1 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 Sen tencing Hearing in this cr iminal matter. Taking into consideration the s ubmissions of the parties, the r eport prepared by the Probation Office, and the arguments made in open court, the Court has det ermined that a departure from the Sentencing Guidelines is nece ssary in the interests of just ice. The United States Sentencing Gui delines provide for consistent and predictable sentences for the same conduct regardless of a defendant’s loca tion or circumstances. The nonmandatory Sentencing Guidelines direct the court to impose a se ntence that is sufficient, but not greater than necessary to comp ly with the purposes of the statu te. 18 U.S.C. § 3553(a) (2012). Among the factors the Court is to c onsider is the need for the sentence to: (A) reflect the seriousness of the offense, prom ote respect for the law, and pr ovide just punishment for the offense; (B) afford adequate de terrence to criminal conduct; (C ) protect the public from further crimes of the defendant; and (D) provide the defendant with nee ded educational or vocational training. Id

. The statute also directs the c ourt to consider a number of fact ors to determine the appropriate sentence: (1) the na ture and circumstances of the offense, and the history and characteristics of the defendan t; (2) the purposes of the statu te; (3) the kinds of sentences2 available; (4) the sentencing gui delines; (5) pol icy statements ; (6) the need to avoid unwarranted sentence disparities; and (7) the need to provide restitution t o 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 Mi nute Entry for Plea Hearing. The proposed Guideline imprisonment range is 10 to 16 months incarc eration. See Gov’t Mem. in Aid of Sent. (Gov’t Mem.) [Dkt. 15] at 1. Because the applicab le guideline range is in Zone C of the guidelines sentencing table, the term may be satisfied unde r the Guidelines by (1) a sentence of imprisonment or (2) a senten ce of imprisonment that includes a term of home detention or community confinement, provided th at at least one half the mini mum term is satisfied by imprisonment. See id. ; U.S. Sent. Guideli nes § 5C1.1(d) (2016). Accordingly, the United States p roposed that Mr. Chan be senten ced to the Guidelines-minimum 10 months, with 5 months imprisonment follow ed by 5 months home confinement. See Gov’t Mem. at 2. Mr. Chan argue d 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 s o arguing, Mr. Chan advanced two primary points: (1) as a profoundly deaf man, a custodial sentence would be unusually ha rsh and burdensome for Mr. Chan; and (2) courts have consis tently given noncustodial sente nces in situations where the counterfeit goods trafficked do not pose an inherent harm to th e public. See Def’s Mem. at 7, 14. Taking these arguments into acc ount, the Court must impose a se ntence that is “sufficient but not greater tha n necessary” to achieve justice. 18 U.S.C. § 3553(a). Accordingly, as reflected on the record, the C ourt assessed the relevance of each of the 3553(a) factors in turn, in light of the facts of the case, the submitted briefs and rec ommendations, and the parties’ arguments made in open court.3 First, in regard to the seriousne ss of the offense, the Court c oncluded that the offense is sufficiently serious to warrant a period of incarcer ation. Mr. Chan pled guilty to trafficking a sum of over $37,000, a nd his uncharged related co nduct suggests that far larger sums were involved throughout the scheme. Further, Mr. Chan re ceived several notices that his behavior was in violation of feder al criminal law, including no tices from the Customs and Border Patrol, which contacte d him several times by letter afte r seizing counterfe it goods at the border intended for Mr. Chan. Turning to the need to promote r espect 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 t raffic citations. Outside th e matter at hand, Mr. Chan had not shown any propensity for crimina l behavior, and by all accounts appears to be a law-abiding citizen. While the length of M r. Chan’s activ ity could support a finding that a guidelines sentence is appropriate, the C ourt otherwise did not believe th at Mr. Chan’s general behavior indicated a need for a long cust odial sentence i n order to prom ote respect for the law. When assessing whether a particul ar punishment is appropriate, the Court must also consider the special cir cumstances faced by Mr. Chan. As a profoundly deaf man, Mr. Chan faced unusually high risks in pris on. He would not be able to communicate effectively with corrections officers or other i nmates. He would be at an unusu ally high risk of victimization. An extended term of incarcerati on would therefore be far more o nerous on him than the nature of his crime requires. Similarly, the Court does not beli eve a long custo dial sentence is necessary to afford adequate deterrence. Deter rence has two components: (1 ) deterring the individual defendant from recidivism; and ( 2) deterring others from engagi ng in similar behavior. As for4 deterring Mr. Chan, it was clea r through testimony and submissi ons from both parties that Mr. Chan’s experience with the justi ce system had been sufficiently traumatic such that no extended custodial sentence was necessar y to dissuade him from reoffendi ng. While the Court must also consider discouragement to simila rly situated individuals who m ight copy Mr. Chan’s behavior, that factor was insufficient to put Mr. Chan at risk through ex tended incarceration. The Court also considered the need to provide the defendant wit h educational training, vocational training, medi cal care or other correction or treatment. As Mr. Chan is an educated man with no substance a buse issues, the Court found th at none of these points bore on Mr. Chan’s sentence. Taking all factors together, the Court concluded that a custo dial sentence of some kind is necessary, but a prolonged period of incarceration would not be beneficial and would bring grossly disproportiona te risks to Mr. Chan. The Co urt therefore ordered that Mr. Chan be incarcerated for a peri od of one day, to be served in t he District Court holding cell for no less than four hours. 1 Mr. Chan was also ordered to ser ve 18 months of supervised re lease 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 perf orm 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 it s affiliates, and must make his personal computer available to h is probation officer to ensure compliance with this provision. Additionally, Mr. Chan was ordere d to pay a forfeiture amount o f $37,246.34, which the Court understands has already been remitted in full by Mr. Chan to th e Customs and Border Patrol.

1 Four hours thus cons tituting the minimum necessary to constitu te one full day.5 Finally, Mr. Chan was ordered t o pay a mandatory $100 special a ssessment.

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