UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT 

___________________________________ 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v. No. 14-5080 

NAM QUOC LE, a/k/a Jimmy Nam Quoc 

Le, 

Defendant-Appellant. 

(D.C. No. 4:14-CR-00007-GKF-1) 

(N.D. Okla.)

____________________________________ 

ORDER AND JUDGMENT*

____________________________________ 

Before BRISCOE, BALDOCK, and EBEL, Circuit Judges. 

____________________________________ 

Defendant Nam Quoc Le pleaded guilty to a single count of Theft From Gaming 

Establishments on Indian Lands, in violation of 18 U.S.C. §1167, based on a cheating 

scheme that ran from at least January 14, 2013, to February 16, 2013. The only issue in 

this appeal is the amount of restitution Defendant owes the Casino where he cheated. 

Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C § 3742, we affirm the 

district court’s restitution calculation method, but remand for the court to correct a minor 

but clear error it committed while performing that calculation. 

 

*

 This order and judgment is not binding precedent, except under the doctrines of law of 

the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive 

value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

July 29, 2015

Elisabeth A. Shumaker 

Clerk of Court

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I. 

 At least as early as mid-January 2013, Defendant joined forces with Misty White, 

a blackjack dealer at Osage Casino, in order to cheat at blackjack. Although blackjack 

rules can vary from casino to casino, the basic goal is to get a combination of cards worth 

more than the combination dealt to the dealer, but no greater than 21 (“bust”). After 

being dealt an initial two cards, the player must choose whether to ask for another card 

(“hit”) which he can do as many times as he likes before exceeding 21, or to “stay” with 

the cards he has been dealt thus far. If the player’s combination ends up being less than 

the dealer’s, or exceeds 21, he loses his bet. If the player and the dealer tie, there is a 

“push,” and the player keeps his bet. If the player’s cards are worth more than the 

dealer’s, or the dealer exceeds 21, the player wins the amount he bet. If the player’s 

initial two cards are an ace and a face card then he has a blackjack, and if the dealer does 

not also have a blackjack, the player wins 150% of his bet. Defendant and Ms. White’s 

cheating scheme involved Ms. White, as the dealer, discretely showing Defendant the 

next card he would be dealt if he chose to hit (the “hole card”). This way, Defendant 

knew ahead of time whether hitting would increase his odds of beating the dealer, or 

would instead cause him to bust. 

 With this advantage up his sleeve, Defendant’s gambling habits changed 

markedly. He began betting more money per hand, and would quit while he was ahead 

rather than gambling until he’d lost any winnings he might have amassed, as he had in 

the past. Indeed, Defendant’s winnings/losses from June 29, 2010 through November 27, 

2012 totaled negative $120,267 but his winnings/losses from December 4, 2012 through 

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February 13, 2013 totaled positive $96,891. This dramatic change in fortune piqued the 

interest of the Casino’s Table Games Director, Ken Shepherd, who initiated the Casino’s 

investigation of Defendant. The investigation revealed that Defendant often followed 

Ms. White as she moved from table to table, and ultimately the Casino captured on video 

Ms. White flashing hole cards to Defendant in 119 out of the 228 hands played from 

February 12 through February 16. The Casino terminated Ms. White on February 16, 

2013, and she ultimately pleaded guilty to Theft by an Employee of Gaming 

Establishment on Indian Lands in excess of $1,000. Ms. White then cooperated with the 

government by describing Defendant’s role in the scheme. As a result, Defendant was 

charged with, and pleaded guilty to, one count of Theft From Gaming Establishments on 

Indian Lands, in violation of 18 U.S.C. §1167. 

 Defendant’s Presentence Report (PSR) calculated the restitution Defendant owed 

the Casino under the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A, to 

be $59,936.50, which Defendant owed jointly and severally with Ms. White. This 

number was based on (1) Defendant’s winnings during the times Ms. White was working 

from January 12, 2013 through February 16, 2013 as recorded on Defendant’s “Konami 

card”1

 and (2) Ms. White’s restitution order for the same amount. Unlike Ms. White, 

Defendant objected to the PSR’s restitution calculation. He argued the Casino’s 

“Konami card” records were not precise and were inflated because the Konami card does 

 

1

 The Konami card is a casino management system which tracks the holder’s gambling 

patterns, wins, and losses, primarily for marketing purposes. It automatically tracks wins 

and losses for slot machines, but wins and losses from table games must be manually 

entered into a computer by casino staff. 

