United States v. Yooho Weon , 722 F.3d 583 ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4164
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
YOOHO WEON, a/k/a Peter,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Benson Everett Legg, Senior District
Judge. (1:10-cr-00780-BEL-1)
Argued: May 17, 2013 Decided: July 17, 2013
Before KEENAN and FLOYD, Circuit Judges, and Henry E. HUDSON,
United States District Judge for the Eastern District of
Virginia, sitting by designation.
Affirmed by published opinion. Judge Keenan wrote the opinion,
in which Judge Floyd and Judge Hudson joined.
ARGUED: Paula Xinis, MURPHY, FALCON & MURPHY, Baltimore,
Maryland, for Appellant. Sujit Raman, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF:
Kenneth W. Ravenell, Milin Chun, MURPHY, FALCON & MURPHY,
Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United
States Attorney, Baltimore, Maryland, for Appellee.
BARBARA MILANO KEENAN, Circuit Judge:
Defendant Yooho Weon pleaded guilty to five counts of tax
evasion, in violation of 26 U.S.C. § 7201, pursuant to a plea
agreement reached with the government. The district court
sentenced Weon to a prison term of 30 months, a sentence below
Weon’s advisory Sentencing Guidelines (the guidelines) range of
33 to 41 months’ imprisonment.
On appeal, Weon argues that the sentence imposed by the
district court was both procedurally and substantively
unreasonable. Weon contends that the actual tax revenue loss
caused by his failure to pay corporate income taxes was
significantly less than the amount stated in the parties’ plea
agreement, and that the court erred in refusing to consider this
alleged discrepancy at his sentencing. Upon our review, we
conclude that the district court did not err in holding that
Weon was bound by the tax revenue loss figure to which he
stipulated in the plea agreement, and that the court did not
commit procedural or substantive error in sentencing Weon.
Accordingly, we affirm the district court’s judgment.
I.
Weon owned and operated Parkway Pawn Shop, Inc. (Parkway),
located in Bladensburg, Maryland, and an internet-based business
known as Earth 1 Computer, Inc. (Earth 1). Weon operated these
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companies as a single business enterprise, maintaining their
books and records as one entity.
The government filed a criminal information charging Weon
with five counts of willfully evading corporate income taxes,
alleging that Weon failed to file a corporate income tax return
for Parkway and Earth 1 for the calendar years 2004 through
2008. Weon waived indictment and entered into a written plea
agreement in which he admitted all the charges and agreed to
plead guilty to them.
In the plea agreement, the parties stipulated that “for
purposes of this plea agreement and sentencing, the total tax
loss is approximately $2,400,000.” (Emphasis added.) The
$2,400,000 figure represented a compromise amount determined by
the parties. The government initially maintained that the tax
revenue loss was more than $2,500,000, which would have resulted
in a greater offense level under the guidelines. Weon, however,
claimed that the tax revenue loss was much lower than
$2,400,000. Significantly, during this plea bargaining process,
Weon received advice from a certified public accountant (CPA) he
had hired to evaluate the amount of the loss before entering
into the plea agreement.
In addition to the government’s agreement to forego any
argument that the tax revenue loss exceeded $2,500,000, Weon
obtained other significant benefits by entering into the plea
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agreement. The government stipulated in the agreement that
Weon’s base offense level under the guidelines was 22, and
agreed not to oppose a two-level reduction in the offense level
based on Weon’s acceptance of responsibility. The government
also agreed to file a motion under U.S.S.G. § 3E1.1(b) for an
additional one-level reduction in his offense level, lowering
the adjusted offense level to 19, based on certain conditions
including that Weon would not attempt to withdraw his guilty
plea.
By pleading guilty, Weon avoided being charged with the
additional felony offenses of transporting stolen property and
of participating in a money laundering conspiracy, offenses for
which several other owners and employees of Baltimore-area pawn
shops had been prosecuted. As a result of his plea, Weon also
avoided being charged by Maryland state authorities with the
felony offense of engaging in the trafficking of stolen goods.
