United States Court of Appeals 

For the First Circuit 

No. 16-1144 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

SIHAI CHENG, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. Patti B. Saris, Chief U.S. District Judge] 

Before 

Howard, Chief Judge, 

Souter, Associate Justice,* 

and Stahl, Circuit Judge. 

 Katherine C. Essington for appellant. 

B. Stephanie Siegmann, Assistant U.S. Attorney, with whom 

Carmen M. Ortiz, United States Attorney, was on brief, for 

appellee. 

March 1, 2017 

 * Hon. David H. Souter, Associate Justice (Ret.) of the 

Supreme Court of the United States, sitting by designation. 
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HOWARD, Chief Judge. Sihai Cheng challenges the 

reasonableness of the 108-month incarcerative sentence he received 

for his role in an illicit scheme to export pressure transducers 

-- sensitive goods with nuclear applications -- from the United 

States to Iran through the People's Republic of China. We affirm. 

I. 

 Between 2009 and 2011, Cheng caused at least 1,185 MKS 

Instruments, Inc. ("MKS") Model 722A pressure transducers to be 

exported from the United States to Iran via China. Cheng placed 

numerous orders for the pressure transducers, participated in 

fraudulently obtaining U.S. export licenses for them, and was 

involved in stripping them of their MKS serial numbers and 

repackaging them in order to conceal the fact that they were being 

shipped in violation of U.S. export laws and the U.S. embargo 

against Iran. Cheng engaged in this course of conduct despite 

knowing that the MKS pressure transducers would be used at Iran's 

uranium enrichment facilities to advance the country's nuclear 

weapons program. Further, at various points, he expressed 

animosity towards the United States and invoked the specter of 

"WORLD WAR THREE" in an apparent effort to drum up sales. 

After being extradited from the United Kingdom to the 

United States, Cheng pleaded guilty to six counts of a ten-count 

indictment, including: conspiracy to commit export violations in 
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violation of 50 U.S.C. § 1705; conspiracy to smuggle goods in 

violation of 18 U.S.C. § 371; and four counts of unlawfully 

exporting U.S. goods to Iran in violation of 50 U.S.C. § 1705. 

The parties and the Probation Office agreed that 

U.S.S.G. §2M5.1 was the applicable Guideline and that -- after 

applying a three-level reduction for acceptance of responsibility 

under §3E1.1 -- the total offense level was 23. When combined 

with Cheng's Criminal History Category of I, this yielded an 

advisory Guidelines sentencing range of forty-six to fifty-seven 

months' imprisonment. 

During Cheng's sentencing hearing, however, the district 

court upwardly departed six levels based on Application Note 2 to 

U.S.S.G. §2M5.1. Application Note 2 provides that an upward 

departure may be warranted where the following factors are "present 

in an extreme form:" "the degree to which the violation threatened 

a security interest of the United States, the volume of commerce 

involved, the extent of planning or sophistication, and whether 

there were multiple occurrences." U.S.S.G. §2M5.1 cmt. (n.2). 

The district court explained that "[a]ll of those factors" were 

present to an extreme degree and observed that "[i]t's almost as 

if someone were writing [Application Note 2] for this case." The 

court therefore determined that the total offense level -- after 

the six-level upward departure -- was 29 and imposed a sentence of 

108 months, the upper end of the Guidelines sentencing range. 
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This appeal timely followed. 

II. 

 On appeal, Cheng's overarching claim is that this 108-

month incarcerative sentence is unreasonable. Specifically, he 

argues: that the sentencing court erred in departing from the 

Guidelines under Application Note 2; that his sentence was 

disproportionate to sentences in similar and related cases; and 

that his sentence was greater than necessary to achieve the 

sentencing goals of 18 U.S.C. § 3553(a). 

Claims of sentencing error trigger a two-step inquiry in 

this court: "we first determine whether the sentence imposed is 

procedurally reasonable and then determine whether it is 

substantively reasonable." United States v. Clogston, 662 F.3d 

588, 590 (1st Cir. 2011). Cheng objects only to the substantive 

reasonableness of his sentence.1 Therefore, our review is for 

 1 The government invites us to categorize Cheng's claim that 

the sentencing court erred in departing from the Guidelines under 

Application Note 2 as an attack on his sentence's procedural 

reasonableness. Cf. United States v. Torres-Rivera, 661 Fed. 

