United States v. Phung

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 22, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-6352
(D.C. No. 5:09-CV-00772-R)
CAN D. PHUNG, (W.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before KELLY, BALDOCK, and BRISCOE, Circuit Judges.
_________________________________
Can Phung, proceeding pro se, filed a notice of appeal from the district court’s
order denying his motion for suspension of debt collection. We affirm.
I. Background
In 2009, Phung was convicted of dispensing controlled substances without
legitimate medical purpose, health care fraud, and altering records in a federal
investigation. He was sentenced to 109 months in prison. His convictions were
affirmed on direct appeal. United States v. Phung, 384 F. App’x 787, 794 (10th Cir.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
2010). He filed a 28 U.S.C. § 2255 motion for postconviction relief, which was
denied in 2011. In August 2016, Phung was granted a sentence reduction, a ruling he
appealed to this court.
Following Phung’s convictions, the government filed the underlying civil
complaint pursuant to the False Claims Act, 31 U.S.C. § 3729, alleging that Phung
presented or caused to be presented false or fraudulent claims for Medicaid
reimbursement. On August 17, 2011, the district court granted the government’s
motion for summary judgment and entered judgment against Phung in the amount of
$125,800.48. Phung did not appeal the judgment, but filed an unsuccessful motion
for relief from the judgment. He later filed a pro se affidavit asserting grievances
against several participants in the case, including the judge. In April 2012, the
district judge recused. After Phung was released from prison, the government
instituted collection procedures to collect the judgment. Phung filed a motion to
suspend collection efforts on the grounds that his appeal of his sentence reduction
was then still pending, as was a review of the recusal decision by a judicial oversight
authority. The district court denied the motion to suspend collection efforts on
November 7, 2016.
II. Discussion
Although Phung’s notice of appeal purports to appeal the order denying his
motion to suspend the government’s collection of the monetary judgment, his
appellate brief contains arguments challenging only the underlying summary
judgment. Phung attached various documents to his notice of appeal, including the
2
district court’s summary-judgment order. To the extent Phung attempts to appeal the
summary judgment entered on August 17, 2011, his December 5, 2016, notice of
appeal was untimely. See Fed. R. App. P. 4(A)(1)(B) (requiring notice of appeal to
be filed within 60 days after entry of the order appealed from if one of the parties is
the United States). Therefore, this court lacks subject-matter jurisdiction to review
the summary-judgment order. See Bowles v. Russell, 551 U.S. 205, 214 (2007)
(explaining that a timely notice of appeal in a civil case is a jurisdictional
requirement).
The notice of appeal was timely as to the November 7, 2016, order denying the
motion to suspend debt collection. But even construing his pro se brief liberally, see
Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005), Phung
has provided no argument to support his appeal. Therefore, he has waived his claims.
See Kabba v. Mukasey, 530 F.3d 1239, 1248 (10th Cir. 2008) (holding litigant
waived issue on appeal by failing to present any argument challenging the decision
under review); see also United States v. Sorensen, 801 F.3d 1217, 1244 (10th Cir.
2015) cert. denied, 136 S.Ct. 1163 (2016) (stating litigant waived argument by failing
to “cite any pertinent authority to support his assertion”).
Even if we were to evaluate the merits of Phung’s motion to suspend debt
collection, we would affirm.1 We fail to see how the government’s collection efforts
1
The parties argue that our standard of review is for an abuse of discretion.
We have found no Tenth Circuit case, and the parties cite none, identifying the
appropriate standard in this context. We need not announce a standard because we
would affirm even under de novo review.
3
would be affected by the pendency (or even the outcome) of Phung’s appeal of the
order granting him a lower sentence.2 Similarly irrelevant is any pending
administrative review of the judge’s decision to recuse.
III. Conclusion
We affirm the district court’s order denying the motion to suspend collection
of the judgment.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
2
A panel of this court affirmed the sentence reduction. United States v.
Phung, Nos. 16-6252 & 16-6267, 2017 WL 1149086 (10th Cir. Mar. 28, 2017)
(unpublished).
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