Opinion
90-CR-1019 (RJD)
2023-08-07
UNITED STATES of America, v. Chen I. CHUNG, Defendant.
Andrew Patrick Wenzel, Government Attorney, Gilbert Rein, John O'Donnell Enright, DOJ-USAO, Brooklyn, NY, Douglas M. Pravda, Chand Warren Edwards-Balfour, Government Attorneys, United States Attorney's Office, Brooklyn, NY, Antoinette N. Rangel, United States Attorney's Office, New York, NY, for United States of America.
Andrew Patrick Wenzel, Government Attorney, Gilbert Rein, John O'Donnell Enright, DOJ-USAO, Brooklyn, NY, Douglas M. Pravda, Chand Warren Edwards-Balfour, Government Attorneys, United States Attorney's Office, Brooklyn, NY, Antoinette N. Rangel, United States Attorney's Office, New York, NY, for United States of America.
MEMORANDUM & ORDER
DEARIE, District Judge.
Green Dragon defendant Chen I. Chung moves under the compassionate release statute, 18 U.S.C. § 3582(c)(1)(A)(i), for a reduction in the multiple concurrent life sentences imposed upon him in 1992 for the six murders he ordered and other offenses he committed.
For the reasons discussed below, Chung's motion is denied at this time.
CONTROLLING STANDARDS
Title 18 U.S.C. § 3582(c)(1)(A)(i) authorizes me to "reduce a term of imprisonment" if I "find[ ] that extraordinary and compelling reasons warrant such a reduction." The fullest breadth of my discretion is available when entertaining such motions. See United States v. Jones, 17 F.4th 371, 374 n.3 (2d Cir. 2021) (courts are "free to consider the full slate of extraordinary and compelling reasons that an imprisoned person might bring before them") (cleaned up); Mem & Order, United States v. Chan, 90 CR 1019-4 (RJD) (E.D.N.Y. Jan 6, 2022), ECF No. 553, at 17 (describing the "full slate" standard as a "clarion call to rethink sentence reduction"); United States v. Brooker, 976 F.3d 228, 235-37 (2d Cir. 2020) ("[t]he only statutory limit on what a court may consider to be extraordinary and compelling is that rehabilitation alone" is insufficient). See also United States v. Tellier, 92 CR 869 (LGS), 2022 WL 1468381, at *3 (S.D.N.Y. May 10, 2022) ("Where no single factor alone may justify release, the total circumstances may still rise to the level of extraordinary and compelling reasons") (cleaned up).
If I find that extraordinary and compelling reasons are present, I must then then satisfy myself that a sentence reduction is consistent with the factors set forth in 18 U.S.C. § 3553(a). See 18 U.S.C. § 3582(c)(1)(A); 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)" because the "district court must also consider the factors set forth in § 3553(a) before granting relief").
Conversely, I may deny a motion for compassionate release solely on the basis of § 3553 factors without reaching the question of whether extraordinary and compelling reasons are present. United States v. Keitt, 21 F. 4th 67, 69 (2d Cir. 2021); United States v. Davis, 2023 WL 2639576, at *1 (2d Cir. Mar. 27, 2023) (reaffirming and applying holding of Keitt).
DISCUSSION
I once again assume the parties' familiarity with the facts of this fifteen-defendant prosecution, in particular: the recruitment practices and structure of the Green Dragon gang, the murders and other violent crimes its members committed, and the procession of sentencing reductions awarded all but one of Chung's codefendants initially sentenced to life. See 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); United States v. Cheng, 90-CR-1019-11 (RJD), Mem. & Order dated June 23, 2023, ECF No. 599 (reducing life sentence to 33 years); Chan, at 17 et seq. (reducing life sentence to 33 years).
Because Chung's me-too motion advances the same principal themes discussed in my recent rulings in Cheng and Chan, I treat this memorandum as a coda to those decisions and incorporate the background and analyses they set forth. I reference here only the additional facts relevant to Chung's motion.
