Opinion
90 CR 1019-4 (RJD)
2022-01-06
UNITED STATES of America, v. Brian CHAN, Defendant.
Andrew Patrick Wenzel, Government Attorney, John O'Donnell Enright, Gilbert Rein, DOJ-USAO, Brooklyn, NY, Chand Warren Edwards-Balfour, Douglas M. Pravda, Government Attorneys, Antoinette N. Rangel, United States Attorney's Office, Brooklyn, NY, for United States of America.
Andrew Patrick Wenzel, Government Attorney, John O'Donnell Enright, Gilbert Rein, DOJ-USAO, Brooklyn, NY, Chand Warren Edwards-Balfour, Douglas M. Pravda, Government Attorneys, Antoinette N. Rangel, United States Attorney's Office, Brooklyn, NY, for United States of America.
MEMORANDUM & ORDER
DEARIE, District Judge.
Defendant Brian Chan is serving multiple life sentences for murders he committed in February 1990, less than two months after his eighteenth birthday. Before the Court is his motion for a reduction in sentence pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). The statute authorizes the Court to "reduce a term of imprisonment . . . after considering the factors set forth in [18 U.S.C.] § 3553(a) to the extent that they are applicable, if it finds that extraordinary and compelling reasons warrant such a reduction." Id. When considering whether such reasons exist, "district courts today are no longer confined to the reasons set forth by the Bureau of Prisons Director but are instead free 'to consider the full slate of extraordinary and compelling reasons that an imprisoned person might bring before them.' " United States v. Jones, 17 F.4th 371, 374 n. 3 (2d Cir. 2021) (quoting United States v. Brooker, 976 F.3d 228, 235-37 (2d Cir. 2020)).
The Circuit has established that "a district court's discretion in this area—as in all sentencing matters—is broad," Brooker, 976 F.3d at 237, and that "[t]he only statutory limit on what a court may consider to be extraordinary and compelling is that '[r]ehabilitation alone shall not be considered an extraordinary and compelling reason.' " Id. at 237-38 (quoting, 28 U.S.C. § 994(t)).
The exhaustion requirement is not at issue. The government does not dispute that Chan filed a request for compassionate relief with the Warden of U.S.P. Pollock that was denied on January 7, 2021. Dkt. No. 523 at 34.
As reasons warranting a sentence reduction here, Chan offers the following: i) his youth at the time he committed his offenses; ii) the fact that he just missed qualifying for the relief from a parole-less life sentence under Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) that was granted to three slightly younger but comparably culpable codefendants; iii) his earnest remorse; and iv) his delayed but quite substantial rehabilitation.
As will be discussed, Chan's motion is granted. The Court finds that the reasons Chan offers are indeed extraordinary and compelling, and upon consideration of those reasons and the applicable 18 U.S.C. § 3553(a) factors, the Court imposes a reduced sentence of thirty-three years.
See Jones, 17 F.4th at 374 (explaining that "extraordinary and compelling reasons are necessary—but not sufficient—for a defendant to obtain relief under § 3582(c)(1)(A)" and that "a district court must also consider the factors set forth in section 3553(a) before granting relief").
FACTUAL BACKGROUND
A. Offense Conduct and Personal Background
The Court addresses here only the facts relevant to the relief Chan seeks and assumes the parties' familiarity with the full record.
Chan committed his offense conduct while a new recruit of the Green Dragons, a powerful gang and racketeering enterprise founded in the mid-1980s by Kin Fei Wong as an offshoot of a Manhattan-based Asian gang. Functioning as the new gang's "Dai Lo" or "Big Brother," Kin Fei Wong established its base of operations in the predominantly Chinese sections of Elmhurst and Flushing, Queens. At the direction of the Dai Lo, gang members "primarily extorted 'protection' money from Chinese-run businesses," "engaged in periodic armed robberies," and "frequently employed violence to defend and expand their turf, assaulting, kidnapping, and murdering rival gang members, potential witnesses, and businessmen who refused to pay protection money." United States v. Wong, 40 F.3d 1347, 1355 (2d Cir. 1994) (affirming convictions and sentence), cert. denied, 516 U.S. 870, 116 S.Ct. 190, 133 L.Ed.2d 127 (1995).
The gang's work began, however, at the level of the "schools and playgrounds in Queens," id. at 1356, where senior members lured susceptible Asian teenagers, like Chan, into the gang's cult-like fold. Supplanting other influences in the recruits' lives, the gang arranged for most new recruits to "move out of their families' homes and into apartments or 'safe houses' maintained by the gang, where they lived with other members under the supervision of more senior members," id. at 1356 (cleaned up), and were supplied with food, shelter, community, material possessions and even pocket money. Chan's Supp. Ltr., Dkt. No. 527 at 4.
The Court draws from Chan's motion papers and letter of remorse (Dkt. Nos 523, 527, 529); letters submitted by current and former fellow inmates (Dkt. Nos. 530-33, 535,-36, 538, 540, 544); and letters from Chan's older brother Perry Chan (Dkt. No. 526), family friend Vivian Sun (Dkt. No. 539), and Chan's uncle, Paul Yeung (Dkt. No. 545). The government has not disputed the factual content of these submissions.
