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UNITED STATES v. KWONG

February 14, 1995

UNITED STATES OF AMERICA, against DAVID KWONG, Defendant.


The opinion of the court was delivered by: RAYMOND J. DEARIE

 DEARIE, District Judge.

 On January 26, 1990, David Kwong sent an Assistant United States Attorney in the Eastern District of New York a booby-trapped briefcase. The device was rigged so that when opened, a sawed-off Marlin 70-P rifle would fire a single .22 caliber, Stinger, high-velocity, high-power round. Fortunately for the Assistant United States Attorney, a NYPD detective assigned to the Drug Enforcement Agent and a DEA special agent were present in the office when the package arrived. After being alerted by Ms. Palmer's expression of surprise at the receipt of the package, the officers moved the assistant away from the package and examined it carefully.

 Detective Robert Hom opened the lid of the attache case slightly and, standing to the side, peered inside. He discovered what appeared to be a triggering mechanism. He carefully disengaged the leader from the weapon's trigger to the mechanism itself. The attache was then safely opened revealing its potentially deadly contents.

 At the first trial in July 1992, Kwong was convicted and sentenced to 293 months incarceration for both the attempted murder of the assistant and for the earlier pending case on which Kwong had never been sentenced. The Court of Appeals reversed the conviction, United States v. Kwong, 14 F.3d 189 (2d Cir. 1994), for reasons unrelated to the sentencing issues now before the Court.

 This memorandum addresses the issues related to the sentencing of David Kwong.

 DISCUSSION1

 Several guideline issues are presented in this sentencing. Not only is the base offense level and the criminal history category disputed, but the application of various enhancements as well as the appropriateness of downward and upward departures are at issue. Additionally, the process is further complicated by possible ex post facto considerations.

 Base Offense Level

 To determine the base level offense, the Court must look to the guideline which is "most applicable to the offense of conviction." U.S.S.G. § 1B1.2(a). There can be little dispute that guideline 2A2.1 ("Assault With Intent to Commit Murder; Attempted Murder") is the correct guideline. *fn2" Guideline 2A2.1 now provides two different base offense levels. The principle dispute centers on which of the two base offense levels listed in guideline 2A2.1 applies.

 Guideline 2A2.1 specifies that a base offense level of 28 applies "if the object of the offense would have constituted first degree murder." U.S.S.G. § 2A2.1(a)(1). Otherwise, guideline 2A2.1 notes, a base offense level of 22 applies. U.S.S.G. § 2A2.1(a)(2). The evidence shows Kwong attempted to kill Assistant United States Attorney Catherine Palmer with premeditation and malice aforethought. Therefore, on the face of it, a base offense level of 28 is warranted.

 Kwong argues that because the indictment did not specifically charge him with attempted first degree murder, the use of a base offense level of 28 is incorrect. The indictment charges:

 
On or about January 29, 1990, within the Eastern District of New York, the defendant DAVID KWONG, also known as "Zura Kwong", "Ken Chan", and "George Kwong", did knowingly and intentionally attempt to kill Catherine E. Palmer, an Assistant United States Attorney for the Eastern District of New York.
 
(Title 18, United States Code, Sections 1114 and 3551 et seq). *fn3"

 No specific allegations of malice aforethought or premeditation, two elements of first degree murder, see 18 U.S.C. § 1111, are made in the indictment.

 The fact that the indictment makes no mention of those elements is not dispositive for determining which base offense level within guideline section 2A2.1 applies. Guideline 1B1.2 directs sentencing courts to look to the indictment for determining which guideline is "most applicable to the offense of conviction." It is readily apparent that the guideline for attempted murder is the most appropriate guideline when the indictment charges that very crime.

 Once the Court has determined that guideline 2A2.1 applies, the Court is directed to employ the relevant conduct provisions of the guidelines to determine which sub-section of the guideline applies. This is to be done even if the applicable guideline provides multiple base offense levels from which to chose. The application notes make this clear:

 
Section 1B1.2(b) directs the court, once it has determined the applicable guideline (i.e., the applicable guideline section from Chapter Two) under § 1B1.2(a) to determine any applicable specific offense characteristics (under that guideline), and any other applicable sentencing factors pursuant to the relevant conduct definition in § 1B1.3. Where there is more than one base offense level within a particular guideline, the determination of the applicable base offense level is treated in the same manner as a determination of a specific offense ...

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