U.S. v. Chettiar, 06-3516.

• Decision Date: 05 September 2007
• Docket Number: No. 06-3516.,06-3516.
• Citation: 501 F.3d 854
• Parties: UNITED STATES of America, Appellant, v. Nagappan Mylappan CHETTIAR, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

501 F.3d 854

UNITED STATES of America, Appellant, v. Nagappan Mylappan CHETTIAR, Appellee.

No. 06-3516.

United States Court of Appeals, Eighth Circuit.

Submitted: April 3, 2007.

Filed: September 5, 2007.

Nicole A. Engisch, AUSA, argued, William H. Koch, AUSA, on the brief, Minneapolis, MN, for appellant.

John W. Lundquist, argued, Dulce J. Foster, on the brief, Minneapolis, MN, for appellee.

Before BYE, BRIGHT, and RILEY, Circuit Judges.

BYE, Circuit Judge.

The United States appeals the sentence imposed by the district court after Nagappan Mylappan Chettiar pleaded guilty to knowingly hiring ten or more unlawful aliens in violation of 8 U.S.C. § 1324(a)(3)(A). The Government argues the district court imposed an unreasonable sentence when it varied downward pursuant to 18 U.S.C. § 3553(a) from the sentence range advised by the U.S. Sentencing Guidelines (U.S.S.G. or Guidelines). We remand for resentencing.

I

Chettiar, a citizen of India and a lawful permanent resident of the United States, was born on April 20, 1962, in Tamil Nadu, India. His father died when he was four and his mother died when he was six or seven. He quit school at age eight and, at age ten, left his family to look for a job, moved to Bombay, and sent money from his earnings back to his family. In 1986, he immigrated to the United States and lived on the streets of New York City until he found employment at a restaurant. He later lived in Maryland and Illinois where he worked as a cook. He returned to India for a short time in 1992 to marry his current wife. His wife later immigrated to the United States. Chettiar and his wife have two children, both of minority age.

In 1998, Chettiar moved to Minnesota. In 1999, he opened a restaurant in a Minneapolis suburb. In 2004, he opened a second restaurant in Tempe, Arizona. Prior to his arrest, Chettiar estimated he earned approximately $4,500 each month between his two cafes and his wife earned approximately $4,000 per month. He had a net worth of approximately a million dollars. Until his arrest for hiring undocumented workers, he continued to send money to his three siblings who reside in India.

In June 2004, federal immigration officials received an anonymous letter accusing Chettiar of employing undocumented workers in Minnesota and treating them like slaves. Searches of Chettiar's cafes and houses revealed Chettiar was housing a number of undocumented workers at a duplex he owns in Minnesota and in an apartment in Arizona. Ultimately, immigration officials determined Chettiar employed nine undocumented workers in Minnesota and two in Arizona. Six of these workers were detained as material witnesses by order of the district court for about three months each. All told, undocumented workers comprised 85% of Chettiar's workforce. Chettiar's records showed these workers worked on average twelve hour days, six days a week, for wages less than the federal minimum wage rate. The business records suggested Chettiar failed to pay about $75,000 in wages that would have otherwise been required under federal law and failed to pay about $150,000 in wage taxes, although these numbers were debated and the exact numbers were not determined at sentencing.

Without exception, the workers characterized Chettiar as a good employer who treated them with respect. The workers apparently ate at the cafes for free and paid no rent to Chettiar but some paid for their housing utility costs. The employees reported being able to take work breaks and one reported receiving pay when he was sick and unable to work. Some of the employees worked in Minnesota and Arizona and Chettiar paid for their travel between the two locations. Some of the workers reported Chettiar offered to file labor certifications or other petitions to allow them to have legal status in the United States. One employee reported Chettiar was paying an immigration attorney to regularize his immigration status. While there is some dispute as to whether employees took long afternoon breaks and to what extent they took vacations (some apparently traveled back to Mexico to visit family), the district court ultimately accepted the United States' pay chart, which shows the workers were paid $800-$1600 in cash every two weeks. The workers reported receiving raises in their pay. One worker indicated Chettiar paid for his dental care. Some of the workers reported they were allowed to work fewer hours if they chose and were free to do as they wished during their time off.