Chan was recruited in the spring of 1989, several months after he turned seventeen, on January 4, 1989. A snapshot of Chan's life at the time reveals his immaturity and susceptibility to gang influence. As both the PSR and Chan's submissions on this motion detail, Chan was born in Hong Kong in 1972 and first came to the United States with his parents when he was nine years old, then briefly returned to Hong Kong with his mother, twice, before returning to the United States for good when he was 14, in 1986, the same year that his father died. The PSR reports that Chan lived in an "intact household" until his father's passing, id. at ¶ 203, and even in Chan's effort here to cast himself as "lost" at the time he joined the Green Dragons, Dkt. No. 527 at 3, Chan concedes that he was well provided for in his early years. He states that he was "raised in a good home environment" while in Hong Kong, id. at 1, and while complaining that his parents were "hardly around," he was not unsupervised; the family was apparently of sufficient economic privilege to arrange for Chan to be "raised by nannies," id. at 2. Chan's older brother Perry likewise describes the family's early years as a "comfortable and loving environment." Dkt. No. 526 at 1.
The Presentence Investigation Report ("PSR") devotes only two of its 224 paragraphs (which span thirty-five pages) to skeletal details of Chan's early years. See PSR at ¶¶202, 203, 206. Chan does not dispute the PSR's contents but in support of his motion offers additional details of events leading up to his decision to join the Green Dragons, an account the government does not challenge.
Once in the United States, Chan says, his parents continued to be mostly absentee, but the family had the means to enroll him in a "semi-military boarding school" from fifth through eighth grade. Id. Still, Chan says, he faced ridicule and bullying in this country because he did not fit in culturally and struggled with the English language. According to his brother Paul, the two Chans were the only Asians at the school and experienced "routine racism" from the students and a teacher. Dkt. No. 526 at 1. He also states that he was baptized a Roman Catholic during this time. Id.
The turning point occurred after the death of Chan's father in 1986, when Chan was 14. While the actual role of Chan's father in Chan's life remains unclear, Chan says that it was after his father's passing that his life began to unravel because his mother struggled financially, in her relationships, and in other ways, and soon handed Chan off to a succession of friends and relatives. By age 16, Chan says, his brother and he were living "on [their] own" and "without adult supervision." Id. (Chan's brother offers a similar description of events, except stating that the two brothers were living on their own when Chan was only 14.). As a result, Chan says, he mostly "hung around the streets with no regard [of] time or rules." Id.
On the one hand, Chan remarks that he did not know his father well because he was hardly around. On the other, Chan states that the "one lasting memory" he has dates back to when he was 5 years old and his father came home with bloody clothing after being stabbed during a robbery attempt at a gambling parlor (Chan does not specify whether his father was the victim or perpetrator of the crime). Chan also references the times he accompanied his father on visits to a prominent member of the local Chinese community whom Chan knew to be a high ranking member of another gang—and his father's friend. Id.
Years later, when contemplating whether to accept the invitation to join the Green Dragons, Chan says he remembered that some friends of his father and mother were in gangs and "seemed pretty well off" even though they did not have jobs. Id. Several years after that, while Chan was in the Metropolitan Correction Center awaiting trial in this matter, Chan crossed paths with two other "notable friends" of his parents who were veteran gang members—Johnny Eng, the exleader of the Flying Dragons and his father's godson, and Hung Oi Wang, whom he "was told to call 'auntie.' " Id. Chan's brother, addressing the same subject, offers that it was only by "piecing together bits and pieces of hearsay" and additional "reflection" that he realized that their "parents' friends were criminals . . . convicted of drug trafficking and gang-related crimes." Dkt. No. 526 at 2.
In the spring of 1988, while he was still 16, Chan had his first encounter with the law when he was arrested for automobile theft. Incarcerated in the same facility where Chan was held were future codefendant Sonny Wong and other older members of the Green Dragons. Later that year, Chan had his first encounter with violence when he became involved in a racially motivated fight and suffered stab wounds, including a puncture to his kidney, that required a two-month in-patient hospitalization. Chan says this episode fundamentally destroyed his sense of safety at a time he felt he had no one to whom he could turn for support or guidance. At just that time, members of the Green Dragons "heard about [Chan's] situation," approached him, and invited him to join the gang. Id. at 3. Chan states that he did not understand then "what it really meant" to be a Green Dragon but was enticed. Id. He knew only that gangs were popular among the Asian teen subculture, that the gang members seemed not to work or go to school and yet dressed well, drove nice cars, and always had "attractive females around." Id.
