16‐3203‐cr United States v. Kwok

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 19th day of December, two thousand seventeen.

PRESENT: RALPH K. WINTER, DENNY CHIN, Circuit Judges, EDWARD R. KORMAN, District Judge.* ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

UNITED STATES OF AMERICA, Appellee,

v. 16‐3203‐cr

CHEN I. CHUNG, SIU MAN WONG, TUNG TRAN, BRIAN CHAN, DANNY NGO, KENNETH CHENG, JOSEPH WANG, ALEX WONG, ALECK YIM, CHIANG T. CHENG, STEVEN NG, ALLAN LIN, CHEN LONG LI, KIN FEI WONG, Defendants,

* Judge Edward R. Korman, of the United States District Court for the Eastern District of New York, sitting by designation.

ROGER KWOK, Defendant‐Appellant.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

FOR APPELLEE: DOUGLAS M. PRAVDA, Susan Corkery, Assistant United States Attorneys, for Bridget M. Rohde, Acting United States Attorney for the Eastern District of New York, Brooklyn, New York.

FOR DEFENDANT‐APPELLANT: SEAN HECKER, Emily A. Johnson, Alex Ginsberg, Harold W. Williford, Debevoise & Plimpton LLP, New York, New York.

Appeal from the United States District Court for the Eastern District of

New York (Johnson, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the amended judgment of the district court is

AFFIRMED.

In 1992, defendant‐appellant Roger Kwok was convicted in the court

below of racketeering and related crimes, including participating in the kidnapping and

murder of two people. He was 16 years old and part of the Green Dragons gang when

he committed the crimes. He received a mandatory sentence of life imprisonment. The

sentence and conviction were affirmed on appeal. United States v. Wong,

(2d Cir. 1994).

In 2012, the Supreme Court decided Miller v. Alabama,

(2012),

holding that mandatory life imprisonment without parole for those under the age of 18

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at the time of their crimes violates the Eighth Amendmentʹs prohibition on cruel and

unusual punishment. Relying on Miller, Kwok filed a successful motion pursuant to

to vacate the sentence.

On June 9, 2016, the district court resentenced Kwok to 37 yearsʹ

imprisonment after considering the victim impact statement in Kwokʹs case and a

victim impact statement submitted in the resentencing of another gang member, Alex

Wong, for different crimes.1 An amended judgment was entered on September 2, 2016.

On appeal, Kwok argues that his sentence should be vacated as procedurally and

substantively unreasonable. We assume the partiesʹ familiarity with the underlying

facts, procedural history, and issues on appeal.

We review sentencing decisions for procedural and substantive

reasonableness. See United States v. Cavera,

(2d Cir. 2008) (en banc);

United States v. Verkhoglyad,

(2d Cir. 2008). We apply a ʺdeferential

abuse‐of‐discretionʺ standard to both procedural and substantive review. Cavera,

(quoting Gall v. United States,

(2007)). Because Kwok did not

raise his arguments below during the resentencing proceeding, we review the

1 Kwok was the youngest of eight defendants, all members of the Green Dragons gang, who were charged with crimes under the Racketeer Influenced and Corrupt Organizations Act,

et seq. Kwok was charged and sentenced in connection with the murders of Tina Sham and Tommy Mach in February 1990. Wong was another member of the gang, but was charged and convicted for separate crimes involving the murders of Mon Hsiung Ting and Anthony Gallivan in July 1989.

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sentencing decision of the district court for plain error. United States v. Alvarado,

(2d Cir. 2013) (per curiam) (ʺWhere, as here, a defendant contests the

procedural reasonableness of his sentence on appeal, but did not raise his objections

before the district court, we review for plain error.ʺ) (citation omitted). ʺA finding of

ʹplain errorʹ requires that: (1) there is an error; (2) the error is clear or obvious, rather

than subject to reasonable dispute; (3) the error affected the appellantʹs substantial

rights, which in the ordinary case means it affected the outcome of the district court

proceedings; and (4) the error seriously affects the fairness, integrity or public

reputation of judicial proceedings.ʺ

(citation omitted).

