The Honorable James E. Shadid, United States District Court 

for the Central District of Illinois, sitting by designation.

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-1347

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JIN HUA DONG,

Defendant-Appellant.

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 08 CR 371-2—James B. Zagel, Judge.

ARGUED FEBRUARY 23, 2012—DECIDED MARCH 27, 2012

Before FLAUM and TINDER, Circuit Judges, and SHADID,

District Judge.

SHADID, District Judge. Jin Hua Dong pled guilty to

participating with his co-defendants in a scheme

to commit bank fraud by knowingly obtaining multiple

equity lines of credit secured by the same property. He
2 No. 11-1347

was sentenced to a term of 51 months and three years

of supervised release, as well as ordered to pay $337,250

in restitution. On appeal, Dong challenges only the propriety of the restitution award, arguing that he cannot

be ordered to pay restitution for the relevant conduct

of other co-defendants. We disagree that this is the case.

I. BACKGROUND

In April 2008, Dong was in the United States illegally

when he traveled from Los Angeles to Chicago to meet

with Yoon Sae Kim. Dong agreed to help Kim obtain

home equity lines of credit (HELOC) for properties to

be purchased to serve as collateral for the loans. On

April 3, 2008, at the direction of Kim, Dong purchased

a single-family home located at 4066 South Lake Park,

Chicago, Illinois, for $675,000 for the purpose of using

the property to obtain multiple HELOC loans. He

made a $200,000 down-payment on the property after

receiving the money from Kim. Dong then helped Kim

submit a mortgage application to Countrywide Bank

to finance the purchase of the Lake Park property. The

application contained several false statements made

with the intent to induce Countrywide to approve the

loan, including: (1) that Dong was the true purchaser

when in fact he was a nominee purchaser for Kim;

(2) that Dong intended to occupy the property; and (3) that

Dong had certain employment, income, and assets.

Countrywide ultimately approved the mortgage loan

for $472,250.

Dong simultaneously applied for HELOC loans from

National City Bank and LaSalle Bank, both secured by
No. 11-1347 3

the Lake Park property. In doing so, he concealed the

other loan applications from the lenders, creating the

appearance that each lender was the only lender providing a HELOC loan on the property. These applications contained false representations as to Dong’s citizenship, social security number, employment history,

and salary. In the case of the application to LaSalle

Bank, the application also contained a copy of the original purchase mortgage and settlement statement

that had been altered to falsely reduce the amount of

the original mortgage on the property by $300,000. On

May 5, 2008, Dong accompanied Kim and Sung Ar Kim

to LaSalle Bank for the closing on the $350,000 line of

credit secured by the Lake Park property. Dong was

scheduled to receive the funds from the closing on May 9,

2008, but no funds were ultimately received because

he was arrested prior to the disbursement. The Lake Park

property was sold in December 2009 for $135,000,

resulting in a $337,250 loss to Countrywide.

Dong pled guilty to Counts Seven and Eight of the

Indictment, which charged him with engaging in a

scheme with his co-defendants to defraud financial institutions and to obtain monies and funds owned by

and under the custody and control of the financial institutions by means of materially false and fraudulent

pretenses, representations, promises, and omission in

violation of 18 U.S.C. § 1344.

Prior to sentencing, the Probation Office issued a

presentence report calculating an advisory guideline

range of 51 to 63 months and a criminal history category
4 No. 11-1347

of I. The total offense level was projected to be 24

based in part on a 16-level increase as a result of a statement in Dong’s Plea Declaration that the total intended

loss was between $1,000,000 and $2,500,000 given the

$472,250 mortgage from Countrywide and the $784,900

in HELOC loans requested from National City and

LaSalle Bank, less the $135,000 obtained from the sale

of the Lake Park property.

At sentencing, Dong seized upon the presentence report’s characterization of the Countrywide mortgage

as “relevant conduct” and argued that he could not be

ordered to pay restitution for that amount. He also

objected that the $337,250 loss to Countrywide was overstated given the significant difference between the purchase price of $675,000 and the sale price two years later

of $135,000. Excluding this amount, Dong argued,

would result in an offense level increase of only 14 levels

and an advisory guideline range of 41 to 51 months. On

January 14, 2011, the district court appears to have accepted Dong’s argument and sentenced him as if there

was only a 14-level increase and an offense level of

22 rather than 24. Dong was sentenced to a term of

51 months in prison on each of Counts Seven and Eight

to be served concurrently followed by three years of

supervised release. He was also found jointly and

severally liable with his co-defendants for $337,250 in

restitution, which represents the $472,250 mortgage

from Countrywide, minus the $135,000 recovered when

the property was sold.

On appeal, Dong challenges only the restitution

portion of his sentence. Specifically, he contends that
No. 11-1347 5

the district court erred in ordering restitution for

relevant conduct to which he did not plead guilty, as

the two transactions to which he pled guilty resulted in

no actual loss. He further asserts that the restitution

amount exceeds the actual loss caused by his jointlyundertaken criminal activity and was not reasonably

foreseeable to him. 

II. DISCUSSION

The district court’s interpretation of the Sentencing

Guidelines is reviewed de novo, and its factual findings

are reviewed for clear error. Accordingly, the challenged

calculation of the restitution amount in this case is reviewed for clear error and will be reversed “only if the

district court used inappropriate factors or did not

exercise discretion at all.” United States v. Frith, 461 F.3d

914, 919 (7th Cir. 2006).

