United States v. Jong Kim ( 2023 )

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-4221
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JONG WHAN KIM,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Wilmington. Louise W. Flanagan, District Judge. (7:18-cr-00200-FL-1)
Argued: May 5, 2023 Decided: June 20, 2023
Before AGEE, Circuit Judge, TRAXLER, Senior Circuit Judge, and Henry E. HUDSON,
Senior United States District Judge for the Eastern District of Virginia, sitting by
designation.
Affirmed by published opinion. Senior Judge Traxler wrote in the opinion, in which Judge
Agee and Judge Hudson joined.
ARGUED: Michelle Ann Liguori, ELLIS & WINTERS, LLP, Raleigh, North Carolina,
for Appellant. Andrew Kasper, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee. ON BRIEF: Scottie F. Lee, ELLIS & WINTERS
LLP, Greensboro, North Carolina, for Appellant. Michael F. Easley, Jr., United States
Attorney, David A. Bragdon, Assistant United States Attorney, Kristine L. Fritz, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.
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TRAXLER, Senior Circuit Judge:
Federal law prohibits the knowing or intentional distribution of a controlled
substance “[e]xcept as authorized.” 21 U.S.C. § 841(a). Jong Whan Kim, a medical doctor,
pleaded guilty to multiple charges under § 841 for prescribing oxycodone and other
controlled substances outside the usual course of professional practice and without a
legitimate medical need. See 21 C.F.R. § 1306.04(a) (“A prescription for a controlled
substance to be effective must be issued for a legitimate medical purpose by an individual
practitioner acting in the usual course of his professional practice. . . .”). After Kim was
sentenced, the Supreme Court issued its decision in Ruan v. United States, 142 S. Ct. 2370
(2022), which held that the statutory knowing-or-intentional mens rea applies not only to
the distribution-related elements of the crime, but also to the question of authorization.
Accordingly, if a defendant charged under § 841 “produces evidence that he or she was
authorized to dispense controlled substances, the Government must prove beyond a
reasonable doubt that the defendant knew that he or she was acting in an unauthorized
manner, or intended to do so.” Id. at 2375.
Before Ruan was decided, this circuit (and others) had held that whether a doctor’s
actions were authorized was an objective inquiry. See, e.g., United States v. Hurwitz, 459
F.3d 463, 479 (4th Cir. 2006). Because Ruan changed the law in this circuit, Kim contends
that his guilty plea must be set aside because the district court did not inform him that the
government would be required to prove that he knew he was acting in an unauthorized
manner when issuing the challenged prescriptions. Kim also contends that the district court
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failed to afford him an adequate opportunity to allocute before imposing sentence. Finding
no reversible error, we affirm.
I.
Kim was born in South Korea in 1949. He joined the Korean military and fought
alongside American forces in the Vietnam war. He immigrated to the United States when
he was 27. In Wisconsin, Kim got married and had three children. He worked in a factory
and as a gardener to support his family. Kim obtained a bachelor’s degree from the
University of Wisconsin in 1991 and received his medical degree in 1995.
After working for several years in a hospital in Pennsylvania, Kim was hired in 2002
as a hospitalist in Elizabethtown, North Carolina. The hospital eventually became
concerned about Kim’s practices for prescribing controlled substances. Hospital officials
met with Kim in December 2016 and informed him that his treatment notes did not justify
the prescriptions he was issuing. Kim was given the option of complying with the hospital’s
requirements or resigning; he chose to resign in March 2017.
After leaving the hospital, Kim began seeing patients at his home in Bladenboro,
North Carolina. In the summer of 2017, the still-married Kim started dating Tammy
Thompson, who then began helping Kim run his home-based medical practice. 1 In
1
Kim met Thompson in the early 2000s, when he was the primary care
physician for Thompson’s then-husband. Thompson’s husband had been in an accident,
and Kim prescribed him opiates in such large quantities that Thompson’s son became
concerned.
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September 2017, Kim opened a medical clinic in Tabor City, North Carolina. Thompson
was Kim’s business partner and served as the clinic’s office manager.
The information in the record shows that the clinic operated as a classic pill mill.
Beyond a scale, blood-pressure cuffs, and a stethoscope, there was no medical equipment
at the clinic. Kim issued prescriptions for strong pain medication without reviewing the
patient’s prior medical records and without performing a proper examination to determine
if medication was required. Although the clinic did perform drug tests on new patients,
the results were not properly documented in the patients’ files, and Kim issued
prescriptions even if the patient failed the drug test.
