United States v. Chan , 208 F. App'x 13 ( 2006 )

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 05-2427
UNITED STATES OF AMERICA,
Appellee,
v.
KING L. CHAN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya, Circuit Judge,
and Stahl, Senior Circuit Judge.
Kathleen M. McCarthy on brief for appellant.
Donald C. Lockhart, Assistant U.S. Attorney, and Robert Clark
Corrente, United States Attorney, on brief for appellee.
December 15, 2006
Per Curiam. King L. Chan ("Chan") appeals from his
above-guidelines sentence on the grounds that (1) the court erred
in applying a four-level enhancement under U.S.S.G. § 2K2.1(b)(5);
(2) the court imposed an unreasonably high sentence; (3) the court
abused its discretion in requiring him to undergo mental health
treatment as a special condition of supervised release; (4) the
court erred in delegating to the probation officer the
responsibility to determine the nature of the mental health
treatment required; and (5) the court erred in imposing a fine in
the written judgment. We will consider those arguments in that
order.
The short answer to Chan's objection to the four-level
enhancement under U.S.S.G. § 2K2.1(b)(5), for possession of a
firearm with intent to use it in another felony offense, is that he
waived that objection by first raising it as an objection to the
presentence report and then affirmatively withdrawing it at
sentencing. United States v. Rodriguez, 311 F.3d 435, 437 (1st
Cir. 2002).
As to the reasonableness of the ultimate sentence, the
district court expressly considered, but reasonably rejected, each
of the mitigating arguments advanced by Chan. First of all, the
court rejected Chan's argument that he never intended to carry out
the conspiracy to rob the gun store but that the plans were merely
the story line for a book he intended to write. After reviewing
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the presentence report and hearing extended argument from both
parties, the court concluded, based on the overt acts Chan had
taken to implement the plan--casing the location, training the
participants, and purchasing and sawing off a shotgun--that, at the
time of his arrest, he intended to carry out the robbery. However,
the court stopped short of finding that, when "push came to shove,"
he would actually do so. On that, the court gave Chan "the benefit
of the doubt," stating that, otherwise, the sentence "would be a
lot higher."
The court also expressly considered the other mitigating
factors Chan advanced--that he had voluntarily enlisted in the
Marines, that he has no prior criminal record, and that he comes
from a "very good family"--but found those considerations
outweighed by the "horrific" nature of the offense that Chan had
planned.1 Given the "very, very violent" nature of those plans,
the court concluded that a sentence within the guidelines range of
30 to 37 months would be too "lenient," and that a slightly higher
sentence of 42 months was necessary to address the statutory
factors, particularly the nature of the offense, 18 U.S.C. §
3553(a)(1). We find that explanation "plausible," United States v.
Jiménez-Beltre, 440 F.3d 514, 519 (1st Cir. 2006) (en banc), and
1
According to the presentence report, which Chan ultimately
did not dispute, the plan to steal guns from a licensed firearms
dealer included using a sawed-off shotgun, wrapping the storeowner
in duct tape, and setting fire to the store with the owner still
inside.
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the resulting sentence "within reasonable limits," United States v.
Scherrer, 444 F.3d 91, 93 (1st Cir. 2006) (en banc). Accordingly,
we defer to the district court's on-the-scene judgment. Jiménez-
Beltre, 440 F.3d at 519.
As a condition of supervised release, the court required
that Chan "undergo a program of mental health counseling and
treatment to be determined by the probation officer, either
inpatient or outpatient." As the basis for imposing that
condition, the court stated that "there may be some psychological
problems here that may have contributed to the situation in which
you now find yourself and, if so, I think you can use the help in
dealing with that problem so that it doesn't continue to plague you
for the rest of your life and you can turn your life around."
After announcing that condition and others, the court gave the
parties an opportunity to raise "[a]nything further," but defense
counsel raised no objections.
Even assuming that Chan did not thereby forfeit the
objections to the mental health treatment condition raised here,
but see United States v. Sepúlveda-Contreras, 2006 WL 3020263, at
* 5 (1st Cir. Oct. 25, 2006); United States v. Mojica-Rivera, 435
F.3d 28, 35 (1st Cir.), cert. denied, 126 U.S. 1529 (2006), those
objections can be quickly dispatched. The guidelines themselves
recommend such a condition "[i]f the court has reason to believe
that the defendant is in need of psychological or psychiatric
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treatment." U.S.S.G. § 5D1.3(d)(5). And, given the gruesome and
compulsively detailed nature of Chan's plans, reflecting, as the
government argued, "a fascination for violence," the district court
did not clearly err or abuse its discretion in determining that
Chan needed such treatment to rehabilitate himself and avoid future
crimes of this nature. Nor did the district court err in
delegating the determination of the precise form of treatment to
the probation officer. See United States v. Allen, 312 F.3d 512,
516 (1st Cir. 2002).
Chan's challenge to the requirement that he pay the cost
of his three years of supervised release, i.e., $10,358.28, is
twofold. He argues, first, that this requirement was imposed, for
the first time, in the written judgment, and second, that it
conflicts with the court's statement, at sentencing, that it was
"not going to impose any fine because . . . it doesn't appear [that
Chan] ha[s] any assets with which to pay a fine."
Taken in context, there is nothing inconsistent between
the oral sentence and the written judgment and nothing unreasonable
about the requirement that Chan pay the required amount. At
sentencing, although the court characterized the requirement as a
condition of supervised release rather than a fine, the court
expressly stated that it would "require . . . that [Chan] pay the
cost of supervision." Chan was on notice as to the amount of that
cost, since it was stated in the presentence report. In imposing
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this requirement, the court recognized that Chan could not afford
to pay the amount up front but stated that as a "young able-bodied
intelligent young man," Chan would be able to get a job when he is
released and so could bear the cost of the supervised release at
that time. In further consideration of Chan's present inability to
pay or to earn sufficient money to do so while in prison, the court
stayed the running of interest until Chan is released from prison.
Again, Chan's counsel voiced no objection to this requirement
although given an opportunity to do so. The written judgment is to
the same effect.
Whether characterized as a fine or a condition of
supervised release, we see no abuse of discretion in imposing this
requirement, see United States v. Uribe-Londoño, 409 F.3d 1, 4 (1st
Cir. 2005), much less anything so plainly erroneous as to warrant
granting relief on this forfeited ground, see United States v.
Yeje-Cabrera, 430 F.3d 1, 19 (1st Cir. 2005) The guidelines
themselves recommend that the court "impose a fine in all cases,
except where the defendant establishes that he is . . . not likely
to become able to pay any fine," U.S.S.G. § 5E1.2(a), and directs
the court to consider, in determining the amount of the fine, "the
expected costs to the government of any . . . term of supervised
release imposed," id., § 5E1.2(d)(7). Given the guidelines'
recommended range of $6,000 to $60,000 for the present offense
level of 19, id. § 5E1.1(c)(3), the amount imposed here was
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relatively low. The statute and guideline applicable to supervised
release further require that if a fine is imposed and has not been
paid upon release, the defendant be required to pay the fine, in
installments, as a condition of supervised release. 18 U.S.C. §
3624(e); U.S.S.G. § 5D1.3(5). Thus, whether we view the
requirement that Chan be required to pay the cost of his supervised
release as a fine or as a condition of supervised release, we see
no reason to overturn it.
Accordingly, the sentence is affirmed. See 1st Cir. R.
27.0(c).
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