SUNG v. UNITED STATES OF AMERICA

Filing 14

OPINION. Signed by Judge Katharine S. Hayden on 1/27/2014. (nr, )

NOT FOR PUBLICATION
United States District Court
for the District of New Jersey
HYUN-YOP SUNG
Movant,
vs.
UNITED STATES OF AMERICA

Civil No.: 12-7268 (KSH)

Respondent.
Opinion

Katharine S. Hayden, U.S.D.J.
I.

Background
Hyun-Yop Sung waived indictment and entered into a plea agreement with the United

States on a two-count information that charged him with 1) conspiring to unlawfully produce an
identification document and to commit credit-card fraud (18 U.S.C. § 371)1 and 2) aggravated
identity theft (18 U.S.C. § 1028A and section 2). The plea agreement recited Sung’s sentencing
exposure: a maximum of five years of incarceration on count one and a statutory, consecutive
mandatory minimum of two years of incarceration on count two. The agreement also contained
factual stipulations, specifically that the offenses of conviction involved losses “totaling
approximately more tha[n] $120,000 but not more than $200,000” and involved ten or more
victims. But the parties did not stipulate to a sentencing range deemed to be reasonable; as to the
Guidelines range, Sung was entering an “open” plea. (See Plea Agreement 2–3, 7 [D.N.J. Crim.
No. 2:12-cr-00070 D.E. 569].)
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The separate statutes implicated in the conspiracy conduct were 18 U.S.C. §§ 1028(a)(1),
(c)(3)(A), and 1029(a)(2).
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In the final Presentence Report (“PSR”), Sung’s adjusted offense level was level 15. (See
PSR ¶ 65.) The two year mandatory minimum consecutive sentence for his conviction on count
two was expressly excluded from the adjusted offense level calculation. (PSR ¶ 53.) Sung
scored a criminal-history category of II, so the Guidelines sentencing range was 21 to 27 months;
factoring in the mandatory minimum, his sentencing range became 45 to 51 months. (PSR ¶ 94.)
Prior to sentencing, Sung’s attorney submitted a sentencing memorandum in which he
sought a departure from the guidelines. He argued that the adjusted Guidelines range calculated
in the presentence report was too severe in light of the actual offense conduct, and specifically
objected to Sung’s criminal-history classification, which “substantially over-represent[ed] the
seriousness of Mr. Sung’s criminal history and the likelihood that he will commit other crimes.”
(July 12, 2012 Letter 3–5.) Counsel separately articulated several other rationales for a
downward departure, including the fact that Sung, as a non-citizen, would “be further
incarcerated while he awaits deportation proceedings.” (July 12, 2012 Letter 7.) The Court
sentenced Sung to 21 months—the bottom of the Guidelines range—on count one and to a
consecutive mandatory two-year term on count two, for an aggregate term of 45 months.
Sung did not appeal. Rather, in November 2012, he filed a timely pro se motion to
vacate his sentence under 28 U.S.C. § 2255. [D.E. 1.] Sung claimed that his attorney had been
ineffective for failing to seek both a downward departure under the Fast Track program (citing
the “unwarranted sentencing disparities” language of 18 U.S.C. § 3553(a)(6)) and a downward
departure “based on the harsher conditions of” Sung’s confinement. Separately, Sung requested
early deportation under 8 U.S.C. § 1231(a)(4)(B).
After being apprised of his rights under United States v. Miller, 197 F.3d 644, 649–50 (3d
Cir. 1999), Sung elected to withdraw his § 2255 motion in anticipation of filing an “all-

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inclusive” application for relief. The replacement, still-timely § 2255 motion—which is now
before the Court accompanied by a memorandum of law—raises an altogether different set of
claims:
1) “The District Court committed Plain and Procedural Error by Imposing Sentence
Outside of [Sung’s] Applicable Guideline Range,” and
2) “Sentence Disparity: [Sung’s] Sentence was greater than necessary to achieve 18
U.S.C. § 3553(a) purpose[s].”
(See Second § 2255 Motion 5–7 [D.E. 6].)
In ground one, Sung argues that his sentence amounted to an “upward departure from the
plea agreement applicable sentencing guideline range of level 15 or 21–27 months[’]
imprisonment.” (Mem. 2 [D.E. 6-2].) Relying on United States v. Vidal-Reyes, 562 F.3d 43 (1st
Cir. 2009), Sung maintains that this Court “should have taken the mandatory two-year sentence
into consideration by departing downwards with regards the Conspiracy Count which is not a
predicate offense.” (Mem. 3.) Sung also contends that he should have received “fair notice”
before any upward departure was applied.
In ground two, Sung claims that his sentence, as imposed, creates an unwarranted
sentence disparity, suggesting that this Court did not properly weigh the § 3553(a) factors in
determining his sentence. Sung requests “alternatively” what he terms “Smith’s Departure,”
based on the outcome in United States v. Smith, 27 F.3d 649, 655–56 (D.C. Cir. 1994)
(concluding that a downward departure based on incarceration severity pending deportation was
“appropriate” in certain circumstances). (Mem. 6–8.)
In its response, the government argues that Sung’s claims are procedurally defaulted and
that the “alleged sentencing errors are not cognizable and are frivolous.” (Resp. 4–5 [D.E. 12].)
II.