The clinic saw between 35 and 40 patients a day, and those patients frequently
reeked of marijuana. Thompson and her daughter, who also worked at the clinic, would
sometimes let a particular person (who was not a patient) bring a group of prospective
patients to the clinic, and Kim would issue prescriptions to the group. Patients who brought
other prospective patients would be seen more quickly. All patients paid in cash (usually
$200), regardless of insurance status, and clinic employees were also paid in cash. The cash
paid by the patients was placed by clinic employees in one of two lock boxes. At the end
of each day, Thompson would gather the money from the lock boxes and deposit it at one
of two banks. An employee of one of the banks told law enforcement that Thompson
usually made deposits ranging between $5,000 and $8,000 twice a week.
The clinic was located next to Tabor City Elementary School. The clinic parking lot
was often filled with patients waiting to be seen, which created safety concerns for the
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school. The school frequently cancelled recess because of activity at the clinic, and it was
forced to lock down more than once.
In 2018, law enforcement had a confidential informant pose as a clinic patient. The
CI saw Kim twelve times. Kim conducted a drug screen on the first visit, but not thereafter.
At each appointment, the CI paid $200 in cash and Kim issued prescriptions after minimal
or no medical examination. At several appointments, the CI also purchased marijuana from
Thompson. On one occasion when the CI was in the examination room with Kim,
Thompson brought the marijuana into the room and sold it to the CI in front of Kim. In
Kim’s presence, she told the CI that Kim was willing to trade work for prescriptions.
In May 2018, the CI asked Kim to prescribe stronger medication, and Kim complied
with no examination and no questions asked. At the CI’s last clinic visit in June 2018, the
CI asked Kim for a higher dosage of the medication so he could sell more pills on the street.
The CI and Kim also discussed which pharmacy the CI should use to ensure that the
prescription would not be recorded. At the CI’s request, Kim also issued a prescription for
the CI’s father, who was not present at the appointment and had never been seen by Kim.
The CI paid Kim $200 for the prescription issued in his name and $300 for the prescription
issued in his father’s name.
The day after his last clinic visit, the CI conducted a final controlled purchase from
Kim and Thompson at Kim’s residence, paying $700 for 81 hydrocodone pills and a
quantity of marijuana. At this visit, Kim and the CI discussed the possibility of the CI
lending Kim money to buy a house. Kim offered to pay the interest through prescriptions
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to the CI. The next day, law enforcement officials arrested Kim and Thompson on state
charges and executed search warrants for the clinic and Kim’s residence.
In December 2018, Kim and Thompson were indicted on federal charges, including
a charge of conspiracy to distribute controlled substances and multiple individual counts
of drug distribution. The case proceeded slowly through the system, as dates for trial were
set and then later extended. In July 2020, the government filed a superseding indictment
including additional counts against Kim and Thompson. A 34-count second superseding
indictment was filed on July 7, 2021. In addition to the conspiracy charge asserted against
Kim and Thompson, the second superseding indictment included twenty-five substantive
counts involving Kim alone; six substantive counts involving Thompson alone 2; and two
substantive counts involving both Kim and Thompson. Less than a week after the second
superseding indictment was filed, Thompson pleaded guilty to conspiracy and five of the
individual counts.
In November 2021, Kim signed a written agreement whereby he agreed to plead
guilty to conspiracy and eight substantive counts in exchange for the dismissal of the
remaining counts. At the plea hearing conducted on November 30, 2021, Kim testified that
he had read the second superseding indictment, understood the charges, and was prepared
to plead guilty. When the court listed the relevant counts and asked Kim how he pleaded,
Kim responded, “I plead guilty to those charges, Your Honor.” J.A. 68.
2
The individual counts against Thompson were based on her selling
marijuana to patients.
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After the government spelled out the penalties Kim faced on each charge, Kim
repeated that he was pleading guilty to the charges outlined in the plea agreement. The
court explained the elements of each offense, asked the government to present the factual
basis, and then asked Kim if he committed the offenses listed in the plea agreement. Kim
responded, “Your Honor, nothing I was doing willfully. I’m not guilty of any of this, Your
Honor. I was just advised by my counsel that this is the only way I can alleviate – mitigate
my sentence.” J.A. 86. After speaking with his client, counsel for Kim informed the court
that he was “not in a position today to enter a guilty plea,” J.A. 87, and requested a
continuance “to give me some more time with Dr. Kim to try to answer and clarify
questions he’s raised.” J.A. 87. The court granted the continuance and struck the existing
plea agreement from the record.
