Petition for Writ of Certiorari — Xiang v. United States (No. 07-1520)

oO Supreme Co veut, U.S.

No. ___Q7 1520 JUN 3- 2008

~ QFRICE OF THE CLERK

Sn The

Supreme Court of the United States

CHEN XIANG,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

&

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

PETITION FOR WRIT OF CERTIORARI

*

B. ALAN SEIDLER

Attorney for Petitioner

580 Broadway

New York, NY 10012

212-334-3131

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Did petitioner receive ineffective assistance

of counsel by reason of the failure to argue that there

was no evidence that any charged robbery affected

interstate commerce?

2. Were the consecutive and enhanced penalties

for the weapons offenses charged in Counts Six, Nine

and Twelve improper?

i

TABLE OF CONTENTS

Page

SELLA LTD i

os 6 cc onnasveowonasoaons saben iii

souls coceewokenvecrsvnausviccheancanien 1

a os vusowersbaestannoves 1

Relevant Constitutional & Statutory Provisions.... 1

TE SI crscevrserscorsieionisterpracseeneonerene 2

Reasons for Granting the Writ ...................0000ce00 5

ares ais aausbaysesovinsssvacenseseectonee 14

as viv cuvenvanneneducewnsoveiiwoek App. 1

lil

TABLE OF AUTHORITIES

FEDERAL CASES

Argersinger v. Hamlin, 407 U.S. 25 (1972)...

Cuevas v. Henderson, 801 F.2d 586 (2d Cir.

1986), cert. denied, 107 S.Ct. 13854 (1986) ...............

Deal v. United States, 508 U.S. 129 (1993)............

Gaines v. Hopkins, 575 F.2d 1147 (5th Cir.

I odtcisnctodeteeataceon ance arta lss ae dedecckentss

Gideon v. Wainwright, 372 U.S. 335 (1968)................

Maddox v. Lord, 818 F.2d 1058 (2d Cir. 1987).............

Massaro v. United States, 538 U.S. 500 (2003) ...........

McKenna v. Ellis, 280 F.2d 592 (5th Cir. 1960)

modified, 289 F.2d 928, cert. denied, 368 U.S.

Be NN aca csetsab cd nuccae ed tna meade pa duct yacadccieineusetags

Powell v. Alabama, 287 U.S. 45 (1932)................ eee

Smith v. Murray, 477 U.S. 527 (1986)..........eeeeeees

Strickland v. Washington, 466 U.S. 668 (1984)...........

United States v. Alfonso, 1998 U.S. Dist. LEXIS

HRI eigenen POE ce Ope Nero ener Sea ae ACE NUUES Loe

United States v. Angelos, 354 F. Supp. 2d 1227

AE, SI sis oiecias ee enw cesoe

United States v. Booker, 125 S.Ct. 738 (2005).............

United States v. Collins, 40 F.8d 95 (CA5 1994)..........

United States v. Crosby, 397 F.3d 103 (2d Cir.

I actus nuianieaa banana oesiak desea meniiben pence

1V

TABLE OF AUTHORITIES — Continued

Page

United States v. Cruz, 785 F.2d 399 (2d Cir

1986)....... AT ENE ONO EG eB T EM RON Y 7

United States v. Dukes, 727 F.2d 34 (2d Cir

Et SSSA END NES aE 6 See Ur A NT Per Ae eRe TBO 8

United States v. Frady, 456 U.S. 152 (1982)... 8

United States v. Harrison, 451 F.2d 1013 (2d

Se IN TEP cp)siscsiscicavncsieneadzeteeodacteic ince manana ele Gcaeiauoanlensioien 6

United States v. Jamison, 299 F.3d 114 (2d Cir.

