In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1387
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DONG JIN CHEN,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 CR 801—Ronald A. Guzmán, Judge.
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ARGUED DECEMBER 4, 2006—DECIDED AUGUST 14, 2007
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Before EASTERBROOK, Chief Judge, and CUDAHY and
SYKES, Circuit Judges.
SYKES, Circuit Judge. Dong Jin Chen pleaded guilty
to eleven counts of extortion and one count of tax fraud
based on an extensive money lending scheme he ran in
Chicago’s Chinatown community. Chen operated numerous
gambling parlors and provided loans to patrons and other
individuals at rates as high as 5% to 10% interest per
week. When the borrowers could not meet these inflated
terms, Chen would then show up with various associates
and Toi Ching gang members to forcibly demand pay-
ment. For these activities Chen was sentenced to 220
months, just above the bottom (210 months) of an advisory
guidelines sentence range that included both a bodily
2 No. 06-1387
injury and a leader/organizer enhancement. The district
court also denied Chen an acceptance-of-responsibility
adjustment for falsely denying or frivolously contesting
his threats or use of violence in the course of his acts of
extortion. Chen appeals these sentencing enhancements
and the denied adjustment. We affirm.
I. Background
Chen has been a U.S. citizen for ten years and has lived
in the United States since 1985, but he speaks a rare
Chinese dialect from his native region. As a result, the
district court supplied an interpreter for Chen at all plea
and sentencing hearings, and Chen repeatedly assured the
court that he was able to understand the proceedings
with the interpreter’s assistance. After Chen entered his
guilty pleas to the extortion and tax fraud counts, his
counsel filed an objection to certain guidelines enhance-
ments recommended in the presentence report. Specifi-
cally, Chen challenged the bodily injury enhancement
denying he had repeatedly threatened and engaged in the
violent conduct described in the presentence report,
ranging from slaps and scrapes to beatings with metal
pipes and wooden bats. Instead, he asserted he had only
relied on “implicit threats”—his known reputation in the
community for resorting to violence against those who
failed to pay—to intimidate people into paying him back.
Chen also argued that the extortion scheme was not broad
enough to warrant a four-point organizer/leader enhance-
ment, which requires either a minimum of five partici-
pants or “otherwise extensive” criminal activity.
Based on Chen’s objections to the presentence report, the
government went forward with a two-day sentencing
hearing during which it presented numerous witnesses
who testified to both observing and being on the receiving
end of Chen’s violent tactics. Three individuals testified to
No. 06-1387 3
being slapped, punched, and scraped by Chen or associates
acting under his direction. An FBI agent also presented
evidence regarding a beating Chen and four other individu-
als inflicted on Ging Hong using a metal pipe, a handgun,
and a baseball bat; Hong suffered injuries including a
head laceration that required nine stitches. Based on this
largely uncontroverted evidence, the district court con-
cluded that Chen had caused bodily injury and been the
leader of criminal activity both extensive in nature and
involving at least five participants. The court also denied
Chen any reduction for acceptance of responsibility due
to his denial of the violent conduct. The court then im-
posed a sentence of 220 months’ imprisonment.
II. Discussion
A. Acceptance of Responsibility
A district court’s denial of an acceptance-of-responsibility
reduction on grounds that the defendant denied relevant
conduct is a factual finding subject to review for clear
error. United States v. Gilbertson, 435 F.3d 790, 798 (7th
Cir. 2006). Here, the district court concluded that Chen
“failed to truthfully admit the conduct he engaged in, the
beatings, the direct threats, the use of a dangerous
weapon.” See U.S.S.G. § 3E1.1 cmt. n.1(a) (acceptance-of-
responsibility reduction may be denied to “a defendant who
falsely denies, or frivolously contests, relevant conduct
that the court determines to be true”); see also United
States v. Gordon, No. 06-2080, 2007 WL 2077564, at *4
(7th Cir. July 23, 2007) (“A defendant who falsely denies,
or frivolously contests, relevant conduct in the face of
convincing evidence to the contrary does not merit a
reduction in sentence for acceptance of responsibility.”).
Chen does not, and cannot, dispute that he contested
the facts recited in the presentence report about his use
4 No. 06-1387
of violence in the extortion scheme. The sentencing
memorandum filed by his counsel explicitly denies, no less
than three times, that Chen ever resorted to violence or
threats of violence. A lengthy evidentiary hearing was
held as a result of this challenge to the presentence re-
port. Chen now argues that these denials were made
solely by his counsel and cannot fairly be attributed to
him based on his inability to understand English and
his limited education.
In support of this argument, Chen cites United States v.
Purchess, in which this court stated, “[W]here the defen-
dant had a fifth grade education and a limited command
of the English language, and where the record contains
no link between the attorney’s statements and the defen-
dant, we are reluctant to attribute the attorney’s state-
ments to the defendant.” 107 F.3d 1261, 1268 (7th Cir.
1997). However, the facts of Purchess are easily distin-
guishable from this case. First, Chen had an interpreter
present at every stage of the proceedings and repeatedly
assured the district court that he understood what was
occurring. Chen also testified that he had eleven years
of education. Further, during his guilty plea hearing, Chen
(through his translator) made the same protest as his
counsel—that he had not threatened violence or physically
harmed anyone in the course of collecting loans.1 Thus,
unlike in Purchess, the record here demonstrates that
Chen was able to understand and communicate with his
attorney about the proceedings. Accordingly, we conclude
1
After brief consultation with his attorney, Chen changed his
position and admitted that he had used threats of violence, as
required to plead guilty to extortion. This exchange demonstrates
that Chen was able to understand and respond to the court’s
direct questioning, and was able to communicate with his coun-
sel about his acceptance of responsibility.
