U.S. v. Chen

• Decision Date: 14 October 1997
• Docket Number: No. 1181,D,1181
• Parties: UNITED STATES of America, Appellee, v. Da Cai CHEN, also known as Ah-choi, also known as Chen Da Cai, Defendant-Appellant. ocket 96-1411.
• Court: U.S. Court of Appeals — Second Circuit

Page 286

127 F.3d 286

UNITED STATES of America, Appellee, v. Da Cai CHEN, also known as Ah-choi, also known as Chen Da

Cai, Defendant-Appellant.

No. 1181, Docket 96-1411.

United States Court of Appeals, Second Circuit.

Argued March 14, 1997.

Decided Oct. 14, 1997.

Benjamin E. Rosenberg, New York City (Michael A. Pearce, Shereff, Friedman, Hoffman & Goodman, LLP, New York City, of counsel), for Defendant-Appellant.

Ira M. Feinberg, Assistant United States Attorney, New York City (Mary Jo White, United States Attorney, Vernon Broderick, Assistant United States Attorney, Southern District of New York, New York City, of counsel), for Appellee.

Before: CARDAMONE, LEVAL, Circuit Judges, and WARD, ^* District Judge.

CARDAMONE, Circuit Judge:

Defendant Da Cai Chen appeals from a sentence imposed pursuant to a judgment of conviction entered June 21, 1996, in the United States District Court for the Southern District of New York (Stanton, J.) after appellant pled guilty to a charge of distributing, and possession with intent to distribute, heroin in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 18 U.S.C. § 2. Chen contends on this appeal that the district court improperly refused to apply the Sentencing Guidelines' safety valve provision to sentence him below the ten-year mandatory minimum sentence otherwise required by law. He also asserts that the sentencing court, contrary to 18 U.S.C. § 3553(c), failed to state its reasons for sentencing him to a particular point in the applicable Guidelines range.

Central to the resolution of the issues raised on this appeal is the meaning of a plea agreement and of a Sentencing Guideline provision. Although the words used are plain, their meaning is not. In such event, as is the case here, we are required instead to examine the context and circumstances surrounding the use of those words to determine their meaning.

BACKGROUND

A. The Narcotics Investigation

Federal authorities learned of appellant Da Cai Chen's criminal activities during an FBI investigation of a heroin trafficking organization led by Lei Da-Tian (Lei). In April 1995, after FBI agents had gathered evidence for over a year, Lei and four of his associates were arrested and charged with various narcotics-related offenses. The FBI's investigation of others in Lei's confederacy continued after the arrest of the original five coconspirators. Chen was among those targeted in the second phase of the investigation.

The continuing investigation revealed that for almost two years Chen had acted as a courier for Lei, delivering and picking up packages of heroin on several occasions between November 1993 and July 1995. Defendant also stored and transported firearms for Lei and his associates. For example, between the subject dates he kept a box containing a machine gun, a revolver and bullets, and a bulletproof vest. Xaio Lin Jiang, who was arrested with Lei in April 1995, retrieved Chen's box and delivered it to Lei in March 1995. On another occasion Chen delivered a container to Lei where, alongside a bottle of liquor, a handgun was concealed. That container was discovered in a Lei organization apartment during a search conducted when Lei and his associates were arrested.

Appellant was arrested in 1995 and charged with conspiring to distribute heroin. He ultimately agreed, pursuant to a written plea agreement (Agreement), to plead guilty to a superseding indictment charging him with distribution of more than one kilogram of heroin. The distribution charge was based on Chen's admission that he had delivered more than one kilogram of heroin for Lei in December 1994.

B. The Plea Agreement

In the Agreement, Chen conceded that he was involved in distributing between one and three kilograms of heroin, resulting in a base offense level of 32 under the Sentencing Guidelines, and that his possession of various firearms on Lei's behalf was "relevant conduct" justifying a two-level enhancement of his offense level under Guidelines § 2D1.1(b)(1). In return, the government agreed that an adequate plea allocution and timely plea would constitute evidence of acceptance of responsibility under Guidelines §§ 3E1.1(a) and 3E1.1(b)(2), meriting a three-level decrease in the offense level. Based upon these stipulated adjustments to the offense level, and assuming a Criminal History Category of I, appellant's sentencing range was determined to be between 108 and 135 months. Because conviction for the agreed-upon offense carries a ten-year mandatory minimum sentence, the Agreement stated that the effective sentencing range would be 120 to 135 months, that is, from ten years to 11 years and three months.

