United States v. Kim

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-10289
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

DO KYUN KIM,

Defendant - Appellant

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:18-CR-233-1

Before BARKSDALE, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM:
*

Regarding his guilty-plea conviction for distribution of a mixture and
substance containing a detectable amount of heroin, in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(C), Do Kyun Kim contends solely that his within-
Sentencing-Guidelines-advisory-range sentence of, inter alia, 135 months’
imprisonment was substantively unreasonable.

*
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
United States Court of Appeals
Fifth Circuit
FILED
January 28, 2020

Lyle W. Cayce
Clerk
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No. 19-10289
2
Although post-Booker, the Guidelines are advisory only, the district
court must avoid significant procedural error, such as improperly calculating
the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 46, 51
(2007). If no such procedural error exists, a properly preserved objection to an
ultimate sentence is reviewed for substantive reasonableness under an abuse-
of-discretion standard. Id. at 51; United States v. Delgado-Martinez, 564 F.3d
750, 751–53 (5th Cir. 2009). In that respect, for issues preserved in district
court, its application of the Guidelines is reviewed de novo; its factual findings,
only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751,
764 (5th Cir. 2008). Kim’s objecting to the substantive reasonableness of his
sentence, following its imposition, preserved his challenge on appeal.
“A discretionary sentence imposed within a properly calculated
[G]uidelines range is presumptively reasonable.” United States v. Campos-
Maldonado, 531 F.3d 337, 338 (5th Cir. 2008) (citations omitted). “The
presumption is rebutted only upon [defendant’s] showing that the sentence
does not account for a[n] [18 U.S.C. § 3553(a)] factor that should receive
significant weight, it gives significant weight to an irrelevant or improper
factor, or it represents a clear error of judgment in balancing sentencing
factors.” United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009) (citation
omitted). These factors include, as Kim contends is essential in this instance,
“the need to avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct”. 18 U.S.C.
§ 3553(a)(6).
At the sentencing hearing, Kim urged the court to vary downward from
the advisory Guidelines sentencing range (135–168 months’ imprisonment) the
court adopted because: his Guidelines range was based on drug quantities he
admitted when he cooperated with authorities immediately following his
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No. 19-10289
3
arrest; if he had waited to cooperate until speaking with an attorney, the
Government would have entered a cooperation agreement with him; pursuant
to Guideline § 1B1.8(a), such an agreement would have prevented the court
from using the drug quantities he discussed with authorities to calculate his
Guidelines range; and it would have been much lower (57–71 months’
imprisonment) without those drug quantities. The court considered this claim;
but, in weighing the § 3553(a) sentencing factors and all information presented
to it for sentencing, it concluded that “a sentence within the [G]uideline[s]
range [was] required for the sentencing factors contemplated by [18 U.S.C. §]
3553(a) to be satisfied”.
On the other hand, based on its consideration of those factors, the court
sentenced Kim “at the very bottom of the advisory [G]uideline[s] range, taking
into account all of the things that have been presented to the Court”. Kim
objected to the sentence as, inter alia, substantively unreasonable.
Regarding his substantive-unreasonableness claim, Kim has not
provided any evidence, beyond his own speculation, showing the Government
would have offered him a cooperation agreement, pursuant to Guideline
§ 1B1.8(a), had he delayed in cooperating. Nor has he showed the court failed
to consider “the need to avoid unwarranted sentencing disparities” or give
proper weight to the other § 3553(a) factors in imposing his sentence. See 18
U.S.C. § 3553(a); Cooks, 589 F.3d at 186 (citation omitted). His “disagreement
with the propriety of the sentence imposed does not suffice to rebut the
presumption of reasonableness that attaches to a within-[G]uidelines
sentence”. United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010) (citations
omitted).
AFFIRMED.
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