App'x 727, 730 (1st Cir. 2016) (reviewing for procedural 

reasonableness claim that district court erred by relying on the 

application note to §3B1.1 in imposing an above-guidelines 

sentence). Cheng did not object below, and our review would, as 

Cheng concedes, be for plain error if we accepted the government's 

invitation. However, because we understand Cheng to be arguing 

that Application Note 2 does not apply to him regardless of the 

procedures used, we will assume (favorably to Cheng) without 

deciding that the claim speaks to the substantive reasonableness 

of his sentence. Therefore, we are choosing to evaluate the 
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abuse of discretion, taking into account the totality of the 

circumstances. United States v. Zavala-Martí, 715 F.3d 44, 50 

(1st Cir. 2013). Although Cheng did not object to the substantive 

reasonableness of his sentence below, we will assume arguendo that 

our review is nevertheless for abuse of discretion. Cf. United 

States v. Nuñez, 840 F.3d 1, 7 (1st Cir. 2016) (assuming without 

deciding that review of unpreserved claims of substantive 

unreasonableness is for abuse of discretion). 

 Considering Cheng's three arguments in turn, we find 

them unavailing. 

A. 

Cheng contends that the district court erred in upwardly 

departing under Application Note 2 because (1) neither planning 

nor sophistication were present in extreme form and (2) the 

security interests of the United States had already been taken 

into account in calculating his base offense level. 

The district court properly considered the entire scope 

of the illegal scheme, see U.S.S.G. §1B1.3, and could reasonably 

conclude from the record that Cheng was involved in an illegal 

procurement network that was both carefully planned and highly 

sophisticated, as it spanned three countries, involved more than 

five people, generated thousands of communications, and included 

 

entirety of the sentence under the more lenient abuse of discretion 

standard. This does not change the outcome. 
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circuitous shipping routes and other considerable efforts to evade 

detection. There was no abuse of discretion, and we need go no 

further on this particular point. 

 Cheng argues, however, that even if planning and 

sophistication were present in extreme form, inappropriate double 

counting is afoot. Yet, contrary to Cheng's claims, the fact that 

the security interests of the United States are considered in 

determining the appropriate base offense level under U.S.S.G. 

§2M5.1 does not mean that those security interests cannot also be 

used in assessing whether an upward departure is justified under 

Application Note 2. We have said that "[s]ince double counting is 

often perfectly proper, the guidelines themselves are the most 

helpful aid in the task of separating permissible double counting 

from its impermissible counterpart." United States v. Lilly, 13 

F.3d 15, 19 (1st Cir. 1994) (citation omitted). "The Sentencing 

Commission has not been bashful about explicitly banning double 

counting in a number of instances. We believe the Commission's 

ready resort to explicitly stated prohibitions against double 

counting signals that courts should go quite slowly in implying 

further such prohibitions where none are written." Id. at 19–20 

(collecting cases). 

 The Guidelines do not prohibit double-counting under 

U.S.S.G. §2M5.1. To the contrary, the Guidelines explicitly 

instruct courts to consider the degree to which an export violation 
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threatened national security in determining (1) the base offense 

level for export violations, (2) the appropriate sentence within 

the Guideline range, and (3) the applicability of a departure. 

U.S.S.G. §2M5.1. Simply put, Application Note 2 recognizes that 

export violations pose varying degrees of threat to national 

security and that those violations posing the most significant 

threats may warrant upward departure. This is entirely consistent 

with the principle that "a district court may rely on a particular 

fact for multiple sentencing purposes." United States v. 

Sepúlveda-Hernández, 817 F.3d 30, 35 (1st Cir. 2016). 

B. 

Next, Cheng argues that his sentence was substantively 

unreasonable because it was disproportionate to sentences in 

similar and related cases. 

Cheng complains that some participants in the instant 

scheme to illegally export MKS pressure transducers faced no 

consequences: some were not indicted, while others were subjects 

of a diplomatic arrangement. Therefore, he asserts, "it was error 

for the district court judge to hold Mr. Cheng solely responsible 

for the illegal export of over a thousand pressure transducers 

where the export would not have been possible without the 

assistance" of others. In the circumstances of this case, this 

"he did it too!" argument is unpersuasive. Stated bluntly, the 

fact that the sentencing court had no ability to sentence certain 
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of Cheng's co-conspirators does not make Cheng's own sentence 

substantively unreasonable. Cf. United States v. Wallace, 573 

F.3d 82, 97 (1st Cir. 2009) ("A 'defendant is not entitled to a 

lighter sentence merely because his co-defendants received lighter 

sentences.'" (quoting United States v. Marceau, 554 F.3d 24, 33 

(1st Cir. 2009)). To hold otherwise would lead to absurd 

consequences. 

Second, Cheng points to the thirty-four month 

incarcerative sentence received by Qiang Hu, who was involved in 

this same scheme and sentenced by the same district court judge. 

