         08-3586-cr
         United States v. Chao (Han)


                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
     IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


 1            At a stated term of the United States Court of                 Appeals
 2       for the Second Circuit, held at the Daniel Patrick                 Moynihan
 3       United States Courthouse, 500 Pearl Street, in the                 City of
 4       New York, on the 18 th day of February, two thousand               ten.
 5
 6       PRESENT:
 7                GUIDO CALABRESI,
 8                ROBERT A. KATZMANN,
 9                       Circuit Judges. 1
10       _______________________________________
11
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                            v.                   08-3586-cr
16                                                 NAC
17       JUNG CHAO, also known as TONY, CHUNG MY HUONG NGUYEN, also
18       known as LAN, THUONG TRI TANG, SPARTAK NOKU, MOHAMMAD ALI
19       HUSSAIN, also known as ELI, SOMNATH MUKHERJEE, also known as
20       UNCLE ELI, also known as SATISHKUM PATEL, JASON CHANG, also
21       known as JAY, JAE KANG, DANH THANH VU, also known as INKMAN,
22       also known as MR. DAN, MING NGUYEN, also known as MINH,
23       PHONG DOC NGUYEN, YUTHIEN TRANS, also known as DUNG, also
24       known as TEETHIAN TRANS, LILLY QUANG NGUYEN, also known as
25       NURSE LILLY, THANH KIM, TAIDE TAN, also known as KYAW T.
26       PAINE, VU P. LEE, XIA WU HU, JIAN PING GUAN, also known as
27       SHAO PING, also known as MARK, also known as GUAN JIAN PING,


                       1
                   Because Judge Debra Ann Livingston, originally
             assigned to this panel, recused herself from this case,
             the remaining two judges issue this order in accordance
             with Second Circuit Internal Operating Procedure E ( 2n
             Cir. IOP E).
 1   ZHANG OU, JIA LONG WANG, also known as LITTLE DRAGON,
 2            Defendants,
 3
 4   ERIC HAN, also known as AH ER,
 5            Defendant-Appellant.
 6   ______________________________________
 7
 8   FOR DEFENDANT-
 9   APPELLANT:              Marlon G. Kirton, Law Offices of
10                           Marlon G. Kirton, New York, NY.
11
12   FOR APPELLEE:           Jeffrey A. Brown, Michael A. Levy,
13                           for Preet Bharara, United States
14                           Attorney for the Southern District
15                           of New York, New York, NY.
16
17       UPON DUE CONSIDERATION of this appeal from the judgment

18   of the United States District Court for the Southern

19   District of New York (Koeltl, J.), it is hereby ORDERED,

20   ADJUDGED, AND DECREED that the judgment of the district

21   court is AFFIRMED.

22       Defendant-Appellant Eric Han appeals the judgment of

23   the United States District Court for the Southern District

24   of New York, sentencing him to 24 months’ imprisonment and

25   the applicable mandatory minimum of six years of supervised

26   release.   We assume the parties' familiarity with the facts

27   of the case, its procedural history, and the scope of the

28   issues on appeal.

29       Han argues that the district court treated the

30   Sentencing Guidelines as binding or at least presumptively


                                   2
1    reasonable and did not adequately consider the sentencing

2    factors in 18 U.S.C. § 3553(a), and hence that the 24-month

3    sentence was procedurally unreasonable.     We review the

4    sentence for reasonableness, United States v. Booker, 543

5    U.S. 220, 261-62 (2005); United States v. Fernandez, 443

6    F.3d 19, 25-26 (2d Cir. 2006), “under a deferential abuse-

7    of-discretion standard,” United States v. Cavera, 550 F.3d

8    180, 189 (2d Cir. 2008) (en banc) (internal quotation marks

9    omitted).   Because Defendant challenges only the procedural

10   reasonableness of the sentence, we do not review here the

11   actual length of the sentence.

12       It is clear from the record that the court was “aware

13   of both the statutory requirements and the sentencing range

14   or ranges that are arguably applicable.”     United States v.

15   Fleming, 397 F.3d 95, 100 (2d Cir. 2005).     There is a strong

16   presumption that judges have considered factors under

17   section 3553(a) and related arguments absent “record

18   evidence suggesting otherwise.”   Fernandez, 443 F.3d at 30.

19   Han’s claim that the district court failed to consider his

20   need for drug treatment and his desire to pursue education

21   is not supported by any such evidence.     Indeed, there is

22   evidence to the contrary; the district court recommended


                                   3
1    drug treatment during Han’s imprisonment.     “[W]e do not

2    require ‘robotic incantations’ that the district court has

3    considered each of the § 3553(a) factors,” Cavera, 550 F.3d

4    at 193, especially in a garden-variety case such as this one

5    “where the parties have addressed only straightforward,

6    conceptually simple arguments to the sentencing judge,” id.

7    (internal quotation marks omitted).

8        Although the court gave deference to the Sentencing

9    Guidelines, it did not treat those Guidelines as binding or

10   even presumptively reasonable, but simply treated them as a

11   “starting point and the initial benchmark,” giving due

12   consideration to the fact that the Guidelines are “the

13   product of careful study based on extensive empirical

14   evidence derived from the review of thousands of individual

15   sentencing decisions.”   Gall v. United States, 552 U.S. 38,

16   46, 49 (2007).   It is apparent from the court’s

17   consideration of the § 3553(a) factors that it was willing

18   and able to consider deviating from the Guidelines, but

19   because nothing was especially unusual about this case, the

20   court gave deference to the careful study that went into the

21   Guidelines and ended where it began, with the “starting

22   point” that is the Guidelines.   Id. at 49.    In any event,

23   the district court specifically stated, “I appreciate that

24   the guidelines are only advisory.”
                                  4
1        We have reviewed all of Defendant-Appellant's remaining

2    arguments and have found each of them to be without merit.

3    Accordingly, the judgment of the district court is AFFIRMED.

 4
 5
 6
 7                                    FOR THE COURT:
 8                                    Catherine O’Hagan Wolfe,
 9                                    Clerk
10
11




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