Filed: May 07, 2013
Latest Update: Mar. 28, 2017
Summary: 12-3120-cr United States v. Chu UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2012 (Submitted On: May 6, 2013 Decided: May 7, 2013) Docket No. 12-3120-cr _ UNITED STATES OF AMERICA, Appellee, v. ROBERT CHU, Defendant-Appellant. _ Before: CABRANES, WESLEY, and WALLACE,1 Circuit Judges. The central issue raised in this appeal is whether the United States District Court for the Southern District of New York (Katherine B. Forrest, Judge) erred in concluding that defendant- appel
Summary: 12-3120-cr United States v. Chu UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2012 (Submitted On: May 6, 2013 Decided: May 7, 2013) Docket No. 12-3120-cr _ UNITED STATES OF AMERICA, Appellee, v. ROBERT CHU, Defendant-Appellant. _ Before: CABRANES, WESLEY, and WALLACE,1 Circuit Judges. The central issue raised in this appeal is whether the United States District Court for the Southern District of New York (Katherine B. Forrest, Judge) erred in concluding that defendant- appell..
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12-3120-cr
United States v. Chu
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2012
(Submitted On: May 6, 2013 Decided: May 7, 2013)
Docket No. 12-3120-cr
_______________________________________________________________
UNITED STATES OF AMERICA,
Appellee,
v.
ROBERT CHU,
Defendant-Appellant.
_______________________________________________________________
Before: CABRANES, WESLEY, and WALLACE,1 Circuit Judges.
The central issue raised in this appeal is whether the United States District Court for the
Southern District of New York (Katherine B. Forrest, Judge) erred in concluding that defendant-
appellant Robert Chu was not entitled to a sentence reduction for acceptance of responsibility
pursuant to United States Sentencing Guidelines § 3E1.1. Although Chu pleaded guilty to his drug
conspiracy charge in a timely fashion, he also attempted to smuggle drugs into a detention center
after his plea but before his sentencing. Such conduct is inconsistent with accepting responsibility,
1 The Honorable J. Clifford Wallace, of the United States Court of Appeals for the Ninth Circuit, sitting by designation.
and the District Court was therefore well within its discretion in denying Chu a reduction in his
sentence on that basis. We also conclude that Chu’s sentence is otherwise procedurally and
substantively reasonable.
Affirmed.
Alice L. Fontier, Dratel & Mysliwiec, P.C., New York,
NY, for Robert Chu.
Matthew L. Schwartz, Brent S. Wible, Assistant
United States Attorneys, for Preet Bharara,
United States Attorney, United States
Attorney’s Office for the Southern District of
New York, New York, NY, for the United States
of America.
PER CURIAM:
The central issue raised in this appeal is whether the United States District Court for the
Southern District of New York (Katherine B. Forrest, Judge) erred in concluding that defendant-
appellant Robert Chu was not entitled to a sentence reduction for acceptance of responsibility
pursuant to United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) § 3E1.1.2 Although
Chu pleaded guilty to his drug conspiracy charge in a timely fashion, he also attempted to smuggle
drugs into a detention center after his plea but prior to his sentencing. Such conduct is inconsistent
2 Guidelines § 3E1.1 provides:
(a) If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense
level by 2 levels.
(b) If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the
operation of subsection (a) is level 16 or greater, and upon motion of the government stating that the
defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely
notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to
avoid preparing for trial and permitting the government and the court to allocate their resources
efficiently, decrease the offense level by 1 additional level.
U.S.S.G. § 3E1.1 (emphasis omitted).
2
with accepting responsibility, and the District Court was therefore well within its discretion in
denying Chu a reduction in his sentence on that basis. We also conclude that Chu’s sentence is
otherwise procedurally and substantively reasonable. Accordingly, we affirm the judgment of the
District Court.
BACKGROUND
Chu’s criminal conduct involved selling various drugs to a confidential source (“CS”)
working with the Drug Enforcement Administration during 2010-2011. In particular, the CS
obtained drugs―including ecstasy, heroin, marijuana, and ketamine―from Chu. Chu also discussed
being able to supply the CS with powder and crack cocaine and boasted that he was so busy selling
drugs that he did not even have time to package his heroin into “baggies” for sale to his customers.
Indeed, according to Chu, his cocaine was of such high quality that he should be considered a
“chef” for the way he cooked it into crack. In addition to Chu’s sale of drugs to the CS, law
enforcement officers also observed Chu selling drugs to other individuals during this period.