The district court held a hearing pursuant to Rule 11 of
the Federal Rules of Criminal Procedure (the Rule 11 hearing),
during which the court determined that Weon’s guilty plea was
entered knowingly and voluntarily. The parties represented at
the Rule 11 hearing that the amount of tax revenue loss “we have
agreed to regarding this plea agreement and sentencing is
approximately $2.4 million,” but noted that the figure was
subject to change for restitution purposes only depending on the
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result of an anticipated civil agreement between Weon and the
Internal Revenue Service (IRS). In response to the district
court’s questions, Weon further confirmed under oath that he had
reviewed the factual stipulations in the plea agreement, that he
did not wish to change any aspect of those stipulated facts,
that those facts were true and correct, and that the government
could prove those facts had Weon’s case proceeded to trial.
After the Rule 11 hearing, Weon obtained a postponement of
his sentencing hearing for a period of more than six months.
Two weeks before the rescheduled hearing, Weon informed
government counsel that Weon only recently had learned that the
amount of tax revenue loss was actually around $40,000, rather
than the $2,400,000 figure to which the parties earlier had
stipulated. Among other reasons offered to explain this
discrepancy, Weon contended that Parkway and Earth 1 were
separate businesses, rather than the single entity described in
the parties’ plea agreement.
Weon advanced this argument in his sentencing memorandum
filed with the district court. The court issued an order
further delaying the sentencing hearing, and directed Weon to
produce the report of Jeffrey Barsky, Weon’s new forensic
accountant. The court also ordered that Weon make Barsky
available for a deposition before the sentencing hearing.
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Two weeks later, the district court held that Weon was
bound by his stipulation in the plea agreement concerning the
tax revenue loss, for purposes of both his advisory guidelines
range and the court’s consideration of the sentencing factors in
18 U.S.C. § 3553(a). In reaching this conclusion, the district
court observed that Weon had represented under oath during the
Rule 11 hearing that the statements in the plea agreement were
correct. Accordingly, the court prohibited Weon’s counsel from
arguing during the sentencing hearing that the tax revenue loss
was materially less than $2,400,000, including for purposes of
the § 3553(a) factors. Nevertheless, the court stated that it
would permit Weon to move to withdraw his plea at a later date
if he could demonstrate that the discrepancy in the revenue loss
calculations resulted from a “mistaken assumption of facts.”
In response, Weon filed a motion seeking to withdraw his
guilty plea in which he argued, among other things, that the
plea was not knowing and voluntary because he entered it under
the mistaken belief that the tax revenue loss figure of
$2,400,000 was accurate. Weon further argued that the recently
completed “full defense forensic accounting analysis” conducted
by Barsky established that the tax revenue loss was “in the
$40,000 range.”
The government opposed Weon’s motion to withdraw, arguing
that Weon had entered into the plea agreement knowingly and
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voluntarily. The government also disputed Barsky’s analysis on
its merits, offering an affidavit from Bradley Whites, a former
IRS special agent with over 20 years’ experience.
The district court held a hearing on Weon’s motion during
which the court heard argument and considered the evidence of
record, including Whites’ affidavit and Barsky’s report and
deposition testimony. At the conclusion of the hearing, the
court denied Weon’s motion, stating that Weon had entered his
guilty plea voluntarily.
In denying the motion, the district court further observed
that Weon had stipulated in the plea agreement to a tax revenue
loss of $2,400,000 after receiving advice from a CPA, despite
Weon’s disagreement concerning that amount. The court also
stated that it found Barsky’s report and testimony concerning
the purported lower loss figure “highly unpersuasive and riddled
with holes.” Finally, the court concluded that Weon’s request
to withdraw from the plea agreement was “tactical [and] not
based upon an honest mistake,” and that allowing him to withdraw
would result in prejudice to the government.
