U.S. v. Yu, Docket No. 01-1222.

• Decision Date: 25 March 2002
• Docket Number: Docket No. 01-1222.
• Citation: 285 F.3d 192
• Parties: UNITED STATES of America, Appellee, v. Kwok Ching YU, also known as Mon Lop, Defendant-Appellant, Peter Monsanto, Arnold Lawson, also known as Bones, and Jacqueline Monsanto, Defendants.
• Court: U.S. Court of Appeals — Second Circuit

285 F.3d 192

UNITED STATES of America, Appellee, v. Kwok Ching YU, also known as Mon Lop, Defendant-Appellant Peter Monsanto, Arnold Lawson, also known as Bones, and Jacqueline Monsanto, Defendants.

Docket No. 01-1222.

United States Court of Appeals, Second Circuit.

Argued November 30, 2001.

Decided March 25, 2002.

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Roberto Finzi, Assistant United States Attorney, New York, NY, (Mary Jo White, United States Attorney for the Southern District of New York, Christine H. Chung, Assistant United States Attorney, on the brief), for Appellee.

Irving Cohen, New York, NY, for Defendant-Appellant.

Before WALKER, JR., Chief Judge, JACOBS and SACK, Circuit Judges.

JACOBS, Circuit Judge.

Kwok Ching Yu appeals a sentence imposed by the United States District Court for the Southern District of New York (Kaplan, J.) after Yu pleaded guilty to two counts of conspiracy to distribute heroin and one count of attempted distribution of heroin, in violation of the federal narcotics laws. The district court sentenced Yu to concurrent 20 year terms of imprisonment on each count. On appeal, Yu challenges his sentence primarily on the basis of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Yu also contends that the district court committed clear error in calculating the drug quantity attributable to his crimes, and abused its discretion in declining to award Yu reductions in his offense level based on his purportedly "minor role" in the conspiracy and his purportedly "timely" acceptance of responsibility.

I

Yu has been incarcerated since November 1993 at the United States Penitentiary in Lewisburg, Pennsylvania ("Lewisburg"), following his conviction for leading a conspiracy in the 1980s to import heroin into the United States from Hong Kong. The present conviction arises out of a subsequent conspiracy to possess and distribute heroin in which Yu participated, while incarcerated, by giving the names and contact numbers of likely purchasers to a drug dealer named Eric Au Yong.

Au Yong was arrested on narcotics charges in the spring of 1997 and began cooperating with federal law enforcement authorities. He told the government that he had visited Yu in prison in late 1994 or early 1995 in an effort to sell approximately eleven "units" — or 7.7 kilograms¹ —of heroin that Au Yong had acquired from China. Au Yong told the government that in the course of several visits, Yu provided him with names and telephone numbers for potential buyers of the heroin, and in at least some cases Yu assured Au Yong that they were reliable people. This information proved fruitful; Yu told Au Yong that he thought Ah Chau would be a good and reliable customer, and in 1996, Au Yong sold Ah Chau a total of 4.5 units — or 3.15 kilograms — in four transactions. At the behest of the government, Au Yong continued to visit Yu at Lewisburg in 1997 and received more information about potential customers. Based on referrals by Yu, Au Yong made more heroin sales: two or three sales of one-half unit each (totaling 700 1050 grams) to one "Chemy"; three ounces (about 85 grams) to one "Jabbar"; two ounces (about 57 grams) to one "Blass"; a few ounces to one "Victor"; and a few ounces to one "Bonnie."

On February 22, 2000, Yu was named in three counts of a four-count indictment. Count One charged Yu and others under 21 U.S.C. § 846 with conspiring to distribute one kilogram and more of heroin between 1995 and 1996, in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(A). Count Two charged Yu and other defendants with violating Section 846 by conspiring to distribute 100 grams and more of heroin in 1997, in violation of Sections 812, 841(a)(1) and 841(b)(1)(B). Count Three charged Yu and other defendants with violating Section 846 and 18 U.S.C. § 2 by attempting to possess, with intent to distribute, 100 grams and more of heroin, in violation of Sections 812, 841(a)(1) and 841(b)(1)(B).