On September 26, 2011, the CS arranged to purchase 20 grams of heroin from Chu. While
Chu was en route to meet the CS, law enforcement officers arrested him and discovered the 20
grams of heroin he had planned to sell the CS, as well as additional quantities of heroin, crack
cocaine, powder cocaine, oxycodone, clonazepam, and marijuana. Law enforcement officials also
searched Chu’s residence the same day and discovered even more drugs. Chu was indicted on
October 26, 2011 for conspiring to distribute various controlled substances, including heroin, crack
cocaine, ecstasy, ketamine, and marijuana, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B)-
(D), and 846. On March 14, 2012, pursuant to a plea agreement with the government, Chu pleaded
guilty to a lesser-included offense.3
3 The indictment charged Chu with conspiring to distribute at least 100 grams of heroin, at least 28 grams of crack
cocaine, and other drug quantities, and exposed him to a five-year mandatory minimum. The plea agreement allowed
3
Both before and after pleading guilty, Chu was detained at the Metropolitan Detention
Center (“MDC”). Throughout this time, he attempted to smuggle drugs into the MDC. This
conduct is corroborated by emails and phone conversations between Chu and other individuals, and
defense counsel did not contest this factual record at Chu’s sentencing hearing.4 See Joint App’x 12-
13. Chu’s efforts to smuggle drugs into the MDC were persistent and continued after he pleaded
guilty.
Chu’s sentencing hearing took place on July 19, 2012. During the sentencing hearing, the
District Court determined that Chu was not entitled to a two-level reduction in his total offense level
for acceptance of responsibility because of his post-plea conduct―namely, his incessant attempts to
smuggle drugs into the MDC. See id. at 13-14.
After refusing to award Chu a reduction for acceptance of responsibility, the District Court
calculated his Guidelines range based on the 60 grams of heroin seized from Chu and his apartment;
Chu claimed responsibility for this amount in his plea agreement.5 Next, the District Court
addressed, as it was required to do, the factors listed in 18 U.S.C. § 3553(a), a statute which, inter alia,
requires a court to consider “the nature and circumstances of the offense” in selecting a sentence.6
Chu to plead guilty to smaller quantities of heroin, crack cocaine, and other drugs―such that he did not face the five-
year mandatory minimum.
4 For one reason or another, Chu’s schemes all seem to have involved hiding drugs in potato chip bags.
5 The applicable Guidelines range was 87 to 108 months’ imprisonment based on Chu’s total offense level of 28 and his
Criminal History Category of II.
6
In relevant part, 18 U.S.C. § 3553 provides:
(a) Factors to be considered in imposing a sentence.―The court shall impose a sentence
sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of
this subsection. The court, in determining the particular sentence to be imposed, shall consider―
(1) the nature and circumstances of the offense and the history and characteristics of the
defendant;
(2) the need for the sentence imposed―
4
At this point, the District Court took into consideration Chu’s total drug activity beyond the drug
amounts listed in his plea agreement. Specifically, based on a statement by Chu contained in the
Presentence Report―in which he told the CS that he had sold approximately 100 grams of heroin
every other week for at least a year―the District Court concluded that Chu was responsible for
selling approximately 2.5 kilograms of heroin. See Joint App’x 22-23. Based on this finding, the
District Court characterized Chu as a “serious drug dealer,” id. at 28, and sentenced him, inter alia, to
a term of 87 months’ imprisonment (which was at the bottom of his Guidelines range).
On appeal, Chu argues that his sentence is procedurally and substantively unreasonable. In
particular, he argues that the District Court erred by (1) refusing to give him a sentence reduction
based on his alleged acceptance of responsibility, (2) holding him responsible for distributing 2.5
kilograms of heroin, (3) imposing a substantively unreasonable sentence.
DISCUSSION
Criminal sentences are generally reviewed for reasonableness, which “requires an
examination of the length of the sentence (substantive reasonableness) as well as the procedure
(A) to reflect the seriousness of the offense, to promote respect for the law, and to
provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training,
medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for . . . the applicable category
of offense committed by the applicable category of defendant as set forth in the
guidelines . . . ;
(5) any pertinent policy statement . . . issued by the Sentencing Commission . . . ;
(6) the need to avoid unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
5
employed in arriving at the sentence (procedural reasonableness).” United States v. Johnson, 567 F.3d
40, 51 (2d Cir. 2009). A district court errs procedurally when “it fails to calculate (or improperly
calculates) the Sentencing Guidelines range, treats the Sentencing Guidelines as mandatory, fails to
consider the § 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails adequately
to explain the chosen sentence.” United States v. Robinson,
702 F.3d 22, 38 (2d Cir. 2012) (citing Gall
v. United States,
552 U.S. 38, 51 (2007)). A district court errs substantively if its sentence “cannot be
located within the range of permissible decisions.” United States v. Cavera,
550 F.3d 180, 189 (2d Cir.
2008) (en banc) (internal quotation marks omitted). In reviewing the substantive reasonableness of a
sentence, “we take into account the totality of the circumstances, giving due deference to the
sentencing judge’s exercise of discretion, and bearing in mind the institutional advantages of district
courts.” Id. at 190.
