United States v. Kim

Criminal Practice

New York Law Journal


Judge Denise Cote

A jury convicted Kim on both counts of a May 19, 2011, superseding indictment charging conspiracy to transport individuals—and in fact transporting an individual—in interstate commerce for prostitution. Denied judgment of acquittal on June 25, Kim was sentenced to concurrent 41-month prison sentences. Conviction, appealed Oct. 26, 2011, was affirmed by the Second Circuit on June 18, 2012. District court denied Kim a four level sentence reduction under U.S. Sentencing Guidelines §5K3.1. None of §5K3.1's four bases for sentence reduction applied to Kim. Not only does §5K3.1 relief apply only on motion by the Government, but Kim was sentenced five months before the "Fast Track Program's" adoption. Neither was Kim charged with illegal reentry, nor did she enter into a plea agreement with the government. However, the court gave Kim the opportunity to recharacterize her §5K3.1 relief request as a motion under 28 USC §2255 to vacate, set aside or correct her sentence. Discussing the Anti-Terrorism and Effective Death Penalty Act (AEDPA) and U.S. Supreme Court Rules 13(1) and 13(3), the court determined that Kim's conviction became final on Aug. 20, 2012, and that she has until Aug. 20, 2013, to timely file a petition for §2255 relief.

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