The case was scheduled for trial on April 11, 2000. On April 5, Yu pleaded guilty to all three counts. Yu did not enter into a plea agreement with the government, and he did not stipulate to the quantity of drugs involved. At the allocution, the district judge read the indictment to Yu and informed him of the penalties he potentially faced, including the possibility of mandatory minimum terms of 20 years on Count One and ten years on Counts Two and Three due to Yu's prior felony conviction. Yu pleaded guilty to each count, but he refused to allocute to the quantities of heroin alleged in the indictment. His attorney explained to the court that Yu intended merely to admit his guilt in conspiring to distribute heroin, with weight to be determined at sentencing because weight "is not an element of the offense."

The Pre-Sentence Report ("PSR") recommended that Yu be sentenced to 240 months in prison. The PSR determined that Yu's offenses should be grouped pursuant to U.S.S.G. § 3D1.2(d), and that Yu should be held accountable for 7.7 kilograms of heroin — the entire amount that Au Yong had been trying to sell with Yu's help. This quantity of heroin yielded a base offense level of 34 under the federal Sentencing Guidelines. The PSR recommended no reduction relating to Yu's role in the conspiracy, but it did recommend a two-level reduction for acceptance of responsibility, resulting in a final offense level of 32. The PSR recommended that Yu be assigned to Criminal History Category III, based on Yu's prior felony conviction and on the fact that he committed the offenses while incarcerated. Based on the offense level of 32 and the Criminal History Category of III, the PSR arrived at a Guideline sentencing range of 151-188 months. The PSR further determined, however, that the drug quantity, because it exceeded one kilogram, triggered the mandatory minimum sentence contained in Section 841(b)(1)(A), which, in light of Yu's prior felony conviction, was 240 months.

At a hearing on December 19, 2000, the district judge heard testimony regarding the drug transactions at the center of the conspiracy and found that Yu was responsible for "substantially in excess" of one kilogram of heroin.

Prior to sentencing, Yu argued in a submission to the court that the mandatory minimum sentence under Section 841(b)(1)(A) could not result from a finding of drug quantity by the district judge, because Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) — which had been decided in June 2000, two months after Yu entered his guilty plea — barred the application of a mandatory minimum sentence based on a fact not found by a jury beyond a reasonable doubt, where that sentence would exceed the otherwise-applicable sentencing range under the Guidelines. Yu also challenged the PSR's calculation of drug quantity and argued that he should receive additional offense-level reductions for his "minor role" in the conspiracy and because his acceptance of responsibility had been "timely."

On April 9, 2001, the district court sentenced Yu principally to concurrent 240 month terms of imprisonment on each of the three counts. The court found that the weight of heroin exceeded three kilograms, which, combined with other sentencing factors, yielded a Guideline range of 151-188 months. The court further determined, however, that the drug quantity (combined with Yu's prior felony conviction) triggered the mandatory 240-month minimum sentence in Section 841(b)(1)(A), which applies to heroin quantities of one kilogram or more. The district court rejected Yu's Apprendi argument on the ground that Apprendi had left intact the Supreme Court's prior holding in McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), that judicial findings of fact made under a preponderance standard may trigger mandatory minimum sentences. The court also rejected Yu's other arguments, finding that Yu was not entitled to a minor-role adjustment and that an offense-level reduction for "timely" acceptance of responsibility was unwarranted given that Yu had "waited until the last second to plead."

On appeal, Yu presses his argument under Apprendi, challenges the district judge's finding as to drug quantity, argues that the district court abused its discretion in declining to view Yu's role in the conspiracy as "minor" (thereby denying him a two-point offense-level reduction), and argues that the district court abused its discretion in declining to view Yu's acceptance of responsibility as "timely" so as to warrant an additional one-level reduction beyond the two-level reduction Yu had already received.

Yu's Apprendi argument is the only one with any merit. We address it first, then turn briefly to his other arguments.

II

Yu refused to allocute to drug quantity, and that determination ultimately was made by the district judge at sentencing under a preponderance standard. Because drug quantity was not found by a jury beyond a reasonable doubt, Yu argues that he had to be sentenced under Section 841(b)(1)(C), the provision applicable to narcotics offenses absent the appropriate finding as to quantity. Because that section contains no mandatory minimum sentence Yu argues that he should have been sentenced within the range specified by the Guidelines (which the district court determined to be 151-188 months, though Yu also disputes this, see infra). Instead, the district court invoked Section 841(b)(1)(A) and sentenced Yu to the 240-month mandatory minimum sentence prescribed in that subsection. Yu argues that because the court's application of subsection (A) (and, thus, his increased sentence) was triggered by a fact — drug quantity — that the court found under a preponderance standard, this was error under the rule established in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be...