I ics tncsad'n us Udine cia ateseanlieen ie hice ouaiaoaean 10

United States v. Jones, 965 F.2d 1507 (CA8

eS Ee NDR RP ete SFE SD eee eS A SRR 14

United States v. Perrotta, 313 F.3d 33 (2d Cir

|_| EER DT RCRA UES LOM CPE RNIN TE NEO A TSEN teeta NE 10

United States v. Peterson, 236 F.3d 848 (CA7

NIN anion Woiicks 5 suirosdcceicesicanichisty cbidlceesdaacathiada stint taiait dues misticates 9

United States v. Plattner, 330 F.2d 271 (2d Cir.

ait ba shines css tavsicvarcciencoa ud ace ee aan 6

United States v. Turner, 272 F.3d 380 (6th Cir

ED iiinivciieinivktatdsinvninicameletoeniniians Saedcams 10

Valdez v. Scully, 627 F. Supp. 714 (SDNY 1986)......... 7

Von Moltke v. Gillies, 332 U.S. 708 (1968)..........000000... 6

FEDERAL STATUTES ©

(BEE eRe” tt 5 RRND ASR ORS EO SRN Cee ro 10

Be ee eI aviivecstcicsiccrcedisncceereuatancaroewmueiens 3, 11

Se A a ish ks civicceniccasnisine dsc obeiacnteddpiaeaiiaaad 1

1

OPINION BELOW

The Summary Order of the United States Court

of Appeals for the Second Circuit, dated March 11,

2008, is submitted herewith.

&

_

JURISDICTION

This matter is On Writ of Certiorari to the

United States Court of Appeals for the Second Cir-

cuit. The Judgment of that Court was entered March

11, 2008.

The statutory provision conferring upon this

Court jurisdiction to review the judgment of the

Court of Appeals by Writ of Certiorari is 28 U.S.C.A.

sec. 1254.

&

vv

CONSTITUTIONAL &

STATUTORY PROVISIONS

1. Petitioner was denied Due Process of Law

pursuant to the dictates of the Fifth Amendment to

the United States Constitution which states in rele-

vant part:

“No person shall be held to answer ... , nor

be deprived of life, liberty, or property, with-

out due process of law; nor shall private

property be taken for public use, without just

compensation.”

2

The Sixth Amendment to the Constitution pro-

vides in relevant part:

“In all criminal prosecutions, the accused

shall ... have the assistance of counsel for

his defence.”

ry

vv

STATEMENT OF THE CASE

This matter was on direct appeal to the United

States Court of Appeals for the Second Circuit from a

Judgment of the United States District Court for the

Southern District of New York (Casey, J.). The Dis-

trict Court Judgment was entered on or about Octo-

ber 13, 2006. The Summary Order of the Court of

Appeals affirming the conviction was filed on March

11, 2008, and the Mandate was issued on April 2,

2008.

Petitioner was originally convicted following a

jury trial. Petitioner’s conviction on Counts I of the

Indictment [extortion conspiracy], II [extortion], and

III [firearm in connection with extortion] were re-

versed by the Second Circuit Court of Appeals in a

decision dated November 1, 2005 (03-1575(L)J. As a

result of said Decision, defendant’s original sentence

of 70 months on Counts I, II, IV, V, VII, VIII, X, XI

[each sentence on each count to run concurrently to

the other], plus the consecutive total imprisonment

term of 984 months for Counts III, VI, [IX and XII

(weapons), was effectively reduced to a sentence of

3

70 months imprisonment, plus 684 months impris-

onment for the weapons counts. Pursuant to the

Court of Appeals decisions, Counts IV, V, VII, VIII, X,

XI, and Counts VI, IX and XII were remanded to the

District Court for resentencing pursuant to United

States v. Booker, 125 S.Ct. 738 (2005), and United

States v. Crosby, 397 F.3d 103 (2d Cir. 2005).