After Chan moved into gang-run housing his "confidence . . . began to grow as he learned the gang life and the streets, and by carrying a gun." Id. (cleaned up). Chan saw in gang life a clear "advantage" (id. at 4): he "no longer had to wonder how he was going to support himself or where his next meal would come from," his material needs were met, and he was even given pocket money. Id. In Chan's words, he "was no longer lost." Id. at 4. Looking back at his younger self, Chan states that, "[w]ithout any adult role model or disciplinarian, [he] was particularly vulnerable" to the "allure of the gang's brotherly culture," and that the influence of his girlfriend, who tried to pull him out of gang life, "paled in comparison" to the influence of his "gang brothers." Id. at 5. (Chan's brother likewise opines that "once 'introduced,' the hold of the gang on [Chan] was too strong for him to break even if he wanted to." Dkt. No. 526 at 3).
A similar assessment is found in the letter from Vivian Sun, "a close friend" who met Chan "before his time with the gang and watched as it all unfolded." Dkt. No. 539 at 1 (cleaned up). Sun writes that after Chan's father passed away, "his single mother fled and basically let her teen children fend for themselves" and that Chan "did not have a home or any basic resources [and] chose to live on [a friend's] sofa." Id. Sun also believes that the stabbing and lengthy hospitalization Chan experienced at this time "heavily impacted [him]," leaving him with "insecurity and the lack of stability and safety." Id. Finally, Sun believes that "[w]hen the gangs came recruiting, Brian was an ideal target—no home, no money, no family." Id.
On February 23, 1990, less than a year after he joined the Green Dragons and fifty days after he turned eighteen, Chan participated in one of the gang's signature crimes—the murder of potential witnesses—ordered by gang operations leader and codefendant Chen I. Chung. The victims were Tina Shan, who had testified against the gang in a state court proceeding, and Tommy Mach, her boyfriend, who was with her at the time chosen for her murder.
On that day, Chan was eating with other gang members at the Crown Palace in Queens when Sham and Mach were spotted eating at the same establishment. At Chung's direction, Chan, along with codefendants Alex Yim (a cooperator who testified), Tung Tran, and Roger Kwok, kidnapped Mach and Sham at gunpoint in the parking lot, bound them, and transported them to a wooded area in Sands Point, Long Island. See Trial Tr., Mar. 3, 1992, at 3165 et seq. At the destination, Chan helped take the victims out of the car and into the woods. Yim told Chan to "let the new kid do it." Id. at 3223. The reference was to Kwok, the gang's newest member. Mach and Sham were forced to kneel and, at Yim's instruction and while Chan stood by, Kwok shot them in the head at point-blank range. Yim then fired several more shots into each of the victim's bodies. Id. at 3224.
Chan's seniority to Kwok was not the only reason that the shooting was assigned to Kwok: Yim testified that he "had [Kwok] do it" rather than Chan because the weapon used in the shooting would then be disposed of, and at the time Kwok had a revolver while Chan had a more valuable automatic. Id. at 3299. Chan and not Kwok, however, accompanied Yim when he later disposed of Kwok's revolver in a lake in Flushing Meadow Park. Id. at 3298. Chan also apparently sought to take credit for being the shooter, according to cooperator Siu Man (aka "Sonny") Wong, who testified that later that same day, Chan told Chung that Kwok and he "each shot one person." Id. at 3790-91 (emphasis added).
Four days after the murders of Sham and Mach, Chan murdered Jin Lee Seok, a member of the Korean Power gang whom Chan mistakenly believed, at the time he shot him, to be a member of the Green Dragons' rival Born To Kill ("BTK"), a Vietnamese gang. On direct appeal, Chan challenged the sufficiency of the evidence to support his conviction for this murder and, as will be discussed infra, vestiges of that challenge arguably recur in the compelling statement of remorse that Chan submits in support of his current application. For these reasons the Court here references the facts of the Seok murder as found by the Second Circuit when rejecting Chan's sufficiency challenge.
Shortly after 5:30 p.m. on February 27, 1990, Peerapol Busapavanij was sitting in the front seat of his car on Ketcham Street in Elmhurst, repairing his seat belts. Busapavanij saw a car drive by him, and saw someone jump out of the car and go down the street. He then heard some shots, turned and saw a man firing a gun, and then saw the same car back up, pick up the gunman, and drive away. When police responded to the scene, they found Jin Lee Seok dead from two bullet wounds to the head. Analysis of gunpowder residue indicated that one of the bullets had been fired from a distance of approximately two feet. Busapavanij had noted the car's license number, and reported it to the police. It was assigned to a 1984 grey Mercury registered to Brian Chan . . . .Wong, 40 F.3d at 1379 (cleaned up).
On the evening of the murder, Sonny Wong was standing in the doorway of a shop in Elmhurst when he saw Brian Chan and Tung Tran in Chan's Mercury chasing four young Asian men who ran in the direction of Ketcham Street in Elmhurst. Later that evening, Sonny Wong met Chan, Tran, and other members of the gang at a pool hall. Chan told Sonny Wong that he had spotted members of BTK, a rival gang, in their area and that he and Tran had given chase. Chan told Wong that "he was sitting on the car door and he shot at one of the guys that was running."