No. 06-1387 5
that the district court properly attributed the denials of
violent conduct to Chen.2
We also have no trouble concluding that the district
court did not err in finding that Chen’s denials of this
violent conduct were false. At the sentencing hearing, the
government presented numerous witnesses who testified
both to witnessing and being victims of Chen’s violence. On
appeal Chen concedes his participation in the Ging
Hong beating, one of the incidents cited in support of the
bodily injury enhancement. Based on Chen’s false denial of
this and other violence for which there was ample evi-
dence, the district court did not err in denying the
acceptance-of-responsibility reduction.
B. Organizer/Leader Enhancement
Chen next challenges the application of the four-point
organizer/leader enhancement, a factual finding that
we review for clear error. See United States v. Blaylock,
413 F.3d 616, 618 (7th Cir. 2005). A four-point enhance-
ment may be applied “[i]f the defendant was an organizer
or leader of a criminal activity that involved five or more
participants or was otherwise extensive.” U.S.S.G. § 3B1.1.
The district court concluded both that the extortion
scheme involved five or more participants and that it
2
United States v. Purchess suggested that the district court’s
“best course” when a defendant remains silent while his attor-
ney mounts a factual challenge to relevant conduct is to directly
question the defendant to ensure that he understands and
agrees with the challenge. 107 F.3d 1261, 1269 (7th Cir. 1997).
We endorse this as a sound practice. Here, however, the record
establishes—even without a direct colloquy by the court—that
Chen understood the proceedings, and the denial of violent
conduct was appropriately attributed to him for purposes of
denying the acceptance of responsibility adjustment.
6 No. 06-1387
was otherwise extensive “in that it involved large
amounts of money, it involved a large number of victims,
it involved a significant number of participants, it involved
record keeping and daily activity, all calculated to make
a profit by means of extortion.” Chen does not deny that
he was an organizer or leader, but he challenges the
district court’s findings regarding the extent of the organi-
zation.
The commentary to the sentencing guidelines states that
a “ ‘participant’ is a person who is criminally responsible
for the commission of the offense, but need not have been
convicted.” U.S.S.G. § 3B1.1 cmt. n.1. Chen admits that
codefendants Qi Ming Weng and Yu Hua Chen were
involved in the extortion scheme but argues that other
named individuals and unidentified gang members whom
witnesses testified assisted Chen were not “criminally
responsible.” The government presented unrebutted
testimony to the contrary, including evidence that Zhou
Mei, Peter Lai, and numerous members of the Toi Ching
gang participated with Chen in “debt collection” incidents
in which people were threatened or actually physically
harmed. Peter Lai also admitted to the FBI that he, Zhou
Mei, and two other individuals participated in the beat-
ing of Ging Hong. Based on this uncontested evidence,
the district court did not err in concluding that Chen’s
criminal activity involved five or more participants.
Although we need not reach the question given our
conclusion that the activity involved five or more partici-
pants, the court also did not err in concluding that the
criminal activity was “otherwise extensive.” The govern-
ment presented a ledger indicating that approximately 150
people owed Chen a total of about $380,000. Chen regu-
larly relied upon the assistance of both the named
coconspirators and various unidentified Toi Ching gang
members, indicating that more than five individuals
were involved in the criminal activity. See U.S.S.G. § 3B1.1
No. 06-1387 7
cmt. n.3 (“In assessing whether an organization is ‘other-
wise extensive,’ all persons involved during the course of
the entire offense are to be considered. Thus, a fraud that
involved only three participants but used the unknowing
services of many outsiders could be considered extensive.”
(emphasis added)); see also United States v. Tai, 41 F.3d
1170, 1174 (7th Cir. 1994) (“otherwise extensive” requires
involvement of more than five individuals). Accordingly,
there is ample evidence in the record to support the
district court’s findings regarding the extensive nature
of the extortion scheme.
C. Bodily Injury Enhancement
Chen’s final challenge is to the two-point bodily injury
enhancement applied under U.S.S.G. § 2E2.1(b)(2)(A).
“ ‘Bodily injury’ means any significant injury; e.g., an
injury that is painful and obvious, or is of a type for which
medical attention ordinarily would be sought.” U.S.S.G.
§ 1B1.1 cmt. n.1(B). He contends that the slaps and
scrapes certain witnesses testified to were not sufficiently
serious to constitute bodily injury as defined by the
sentencing guidelines. The district court made no specific
findings of fact regarding which injuries or incidents
it considered in support of the enhancement; instead,
the court more generally concluded that “it is absolutely
crystal clear that the defendant engaged not only in
implicit threatening behavior but in explicit threats and
in actual violence personally, through others, and with
and without dangerous weapons.” Admittedly, this level
of generality makes it more difficult to review whether
the injuries that led to the application of the enhance-
ment qualify as “bodily injury” under the guidelines.
However, as discussed above, Chen conceded both in his
brief and at oral argument before this court that the
beating of Ging Hong was sufficiently severe to require
8 No. 06-1387
nine stitches to Hong’s head. That incident was encom-
passed in one of the superceding indictment counts for
which the bodily injury enhancement was proposed, and it
was testified to at the sentencing hearing. Accordingly,
based on the Ging Hong incident alone, the district court
did not err in applying the bodily injury enhancement,
making the severity of the slaps and scrapes to other
individuals irrelevant.
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-14-07