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U.S. v. CHEN

June 13, 2005.

UNITED STATES OF AMERICA,
v.
LEI CHEN, Defendant.



The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge

SENTENCING OPINION

Defendant Lei Chen ("Chen") has pled guilty to one count of Conspiracy to Distribute and Possess with Intent to Distribute MDMA ("Ecstacy"). He will be sentenced to 34 months of incarceration followed by 3 years of supervised release, subject to the conditions stated herein.

Prior Proceedings

  On March 23, 2004, a seven-count superseding indictment was filed alleging that Chen (also known as "Nurse Jackie" and "Yang Yang") and nine other co-defendants engaged in various offenses relating to the distribution of Ecstacy. A warrant for Chen's arrest was issued that same day. On March 29, 2004, Chen was arrested. He has been detained without bail since his arrest.

  On July 8, 2004, a second superseding indictment was filed with respect to Chen and the other co-defendants. On February 24, 2005, Chen allocuted before the Honorable Douglas F. Eaton to the offense charged in the seventh count of the second superseding indictment, and Judge Eaton recommended that his guilty plea be accepted. On March 31, 2005, Chen's guilty plea was accepted.

  On May 13, 2005, co-defendant Kang Chooi Kee ("Kee"), who allocuted to participation in a conspiracy to distribute 400 Ecstacy pills and was deemed "safety valve" eligible pursuant to 18 U.S.C. § 3553(f), was sentenced by this Court to 12 months of imprisonment, a non-Guidelines sentence. The Guidelines range for Kee's offense was 24 to 30 months of incarceration. The Guidelines range for co-defendant King Sung Kang, who has allocuted to conspiring to distribute 100 Ecstacy pills, is 18 to 24 months of incarceration.

  On June 10, 2005, Chen's counsel wrote to the Court concerning Chen's sentence. (See Letter from Kirshner to the Court of 6/10/05.)

  The Sentencing Framework

  In accordance with the Supreme Court's decision in United States v. Booker, 125 S. Ct. 738 (2005), and the Second Circuit's decision in United States v. Crosby, 397 F.3d 103 (2d Cir. 2005), the sentence to be imposed was reached through consideration of all of the factors identified in 18 U.S.C. § 3553(a), including the advisory Sentencing Guidelines (the "Guidelines") establishing by the United States Sentencing Commission. Thus, the sentence to be imposed here is the result of a consideration of:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed —
(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 —
(A) 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. 18 U.S.C. § 3553(a). A sentencing judge is permitted to find all the facts appropriate for determining a sentence, whether that sentence is a so-called Guidelines sentence or not. See Crosby, 397 F.3d at 114-15.
The Defendant

  Chen was born on October 8, 1977, in the city of Zhejiang in the People's Republic of China ("China"). Chen's family still resides in Zhejiang. His father is employed as a commissioner of real estate development for the city of Zhejiang. Reportedly, he is in good health. Chen's mother is a retired factory worker. Chen has two siblings.

  Chen received a junior high school education in China. Chen is fluent in Mandarin. He has at least some ability to communicate in English.

  In 1999, Chen entered the United States illegally. Upon his arrival, he lived and worked at restaurant jobs in the Flushing area of Queens, New York. Chen is single, and he has no children.

  In April 2005, while incarcerated, Chen experienced a respiratory problem that required hospitalization. He has no history of mental illness. Chen has used cocaine, ecstacy and marijuana on a regular basis since 1999. He has received no treatment for this drug use.

  For three months during 2001, Chen worked as a sushi chef at a restaurant located in Manhattan, New York, earning a weekly salary of $600. Chen left this job for similar work at another Manhattan restaurant. Between 2002 and 2004, Chen worked at this second restaurant, earning a weekly salary of $700. Chen apparently has no assets and no ...


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