Chan's unsuccessful appellate insufficiency claim emphasized (i) that other gang members had driven the Mercury registered in Chan's name; and (ii) that Chan's statement to Wong that he had been sitting on the car door when he shot at rival gang members was inconsistent with other evidence (Busapavanij's testimony and the autopsy report) indicating that the fatal injuries were inflicted at close range. Id. at 1381.
B. Procedural History
Chan's conviction followed a ten week trial in 1992 before then-district Judge Reena Raggi. In addition to the three murders, the jury also convicted Chan of multiple counts of racketeering, several robberies, extortion, bribery, and conspiracies to commit these crimes. See Jury Verdict Dkt. No. 16, Judgment Dkt. No. 69. Relevant to the present motion, Judge Raggi imposed on each of the murder counts the mandatory life sentence without the possibility of parole required by 18 U.S.C. § 1959(a)(1). Id. With a total offense level of 46 and criminal history category II, Chan's sentence under the then-mandatory Guidelines was also life. See PSR at p. 34.
In the two-plus decades since his conviction was affirmed, Chan has filed numerous, unsuccessful post-conviction motions seeking relief from his sentence, including: a 1997 application for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 denied by Judge Raggi; an application for leave to file a successive § 2255 petition denied by the Second Circuit in 2000; motions for reconsideration of Judge Raggi's denial of habeas relief denied by this Court in 2006 and 2007; a petition for a writ of audita querela denied by this Court in 2011; and yet another motion to reconsider Judge Raggi's denial of habeas relief that this Court dismissed, in 2014, as an unauthorized successive habeas petition.
On March 16, 2018, however, a possible avenue to sentencing relief appeared with the Circuit's grant of Chan's application for leave to file a successive § 2255 motion arguing that the life sentence should be vacated under Miller, which held that "mandatory life without parole for those under 18 at the time of their crimes" violates the Eighth Amendment, 567 U.S. at 465, 132 S.Ct. 2455, and Montgomery v. Louisiana, 577 U.S. 190, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), which held that Miller was retroactive on collateral review. See Dk. No. 476 (Second Circuit mandate dated March 16, 2018, holding that Chan "made a prima facie showing that he has satisfied the successive motion requirements" and directing this Court "to address, as a preliminary inquiry under 28 U.S.C. § 2244(b)(4), whether Montgomery and Miller entitle Chan to relief") (cleaned up).
On the required preliminary inquiry this Court found Chan's claim cognizable because it "relie[d] on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." Dkt. No. 503 (Mem. & Order dated Jan. 10, 2020, at 3) (quoting 28 U.S.C. § 2244(b)(2)(A)). This Court nevertheless denied habeas relief.
Conceding that Miller embodies the long established age-of-18 line distinguishing adults from juveniles, Chan nevertheless asked the Court to extend the Miller rationale to his adult crimes. He argued that the qualities distinguishing adults from juveniles for sentencing purposes did not disappear when he turned 18, or a mere 50 and 54 days later. He also argued that the sting of being on the wrong side of a bright-line rule was exacerbated by Miller's legacy in this case. Pursuant to Miller, the § 1959(a)(1) mandatory life sentences of three comparably culpable codefendants were vacated and substantially shortened terms were imposed at resentencing. Roger Kwok, the actual shooter of Tina Sham and Tommy Mach, was resentenced to 37 years; Alex Wong, convicted of one murder, was resentenced to 35 years and has been released; and Joseph Wang, convicted of two murders, is also now a free man after his sentence was reduced to thirty years. Despite its sympathy with Chan's situation, however, this Court left Chan's sentence undisturbed under Second Circuit authority that forecloses claims seeking to extend the reach or rationale of Miller. See Dkt. No. 503 at 3 (citing, United States v. Sierra, 933 F.3d. 95, 97 (2d Cir. 2019)) (emphasizing that "a line must be drawn").
The instant motion ensued.
C. Remorse
In support of his current motion, Chan offers a detailed and compelling statement of remorse for his crimes in which he accepts responsibility in copious and convincing sincerity. See Dkt. No. 527 at 1-7. His factual accounts of his criminal conduct differ, but only slightly, from the trial and appellate records. With respect to the murders of Sham and Mach, Chan writes: "As the two newest members of the gang, Kwok and I were required to shoot the couple as a final stage of our initiation into the gang. However, because of the order to kill at an instant notice, I froze, and the actual shooting was done by Kwok, and then Yim." Id. at 5. Nothing in the trial evidence, the PSR, or any submission by the government either supports or contradicts Chan's assertion that he "froze."
Material here, however, is that Chan does not offer the detail in order to mitigate his culpability or qualify his acceptance of responsibility for his conduct or his remorse. Chan writes:
I did not know Ms. Sham or Mr. Mach . . . [and] I did not want to kill Ms. Sham or Mr. Mach. However, I also did not stop the killing; and for that, I am truly sorry for the losses Ms. Sham and Mr. Mach's families endured.Id. (cleaned up).