On October 13, 2006, petitioner was resentenced,

and District Judge Casey again found petitioner’s

base offense level for the non-weapon Counts (Counts

4,5,7,8,10,11) to be 24, at criminal history III (63-78

months incarceration). After considering the sentenc-

ing factors stated in 18 USC § 3553(a), Judge Casey

did not disturb the original sentence of 70 months

imprisonment, and 3 years supervised release, but

ran said term concurrent to the sentence imposed

before Southern District Judge Kaplan in 02 Cr 300,

and a New York State sentence. Judge Casey also

imposed a related $600 special assessment. Judge

Casey then imposed mandatory consecutive sentences

of 84 months on Count 6; 300 months on Count 9; 300

months on Count 12; for a total case punishment of

754 months. Judge Casey also imposed a $300 Special

Assessment for said weapons counts.

According to the Government’s evidence, at 75

Eldridge Street in New York City, an unknown caller

telephoned Mr. Hua, a part owner in a gambling

operation at that location. The caller stated he was-

associated with “Vietnamese Boy” [codefendant and

cooperating witness “Xiao”]. The caller stated Viet-

namese Boy would come to the gambling parlor later

4

that day to pick up $10,000, which Hua was in-

structed to place in a red envelope. That evening Hua

was summoned to go outside the gambling parlor by a

group of men. The group allegedly included peti-

tioner, and defendants Lin, Xiao and Wei. Each of the

four pointed guns at Hua, but Hua tole the group he

had no money. Xiao allegedly struck Hua on the head,

and Wei struck Hua in the stomach using Wei’s gun.

Xiao ripped a necklace from Hua’s neck, and the

group fled.

On September 30, 2001, Xiao, co-defendant Ye,

and petitioner allegedly robbed a gambling parlor

located in the rear of a barbershop at 21 Eldridge

Street using weapons. The group took more than

$10,000 in the robbery.

On November 21, 2001, Defendants Lin, Xiao,

Chun Chen, Gau, and petitioner, allegedly attempted

to rob a gambling parlor at 75 Eldridge Street, but

could not gain entry. Later on November 21st, 3 of the

same group entered, and robbed a gambling parlor at

109th East Broadway. However, the $3000 proceeds

from that robbery were split amongst original 5

members of said group.

On January 23, 2002, Xiao, Li, and petitioner

allegedly robbed a gambling parior in the rear of a

barbershop at 85 Allen Street. Guns were brandished,

and approximately $10,000 was stolen. Li struck one

of the victims in the head with a pistol.

At petitioner’s trial the guilty plea transcript of

defendant Li Wei was admitted as evidence to prove

9)

the Count One extortion conspiracy. The Govern-

ment’s other trial evidence included victims of the

crimes charged, iaw enforcement case investigators,

weapons evidence seized from the apartment of a co-

conspirator, and the testimony of cooperating wit-

nesses Xiao, Ye, and Chun Chen.

Instant petitioner appealed the jury verdict and

his; sentence [03-1575-L]. Over petitioner’s objection,

his appellate counsel, who was also trial counsel,

raised limited issues on direct appeal. Counsel chal-

lenged the introduction of other crimes evidence

pursuant to Evidence Rule 403; the violation of the

Confrontation Clause by the admission of the guilty

plea transcript of defendant Wei; the insufficiency of

the evidence on the extortion Counts [Counts One

and Two]; and the necessary dismissal of the Count

Three weapon offense — for using a firearm in connec-

tion with extortion related crimes — because of that

insufficiency; and the fundamental unfairness of

sentencing petitioner to 300 months consecutive

incarceration on each of Counts 9 and 12, when the

conviction for each of the three weapons counts took

place in the context of the same trial [Deal v. United

States, 508 U.S. 129 (1993)}.

¢

REASONS FOR GRANTING THE WRIT

REASON ONE: Petitioner received ineffective

assistance of counsel by reason of the failure to argue

6

that there was no evidence that any charged robbery

affected interstate commerce?

The Sixth Amendment to the United States

Constitution provides for an accused’s right to coun-

sel:

“in all criminal prosecutions, the accused

shall enjoy the right ... to have the assis-

tance of counsel for his defence.”

