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United States of America v. Robert Chu

May 7, 2013

UNITED STATES OF AMERICA, APPELLEE,
v.
ROBERT CHU, DEFENDANT-APPELLANT.



Per curiam.

12-3120-cr

United States v. Chu

Submitted On: May 6, 2013

Before: CABRANES, WESLEY, and WALLACE,*fn1 Circuit Judges.

The central issue raised in this appeal is whether the United States District Court for the Southern District of New York (Katherine B. Forrest, Judge) erred in concluding that defendant-appellant Robert Chu was not entitled to a sentence reduction for acceptance of responsibility pursuant to United States Sentencing Guidelines § 3E1.1. Although Chu pleaded guilty to his drug conspiracy charge in a timely fashion, he also attempted to smuggle drugs into a detention center after his plea but before his sentencing. Such conduct is inconsistent with accepting responsibility, and the District Court was therefore well within its discretion in denying Chu a reduction in his sentence on that basis. We also conclude that Chu's sentence is otherwise procedurally and substantively reasonable.

Affirmed.

The central issue raised in this appeal is whether the United States District Court for the Southern District of New York (Katherine B. Forrest, Judge) erred in concluding that defendant-appellant Robert Chu was not entitled to a sentence reduction for acceptance of responsibility pursuant to United States Sentencing Guidelines ("Guidelines" or "U.S.S.G.") § 3E1.1.*fn2 Although Chu pleaded guilty to his drug conspiracy charge in a timely fashion, he also attempted to smuggle drugs into a detention center after his plea but prior to his sentencing. Such conduct is inconsistent with accepting responsibility, and the District Court was therefore well within its discretion in denying Chu a reduction in his sentence on that basis. We also conclude that Chu's sentence is otherwise procedurally and substantively reasonable. Accordingly, we affirm the judgment of the District Court.

BACKGROUND

Chu's criminal conduct involved selling various drugs to a confidential source ("CS") working with the Drug Enforcement Administration during 2010-2011. In particular, the CS obtained drugs"including ecstasy, heroin, marijuana, and ketamine"from Chu. Chu also discussed being able to supply the CS with powder and crack cocaine and boasted that he was so busy selling drugs that he did not even have time to package his heroin into "baggies" for sale to his customers. Indeed, according to Chu, his cocaine was of such high quality that he should be considered a "chef" for the way he cooked it into crack. In addition to Chu's sale of drugs to the CS, law enforcement officers also observed Chu selling drugs to other individuals during this period.

On September 26, 2011, the CS arranged to purchase 20 grams of heroin from Chu. While Chu was en route to meet the CS, law enforcement officers arrested him and discovered the 20 grams of heroin he had planned to sell the CS, as well as additional quantities of heroin, crack cocaine, powder cocaine, oxycodone, clonazepam, and marijuana. Law enforcement officials also searched Chu's residence the same day and discovered even more drugs. Chu was indicted on October 26, 2011 for conspiring to distribute various controlled substances, including heroin, crack cocaine, ecstasy, ketamine, and marijuana, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B)-(D), and 846. On March 14, 2012, pursuant to a plea agreement with the government, Chu pleaded guilty to a lesser-included offense.*fn3

Both before and after pleading guilty, Chu was detained at the Metropolitan Detention Center ("MDC"). Throughout this time, he attempted to smuggle drugs into the MDC. This conduct is corroborated by emails and phone conversations between Chu and other individuals, and defense counsel did not contest this factual record at Chu's sentencing hearing.*fn4 See Joint App'x 12-13. Chu's efforts to smuggle drugs into the MDC were persistent and continued after he pleaded guilty.

Chu's sentencing hearing took place on July 19, 2012. During the sentencing hearing, the District Court determined that Chu was not entitled to a two-level reduction in his total offense level for acceptance of responsibility because of his post-plea conduct"namely, his incessant attempts to smuggle drugs into the MDC. See id. at 13-14.

After refusing to award Chu a reduction for acceptance of responsibility, the District Court calculated his Guidelines range based on the 60 grams of heroin seized from Chu and his apartment; Chu claimed responsibility for this amount in his plea agreement.*fn5 Next, the District Court addressed, as it was required to do, the factors listed in 18 U.S.C. § 3553(a), a statute which, inter alia, requires a court to consider "the nature and circumstances of the offense" in selecting a sentence.*fn6

At this point, the District Court took into consideration Chu's total drug activity beyond the drug amounts listed in his plea agreement. Specifically, based on a statement by Chu contained in the Presentence Report"in which he told the CS that he had sold approximately 100 grams of heroin every other week for at least a year"the District Court concluded that Chu was responsible for selling approximately 2.5 kilograms of heroin. See Joint App'x 22-23. Based on this finding, the District Court characterized Chu as a "serious drug ...


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