Although Chung asserts that several of the circumstances supporting the relief I granted in Cheng and Chan are present here, what is extraordinary and compelling under Section 3582(c)(A)(1) as to one defendant is not necessarily so as to all, even within the same prosecution. For example, as did Chan and Cheng, Chung points to significant changes in sentencing law such as the now advisory nature of guidelines that in 1992 required the imposition of his life sentence. See generally United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). But in Chung's case I do not find that fact compelling because at sentencing, then-district Judge Raggi remarked that "even without the guidelines" she would have imposed the life sentence because of the seriousness of Chung's crimes. Sent. Tr., Oct 2, 1992 ("ST") at 17. The remark was hardly hyperbole: the gravity of Chung's crimes and his leadership role, even with his Criminal History Category I, resulted in a total guidelines level of 52, which Judge Raggi noted was "the highest ever known to th[e] Court in any sentence it's had to impose." Id. at 12. A second reason the now-advisory nature of the guidelines is not compelling is that even today life remains a permissible, albeit not required, sentence for Chung's crimes. See 18 U.S.C. § 1959(a)(1) (authorizing, though not requiring, life imprisonment for kidnapping and murder in aid of racketeering); id. § 1963(a) (authorizing but not requiring life imprisonment for racketeering where the predicate permits life imprisonment).
Chung's related arguments challenging the accuracy of his guideline calculation are not properly before me on a motion for compassionate release.
Similarly, Chung points to the fact that his youth at the time he committed his offenses was not taken into account at his initial sentence, whereas today, as detailed in Chan and Cheng, youth is more acceptably part of the culpability equation. Although he was not as young as his juvenile codefendants (Kwok, Wang, and Wong) whose life sentences were vacated under Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), Chung was the same approximate age as only slightly older Chan and Cheng into whose culpability assessments I allowed age to play a Miller-informed mitigating role. But other than invoking the subject, Chung does not furnish a highly particularized account of his youth; rather, he asserts only generally that, that even though he ultimately rose to a higher position in the gang than the others, he was, like each of them, a vulnerable and impressionable Asian teenager who was easy prey for the Green Dragon recruitment. ECF No. 587 at 4. Crediting this assertion, which the government does not specifically oppose, still would not bring Chung's motion to the required extraordinary and compelling threshold.
The sentencing transcript indicates that Judge Raggi considered Chung's age only in the context of the impact of a life sentence but not as a mitigating factor in culpability, remarking that "age is generally not a factor for downward departure," but that Chung's age had been "considered by the Court," which appreciated that "a life sentence for someone who is 23 years old is very different from a life sentence for someone who is 73 years old." ST at 17.
The same is generally the state of the other grounds present in Chan and Cheng that Chung also advances, rehabilitation and remorse. In his motion, they read more like boxes checked than truly extraordinary circumstances. As for rehabilitation, Chung makes a respectable showing that he has made productive use of his time in prison, despite having no prospect of release; his disciplinary record, while not without blemish, is neither especially troubling nor especially commendable given the nature of prison life; and the BOP currently considers his risk of recidivism to be "minimal." ECF No. 573 at 3. On remorse, Chung states only that he "does not dispute that his offense was decidedly serious," ECF No. 573 at 3, that he is "contrite about his inconceivable actions." ECF No. 587 at 4. This is certainly far less expansive or poignant than the statements offered by Chan, Cheng, or the many others I have received from the convicted and incarcerated over the years.
Chung's pro se motion avers, inter alia, that he "has been a mentor to his fellow inmates since he has been committed to the BOP," and "has been actively participating in programs and seeking positive change in prison." ECF No. 573 at 12. The motion also references—but does not include—materials that Chung says show his "capacity for redemption and rehabilitation" and "serve as proof positive that since his sentencing, the history and characteristics of this defendant have substantially changed." Id. at 5, 12. The government did not dispute these assertions, but because the motion was not accompanied by any supporting materials, I issued an order offering Chung the opportunity to supplement his motion. His ensuing submission includes more than forty certificates documenting the completion of a wide-range of rehabilitative coursework. See ECF No. 597.
Chung committed a total of 12 infractions during his 33 years of incarceration, as follows: 2 incidents of drug use in 1996; possession of a dangerous weapon in 1999; several incidents of drug or alcohol use between 2003 and 2007 and in 2011; destruction of property and "being unsanitary or untidy" in 2013; and possession of a dangerous weapon in 2018. See ECF No. 582, Exh. A.