The right to such assistance in a criminal prose-

cution imeans the right to assistance at every stage of

the proceeding. United States v. Harrison, 451 F.2d

1013 (2d Cir. 1971); Von Moltke v. Gillies, 332 U.S.

708, 723-24 (1968); United States v. Plattner, 330 F.2d

271, 274 (2d Cir. 1964). That right is amplified by

Rule 44 of the Federal Rules of Criminal Procedure

which states in section “(a)” thereof:

“Every defendant who is unable to obtain

counsel shall be entitled to have counsel as-

signed to represent that defendant at every

stage of the proceedings from initial appear-

ance before the federal magistrate or the

court through appeal, unless the defendant

waives such appointment.”

The importance of the Sixth Amendment right to

counsel is highlighted by decisions in Argersinger v.

Hamlin, 407 U.S. 25, 31-36 (1972), and Gideon uv.

Wainwright, 372 U.S. 335, 343-45 (1963). The right

to be heard would be, in many cases, of little avail

if it did not comprehend the right to be heard with

the assistance of counsel. A defendant requires the

7

guiding hand of counsel at every step in the proceed-

ing against him. Powell v. Alabama, 287 U.S. 45, 68-

69 (1932). Like all constitutional guarantees, the

right to counsel is more than an illusory promise; it is

the right to the effective assistance of counsel. See,

e.g., Gaines v. Hopkins, 575 F.2d 1147 (5th Cir. 1978)

[failure of court appointed attorney to investigate the

defendant’s case deprived defendant of effective

assistance of counsel]; McKenna v. Ellis, 280 F.2d

592, 599 (5th Cir. 1960) modified, 289 F.2d 928, cert.

denied, 368 U.S. 877 (1961) [failure of court ap-

pointed attorney to interrogate witnesses and assure

presence of witnesses at trial deprived defendant of

effective assistance of counsel]. The standard for

deciding whether a claim of ineffective assistance of

counsel amounts to constitutional deprivations, is

whether counsel’s conduct so undermined the proper

functioning of the adversarial process that the trial

cannot be relied upon as having produced a just

result. It is whether the deficient performance of

counsel prejudiced the defendant. Strickland v.

Washington, 466 U.S. 668 (1984); United States v.

Cruz, 785 F.2d 399 (2d Cir. 1986). A defendant must

show that counsel’s performance was deficient, and

that deficient performance prejudiced the defense.

Maddox v. Lord, 818 F.2d 1058 (2d Cir. 1987); Cuevas

v. Henderson, 801 F.2d 586 (2d Cir. 1986), cert. de-

nied, 107 S.Ct. 1354 (1986); Valdez v. Scully, 627

F. Supp. 714 (SDNY 1986). “Prejudice” is defined as

an error that works to the actual and substantial

disadvantage of a party, infecting the entire proceeding

8

with error of constitutional magnitude. United States

v. Frady, 456 U.S. 152 (1982).

Conversely, effective assistance of counsel as

guaranteed by the Sixth Amendment, is that quality

of representation within the range of competence

reasonably expected of attorneys in criminal cases.

United States v. Dukes, 727 F.2d 34 (2d Cir. 1984).

The same standard is used to evaluate the effec-

tiveness of both trial and appellate counsel. See,

Smith v. Murray, 477 U.S. 527, 536 (1986).

Petitioner recognizes that the Supreme Court in

Massaro v. United States, 538 U.S. 500 (2003) stated

its preference for raising ineffective assistance of

counsel claims by Section 2255 motions. However,

petitioner believes a sufficient record here exists to

now decide the issue.

On appeal, and at trial petitioner urged his

attorney to move to dismiss the convictions of the

three gambling parlor robbery Counts on the ground

that the interstate commerce element required for a

Hobbs Act robbery, was not satisfied for any incident.

