Because Judge Debra Ann Livingston, originally 1

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).

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 day of February, two thousand ten. th

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,
2

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 DEFENDANT9 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
3

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 abuse7 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
4

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.” 
5

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