USA v. Harold Spear, III

Filing

FILED OPINION (ALEX KOZINSKI, RAYMOND C. FISHER and PAUL J. WATFORD) AFFIRMED. Judge: RCF Authoring, FILED AND ENTERED JUDGMENT. [9120564] [12-10124, 12-10125]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

No. 12-10124
D.C. No.
1:08-cr-00128DAE-1

v.
HAROLD C. SPEAR, III, M.D.,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

No. 12-10125
D.C. No.
1:07-cr-00299DAE-1

v.
HAROLD C. SPEAR, III, M.D.,
Defendant-Appellant.

OPINION

Appeal from the United States District Court
for the District of Hawaii
David A. Ezra, District Judge, Presiding
Argued and Submitted
October 8, 2013—Honolulu, Hawaii
Filed June 5, 2014

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UNITED STATES V. SPEAR
Before: Alex Kozinski, Chief Judge, and Raymond C.
Fisher and Paul J. Watford, Circuit Judges.
Opinion by Judge Fisher

SUMMARY*

Criminal Law
In an appeal from a conviction by guilty plea to
distributing controlled substances outside the usual course of
professional medical practice and not for a legitimate medical
purpose, the panel held that the defendant’s knowing and
voluntary waiver of the right to appeal his sentence did not
extend to this appeal of his conviction.
The panel affirmed the conviction for reasons stated in a
concurrently filed memorandum disposition.

COUNSEL
Michael Robert Levine (argued), Law Office of Michael R.
Levine, Portland, Oregon; Sheryl Gordon McCloud, Law
Offices of Sheryl Gordon McCloud, Seattle, Washington, for
Defendant-Appellant.

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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Cynthia W. Lie (argued), Michael David Nammar and
William L. Shipley, Office of the U.S. Attorney, Honolulu,
Hawaii, for Plaintiff-Appellee.

OPINION
FISHER, Circuit Judge:
Defendant Harold C. Spear, III, M.D., appeals his
conviction by guilty plea to five counts of distributing
controlled substances outside the usual course of professional
medical practice and not for a legitimate medical purpose.
The government argues this appeal should be dismissed based
on a provision of the plea agreement that limits Spear’s
appellate rights. We reject this argument and reach the merits
of this appeal because Spear’s knowing and voluntary waiver
of his right to appeal his sentence did not extend to this
appeal of his conviction by guilty plea.1
BACKGROUND
Spear was a licensed physician and the owner and
operator of two family practices in Kauai, Hawaii. In June
2007, Spear was indicted in the District of Hawaii for 20
counts of distributing oxycodone and methadone outside the
usual course of professional medical practice and not for a
legitimate medical purpose, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(C). A two-count criminal information
charging Spear with dispensing hydrocodone outside the
usual and customary scope of professional practice and not
1

We address the merits of Spear’s appeal in a concurrently filed
memorandum disposition.

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for a legitimate medical purpose was later filed against him
in the Northern District of Alabama, then transferred to the
District of Hawaii.
In July 2009, Spear and the government entered a written
plea agreement, in which he agreed to plead guilty to four
counts of the indictment and one count of the information,
and in which the government promised to dismiss the
remaining counts. The agreement also contained this appeal
waiver provision:
The defendant is aware that he has the
right to appeal the sentence imposed under
Title 18, United States Code, Section 3742(a).
Defendant knowingly waives the right to
appeal, except as indicated in subparagraph
“b” below, any sentence within the maximum
provided in the statute(s) of conviction or the
manner in which that sentence was
determined on any of the grounds set forth in
Section 3742, or on any ground whatever, in
exchange for the concessions made by the
prosecution in this plea agreement.
a. The defendant also waives his right to
challenge his sentence or the manner in which
it was determined in any collateral attack,
including, but not limited to, a motion brought
under Title 28, United States Code, Section
2255, except that defendant may make such a
challenge (1) as indicated in subparagraph “b”
below, or (2) based on a claim of ineffective
assistance of counsel.

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b. If the Court imposes a sentence greater
than specified in the guideline range
determined by the Court to be applicable to
the defendant, the defendant retains the right
to appeal the portion of his sentence greater
than specified in that guideline range and the
manner in which that portion was determined
under Section 3742 and to challenge that
portion of his sentence in a collateral attack.
A magistrate judge reviewed this waiver with Spear
during his change of plea hearing, explaining that Spear
would be “giving up [his] right to appeal or challenge [his]
sentence unless it’s outside the guideline range or if it has to
do with ineffective assistance of counsel.” A few weeks later,
the district court accepted Spear’s guilty plea. Spear twice
moved to withdraw his guilty plea, but he withdrew his first
such motion and the district court denied his second. Spear
was sentenced to 151 months’ imprisonment, the low end of
the Sentencing Guidelines range, and timely filed this appeal.
On appeal, he argues that his guilty plea lacked a sufficient
factual basis, that the government breached the plea
agreement and that the district court abused its discretion by
denying his motion to withdraw his guilty plea.
STANDARD OF REVIEW
We review de novo whether a criminal defendant has
waived his right to appeal. See United States v. Tercero,
734 F.3d 979, 981 (9th Cir. 2013).