The Eldridge Street robbery proceeds from individu-

als did not exceed $10,000; the Allen Street robbery

proceeds from individuals did not exceed $10,000; the

109 East Broadway robbery proceeds from individu-

als did not exceed $3000. The criminal purpose of

each robbery was to target individuals at an illegal

gambling parlor, not a business engaged in interstate

commerce. In the course of each robbery the money

taken from numerous individuals was not substantial

9

enough to have a cumulative effect upon interstate

commerce. The case law on the issue is clear that

there must be facts which demonstrate that the funds

taken from an individual were to be used in a busi-

ness operating in interstate commerce. The test was

stated in United States v. Collins, 40 F.3d 95 (CA5

1994), and United States v. Alfonso, 1998 U.S. Dist.

LEXIS 169. The application of the Hobbs Act to

crimes committed against individuals will only stand

if the act depletes the assets of an individual who is

directly and customarily engaged in interstate com-

merce; if the acts cause or create the likelihood that

the individual will deplete the assets of an entity

engaged in interstate commerce; or if the number of

individuals victimized or the sum at stake is so large

that there will be some cumulative effect on inter-

state commerce.

The federal government bears the onus of prov-

ing that the accused’s conduct affected interstate

commerce. It is this proof that differentiates Hobbs

Act violations from common law robbery. United

States v. Peterson, 236 F.3d 848 (CA7 2001). Here,

there was no evidence presented by the Government

linking any charged robbery to interstate commerce.

At oral argument the Court of Appeals belittled the

Government’s contention of a such a link. Yet, in the

Summary Order the Court of Appeals found there

was sufficient evidence that “each of the three robber-

ies affected, or had the potential to affect, interstate

commerce.” That conclusion is not supported by the

10

barren trial record, and is further without a single

supporting factual reference in the Summary Order.

When the Government seeks to satisfy

dictional Hobbs Act’s requirement by showing a

connection between an individual victim and a busi- .

ness engaged in interstate commerce, the connection

must be a substantial one, not one that is fortuitous

or speculative. United States v. Turner, 272 F.3d 380

(6th Cir. 2001). While the effect on interstate com-

merce need only be minimal, United States v. Jami-

son, 299 F.3d 114 (2d Cir. 2002), merely showing a

victim of a conspiracy worked at a business engaged

in interstate commerce is not enough to meet the de

minimis showing required to support a federal convic-

tion. United States v. Perrotta, 313 F.3d 33 (2d Cir.

2002).

The attorney was constitutionally ineffective for

not moving to dismiss the weapons charges contained

in Counts Six, Nine and Twelve of the Indictment on

the ground that the three robberies were not Hobbs

Act robberies, as stated aforesaid, that could be

prosecuted in a court of the United States as required

by 18 USC § 924(c)(1)(A).

As was stated by the Court of Appeals in peti-

tioner’s original appeal [03-1575(L)], in dismissing

the § 924(c) weapon offense charged in Count Three,

for failure to prove the predicate extortion-related

crimes:

“Indeed, because the commission of the un-

derlying predicate offense is a necessary

11

element of a conviction under §224(c), both

logic and precedent dictate that there must

be legaily sufficient proof of the underlying

offense.... Without such proof, the third

element of §924(c) simply has not been estab-

lished, and a conviction under the statute

cannot be sustained.”

Here, the robberies of individuals at the 3 illegal

gambling locations did not effect interstate commerce,

and the related weapons offenses in Counts Six, Nine

and Twelve should have been dismissed either in the

District Court, or by order of the Court of Appeals on

direct appeal. The failure petitioner’s then attorney to

raise this issue at any stage of the proceeding is

ineffective assistance of counsel. Petitioner was

obviously prejudiced as the result because he was

sentenced to 684 extra months in prison as the direct

result of the ineffective assistance.

REASON TWO: Petitioner was not convicted by

this jury of a second, or subsequent weapons offense,

and the enhancement provision of § 924(c) is funda-

mentally unfair, and cruel.

