IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-50143

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee,

v.

SONG U. CHON, also known as The Korean; ALEJANDRO GARCIA–RICO;

MANUEL CARDOZA; YCL CORPORATION, doing business as The Gateway

Hotel, 

 Defendants - Appellants.

Appeals from the United States District Court

for the Western District of Texas

Before HIGGINBOTHAM, SMITH, and ELROD, Circuit Judges.

PER CURIAM:

A jury convicted Defendants-AppellantsSong U. Chon (“Chon”), Alejandro

Garcia–Rico (“Garcia–Rico”), Manuel Cardoza (“Cardoza”), and YCL

Corporation (“YCL”) of conspiring to smuggle, transport, and harbor illegal

aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I). A jury also convicted Chon

of money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i) and (B)(i), and

three counts of willfully aiding and assisting in the filing of a false tax return

in violation of 26 U.S.C. § 7206(2). Chon, Cardoza, and YCL each challenge

their convictions and Chon and Garcia–Rico challenge their sentences. For the

reasons that follow, we find no reversible error and, therefore, AFFIRM.

United States Court of Appeals

Fifth Circuit

F I L E D

April 10, 2013

Lyle W. Cayce

Clerk

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I. 

The facts of this case1involve the use of the Gateway Hotel, which is

located in close proximity to the United States-Mexico border in El Paso, Texas,

as a location to harbor illegal aliens beginning in 2003 and continuing through

May 2009. YCL owned the Gateway Hotel until Chon, one of the four directors

of YCL, purchased it in February 2004.

2 Chon, as owner of the Gateway Hotel,

worked on a daily basis in an office near the front desk. During the years in

question,the Gateway Hotel employed Armondo Arzate (“Arzate”) as its general

manager, Garcia–Rico as a front-desk clerk, and Jose Herrera (“Herrera”) as a

maintenance man. The Gateway Hotel also rented its restaurant area to JuoHsuan Hsu (“May”) who ran May’s Café.

Overwhelming, undisputed evidence was offered at trial that individuals

conducting alien-smuggling operations (“alien smugglers”), including Cardoza,

utilized the Gateway Hotel as a location to harbor illegal aliens who had just

crossed the border before they were transported to other locations in the United

States. The prosecution offered evidence that Chon, Garcia–Rico, Arzate,

Herrera, and May cooperated with the alien smugglers to facilitate their use of

the Gateway Hotel to harbor illegal aliens. For example, Herrera made

arrangements to allow illegal aliens to sneak into rooms at the Gateway Hotel

without law enforcement noticing and to wash the dirty clothing of the illegal

aliens once they made it into their rooms. At the phone requests of the alien

smugglers, Gateway Hotel employees would regularly agree to deliver food from

May’s Café directly to illegal aliens who were hiding inside hotel rooms. The

1 We view the facts in the light most favorable to the jury verdict as we must. E.g.,

United States v. Cantu–Ramirez, 669 F.3d 619, 622 n.1 (5th Cir. 2012).

2 Even after Chon purchased the Gateway Hotel in February 2004, all filings relating

to the business occurring at the Gateway Hotel, such as federal tax returns and hotel

occupancy records, continued to be made in the name of “YCL, Inc., doing business as the

Gateway Hotel.”

2

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front-desk clerks also facilitated the alien smuggler’s use of the Gateway Hotel

by allowing alien smugglers to pay for rooms used by illegal aliens. 

Immigration and Customs Enforcement (“ICE”) agents testified that during

several raids, Garcia–Rico, who was working at the front desk, called the rooms

where illegal aliens were located, presumably to warn the illegal aliens of the

raid. Law enforcement recorded numerous telephone calls between Gateway

Hotel employees and the alien smugglers, including a telephone call between

Garcia–Rico and an alien smuggler during which Garcia–Rico agreed to pay

$850 to transport an illegal alien who was staying at the Gateway Hotel out of

ElPaso. Moreover, evidence established that Garcia–Rico, Arzate, and Herrera

all received tips from the alien smugglers for their cooperation in harboring

illegal aliens in the Gateway Hotel. 