Following its ruling on the motion to withdraw, the
district court conducted Weon’s sentencing hearing. At that
time, the government declined to file a motion for an additional
one-level decrease in offense level because Weon had sought to
withdraw his guilty plea.
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The district court otherwise adopted the presentence
report, which incorporated the stipulations in the plea
agreement that the base offense level was 22, and that Weon was
entitled to a two-level reduction for acceptance of
responsibility. The court found that Weon’s guidelines range
was 33 to 41 months’ imprisonment based on an adjusted offense
level of 20 and a criminal history category of I. Nevertheless,
the court stated that it would base its sentence on an adjusted
offense level of 19 as contemplated in the plea agreement,
resulting in a guidelines range of 30 to 37 months’
imprisonment.
The district court considered the sentencing factors set
forth in § 3553(a) but, based on its earlier ruling, refused to
consider any evidence or argument that the tax revenue loss was
materially lower than $2,400,000. After receiving testimony
from Weon’s other witnesses and hearing argument from the
parties, the court imposed concurrent sentences of 30 months’
imprisonment on each of the five counts, a sentence below the
guidelines range found by the court and at the bottom of the
range applicable to an adjusted offense level of 19. The court
declined to impose a more lenient sentence in view of Weon’s
previous conviction for selling about $46,000 worth of
counterfeit computer accessories to an undercover FBI agent, as
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well as the seriousness of Weon’s present offenses. Weon timely
filed a notice of appeal.
II.
Initially, we address the government’s argument that Weon
waived his right to appeal under the terms of the appellate
waiver provision in the plea agreement. That provision stated,
in relevant part, that the parties agreed to waive all rights to
appeal the sentence imposed by the district court, but that Weon
“reserve[d] the right to appeal from any sentence above the
advisory guidelines range resulting from an adjusted base
offense level of 19.” (Emphasis added.)
A defendant’s waiver of his right to appeal a conviction or
sentence is valid and enforceable if such waiver was knowingly
and intelligently made. United States v. Blick, 408 F.3d 162,
168-71 (4th Cir. 2005). In determining whether an appellate
waiver provision bars consideration of the issues raised in a
particular appeal, we interpret the terms of the parties’ plea
agreement in accordance with traditional principles of contract
law. United States v. Davis, 714 F.3d 809, 814 (4th Cir. 2013);
United States v. Harvey, 791 F.2d 294, 300 (4th Cir. 1986).
Because appellate waiver provisions usually are drafted by the
government, and because such provisions implicate a defendant’s
constitutional rights, we hold the government to a “greater
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degree of responsibility” for any ambiguities than the
defendant, or even than the drafter of a provision of a
commercial contract. Davis, 714 F.3d at 814-15 (citation
omitted); Harvey, 791 F.2d at 300-01. Accordingly, we will
enforce an appellate waiver provision against a defendant only
if that provision is clearly and unambiguously applicable to the
issues raised by the defendant on appeal.
In the present case, we conclude that the language of the
appellate waiver provision cannot be termed unambiguous when
considered in the context of the district court’s finding that
the adjusted base offense level was 20 rather than 19. Based on
the waiver provision’s explicit reservation of Weon’s right to
appeal from any sentence above the “advisory guidelines range
resulting from an adjusted base offense level of 19,” Weon has a
colorable argument that the provision is ambiguous as applied to
him. Given the heightened standard that we apply to the
interpretation of an appellate waiver provision entered into by
a criminal defendant, we will not construe the waiver provision
as barring Weon’s present appeal.
Turning to the merits of this case, we next consider Weon’s
challenges regarding the procedural and substantive
reasonableness of his sentence. We first address Weon’s
argument that the district court’s imposition of a 30-month
sentence was procedurally unreasonable. Weon asserts that the
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district court was required in its consideration of the §
3553(a) factors to consider Weon’s proffered evidence that the
tax revenue loss amount of $2,400,000 was incorrect. We
disagree with Weon’s argument.