On October 13, 2006, petitioner was resentenced,

and District Judge Casey again concluded petitioner’s

base offense level for the non-weapon Counts

(4,5,7,8,10,11) to be 24, at criminal history III (63-78

months incarceration). After considering the sentenc-

ing factors stated in 18 USC § 3553(a), Judge Casey

did not disturb the original sentence of 70 months in

prison, 3 years supervised release, but ran said term

concurrent to the sentence imposed before Southern

12

District Judge Kaplan in 02 Cr 300, and a New York

State sentence. Judge Casey also imposed a related

$600 special assessment. Judge Casey then imposed

mandatory consecutive sentences of 84 months on

Count 6; 300 months on Count 9; 300 months on

Count 12; for a total case punishment of 754 months.

Judge Casey also imposed a $300 Special Assessment

for said weapons counts.

Petitioner was sentenced to 684 months incar-

ceration for weapons convictions by the jury for

Counts 6, 9 and 12 rendered at the conclusion of his

trial.

18 USC § 924(c) states as follows:

“Any person who, during and in relation to

any crime of violence ... uses or carries a

firearm ... , shall, in addition to the pun-

ishment provided for such crim of violence

..., be sentenced to a term of imprisonment

of not less than 5 years [not less than 7 years

if the firearm is brandished].... In the case

of a second or subsequent conviction under

this subsection, the person shall be sen-

tenced to a term of imprisonment not less

than 25 years....

At sentencing, and resentencing the District

Court held that the weapons conviction for Counts 9

and 12 were “second or subsequent” convictions under

18 USC § 924(c) and imposed two 25 year consecutive

terms of incarceration, to run consecutive to Count 6,

and all other counts.

13

In Deal v. United States, 508 U.S. 129, 132 (1993)

the majority held “the provision [of 18 USC 924(c)]

also cannot be read to impose an enhanced sentence

only for an offense committed after a previous sen-

tence has become final. Deal v. United States, 508

U.S. at 129. Therefore, the statute “does not require a

criminal act after the first conviction; it merely

requires a conviction after the first conviction.

Petitioner believes Deal, ibid. was decided by the

majority in error. Petitioner submits that the dissent-

ers were correct that the construction of § 924(c) was

sufficiently uncertain that the rule of lenity should

apply, and that the statute should be construed to

define a “subsequent conviction” as a conviction for

an offense committed after and earlier conviction had

become final. However, petitioner also submits he

was convicted of Counts Six, Nine and Twelve simul-

taneously by the same jury at the same time. There is

no order of conviction in the record, or interrogatory

provided by the jury on the weapons counts in order

to permit enhanced penalties for a second or subse-

quent conviction for a weapons offense. Counts Six,

Nine and Twelve were rendered simultaneously by

the jury. There is no weapon conviction after a convic-

tion for a weapon offense.

Further, six hundred eighty four months impris-

onment for the weapons counts is fundamentally

unfair. The penalty is in excess of the penalties for

airplane hijacking, espionage, kidnapping, assault,

and rape. An effective life sentence for possession of a

weapon on 3 occasions is “unjust, cruel and even

14

irrational” when the weapon was never discharged.

See, United States v. Angelos, 354 F. Supp.2d 1227,

1230 (D.C. Utah 1994).

Imposition of a sentence of 684 months impris-

onment for Counts Six, Nine and Twelve will not

deter crime, it will only ruin the life of this 28 year

old petitioner. See, United States v. Jones, 965 F.2d

1507, 1521 (CA8, 1992). The sentence is so irrational

and draconian it can only encourage others to shoot

their way out of a robbery, rather than leave wit-

nesses.

¢

CONCLUSION

For the foregoing reason a writ of certiorari

should issue to review the judgment of the United

States Court of Appeals for the Second Circuit.

DATED: May 22, 2008.