ICE conducted raids of the Gateway Hotel throughout the duration of the

alleged conspiracy, resulting in the discovery of hundreds of illegal aliens. 

Chon, who admitted that he knew illegal aliens were being housed at the

Gateway Hotel, was often present when ICE conducted raids of the Gateway

Hotel.

3 After more than 100 illegal aliens were removed from the Gateway

Hotel in a single raid in 2006, Arzate suggested to Chon that they change the

path of the business away from renting to illegal aliens. Chon rejected this

suggestion by responding that they had “no authority to request papers.” Chon

and Arzate occasionally discussed the credit situation of the alien smugglers

who were longstanding clients of the Gateway Hotel. Herrera, in a recorded

conversation with an alien smuggler, explained that Chon “was making a big

deal about” money an alien smuggler owed for rooms illegal aliens used at the

Gateway Hotel.

Chon was responsible for maintaining the books for the Gateway Hotel

3 Moreover, in 2007, the Department of Homeland Security sent Chon a letter notifying

him of the illegal activities occurring in his hotel and instructing him to “revoke the

permission for use of your property to those engaging in unlawful activities.” 

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throughout the duration of the conspiracy. Chon created two sets of books: one

that accurately portrayed the gross receipts, and another that substantially

understated gross receipts. To facilitate this underreporting of gross receipts,

Chon directed Arzate to set aside $300 to $400 each day from the Gateway

Hotel’s gross receipts. Chon also signed and prepared YCL’s 2005, 2006, and

2007 corporate tax returns. In each year, the gross receipts from the Gateway

Hotel were substantially understated.

In 2009, Chon, Garcia–Rico, Cardoza, YCL, Arzate, Herrera, and May,

among others, were charged with conspiring to smuggle, transport, and harbor

illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I) (“Count I”). Chon was

also charged with money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i)

and (B)(i) (“Count II”), and three counts of willfully aiding and assisting in the

filing of a false tax return in violation of 26 U.S.C. § 7206(2) (“Counts III, IV,

and V”). Arzate, Herrera, and May each pled guilty prior to trial. A jury found

Chon, Garcia–Rico, Cardoza, and YCL guilty on all charges. The district court

sentenced Chon to 120 months of imprisonment on Count I, 180 months on

Count II, which was an upward departure from the Guidelines range of 108 to

135 months, and 36 months on Counts III, IV, and V, all to be served

concurrently, and ordered Chon to pay restitution of $481,812.32. The district

court sentenced Garcia–Rico to fifty-one months’ imprisonment on Count I. 

Chon, Garcia–Rico, Cardoza, and YCL each timely filed a notice of appeal. 

II.

Chon, Cardoza, and YCLeach contend that there was insufficient evidence

to sustain their convictions.4 Each defendant properly preserved their

4

In addition to Chon’s challenges to the sufficiency of the evidence on each of his

convictions, Chon also challenges several instructions that the district court gave the jury.

Having considered the record and the parties’ arguments regarding the challenged jury

instructions, we conclude that Chon has failed to demonstrate that the district court

committed reversible error. Chon also argues that the district court abused its discretion by

refusing to provide a jury instruction relating to the charges for willfully preparing a tax

4

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insufficiency-of-the-evidence claim; therefore, we review each sufficiency

challenge de novo. United States v. Grant, 683 F.3d 639, 642 (5th Cir. 2012)

(citation omitted). Our review of the sufficiency of the evidence is “highly

deferential to the verdict.” United States v. Harris, 293 F.3d 863, 869 (5th Cir.

2002). “[V]iewing the evidence in the light most favorable to the prosecution,”

we consider whether “any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.

307, 319 (1979) (emphasis in original). We “accept[] all credibility choices and

reasonable inferences made by the trier of fact which tend to support the

verdict,” United States v. Asibor, 109 F.3d 1023, 1030 (5th Cir. 1997) (citation

omitted), and resolve “any conflicts in the evidence . . . in favor of the verdict.” 