We have observed that "concerns could arise if two identically 

situated defendants received different sentences from the same 

judge." Id. No such concerns arise here, however, as the judge 

"confronted the [sentencing] disparity head-on." Id. Unlike 

Cheng, Hu was not involved in exporting any of the MKS pressure 

transducers to Iran and was unaware that transducers were being 

sent to Iran to assist in Iran's nuclear weapons program. Because 

Hu and Cheng were not identically situated, there is no reason to 

think that Cheng was entitled to the same sentence as Hu. See id. 

Finally, Cheng's efforts to establish a national 

sentencing disparity falter. See United States v. Ayala-Vazquez, 

751 F.3d 1, 32 (1st Cir. 2014) (noting that consideration of 

sentencing disparity primarily targets disparities among 

defendants nationally). Although Cheng points us to several cases 
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in which others received shorter sentences after committing export 

violations than he did, those cases are readily distinguishable. 

For example, defendants in those cases merely attempted to commit 

export violations, see United States v. Vaghari, 500 Fed. App'x 

139 (3d Cir. 2012) (attempting to buy a centrifuge), exported far 

fewer items, see United States v. Tsai, 954 F.2d 155 (3d Cir. 1992) 

(exporting 11 items of military electronics), exported less 

sensitive items, see id., or exported items to end-users in 

countries other than Iran, see United States v. Zhen Zhou Wu, 711 

F.3d 1 (1st Cir. 2013) (exporting to end-users in China). 

Disparity analysis is simply not appropriate if a defendant's "case 

'was not in the same camp' as those he offer[s]." United States 

v. Reyes-Rivera, 812 F.3d 79, 89 (1st Cir. 2016) (quoting United 

States v. Garcia-Ortiz, 792 F.3d 184, 192 (1st Cir. 2015)). 

Therefore, we will not engage in it. 

Because Cheng fails to show that the sentence imposed 

resulted in any kind of unwarranted or impermissible disparity, we 

decline to find that it was substantively unreasonable in this 

respect. 

C. 

Lastly, Cheng argues that his sentence was substantively 

unreasonable because it was greater than necessary to accomplish 

the sentencing goals of 18 U.S.C. § 3553(a). 
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Both during the sentencing hearing and again in its 

thoughtful sentencing memorandum, the district court noted that it 

had considered the 18 U.S.C. § 3553(a) factors. Further, the court 

made specific, detailed findings with respect to the relevant 

§ 3553(a) factors -- including both aggravating and mitigating 

factors -- and adequately explained its sentence. See United 

States v. Arroyo-Maldonado, 791 F.3d 193, 201 (1st Cir. 2015). As 

we have said before, "[a] sentence will stand so long as there is 

a 'plausible sentencing rationale and a defensible result.'" 

Reyes-Rivera, 812 F.3d at 89. "The district court had plenty of 

reason to sentence as it did here." Id. 

Cheng contends in particular that the sentence is 

greater than necessary to serve a deterrent function -- either for 

Cheng himself or for others. As part of its sentencing rationale, 

the district court stated that "there is under the 3553(a) factors 

a need for deterrence . . . . You're not the first case I've seen 

like this, and I think there has to be a deterrent message sent 

out there, particularly if you know you're helping a nuclear 

weapons program." We have repeatedly recognized that deterrence 

is an important factor in the sentencing calculus. E.g., United 

States v. Díaz-Arroyo, 797 F.3d 125, 129 (1st Cir. 2015). 

Moreover, a district court can -- as it did here -- consider at 

sentencing the gravity and prevalence of the crime. See United 

States v. Madsen, 809 F.3d 712, 720 (1st Cir. 2016). Cheng's claim 
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that he was motivated "solely by financial greed" does little to 

help his cause. See id. (affirming sentence as substantively 

reasonable in light of the defendant's "goal of personal profit at 

the expense of the broader societal good"). 

At bottom, Cheng disagrees with the district court's 

weighing of the various sentencing factors, but we find no abuse 

of the court's broad discretion. Cf. Arroyo-Maldonado, 791 F.3d 

at 200 (finding no plain error when defendant disagreed with the 

sentencing court's weighing of factors). Criminal defendants are 

entitled to a weighing of the relevant § 3553(a) factors, "not to 

a particular result." United States v. Carrasco-de-Jesús, 589 

F.3d 22, 29 (1st Cir. 2009). Under the circumstances, imposition 

of a 108-month sentence was not substantively unreasonable. Cf. 

Clogston, 662 F.3d at 592 ("There is no one reasonable sentence in 

any given case but, rather, a universe of reasonable sentencing 

outcomes."). 

III. 

 For the forgoing reasons, we affirm.