In the current wave of post-First Step Act compassionate release jurisprudence, I would have to declare these circumstances to be de riguer, almost the opposite of extraordinary, without some other circumstance that truly compels relief rather than perfunctorily checks a box. The only remaining candidate on that score advanced by Chung is the singular fact that, as a result of the many changes in sentencing law, five of the other life sentences in this case, like falling dominoes, have been vacated and reduced to between 33 and 37 years. See Cheng, at 3-5; Chan, at 17-22. But even the resulting disparity between those sentences and Chung's sentence of life is not extraordinary and compelling here because of Chung's patently greater criminal culpability. As day-to-day operations leader, it was Chung who gave the orders to commit the murders that the others, as his footsoldiers, were bound by the code of gang membership to carry out; Chung also frequently supplied their weapons and was the person to whom the killers would report back for post-murder debriefing. See Wong, 40 F.3d at 1355 et seq.; PSR ¶¶ 42-77; Chan, at 7. And, by virtue of his leadership role, Chung was in fact responsible for six murders, whereas each of the others committed or aided one, two or three killings.
Tung Tran, the other defendant sentenced to life, committed two murders and participated in a third; his motion for sentence reduction was denied. See United States v. Tran, 90 CR 1019-3 (RPK), 2022 WL 7132195, at *5 (E.D.N.Y. Oct. 12, 2022).
I fully reject Chung's two efforts to hairsplit the culpability differential. The first is his argument that, unlike the several actual shooters whose life sentences have been vacated, he did not actually kill. While the distinction between murder and murder conspiracy may have substance in other contexts, it is a non-starter here—as it was at sentencing—in light of the cold-blooded, brutal nature of the killings Chung ordered.
At sentencing, Chung's counsel had argued to then-district Judge Raggi that "the Court has not heard evidence of [Chung's] involvement in violent activity. There is no question that he associated with people who were accused and convicted of criminal activities, but . . . there has been no evidence that he ever put a gun to anyone's head, that he assaulted anyone." Sentencing Transcript, October 2, 1992 ("ST") at 13-14. Judge Raggi's response, as would be my own, was "No" but "he ordered others to do it." ST at 14.
Second, Chung asserts that despite being a leader relative to Chan, Cheng, and the others, in fact he was merely "carry[ing] orders to others to do the bidding of Kin Fei Wong," the gang's true "Dai Lo" or "Big Brother." ECF No. 587 at 11. Judge Raggi specifically found to the contrary. In her view, "the evidence at trial was overwhelming that [Chung] basically conceived of most of the criminal conduct, directed it, and received most of the profits to the extent there were profits." ST at 8. Judge Raggi was therefore "satisfied that the leadership enhancement is more than appropriate with respect to virtually every crime charged." ST at 8, 7. Judge Raggi repeated this view of the matter later in the proceeding. See ST at 11 ("the evidence at trial left me not simply with a view that [Chung] was the head of this operation by a preponderance of the evidence, I thought the evidence was overwhelming in this regard"). Chung has offered me no genuine basis for disputing this finding. Indeed, the PSR, chronicling Chung's appointment as "street leader" when former operations leader "E.T." was murdered, states that Chung "was then also referred to by the junior members of the Green Dragons as 'Dai Lo.' " PSR ¶ 42. In sum, the difference between Chung's life sentence and the reduced terms of the junior members, justified by the record of Chung's greater culpability, is not extraordinary and compelling within the meaning of Section 3582. Sensitive as I am to the severity of a life sentence, I must and do take seriously the demands of the compassionate release statute. In any event, for these same reasons the Section 3553 factors would not support a reduction in sentence at this time. Keitt, 21 F. 4th at 69 (court may deny a motion for compassionate release solely on the basis of § 3553 factors).
The one exception, in Judge Raggi's view, was "perhaps the Fook Ching gang kidnaping, only because the evidence did suggest that this was not a crime planned or conceived of by Mr. Chung, but rather by Mr. Wong" and so she did not enhance Chung's role on that one crime. ST at 7.
CONCLUSION
For all of the foregoing reasons, Chen I. Chung's motion for sentence reduction (ECF NO. 573) is denied at this time. SO ORDERED.