17-3489-cr United States v. Cheng

17-3489-cr United States v. Jian Guo Cheng

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 5th day of March, two thousand nineteen.

PRESENT: BARRINGTON D. PARKER, DENNY CHIN, RICHARD J. SULLIVAN, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x UNITED STATES OF AMERICA, Appellee,

v. 17‐3489‐cr

JIAN GUO CHENG, Defendant‐Appellant. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x FOR APPELLEE: MARIA CRUZ MELENDEZ, Assistant United States Attorney (David C. James, Nadia E. Moore, Assistant United States Attorneys, on the brief), for Richard P. Donoghue, United States Attorney for the Eastern District of New York, Brooklyn, New York.

FOR DEFENDANT‐APPELLANT: MEGAN WOLFE BENETT, Kreindler & Kreindler LLP, New York, New York. Appeal from the United States District Court for the Eastern District of

New York (Amon, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Defendant‐appellant Jian Guo Cheng appeals from his sentence of 68

monthsʹ imprisonment following a guilty plea to conspiring to participate in the use of

extortionate means to collect and attempt to collect an extension of credit, in violation of

(a)(1). We assume the partiesʹ familiarity with the underlying facts,

procedural history, and issues on appeal.

On December 15, 2015, Immigration and Customs Enforcement (ʺICEʺ)

agents detained Cheng, a citizen of the Peopleʹs Republic of China, in connection with

his 2011 extortion conspiracy convictions and subsequently placed him in removal

proceedings. On the same day, the government separately arrested a few of Chengʹs

criminal associates, charging them, inter alia, with participating in a racketeering

organization. While challenging his removability, Cheng met with the government to

provide information about his criminal associates in an effort to avoid deportation. On

May 23, 2016, pursuant to a cooperation agreement, Cheng pleaded guilty to a one‐

count information charging him with conspiracy to engage in the extortionate collection

of credit; specifically, Cheng admitted to participating in a May 2013 assault during

which Cheng and his criminal associates punched and kicked John Doe 3, who was later

hospitalized, in connection with a gambling debt. As a condition of the cooperation

‐ 2 ‐ agreement, Cheng also stipulated that he participated in a second extortion scheme in

which he physically threatened an individual in an effort to collect on a separate

gambling debt. In June 2016, about two weeks after his plea, Cheng was released from

immigration custody on bail.

On November 24, 2016, while on bail and cooperating with the

government, Cheng was arrested for assault in the third degree, menacing in the third

degree, and harassment in the second degree, arising from a physical altercation

between Cheng and two men after Cheng berated and shoved the mother of a testifying

witness in the trial of one of Chengʹs criminal associates. Intercepted communications

from September 2016 also revealed that Cheng had been participating in the

management of an illegal gambling parlor during this time. As a result of Chengʹs post‐

plea misconduct, the government revoked the cooperation agreement, but Cheng did

not withdraw his guilty plea.

Prior to sentencing, Cheng objected to the Guidelines calculation set forth

in the presentence report, which included a two‐level increase for the ʺbodily injuryʺ

inflicted upon John Doe 3 during the May 2013 assault, and the denial of a three‐level

decrease for acceptance of responsibility. Cheng also argued that he was entitled to

sentencing credit for (1) his six‐month detention in immigration custody and (2) his

cooperation, including the assistance he provided prior to his 2015 arrest. After

reviewing the partiesʹ submissions and the evidence presented during a two‐day Fatico

hearing, the district court overruled Chengʹs objections to the two adjustments and

‐ 3 ‐ declined to credit his cooperation or the time spent in immigration custody. The district

court imposed a within‐Guidelines sentence of 68 monthsʹ imprisonment.

On appeal, Cheng challenges the procedural and substantive

reasonableness of his sentence, which we review under a deferential abuse of discretion

standard. See United States v. Cavera,

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

review a district courtʹs interpretation and application of the Guidelines de novo, United

States v. Kent,

(2d Cir. 2016), and factual findings for clear error, see

United States v. Mulder,

(2d Cir. 2001). ʺThe [g]overnment bears the

burden of proving the facts supporting the application of a Guidelines provision, and it

must do so by a preponderance of evidence.ʺ Kent,

. ʺUnder clear error

review, we uphold findings of fact that are plausible in light of the record viewed in its

entirety.ʺ United States v. Gonzalez,

(2d Cir. 2014) (internal quotation

marks omitted).

I. Procedural Reasonableness

A district court procedurally errs when it fails to consider the factors

outlined in

(a) or ʺrests its sentence on a clearly erroneous finding of

fact.ʺ Cavera,

. Unless the record suggests otherwise, however, ʺwe

presume that a sentencing judge has faithfully discharged her duty to consider the

statutory factors.ʺ United States v. Verkhoglyad,

(2d Cir. 2008) (internal

quotation marks omitted).