Chan also writes:
I understand the severity of the crimes I have committed. My participation in the murder of Tina Sham, Tommy Mach, and Jin Lee Seok are inexcusable; I deserve to be punished. I regret deeply . . . being involved in the senseless murder of three innocent human beings, and I regret deeply . . . the pain and suffering I have brought upon their families. No words can ever replace the loss of a loved one, and I do not seek to use simple words as replacement for the lives I have taken. Such pain do[es] not easily go away, and I am truly sorry for their losses.Dkt. No 527 at 1.
Similar sentiments pour forth throughout his submission. He writes:
It has been thirty plus years since I took part in the senseless murders of Tina Sham, Tommy Mach, and Jin Seok Lee, and I have regretted being involved every day since. I will forever be regretful. For many years, I wrestled with how to reach out to their families to express my remorse. I understand the pain my actions have caused their families, and I am truly sorry.Id. at 7.
If given an opportunity, I would like to apologi[z]e to all of the victims that have suffered from the crimes committed by my ex-gang. In addition, I will apologize to the Honorable Reena Raggi [and] the prosecution.
Chan also writes: "For the past three decades, I have been unable to escape the mental anguish of my wrongdoings. Being involved in the murder of any human being has caused so much shame and disgrace not only to myself but also to my family and community." Id. at 5.
Turning to the Seok murder, Chan's account bears the vestige of his appellate sufficiency challenge. He writes that while giving chase to the victim and others, he shot "at their general direction," and "did not know whether he hit anybody." Id. at 5. He further asserts that, "to this day [he] believe[s] those three shots could not and did not kill [Lee]." Id. Nevertheless, this belief does not attenuate his acceptance of responsibility or his remorse, which remain unvarnished. Chan writes:
Though my belief [that] I did not fire[ ] the fatal bullets may alleviate my personal feelings of guilt, I fully accept that as a minor point. Regrettably, my recklessness ended Mr. Lee's life, and it ruined the lives of his family as well.Id. (emphasis added).
The same unvarnished forthrightness characterizes the entirety of Chan's presentation on this motion. He does not mince words in admitting that he was "stubborn" in rejecting the universal plea offer of 20-25 years that the government offered shortly after his arrest, and in not following his attorney's recommendation during trial that he accept a still-open 20 year offer. Id. at 1; Dkt. No. 523 at 3-4. Chan also offers a direct apology to trial counsel. Id.
D. Rehabilitation
Chan concedes that for approximately the first half of what is now 31 years behind bars, he lived "with no hope" and "under the belief that [he] would die in prison." Id. at 6. He admits that he "caused chaos," that he "lost [him]self," and that he "turned to heroin as an escape" and "fell into the web of everyday drug use." Id. As a result, Chan behaved poorly during this time, as his disciplinary record reflects. See Dkt. No. 541-1 (Gov't Ex. A, Chan's Disciplinary Record) at 2-8; Dkt. No. 537 (Probation Report dated July 12, 2021) at 2-5. Five of Chan's early infractions involve his drug use (possession, including paraphernalia). Others include possession of a dangerous weapon (five incidents), two assaults with serious injury and one assault without serious injury.
The disciplinary record filed by the government and disciplinary summary provided by Probation furnish only minimal particulars. Neither reports the type of weapon possessed; the former reports that Chan admitted his guilt with respect to each of the three assaults.
Chan points to his transfer in 2003 to USP-Marion as a turning point. It was there, he says, that he was finally able to "quit using heroin altogether." Dkt. No. 527 at 8. He was "prompted by a renewed sense of life" and "began to make a positive change in lifestyle." Id. In the ensuing 18 years, Chan earned his General Equivalency Diploma, participated in thousands of hours of coursework earning him a myriad of certificates, earned an associate degree in business management "even though [he had] no reason to believe [he] would ever work outside of prison walls," tutored other inmates preparing for the GED exam, and established relationships with two organizations that work with at-risk youth. Id. See also Dkt. No. 537 (Probation Report) at 5 (documenting Chan's coursework and employment while incarcerated). Chan "hope[s] that one day in the future" he will "be able to assist youth susceptible to gang recruitment in making the right decisions in life." Id. (cleaned up).
A supplemental submission reports Chan's acceptance to the fall 2021-winter 2022 term of the Upper Iowa University's "Self-Paced" distance learning program. See Dkt. No. 552.
Even after what Chan identifies as his turning point, Chan's record is not flawless, but he concedes as much. He admits the five disciplinary incidents in the last seventeen years (none involving violence) and addresses the last two, which the involve use of a cellphone and possession of marijuana. He explains that after being incarcerated for so long he was "literally mesmerized" when a fellow inmate offered him, through a cellphone, access to an old Chinese movie online. As for the marijuana, Chan stated that he is "committed to living a clean life" and that "he voluntarily entered and completed a non-residential drug abuse program to treat the relapse as soon as [he could]." Id. at 7. He states that these two infractions "were the most upsetting for [him]" because he "had worked hard and stayed relatively trouble-free for so long." Id. at 6-7.
