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United States v. Chen

October 6, 2006

UNITED STATES OF AMERICA
v.
JIN CHEN, DEFENDANT.



The opinion of the court was delivered by: Denny Chin, U.S. District Judge

MEMORANDUM DECISION

Pro se defendant Jin Chen moves pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence on a variety of grounds. For the reasons set forth below, the motion is denied.*fn1

BACKGROUND

A. The Facts

Chen appeared before me on February 25, 2004, and pled guilty to the following:

In December 2000 and January 2001, Chen, along with several others, planned and executed two separate robberies, one in New Jersey and one in Arizona. (Plea Tr. at 14-18).*fn2 First, in December 2000, Chen and others robbed a home in New Jersey, where they knew there would be money from a "snake head" -- i.e., someone involved in the business of smuggling aliens from China into the United States. (Id. at 14-15). Chen admitted to using a firearm during this robbery, and admitted that he and his co-conspirators had agreed to use force or the threat of force. (Id. at 15-16).

Second, on or around January 15, 2001, Chen and others robbed a home in Phoenix, Arizona, where they knew there would be money from a local restaurant business. (Id. at 17). Chen admitted that he and his co-conspirators had agreed to use force or the threat of force during this robbery as well. (Id.).

B. Prior Proceedings

Chen was indicted on May 7, 2003. On February 25, 2004, Chen entered into a plea agreement (the "Agreement") with the Government. (Agreement at 1). The Agreement provided that Chen would plead guilty to two counts of conspiracy to commit robbery in violation of 18 U.S.C. § 1951, and one count of brandishing a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c). (Id.). Chen and the Government stipulated to an offense level of 25, a criminal history category of II, and a sentencing range of 147 to 162 months imprisonment. (Id. at 4-5). The Agreement provided that:

It is . . . agreed [] that the defendant will not file a direct appeal from, nor litigate under Title 28, United States Code, Section 2255 and/or Section 2241, any sentence within or below the Stipulated Sentencing Guidelines Range set forth above (147 to 162 months). (Id. at 6-7).

On February 25, 2004, Chen appeared before this Court represented by retained counsel, and with the assistance of an interpreter, he proceeded to plead guilty pursuant to the terms of the Agreement. I discussed with defendant whether he fully understood the Agreement, and whether he was voluntarily entering into it. The discussion included, for example, the following:

THE COURT: Have you had a full opportunity to discuss your case with Mr. Labush and to discuss the consequences of entering a plea of guilty?

THE DEFENDANT: Yes. . . .

THE COURT: Are you satisfied with Mr. Labush and his representation of you?

THE DEFENDANT: Yes, I am satisfied. . . .

THE COURT: I'm going to review with you now the maximum possible penalties. Counts one and 18 are the robbery conspiracy counts, they each carry a maximum sentence of 20 years imprisonment . . . Do you understand that?

THE DEFENDANT: Yes, I do.

THE COURT: Count two is the gun count, it carries a maximum sentence of life imprisonment, a mandatory minimum term of seven years imprisonment, which must run consecutively to any sentence imposed on count one . . . Do you understand that?

THE DEFENDANT: Yes.

THE COURT: Now do you understand that if you are convicted on all three counts, as a theoretical matter you could receive as much as 40 years imprisonment on counts one and 18, you could receive as much as life on count two, and at a minimum I would have to sentence you to seven years imprisonment on count two to run following any sentence that I impose on count one. Do you understand that?

THE DEFENDANT: Yes. (Plea Tr. at 4, 8-9).

Following the guilty plea, the probation department prepared a presentence report (the "PSR") containing a calculation of the appropriate sentence under the sentencing guidelines. The probation department determined that the offense level stipulated to by the parties in the Agreement did not accurately reflect the facts of the case. (PSR at 21; Sent. Tr. at 3). The PSR recommended an additional 1-level increase with respect to count 18 because "two handguns were taken during the course of the offense." (PSR at 20).

The probation department calculated the final offense level by taking the count with the highest offense level -- here, count 18 had an offense level of 28 -- and increasing that level pursuant to § 3D1.4. (Id.). The other counts added up to a total of 1 1/2 units, which added one offense level, resulting in an adjusted level of 29. (Id.). The PSR adjusted the final offense level 3 levels downward for acceptance of responsibility. (Id.). Accordingly, the final offense level was 26, one level above the stipulated offense level of 25. (Id. at 21; Agreement at 5).

The probation department therefore recommended that the Court apply a guideline range of 154-171 months, rather than 147-162 months, and impose a sentence of 154 months imprisonment. (PSR at 31). The 154 months was to be comprised of 70 months for counts 1 and 18, concurrently, followed by 84 months for count 2, to be served consecutively. (Id.).

On March 4, 2005, the parties appeared before me to discuss a potential conflict of interest that defendant's attorney might face. The courtroom was closed to the public, and the hearing was sealed in the interests of justice. During that hearing, I explained to defendant that his attorney was facing a potential conflict of interest, and that he was entitled to be represented by counsel free of any potential conflict of interest. I further explained that if he wanted new counsel but could not afford new counsel, I would appoint new counsel for defendant -- free of cost. Defendant responded that he fully understood the potential conflict of interest his attorney was facing, and that he wished to continue with him as his attorney. I allowed defendant's attorney to remain on the case. One consideration was that Chen had ...


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