United States v. Bae , 288 F. App'x 113 ( 2008 )


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  •                              UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 08-4047
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    SUNHYE BAE, a/k/a Sue Y. Bae, a/k/a Mrs. Kim, a/k/a Sunyong Bae,
    Defendant - Appellant.
    No. 08-4048
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    JI WON KIM, a/k/a Raymond Kim, a/k/a Ji W. Kim,
    Defendant - Appellant.
    Appeals from the United States District Court for the Eastern
    District of Virginia, at Alexandria. Gerald Bruce Lee, District
    Judge. (1:06-cr-00512-GBL-1; 1:06-cr-00512-GBL-2)
    Submitted:   June 18, 2008                 Decided:   August 5, 2008
    Before NIEMEYER and DUNCAN, Circuit Judges, and WILKINS, Senior
    Circuit Judge.
    Dismissed by unpublished per curiam opinion.
    Marvin D. Miller, Heather Golias, LAW OFFICES OF MARVIN D. MILLER,
    Alexandria, Virginia; Joseph J. McCarthy, DELANEY, MCCARTHY &
    COLTON, P.C., Alexandria Virginia, for Appellants.           Chuck
    Rosenberg, United States Attorney, G. Derek Andreson, Michael E.
    Rich, Assistant United States Attorneys, Shana Wallace, Special
    Assistant United States Attorney, Alexandria, Virginia, for
    Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    - 2 -
    PER CURIAM:
    These appeals arise out of Ji Won Kim’s conviction after
    a guilty plea and 120-month sentence for bank fraud, in violation
    of 
    18 U.S.C. § 1344
     (2000), and Sunhye Bae’s conviction after a
    guilty plea and 100-month sentence for interstate transportation of
    stolen property, in violation of 
    18 U.S.C. § 2314
     (2000).            Counsel
    for Appellants filed a consolidated brief in which they essentially
    challenge the reasonableness of their sentences and ask this court
    to remand for resentencing.           The Government asserts that the
    appeals   are    barred   by   the    appellate     waivers   contained    in
    Appellants’ respective plea agreements.              For the reasons that
    follow, we dismiss the appeals.
    Kim’s sole challenge on appeal is that the Government
    breached his plea agreement when it introduced his polygraph
    examination     results   to   establish     that   he   breached   his   plea
    agreement, thereby convincing the district court to deprive him of
    credit for acceptance of responsibility and increase his Guidelines
    range for obstruction of justice.            Because there was nothing in
    Kim’s plea agreement that prevented the Government from presenting
    his polygraph examination failure at sentencing, the Government did
    not breach his plea agreement. Accordingly, Kim’s appeal is barred
    by the appellate waiver contained in his plea agreement.                  See
    United States v. Blick, 
    408 F.3d 162
    , 168 (4th Cir. 2005).
    - 3 -
    Bae also asserts only that her departure sentence is
    unreasonable because, according to Bae, the district court abused
    its discretion when it departed upward due to Bae’s inability to
    secure the return of money she secreted in South Korea.           We agree
    with the Government that Bae’s appeal is barred by her appellate
    waiver.   See 
    id.
        Although Bae summarily asserts that her attorney
    was ineffective because he failed to preserve her right to appeal
    from an upward departure, ineffective assistance of counsel claims
    are not generally cognizable on direct appeal unless ineffective
    assistance “conclusively appears” on the record.               See United
    States v. James, 
    337 F.3d 387
    , 391 (4th Cir. 2003).           We find that
    it does not “conclusively appear” on the record that counsel was
    ineffective for failing to preserve Bae’s right to appeal from an
    upward departure at sentencing.
    Accordingly, we dismiss the appeals.           We dispense with
    oral   argument     because   the   facts   and   legal   contentions   are
    adequately presented in the materials before the court and argument
    would not aid the decisional process.
    DISMISSED
    - 4 -
    

Document Info

Docket Number: 08-4047, 08-4048

Citation Numbers: 288 F. App'x 113

Judges: Niemeyer, Duncan, Wilkins

Filed Date: 8/5/2008

Precedential Status: Non-Precedential

Modified Date: 10/19/2024