Submitted by,

B. ALAN SEIDLER, Esq.

Attorney for Petitioner

580 Broadway

New York, New York 10012

212-334-3131

App. 1

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE

PRECEDENTIAL EFFECT. CITATION TO SUM-

MARY ORDERS FILED AFTER JANUARY 1, 2007,

IS PERMITTED AND IS GOVERNED BY THIS

COURT'S LOCAL RULE 32.1 AND FEDERAL RULE

OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR

OTHER PAPER IN WHICH A LITIGANT CITES A

SUMMARY ORDER, IN EACH PARAGRAPH IN

WHICH A CITATION APPEARS, AT LEAST ONE

CITATION MUST EITHER BE TO THE FEDERAL

APPENDIX OR BE ACCOMPANIED BY THE NO-

TATION: “SUMMARY ORDER).” A PARTY CITING

A SUMMARY ORDER MUST SERVE A COPY OF

THAT SUMMARY ORDER TOGETHER WITH THE

PAPER IN WHICH THE SUMMARY ORDER IS

CITED ON ANY PARTY NOT REPRESENTED BY

COUNSEL UNLESS THE SUMMARY ORDER IS

AVAILABLE IN AN ELECTRONIC DATABASE

WHICH IS PUBLICLY ACCESSIBLE WITHOUT

PAYMENT OF FEE (SUCH AS THE DATABASE

AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV/).

IF NO COPY IS SERVED BY REASON OF THE

AVAILABILITY OF THE ORDER ON SUCH A DA-

TABASE, THE CITATION MUST INCLUDE REF-

ERENCE TO THAT DATABASE AND THE DOCKET

NUMBER OF THE CASE IN WHICH THE ORDER

WAS ENTERED.

At a stated term of the United States Court of

Appeals for the Second Circuit, held at the United

States Court of International Trade, at 1 Federal

App. 2

Plaza, in the City of New York, on the 11th day of

March, two thousand and eight.

PRESENT:

HON. SONIA SOTOMAYOR,

HON. REENA RAGGI,

Circuit Judges,

HON. CAROL BAGLEY AMON,

District Judge.*

United States of America,

Appellee,

-v.- No. 06-4544-cr(L)

aaa No. 06-5091-cr (con)

Xiao Qin Zhou, Lin Li, :

Chun Rong Chen, (Filed Mar. Ei, 2008)

Defendants,

Lin Xian Wu, Chen Xiang,

Defendants-Appellants.

For

Defendant-Appellant Wu: ANDREW G. PATEL,

Law Offices of Andrew

G. Patel, New York, New

York.

* The Honorable Carol Bagley Amon, District Judge, of the

United States District Court for the Eastern District of New

York, sitting by designation.

App. 3

For

Defendant-Appellant Xiang: B. ALAN SEIDLER, New

York, New York.

For Appellee: DIANE GUJARATI,

Assistant United States

Attorney, (Michael Gar-

cia, United States At-

torney for the Southern

District of New York,

Benjamin Gruenstein,

Assistant United States

Attorney, on the brief),

New York, New York.

UPON DUE CONSIDERATION, it is hereby

ORDERED, ADJUDGED AND DECREED that the

judgment of the district court is AFFIRMED.

Defendants-appellants Lin Xian Wu and Chen

Xiang appeal amended judgments of conviction

entered on September 15, 2006 and October 25, 2006,

respectively, in the United States District Court for

the Southern District of New York (Casey, J.), follow-

ing convictions for three counts of robbery in violation

of 18 U.S.C. § 1951, three counts of conspiracy to

commit robbery in violation of § 1951, and three

counts of using a firearm in connection with the

robberies in violation of 18 U.S.C. § 924(c). Wu was

principally sentenced to 51 months’ imprisonment for

the robbery and conspiracy to commit robbery convic-

tions and 684 months’ imprisonment for the firearms

convictions. Xiang was principally sentenced to 70

months’ imprisonment for the robbery and conspiracy

App. 4

to commit robbery convictions and 684 months’ im-

prisonment for the firearms convictions. The sen-

tences for the firearm convictions are mandatory

sentences. We assume the parties’ familiarity with

the underlying facts and procedural history of the

case.

