After pleading guilty to one count each of money laundering and conspiracy to commit mail and wire fraud, a woman appealed the sentence imposed by the district judge on the grounds that it was “substantively unreasonable.” The Eighth Circuit Court of Appeals reviewed the sentence for abuse of discretion and affirmed it, finding that the district court considered all of the defendant’s arguments at sentencing and imposed a fair and sufficient sentence.
According to the appellate court’s opinion, the defendant, Kalin Thanh Dao, sold fraudulent investment programs to individuals through several corporate entities between 2006 and 2008, defrauding investors of millions of dollars. Dao executed a consent order with the state of Minnesota in December 2006, in which she agreed not to sell securities without a license. She apparently began selling investments again through a new corporation a month later. An undercover officer attended a meeting she conducted in Las Vegas in late 2007, in which she described a series of investments to a group of potential investors.
Based in part on a recording of that Las Vegas meeting made by the officer, prosecutors charged Dao with fifty counts of fraud and other offenses. She pleaded guilty to two counts in May 2009, reserving the right to make arguments at sentencing. The presentence investigation report (PSR) recommended imprisonment of 151 to 188 months, an amount within the Federal Sentencing Guidelines. The PSR also recommended restitution of $7,186,151.
The court adjusted the sentencing calculation down to a range of 121 to 151 months. Dao requested a sentence of seventy-two months, raising four arguments in favor of a downward variance. The court rejected all of her arguments.
Dao first challenged the applicability of the Guidelines to fraud-related offenses, claiming that judges apply them unevenly and inconsistently. The court denied any “wholesale revolt” of judges regarding using the Guidelines for white-collar crime cases.
Dao next argued that the Guidelines do not effectively serve as a deterrent for white-collar crime and therefore should not control her sentencing. The court ruled that imposing a low sentence would do even less for deterrence, and that the seriousness of her crime merited a serious sentence.
Dao’s third argument claimed she posed a low risk of recidivism due to age and lack of prior criminal history. Here, the court noted her activities after the Minnesota consent order, particularly her presentation in Las Vegas. It ruled that she had already recidivated once, so a longer sentence was necessary.
Finally, Dao argued that her medical condition, which included polio and post-polio syndrome, migraines, and neck and back problems, would make a long prison sentence unduly harsh. The court acknowledged that prison time would be different for her than for an able-bodied person, but did not concede that it would be more difficult. It found that the Bureau of Prisons would be capable of providing for her needs, and sentenced Dao to 144 months, plus the $7 million restitution amount.
On appeal, Dao argued that the sentence was “substantively unreasonable,” that the trial court failed to seriously consider her medical needs, that it placed too much emphasis on deterrence, and that its conclusions about her risk of recidivism were unreasonable. Because she did not allege any procedural errors by the trial court, the appellate court went directly to the “substantive reasonableness” of the sentence. It found that the sentence was within the Guidelines, and that the trial court’s analysis gave adequate consideration to Dao’s sentencing arguments. It therefore affirmed the court’s sentence.
Michael J. Brown, a board-certified criminal defense attorney, fights for the rights of Texas defendants, making certain that law enforcement and the courts abide by all the rules and procedures of the criminal justice system. To learn more about how we can assist you in your legal matter, contact us online or at (432) 687-5157.
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Embezzlement or Misappropration of Funds Can Be a Serious Crime in Texas Federal Courts, Texas Criminal Lawyer Blog, October 9, 2010
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