The opinion of the court was delivered by: Sweet, D.J.,
On July 19, 2006, defendant Leong Seng Cheah ("Cheah") pled guilty to one count of possession with intent to distribute MDMA (commonly referred to as "Ecstasy") in violation of 21 U.S.C. §§ 812, 841(a) (1), and 841(b)(1)(C) and one count of conspiring to distribute and possess with intent to distribute MDMA in violation of 21 U.S.C. § 846. Both counts are Class C felonies. For the reasons set forth below, Cheah will be sentenced to time served and a three-year term of supervised release. Cheah will also be required to pay a mandatory special assessment of $200.
On March 23, 2004, a seven-count superseding indictment was filed alleging that Cheah and other co-defendants engaged in various offenses relating to the distribution of Ecstacy. Cheah was arrested on March 31, 2004, and has been incarcerated since that date. On July 6, 2004, a second superseding indictment was filed with respect to Cheah and the other co-defendants.
On July 19, 2006, Cheah appeared bef.re the Honorable Theodore H. Katz of this district and pled guilty to the offense charged in the fifth and seventh counts of the second superseding indictment in accordance with a plea agreement entered into with the Government. Cheah's guilty plea was accepted" by this Court on August 15, 2006, and he is scheduled to be sentenced on November 3, 2006.
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 10 (2d Cir. 2005), the sentence to be imposed was reached through consideration of all of the factors identified in 18 U.S.C. § 3553(.), including the advisory Sentencing Guidelines (the "Guidelines) established by the United States Sentencing Commission. Thus, he sentence to be imposed here is the result of a consideration of: the nature and circumstances of the offense and the history and characteristics of the defendant; the need for the sentence imposed (A) to reflect the seriousness of the offense, to promote respect for the law, an. to provide just punishment for the offense; to afford adequate deterrence to criminal conduct; to protect the public from further crimes of the defendant; and to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; the kinds of sentences available; 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 ...; any pertinent policy statement ... [issued by the Sentencing Commission]; the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and the need to provide restitution to any victims of the offense.
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 111.
The following description draws on the Pre-Sentence Investigation Report prepared by the Probation Office of the United States District Court for the Southern District of New York on September 8, 2006 ("the PSI"). Additional facts regarding Cheah's history and characteristics are adopted as set forth in that report.
Leong Seng Cheah was born in Malaysia in December 1978. According to Cheah, he was raised under poor economic conditions in a rural area of Malaysia. His upbringing was left to his paternal grandparents until Cheah reached the age of about ten years old, because his parents went overseas to Japan in order to be able to work. Cheah entered the United States in 2000. He has never been married and has no children. Cheah stopped attending school in Malaysia when he was about 13 or 14 years of age. He has not received any additional formal educational or vocational training. Before his incarceration beginning in April 2004, Cheah reports having worked in construction and being employed as a cook in a Chinese restaurant.
The following description draws on the PSI. The specific facts of the underlying conduct are adopted ...