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DISCUSSION

A defendant’s waiver of appellate rights is enforceable
when “(1) the language of the waiver encompasses his right
to appeal on the grounds raised, and (2) the waiver is
knowingly and voluntarily made.” United States v. Rahman,
642 F.3d 1257, 1259 (9th Cir. 2011) (quoting United States
v. Jeronimo, 398 F.3d 1149, 1153 (9th Cir. 2005), abrogated
on other grounds by United States v. Castillo, 496 F.3d 947,
957 (9th Cir. 2007) (en banc)) (internal quotation marks
omitted). Spear does not challenge the knowing and
voluntary nature of his waiver, but argues that the waiver
pertained only to an appeal from his sentence and therefore
does not encompass this appeal from his conviction. We
agree.
The language of the waiver provision supports Spear’s
position. The first sentence refers to Spear’s “right to appeal
the sentence imposed,” signaling that the entire waiver
concerns sentencing.
The second sentence states that Spear waived “the right
to appeal, except as indicated in subparagraph ‘b’ below, any
sentence within the maximum provided in the statute(s) of
conviction or the manner in which that sentence was
determined on any of the grounds set forth in [18 U.S.C.]
Section 3742, or on any ground whatever.” Although the
language arguably could be read as waiving “the right to
appeal . . . on any ground whatever,” that is not a sensible
reading. Spear did not waive his right to appeal, full stop, but
only his “right to appeal . . . any sentence within the
maximum provided in the statute(s) of conviction or the
manner in which that sentence was determined.” The two
following prepositional phrases, “on any of the grounds set

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forth in Section 3742” and “on any ground whatever,”
describe the bases for potential appeals of his sentence or of
the manner in which that sentence was determined. That is,
“any sentence” and “the manner in which that sentence was
determined” describe which appeals Spear agreed to waive,
and “on any of the grounds set forth in Section 3742” and “on
any ground whatever” clarify that there were no unlisted
exceptions for particular reasons supporting such appeals.
We are not convinced by the government’s construction
of the second sentence as a waiver of Spear’s “right to
appeal . . . on any of the grounds set forth in Section 3742, or
on any ground whatever.” This construction, which
encompasses all appeals not explicitly excepted, would allow
“on any ground whatever” to override all of the provision’s
specific sentencing language and make most of the
provision’s first paragraph mere surplusage. In particular,
this construction completely eliminates the terms “any
sentence” and “the manner in which that sentence was
determined,” but the grammatical structure of the sentence as
it was actually drafted does not allow this excision. If the two
prepositional phrases were meant to modify Spear’s “right to
appeal” generally, then including “any sentence” and “the
manner in which that sentence was determined” as specific
descriptions of which appeals were waived would serve no
purpose. See United States v. Hamdi, 432 F.3d 115, 123–24
(2d Cir. 2005) (applying to a plea agreement the principle of
contract law preferring an interpretation that does not leave
a portion of the contract superfluous); United States v. Brye,
146 F.3d 1207, 1211 (10th Cir. 1998) (same). We therefore
conclude that the language of the waiver limits its scope to
sentencing issues. Indeed, the Department of Justice uses
very similar language as an example of a “broad sentencing
appeal waiver [that] requires the defendant to waive any and

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all sentencing issues on appeal.” U.S. Dep’t of Justice, U.S.
Attorneys’ Manual, tit. 9, Criminal Resource Manual § 626.2
Even if we preferred the government’s construction, it is
at least ambiguous whether the waiver covers appeals of
Spear’s conviction or only of his sentence. We have
“steadfastly appl[ied] the rule that any lack of clarity in a plea
agreement should be construed against the government as
drafter.” United States v. Cope, 527 F.3d 944, 951 (9th Cir.
2008) (quoting United States v. Transfiguracion, 442 F.3d
1222, 1228 (9th Cir. 2006)) (internal quotation marks
omitted). Requiring the government to bear responsibility for
the lack of clarity is particularly appropriate in this context,
as there are numerous examples of appellate waivers that
clearly encompass both the defendant’s right to appeal his
sentence and his right to appeal his conviction. See, e.g.,
United States v. Arias-Espinosa, 704 F.3d 616, 617 (9th Cir.
2012) (“The agreement included an explicit waiver of his
right to appeal his conviction and any sentence imposed
within the range permitted by the agreement.”); United States
v. Watson, 582 F.3d 974, 986 (9th Cir. 2009) (quoting the
2

