United States District Court, District of Columbia
ROSEMARY M. COLLYER United States District Judge.
trial lasting 13 days, Pheerayuth Burden and his wholly-owned
business, Wing-On LLC, were convicted on all counts,
i.e., Conspiracy to Violate the Arms Export Control
Act and the International Traffic in Arms Regulations and to
Defraud the United States; Unlawful Export of Defense
Articles from the United States; and Conspiracy to Launder
Monetary Instruments. See Verdict Form [Dkt. 124].
Burden is a native of Thailand lawfully in the United States
and was conducting an export business specializing in the
transportation of U.S. goods to Thailand from California,
through his business Wing-On. He was originally charged with
co-Defendant Kitibordee Yindeear-Rom, a Thai native living in
Thailand with whom Mr. Burden allegedly conspired to export
gun parts on the Munitions List without a license from the
U.S. Department of State (USDS). Defendant Wing-On LLC was
incorporated in California and operates from that State. It
is wholly-owned by Mr. Burden.
Yindeear-Rom was a customer of Mr. Burden and Wing-On who
imported many goods to Thailand, including some small gun
parts. The gun parts were subject to the Arms Export Control
Act (AECA), 22 U.S.C. § 2778, and the International
Traffic in Arms Regulations (ITAR), 22 C.F.R. §§
120-130, but neither Mr. Yindeear-Rom nor Mr. Burden or
Wing-On had the required license to ship such goods outside
the United States. Thus developed the criminal actions for
which all three Defendants were convicted.
Yindeear-Rom entered a guilty plea in November 2014, was
sentenced to thirty-six (36) months' incarceration,
served close to three years in prison in the United States,
and was subsequently deported to Thailand. Co-Defendants
Burden and Wing-On elected to go to trial and were convicted
on all counts. The Court held sentencing arguments on
February 10 and 16, 2017.
sentencing for Mr. Burden, the Court agreed with the
Presentence Investigation Report (PSR) and found that the
adjusted offense level was 28, his criminal history category
was I, and the recommended sentencing range in the United
States Sentencing Guidelines (USSG or Guidelines) was,
therefore, 78 to 97 months. The offense level included an
increase of two levels because Mr. Burden was convicted of
money laundering under 18 U.S.C. § 1956.
Burden argued for a minor role adjustment under USSG §
3B1.2, contending that Wing-On and Mr. Burden were mere
conduits for Mr. Yindeear-Rom's shipment of gun parts.
The Court rejected the argument that Mr. Burden was a patsy
for criminal conduct directed by Mr. Yindeear-Rom from
Thailand. To the contrary, the two co-conspirators were
equals and none of these crimes could or would have occurred
without Mr. Burden's personal involvement.
sentencing, the Government strongly argued for a Guidelines
sentence. Mr. Burden's counsel sought a 12-month
reduction from whatever sentence the Court felt appropriate
because of the effect of Mr. Burden's immigration status
on his housing by the Bureau of Prisons (BOP) and his ability
to access education and training programs offered in prison,
such as minimum security detention, and potential early
the Court agreed with the Government that illegally trading
in arms is a serious crime, it also noted that the actual
parts shipped were extremely small and could not be used to
assemble a complete weapon. Therefore, the parts themselves
were not individually dangerous. The reasons such purchases
were made by persons in Thailand had no relevance to the
intentional criminal conduct.
Court varied downward from the Guidelines pursuant to 18
U.S.C. § 3553(a) in sentencing Mr. Burden and imposed a
sentence of fifty-five (55) months' incarceration plus
forfeiture. It noted that Mr. Burden had no previous
criminal conduct of any kind; that his prior history and age
(approximately 50 years old) made it highly unlikely that he
would re-offend; that a Guidelines sentence was not necessary
to deter Mr. Burden or promote his respect for the law; and
that it was appropriate to avoid disparities in sentencing
between Mr. Yindeear-Rom and Mr. Burden. Thus, while Mr.
Yindeear-Rom accepted responsibility early and received a
lesser sentence, Mr. Burden and he were equally guilty of the
criminal conduct and Mr. Burden's sentence could not be
significantly greater for the same conduct. In addition, the
Court found that Mr. Burden's criminal conduct destroyed
his business and his life in the United States, which he had
worked so assiduously and lawfully to develop; that his
deportation at the end of his sentence is likely; and that a
Guidelines sentence was not necessary to deter him from
Wing-On is a business and not a person, there was no question
of incarceration for its criminal behavior. The Court agreed
with the PSR and found an offense level of 28, a base fine of
$6.3 million, a culpability level of 5, and a fine range of
$6.3 million to $12.6 million under the USSG. The Court
varied downward from the Guidelines pursuant to 18 U.S.C.
§ 3553(a) in sentencing Wing-On.
the Guidelines range for a fine was well above the $2 million
fine that is the statutory maximum for the crimes of
conviction. Second, the PSR reported that Wing-On profited in
the amount of $66, 000 from its export of prohibited goods,
which was significantly below the statutory maximum fine and
significantly lessened the degree of criminal conduct. The
amount of money ...