Both parties expressly undertook not to seek any departures or adjustments from the Guidelines range as calculated in the Agreement, although each retained the right to respond should the sentencing court or the Probation Department apply adjustments, departures, or calculations different from those agreed upon. In addition, Chen explicitly waived his right to appeal "any sentence within or below the stipulated Guidelines range (i.e., within or below the range of 120-135 months)."

C. The Pre-Sentence Report and Sentencing

The pre-sentence report (PSR) prepared by the Probation Department incorporated the Guidelines calculation set forth in the Agreement. The PSR also averred that appellant possessed various weapons "during the commission of the instant offense." Prior to sentencing, Chen's counsel submitted a written objection disputing this factual assertion and the Probation Department's conclusion The sentencing court adopted the Guidelines calculation incorporated in the Agreement and the PSR, ruling that appellant's sentencing range was 120-135 months. In its written judgment form the court indicated (1) it was specifically adopting the factual findings and Guidelines application of the PSR, and (2) the sentencing range was less than 24 months and the court found no reason to depart from the Guidelines. Defendant was sentenced to the mandatory minimum term of 120 months imprisonment, to be followed by five years of supervised release. Chen appeals from the imposition of this sentence. We affirm.

that appellant was ineligible for the Guidelines safety valve provision as a result of the alleged gun possession. In response to appellant's argument that there was no evidence showing that he had carried a gun during the particular heroin delivery to which he was pleading guilty, the Probation Department amended the PSR to describe appellant's possession of a firearm as relevant conduct and therefore found that Chen was ineligible for the safety valve provision.

DISCUSSION

I Waiver

Before reaching the merits of appellant's claims, we address the government's contention that this appeal is barred by Chen's express waiver of the right to appeal set forth in the Agreement. Ordinarily, a criminal defendant is entitled to appeal any sentence "imposed in violation of law." 18 U.S.C. § 3742(a)(1). The right to appeal may be waived as part of a plea agreement, see, e.g., United States v. Yemitan, 70 F.3d 746, 747 (2d Cir.1995), and we have stated that a knowing and voluntary waiver of the right to appeal a sentence within a particular Guidelines range is generally enforceable, compare United States v. Salcido-Contreras, 990 F.2d 51, 53 (2d Cir.1993) ("In no circumstances ... may a defendant, who has secured the benefits of a plea agreement and knowingly and voluntarily waived the right to appeal a certain sentence, then appeal the merits of a sentence conforming to the agreement.") with United States v. Jacobson, 15 F.3d 19, 22-23 (2d Cir.1994) (express waiver of right to appeal sentence does not preclude claim that sentence was based on constitutionally impermissible factor).

Applying these principles, appellant's express waiver of the right to appeal "any sentence within or below the stipulated Guidelines range," standing alone, appears to preclude his challenge to any sentence between 120 and 135 months. At the plea allocution, however, the magistrate judge erroneously informed Chen that

... by pleading guilty, you are giving up your right to appeal which you might otherwise have if you went to trial and were found guilty; the only thing you can appeal after today or after Judge Stanton accepts your plea is if the sentence he imposes is illegal, which is unlikely to happen? Do you understand that?

Chen responded in the affirmative and now contends that because the magistrate judge stated that he retained the right to appeal an "illegal" sentence, the waiver of the right to appeal any sentence--illegal or not--was not knowing and voluntary.

Chen relies primarily on United States v. Ready, 82 F.3d 551 (2d Cir.1996), where defendant Ready signed a plea agreement that included an express waiver of his right to appeal any sentence within a particular range. Like the magistrate judge in the instant case, the court sentencing Ready incorrectly stated at the plea allocution that the waiver applied only to legally imposed sentences. Id. at 557. The Ready panel declined to enforce the written waiver on the ground that, in light of the sentencing court's misstatement, the record did not "clearly demonstrate[ ]" that the waiver was knowing and voluntary. Id. at 557-58. Appellant argues that Ready requires us to find that his waiver of his right to appeal is unenforceable because the magistrate's statement in this case was nearly identical to that in Ready.

Although we do not interpret Ready to require invalidation of a waiver of appeal in every case where the sentencing court's explanation of the waiver is not completely correct, that case explicitly allows enforcement only "if the record 'clearly demonstrates'

                that the waiver was both knowing (in the sense that the defendant fully understood the potential consequences of his waiver) and voluntary."  Ready, 82 F.3d at 557.   Here, the record of the plea hearing indicates that

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