United States of America v. Ho Sik Jang

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

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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

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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

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Jang contends that the district court did not explicitly find that he had lied to the1
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 his2
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 to1
pursue further appeals “was designed to prevent or hamper or [made] with the2
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.

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