Standard
Under 28 U.S.C. § 2255, a federal prisoner may:
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claim[] the right to be released upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States, or that the court was
without jurisdiction to impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to collateral attack, [and]
may move the court which imposed the sentence to vacate, set aside or correct the
sentence.
28 U.S.C. § 2255(a). “In considering a motion to vacate a defendant’s sentence, the court must
accept the truth of the movant’s factual allegations unless they are clearly frivolous on the basis
of the existing record.” United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005) (internal
quotation marks & citation omitted). The Court may dismiss the § 2255 motion without holding
an evidentiary hearing if the motion and the files and records of the case conclusively show that
the prisoner is entitled to no relief. 28 U.S.C. § 2255(b); Booth, 432 F.3d at 545–46.
III.

Discussion
A) Procedural Bars to Relief
1) Sung’s Claims are Procedurally Defaulted
To the extent that Sung attacks elements of his sentencing, his claims are procedurally

defaulted. “Because collateral review under § 2255 is not a substitute for direct review, a
movant ordinarily may only raise claims in a 2255 motion that he raised on direct review. . . .
Put differently, a movant has procedurally defaulted all claims that he neglected to raise on direct
appeal.” Hodge v. United States, 554 F.3d 372, 379 (3d Cir. 2009) (citing Bousley v. United
States, 523 U.S. 614, 621 (1998)). None of the exceptions to this rule applies here. Sung’s
sentencing claims, which are based entirely on the trial record, could have been raised on direct
appeal. As he did not appeal, those claims are procedurally defaulted, and Sung makes no
showing of cause or prejudice sufficient to overcome his default. See United States v. Mannino,
212 F.3d 835, 839 (3d Cir. 2000) (citing United States v. Essig, 10 F.3d 968, 977, 979 (3d Cir.
1993)).
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2) Sung’s Non-constitutional Claims Do Not Allege a “Complete Miscarriage of
Justice”
Further, Sung’s arguments pertaining to his sentence are based on statutory interpretation
and the exercise of this Court’s discretion. Although the § 2255 remedy is not, by the plain text
of the statute, limited to constitutional violations, see 28 U.S.C. § 2255(a), errors that might
justify reversal on direct appeal do not always suffice to win relief on collateral attack. United
States v. Eakman, 378 F.3d 294, 298 (3d Cir. 2004). Rather, “[s]ection 2255 permits relief for an
error of law or fact only where the error constitutes a fundamental defect which inherently results
in a complete miscarriage of justice.” Id. (internal quotation marks and citations omitted). In the
sentencing context, a movant must show that the trial court “received misinformation of a
constitutional magnitude and . . . that the district judge relied at least in part on that
misinformation.” Id. (internal quotation marks and citations omitted). Sung has failed to
demonstrate that the errors he now alleges rise to this demanding standard.
In short, the Court need not reach the merits given Sung’s ineligibility for relief under the
foregoing analyses. The Court has nevertheless examined the claims, and finds they fail on the
merits as well.
B) Sung’s Claims are Meritless
Ground one of Sung’s § 2255 motion is based on two fundamental misunderstandings.
The first relates to how Sung’s Guidelines range was calculated. Sung was convicted of two
counts, both connected to the same underlying conduct. The second count, charging aggravated
identity theft, is not subject to a separate Guidelines calculation; the Guideline applicable to a
conviction for aggravated identity theft is always two years and the sentence is always imposed
consecutively. See U.S.S.G. § 2B1.6. The offense level of 15 that Sung repeatedly refers to is

