United States v. Richard Kay
2013 U.S. App. LEXIS 12963
| 8th Cir. | 2013Background
- Kay pleaded guilty to drug conspiracy, money laundering, structuring, and conspiracy to transport stolen goods across state lines.
- District court imposed 200 months in prison, $500,000 fine, and $300,000 restitution.
- PSR attributed 1,000–3,000 kg marijuana and added a leadership enhancement, yielding a total offense level of 34 and criminal history III.
- Sterling Jewelers loss used to calculate restitution; loss estimated at $300,000 based on limited diamond data and Kay’s statements.
- Paragraph 108 of the PSR stated Kay could not pay a fine within the established range, and the court adopted this finding.
- Court vacated the $500,000 fine and remanded for re-determination; restitution of $300,000 was upheld.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the prison sentence is procedurally reasonable | Kay argues the court failed to adequately explain the 200-month sentence. | Court considered mitigation and did not plainly err. | No reversible procedural error; sentence upheld. |
| Whether the prison sentence is substantively reasonable | Kay contends there were compelling mitigation arguments the court ignored. | Court considered mitigation and public-policy arguments; sentence not substantively unreasonable. | Sentence not substantively unreasonable. |
| Whether the $500,000 fine was proper given ability to pay | PSR suggested Kay could not pay; the court relied on that finding. | Government urged consideration of potential concealed assets; district court failed to balance §5E1.2 factors. | Fine vacated; remanded for redetermination of fine. |
| Whether the $300,000 restitution award was proper | MVRA requires restitution to Sterling Jewelers for property loss; amount contested. | Evidence including Kay’s admissions supported $300,000 loss. | Restitution award of $300,000 affirmed. |
Key Cases Cited
- Gall v. United States, 552 U.S. 38 (U.S. 2007) (plain-error review for procedural sentencing errors when no objection below)
- Rita v. United States, 551 U.S. 338 (U.S. 2007) (requires explanation when nonfrivolous mitigating arguments are raised)
- United States v. Feemster, 572 F.3d 455 (8th Cir. 2009) (en banc; consideration of nonfrivolous arguments in sentencing)
- United States v. Bauer, 19 F.3d 409 (8th Cir. 1994) (vacate fine if district court does not explain ability-to-pay balancing)
- United States v. Walker, 900 F.2d 1201 (8th Cir. 1990) (requirement to balance ability to pay in fines)
- United States v. Patient Transfer Serv., Inc., 413 F.3d 734 (8th Cir. 2005) (vacate if court fails to consider ability to pay and financial information)
- United States v. San-Miguel, 634 F.3d 471 (8th Cir. 2011) (substantive reasonableness review standard for sentence under Gall)