Filed: Dec. 03, 2008
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 12-3-2008 USA v. Liu Precedential or Non-Precedential: Non-Precedential Docket No. 07-3401 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "USA v. Liu" (2008). 2008 Decisions. Paper 165. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/165 This decision is brought to you for free and open access by the Opinions of the United States Court
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 12-3-2008 USA v. Liu Precedential or Non-Precedential: Non-Precedential Docket No. 07-3401 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "USA v. Liu" (2008). 2008 Decisions. Paper 165. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/165 This decision is brought to you for free and open access by the Opinions of the United States Court ..
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Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
12-3-2008
USA v. Liu
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3401
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"USA v. Liu" (2008). 2008 Decisions. Paper 165.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/165
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-3401
UNITED STATES OF AMERICA
v.
CHANG SHAN LIU,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal No. 05-cr-00355-2)
District Judge: Honorable Jerome B. Simandle
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 2, 2008
Before: AMBRO, WEIS, and VAN ANTWERPEN, Circuit Judges.
(Filed December 3, 2008)
OPINION OF THE COURT
VAN ANTWERPEN, Circuit Judge.
Appellant Chang Shan Liu appeals the District Court’s July 31, 2007 Judgment of
Sentence. After pleading guilty to a charge of conspiring to violate the Racketeer
Influenced and Corrupt Organizations Act (“RICO”), Liu was sentenced to 135 months’
imprisonment and three years of supervised release. Because Liu executed a valid
appellate waiver, we decline to exercise our jurisdiction to hear this appeal.
I.
Because we write solely for the parties, we will address only those facts necessary
to our opinion.
On May 10, 2005, a grand jury returned a 58-count indictment against 16
individuals, including Appellant Chang Shan Liu and his wife. The indictment arose out
of an extensive conspiracy involving the illegal importation of counterfeit cigarettes and
Viagra pills from China into the United States. According to the facts adduced at the plea
hearing and contained in the Pre-Sentence Report, Liu and his wife were key players in
the conspiracy and personally made arrangements with undercover law enforcement
agents to import, store, transport, and deliver counterfeit cigarettes and Viagra pills to
other members of the enterprise.
On December 12, 2006, Liu and the Government entered into a Plea Agreement in
which Liu agreed to plead guilty to the first count of the Indictment, which charged him
with RICO conspiracy. In return, the Government agreed to dismiss the remaining
charges against Liu and all of the charges against Liu’s wife. The agreement also
included a mutual waiver of appeal, under which Liu waived the right to appeal the
District Court’s sentence if it fell “within or below the Guidelines range that results from
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the agreed total Guidelines offense level of 33.” The District Court ultimately imposed a
sentence of 135 months’ imprisonment, which is at the low end of the Guidelines range of
135 to 168 months.1
II.
The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. This
Court has appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). See
United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir. 2007) (“[T]his court retains subject
matter jurisdiction over [an] appeal by a defendant who [has] signed an appellate
waiver.”). We review the validity of appellate waivers de novo. See United States v.
Khattak,
273 F.3d 557, 560 (3d Cir. 2001).
In addressing the validity of an appellate waiver, this Court considers whether the
waiver was knowing and voluntary, whether one of the specific exceptions set forth in the
plea agreement prevents enforcement of the waiver, and whether enforcement of the
waiver would work a “miscarriage of justice.” United States v. Jackson, 523 F.3d 234,
243-44 (3d Cir. 2008); see also
Khattak, 273 F.3d at 563 (“Waivers of appeal, if entered
into knowingly and voluntarily, are valid, unless they work a miscarriage of justice.”).
Appellant bears the burden of establishing that the appellate waiver should not be
1
This sentencing range corresponds to an Offense Level of 33 and a Criminal
History Category of I.
.
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enforced. See Khattak, 273 F.3d at 562-63. It is undisputed that the current action does
not fall within one of the specific appellate waiver exceptions set forth in the plea
agreement.
Liu does not dispute that he knowingly and voluntarily waived his right to appeal
during the guilty plea proceeding. He argues, however, that the waiver was invalidated
by the Government’s failure to object to a statement made by the District Court to Liu at
the end of the sentencing hearing:
You are hereby advised that you have the right to appeal from
this sentence[.] . . . If you’re interested in appealing, speak to
your attorney who will file a Notice of Appeal on your behalf if
you ask him to do so. . . . If your plea contains a waiver of
appeal, your attorney can advise you.
Sentencing Hr’g at 73, United States v. Liu, No. 05-cr-00355-2 (D.N.J. July 31, 2007). Neither
the District Court’s statement at sentencing nor the Government’s failure to object to that
statement invalidate the knowing and voluntary nature of Liu’s plea waiver. The
language of the plea agreement is “clear as to its purpose and effect” to bind Liu and the
Government to its provisions. See Gwinnett, 483 F.3d at 203-04. During the plea
hearing, the District Court, after confirming that Liu’s attorney had explained the plea
agreement to him, independently conducted a thorough review of the terms of the plea
agreement, discussing the appellate waiver at some length. Liu informed the District
Court that he fully understood the appellate waiver and its implications. That the District
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Court later made reference to a general right to appeal does not change the fact that Liu
knowingly and voluntarily waived that right, especially when the court explicitly told Liu
that his attorney would advise him if an appellate waiver applied.
Having established that Liu’s waiver of appeal was knowing and voluntary, we
must now determine whether this case presents one of the “unusual circumstance[s]”
where enforcement of the waiver would work a “miscarriage of justice.” See Khattak,
273 F.3d at 562;
Gwinnett, 483 F.3d at 203. As Liu’s sole argument on appeal–that the
District Court violated his due process rights during sentencing because it discussed his
wife’s misconduct–fails to establish any sentencing error at all, it is clear that
enforcement of the appellate waiver would not work a miscarriage of justice.
During sentencing, Liu argued that a downward departure was warranted because
he was responsible for the care of his disabled wife. The District Court evaluated this
argument under U.S.S.G. § 5H1.6, which states that “family ties and responsibilities are
not ordinarily relevant in determining whether a departure may be warranted.” The
argument that the District Court, in evaluating whether Liu’s circumstances warranted
such a departure, violated due process when it considered Liu’s wife’s involvement in the
counterfeiting scheme is entirely without merit. See U.S.S.G. § 5H1.6, p.s., comment.
(n.1) ( “In determining whether a departure is warranted under this policy statement, the
court shall consider . . . [t]he involvement in the offense, if any, of members of the
defendant’s family.”).
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Because Liu knowingly and voluntarily executed a valid appellate waiver and fails
to establish that its enforcement would work a miscarriage of justice, this Court declines
to exercise its jurisdiction to hear his appeal. We affirm the District Court’s judgment in
all respects.
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