We review a district court’s imposition of a sentence,
“whether inside, just outside, or significantly outside the
Guidelines range[,] under a deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41 (2007). In
considering a challenge to the procedural reasonableness of a
sentence, we must assess, among other things, whether the
district court considered the 18 U.S.C. § 3553(a) factors and
analyzed the arguments presented by the parties. Id. at 46-47.
In interpreting the terms of a plea agreement in conformity
with principles of general contract law, we apply the plain
meaning of the agreement’s terms with the goal of providing each
party the benefit of its bargain. United States v. Jordan, 509
F.3d 191, 195 (4th Cir. 2007). When a term in a plea agreement
is unambiguous, neither party will be permitted “unilaterally to
renege or seek modification simply because of uninduced mistake
or change of mind.” Harvey, 791 F.2d at 300.
The decisions of our sister circuits are in accord with
this view that, absent a successful withdrawal from a plea
agreement or other very exceptional circumstances, a defendant
remains bound by the factual stipulations in his plea agreement
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once the plea has been accepted by the district court. See,
e.g., United States v. Teeter, 257 F.3d 14, 28 (1st Cir. 2001)
(a court’s acceptance of a factual stipulation in a plea
agreement “firm[ly]” binds the parties to that stipulation,
because “the defendant knows what she has done, and has little
cause for complaint if the district court takes her at her
word”); United States v. Granik, 386 F.3d 404, 411-13 (2d Cir.
2004) (discussed below); United States v. Williams, 510 F.3d
416, 422 (3d Cir. 2007) (“When a defendant stipulates to a point
in a plea agreement, he ‘is not in a position to make . . .
arguments [to the contrary].’”) (alteration in original)
(citation omitted); United States v. Porretta, 116 F.3d 296, 301
(7th Cir. 1997) (“Absent any compelling basis for disregarding
the [plea agreement] admissions, they must stand.”).
We observe that the Second Circuit addressed a similar
issue in United States v. Granik, in which the defendant sought
to avoid at sentencing the consequences of his plea stipulation
of a certain loss amount resulting from his criminal activity.
386 F.3d at 410-14. In rejecting the defendant’s argument that
the loss amount was less than the amount to which he had
stipulated earlier, the court stated that “a stipulation as to
the amount of loss in a plea agreement that is knowing and
voluntary will generally govern the resolution of that issue,”
and will bind the parties from contesting the substance of that
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stipulation. Id. at 411-12. The Second Circuit further
explained that factual stipulations in plea agreements “are
bargaining chips in the hands of defendants,” and that “[i]f
defendants are not held to their factual stipulations . . . the
government has no reason to make concessions in exchange for
them.” Id. at 412-13.
Here, we have little difficulty in concluding that Weon’s
attempts to argue that the tax revenue loss was materially less
than $2,400,000 constituted a “unilateral reneging” on the basis
of “uninduced mistake or change of mind,” Harvey, 791 F.2d at
300, and that the district court was well within its
discretionary authority to hold Weon to the loss amount
stipulated in the plea agreement. Weon’s plea agreement
expressly provided that “for purposes of this plea agreement and
sentencing, the total tax loss is approximately $2,400,000.”
(Emphasis added.) Moreover, we observe that Weon stated under
oath during the Rule 11 hearing that the factual stipulations in
the agreement were true and correct. Thus, those factual
stipulations remained binding in the absence of any demonstrated
exceptional circumstances. See Fields v. Att’y Gen. of Md., 956
F.2d 1290, 1299 (4th Cir. 1992) (defendants are generally bound
to representations made under oath during a Rule 11 plea
colloquy).
