which are rejected. First, as discussed above, Kwong urges for the application of an adjustment for acceptance of responsibility based on his plea and cooperation related to indictment 88-CR-266. An adjustment for acceptance of responsibility should occur after the combination of offense for which the Court is imposing sentence. See U.S.S.G. §§ 1B1.1(d)-(e). After combining offenses for sentencing purposes, this issue becomes absurd and the Court concludes that no such adjustment is warranted.
Additionally, defendant moves for a downward departure based on his claustrophobia and "suicidal ideation." See October 28, 1994, letter from Lawrence Schoenbach to the Court, p. 17. Not only has this condition improved, id., but even if the Court accepts the speculation that such a condition may reoccur, a downward departure is unwarranted. The only case cited by the defendant, United States v. Lara, 905 F.2d 599 (2d Cir. 1990), is at best only marginally relevant. Here, no reason has been given by the defendant to indicate why this condition should be considered extraordinary. Exercising its discretion, the Court opts not to apply a downward departure for this condition.
Finally, defendant moves for a downward departure based on his years of cooperation following his 1988 guilty plea. This argument flatly disregards the fact that during this period of cooperation and in the hopes of furthering his usefulness to the government, Kwong attempted to kill an Assistant United States Attorney, Kwong tried to frame another individual in the attempted murder, Kwong gave false information to the DEA, and Kwong sought to obtain money from the government. Looking at Kwong's offense in its entirety, the Court has no problem in determining that a downward departure based on Kwong's cooperation with the government is entirely unwarranted.
Prior to imposing sentence, the Court must finally determine whether an upward departure, pursuant to guideline 4A1.3, is warranted based on the adequacy of the defendant's criminal history category. Important to the Court's determination of this issue is the effect that the combining of the two indictments for sentencing has on the overall sentence.
Had Kwong first been sentenced for the 1988 offense and then sentenced for the attempted murder of the Assistant United States Attorney, Kwong's criminal history category for the later offense would be IV. Due solely to the fortuitousness of being simultaneously sentenced for this unrelated offense, Kwong's criminal history category is III. As discussed above, the combination of offenses did result in a one level increase in Kwong's adjusted offense level from 34 to 35. Therefore, had the sentences for these two separate indictments not been combined, Kwong would have faced a sentence on the more recent conviction with an adjusted offense level of 34 and a criminal history category of IV. This would mean a range of 210-262 -- the same range Kwong faces with an adjusted offense level of 35 and a criminal history category of III. Therefore, the fact that Kwong is being sentenced on both indictments simultaneously does not affect Kwong's guideline range.
Whether or not Kwong's criminal history category understates his criminal past is another question. Although it very well might, the Court finds no need to upwardly depart as the sentencing range of 210 to 262 months provides adequate sentencing latitude.
Finally, the Court comes to the point of determining Kwong's sentence for these offenses. Based on the foregoing and for the reasons expressed above and in open court, the Court determines the guidelines range to be 210 to 262 months. Exercising its discretion, the Court imposes a sentence upon Kwong at the maximum end of the range -- 262 months.
This lengthy sentence is warranted for many reasons, many of which were expressed at the sentencing hearing held on January 19, 1995. The gravity of the offense cannot be over-stated. The Court is unable to identify any facts that might be argued in mitigation. Kwong has exhibited no remorse or emotion. His acts were the product of careful and self-serving design. The life of a public servant was used as a pawn in his ruthless attempts to ingratiate himself to law enforcement officials. His punishment must be severe.
The sentence of 262 months is slightly in excess of the 20 year maximum sentence permitted by Title 18, United States Code, Section 1114. However, such a sentence is allowable since the sentence imposed was for multiple counts of conviction, see U.S.S.G. § 5G1.2, as well as for a violation of Title 18, United States Code, Section 3147, which permits a consecutive term of imprisonment of up to ten years.
As a final issue, Title 18, United States Code, Section 3147 requires the Court to attribute a portion of that sentence to the enhancement Kwong received for committing the offense while on release for an earlier offense. The Court notes that 74 months of Kwong's sentence is attributed to his committing the offense while on release for a previous offense. U.S.S.G. § 2J1.7.
Dated: Brooklyn, New York
February 14, 1995
RAYMOND J. DEARIE
United States District Judge