US v. Yooho Weon

Filing

PUBLISHED AUTHORED OPINION filed. Motion disposition in opinion denying Motion to dismiss appeal [998916044-2] Originating case number: 1:10-cr-00780-BEL-1. [999152222]. [12-4164]

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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.

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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

unreasonable.
caused

by

his

was

both

procedurally

and

substantively

Weon contends that the actual tax revenue loss
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).
2

Weon operated these

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companies

as

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a

single

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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.
claimed

that

$2,400,000.

the

tax

revenue

loss

was

Weon, however,

much

lower

than

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

Weon’s

offense

base

government
level

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stipulated
under

the

in

the

agreement

guidelines

was

that

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

approximately

$2.4

this

plea

million,”

but

agreement
noted

and

that

sentencing
the

figure

is
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

stipulated.
discrepancy,

figure

to

other

reasons

contended

that

Among
Weon

which

the

parties

offered
Parkway

to
and

earlier
explain

Earth

1

had
this
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

accountant.

report
The

of

court

Jeffrey
also

Barsky,

ordered

Weon’s

that

Weon

new

make

available for a deposition before the sentencing hearing.

5

forensic
Barsky

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Two

weeks

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later,

the

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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

$2,400,000 was accurate.

the

tax

revenue

loss

figure

of

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
6

plea

agreement

knowingly

and

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voluntarily.

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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’

deposition testimony.

affidavit

and

Barsky’s

report

and

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.”
to

withdraw

Finally, the court concluded that Weon’s request
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,

district court conducted Weon’s sentencing hearing.

the

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.
7

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The

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district

report,

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otherwise

incorporated

which

court

the

adopted

the

stipulations

presentence

in

the

plea

agreement that the base offense level was 22, and that Weon was
entitled

to

a

responsibility.

two-level

reduction

for

acceptance

of

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

resulting

in

of

19

as

contemplated

a

guidelines

range

in
of

the

plea

30

to

agreement,
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
from

lower

Weon’s

than

other

$2,400,000.

witnesses

and

After

receiving

hearing

argument

testimony
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]
advisory

the

right

guidelines

to

appeal

range

offense level of 19.”

from

resulting

any
from

sentence
an

above

adjusted

the
base

(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
9

the

government

to

a

“greater

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degree

of

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responsibility”

defendant,

or

commercial

contract.

omitted);

even

Harvey,

than

791

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for

the

ambiguities

drafter

Davis,
F.2d

any

714

at

of

F.3d

a

provision

at

300-01.

than

814-15

the
of

a

(citation

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

reasonableness
argument

that

of
the

his

the

procedural

sentence.

district

court’s

We

first

imposition

sentence was procedurally unreasonable.
10

and

substantive

address
of

a

Weon’s
30-month

Weon asserts that the

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district

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court

was

required

Pg: 11 of 17

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

“whether

a

inside,

district
just

court’s

outside,

under

a

imposition

or

of

significantly

deferential

a

sentence,

outside

Guidelines

range[,]

standard.”

the

abuse-of-discretion

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.
F.3d 191, 195 (4th Cir. 2007).

United States v. Jordan, 509

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

agreement

acceptance

“firm[ly]”

of

a

binds

factual

the

stipulation

parties

to

that

in

a

plea

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.
the

loss

amount

was

In rejecting the defendant’s argument that
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.
explained

Id.

that

at

Pg: 13 of 17

411-12.

factual

The

stipulations

Second
in

Circuit

plea

further

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

discretionary
stipulated

the

district

authority

to

in

the

plea

court

hold

was

Weon

agreement.

to

well

within

the

Weon’s

loss

plea

its

amount

agreement

expressly provided that “for purposes of this plea agreement and
sentencing,

the

total

(Emphasis added.)

tax

loss

is

approximately

$2,400,000.”

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

colloquy).

13

oath

during

a

Rule

11

plea

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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
conduct.”

concerning

[Weon’s]

background,

character,

and

We are not persuaded by this argument.

The provisions of the plea agreement on which Weon relies
are

broad

and

general,

and

stipulated tax revenue loss.

do

not

relate

directly

to

the

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.
the

very

To the extent that there is any conflict between

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.
II

of

Charleston

(citation

LLC,

omitted)

714

(the

See PCS Nitrogen Inc. v. Ashley

F.3d

specific

161,

174

provisions

(4th
of

Cir.
a

2013)

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.
faced

a

formidable

challenge

We note that Weon would have

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

repudiation

of

Barsky’s

unpersuasive

and

riddled

observe
tax
with

significant deference on appeal.

that
loss
holes”

the

district

court’s

analysis

as

would

entitled

be

“highly
to

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.
court

Thus, we reject Weon’s argument that the district

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.
a

sentence

sentence

for

under

substantive
a

reasonableness,

deferential

we

In analyzing
consider

abuse-of-discretion

the

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
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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].”
record

and

the

parties’

arguments,

below-guidelines

sentence

of

30

we

months’

After reviewing the

conclude

that

imprisonment

Weon’s
is

not

substantively unreasonable.

III.
For these reasons, we affirm the district court’s judgment.

AFFIRMED

17