United States v. Chong

UNITED STATES OF AMERICA, v. CHIN CHONG, Defendant.

13-CR-570

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

FILED: September 24, 2014

September 22, 2014

STATEMENT OF REASONS FOR SENTENCING

Appearances:

United States of America:

Nadia Moore

U.S. Attorney's Office

271 Cadman Plaza East

Brooklyn, NY 11201

(718) 254-6362

Chin Chong:

Chase Scolnick

Federal Defenders of New York, Inc.,

One Pierrepont Plaza, 16 Floo

Brooklyn, NY 11201

(718) 330-1213

JACK B. WEINSTEIN, Senior United States District Judge:

Table of Contents

I. Introduction: Sentencing Non-Citizens Guilty of Serious Felonies....................................2

II. Context.................................................................................................................................4

A. Prison Overcrowding...............................................................................................4

B. Deportation.............................................................................................................5

III. Law.....................................................................................................................................6

A. Effect of Deportation on Sentencing.......................................................................6

B. Section 3553(a)(2) Factors......................................................................................7

1. Just Punishment...........................................................................................9

2. Deterrence..................................................................................................12

3. Incapacitation.............................................................................................14

4. Rehabilitation............................................................................................16

C. Sentence Disparities..............................................................................................18

IV. Facts..................................................................................................................................19

A. Defendant's Background.......................................................................................19

B. Offense Conduct....................................................................................................21

V. Application of Law to Facts .............................................................................................23

A. Section 3553(a)(2) Factors....................................................................................23

B. Sentence Disparities.............................................................................................25

VI. Sentencing Guidelines......................................................................................................26

A. Base Offense Level................................................................................................26

B. Calculations...........................................................................................................28

VII. Conclusion..................................................................................................................29

I. Introduction: Sentencing Non-Citizens Guilty of Serious Felonies

This memorandum addresses the sentencing of a noncitizen with significant ties to the United States who has committed a serious felony. He has dealt in methylone, a dangerous "recreational drug." See Mosi Secret, Safer Electric Zoo Festival Brings Serious Beats and Tight Security, N.Y. Times, Sept. 1, 2014, at A13 ("A rash of young people attending dance events around the country have died after showing symptoms consistent with overdoses from MDMA, methylone and other synthetic party drugs that are sold as Ecstasy or Molly.").

Under present national policy, such a defendant will almost certainly be removed from the United States after serving the incarceration portion of his sentence. Considering the grave hardships deportation entails, the nation's present deportation policy, and the core purposes of criminal sentencing, see 18 U.S.C. § 3553, imposition of minimal prison time, with prompt deportation should be normal in such cases—subject to variations for individual circumstances.

Chin Chong, the defendant, falls within a substantial class of noncitizens who are convicted of crimes defined as removable offenses. See 8 U.S.C. § 1227. He is a 29-year-oldlawful permanent resident with no prior criminal history, convicted of a single count for possession of a small amount of methylone (sometimes referred to as "Molly") with intent to distribute. Methylone was recently added to the list of Schedule I controlled substances. See Controlled Substances: Placement of Methylone Into Schedule I, 78 Fed. Reg. 21, 818 (Apr. 12, 2013); United States v. Chin Chong, 991 F. Supp. 2d 453, 456 (E.D.N.Y. 2014) (discussing "designer drug" prosecutions).

The defendant was caught trying to obtain through the mails a substantial quantity of the drug from a laboratory in China. It was imported for sale to his small circle of friends.

Since the age of twelve, Chong has lawfully lived in New York City. He remains a Malaysian citizen.

Until recently, district judges in this circuit were prohibited from considering the harsh consequences of deportation when imposing a term of incarceration. Compare United States v. Thavaraja, 740 F.3d 253, 262-63 (2d Cir. 2014) ("[A] district court may take into account the uncertainties presented by the prospect of removal proceedings and the impact deportation will have on the defendant and his family,") with United States v. Wills, 476 F.3d 103, 109 (2d Cir. 2007) ("[T]he district court erred as a matter of law in factoring into [defendant]'s sentence his likely deportation after serving his prison term."). Other courts of appeals have expressed the view that the likely prospect of deportation must be ignored at sentencing. See infra Part III. A.

Application of routine sentencing principles should lead district courts to account for the prospect of deportation when considering imposition of a term of incarceration. For district judges who face real persons—judges who are duty-bound to act "in a field of pain and death," Robert M. Cover, Violence and the Word, 95 Yale L.J. 1601, 1609 (1986)—sensitivity to the reactions of the individuals subject to our criminal justice system ensures that sentences are"sufficient, but not greater than necessary." 18 U.S.C. § 3553(a); cf. Primo Levi, The Drowned and the Saved 141 (1989) ("But above all . . . I contracted . . . the habit of never remaining indifferent to the individuals that chance brings before me.").

II. Context

A. Prison Overcrowding

Criminal sentencing is predicated on an "individualized assessment" of each defendant. Gall v. United States, 552 U.S. 38, 50 (2007). The question whether sentencing judges should consider—and how much weight they should give to—the prospect of deportation of the persons before them implicates broad legal, political, and social controversies. See generally Peter H. Schuck, Immigrant Criminals in Overcrowded Prisons: Rethinking an Anachronistic Policy, 27 Geo. Immigr. L.J. 597 (2013) (urging the early release and removal of many deportable immigrant criminals). A review of recent developments provides context for the case at hand.

The rapid growth of the American prison population has, in addition to destroying lives and communities unnecessarily, put significant strain on taxpayers and those tasked with warehousing the convicted. The situation has become so grave that the Supreme Court recently affirmed "what is perhaps the most radical injunction issued by a court in our Nation's history: an order requiring California to release the staggering number of 46,000 convicted criminals." Brown v. Plata, 131 S. Ct. 1910, 1950 (2011) (Scalia, J., dissenting); see also id. at 1928 (majority opinion) ("A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society."). The public safety benefits attributable to this vast carceral project are dubious. See, e.g., Franklin E. Zimring, The City that Became Safe: New York's Lessons for Urban Crime and Its Control 165 (2011) ("The limited data available make it quite clear that both the timing andmagnitude of the decline in serious crimes in [New York City] could not be accounted for by outmigration or incapacitation.").

B. Deportation

Debates over immigration continue to confound national policymakers. The recent arrival of thousands of unaccompanied minors at the United States' southern border is but the latest chapter of this ongoing saga. See Michael D. Shear & Jeremy W. Peters, Obama Asks for $3.7 Billion to Aid Border, N.Y. Times, July 9, 2014, at A1; Barry Moreno, Children of Ellis Island (2005) (discussing arrival of immigrant children, including unaccompanied minors, at Ellis Island). While "[i]mmigrants are less likely than American citizens to be convicted of crimes committed in the United States," the "number of immigrants in American prisons and jails is very significant." Schuck, Immigrant Criminals, 27 Geo. Immigr. L.J., supra, at 597.

Since the mid-1980s, the federal government has increasingly embraced a national policy of deporting immigrants who commit crimes. Id. at 642-49. Congress has expanded the definition of "aggravated felony," lowered the sentencing threshold required to make specific crimes the basis for deportation, subjected many immigrant criminals to summary deportation, and foreclosed most forms of discretionary relief. Id. at 644-45. The Executive Branch has been proactive, as well, seeking deportation of many individuals convicted of serious as well as minor crimes. Ginger Thompson & Sarah Cohen, More Deportations Follow Minor Crimes, Data Shows, N.Y. Times, Apr. 7, 2014, at Al ("[S]ince President Obama took office, two-thirds of the nearly two million...