United States v. Wu ( 2020 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 20, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-1401
(D.C. No. 1:18-CR-00293-RBJ-1)
JOHN VAN WU, (D. Colo.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, MATHESON, and PHILLIPS, Circuit Judges.
_________________________________
This matter is before the court on the government’s motion to enforce the
appeal waiver in John Van Wu’s plea agreement.
Dr. Wu was charged in a 51-count indictment with mail fraud, in violation of
18 U.S.C. § 1341; falsification of records, in violation of 18 U.S.C. § 1519; and
diversion of oxycodone, in violation of 21 U.S.C. § 841(a)(1). The district court
granted his motion for severance, and after a jury found him guilty of multiple mail
fraud and falsification counts, Dr. Wu pleaded guilty to one count of diversion of
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
oxycodone. The district court sentenced him to concurrent 51-month prison terms on
each count and ordered him to pay about $95,000 in restitution.
As part of his plea agreement, Dr. Wu agreed to waive his right to appeal his
conviction and sentence for both the tried and pled offenses unless (1) the court
imposed a sentence above the statutory maximum; (2) the sentence exceeds the
advisory guideline range applicable to a total offense level of 23 (or 21, if the “safety
valve” provision in USSG § 5C1.1 applied); or (3) the government appealed the
sentence imposed. Despite this broad appeal waiver, he filed a notice of appeal.
His docketing statement indicates that he intends to challenge the district court’s
rulings on pre-trial motions, its evidentiary rulings during trial, the sufficiency of the
evidence at trial, and the sentence and restitution order. The government filed a
motion to enforce the appeal waiver under United States v. Hahn, 359 F.3d 1315,
1328 (10th Cir. 2004) (en banc) (per curiam).
In response to the government’s motion, Dr. Wu’s counsel cited Anders v.
California, 386 U.S. 738, 744 (1967), and stated that Dr. Wu has no non-frivolous
argument against enforcement of his appeal waiver. Counsel also requested
permission to withdraw from representing Dr. Wu. See id. We gave Dr. Wu an
opportunity to file a pro se response to the motion to enforce, but he has not done so.
In evaluating a motion to enforce, we consider: “(1) whether the disputed
appeal falls within the scope of the waiver of appellate rights; (2) whether the
defendant knowingly and voluntarily waived his appellate rights; and (3) whether
enforcing the waiver would result in a miscarriage of justice.” Hahn, 359 F.3d at
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1325. Having reviewed the proceedings in accordance with our obligation under
Anders, see 386 U.S. at 744, we conclude that the Hahn factors have been met and
that there is no non-frivolous argument to make against enforcing the appeal waiver.
As to the first Hahn factor, none of the exceptions to the appeal waiver apply,
so Dr. Wu’s appeal of his conviction and sentence fall within the scope of the waiver.
Specifically, the statutory maximum sentence for each offense is twenty years. See
18 U.S.C. §§ 1341 (mail fraud) and 1519 (falsification); 21 U.S.C. § 841(b)(1)(C)
(diversion of oxycodone). The district court determined that the offense level was 23
and that the applicable guidelines range was between 46 and 57 months, and it
sentenced Dr. Wu to a mid-range sentence of 51 months. Dr. Wu’s sentence thus
does not exceed either the statutory maximum or the applicable guidelines range for
an offense level of 23, and the government did not appeal the sentence. As for the
second and third Hahn factors, the written plea agreement and the colloquy at the
change of plea hearing confirm that Dr. Wu knowingly and voluntarily waived his
appellate rights, and there is no basis for concluding that enforcing the waiver would
result in a miscarriage of justice.
Accordingly, we grant the government’s motion to enforce Dr. Wu’s appeal
waiver and dismiss this appeal. We also grant defense counsel’s motion to withdraw.
Entered for the Court
Per Curiam
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