988 F.3d 803
5th Cir.2021Background
- Ojin Kim pleaded guilty to criminal copyright infringement for selling counterfeit "Life of Luxury" (LOL) slot-machine motherboards; plea factual basis admitted $30,000 loss (24 boards sold to a CHS).
- The PSR attributed responsibility for 485 counterfeit motherboards and calculated a $606,250 loss by (a) $30,000 for the 24 CHS boards and (b) $576,250 for an additional 461 boards inferred from a report that Best/Blue owner Ok Cha Muraki once told agents she owed Kim $200,000.
- The PSR used the $1,250 retail value per motherboard to compute both the Guidelines loss (triggering a 14‑level §2B1.1 enhancement) and restitution to Scientific Games.
- Kim objected, submitting affidavits from Muraki and a technician denying purchases of motherboards or a $200,000 debt; the FBI agent testified Muraki had told him otherwise but offered no documentation tying the $200,000 to LOL boards.
- The district court adopted the PSR without explanation, applied the enhancement, sentenced Kim to 46 months, and ordered $606,250 restitution. Kim appealed the enhancement and the restitution amount.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Kim's appeal waiver bars his challenge to the §2B1.1 loss-based 14‑level enhancement | Government: Waiver in plea agreement bars challenges to Guidelines calculations | Kim: Enhancement based on speculative loss; challenge should proceed | Waiver applies; Kim's challenge to the Guidelines enhancement is barred by his voluntary appeal waiver |
| Whether an appeal waiver bars a challenge that a restitution order exceeds the statutory maximum | Government: Waiver bars appeal of sentence/restitution | Kim: Under circuit precedent, an appeal may proceed when restitution exceeds statutory maximum | Waiver does not bar a properly raised statutory‑maximum challenge to restitution; court may review the restitution claim |
| Whether the $576,250 portion of restitution was supported by evidence of proximate cause and correct measure of loss (items placed into commerce; lost net profit) | Government: Agent testimony and PSR conversion support that Muraki received boards and owed $200,000; retail-value method yields restitution | Kim: Evidence is speculative; Muraki's affidavits contradict $200,000/debt-for-boards; restitution should be limited to proven items and measured by victim's lost net profit | Government failed to prove by preponderance the number of infringing LOL boards placed into commerce or the victim's lost net profit; district court erred in adopting speculative PSR retail‑value calculation — restitution vacated and remanded for redetermination |
Key Cases Cited
- United States v. Leal, 933 F.3d 426 (5th Cir. 2019) (appellate exception permits challenge that restitution exceeds statutory maximum despite a broad appeal waiver)
- United States v. Barnes, 953 F.3d 383 (5th Cir. 2020) (recognizing Leal exception and exceptions to enforcement of waivers)
- United States v. Winchel, 896 F.3d 387 (5th Cir. 2018) (ordering restitution without proximate‑cause finding exceeds statutory maximum)
- Chemical & Metal Indus., Inc. v. United States, 677 F.3d 750 (5th Cir. 2012) (waiver/enforceability principles in plea agreements)
- United States v. Beydoun, 469 F.3d 102 (5th Cir. 2006) (restitution for counterfeit goods limited to items actually placed into commerce and measure is victim's lost net profit)
- United States v. Keele, 755 F.3d 752 (5th Cir. 2014) (framework for interpreting appeal waivers)
- United States v. Sharma, 703 F.3d 318 (5th Cir. 2012) (MVRA requires restitution supported by preponderance; district court must scrutinize loss calculations)