In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-1387

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DONG JIN CHEN,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 03 CR 801—Ronald A. Guzmán, Judge.

____________

ARGUED DECEMBER 4, 2006—DECIDED AUGUST 14, 2007

____________

Before EASTERBROOK, Chief Judge, and CUDAHY and

SYKES, Circuit Judges.

SYKES, Circuit Judge. Dong Jin Chen pleaded guilty

to eleven counts of extortion and one count of tax fraud

based on an extensive money lending scheme he ran in

Chicago’s Chinatown community. Chen operated numerous

gambling parlors and provided loans to patrons and other

individuals at rates as high as 5% to 10% interest per

week. When the borrowers could not meet these inflated

terms, Chen would then show up with various associates

and Toi Ching gang members to forcibly demand payment. For these activities Chen was sentenced to 220

months, just above the bottom (210 months) of an advisory

guidelines sentence range that included both a bodily
2 No. 06-1387

injury and a leader/organizer enhancement. The district

court also denied Chen an acceptance-of-responsibility

adjustment for falsely denying or frivolously contesting

his threats or use of violence in the course of his acts of

extortion. Chen appeals these sentencing enhancements

and the denied adjustment. We affirm.

I. Background

Chen has been a U.S. citizen for ten years and has lived

in the United States since 1985, but he speaks a rare

Chinese dialect from his native region. As a result, the

district court supplied an interpreter for Chen at all plea

and sentencing hearings, and Chen repeatedly assured the

court that he was able to understand the proceedings

with the interpreter’s assistance. After Chen entered his

guilty pleas to the extortion and tax fraud counts, his

counsel filed an objection to certain guidelines enhancements recommended in the presentence report. Specifically, Chen challenged the bodily injury enhancement

denying he had repeatedly threatened and engaged in the

violent conduct described in the presentence report,

ranging from slaps and scrapes to beatings with metal

pipes and wooden bats. Instead, he asserted he had only

relied on “implicit threats”—his known reputation in the

community for resorting to violence against those who

failed to pay—to intimidate people into paying him back.

Chen also argued that the extortion scheme was not broad

enough to warrant a four-point organizer/leader enhancement, which requires either a minimum of five participants or “otherwise extensive” criminal activity.

Based on Chen’s objections to the presentence report, the

government went forward with a two-day sentencing

hearing during which it presented numerous witnesses

who testified to both observing and being on the receiving

end of Chen’s violent tactics. Three individuals testified to
No. 06-1387 3

being slapped, punched, and scraped by Chen or associates

acting under his direction. An FBI agent also presented

evidence regarding a beating Chen and four other individuals inflicted on Ging Hong using a metal pipe, a handgun,

and a baseball bat; Hong suffered injuries including a

head laceration that required nine stitches. Based on this

largely uncontroverted evidence, the district court concluded that Chen had caused bodily injury and been the

leader of criminal activity both extensive in nature and

involving at least five participants. The court also denied

Chen any reduction for acceptance of responsibility due

to his denial of the violent conduct. The court then imposed a sentence of 220 months’ imprisonment.

II. Discussion

A. Acceptance of Responsibility

A district court’s denial of an acceptance-of-responsibility

reduction on grounds that the defendant denied relevant

conduct is a factual finding subject to review for clear

error. United States v. Gilbertson, 435 F.3d 790, 798 (7th

Cir. 2006). Here, the district court concluded that Chen

“failed to truthfully admit the conduct he engaged in, the

beatings, the direct threats, the use of a dangerous

weapon.” See U.S.S.G. § 3E1.1 cmt. n.1(a) (acceptance-ofresponsibility reduction may be denied to “a defendant who

falsely denies, or frivolously contests, relevant conduct

that the court determines to be true”); see also United

States v. Gordon, No. 06-2080, 2007 WL 2077564, at *4

(7th Cir. July 23, 2007) (“A defendant who falsely denies,

or frivolously contests, relevant conduct in the face of

convincing evidence to the contrary does not merit a

reduction in sentence for acceptance of responsibility.”).

Chen does not, and cannot, dispute that he contested

the facts recited in the presentence report about his use
4 No. 06-1387

1 After brief consultation with his attorney, Chen changed his

position and admitted that he had used threats of violence, as

required to plead guilty to extortion. This exchange demonstrates

that Chen was able to understand and respond to the court’s

direct questioning, and was able to communicate with his counsel about his acceptance of responsibility.

of violence in the extortion scheme. The sentencing

memorandum filed by his counsel explicitly denies, no less

than three times, that Chen ever resorted to violence or

threats of violence. A lengthy evidentiary hearing was

held as a result of this challenge to the presentence report. Chen now argues that these denials were made

solely by his counsel and cannot fairly be attributed to

him based on his inability to understand English and

his limited education.

In support of this argument, Chen cites United States v.

Purchess, in which this court stated, “[W]here the defendant had a fifth grade education and a limited command

of the English language, and where the record contains

no link between the attorney’s statements and the defendant, we are reluctant to attribute the attorney’s statements to the defendant.” 107 F.3d 1261, 1268 (7th Cir.

