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United States v. Dang

United States Court of Appeals, Eighth Circuit

October 22, 2018

United States of America Plaintiff- Appellee
v.
Trung Dang Defendant-Appellant

          Submitted: May 18, 2018

          Appeal from United States District Court for the Eastern District of Arkansas - Little Rock

          Before SMITH, Chief Judge, BEAM and COLLOTON, Circuit Judges.

          SMITH, CHIEF JUDGE.

         Trung Dang appeals his revocation sentence of 60 months' imprisonment, arguing that the district court[1] procedurally erred by (1) failing to consider the Chapter 7 policy statement range of 8 to 14 months' imprisonment; (2) relying exclusively on unproven, disputed allegations at sentencing; and (3) giving too much weight to the seriousness of the conduct forming the basis of his violation. He also argues that his sentence is substantively unreasonable because the court considered improper sentencing factors and imposed a sentence longer than necessary to satisfy the goals of sentencing. We affirm.

         I. Background

         In 2005, Dang was sentenced in the Western District of Arkansas to 92 months' imprisonment for a drug offense. He began a five-year term of supervised release in 2011. His supervision was transferred to the Eastern District of Arkansas in 2015. The government filed a superseding petition to revoke his supervised release in 2017. The petition alleged that Dang had pleaded guilty in state court to first degree computer child pornography and computer exploitation of a child (first offense). According to the petition, the victim of his offense was a minor female in his care. She claimed that he took nude pictures and videos of her without her knowledge, sent her nude photos of herself, made sexual advances toward her, and touched her inappropriately. The state court sentenced Dang to 20 years' imprisonment. The United States Probation Office filed a violation memorandum with the district court that substantially tracked the language in the petition.

         At the revocation hearing, Dang admitted that he "violated the crimes of computer child pornography and computer exploitation of a child in the first degree, first offense. All the other information contained in that paragraph [in the petition alleging commission of a criminal offense], we deny." Tr. of Revocation Hr'g at 2, United States v. Dang. Case No. 4:15-cr-00111-JM (E.D. Ark. May 31, 2017), ECF No. 25. The government declined to put on any further proof of the allegations, stating, "I think the conviction itself is satisfactory, Your Honor." Id. at 3. The court held that revocation was mandatory, as Dang was charged with a Grade B violation. The court also acknowledged that Dang had a criminal history category of III.

         Dang requested a Guidelines sentence to run concurrent with his state sentence. The government asked that any sentence run consecutive to the underlying state sentence. The district court stated, "After a complete review of the facts, the violation memorandum, which is the basis for this revocation, and after considering the factors listed in 18 U.S.C. Section 3553, I am imposing [a prison sentence] . . . of five years with no term of supervised release to follow." Id. at 6. In explaining the basis of the sentence, the court stated the following regarding Dang's conduct:

Mr. Dang's current term of supervised release commenced on September the 21st of 2011. He was under federal supervision and believed to be in compliance at the time of his arrest for the above-referenced new criminal conduct in which he exploited a minor in his care. Without the victim's consent, Mr. Dang took nude photographs and videos and later used them in an attempt to coerce the forced sexual conduct of the victim. The harm Mr. Dang caused his victim is immeasurable and long-lasting. Considering Mr. Dang was willing to commit this egregious act while under federal supervision indicates pervasive criminal thinking and sexual deviancy. Mr. Dang's technical compliance may have served as cover to avoid closer oversight of the probation office.

Id. at 9-10. Pursuant to U.S.S.G. § 7B1.3(f), the court ordered the sentence to run consecutive to the state term of imprisonment. The district court determined that it was prohibited from imposing a term of supervised release. Nonetheless, it announced terms of supervised release to take effect if its authority on the matter changed.

         Dang objected on the basis that the court had varied or departed upward "for reasons that [h]e d[id] not know or agree with" and that the sentence was based on facts not supported by evidence presented to the court. Revocation Tr. at 10. He also objected to the term of imprisonment and conditions of possible supervised release as unreasonable. Dang timely appeals following entry of judgment.

         II. Discussion

         On appeal, Dang argues that the district court procedurally erred by (1) failing to consider the Chapter 7 policy statement range of 8 to 14 months' imprisonment; (2) relying exclusively on unproven, disputed allegations at sentencing; and (3) giving too much weight to the seriousness of the conduct forming the basis of his violation. He also argues that his sentence is substantively unreasonable because the court considered improper sentencing factors and imposed a sentence longer than necessary to satisfy the goals of sentencing.

         "We review the district court's imposition of a revocation sentence for abuse of discretion, first questioning whether the court committed procedural error and then ensuring the sentence was substantively reasonable." United States v. Pitts, No. 17-1174, 2018 WL 3202775, at *1 (8th Cir. June 29, 2018) (citing United States v. Richey, 758 F.3d 999, 1001 (8th Cir. 2014)). "A district court abuses its discretion when it (1) fails to consider a relevant factor that should have received significant weight; (2) gives significant weight to an improper or irrelevant factor; or (3) considers only the appropriate factors but in weighing those factors commits a clear error of judgment." United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (cleaned up).

         A. Procedural Error

         1. Consideration of ...


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