United States v. Kim ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4606
ROBERT CHAEGON KIM,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-97-117-A)
Submitted: December 22, 1998
Decided: January 14, 1999
Before ERVIN, LUTTIG, and MICHAEL, Circuit Judges.
_________________________________________________________________
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
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COUNSEL
James G. Gore, Vienna, Virginia; Mark H. Lynch, Patrick S. Kim,
COVINGTON & BURLING, Washington, D.C., for Appellant. Helen
F. Fahey, United States Attorney, Robert C. Chesnut, Assistant
United States Attorney, Alexandria, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Robert Chaegon Kim pled guilty to an information charging him
with conspiracy to obtain national defense information, see 18
U.S.C.A. § 793 (West 1976 & Supp. 1998), while he was employed
by the Office of Naval Intelligence. He was sentenced to 108 months
imprisonment. In his plea agreement, Kim waived his right to appeal
any sentence within the statutory maximum "on any ground what-
ever." His attorney has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), raising several issues relating to the
sentence but stating that in his view there are no meritorious issues
for appeal. Kim has filed a pro se supplemental brief in which he con-
tests his sentence on additional grounds and asserts that he received
ineffective assistance of counsel. After a thorough review of the
record, we affirm in part and dismiss in part.
A defendant may waive the right to appeal his sentence if the
waiver is knowing and intelligent. See United States v. Broughton-
Jones, 71 F.3d 1143, 1146 (4th Cir. 1995). A waiver is valid and
enforceable if the district court questions the defendant about it during
the Fed. R. Crim. P. colloquy. See United States v. Wessells, 936 F.2d
165, 167-68 (4th Cir. 1991). A waiver does not preclude the defen-
dant from appealing a sentence which is in excess of the statutory
maximum or based on constitutionally impermissible factors. See
United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992). Here, the
district court discussed the waiver provision with Kim at the Rule 11
hearing, explained that he would be able to appeal only an illegal sen-
tence, and further explained what would constitute an illegal sentence.
Kim assured the court that he understood that he was waiving his
right to appeal. We find that the waiver was valid and thus do not
address the claims made in the supplemental brief concerning the cal-
culation of the guideline range, the district court's imposition of sen-
tence at the high end of the range, and the disparity between Kim's
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sentence and the sentences imposed on others convicted of similar
offenses. Because it does not conclusively appear from the record that
Kim's attorneys rendered ineffective assistance of counsel at sentenc-
ing, his claim of ineffective assistance should be raised in a motion
to vacate sentence pursuant to 28 U.S.C. § 2255 (1994), rather than
in his direct appeal. See United States v. Smith , 62 F.3d 641, 651 (4th
Cir. 1995).
In the Anders brief, defense counsel suggests that the district court
considered constitutionally impermissible factors in imposing sen-
tence. After the court decided that no factors were present which
would permit a departure below the guideline range, the court added
that, even if a departure were possible, it would not be appropriate.
The court then commented on the fact that Kim considered using his
church as a place to pass classified documents to a South Korean mili-
tary attache, and deemed Kim's attitude "horrible hypocrisy." Counsel
argues that the remark indicates that the court chose not to depart
because Kim offended the court's own "personal sense of religiosity."
See United States v. Bakker, 925 F.2d 728, 740 (4th Cir. 1991)
(judge's religion may not be factor in sentencing). We find no consti-
tutional violation in the court's comment, which was made after the
court had already decided not to depart.
Counsel also maintains that the court improperly considered Kim's
status as a naturalized citizen when it imposed sentence at the high
end of the guideline range. The court discussed the oath of allegiance
that is taken by naturalized citizens and the oath Kim took to abide
by the secrecy requirements of his job with the Office of Naval Intel-
ligence. The court then stated that it felt it "must take into consider-
ation [in addition to Kim's personal qualities and prior good works]
the message that is sent out to others who might be in a similar situa-
tion and think it's not so bad to help another country even if I breach
an oath to the United States." Our review of the record discloses that
the court's concern was the seriousness of Kim's violation of his
oaths rather than his national origin or immigration status. Conse-
quently, we find no error.
Last, counsel argues that the district court mistakenly believed that
a departure on the basis of Kim's charitable works was foreclosed by
Koon v. United States, 518 U.S. 81 (1996), and United States v.
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Rybicki, 96 F.3d 754 (4th Cir. 1996). This issue is not properly raised
on appeal because all non-constitutional claims relating to the sen-
tence were waived.
In accordance with Anders, we have examined the entire record in
this case and find no reversible error. We therefore affirm the convic-
tion and sentence. We dismiss that portion of the appeal which chal-
lenges the sentence on other than constitutional grounds. This court
requires that counsel inform his client, in writing, of his right to peti-
tion the Supreme Court of the United States for further review. If the
client requests that a petition be filed, but counsel believes that such
a petition would be frivolous, then counsel may move in this court for
leave to withdraw from representation. Counsel's motion must state
that a copy thereof was served on the client. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the record and briefs, and oral argument would not aid the
decisional process.
AFFIRMED IN PART, DISMISSED IN PART
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