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United States v. Cheng

United States Court of Appeals, First Circuit

March 1, 2017

UNITED STATES OF AMERICA, Appellee,
v.
SIHAI CHENG, Defendant, Appellee.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Patti B. Saris, Chief U.S. District 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.

          Before Howard, Chief Judge, Souter, Associate Justice, [*] and Stahl, Circuit Judge.

          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 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.

          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 ...


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