                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA
____________________________________
                                     )
UNITED STATES OF AMERICA            )
                                     )
      v.                             )  Criminal Action No. 16-218 (RMC)
                                     )
ARTHUR CHAN,                        )
                                     )
            Defendant.              )
____________________________________)

                                  MEMORANDUM OPINION

                On May 10, 2017, the Court held a Sentencing Hearing in this criminal matter.

Taking into consideration the submissions of the parties, the report prepared by the Probation

Office, and the arguments made in open court, the Court has determined that a departure from

the Sentencing Guidelines is necessary in the interests of justice.

                The United States Sentencing Guidelines provide for consistent and predictable

sentences for the same conduct regardless of a defendant’s location or circumstances. The non-

mandatory Sentencing Guidelines direct the court to impose a sentence that is sufficient, but not

greater than necessary to comply with the purposes of the statute. 18 U.S.C. § 3553(a) (2012).

Among the factors the Court is to consider is the need for the sentence to: (A) reflect the

seriousness of the offense, promote respect for the law, and provide just punishment for the

offense; (B) afford adequate deterrence to criminal conduct; (C) protect the public from further

crimes of the defendant; and (D) provide the defendant with needed educational or vocational

training. Id.

                The statute also directs the court to consider a number of factors to determine the

appropriate sentence: (1) the nature and circumstances of the offense, and the history and

characteristics of the defendant; (2) the purposes of the statute; (3) the kinds of sentences

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available; (4) the sentencing guidelines; (5) policy statements; (6) the need to avoid unwarranted

sentence disparities; and (7) the need to provide restitution to any victims.

               Mr. Chan pled guilty to one count of trafficking in counterfeit goods in violation

of 18 U.S.C. § 2320. See Information [Dkt. 2]; 1/18/2017 Minute Entry for Plea Hearing. The

proposed Guideline imprisonment range is 10 to 16 months incarceration. See Gov’t Mem. in

Aid of Sent. (Gov’t Mem.) [Dkt. 15] at 1. Because the applicable guideline range is in Zone C of

the guidelines sentencing table, the term may be satisfied under the Guidelines by (1) a sentence

of imprisonment or (2) a sentence of imprisonment that includes a term of home detention or

community confinement, provided that at least one half the minimum term is satisfied by

imprisonment. See id.; U.S. Sent. Guidelines § 5C1.1(d) (2016).

               Accordingly, the United States proposed that Mr. Chan be sentenced to the

Guidelines-minimum 10 months, with 5 months imprisonment followed by 5 months home

confinement. See Gov’t Mem. at 2. Mr. Chan argued that a non-custodial sentence was

appropriate in this instance, either through probation or home confinement. See Def’s Mem. in

Aid of Sent. [Dkt. 16] at 2. In so arguing, Mr. Chan advanced two primary points: (1) as a

profoundly deaf man, a custodial sentence would be unusually harsh and burdensome for Mr.

Chan; and (2) courts have consistently given noncustodial sentences in situations where the

counterfeit goods trafficked do not pose an inherent harm to the public. See Def’s Mem. at 7, 14.

               Taking these arguments into account, the Court must impose a sentence that is

“sufficient but not greater than necessary” to achieve justice. 18 U.S.C. § 3553(a). Accordingly,

as reflected on the record, the Court assessed the relevance of each of the 3553(a) factors in turn,

in light of the facts of the case, the submitted briefs and recommendations, and the parties’

arguments made in open court.



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               First, in regard to the seriousness of the offense, the Court concluded that the

offense is sufficiently serious to warrant a period of incarceration. Mr. Chan pled guilty to

trafficking a sum of over $37,000, and his uncharged related conduct suggests that far larger

sums were involved throughout the scheme. Further, Mr. Chan received several notices that his

behavior was in violation of federal criminal law, including notices from the Customs and

Border Patrol, which contacted him several times by letter after seizing counterfeit goods at the

border intended for Mr. Chan.

               Turning to the need to promote respect for the law and provide just punishment,

the Court looked especially to Mr. Chan’s otherwise law-abiding behavior; Mr. Chan did not

appear to have even received any traffic citations. Outside the matter at hand, Mr. Chan had not

shown any propensity for criminal behavior, and by all accounts appears to be a law-abiding

citizen. While the length of Mr. Chan’s activity could support a finding that a guidelines

sentence is appropriate, the Court otherwise did not believe that Mr. Chan’s general behavior

indicated a need for a long custodial sentence in order to promote respect for the law.

               When assessing whether a particular punishment is appropriate, the Court must

also consider the special circumstances faced by Mr. Chan. As a profoundly deaf man, Mr. Chan

faced unusually high risks in prison. He would not be able to communicate effectively with

corrections officers or other inmates. He would be at an unusually high risk of victimization.

An extended term of incarceration would therefore be far more onerous on him than the nature of

his crime requires.

               Similarly, the Court does not believe a long custodial sentence is necessary to

afford adequate deterrence. Deterrence has two components: (1) deterring the individual

defendant from recidivism; and (2) deterring others from engaging in similar behavior. As for



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deterring Mr. Chan, it was clear through testimony and submissions from both parties that Mr.

Chan’s experience with the justice system had been sufficiently traumatic such that no extended

custodial sentence was necessary to dissuade him from reoffending. While the Court must also

consider discouragement to similarly situated individuals who might copy Mr. Chan’s behavior,

that factor was insufficient to put Mr. Chan at risk through extended incarceration.

                    The Court also considered the need to provide the defendant with educational

training, vocational training, medical care or other correction or treatment. As Mr. Chan is an

educated man with no substance abuse issues, the Court found that none of these points bore on

Mr. Chan’s sentence.

                     Taking all factors together, the Court concluded that a custodial sentence of

some kind is necessary, but a prolonged period of incarceration would not be beneficial and

would bring grossly disproportionate risks to Mr. Chan. The Court therefore ordered that Mr.

Chan be incarcerated for a period of one day, to be served in the District Court holding cell for

no less than four hours.1 Mr. Chan was also ordered to serve 18 months of supervised release

following incarceration; nine months of which will be served in home confinement, with releases

for work, medical appointments, and meetings with his lawyer. During the remaining nine

months of supervised release, Mr. Chan will be required to perform at least 20 hours of

community service a month. Additionally, for the entire period of supervised release, Mr. Chan

will be prohibited from accessing the website eBay or any of its affiliates, and must make his

personal computer available to his probation officer to ensure compliance with this provision.

Additionally, Mr. Chan was ordered to pay a forfeiture amount of $37,246.34, which the Court

understands has already been remitted in full by Mr. Chan to the Customs and Border Patrol.



1
    Four hours thus constituting the minimum necessary to constitute one full day.

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Finally, Mr. Chan was ordered to pay a mandatory $100 special assessment.




Date: May 16, 2017                                         /s/
                                              ROSEMARY M. COLLYER
                                              United States District Judge




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