In other words, our review of a criminal sentence “amounts to review for abuse of
discretion.” Id. at 187; see also In re Sims, 534 F.3d 117, 132 (2d Cir. 2008) (noting that a district court
is said to abuse its discretion if it “base[s] its ruling on an erroneous view of the law or on a clearly
erroneous assessment of the evidence, or render[s] a decision that cannot be located within the
range of permissible decisions.” (internal citation and quotation marks omitted)).
A.
Chu’s first―and central―argument is that the District Court erred procedurally in its
Guidelines calculation by refusing to give him a sentence reduction for acceptance of responsibility.
Chu contends that he is entitled to this reduction because he pleaded guilty to the charged drug
offense in a timely fashion and did not deny his criminal conduct. We disagree. “A defendant who
enters a guilty plea is not entitled to an adjustment [for acceptance of responsibility] as a matter of
right.” U.S.S.G. § 3E1.1, cmt. n.3. Rather, the defendant bears the burden of demonstrating that he
qualifies for such a reduction. See United States v. Broxmeyer, 699 F.3d 265, 284 (2d Cir. 2012); see also
6
U.S.S.G. § 3E1.1, cmt. n.3 (noting that evidence of acceptance of responsibility “may be outweighed
by conduct of the defendant that is inconsistent with such acceptance of responsibility”). Chu
attempts to meet this burden by arguing that he: (1) only attempted, without success, to smuggle
drugs into the MDC; and (2) is addicted to drugs and was forced to quit immediately without
medical assistance.7 Neither argument is persuasive.
First, attempting to smuggle drugs into the MDC shows the same “lack of sincere remorse,”
see United States v. Defeo, 36 F.3d 272, 277 (2d Cir. 1994) (quotation marks omitted), as successfully
smuggling drugs into the MDC, cf. United States v. Desposito,
704 F.3d 221, 230 (2d Cir. 2013) (noting
that an attempt requires intent to commit the object crime). Indeed, other courts have upheld the
denial of a sentence reduction for acceptance of responsibility where a defendant attempted to
smuggle drugs into a prison after being convicted of a drug-related crime. See United States v. Lagasse,
87 F.3d 18, 25 (1st Cir. 1996) (“[T]he court could reasonably conclude here that Lagasse’s
involvement in the attempted smuggling of drugs into the prison was inconsistent with his claimed
remorse, thus negating the applicability of the adjustment.”); see also United States v. Diaz-Resendez, 263
F. App’x 425, 427 (5th Cir. 2008) (non-precedential summary order) (“Diaz-Resendez’s efforts to
have cocaine smuggled into prison were inconsistent with acceptance of responsibility and revealed
that he had not voluntarily withdrawn from criminal conduct.”).
Although we have not explicitly adopted this position, we have suggested that a defendant’s
attempt to commit a crime before being sentenced is just as inconsistent with accepting
responsibility as succeeding in committing the crime. See Defeo, 36 F.3d at 277 (“The district court’s
refusal to grant Defeo such credit was amply supported not only by her 11th hour plea of guilty, but
7 In making this argument, Chu concedes that a sentencing judge “has discretion to deny acceptance points for new
criminal conduct, including smuggling drugs into a facility.” Appellant’s Br. 9 (citing United States v. Olvera, 954 F.2d 788,
793 (2d Cir. 1992)); see also United States v. Rodriguez,
928 F.2d 65, 67 (2d Cir. 1991) (“As several courts have ruled, the fact
that a defendant commits a second crime after pleading guilty and while awaiting sentencing for a first offense is a
relevant consideration in denying the acceptance of responsibility adjustment in selecting the sentence for that first
offense.”).