The specific text of the example waiver is: “The defendant is aware
that 18 U.S.C. § 3742 affords a defendant the right to appeal the sentence
imposed. Acknowledging all this, the defendant knowingly waives the
right to appeal any sentence within the maximum provided in the statute(s)
of conviction (or the manner in which that sentence was determined) on
the grounds set forth in 18 U.S.C. § 3742 or on any ground whatever, in
exchange for the concessions made by the United States in this plea
agreement. The defendant also waives his right to challenge his sentence
or the manner in which it was determined in any collateral attack,
including but not limited to a motion brought under 28 U.S.C. § 2255.”
U.S. Dep’t of Justice, U.S. Attorneys’ Manual, tit. 9, Criminal Resource
Manual § 626. The manual further explains that “[t]he advantage of a
broad sentencing appeal waiver is that it will bar the appeal of virtually
any Sentencing Guideline issue.” Id.

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plea agreement as requiring the defendant “to give up [his]
right to appeal [his] conviction(s), the judgment, and orders
of the Court” and “to waive any right [he] may have to appeal
any aspect of [his] sentence” (emphasis omitted)). The
government’s failure to draft a clear waiver of Spear’s right
to appeal his conviction also supports limiting the waiver to
his right to appeal his sentence.
The rest of the provision further supports this limited
interpretation. As noted above, the first sentence of the
provision acknowledges Spear’s “right to appeal the sentence
imposed.” Subparagraphs (a) and (b) similarly concern only
sentencing disputes. Subparagraph (a) waives Spear’s “right
to challenge his sentence or the manner in which it was
determined in any collateral attack.” Subparagraph (b)
preserves Spear’s right to “appeal the portion of his sentence
greater than specified in [the] guideline range and the manner
in which that portion was determined under Section 3742 and
to challenge that portion of his sentence in a collateral
attack.” Because both subparagraphs address only Spear’s
rights regarding his sentence or the manner in which that
sentence was imposed, it is a reasonable inference that the
affirmative waiver provision was similarly limited. Cf., e.g.,
United States v. Rivera, 682 F.3d 1223, 1227 (9th Cir. 2012)
(noting that it was reasonable to read exceptions to an
appellate waiver as mirroring the coverage of the affirmative
waiver itself).3
3

The government argues that United States v. Anglin, 215 F.3d 1064
(9th Cir. 2000), suggests that this waiver is “a full and complete waiver of
all appeal rights.” The language of the Anglin waiver was identical to the
waiver in this case and Anglin did describe it as a “well-developed” and
“carefully negotiated waiver of appellate rights.” Id. at 1067. But these
observations were made in an appeal raising completely different issues.
Anglin did not challenge her conviction and argued “that the district judge

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We reject the government’s contention that, because the
waiver language tracks and cites 18 U.S.C. § 3742, the term
“sentence” should be interpreted to mean “judgment,” which
encompasses the conviction by implication. First, to the
extent the government argues that § 3742 is the sole source of
a defendant’s right to appeal a criminal conviction, it is
incorrect. A criminal defendant’s statutory right to appeal his
conviction arises from 28 U.S.C. § 1291, as acknowledged by
the government in its jurisdictional statement. See United
States v. De Bright, 730 F.2d 1255, 1259 (9th Cir. 1984) (en
banc). In contrast, § 3742 “is the only source of any right to
appeal the sentence,” United States v. Joyce, 357 F.3d 921,
923 (9th Cir. 2004) (emphasis added), and allows review of
a sentence when it was imposed in violation of law,4 was
based on an incorrect guidelines application, was above the
guidelines range or was plainly unreasonable if no sentencing
guideline applied. All these conditions use “sentence” to
mean the terms of punishment, not a more general criminal
judgment.

misapplied the United States Sentencing Guidelines.” Id. at 1065. The
question presented was not whether the scope of the waiver extended
beyond sentencing disputes to the defendant’s conviction by guilty plea,
but whether a waiver had been effectuated at all due to conflicting
language elsewhere in the plea agreement. See id. at 1066. Here, in
contrast, there is no question of the waiver’s effectiveness, only its scope.
4

Sentences imposed in violation of law under 18 U.S.C. § 3742(a)(1)
include sentences that exceed the statutory maximum for the crime of
conviction, see United States v. Littlefield, 105 F.3d 527, 528 (9th Cir.
1997) (per curiam), and sentences within the guidelines range that are
nevertheless unreasonable, see United States v. Plouffe, 445 F.3d 1126,
1130 (9th Cir. 2006). The government has cited no cases, and we are
aware of none, that allow a criminal defendant to seek review of his
underlying conviction under 18 U.S.C. § 3742(a)(1).

