US v. Dae Ko

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UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:15-cr-00109-LO-5 Copies to all parties and the district court/agency. [1000052173].. [16-4284]

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Appeal: 16-4284 Doc: 32 Filed: 03/30/2017 Pg: 1 of 5 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-4284 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAE HYUCK KO, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Liam O’Grady, District Judge. (1:15-cr-00109-LO-5) Submitted: March 21, 2017 Before MOTZ and Circuit Judge. TRAXLER, Decided: Circuit Judges, and March 30, 2017 DAVIS, Senior Affirmed by unpublished per curiam opinion. Douglas A. Steinberg, LAW OFFICES OF DOUGLAS A. STEINBERG, Alexandria, Virginia, for Appellant. Dana J. Boente, United States Attorney, Grace L. Hill, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 16-4284 Doc: 32 Filed: 03/30/2017 Pg: 2 of 5 PER CURIAM: Dae prison Hyuck Ko sentence appeals for from his conspiracy to conviction commit and bank 180-month fraud, in violation of 18 U.S.C. § 1349 (2012), 18 counts of bank fraud, in violation of 18 U.S.C. §§ 2, 1344 (2012), and four counts of aggravated identity theft, in violation of 18 U.S.C. §§ 2, 1028A (2012). We affirm. Dae Hyuck Ko challenges the district court’s denial of his Fed. R. Crim. P. 29 motion for judgment of acquittal, which we review de novo. Cir. 2016). United States v. Clarke, 842 F.3d 288, 297 (4th Dae Hyuck Ko contends that some of the testimony supporting his conspiracy and bank fraud convictions came from three coconspirators whose answers to certain questions at trial rendered them “discredited sources.” However, it is the exclusive province of the jury “to weigh the credibility of the witnesses, and to resolve any conflicts in the evidence.” United States v. Dinkins, 691 F.3d 358, 387 (4th Cir. 2012). Accordingly, appeal. we will not make credibility determinations on United States v. Cabrera-Beltran, 660 F.3d 742, 754 (4th Cir. 2011). Next, should have provided a multiple conspiracies instruction to the jury. Dae Hyuck Ko Ko did argues not that request the this district court instruction at the charge conference, nor did he object to its omission; accordingly, we 2 Appeal: 16-4284 Doc: 32 Filed: 03/30/2017 review only for plain error. Pg: 3 of 5 United States v. Brown, 202 F.3d 691, 698 n.13 (4th Cir. 2000). “[A] multiple conspiracy instruction is not required unless the proof at trial demonstrates that the defendant was involved only in a conspiracy Stockton, internal separate charged 349 F.3d quotation conspiracy in the 755, to indictment.” 762 marks unrelated (4th Cir. omitted). the United 2003) The overall States (brackets failure to v. and give a multiple conspiracies instruction is reversible error only where the defendant establishes substantial prejudice by showing that “the evidence of multiple conspiracies [was] so strong in relation to that of a single conspiracy that the jury probably would have acquitted on the conspiracy count had it been given a cautionary multiple-conspiracy instruction.” United States v. Bartko, 728 F.3d 327, 344 (4th Cir. 2013) (internal brackets and quotation marks omitted). Here, the evidence adduced at trial supported a finding that Dae Hyuck Ko was involved in the single conspiracy charged in the indictment. articulate any Moreover, prejudice Dae resulting Hyuck from multiple conspiracies jury instruction. that the district court’s decision instruction was not erroneous. 3 Ko the has failed omission of to the Therefore, we conclude not to provide such an Appeal: 16-4284 Doc: 32 Finally, sentence, Filed: 03/30/2017 Dae which deferential Hyuck we Ko review Pg: 4 of 5 challenges for abuse-of-discretion the Sentencing length reasonableness, standard. States, 552 U.S. 38, 51-52 (2007). calculated the of his applying Gall v. a United The district court properly Guidelines range to be 210 to 262 months for the first 19 counts, plus a mandatory consecutive sentence of 24 months for the remaining 4 counts. § 1028A(a)(1), (b)(2), (4), (c)(5). below-Guidelines range substantively reasonable. 295, 306 (4th Cir. See 18 U.S.C. We presume Dae Hyuck Ko’s sentence of 180 months to be United States v. Louthian, 756 F.3d 2014). Dae Hyuck Ko can rebut that presumption only “by showing that the sentence is unreasonable when measured against the 18 U.S.C. § 3553(a) factors.” Id. Dae Hyuck Ko complains that three of his codefendants, each of whom sentences. sentences, similarly guilty. purposes.” pleaded guilty, received substantially shorter A court’s obligation to avoid imposing disparate however, does individuals They are who not not go require to the trial similarly court and “to those situated for sentence who plead sentencing United States v. Susi, 674 F.3d 278, 288 (4th Cir. 2012); see 18 U.S.C. § 3553(a)(6). Moreover, the district court found that the codefendants were less culpable than Dae Hyuck Ko, who was “the brains” of the conspiracy. 4 Thus, we conclude Appeal: 16-4284 Doc: 32 Filed: 03/30/2017 Pg: 5 of 5 that Dae Hyuck Ko has failed to rebut the presumption that his sentence was reasonable. Accordingly, we affirm the judgment of the district court. We dispense contentions with are oral argument adequately because presented in the facts and the materials legal before this court and argument would not aid the decisional process. AFFIRMED 5

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