United States District Court, S.D. New York
June 13, 2005.
UNITED STATES OF AMERICA,
LEI CHEN, Defendant.
The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
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.
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
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
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
(C) to protect the public from further crimes of the
(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
(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.
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 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 liabilities. He has never paid
U.S. income taxes, nor has he ever filed an income tax return.
The Offense Conduct
Between June 2003 and March 2004, Chen conspired with
co-defendant Daniel Ng to distribute 1,000 Ecstacy pills to
various individuals. These transactions all occurred in this
Relevant Statutory Provisions
The maximum term of imprisonment for Chen's offense is 20
years. See 21 U.S.C. §§ 846 and 841(b) (1) (C).
A term of at least 3 years of supervised release is required if
a sentence of imprisonment is imposed. See 21 U.S.C. §§ 846 and
841(b) (1) (C). Chen is eligible for not less than 1 nor more than 5 years of
probation. See 18 U.S.C. § 3561(c) (1). Because the offense is
a felony, one of the following must be imposed as a condition of
probation unless extraordinary circumstances exist: a fine,
restitution, or community service. See 18 U.S.C. § 3563(a)-(2).
The maximum fine for Chen's offense is $1 million. See
21 U.S.C. §§ 846 and 841(b) (1) (C). A special assessment of $100 is
mandatory. See 18 U.S.C. § 3013.
Pursuant to the Violent Crime Control and Law Enforcement Act
of 1994, for offenses committed after September 13, 1994, the
court shall require that all offenders on probation, parole, or
supervised release submit to one drug test within fifteen days of
commencement of probation, parole or supervised release and at
least two drug tests thereafter for use of a controlled
substance, unless ameliorated or suspended by the court due to
its determination that the defendant poses a low risk of future
substance abuse as provided in 18 U.S.C. §§ 3563(a)(5) and
The November 1, 2004 edition of the United States Sentencing
Commission Guidelines Manual ("the Guidelines") has been used in
this case for calculation purposes. See § 1B1.11. In the instant offense, Chen conspired to distribute 1,000
Ecstacy pills. In order to establish the appropriate offense
level, this quantity of Ecstacy must be converted into its
marijuana equivalent. See § 2D1.1, Application Note 10. For
calculation purposes, it is assumed that one Ecstacy pill
contains 250 milligrams of MDMA, Ecstacy's active ingredient.
See id., Application Note 11. Therefore, the total amount of
MDMA involved in this offense is deemed to be 250 grams. One gram
of MDMA is deemed equivalent to 500 grams of marijuana. See
id. (Drug Equivalency Tables). Therefore, Chen's offense
involved the equivalent of 125 kilograms of marijuana. See
id. The base offense level for an offense involving this
quantity of marijuana is 26. See § 2D1.1(c) (10).
Based on his plea allocution, Chen has shown recognition of
responsibility for the offense. Because of his timely
notification of his intention to plead guilty, thus allowing the
Government to allocate its resources more efficiently, and
because the aforementioned base offense level is 16 or greater,
the offense is reduced 3 levels. See §§ 3E1.1(a) and 3E1.1(b).
Based on the foregoing, Chen's adjusted offense level is 23. Chen has no known criminal convictions. Therefore, he has zero
criminal history points and a Criminal History Category of I.
Based on a total offense level of 23 and a Criminal History
Category of I, the guideline range for imprisonment is 46 to 57
months. See Ch. 5 Pt. A (Sentencing Table).
Because the applicable guideline range is in Zone D of the
Sentencing Table, Chen is not eligible for probation. See §
5B1.1, Application Note 2.
The guideline range for a term of supervised release is three
years, the minimum required by statute. See § 5D1.2(b).
The fine range for the instant offense is $5,000 to $1,000,000.
See §§ 5E1.2(c) (3)(A) and 5E1.2(c)(4).
Subject to a defendant's ability to pay, in imposing a fine,
the Court shall consider the expected costs to the government of
any imprisonment, probation, or supervised release. See §
5E1.2(d)(7). The most recent advisory from the Administrative
Office of the United States Courts suggests a monthly cost of
$1,931.97 to be used for imprisonment, a monthly cost of $292.21
for supervision, and a monthly cost of $1,590.66 for community
confinement. The Remaining Factors of 18 U.S.C. § 3553(a)
Having engaged in the Guidelines analysis, this Court also
gives due consideration to the remaining factors identified in
18 U.S.C. § 3553(a). In particular, the Court takes note of the fact
that Chen had apparently not engaged in any criminal activity of
this sort prior to this offense, that his health is fragile, and
that he has limited formal education. See
18 U.S.C. § 3553(a)(1). In addition, the Court takes note that the Guidelines
recommend that Chen serve significantly greater amounts of time
in comparison to co-defendants who have similar prior records and
engaged in similar conduct. See
18 U.S.C. § 3553(a)(6).*fn1 Based on the foregoing, it is determined that a non-Guidelines
sentence is warranted.
Chen is hereby sentenced to 34 months of incarceration. During
this period of incarceration, it is recommended that all
available drug programming for which Chen is eligible be made
available to him. Chen has been detained without bail since his
arrest. Therefore, he is not a candidate for voluntary surrender.
See 18 U.S.C. § 3143(a) (2).
This term of incarceration shall be followed by a 3-year term
of supervised release. Chen shall report to the nearest Probation
Office within 72 hours of release from custody. It is recommended
that he be supervised by the district of residence.
The following are mandatory terms of Chen's supervised release:
(1) He shall not commit another federal, state, or local crime;
(2) he shall not illegally possess a controlled substance; (3) he
shall not possess a firearm or destructive device; (4) he shall
cooperate in the collection of DNA as directed by the probation
officer; (5) the mandatory drug testing condition is suspended
due to imposition of a special condition requiring drug treatment
and testing. Furthermore, the standard conditions of supervision (1-13) are
recommended with the following special conditions:
(1) Chen will participate in a program approved by
the United States Probation Office, which program may
include testing to determine whether the defendant
has reverted to using drugs or alcohol. The Court
authorizes the release of available drug treatment
evaluations and reports to the substance abuse
treatment provider, as approved by the Probation
Officer. Chen will be required to contribute to the
costs of services rendered (co-payment), in an amount
determined by the probation officer, based on ability
to pay or availability of the third-party payment.
(2) Chen shall obey the immigration laws and comply
with the directives of immigration authorities.
Based on an analysis of Chen's financial resources, no fine
shall be imposed. However, a special assessment of $100, which is
payable to the United States, is due immediately.
This sentence is subject to modification at the sentencing
hearing currently scheduled for June 13, 2005.
It is so ordered.