In March 2006, pursuant to a plea agreement, the United States filed a felony information charging Chettiar with one count of knowingly hiring ten or more unlawful aliens in violation of 8 U.S.C. § 1324(a)(3)(A). For his part of the plea agreement, Chettiar agreed to, among other things, (1) plead guilty to the charge in the information, (2) pay the costs of prosecution (estimated at $4,000), (3) forfeit real estate with an equity value of approximately $250,000 and assist the Government in conveying clear title to the properties, (4) forfeit $16,147 in cash and 49,500 in Rupees (a cash value of about $1,000), (5) surrender his permanent resident status and voluntarily depart the United States after serving his sentence, (6) waive the right to file any additional pretrial motions,¹ and (7) waive his right to appeal his guilt or sentence (unless the district court imposed a sentence in excess of a year and a day) or to petition for a writ of habeas corpus under 28 U.S.C. § 2255. In exchange for his plea, the Government agreed to dismiss the indictment, seek a sentence of one year and one day, not pursue charges against Chettiar's wife, and not seek forfeiture of any of Chettiar's other property.

The parties agreed Chettiar's base offense level was twelve and that he should receive a two-level downward adjustment for acceptance of responsibility. The parties disagreed whether Chettiar should receive a three-level upward specific offense adjustment for harboring between six and twenty-four unlawful aliens pursuant to U.S.S.G. § 2L1.1(b)(2)(A) (2005). Therefore, the parties agreed Chettiar's Guidelines' offense level was either a thirteen (twelve to eighteen months imprisonment under Zone C with no probation possible) or a ten (six to twelve months imprisonment under Zone B with the possibility of probation for some or all of the term).²

At sentencing, after an evidentiary hearing at which the government presented testimony and exhibits concerning the § 3553(a) factors, the district court determined the three-level upward adjustment for harboring unlawful aliens applied and set Chettiar's offense level at level thirteen. Chettiar's counsel then asked the district court to impose a sentence of home detention in lieu of prison in consideration of Chettiar's background, the challenges he faced, and in light of how similar crimes had been punished in the district. After adjourning the proceedings for fifteen minutes to converse with a representative of the U.S. Probation Office, the district court then stated:

This is a case—type of case that has not come before this Court in recent years and so trying to figure . . . the appropriate sentence, the Court has labored long and hard to think about what would be appropriate.

.... What I have to do is to sentence you appropriately on what your conduct was and I think—I am hoping that I am fashioning a sentence that will be appropriate. First off is to send a signal to you that the type of activity that you were involved in was clearly wrong. It goes against everything that our country stands for. Our country is one of immigrants.

.... You have come to this country; and although you did not become a citizen, you were able to get the appropriate documentation to work, to own businesses, and to become a millionaire.

Unfortunately, you did that on the back of individuals that were not supposed to be in this country or did not have the documentation to be in this country. You exploited those individuals, exploited them for your benefit, and that goes against the grain of what our country stands for, what our laws stand for and you have to be punished for that.

My punishment is, I think, appropriate within the guideline range because you have some very significant things going for you. Number one, none of these individuals that you harbored were either sexually or physically abused by you. If that was the case, I would throw the book at you. At most you exploited individuals for your own benefit. And when we traffic in human beings, I think it's despicable.

Sent. Tr. 55-57. The district court imposed a sentence of "time served," with a two-year period of supervised release that included a total of twelve months confinement without work release privileges: three months in a half-way house and nine months in home detention. The district court instructed:

The conditions of your home confinement are going to be strict. You are going to be on a bracelet, ankle bracelet. You are going to pay for that and your movements will be monitored and you will be able to go out of the house only on the direction of the probation officer who will be supervising your supervised release. Any violations of that will send you to prison.

Id. at 59-60. The district court also ordered Chettiar to comply with the provisions of the plea agreement, including the requirement he give up his permanent resident status and voluntarily depart from the United States upon completion of his sentence. The district court concluded:

I know that you are going to walk out of this courtroom thinking, Why am I being punished? I supplied a good place for these people to live, I fed them. Nothing I can do can change that other than to tell you that any time someone exploits and traffics and harbors human beings, they are the lowest of human beings.

Id. 60-61. The district court identified the following reasons for imposing a sentence outside the advisory Guidelines:

the nature and...