I. Victim Impact Letter

On appeal, Kwok argues that it was plain error for the district court to rely

on a sealed letter from Wongʹs resentencing without notice to Kwok or providing him

access to the contents of the letter. Kwokʹs sentencing submission to the district court

noted that Wong received 35 yearsʹ imprisonment, despite ʺa more significant and

prolonged history of violent behaviorʺ than Kwok, and argued that a sentence of 27 to

30 yearsʹ imprisonment was therefore reasonable for Kwok. App. 93. Accordingly,

Kwok provided the transcript of Wongʹs resentencing as a reference. The transcript of

Wongʹs resentencing included a lengthy discussion of victim impact letters and direct

quotations from one sealed letter in particular.

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ʺRule 32 and due process require . . . notice of all relevant information that

could be used in determining a defendantʹs sentence and opportunity to object.ʺ United

States v. Romano,

(2d Cir. 1987). We have found that the notice

requirements include victim letters. See United States v. Berndt,

(2d Cir.

1997). It is undisputed that Kwok was not given prior notice that the sealed letter

would be considered, and that he was not given a copy of the letter. See Fed. R. Crim. P.

32(i)(1)(B). The government concedes that by relying on the sealed victim impact

statement in Wongʹs case in determining Kwokʹs sentence, (1) the district court erred,

and (2) the error was clear or obvious. The government argues, however, that prongs

three and four of the plain error test were not met. We agree.

Even if we accept the concession that the district court clearly erred in

comparing the victim impact statement regarding Kwok to that regarding Wong under

these circumstances, Kwok has not demonstrated that the error affected the outcome of

the sentencing proceedings or that it seriously affected the fairness, integrity, or public

reputation of judicial proceedings. Kwok submitted the transcript of the Wong

resentencing to the district court himself, and that transcript contained a lengthy

discussion of the victim impact letters in that case. The sentencing transcript provided

Kwok with a summary of the Wong letters and some of the actual words of the sealed

letter, and we are not persuaded that he would have been sentenced any differently had

he been provided copies of the letters themselves. See Berndt,

(affirming

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sentence and finding that district courtʹs failure to provide defendant access to a victim

letter was harmless error).

In addition, we reject Kwokʹs argument that the district court committed

procedural error in considering ʺvictim forgiveness.ʺ Def. Br. at 17. A sentencing court

may, of course, consider victim impact evidence. See Payne v. Tennessee,

,

824‐25 (1991); United States v. Eberhard,

(2d Cir. 2008);

(a)(4) (a crime victim has the ʺright to be reasonably heard at any public proceeding

in the district court involving . . . sentencingʺ); Fed. R. Crim. P. 32(i)(4)(B) (ʺBefore

imposing sentence, the court must address any victim of the crime who is present at

sentencing and must permit the victim to be reasonably heard.ʺ). Moreover, ʺ[t]he

sentencing courtʹs discretion is ʹlargely unlimited either as to the kind of information [it]

may consider, or the source from which it may come.ʹʺ Eberhard,

(quoting United States v. Carmona,

(2d Cir. 1989)) (emphasis omitted).

In light of these considerations, we have no difficulty with a sentencing court taking

into account a victimʹs views of a defendantʹs actions and whether the victim is willing

to forgive the defendant for his transgressions, provided that the district court considers

other factors, as it did here. In particular, the court considered Kwokʹs youth at the time

of the offense, his rehabilitation, the pain and suffering of the two victims, and ʺthe

factors of 3553(a) and . . . the oral arguments.ʺ App. 146. Accordingly, we find that

there was no plain error.

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II. Substantive Reasonableness

We will ʺset aside a district courtʹs substantive determination only in

exceptional cases where the trial courtʹs decision ʹcannot be located within the range of

permissible decisions.ʹʺ Cavera,

(quoting United States v. Rigas,

(2d Cir. 2007)) (emphasis in original). Here, we cannot say that a sentence of 37

yearsʹ imprisonment for participation in the kidnapping and murder of two people

under these circumstances is outside the range of permissible decisions. Given the

nature of the crime, the facts in the record, and the deference afforded to district courts

in sentencing, we reject Kwokʹs argument that his sentence was substantively

unreasonable.

. . .

We have considered Kwokʹs remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the amended judgment of the district court.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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