court must make either a finding on the
allegation or a determination that no finding is
necessary because the controverted matter will not be
taken into account in, or will not affect, sentencing. .
. .
Read alone, Rule 32(c)(1) might suggest that the district
court had to rule on Chung’s new objections at the sentencing
hearing. Read in context with the provisions in Rule 32(b),
however, it is apparent that the district court had no such
obligation. Rule 32(b)(6)(B)’s deadline and Rule 32(b)(6)(D)’s
grant of discretion would be meaningless if the district court were
obliged to entertain new objections at the sentencing hearing.
Thus, Rule 32(c)(1) only requires the district court to make
findings on timely objections and on objections that it considers
in its discretion.
The other circuits that have considered this issue
concur. United States v. Hardwell, 80 F.3d 1471, 1500 (10th
Cir.1996) (affirming where the district court refused to resolve
new PSR objections at sentencing); United States v. Jones, 70 F.3d
1009, 1010 (8th Cir. 1995) (same); see also United States v. Young,
140 F.3d 453, 457 (2nd Cir.1998) (observing in dicta that a
district court can reject untimely PSR objections).
Furthermore, Chung failed to show good cause to justify
even discretionary consideration of his supplemental objections.
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Based on the text of Rule 32 and the decisions of other circuits,
the district court was free to disregard Chung’s supplemental
objections.
Chung next asserts the merits of two of his untimely
objections. He argues that the estimated value of the hotel was
too high because of the claimed mortgage. He further argues that
the estimated value of the houses in the United States was too high
because these properties were community assets. These are factual
findings that we normally review for clear error. United States v.
Wimbish, 980 F.2d 312, 313 (5th Cir.1992). Here, however, because
the district court validly exercised its discretion to ignore the
objections, Chung is essentially raising these objections for the
first time on appeal. The only review is for plain error. United
States v. Calverley, 37 F.3d 160, 162-64 (5th Cir.1994) (en banc)
(reviewing factual sentencing challenges raised for the first time
on appeal for plain error). But Chung cannot show plain error
arising from the district court’s calculations of the amount of
loss. In this circuit, “questions of fact capable of resolution by
the district court can never constitute plain error.” United
States v. McCaskey, 9 F.3d 368, 376 (5th Cir.1993); see also United
States v. Vital, 68 F.3d 114, 119 (5th Cir.1995).
Chung finally argues that he was entitled to a two-level
adjustment for acceptance of responsibility. We extend great
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deference to the district court’s factual finding on this issue.
“The sentencing judge is in a unique position to evaluate a
defendant’s acceptance of responsibility. For this reason, the
determination of the sentencing judge is entitled to great
deference on review.” U.S. Sentencing Guidelines Manual § 3E1.1
comment 5.
Chung was entitled to a two-point reduction if he
“clearly demonstrate[d] acceptance of responsibility for his
offense.” Id. at § 3E1.1(a). His guilty plea, while significant,
did not entitle him to the adjustment as a matter of right. Id. at
§ 3E1.1 comment 3.
An obstruction of justice enhancement “ordinarily
indicates that the defendant has not accepted responsibility for
his conduct. There may, however, be extraordinary cases in which
[both adjustments] may apply.” Id. at § 3E1.1 comment 4; United
States v. Shipley, 963 F.2d 56, 58 (5th Cir.1992).
Chung argues that this is just such an extraordinary
case. He notes that he did not obstruct justice after his guilty
plea, and that he voluntarily disclosed a concealed property that
the government was unaware of. He further argues that his failure
to submit the financial statement alone should not have prevented
him from receiving the adjustment.
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Chung cites United States v. Hopper, 27 F.3d 378 (9th
Cir.1994) to support his argument. In Hopper, a defendant
destroyed evidence and attempted to buy false alibis. The
defendant subsequently pled guilty and disclosed information about
his crime. The Ninth Circuit upheld an acceptance of
responsibility adjustment for the defendant despite his obstruction
of justice adjustment. It held that an extraordinary case exists
as long as the defendant “eventually” accepts responsibility for
the crime and stops obstructing justice. Id. at 383. The court
noted that the defendant’s obstruction of justice was not
methodical and continued, and it held that the district court did
not clearly err by applying both adjustments. Id. at 384.
At least two circuits have found Hopper inconsistent with
the Sentencing Guidelines. United States v. Honken, 184 F.3d 961,
967-973 (8th Cir.1999); United States v. Buckley, 192 F.3d 708, 710
(7th Cir.1999). They criticize the stated principle of Hopper that
makes “extraordinary” virtually all cases in which defendants stop
obstructing justice and abide by a guilty plea. Honken, 184 F.3d
at 970. “The fact that a defendant, having done everything he
could to obstruct justice, runs out of tricks, throws in the towel,
and pleads guilty does not make him a prime candidate for
rehabilitation.” Buckley, 192 F.3d at 711. These cases advocate
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a broader view of the circumstances to determine whether a case is
extraordinary. Id.; Honken, 184 F.3d at 968.
We agree with these circuits, and this case is a fine
example of Hopper’s limitations. Chung concealed over $ 640,000 in
assets from his bankruptcy creditors, and even made false
statements to the government in 1999 to hide the assets. Chung
signed a plea agreement with the government in November 1999 but
then refused to plead guilty. This forced the government to seek
the instant indictment. Chung continued to conceal assets until
his guilty plea just a few days before his trial. His late plea
forced the government to waste resources preparing for trial.
Under these circumstances, Chung’s “voluntary” disclosure of
another concealed property at that time and his apologetic letter
to the court hardly demonstrate an acceptance of responsibility.
Nor would we have any difficulty distinguishing Hopper in
any case. Even after his guilty plea, Chung failed to provide his
financial statement to the government until the morning of his
sentencing hearing. The plea agreement explicitly stated that by
doing so, Chung forfeited any right to the adjustment.
Furthermore, Chung utterly failed to provide a satisfactory
explanation for his late statement. The district court could
easily have interpreted Chung’s delay, along with his last minute
supplemental objections, as part of a continued and methodical
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effort to obstruct justice. Thus, reviewing deferentially for
clear error, we have no difficulty affirming the district court’s
ruling on this issue.
CONCLUSION
For the foregoing reasons, we AFFIRM Chung’s sentence.
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