United States v. Duncan, 919 F.2d 981, 990 (5th Cir. 1990) (citing United States

v. Clark, 741 F.2d 699, 703 (5th Cir. 1984)). 

A.

We first consider Chon, Cardoza, and YCL’s sufficiency challenges to their

conspiracy convictions. To obtain a conviction under § 1324(a)(1)(A)(v)(I), the

government must establish that the defendant:

[A]greed with one or more persons to transport or move illegal

aliens within the United States in furtherance of their unlawful

presence, or to conceal, harbor, or shield from detection such aliens,

knowingly or in reckless disregard of the fact that such aliens had

come to, entered, or remained in the United States in violation of

law. 

United States v. Ahmed Khan, 258 F. App’x 714, 717 (5th Cir. 2007)

(unpublished but persuasive).

In order to prove a conspiracy, the government must prove beyond a

reasonable doubt that an agreement existed to violate the law and each

return that is fraudulent as to any material matter. Because Chon’s proffered instruction was

not relevant to such a charge and, therefore, did not concern an important point in the trial,

the district court did not abuse its discretion in denying the proffered instruction. See, e.g.,

United States v. Jobe, 101 F.3d 1046, 1059 (5th Cir. 1996). 

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conspirator knew of, intended to join, and voluntarily participated in the

conspiracy. United States v. Davis, 226 F.3d 346, 354 (5th Cir. 2000). The

agreement to violate the law does not have to be “explicit or formal;” a tacit

agreement is sufficient. United States v. Freeman, 434 F.3d 369, 376 & n.5 (5th

Cir. 2005). The existence of an agreement to violate the law may be established

solely by circumstantial evidence and may be inferred from “concert of action.” 

See, e.g., United States v. Bieganowski, 313 F.3d 264, 277 (5th Cir. 2002). 

Voluntary participation in the conspiracy “may be inferred from a collocation of

circumstances,” and knowledge of the conspiracy “may be inferred from

surrounding circumstances.” Id. (citation and internal quotation marks

omitted). While a conspirator must knowingly participate in some way in the

larger objectives of the conspiracy, he does not need to know all details of the

unlawful enterprise or have a major role in the unlawful enterprise. Davis, 226

F.3d at 354. We consider in turn each defendant’s sufficiency challenge to their

conspiracy conviction.

1.

Chon primarily argues that the evidence is insufficient to prove that he

engaged in any conduct that manifested an intent to conceal, harbor, or shield

aliens from detection or that he agreed with one or more co-conspirators to

violate § 1324(a)(1)(A)(v)(I). We disagree. 

Viewing the evidence in the light most favorable to the prosecution, a

rational trier of fact could infer that Chon agreed with Arzate, among others, to

encourage alien smugglers to rent rooms for illegal aliens by providing a location

where illegal aliens could obtain food, shelter, and laundry services without the

need to leave their rooms at the Gateway Hotel. Chon’s contention that he

simply did not prevent illegal aliens from renting a room at the Gateway Hotel

is belied by his facilitation of their presence and his willingness to allow alien

smugglers to rent rooms on behalf of groups of illegal aliens. Although there

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was no direct evidence of an express agreement between Chon and the alien

smugglers, the concerted action among Chon, his employees, and the alien

smugglers supports an inference of such agreement. Moreover, Chon’s

participation in the conspiracy was supported by direct evidence, including

testimony regarding his willingness to offer credit to alien smugglers and his

subsequent complaints about alien smugglers who owed him money. There is

also strong circumstantial evidence that Chon was aware of the scope and

objectives of the conspiracy, such as his admitted presence at the Gateway

Hotel when over 100 illegal aliens were removed in a single raid and his daily

“skim” of $300 to $400 in cash receipts.

2.

Cardoza, although he concedes that he agreed with a co-conspirator to

transport at least two illegal aliens, argues that there was insufficient evidence

to prove that his actions were in furtherance of the two aliens’ illegal presence. 