E. Other Support
The letters the Court has received in support of Chan's application are powerful testaments to Chan's transformative rehabilitation. They come, as noted, from a wide range of sources, including fellow inmates, a former cellmate now released, a family friend who knew Chan before he became a Green Dragon, Chan's older brother, and an uncle. Collectively, and with great anecdotal detail, they corroborate the tenor and content of Chan's observations about himself while bringing to life some of the boiler-plate platitudes common in rehabilitation discourse. See Dkt. Nos. 526, 530-33, 535-36, 538-40, 544-45. The letters from fellow inmates speak volumes. A notable example comes from Dennis Cyrus. Dkt. No 531. A ward of the state since he was six months old, raised in "a crime and drug-infested housing project" by a crack-addicted mother, and serving a life sentence himself, Cyrus writes: "the first day I met Mr. Chan, he told me he saw his old self in me. He explained to me that our paths to prison weren't all that different d[e]spite our different ethnic backgrounds. He immediately became a friend and a mentor, always encouraging me to focus on bettering myself." Id. at 5. Cyrus also writes:
Being in my position it's hard to find inspiration and remain hopeful knowing I've been sentenced to die in prison. One thing Mr. Chan always tells me is just because we've been sentenced to life in prison, that's no reason not to be the best human being we can be . . . and also to help those that come in behind us that might be in a similar situation."
Id.
Inmate Casey Hooks expresses similar sentiments. See Dkt. No. 532. Hooks says he "never really had a positive influence in his life" until he met Chan. Id. at 1 (He reports that his mother and younger brother are also in federal prison and that his father was just released from state prison). Unlike "most of the inmates," who "have a negative mindset," Hooks says that Chan "is different: he is calm, collect[ed], and . . . very caring of people in general." Id. at 3. He says Chan "wants people here to think about their actions," and has witnessed Chan "deescalate potential violent situations between conflicting inmates." Id. Hooks also says that he has "never known anything or wanted anything but the streets," but that Chan changed his outlook. Id. at 5. Chan helped Hooks get his first job ever (in the prison commissary), encouraged him to pursue the educational opportunities available in prison, and helped him complete the application form for the financial aid available to federal inmates. Still "lack[ing] confidence in [him]self," Hooks states that Chan "was insistent," promising to tutor him. Id. at 7. Hooks remains "inspired by the person Chan is today" and says he "is and always will be a motivation for [him]." Id. Another inmate, Joseph Gray, describes Chan's work with M.E.N.T.O.R., an inmate organization that assists troubled inmates seeking to improve their lives. Gray sees Chan as a changed man and role model to many younger inmates, noting that Chan "has broken a lot of stereotypes of gang culture with the young men" by showing them that rehabilitation is possible. Gray "truly believe[s]" that Chan "can save a life or lives in the community with his conflict resolution skills and ethics." Dkt. No. 535 at 3.
DISCUSSION
A. Extraordinary and Compelling Reasons
A clarion call to rethink sentence reduction, Brooker's "full slate" standard plainly allows this Court to consider Chan's youth at the time of his offenses as a statutory "extraordinary and compelling" reason warranting sentencing relief. Under the law at the time of Chan's prosecution, his age had no place in the sentencing analysis. Today, however, it is not even a matter of debate that "youth matters at sentencing," Jones v. Mississippi, — U.S. —, 141 S.Ct. 1307, 1315, 209 L.Ed.2d 390 (2021), as the Supreme Court jurisprudence culminating in Miller v. Alabama details. See, e.g., Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (discussing adolescent impulsivity while holding that the death penalty is unconstitutional punishment for offenders under 18); Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (addressing the parts of the brain involved in behavior control while holding that life without parole for non-homicide juvenile offenses is unconstitutional). See also 18 U.S.C. § 3553(a)(1) (sentencing courts "shall consider," inter alia, "the history and characteristics of the defendant."); Miller, 567 U.S. at 472, 132 S.Ct. 2455 ("the distinctive attributes of youth diminish the penological justifications for imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes").
Two slightly younger codefendants who committed murders in aid of racketeering sought to escape § 1959(a)(1)'s mandatory life sentence by invoking the Juvenile Delinquency Act ("JDA"), 18 U.S.C. §§ 5031 et seq., which defines "[j]uvenile delinquency" as "the violation of a law of the United States committed by a person prior to his eighteenth birthday which would have been a crime if committed by an adult." 18 U.S.C. § 5031. See Wong, 40 F.3d at 1364-68. The Circuit held, however, that trial as adults was proper, even for the defendants who committed murders before they turned 18, because the crime of racketeering is a continuing offense and continued until after the defendants turned 18. Id.
On the Guidelines' side of the analysis, the Circuit declined to "recognize[ ] 'youthful lack of guidance' as a valid basis for downward departure," id. at 1381, explaining that "[t]he Sentencing Commission has specifically considered age as a factor in sentencing, and has determined that it 'is ordinarily not relevant' in determining whether a downward departure is appropriate." Id. (citing USSG § 5H1.1, p.s.).