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not automatically register winnings for table games like blackjack so the Casino 

managers must manually observe and enter a player’s winnings/losses into the Konami 

system, leaving room for human error. Defendant also asserted that the Konami card 

system showed there were times that Ms. White was working but he gambled at a table 

other than the one Ms. White was dealing at, and that the Konami card records did not 

add up with the video records of his cheating scheme. Given these issues, Defendant 

argued the restitution order should be calculated by taking the discrete instances in which 

he was caught cheating on camera, and using statistics to extrapolate the win/loss results 

of that sample of discrete “cheats” to cover the total amount of time he played blackjack 

during the period in which he was engaged in this scheme. 

At Defendant’s sentencing hearing, Mr. Shepherd testified that the Casino’s 

win/loss records for particular players are “almost spot on,” but admitted they may not be 

100% accurate all the time. Shepherd also agreed that the most accurate way to calculate 

loss would be if there were records of each individual hand played. Defendant then had a 

statistics professor testify as an expert to explain how one could use a sample size 

comprised of the video recorded instances of Defendant’s cheating and extrapolate the 

amount of loss from that sample. The statistics expert opined that, based on the video 

record sample, the amount of loss attributable to discrete “cheats” was only about 

$6,363.63 assuming one defined (1) a “cheat” as only those instances where Ms. White 

flashed a hole card and Defendant then deviated from what a typical blackjack player 

would do with no knowledge of the hole card, and (2) loss as only the amount of the 

Casino’s payout to Defendant as a result of those “cheats.” The government also offered, 

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in its sentencing memorandum, an alternative extrapolation method for calculating 

restitution. Using the same data as Defendant’s expert, but defining cheating more 

broadly (under the premise that Defendant’s cheating altered the entire course of the 

game) and defining loss as not only the money Defendant won, but also the money he 

would have otherwise lost to the Casino, the Government arrived at an extrapolated loss 

amount of about $82,300. 

Ms. White also testified at the hearing. She stated that, in return for her flashing 

hole cards, Defendant tipped her between $4,000 and $5,000 over the course of the 

scheme. She also stated that, based on her firsthand knowledge of the scheme, $59,000 

was a fair estimate of the loss suffered by the Casino as the result of the cheating scheme 

and that, although she didn’t know the exact amount, the actual loss attributed to the 

scheme could not be less than $59,000. 

 After hearing the evidence, the court noted that Defendant and the government 

were essentially asking it to do a variation of the same thing (extrapolate), but then 

remarked: “Another way to look at it is [Defendant] cheat[ed] the entire time between . . . 

January 13th and February 14th. You take [his] gains, you subtract [his] losses, and 

that’s the loss to the Casino.” The court also noted that Defendant’s asserted restitution 

amount was not plausible because he gave Ms. White more than half that amount in tips. 

Ultimately, the court adopted the PSR’s restitution calculation of $59,936.50, but credited 

Defendant for the periods of play during the scheme that resulted in net losses of 

$19,299.50 under U.S.S.G § 2B1.1. According to the court, “this reduction resulted in a 

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restitution amount of $41,436.50,” and it ultimately imposed restitution in that amount. 

Defendant timely appealed.

II. 

 “We review the district court’s application of the MVRA de novo and its factual 

findings for clear error, while ultimately assessing the amount of the restitution award 

under an abuse of discretion standard.” United States v. Ferdman, 779 F.3d 1129, 1131 

(10th Cir. 2015). “[T]he principal aim” of restitution under the MVRA is to “restor[e] 

victims to the position they occupied before the crime.” Id. at 1132. “Any dispute as to 

the proper amount . . . of restitution shall be resolved by the court by a preponderance of 

the evidence. The burden of demonstrating the amount of loss sustained by the victim as 

a result of the offense shall be on . . . the Government.” 18 U.S.C. § 3664(e). That said, 

“the restitution phase of criminal sentencings should [not] become a substitute for civil 

trials.” Ferdman, 779 F.3d at 1133. “Speculation and rough justice are not permitted.” 

Id. (quoting United States v. Anderson, 741 F.3d 938, 954 (9th Cir. 2013)). But “the 

MVRA does not require a court to calculate a victim’s actual loss with exact precision.” 

Id. 

 Defendant argues the district court committed clear error by failing to consider 

credible evidence that supported Defendant’s extrapolation theory. This is simply untrue. 