This argument is without merit. Cardoza, in a recorded phone conversation

with another member of the conspiracy, explicitly agreed to move illegal aliens

from his home to a drop-off location and pay $900 to transport the illegal aliens

from El Paso to other cities in the United States. This recorded phone

conversation is direct evidence of Cardoza’s voluntary and knowing agreement

with another member of the conspiracy to participate in transporting illegal

aliens in violation of § 1324(a)(1)(A)(v)(I). Moreover, federal agents witnessed

Cardoza carry out this agreement by transporting and delivering two illegal

aliens to the agreed upon location. Finally, Cardoza’s contention that there is

no evidence that he agreed with any other co-conspirator is irrelevant in light

of the direct evidence of his agreement with one co-conspirator. Cardoza’s

conviction does not depend on evidence that he agreed to conspire directly with

Chon or a showing that he played a large part in the conspiracy. See Davis, 226

F.3d at 354.

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3.

YCL’s only argument on appeal is that there was insufficient evidence

that YCL’s agents’ or employees’ actions in furtherance of the conspiracy were

committed within their scope of employment. The record does not support

YCL’s argument. We have held that “a corporation is criminally liable for the

unlawful acts of its agents, provided that the conduct is within the scope of the

agent’s authority, whether actual or apparent.” United States v. Inv. Enters.,

Inc., 10 F.3d 263, 266 (5th Cir. 1993) (citing United States v. Bi–Co Pavers, Inc.,

741 F.2d 730, 737 (5th Cir. 1984)). Here, overwhelming evidence showed that

YCL operated the Gateway Hotel during the years in question, including tax

returns filed under the name “YCL, Inc., doing business as the Gateway Hotel.” 

Moreover, evidence established that Chon was the President and, accordingly,

an agent of YCL. Chon’s actions that form the basis for his conspiracy

conviction, as discussed above, also serve as the basis for YCL’s conviction

because Chon’s actions were within the scope of his authority as President of

YCL.

5

B.

We next consider the sufficiency of the evidence in support of Chon’s

conviction for money laundering, in violation of § 1956(a)(1)(A)(i) and (B)(i). To

establish this offense, the government must prove that the defendant: “(1)

conducted or attempted to conduct a financial transaction, (2) that the defendant

knew involved the proceeds of unlawful activity, and (3) that the defendant knew

was designed to conceal or disguise the nature, location, source, ownership, or

control of the proceeds of the unlawful activity.” Bieganowski, 313 F.3d at 279

5 YCL does not advance any argument that Chon’s actions should not be attributed to

YCL; rather, it takes the position that Chon was “uninformed about [the hotel employees’]

activities.” Given the overwhelming evidence supporting a finding that Chon was aware of

and encouraged his employee’s activities in the conspiracy, this argument is without merit.

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(citations omitted). “The substantive offense of money laundering requires that

the defendant knew that the funds in question represented the proceeds of

unlawful activity.” Id. at 278 (citing United States v. Burns, 162 F.3d 840, 847

(5th Cir. 1998)). Chon’s argument that the evidence was insufficient to prove

that he committed the offense of money laundering rests on his contention that

the evidence was insufficient to prove that he was aware of the “unlawful

activity,” namely the conspiracy to smuggle, transport, and harbor aliens. 

Because the evidence supports a finding that Chon knowingly participated in

the conspiracy, Chon’s challenge to the sufficiency of the evidence to support his

money-laundering conviction also fails. 

C.

Finally, Chon contends that the evidence is insufficient to prove that he

willfully aided and assisted in the filing of a false tax return. He asserts that

YCL was not the owner of the Gateway Hotel and, therefore, YCL had no

obligation to report any gross receipts from Gateway Hotel. Chon’s argument

fails because § 7206(2) does not require that the defendant overstate or

understate income, or have any filing requirement, for that matter. Rather, a

conviction is proper under § 7206(2) if a defendant willfully aids or assists in the

preparation of a return which is fraudulent or is false as to any material matter. 