‐ 4 ‐ Cheng challenges the procedural reasonableness of his sentence on four

grounds. First, he argues that the district court failed to consider his cooperation prior

to his 2015 detention. This argument is meritless. The record demonstrates that at

sentencing, the parties and the district court thoroughly discussed Chengʹs efforts to

assist ICE and the government. The district court took Chengʹs efforts to cooperate into

account, and, as discussed further below, its decision not to grant Cheng a reduction

below the Guidelines range was not unreasonable under the circumstances.

Second, Cheng contends that the district court erred procedurally by not

granting him a two‐level downward adjustment for acceptance of responsibility. 1 It is

well established that a guilty plea ʺdoes not automatically entitle a defendant to a

sentencing reductionʺ under U.S.S.G. § 3E1.1, United States v. Woods,

(2d Cir. 1991) (per curiam), and a sentencing courtʹs determination as to whether a

defendant has accepted responsibility for his offense is accorded ʺgreat deference,ʺ

U.S.S.G. § 3E1.1 cmt. n.5. Here, the district courtʹs decision to deny Cheng acceptance‐

of‐responsibility credit was not without foundation. It is undisputed that Cheng

continued to operate a gambling parlor and associate with his criminal associates after

pleading guilty. Additionally, after the Fatico hearing, the district court found that

Cheng engaged in assaultive behavior in the November 2016 altercation. Moreover,

1 Although Cheng initially argued entitlement to a three‐point reduction for acceptance of responsibility, he ultimately conceded that he is not entitled to the third point as the government did not file a motion pursuant to U.S.S.G. § 3E1.1(b).

‐ 5 ‐ nothing in the record suggests that the district court misunderstood its authority to

depart downward despite its findings as to Chengʹs continued criminal conduct while

released on bail. Accordingly, we conclude that the district court acted well within its

discretion in denying Cheng any reduction for acceptance of responsibility in light of

his post‐plea misconduct.

Third, Cheng asserts that the district court erroneously applied a two‐level

enhancement pursuant to U.S.S.G. § 2E2.1 based on the bodily injury suffered by John

Doe 3 during the May 2013 assault. U.S.S.G. § 2E2.1(b)(2)(A) provides for an increase in

a defendantʹs offense level if a victim sustained significant injury, such as ʺan injury that

is painful and obvious, or is of a type for which medical attention ordinarily would be

sought.ʺ U.S.S.G. § 1B1.1 cmt. n.1(B). We conclude that the district courtʹs factual

findings were amply supported by the evidence introduced at the Fatico hearing as well

as John Doe 3ʹs medical records ‐‐ most notably, the medical recordʹs documentation of

blood found inside John Doe 3ʹs mouth and boot marks on his body.

Finally, Cheng argues that he should have been afforded a downward

departure for the six months he served in immigration custody pre‐indictment because

his detention was considered ʺofficial detentionʺ under the sentencing credit statute,

. In relevant part, Section 3585(b) provides that ʺ[a] defendant shall be

given credit toward the service of a term of imprisonment for any time spent in official

detention prior to the date the sentence commences.ʺ The U.S. Bureau of Prisons

Program Statement 5880.28, however, explicitly excludes time spent in the custody of

‐ 6 ‐ the U.S. Immigration and Naturalization Service ʺpending a final determination of

deportabilityʺ from the definition of ʺofficial detention.ʺ BOP P.S. 5880.28, 1‐15A.

Cheng urges us to adopt the reasoning in Zavala v. Ives, which held that a defendant is

entitled to credit toward his criminal sentence for any period spent in immigration

detention pending potential criminal prosecution ‐‐ as opposed to pending deportation.

(9th Cir. 2015). His reliance on Zavala, however, is misplaced, as he

conceded that he was detained during this period because he was challenging his

deportation determination. Chengʹs cooperation with the government as a way to

prevent his removal did not convert his status from pending deportation to pending

potential criminal prosecution. Thus, the district court did not commit procedural error

by denying sentencing credit for Chengʹs six‐month period in immigration custody.

II. Substantive Reasonableness

A sentence imposed by the district court is substantively unreasonable

only if it ʺcannot be located within the range of permissible decisions.ʺ Cavera,

(internal quotation marks omitted). Accordingly, we will set aside sentencing

decisions only in ʺexceptional cases,ʺ as we will not substitute our judgment for that of

the district court.

Cheng submits that the district court substantively erred by failing to

adequately account for his cooperation. We disagree. The district court expressly

evaluated Chengʹs assistance, noting his efforts to cooperate ʺcould have well benefited

himʺ and that it would have been ʺinclined to give [Cheng] some consideration for [it].ʺ

‐ 7 ‐ Appʹx at 353‐54. It also weighed the other mitigating factors cited by Cheng, including

his elderly parents and young children who all currently reside in the United States.

Nonetheless, the district court concluded that his continued participation in extortionate

gambling activities warranted a within‐Guidelines sentence. Therefore, in light of all

the circumstances presented, we conclude that the district courtʹs sentence was

substantively reasonable.

* * *

We have considered Chengʹs remaining arguments and find them to be

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

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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