7
also by her failure to report to pretrial services, her continued use and possession of heroin, and her
attempt to pass off another person’s urine as her own in order to avoid detection of her continued
use of heroin.”) (emphasis supplied). And today, we hold that a defendant’s attempt to smuggle
drugs into a detention center after pleading guilty to a drug-related offense can serve as a sufficient
basis for a District Court to deny a sentence reduction for acceptance of responsibility. Accordingly,
the District Court was well within its discretion to deny Chu a sentence reduction for acceptance of
responsibility based on his post-conviction conduct. See United States v. Nouri, 711 F.3d 129, 146 (2d
Cir. 2013) (noting that we generally defer to a district court’s determination of whether a defendant
is entitled to credit for acceptance of responsibility).
Second, our holding in Olvera v. United States, 954 F.2d 788 (2d Cir. 1992), forecloses Chu’s
argument that he should not be denied acceptance-of-responsibility credit on account of his
addiction to drugs. See id. at 793 (affirming the denial of acceptance of responsibility credit where
defendant “contend[ed] that the small amount of marijuana that he smuggled suggests that he
intended to use it only for personal use for his marijuana addiction”).
B.
Chu’s next argument is that the District Court erred by holding him responsible for
approximately 2.5 kilograms of heroin without conducting an evidentiary hearing. The record
provides no support for Chu’s contention.
Chu is correct that the drug-amount calculation in the plea agreement and the Presentence
Report included only approximately 60 grams of heroin and various amounts of other controlled
substances. But these amounts did not include all of Chu’s drug activity; instead, these drug
amounts only included drugs (1) sold to the CS, (2) seized from one of Chu’s customers immediately
after a sale, and (3) seized from Chu during his arrest. Joint App’x 23. Beyond these 60 grams of
heroin, the Presentence Report also referred to a recorded conversation, in which Chu stated that he
8
had sold approximately 100 grams of heroin every two weeks for a year. Id. at 22-23. The District
Court estimated that this activity totaled approximately 2.5 kilograms of heroin. Id.
This recorded statement by Chu constitutes relevant conduct that the District Court was
entitled to consider during sentencing. See, e.g., United States v. Garcia, 413 F.3d 201, 220 n.15 (2d Cir.
2005) (noting that “[j]udicial authority to find facts relevant to sentencing by a preponderance of the
evidence survives Booker”); cf. United States v. McLean,
287 F.3d 127, 133 (2d Cir. 2002) (“As long as
the sentence imposed is not greater than the maximum penalty authorized by statute for the offense
charged and (in cases involving a guilty plea) allocuted to by the defendant, a district court may
consider drug quantity in determining a defendant’s relevant conduct for sentencing purposes
pursuant to U.S.S.G. § 1B1.3(a), even if drug quantity has not been charged in the indictment as an
element of the offense.”). And, after reviewing the record, we conclude that the District Court’s
finding by a preponderance of the evidence that Chu was responsible for selling approximately 2.5
kilograms of heroin was not clearly erroneous. Accordingly, the District Court did not err
procedurally by considering the 2.5 kilograms of heroin in selecting Chu’s sentence. See Robinson,
702 F.3d at 38.
C.
Finally, Chu argues that his sentence was substantively unreasonable. We disagree because
this case is not one of those “exceptional cases” in which the imposition of a within-Guidelines
sentence is substantively unreasonable. See Cavera, 550 F.3d at 189; United States v. Fernandez, 443
F.3d 19, 27 (2d Cir. 2006) (“We recognize that in the overwhelming majority of cases, a Guidelines
sentence will fall comfortably within the broad range of sentences that would be reasonable in the
particular circumstances.”). In light of the extent of Chu’s drug activity―both in quantity and over
time―as well as his efforts to smuggle drugs into the MDC, the District Court’s 87-month sentence
9
at the bottom of the Guidelines range was not “shockingly high” or “otherwise unsupportable as a
matter of law.” United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009).
CONCLUSION
To summarize:
(1) An attempt to smuggle drugs into a detention center shows a lack of sincere
remorse, whether or not the attempt is successful. Accordingly, the District Court
did not err procedurally by denying a sentence reduction for acceptance of
responsibility on the basis of Chu’s post-plea, pre-sentencing attempts to smuggle
drugs into the Metropolitan Detention Center.
(2) At sentencing, a district court may consider additional quantities of drugs sold,
beyond the amount agreed to in the plea agreement, if it makes a finding as to those
additional drug amounts by a preponderance of the evidence. Accordingly, the
District Court did not err procedurally in considering additional quantities of drugs
that Chu said he sold.
(3) The sentence imposed by the District Court in this case was not substantively
unreasonable.
For the reasons stated, the July 19, 2012 judgment of conviction of the District Court is
AFFIRMED.
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