Further, even while announcing bright-line constitutional rules the Supreme Court accepted the principle at the core of Chan's current motion, namely, that "[t]he qualities that distinguish juveniles from adults do not disappear when an individual turns 18." Roper, 543 U.S. at 574, 125 S.Ct. 1183. See also United States v. Ramsay, 538 F.Supp.3d 407, 415-23 (S.D.N.Y. 2021) (Rakoff, J.) (comprehensively reviewing the body of Supreme Court caselaw on juvenile sentencing).
Indeed, and undoubtedly because of the state of the jurisprudence just reviewed, Brooker itself plainly contemplates a youth-themed motion such as Chan's. Noting that the defendant there, Jeremy Zullo, had "joined the drug trafficking conspiracy that would land him in prison at 17, was indicted at 20, and was convicted and sentenced at 22," id. at 230, 136 S.Ct. 718, the Brooker decision recognizes that "Zullo's age at the time of his crime and the sentencing court's statements about the injustice of his lengthy sentence might perhaps weigh in favor of a sentence reduction." Id. Brooker further opines: "Indeed, Congress seemingly contemplated that courts might consider such circumstances when it passed the original compassionate release statute in 1984." Id. (emphasis added) (citing a Senate Report noting that reduction may be appropriate when "other extraordinary and compelling circumstances justify a reduction of an unusually long sentence") (cleaned up) (emphasis added).
Since Brooker, one district court has squarely—and quite comprehensively—addressed "how and why an offender's youth matters to the § 3582(c)(1)(A)(i) inquiry." Ramsay, 538 F.Supp.3d at 415. Judge Rakoff concluded that defendant Andrew Ramsay's age at the time he committed several murders in aid of racketeering—a "legal adult of 18"—was "extraordinary and compelling" under the circumstances of that case, which included the particulars of Ramsay's upbringing, his rehabilitation, and the fact that the Court could not consider Ramsay's age when it initially imposed the mandatory life sentence in 1992. Id. at 426. For those reasons and upon consideration of the applicable § 3553(a) factors, Judge Rakoff reduced Ramsay's life sentence to 30 years. Id. at 427-28.
Under these authorities, the Court finds Chan's youth at the time of his offense to be an extraordinary and compelling reason warranting relief under the totality of the circumstances presented. The penological significance of Chan's age at the time of his offenses need not be belabored. Ramsay offers an analytical framework. In a thorough study of applicable caselaw that needs no elaboration here, Ramsay "usefully group[s]" the factors that distinguish juveniles from adults under Supreme Court sentencing law into four "traits: youthful offenders' immaturity, susceptibility, salvageability, and dependence." Id. at 416-17. Each of these traits is present in Chan's story.
Chan's immaturity in making the unwise choices he did speaks for itself, while his susceptibility to gang recruitment and eventually gang indoctrination is likewise self-evident. To be sure, as Chan acknowledges, his earliest years were in a stable home environment and of sufficient economic privilege to provide him with nannies and a boarding-school education. Despite this promising start, however, it is also clear that by his midteens, Chan was mostly without adult supervision or support, that he quickly resorted to crime, and was easy prey for the Green Dragon recruiters whom he had the misfortune to meet while incarcerated on his very first arrest. By the time senior gang members approached Chan again, after his stabbing and two-month hospital stay, Chan was by his own account lost and too vulnerable to resist the allure of the gang's brotherhood and security.
Dependence as conceptualized by the Supreme Court is perhaps the keynote of Chan's story. "Juveniles have less control, or less experience with control, over their own environment. As legal minors, they lack the freedom that adults have to extricate themselves from a criminogenic setting." Roper, 543 U.S. at 569, 125 S.Ct. 1183 (cleaned up) (internal quotation and citation omitted). As Ramsay further explains, "adolescent decision making is situationally dependent," id. at 419 (emphasis added), and, because adolescents "have been dependent on others for most or all of their lives . . . [their] crimes are less a product of their choices and more a product of their environment." Id. at 422. The teenage Chan plainly exhibited dependence of this type. A Faustian bargain, Green Dragon membership ensnared its recruited future murderers through housing, a sense of belonging, material goods, and cash in their pockets. Serving as provider, surrogate parent, and family, the gang supplanted other influences in Chan's life.
The final signature trait of juveniles that Chan's story exhibits, in abundance, is salvageability, "[p]erhaps the most important reason that adolescent crime merits less punishment." Id. at 425. See Roper, 543 U.S. at 570, 125 S.Ct. 1183 ("juveniles still struggle to define their identity so it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character") (cleaned up). Chan's statement of remorse and the letters from his incarcerated supporters and others are compelling evidence in this regard and speak for themselves. Chan's own insights about his earlier self are also a testament to his salvageability. Exhibiting striking clarity and intelligence, they also underscore the tragic nature of Chan's fall from early privilege and stability into the hands of the Green Dragons. The letters from inmates corroborate that what Chan writes of himself are not mere words and that he is the changed man he describes himself to be: a prisoner who, without any reason to believe he would ever be released, eventually conquered his drug addiction, came to terms with his criminal past, and transformed himself by study, reflection, and hard work into a role model and beacon of hope for similarly situated inmates.