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the range associated with his conviction on count one of the information. As specified in the
presentence report, the sentencing exposure to 21 to 27 months of imprisonment was calculated
before considering the aggravated identity theft conviction. (See PSR ¶¶ 53, 94.) In imposing
the additional 24 months, the Court was not departing upward from the Guidelines range, but
was instead imposing a sentence of 24 months on count two and running that sentence
consecutively to the 21 months imposed on count one, for a total of 45 months. Sung was
entitled to neither notice nor additional consideration because the Court was neither departing up
nor down from the Guidelines range applicable to the offenses of conviction.
Second, the holding of Vidal-Reyes does not apply to Sung’s conviction and sentence. In
Vidal-Reyes, the First Circuit decided the effect of the “non-minimization” language of 18
U.S.C. § 1028A(b)(3), which specifies that:
in determining any term of imprisonment to be imposed for the felony during
which the means of identification was transferred, possessed, or used, a court
shall not in any way reduce the term to be imposed for such crime so as to
compensate for, or otherwise take into account, any separate term of
imprisonment imposed or to be imposed for a violation of this section . . . .
The facts were as follows. Vidal was originally charged with several counts “derived
from the events that took place on or about July 2002 when Vidal first submitted a U.S. passport
application under his assumed name and social security number.” Vidal-Reyes, 562 F.3d at 46.
One of these charges was aggravated identity theft under 18 U.S.C. § 1028A; but as Vidal
pointed out in a motion to dismiss the charge, “the aggravated identity theft statute . . . was not
enacted until 2004,” and thus could not apply to his 2002-era conduct. Id. “Recognizing its
error, the government then superseded the original indictment[,] . . . chang[ing] the factual basis
for the aggravated identity theft charge . . . to offense conduct that took place in 2006.” Id.
Vidal eventually pleaded guilty. Requesting a below-Guidelines sentence for his 2002era convictions, he argued that a Guidelines sentence “would be ‘excessive’ when combined with
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the consecutive mandatory two-year sentence to be imposed on” the aggravated identity theft
count. Id. at 46–47. But the government argued—and the sentencing judge would eventually
agree and “adopt[] the government’s recommendation”—that § 1028A(b)(3) prevented the court
from taking into account the two-year mandatory minimum when sentencing on the other
charges. See id. at 47–48.
On appeal, the First Circuit acknowledged that “the language of the statute, at
§ 1028A(b)(3), clearly prohibits a sentencing court from taking into consideration
§ 1028A(a)(1)’s mandatory two-year term for aggravated identity theft to reduce the sentence
that it would otherwise impose when sentencing a defendant for predicate offenses underlying
the aggravated identity theft conviction.” Id. at 50. But the court disagreed with the
government’s reading of that language, which would serve to “curb[] the sentencing court’s
discretion” when “sentencing a defendant for other non-predicate counts of conviction charged
in the same indictment.” Id. at 50; see also id. at 51–52 (discussing the government’s argument
in favor of the congressional intent behind the provision). In vacating and remanding for a new
sentence, the court held as follows:
a district court, in sentencing a defendant on a 18 U.S.C. § 1028A aggravated
identity theft conviction, is not precluded from taking § 1028A’s mandatory
sentence into account in sentencing a defendant on other counts of conviction
charged in the same indictment that are not predicate felonies underlying the
§ 1028A conviction. We find that this interpretation is the only one consistent
with the text of the statute as written, and thus, the only one to which a criminal
defendant ought fairly be submitted.
Id. at 56.

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Here, Sung’s conspiracy conviction plainly is a predicate felony, because it was during
the conspiracy that “the means of identification was transferred, possessed, or used.”2 The
information recites as follows relating to the conspiracy count:
5. From in or around June 2007 through on or about September 15, 2010, in
Bergen County, in the District of New Jersey and elsewhere, defendant HYUNYOP SUNG knowingly and intentionally conspired and agreed with S.H.P. and
others to commit offenses against the United States . . . .
7. It was part of the conspiracy that defendant HYUN-YOP SUNG purchased and
obtained from Co-Conspirator S.H.P. a “586” social security card in the name of
an individual with the initials S.L., an actual person . . . .
8. It was further part of the conspiracy that defendant HYUN-YOP SUNG used
the S.L. Identity to obtain a genuine but fraudulently issued driver’s license.
It then recites the following with regard to the identity-theft count:
2. From in or around June 2007 through on or about September 15, 2010, in
Bergen County, in the District of New Jersey and elsewhere, defendant HYUNYOP SUNG knowingly transferred, possessed, and used, without lawful
authority, the means of identification of another person, namely, S.L., during and
in relation to violations of federal law, namely, unlawfully producing an
identification document . . . .
Clearly, then, the overarching conspiracy served as the predicate for the charge of aggravated
identity theft. Other courts have found conspiracy charges to be proper predicate felonies under
the statute. See, e.g., United States v. Lumiguid, 499 F. App’x 689, 692 (9th Cir. 2012)
(nonprecedential per curiam); United States v. Occident, 243 F. App’x 777, 779 (4th Cir. 2007)

