IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-10616

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

HO SIK JANG

Defendant - Appellant

Appeal from the United States District Court 

for the Northern District of Texas

Before DAVIS, OWEN, and HAYNES, Circuit Judges.

HAYNES, Circuit Judge:

In this case, the district court found that Defendant Ho Sik Jang, a citizen

of South Korea subject to a final order of removal from the United States,

violated a special and mandatory condition of his supervised release by providing

misleading answers to questions posed by a Korean consulate resulting in his

non-admittance to Korea. We affirm.

I. FACTS

In December 2003, an immigration judge ordered Jang’s deportation from

the United States based on two Texas convictions. After exhausting various

appeals, Jang repeatedly failed to complete a visa application to South Korea.

Based on this conduct, the government indicted Jang under 8 U.S.C. §

United States Court of Appeals

Fifth Circuit

F I L E D

June 30, 2009

Charles R. Fulbruge III

Clerk
No. 08-10616

2

1253(a)(1)(B), which forbids an alien under a final order of removal from wilfully

failing or refusing to complete documents necessary to ensure his departure.

After a jury returned a guilty verdict, the district court sentenced Jang to thirty

three months’ imprisonment, followed by a two year term of supervised release.

The district court imposed the following special condition of release:

[t]he defendant shall comply with all immigration regulations and

laws including all administrative procedures to effect the successful

removal of the defendant from the United States, which includes

signing the INS Form I-229 and completing a Korean Visa

application.

As with all individuals on supervised release, Jang was also subject to the

mandatory condition prohibiting him from committing another federal, state, or

local crime. 

In June of 2007, Jang was released from prison to the custody of

Immigration and Customs Enforcement (ICE). He again refused to complete the

documents necessary to ensure his deportation. As a result, Jang’s probation

officer filed a Petition for Offender Under Supervision with the district court.

Following his arrest, Jang appeared before the district court, promising to sign

a Korean visa application. He told the district court that he would rather be free

in Korea than incarcerated in the United States. Consequently, the district

court allowed Jang’s supervised release to continue.

After the hearing, Jang, as promised, completed the Korean visa

application and signed the INS Form I-229. In addition, Korea requires that its

citizens repatriate on a voluntary basis. The country determines whether a

citizen’s repatriation is voluntary via an interview conducted by a Korean

consulate. If the consulate determines that the individual desires to return, a

travel certificate is issued. Jang’s interview with the consulate was conducted

in private over the phone.
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After the interview, the Korean consulate sent a letter to the Department

of Homeland Security, stating:

We have difficulties issuing the T/C [Travel Certificate].

The important factors we consider before issuing a T/C are the

deportee’s willingness to go back to Korea and pending legal

processes if any. We have direct contact with a deportee, when we

receive the T/C request from an Immigration Office, to make sure if

a) he wants to return to Korea and the signature on the application

for the T/C was made with his own will and if b) he is going to

appeal for the case. We issue T/C’s when the above mentioned

requirements are clarified.

During my conversation with Mr. Jang, he told me his signature

was not made voluntarily and he didn’t want to return to Korea. He

also expressed his strong will to appeal to the court of Texas for his

case.

With the above reasons, the Korean Consulate General won’t be

able to issue a T/C for Mr. Jang.

After receiving this letter, Jang’s probation officer filed another Petition

for Offender Under Supervision. The petition alleged that Jang’s answers to the

Korean consulate’s questions violated the aforementioned special and mandatory

conditions of his release. At the subsequent revocation hearing, the government

offered the Korean consulate’s letter as evidence and called ICE agent James

Smith to testify. Agent Smith testified that Jang’s answers to the questions

posed by the Korean consulate violated the special condition of his release. As

to the mandatory condition of release, Agent Smith testified that Jang’s answers

violated 8 U.S.C. § 1253, although he did not specify the particular subsection

implicated. Jang offered no evidence in rebuttal.

Based on this testimony, the district court revoked Jang’s supervised

release, stating “I don’t think you [Jang] have any intention of abiding by any of

the orders of anybody. And sobeit [sic so be it].” The district court sentenced
No. 08-10616

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Jang to twenty-four months in prison plus an additional year of supervised

release. When Jang objected to his sentence of twenty-four months’

imprisonment as unreasonable, the district court stated:

I think it’s a reasonable sentence because Mr. Jang continues to

confuse his desire to stay in the United States with his

voluntariness to leave at this time. And those are different things.

And he’s simply toying with the court and with the INS and

everybody else.

And I think this is the only way to get his attention is to do this. I

think its’s a reasonable sentence.