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Contrary to Weon’s argument, the plea agreement stipulation
setting the tax revenue loss at around $2,400,000 applies under
its plain terms for purposes of “sentencing.” The stipulation
thus encompasses the amount of tax revenue loss both for the
district court’s calculation of Weon’s guidelines range and for
the court’s consideration of the sentencing factors set forth in
§ 3553(a). Accordingly, to the extent that the court refused to
consider Weon’s argument about the amount of tax revenue loss
for purposes of § 3553(a), that result clearly was contemplated
by the parties and formed part of their bargain as reflected in
the plea agreement.
Weon argues, nevertheless, that the plea agreement allowed
him to contest the tax revenue loss amount for purposes of §
3553(a). In making this contention, Weon relies on provisions
of the plea agreement that as a general matter: (1) permit him
“to seek a reduction in sentence under any Section 3553(a)
factor”; and (2) reserve to the parties the right to bring to
the district court’s attention during sentencing “all relevant
information concerning [Weon’s] background, character, and
conduct.” We are not persuaded by this argument.
The provisions of the plea agreement on which Weon relies
are broad and general, and do not relate directly to the
stipulated tax revenue loss. In contrast, the plea agreement
explicitly provides that the tax revenue loss is approximately
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$2,400,000 for purposes of both the plea agreement and Weon’s
sentencing. To the extent that there is any conflict between
the very general provisions recited above and the explicit
stipulation regarding the tax revenue loss, we apply under basic
contract law principles the more specific provision fixing the
amount of the tax revenue loss. See PCS Nitrogen Inc. v. Ashley
II of Charleston LLC, 714 F.3d 161, 174 (4th Cir. 2013)
(citation omitted) (the specific provisions of a contract
control over potentially conflicting general provisions).
We further observe that Weon does not challenge on appeal
the district court’s denial of his motion to withdraw from the
plea agreement or the court’s finding that Weon knowingly and
voluntarily entered into the agreement, including the factual
stipulations contained therein. We note that Weon would have
faced a formidable challenge had he raised such an argument
before us, because he contested the amount of tax revenue loss
with the assistance of counsel and a CPA during the plea
bargaining process before ultimately agreeing to the $2,400,000
figure. Moreover, we observe that the district court’s
repudiation of Barsky’s tax loss analysis as “highly
unpersuasive and riddled with holes” would be entitled to
significant deference on appeal. See United States v. Chase,
466 F.3d 310, 314 (4th Cir. 2006) (district court’s findings of
fact reviewed for clear error).
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Accordingly, we hold that the district court did not abuse
its discretion in prohibiting Weon from arguing that the tax
revenue loss was materially lower than $2,400,000, because Weon
knowingly and voluntarily stipulated to that amount in his plea
agreement. Thus, we reject Weon’s argument that the district
court committed procedural error in its sentencing
determination.
Finally, we address Weon’s argument that the 30-month
sentence imposed by the district court, which was below Weon’s
guidelines range, was substantively unreasonable. In analyzing
a sentence for substantive reasonableness, we consider the
sentence under a deferential abuse-of-discretion standard,
whereby we “must defer to the trial court and can reverse a
sentence only if it is unreasonable, even if the sentence would
not have been the choice of the appellate court.” United States
v. Evans, 526 F.3d 155, 160 (4th Cir. 2008) (emphasis omitted).
We apply a presumption of reasonableness to a sentence within or
below a properly calculated guidelines range. United States v.
Susi, 674 F.3d 278, 289 (4th Cir. 2012).
As the district court observed during the sentencing
hearing, Weon previously had been convicted of selling to an
undercover FBI agent counterfeit computer accessories having a
retail value of around $46,700. The district court also
discussed the seriousness of Weon’s present tax offenses, noting
16
that this was not a case in which there were unreported “small
shaving[s],” but rather that “millions and millions of dollars
of income were not reported to the [IRS].” After reviewing the
record and the parties’ arguments, we conclude that Weon’s
below-guidelines sentence of 30 months’ imprisonment is not
substantively unreasonable.
III.
For these reasons, we affirm the district court’s judgment.
AFFIRMED
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