Sung may be relying on 18 U.S.C. § 1028A(c), which enumerates a list of “felonies” for the
purpose of determining when a § 1028A offense may properly be charged. Conspiracy under 18
U.S.C. § 371 is not listed in subsection (c). However, § 1028A(a)(1) nowhere specifies that the
enumerated felony must be specifically charged in the indictment or information. Cf. United
States v. Mobley, 618 F.3d 539, 549 (6th Cir. 2010) (reading broadly the “in relation to” statutory
language). Here, Sung pleaded guilty to a conspiracy that involved several violations of 18
U.S.C. §§ 1028 and 1029, which are themselves enumerated in 18 U.S.C. § 1028A(c)(4). Thus,
it is plain that the aggravated identity theft was committed “in relation to” the conspiracy as well
as “during” the conspiracy.
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(nonprecedential per curiam); see also United States v. Smith, No. 12–5033, 536 F. App’x 370,
370–71 (4th Cir. 2013) (nonprecedential per curiam).
In ground two of Sung’s motion, he claims that his sentence was “greater than necessary”
under 18 U.S.C. § 3553(a). Specifically, he argues that 1) his future deportation and 2) the fact
that he is serving his sentence at a private prison require the Court to “assign[] more weight to
those factors.” (Mot. 6.) He also argues that the Court “may have assigned more weight to
section 3553(a)(2)(A) than the rest of the other sentencing factors.” (Mem. 7.) But the
balancing of the § 3553(a) factors is within this Court’s discretion. United States v. Hernandez,
633 F.3d 370, 375 (5th Cir. 2011) (“[A]lthough courts must consider all the § 3553(a) factors, it
is not possible, let alone required, that they give incommensurable factors . . . equal weight.”)
(footnotes omitted); United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009). This claim is
without merit.
Finally, at the top of page 2 of his memorandum of law, Sung adds to the first paragraph
of the Jurisdiction section this incomplete sentence: “And where the Petitioner’s Counsel did not
provide ‘Effective Assistance’ of Counsel during Petitioner’s sentencing.” The two grounds set
forth in the § 2255 motion do not challenge counsel’s performance, nor does the memorandum
further elaborate on this oblique reference. Liberally construing his pro se filing, see Higgins v.
Beyer, 293 F.3d 683, 688 (3d Cir. 2002), the Court will assume that Sung may be attempting to
invoke his “ground one” and “ground two” allegations from his original § 2255 motion, which
otherwise appear to be abandoned. Sung was notified that that any new motion he filed would
have to include all of his claims (order under United States v. Miller, 197 F.3d 644, 649–50 (3d
Cir. 1999) [D.E. 2]). For this Court now to interpret a fleeting mention in his sentencing
Memorandum as a reassertion of his original claims would “stretch the obligation of lenience to

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its breaking point.” Kohler v. Pennsylvania, 438 F. App’x 120, 124 (3d Cir. 2011)
(nonprecedential per curiam). In any event, the record reveals that counsel did seek to lower
Sung’s sentence based on, among other things, the fact that he would be incarcerated pending
deportation proceedings, while arguing that a Guidelines sentence would be unfair. (See, e.g.,
Sentencing Mem. 5–7.) Because counsel appears to have advocated for essentially the same
relief that Sung now seeks, the claim, assuming it is being made, is frivolous, lacks support, and
in no way meets the exacting standards for demonstrating ineffective assistance.3
IV.

Conclusion
For the foregoing reasons, Sung’s motion is denied. Because jurists of reason would not

debate this outcome, no certificate of appealability will be granted. See Miller-El v. Cockrell,
537 U.S. 322, 336 (2003); see also 28 U.S.C. § 2253(c)(2). An appropriate order will be filed.

January 27, 2014

/s/ Katharine S. Hayden
Katharine S. Hayden, U.S.D.J.

Sung also abandoned his 8 U.S.C. § 1231(a)(4)(B) “claim.” That statute merely allows for the
Attorney General to remove an alien under certain circumstances. Because “the statute vests the
Attorney General, not the district court, with the authority to curtail a prison sentence for the
purpose of deportation,” a court “cannot sua sponte issue a deportation order without a request
from the United States Attorney.” United States v. Marin-Castaneda, 134 F.3d 551, 556 (3d Cir.
1998). In fact, Sung “does not even have standing to enforce this statute.” Id. (citing Thye v.
United States, 109 F.3d 127, 129 (2d Cir. 1997)). Finally, United States v. Smith is inapposite
because it dealt with a court’s belief that it could not depart down to reach the aggravating
circumstances of pre-removal incarceration. See Smith, 27 F.3d at 650, 655–56.
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