Initially, the Court notes that the argument regarding

the amount of the Countrywide mortgage being

included in the loss calculation is different from the

argument that the $337,250 figure was overstated

because the sale price was unreasonably low. In fact,

Dong’s Plea Declaration also included a projected sentencing estimate that contained an offense level increase

of 16 for an intended loss between $1,000,000 and

$2,500,000, which encompassed amounts for the initial

purchase mortgage from Countrywide and the two

HELOC loans from National City and LaSalle Bank. By

admitting that the Countrywide mortgage was properly

included in the loss computation, Dong essentially relin-
6 No. 11-1347

quished his right to make this argument as a tactical

choice in favor of the stronger argument regarding overstatement of loss. Failure to raise this argument before

the district court results in the waiver of that argument

on appeal. United States v. Murray, 395 F.3d 712, 717

(7th Cir. 2005).

Even assuming arguendo that the argument has not

been waived, the restitution award does not support

a finding of clear error. Dong is correct that a loss to

Countrywide was not specifically set forth in Counts

Seven and Eight of the Indictment. However, he fails to

acknowledge that fraud causing a loss to Countrywide

was expressly stated in the description of the scheme

contained in paragraphs 1 through 67 of Count One,

which was incorporated by reference in Counts Seven

and Eight. Paragraphs 56 and 57 of the Indictment allege

that part of the scheme involved Dong making false

statements to Countrywide in order to obtain the

initial purchase mortgage for the Lake Park property,

which was then used as collateral to support fraudulent

equity loans.

Moreover, in his Plea Declaration, Dong specifically

admitted:

Beginning no later than in or around April, 2008,

and continuing until at least on or about May 9, 2008,

in the Northern District of Illinois, Eastern Division,

defendant participated with his co-defendants Yoon

Sae Kim, Sung Ar Kim, Myung Ja Pak, and Yoo Jung

Lee, in a scheme to defraud certain financial institutions and to obtain monies and funds owned by
No. 11-1347 7

and under the custody and control of certain

financial institutions by means of materially false

and fraudulent pretenses, representations, promises

and omissions.

In or around April, 2008, defendant JIN HUA

DONG met with Yoon Sae Kim in the Chicago area.

Defendant JIN HUA DONG understood at the time

that applying for more than one loan on a single

property without informing each bank of this was

illegal . . . .

On or about April 3, 2008, defendant JIN HUA

DONG purchased a single-family home located at

4066 South Lake Park, Chicago, Illinois, (hereinafter

“the Lake Park property”) for $675,000 for the

purpose of using it fraudulently to obtain multiple

HELOC loans. Defendant JIN HUA DONG purchased and financed the Lake Park property at the

direction and under the control of Yoon Sae Kim.

Defendant JIN HUA DONG made a down-payment

of approximately $200,000 on the Lake Park property. Defendant JIN HUA DONG had received

the $200,000 down-payment from Yoon Sae Kim.

Defendant JIN HUA DONG helped to facilitate

Yoon Sae Kim’s submitting of a mortgage loan application to Countrywide Bank to finance the

purchase of the Lake Park property which falsely

represented that JIN HUA DONG was the true purchaser of the property. In fact, defendant JIN HUA

DONG was acting as nominee purchaser for Yoon

Sae Kim. In addition, the mortgage loan application
8 No. 11-1347

for the Lake Park property was fraudulent in that

it contained false statements, including statements

regarding the purchaser’s intent to occupy the property, employment, income and assets, which were

intended to induce Countrywide Bank to approve

a mortgage loan. Countrywide Bank ultimately approved the mortgage loan.

Accordingly, Dong clearly pled guilty to the conduct

that resulted in the actual loss of $337,250 to Countrywide, and his assertion that he is being held responsible

for an amount of restitution that is based on “relevant

conduct” or conduct that was beyond the scope of his

plea agreement is plainly incorrect. As set forth above,

Dong’s Plea Declaration also contained a projected sentencing estimate of an intended loss between $1,000,000

and $2,500,000, which included amounts for the initial

purchase mortgage from Countrywide. This constitutes an affirmative acknowledgment by Dong that

the Countrywide mortgage was properly included in

the loss calculation.

Dong contends that the district court failed to

make the findings required by U.S. Sentencing Guideline

§ 1B1.3(a)(1)(B), which requires a determination of the

scope of the jointly undertaken criminal activity and

findings as to whether the conduct was in furtherance

of that joint criminal activity and the foreseeability of

the conduct. However, Sentencing Guideline § 1B1.3

Application Note 2 makes clear that this requirement

applies only where the acts in question were not committed by the defendant but rather were solely the acts
No. 11-1347 9

of others. The record in this case, as discussed

above, refutes Dong’s suggestion that the Countrywide

mortgage loss was “relevant conduct” arising from the

acts or omissions of others rather than conduct that

constituted part of his offense of conviction. As such,

his reliance on Sentencing Guideline § 1B1.3(a)(1)(B)

is misplaced.

Finally, Dong was sentenced within the precise guideline range that he argued to be applicable. The district

court agreed that the loss amount was overstated and

sentenced Dong as if he had an offense level of 22 instead

of 24, which coincides with a loss of between $400,000

and $1,000,000 based on the HELOC loans alone. Accordingly, he has failed to demonstrate any plain error

or actual harm as a result of the sentence imposed.

III. CONCLUSION

For the reasons stated herein, we AFFIRM Dong’s sentence.

3-27-12