1997). However, the facts of Purchess are easily distinguishable from this case. First, Chen had an interpreter

present at every stage of the proceedings and repeatedly

assured the district court that he understood what was

occurring. Chen also testified that he had eleven years

of education. Further, during his guilty plea hearing, Chen

(through his translator) made the same protest as his

counsel—that he had not threatened violence or physically

harmed anyone in the course of collecting loans.1

 Thus,

unlike in Purchess, the record here demonstrates that

Chen was able to understand and communicate with his

attorney about the proceedings. Accordingly, we conclude
No. 06-1387 5

2 United States v. Purchess suggested that the district court’s

“best course” when a defendant remains silent while his attorney mounts a factual challenge to relevant conduct is to directly

question the defendant to ensure that he understands and

agrees with the challenge. 107 F.3d 1261, 1269 (7th Cir. 1997).

We endorse this as a sound practice. Here, however, the record

establishes—even without a direct colloquy by the court—that

Chen understood the proceedings, and the denial of violent

conduct was appropriately attributed to him for purposes of

denying the acceptance of responsibility adjustment.

that the district court properly attributed the denials of

violent conduct to Chen.2

We also have no trouble concluding that the district

court did not err in finding that Chen’s denials of this

violent conduct were false. At the sentencing hearing, the

government presented numerous witnesses who testified

both to witnessing and being victims of Chen’s violence. On

appeal Chen concedes his participation in the Ging

Hong beating, one of the incidents cited in support of the

bodily injury enhancement. Based on Chen’s false denial of

this and other violence for which there was ample evidence, the district court did not err in denying the

acceptance-of-responsibility reduction.

B. Organizer/Leader Enhancement

Chen next challenges the application of the four-point

organizer/leader enhancement, a factual finding that

we review for clear error. See United States v. Blaylock,

413 F.3d 616, 618 (7th Cir. 2005). A four-point enhancement may be applied “[i]f the defendant was an organizer

or leader of a criminal activity that involved five or more

participants or was otherwise extensive.” U.S.S.G. § 3B1.1.

The district court concluded both that the extortion

scheme involved five or more participants and that it
6 No. 06-1387

was otherwise extensive “in that it involved large

amounts of money, it involved a large number of victims,

it involved a significant number of participants, it involved

record keeping and daily activity, all calculated to make

a profit by means of extortion.” Chen does not deny that

he was an organizer or leader, but he challenges the

district court’s findings regarding the extent of the organization.

The commentary to the sentencing guidelines states that

a “ ‘participant’ is a person who is criminally responsible

for the commission of the offense, but need not have been

convicted.” U.S.S.G. § 3B1.1 cmt. n.1. Chen admits that

codefendants Qi Ming Weng and Yu Hua Chen were

involved in the extortion scheme but argues that other

named individuals and unidentified gang members whom

witnesses testified assisted Chen were not “criminally

responsible.” The government presented unrebutted

testimony to the contrary, including evidence that Zhou

Mei, Peter Lai, and numerous members of the Toi Ching

gang participated with Chen in “debt collection” incidents

in which people were threatened or actually physically

harmed. Peter Lai also admitted to the FBI that he, Zhou

Mei, and two other individuals participated in the beating of Ging Hong. Based on this uncontested evidence,

the district court did not err in concluding that Chen’s

criminal activity involved five or more participants.

Although we need not reach the question given our

conclusion that the activity involved five or more participants, the court also did not err in concluding that the

criminal activity was “otherwise extensive.” The government presented a ledger indicating that approximately 150

people owed Chen a total of about $380,000. Chen regularly relied upon the assistance of both the named

coconspirators and various unidentified Toi Ching gang

members, indicating that more than five individuals

were involved in the criminal activity. See U.S.S.G. § 3B1.1
No. 06-1387 7

cmt. n.3 (“In assessing whether an organization is ‘otherwise extensive,’ all persons involved during the course of

the entire offense are to be considered. Thus, a fraud that

involved only three participants but used the unknowing

services of many outsiders could be considered extensive.”

(emphasis added)); see also United States v. Tai, 41 F.3d

1170, 1174 (7th Cir. 1994) (“otherwise extensive” requires

involvement of more than five individuals). Accordingly,

there is ample evidence in the record to support the

district court’s findings regarding the extensive nature

of the extortion scheme.

C. Bodily Injury Enhancement

Chen’s final challenge is to the two-point bodily injury

enhancement applied under U.S.S.G. § 2E2.1(b)(2)(A).

“ ‘Bodily injury’ means any significant injury; e.g., an

injury that is painful and obvious, or is of a type for which

medical attention ordinarily would be sought.” U.S.S.G.

§ 1B1.1 cmt. n.1(B). He contends that the slaps and

scrapes certain witnesses testified to were not sufficiently

serious to constitute bodily injury as defined by the

sentencing guidelines. The district court made no specific

findings of fact regarding which injuries or incidents

it considered in support of the enhancement; instead,

the court more generally concluded that “it is absolutely

crystal clear that the defendant engaged not only in

implicit threatening behavior but in explicit threats and

in actual violence personally, through others, and with

and without dangerous weapons.” Admittedly, this level

of generality makes it more difficult to review whether

the injuries that led to the application of the enhancement qualify as “bodily injury” under the guidelines.

However, as discussed above, Chen conceded both in his

brief and at oral argument before this court that the

beating of Ging Hong was sufficiently severe to require
8 No. 06-1387

nine stitches to Hong’s head. That incident was encompassed in one of the superceding indictment counts for

which the bodily injury enhancement was proposed, and it

was testified to at the sentencing hearing. Accordingly,

based on the Ging Hong incident alone, the district court

did not err in applying the bodily injury enhancement,

making the severity of the slaps and scrapes to other

individuals irrelevant.

AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—8-14-07