26 U.S.C. § 7206(2). Even under Chon’s theory of the case that YCL did not own

the Gateway Hotel and therefore had no income to report, Chon willfully aided

and assisting in the filing of a tax return that fraudulently reported that YCL

was the proper entity to report the Gateway Hotel income. Accordingly, the

evidence is sufficient to support the guilty verdict on each count of willfully

aiding and assisting in the filling of a false tax return.

III.

Chon and Garcia–Rico also challenge the reasonableness of their

sentences. We review sentences for reasonableness under an abuse-of9

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discretion standard. Gall v. United States, 552 U.S. 38, 46 (2007). In

conducting this review, we “must first ensure that the district court committed

no significant procedural error, such as failing to calculate (or improperly

calculating) the Guidelines range . . . or failing to adequately explain the chosen

sentence—including an explanation for any deviation from the Guidelines

range.” Id. at 51. If the district court’s sentencing decision is procedurally

sound, we “then consider the substantive reasonableness of the sentence

imposed under an abuse-of-discretion standard.”6 Id. 

A.

Chon and Garcia–Rico both argue that it was procedural error for the

district court to impose certain enhancements to their offense levels. We review

de novo a district court’s application and interpretation of the Guidelines. 

United States v. Solis–Garcia, 420 F.3d 511, 514 (5th Cir. 2005). The factual

findings that a district court makes in support of its decision to apply an

enhancement are reviewed for clear error. United States v. Mata, 624 F.3d 170,

174 (5th Cir. 2010). “There is no clear error if the district court’s finding is

plausible in light of the record as a whole.” United States v. Juarez–Duarte, 513

F.3d 204, 208 (5th Cir. 2008) (citation omitted). Because Chon and Garcia–Rico

both objected to the enhancements challenged on appeal, we review their

challenges to the Guidelines enhancements for harmless error. United States v.

Olano, 507 U.S. 725, 734 (1993). An error is harmless if it “does not affect

substantial rights.” Fed. R. Crim. P. 52(a). The government bears the burden

of showing that an error was harmless beyond a reasonable doubt. Olano, 507

6 Garcia–Rico did not argue that his fifty-one-month sentence was substantively

unreasonable. Chon also did not clearly argue that his 180-month sentence on the moneylaundering conviction was substantively unreasonable; however, several statements in his

briefing indicate that the district court “did not properly consider” the 18 U.S.C. § 3553(a)

factors. We have considered the entirety of the record and Chon’s limited argument on this

issue and find no basis for overturning the district court’s discretion in selecting Chon’s

sentence.

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U.S. at 734.

1.

Garcia–Rico’s only claim on appeal is that it was error for the district court

to impose a three-level enhancement to his offense level pursuant to U.S.S.G.

§ 3B1.1(b) for his alleged role as a manager or supervisor of the conspiracy to

smuggle, transport, and harbor illegal aliens in violation of 8 U.S.C.

§ 1324(a)(1)(A)(v)(I). Section 3B1.1(b) authorizes a three-level enhancement to

the defendant’s offense level if the “defendant was a manager or supervisor (but

not an organizer or leader) and the criminal activity involved five or more

participants or was otherwise extensive.” U.S.S.G. § 3B1.1(b). The commentary

to § 3B1.1(b) states that to qualify for an adjustment based on a role as a

manager or supervisor:

[T]he defendant must have been the . . . manager[] or supervisor of

one or more other participants. An upward departure may be

warranted, however, in the case of a defendant who did not

organize, lead, manage, or supervise another participant, but who

nevertheless exercised management responsibility over the

property, assets, or activities of a criminal organization.

U.S.S.G. § 3B1.1 cmt. n.2. Garcia–Rico contends the district court’s finding that

he was a manager or supervisor was clearly erroneous because he did not

manage or supervise any other participants or exercise management

responsibilities over the property, assets, or activities of a criminal organization. 