Wu contends that the mandatory sentence for his

§ 924(c) convictions is unconstitutional because it

prevented the district court from considering his

individual circumstances. Because Wu’s mandatory

minimum sentence of 684 months’ imprisonment for

conviction of three counts of § 924(c) is less than the

statutory maximum sentence of life imprisonment for

these convictions, see United States v. Johnson, 507

F.3d 793, 798 (2d Cir. 2007), this sentence is not

unconstitutional. Harris v. United States, 536 U.S.

545 (2002) (upholding the constitutionality of manda-

tory minimum sentencing provision in § 924(c)); see

also Chapman v. United States, 500 U.S. 453 (1991)

(holding that a court may impose a statutory sentence

unless it is cruel and unusual in violation of the

Eighth Amendment or based on arbitrary classifica-

tions in violation of the Due Process Clause). Nor is

the sentence unconstitutional because application of

the mandatory minimum provision “narrow(s] the

range within which a judge may exercise sentencing

discretion.” United States v. Estrada, 428 F.3d 387,

390 (2d Cir. 2005). Wu also argues that the manda-

tory minimum sentence violates 18 U.S.C. § 3553(a),

by prohibiting the court from “imposling] a sentence

sufficient, but not greater than necessary to comply

App. 5

with the purposes set forth in paragraph (2) of this

subsection.” Although the sentencing court has lim-

ited authority to impose a sentence below a statutory

minimum, see18 U.S.C. § 3553(e) & (f), its application

of a statutory minimum sentencing provision is not

substantively unreasonable in this case. See Fernan-

dez, 443 F.3d at 26-27 (reviewing a district court’s

sentence for reasonableness). In addition, the record

reflects that the district court considered the factors

in § 3553(a) when sentencing Wu.

As an initial matter, Xiang argues that the

mandatory minimum provision should not have

applied in this case because he did not commit a

criminal act after the first conviction. Xiang concedes

that this argument is foreclosed by Deal v. United

States, 508 U.S. 129, 135 (1993), but he raises it to

preserve it. Xiang further argues that the sentence is

substantively unreasonable. See United States uv.

Fernandez, 443 F.3d 19, 26 (2d Cir. 2006) (reviewing a

district court’s sentencing decision for reasonable-

ness). To the extent Xiang challenges the reasonable-

ness of the mandatory minimum sentence imposed

pursuant to § 924(c), this claim is without merit for

the reasons discussed above with respect to Wu’s

sentence. To the extent Xiang asserts that the sen-

tence of 70 months’ incarceration for the robbery and

conspiracy to commit robbery convictions was unrea-

sonable, we cannot conclude, giving due respect to the

district court’s reasoned judgment, that the sentence

was an abuse of discretion given the nature and

App. 6

seriousness of the offense. See Gall v. United States,

128 S. Ct. 586, 594-96 (2007).

Finally, Xiang argues that he received ineffective

assistance of counsel on his merits appeal because

counsel failed to challenge his convictions under the

Hobbs Act for insufficiency of evidence regarding the

interstate commerce element. At trial, the govern-

ment provided evidence that each of the three robber-

ies affected, or had the potential to affect, interstate

commerce. See United States v. Elias, 285 F.3d 183,

188 (2d Cir. 2002). In addition, Xiang’s appellate

counsel was able to obtain a reversal of his conviction

on three counts resulting in a reduction in his sen-

tence of 25 years. Accordingly, we conclude that Xiang

has failed to establish the elements of an ineffective

assistance of counsel claim. See Strickland v. Wash-

ington, 466 U.S. 668, 688, 693-94 (1984) (holding that

an appellant must show (i) that the attorney’s per-

formance fell below “an objective standard of reason-

ableness” under “prevailing professional norms,” and

(ii) “affirmatively prove prejudice” by showing that

“there is a reasonable probability that, but for coun-

sel’s unprofessional errors, the result fo the proceed-

ing would have been different”).