In sum, this Court finds that the sentence of life without parole imposed upon Chan "is utterly inconsistent with the goals of criminal sentencing." Ramsay, 538 F.Supp.3d at 426. Likewise, this Court agrees with Ramsay that "these extraordinary circumstances are all the more compelling" because the sentence was mandatory at the time it was imposed. Id. at 426. As Judge Rakoff explains,
To be sure, Ramsay was a legal adult of 18 when he murdered Speid, Brown, and her infant, so the mandatory life sentence did not violate the Eighth Amendment, as currently construed. But the fact that the Court was precluded from taking into account the circumstances of the offense together with the character and propensities of the offender, including Ramsay's youth, was in obvious conflict with the Court's usual duty to ensure that punishments are no greater than necessary to satisfy the purposes of criminal sentencing.Id. at 427 (internal citations omitted) (cleaned up).
The same is true here. As reflected in this Court's denial of Chan's application to extend the rationale of Miller to his adult crimes, Chan's mandatory life sentence does not violate the Eighth Amendment. He failed to qualify, by a mere 50 and 54 days, for the Miller relief that Kwok, Wong, and Wang received from their mandatory life sentences. In this Court's considered judgment, however, the post-Miller disparity between Chan's sentence of life and the reduced terms of 30, 35 and 37 years imposed on his codefendants is too acute to be justified by any generalities about the plusses and minuses of bright-line rules in the law. Indeed, the longstanding Eighth Amendment divide between adult and juvenile, in this case, is like misplaced police tape running down the middle of a murder scene, condemning Chan to life without parole while allowing Kwok, the actual shooter of Sham and Mach, to serve the sufficient but not greater than necessary term of 37 years. The Court therefore finds the sentencing disparity resulting from the change in the law that Miller announces to be an extraordinary and compelling reason warranting a reduction of Chan's sentence. See, e.g., United States v. Ballard, 552 F. Supp.3d 461, 465-67 (S.D.N.Y. 2021) (acute sentencing disparity resulting from change in the law—there, the unstacking of § 924(c) sentences—can be considered "extraordinary and compelling" for § 3582(c)(1)(A)(i) purposes); United States v. Haynes, 456 F.Supp.3d 496, 514-15 (E.D.N.Y. 2020) (same).
B. The Section 3553(a) Factors.
Little additional discussion is required, as the applicable section 3553(a) factors largely overlap with the circumstances already discussed as extraordinary and compelling. To be sure, nothing the Court writes today reflects a diluted sense of the grievousness of Chan's crimes. Indeed, the government's position here is that even if the Court has discretion under the compassionate release statute to reduce Chan's sentence it should decline to exercise it. Acknowledging that "life sentences are rare in the federal penal system" and "reserved for only the most heinous of acts," the government argues that such a sentence is appropriate here because Chan's offenses were "heinous." Dkt. No. 541 at 12. Further acknowledging that Chan's "efforts at rehabilitation are admirable, especially when facing a life sentence without parole," the government nevertheless argues that any reduction in Chan's sentence "would fail to reflect the seriousness of taking three lives under horrific circumstances, fail to promote respect for the exceedingly narrow range of cases that Congress views as terrible enough to justify mandatory life imprisonment, and fail to provide just punishment for [Chan]." Id. at 12-13.
In a different case the government's position would be entirely understandable. The one piece missing, however, is the set of age-related considerations present here, which are the driving force of Chan's application and this Court's "extraordinary and compelling" analysis. The government addresses the subject of Chan's age only in the context of the lawfulness of Chan's sentence. See Dkt. No. 541 at 10 (government brief argues, as this Court has already determined, that because the Supreme Court has drawn the line between juvenile and adult at the age of 18, Chan's sentence is constitutional, citing Sierra, 933 F.3d at 97). On the pivotal subject of whether Chan has advanced reasons for reducing that lawful sentence, the government's brief recognizes that Brooker gives district courts discretion to consider "any potentially extraordinary and compelling reasons a defendant might raise," Dkt. No. 541 at 6 (emphasis added), and then goes silent, nowhere disputing that a defendant's age can be such a reason.
In settling upon a sentence that reflects the seriousness of Chan's offenses and that provides just punishment while being no greater than necessary to serve the statutory purposes of punishment, the Court finds instructive the reduced terms imposed upon Kwok, Wang and Wong. Having considered all of the circumstances deemed extraordinary and compelling and the applicable § 3553(a) factors, the Court, upon vacatur of Chan's life sentence, imposes a term of thirty-three years.
CONCLUSION
For all of the foregoing reasons, Chan's motion under 18 U.S.C. § 3582(c)(1)(A)(i) for a reduction in sentence (Dkt. Nos. 523, 529) is granted and his sentence is reduced to a term of thirty-three years. SO ORDERED.