This argument fails in light of the unrebutted facts contained in Garcia–Rico’s

pre-sentence report (“PSR”), which the district court adopted, that plausibly

support the conclusion that Garcia–Rico was a manager or supervisor of the

criminal activity in this case. See United States v. Harris, 702 F.3d 226, 230

(5th Cir. 2012) (explaining that a district court “may adopt the facts contained

in a [PSR] without further inquiry if those facts have an adequate evidentiary

basis with sufficient indicia of reliability and the defendant does not present

rebuttal evidence or otherwise demonstrate that the information in the PSR is

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unreliable.” (alteration in original) (quoting United States v. Trujillo, 502 F.3d

353, 357 (5th Cir. 2007))). The PSR contained information that Garcia–Rico

received wired monetary payments from alien smugglers that were then used

to smuggle, transport, and harbor illegal aliens. This fact, which Garcia–Rico

failed to rebut or otherwise demonstrate was unreliable, directly supports a

finding that Garcia–Rico exercised management responsibility over the

property of the illegal harboring conspiracy. Accordingly, the district court did

not err, much less clearly err, by adopting the findings and recommendations

in the PSR to apply the three-level manager or supervisor enhancement.

2.

Chon raises numerous issues related to the calculation of his Guidelines

range. Most of the issues—specifically, the alleged errors in calculating the

adjusted offense level for Count I and Counts III, IV, and V—are harmless

because they did not affect Chon’s sentencing range which, pursuant to U.S.S.G.

§ 3D1.3(a), was driven by Chon’s Count II money-laundering conviction because

it carried the greatest adjusted offense level. See United States v. Ramos, 71

F.3d 1150, 1158 n.27 (5th Cir. 1995). Only two challenges relate to

enhancements that the district court imposed relating to the money-laundering

conviction.7

 

Chon first argues that the district court erred by imposing a two-level

enhancement pursuant to U.S.S.G. § 2S1.1(b)(3) based on its finding that Chon

utilized sophisticated means in committing the money-laundering offense. 

While Chon concedes that he maintained two sets of financial records and

7 Chon also argues that the district court erred by adopting the PSR’s finding that the

“grand total of laundered monetary instruments derived from the proceeds of the smuggling

and harboring undocumented aliens is $1,394,268.49.” The calculation of the value of the

laundered funds is only relevant to the calculation of the Guidelines range if the base offense

level is selected pursuant to § 2S1.1(a)(2)—which did not occur here. Accordingly, we conclude

that any error in calculating the total value of laundered funds was harmless because the

enhancement did not affect Chon’s Guidelines range.

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“skimmed” income on a daily basis, he argues that these actions do not

constitute “sophisticated means” as defined in the sentencing commentary. We

disagree. Maintaining two sets of books, skimming income on a daily basis, and

disguising alien-smuggling proceeds as “parking income” in an attempt to make

the criminally derived funds appear legitimate are sufficiently complex to

support the enhancement here. See United States v. Stewart, 213 F. App’x 291,

293 (5th Cir. 2007) (unpublished but persuasive) (concluding that a sophisticated

means enhancement was proper because the means utilized—instructing a

bookkeeper to generate separate books to support misstatements—were more

complex than simply making misstatements without supporting books). 

Second, Chon argues that the district court clearly erred by imposing a

four-level enhancement pursuant to U.S.S.G. § 3B1.1(a) based on its finding that

Chon was a leader or organizer of the money-laundering offense. Specifically,

Chon argues that “[t]he absence of evidence that Chon led anyone or organized

any alien smuggling activity . . . precludes a finding that he was a

‘leader/organizer’ of the money laundering offense of which he was convicted.” 

The record, which includes evidence that Chon exercised decision-making

authority, claimed a larger share of the fruits of the crime, and had a high

degree of control and authority over others, belies Chon’s assertion. See

U.S.S.G. § 3B1.1 cmt. n.4 (providing examples of factors that distinguish “a

leadership and organizational role from one of mere management or

supervision”). The district court’s finding that Chon was a leader or organizer

of the criminal activity is plausible in light of the record as a whole.

B.