I just think – there’s got to be something done to wake Mr. Jang up.

And we will see if going to the penitentiary again will do that. And

I think that may be part of the case.

If not, and he wants to spend his time in the penitentiary, he

certainly deserves the punishment. 

This appealed followed.

II. DISCUSSION

Jang challenges the district court’s decision to revoke his supervised

release on a number of grounds. With respect to the finding that he violated the

special condition of his release, Jang contends that his interview with the

Korean consulate constituted an “international” immigration procedure falling

beyond the scope of the condition’s requirement that he comply with all

immigration regulations and laws. Alternatively, he contends that he complied

with the special condition by candidly answering the consulate’s questions; he

also contends that the district court erred to the extent that it construed the

special condition to require that he lie to the consulate. Finally, Jang contends

that the evidence is insufficient to support the district court’s finding that he

violated the mandatory condition of his release that he not commit another

federal, state, or local crime.
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In order to revoke probation, a district court must only “find[ ] by a

preponderance of the evidence that the defendant violated a condition of

supervised release.” 18 U.S.C. § 3583(e)(3). “[R]evocation of probation does not

require proof sufficient to sustain a criminal conviction. All that is required is

enough evidence, within the sound judicial discretion, to satisfy the district judge

that the conduct of the probationer has not met the conditions of probation.”

United States v. Garza, 484 F.2d 88, 89 (5th Cir. 1973). Because the record

evidence here satisfies that standard as to the district court’s finding that Jang

violated the mandatory condition of his release, we need not address alternative

grounds for the district court’s order of revocation. See United States v. Turner,

741 F.2d 696, 698 (5th Cir. 1984) (“Where there is an adequate basis for the

district court’s discretionary action or revoking probation, the reviewing court

need not decide a claim of error as to other grounds that had been advanced as

a cause for revocation.”).

Although Jang failed to challenge the district court’s finding that he

violated the mandatory condition of his release below, he contends that plain

error review is inapplicable in this appeal because the government failed to

identify a crime on which the district court’s finding could be based. Jang

correctly notes that neither the government’s Petition for Offender Under

Supervision nor the district court’s oral finding identify a specific crime that

Jang’s conduct violated. But during the hearing, agent Smith testified that

Jang’s conduct violated 8 U.S.C. § 1253 because Jang’s answers to the consular’s

questions constituted a “hindrance” to his removal. Agent Smith’s use of the

word “hindrance” was an obvious reference to subsection (a)(1)(C), which makes

it a crime for an alien under a final order of removal to “connive[ ] or conspire

[ ], or take[ ] any other action, designed to prevent or hamper or with the purpose

of preventing or hampering the alien’s departure pursuant to” a removal order.

As such, the government adequately identified the basis for its allegations that
No. 08-10616

 Jang contends that the district court did not explicitly find that he had lied to the 1

Korean officials. However, the district court clearly found that Jang was “toying” with the

court, INS “and everyone else.” Thus, the court found that Jang was disingenuous in his

conduct, including his answers to the Korean official. Jang did not request more specific

findings from the court, and he has not shown plain error in the court’s recitation of its

findings.

 Jang has not articulated any appeal still available to him that would prevent his 2

deportation, and his brief concedes that his immigration appeals have been exhausted.

6

Jang violated the mandatory condition of his release. Because Jang did not

challenge the district court’s finding below, we review only for plain error.

To establish plain error, Jang must show (1) there is plain and obvious

error (2) that affects his substantial rights. United States v. Coil, 442 F.3d 912,

916 (5th Cir. 2006). An error is plain if it is clear or obvious. United States v.

Duffaut, 314 F.3d 203, 209 (5th Cir. 2002).

Jang cannot establish plain error. At his initial revocation hearing, Jang

told the district court that he would rather be free in Korea than incarcerated

in the United States. He also agreed to sign the documents necessary to effect

his deportation. Based on these statements, the district court allowed Jang’s

supervised release to continue. Thus, while returning to Korea might not have

been Jang’s ideal choice, the record shows that he made the calculated and

voluntary decision to cooperate in his return. In light of this evidence, the

district court could reasonably conclude that Jang’s statement to the consular

that he had not signed his travel certificate voluntarily and that he wished to 1

pursue further appeals “was designed to prevent or hamper or [made] with the 2

purpose of preventing or hampering” his departure. 8 U.S.C. § 1253(a)(1)(C).

As such, the district court did not plainly error in finding that Jang violated the

mandatory condition of his release. 

III. CONCLUSION

For these reasons, the district court’s judgment is AFFIRMED.