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Second, for purposes of interpreting a plea agreement, we
look to “what the defendant reasonably understood to be the
terms of the agreement when he pleaded guilty.” United
States v. Lee, 725 F.3d 1159, 1166 (9th Cir. 2013) (per
curiam) (quoting United States v. De la Fuente, 8 F.3d 1333,
1337 (9th Cir. 1993)) (internal quotation marks omitted).
Accordingly, we generally construe terms in plea agreements
by considering their common legal usage. See United States
v. Streitch, 560 F.3d 926, 930 (9th Cir. 2009) (interpreting the
term “prosecute” in a plea agreement as having its “common
usage . . . in connection with the law”); United States v.
Speelman, 431 F.3d 1226, 1230–31 (9th Cir. 2005)
(construing “postconviction proceeding” in a plea agreement
by looking to its “common legal usage”). Although the term
“sentence” is defined both as “the punishment imposed on a
criminal wrongdoer” and as “[t]he judgment that a court
formally pronounces after finding a criminal defendant
guilty,” Black’s Law Dictionary 1485 (9th ed. 2009), in
common legal usage it generally refers to the former. For
example, in Joyce, we concluded that under § 3742(a)(3) the
term “sentence” meant “fines, periods of imprisonment and
supervised release, and mandatory and special conditions of
supervised release.” 357 F.3d at 924.
The government cites Corey v. United States, 375 U.S.
169 (1963), for the proposition that “[t]he sentence is the
judgment,” but Corey is inapposite. Id. at 174 (quoting
Berman v. United States, 302 U.S. 211, 212 (1937)) (internal
quotation marks omitted). In Corey, the Supreme Court
considered when a criminal defendant may appeal a sentence
imposed under 18 U.S.C. § 4208(b), which has since been
repealed. See Sentencing Reform Act of 1984, Pub. L. No.
98-473, tit. II, ch. 2, § 218(a)(5), 98 Stat. 1037, 2027 (1984).
Under § 4208(b), the sentencing judge would first “impose[]

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a sentence of imprisonment ‘deemed to be’ the maximum
prescribed by the law, and then, after the defendant has been
imprisoned for three or six months, . . . fix[] a new sentence
which may be quite different from the one originally
imposed.” Corey, 375 U.S. at 172. The question presented
was when the “conventional requirements of finality for
purposes of appeal” were satisfied: after the first sentencing,
after the second sentencing or, as the Court held, both. See
id. at 172–74. In this context, therefore, the Court was not
equating the sentence with the judgment of conviction, as the
government argues, but with final judgment for purposes of
an appeal. See id. at 173–74; see also Korematsu v. United
States, 319 U.S. 432, 434 (1943); Berman, 302 U.S. at
212–13.5
Finally, we have recognized, at least in passing, that a
defendant’s waiver of the right to appeal his sentence is
distinct from a waiver of the right to appeal his conviction.
See United States v. Littlejohn, 224 F.3d 960, 964 n.2 (9th
Cir. 2000) (“The government concedes in his brief, and we
agree, that while Littlejohn’s plea agreement included a
waiver of his right to appeal his sentence, nowhere did he
give up his right to appeal his conviction.”). The government
has no support for its argument that a defendant’s waiver of
the right to appeal his sentence under 18 U.S.C. § 3742
includes by implication a waiver of the right to appeal his
conviction. We therefore hold that a defendant’s knowing

5

In fact, Corey also used “sentence” according to its common legal
usage by explaining that after a defendant pleads guilty or is convicted by
a factfinder, “[a] judgment of conviction setting forth the sentence is then
entered.” 375 U.S. at 171 (emphasis added). Because the sentence – that
is, the quantum of punishment – is set forth in the judgment, the two terms
are not synonymous.

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and voluntary waiver of his right to appeal his sentence does
not inherently encompass a knowing and voluntary waiver of
his right to appeal his conviction.
CONCLUSION
The government is entitled to receive “what it bargains
for but nothing more.” United States v. Pruitt, 32 F.3d 431,
433 (9th Cir. 1994). Because the scope of Spear’s appellate
waiver concerned only his sentence and the issues raised in
this appeal concern only his conviction, Spear did not waive
his right to bring this appeal. For the reasons stated in the
concurrently filed memorandum disposition, however, we
affirm Spear’s conviction.
AFFIRMED.