United States v. Dung Thi
2012 U.S. App. LEXIS 16836
| 7th Cir. | 2012Background
- Thi pleaded guilty to one count of bank fraud for using customers' debit-card information to make unauthorized withdrawals totaling over $77,000.
- She and Sang Danh operated Le Nails salon; they recorded PINs and trafficked customer data to California.
- Thi possessed a flash drive with hundreds of PINs and account numbers at arrest; several transactions were captured on ATM surveillance.
- Guidelines calculations: total offense level 22, criminal history I, Guideline range 41–51 months; district court imposed 36 months below-range sentence.
- Court acknowledged Thi as a young mother and considered family impact; recommended sentence near her family and possible residential reentry center.
- On appeal, Thi challenged § 3B1.2 downward adjustment; the panel treated the challenge as forfeited-for-plain-error and addressed the issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Thi deserved a § 3B1.2 adjustment | Thi was not substantially less culpable than others | Thi acted as a minor/less culpable participant | No substantial lesser-culpability reduction |
| Whether waiver/forfeiture applies to § 3B1.2 | Thi's attorney never sought § 3B1.2; waiver should not bar review | Waiver/forfeiture rules apply | Forfeiture, reviewed for plain error |
| Whether Thi was substantially less culpable than coconspirators | Danh/others were masterminds; Thi innocent in operation | Thi actively participated, possessed PINs, and facilitated fraud | Thi not substantially less culpable |
| Whether the district court properly considered family impact under § 5H1.6 | Court should emphasize potential loss of caretaking for her child | Court gave some weight to family circumstances | Court's consideration adequate; child-focused concern acknowledged |
| Whether a split sentence with home confinement was required or reasonable | Split sentence with home confinement could be appropriate | Below-range sentence is presumptively reasonable; home detention unlikely given Guidelines | Below-range sentence affirmed; no split-sentence requirement |
Key Cases Cited
- United States v. Leiskunas, 656 F.3d 732 (7th Cir. 2011) (substantially less culpable standard for § 3B1.2)
- United States v. Sorich, 523 F.3d 702 (7th Cir. 2008) (role of participant in conspiracy)
- United States v. O’Doherty, 643 F.3d 209 (7th Cir. 2011) (caretaking and family considerations in sentencing)
- United States v. Poetz, 582 F.3d 835 (7th Cir. 2009) (family impact and sentencing discretion)
- United States v. Gary, 613 F.3d 706 (7th Cir. 2010) (consideration of care-taking in sentencing)
- United States v. Vasquez, 673 F.3d 680 (7th Cir. 2012) (liberal application of waiver principles in sentencing)
- United States v. Anderson, 604 F.3d 997 (7th Cir. 2010) (interpretation of waiver and forfeiture in sentencing)
- United States v. McIlrath, 512 F.3d 421 (7th Cir. 2008) (presumption of reasonableness for below-range sentences)