Chon also contends that the district court committed procedural error by

failing to adequately explain its selection of an 180-month sentence on the

money-laundering offense, which constituted an upward departure of forty-five

months. Chon did not object before the district court as to the procedural or

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substantive reasonableness of his sentence. Because Chon failed to raise an

objection below, review is for plain error. See United States v.

Mondragon–Santiago, 564 F.3d 357, 361 (5th Cir. 2009). To succeed on plainerror review, Chon must show a clear or obvious forfeited error that affected his

substantial rights. Id. We have discretion to correct the error only if it

“seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. (quotation omitted).

Section 3553(c) requires that: (1) a district court at sentencing, in open

court, state the reasons for its imposition of the particular sentence; and (2) if

the sentence is outside the Guidelines range, a district court must state the

specific reason for the departure and must state those reasons “with specificity

in a statement of reasons form.” 18 U.S.C. § 3553(c); see also

Mondragon–Santiago, 564 F.3d at 362 (“While sentences within the Guidelines

require little explanation, more is required if the parties present legitimate

reasons to depart from the Guidelines.” (quotation and internal citation

omitted)). At Chon’s sentencing hearing, the district court made only a single

passing reference to § 3553(a) and did not provide any explanation for the

sentence it selected or for its decision to depart from the advisory guideline

range on Count II. The district court did, however, indicate on the statement

of reasons that it was departing “from the advisory guideline range for reasons

authorized by the sentencing guidelines manual,” and then selected the box

indicating that the sentence above the advisory guideline range was based upon

the “government motion for upward departure.” 

Considering the district court’s single passing reference to the § 3553(a)

factors and lack of any explanation for the upward departure, besides the

indication on the statement of reasons that it was based on the government’s

motion for an upward departure, the district court committed procedural error. 

See id. at 363–64 (finding procedural error where the district court failed to

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adequately explain its reasons for a within-Guidelines sentence); United States

v. Tisdale, 264 F. App’x 403, 411–12 (5th Cir. 2008) (finding procedural error

where the district court “gave no indication it had considered [the parties’]

§ 3553(a) arguments or any of the § 3553(a) factors” in selecting a withinGuidelines sentence). The second element of the plain-error test is also met in

this case because “the law requiring courts to explain sentences is clear.” 

Mondragon–Santiago, 564 F.3d at 364 (citing United States v. Mares, 402 F.3d

511, 521 (5th Cir. 2005)). 

We conclude, however, that Chon has failed to demonstrate that the error

affected his substantial rights. In United States v. Gore, we concluded that a

district court’s failure to explain its reasons for an upward departure in open

court did not affect the defendants’ substantial rights because the statement of

reasons referred to the PSR, which provided reasons for the departure. 298

F.3d 322, 324–26 (5th Cir. 2002). We reasoned that because the ultimate goal

of § 3553(c) is to permit effective appellate review of sentencing, the district

court’s reference to the PSR was sufficient to allow effective review of the basis

for departure. Id. at 325–26; see also United States v. Fajardo, 469 F. App’x

393, 395 (5th Cir. 2012) (unpublished but persuasive) (same); United States v.

Silva–Torres, 293 F. App’x 316, 319–20 (5th Cir. 2008) (unpublished but

persuasive) (same). Here, the district court, in the written statement of

reasons, indicated that the upward departure was based upon the “government

motion for upward departure.” The government’s motion for upward departure

extensively discussed the rationale for recommending that the district court

sentence Chon to the statutory maximum for each count of conviction. Because

the district court’s reference to the government’s motion allows for review of the

basis for the upward departure in this case, Chon is unable to demonstrate that

the court’s failure to explain its reasons for departing at sentencing affected his

substantial rights. See Gore, 298 F.3d at 325–26.

15

 Case: 11-50143 Document: 00512204836 Page: 15 Date Filed: 04/10/2013
No. 11-50143

IV.

For the foregoing reasons, the Defendants-Appellants’ convictions and

sentences are AFFIRMED.

16

 Case: 11-50143 Document: 00512204836 Page: 16 Date Filed: 04/10/2013