The court acknowledged that it had essentially three options before it for calculating 

restitution, all supported by some evidence: (1) Defendant’s extrapolated amount of 

$6,363.63, (2) the government’s extrapolated amount of $82,300, or (3) the middle road 

amount of Defendant’s net winnings minus his net losses over the course of his blackjack 

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cheating scheme. The court properly considered Defendant’s extrapolation evidence, but 

rejected the number it yielded as inconsistent with other evidence, namely, the amount 

Defendant had tipped Ms. White for her role in the scheme. 

Defendant relies primarily on Hughey v. United States, 495 U.S. 411 (1990), and 

its progeny to argue that the district court impermissibly held him responsible for 

uncharged relevant conduct. In Hughey, the defendant had been charged with a single act 

of credit card fraud involving a loss to the victim of $10,412, but there was evidence the 

defendant had committed other related fraud causing total losses of $147,646.89. The 

district court ordered restitution in the larger amount based on the relevant uncharged 

conduct, but the Supreme Court reversed. In reversing the district court, the Court stated 

that the VWPA, predecessor to the MVRA, “is intended to compensate victims only for 

losses caused by the conduct underlying the offense of conviction.” Id. at 416. 

Defendant argues he pleaded guilty to cheating, and so the amount of loss should cover 

only the amount the Casino paid him for the particular hands where he cheated—i.e., was 

flashed a hole card and deviated from basic blackjack strategy. 

Defendant’s reliance on Hughey and its progeny is misplaced. For one thing, 

Defendant’s guilty plea admits that, from at least mid-January through February 16, 

2013, he engaged in a cheating “scheme . . . designed to give [him] an advantage in the 

blackjack game” at the Casino. This overarching scheme was therefore just as much the 

basis for the offense of conviction as any particular hands in which Defendant took 

advantage of his ability to see a hole card. And Defendant’s attempt to define cheating as 

only those instances where he was flashed a hole card and deviated from basic blackjack 

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strategy ignores the overall advantage he gained from this scheme and the way in which 

his gambling habits changed as a result of that advantage. Moreover, Defendant’s narrow 

definition of loss risks benefitting him while undercompensating the Casino because it 

fails to account for the fact that, when he cheated at a hand and won, the Casino lost not 

only its payout but also potentially lost the bet Defendant would have forfeited to the 

Casino had he not cheated and then lost the hand. 

Rather than adopt the extrapolation approach, which requires sifting through 

expert testimony and conflicting definitions of “cheating” and “loss,” the district court 

chose to simply restore both Defendant and the Casino to essentially the positions they 

occupied before Defendant initiated his cheating scheme. This approach is consistent 

with our precedent interpreting the MVRA, which aims to “restor[e] victims to the 

position they occupied before the crime,” and disfavors turning “the restitution phase of 

criminal sentencings” into “a substitute for civil trials.” Ferdman, 779 F.3d at 1132–33. 

Defendant argues the court’s calculation is based on Casino records that are 

flawed for various reasons. But the court’s calculation is supported by the testimony of 

Mr. Shepherd, who stated that the Casino’s records were “almost spot on,” and the 

testimony of Defendant’s partner in crime, who stated that $59,000 was a fair and indeed 

bare-minimum estimate of the loss attributable to the cheating scheme. And the MVRA 

does not require exact precision, anyway. Id. at 1133. Given that record evidence 

supports the court’s calculation method, we cannot say the court abused its discretion by 

choosing to award restitution in the amount of Defendant’s net winnings minus his net 

losses over the course of his blackjack cheating scheme. 

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III. 

 Although we affirm the court’s restitution calculation method as consistent with 

the law and the sentencing guidelines, we note that the court appears to have committed a 

minor arithmetical error that rendered its ultimate restitution award clearly erroneous. 

The court essentially adopted the PSR’s restitution calculation of $59,936.50 but then 

credited Defendant for the periods of play during the scheme that resulted in a net loss of 

$19,299.50 under U.S.S.G. § 2B1.1. According to the court, “this reduction resulted in a 

restitution amount of $41,436.50,” and it ultimately imposed restitution in that amount. 

But $59,936.50 minus $19,299.50 equals a loss to the Casino of $40,637.00, not 

$41,436.50. Accordingly, we REMAND with the limited instruction that the district 

court correct this clear arithmetical error. 

 Entered for the Court, 

Bobby R. Baldock 

United States Circuit Judge 

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