The parties returned to court on December 28, 2021, with a freshly executed plea
agreement. 3 The court explained that the hearing was a continuation of the prior hearing,
and Kim declined the court’s offer to repeat any of the information from the first hearing
about the charges, penalties, and the rights he was giving up. After the government spelled
out the factual bases for the charges, the court reiterated to Kim that if the court accepted
the plea agreement, “you can’t take it back. You’re bound by it.” J.A. 104. Kim stated that
he understood. The district court then asked Kim if he was in fact guilty of the charges
spelled out in the plea agreement, to which he responded, “Yes, your Honor.” J.A. 104.
3
Under the revised agreement, the government agreed to dismiss Count 34,
one of the counts to which Kim had originally agreed to plead guilty.
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The court determined that Kim knowingly and voluntarily pleaded guilty, and the court
accepted the plea agreement. At a subsequent hearing, the court sentenced Kim to a total
term of 78 months’ imprisonment. This appeal followed. 4
II.
We turn first to the Ruan question. “A plea of guilty is constitutionally valid only to
the extent it is voluntary and intelligent. We have long held that a plea does not qualify as
intelligent unless a criminal defendant first receives real notice of the true nature of the
charge against him, the first and most universally recognized requirement of due process.”
Bousley v. United States, 523 U.S. 614, 618 (1998) (cleaned up). To ensure that defendants
plead guilty knowingly and voluntarily, the Federal Rules of Criminal Procedure require a
district court, before accepting a guilty plea, to “inform the defendant of, and determine
that the defendant understands, . . . the nature of each charge to which the defendant is
pleading.” Fed. R. Crim. P. 11(b)(1)(G).
Kim contends his plea was not valid because the district court did not inform him
that, if he went to trial, the government would be required to prove beyond a reasonable
doubt that Kim subjectively knew or intended that his conduct was unauthorized, as
required by Ruan. Because Kim raised no objections below, we review for plain error only.
Under plain error review, Kim is entitled to relief only if he can
4
Although Kim’s plea agreement includes an appeal waiver, we nevertheless
proceed because the government has not sought to enforce the waiver. See United States v.
Jones, 667 F.3d 477, 486 (4th Cir. 2012) (“[T]he government does not seek to enforce the
waiver, and we will not sua sponte enforce it.”).
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satisfy three threshold requirements. First, there must be an error. Second,
the error must be plain. Third, the error must affect substantial rights, which
generally means that there must be a reasonable probability that, but for the
error, the outcome of the proceeding would have been different. If those three
requirements are met, an appellate court may grant relief if it concludes that
the error had a serious effect on the fairness, integrity or public reputation of
judicial proceedings.
Greer v. United States, 141 S. Ct. 2090, 2096 (2021) (cleaned up). Kim bears the burden
of persuasion at each step of the inquiry; “[s]atisfying all four prongs of the plain-error test
is difficult.” Id. at 2097 (cleaned up).
Kim contends that the district court plainly erred because it never expressly
informed Kim that the government at trial would be required to prove that Kim knew or
intended that his prescriptions were not authorized and that he would not have pleaded
guilty if he had understood the government’s burden of proof. While the government
acknowledges that Ruan changed the law in this circuit, it disagrees with Kim at every
step of the plain-error path. In the government’s view, there was no error at all, let alone
plain error. In any event, the government contends that Kim cannot show his substantial
rights were affected.
A.
We first consider whether there was error, and, if so, whether the error was plain.
“Deviation from a legal rule is ‘error’ unless the rule has been waived.” United States v.
Olano, 507 U.S. 725, 732–33 (1993). An error is “plain” if the error is “clear” or “obvious.”
Id. at 733.
In the plea colloquy, the district court explained that for the conspiracy count, the
government was required to prove that Kim “formed an agreement to distribute, prescribe,
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and dispense and possess with the intent to distribute [specified controlled substances], and
that you knew the purpose of this agreement or conspiracy, and that you knowingly and
willfully participated in or became a part of it.” J.A. 72-73. As to the substantive counts,
the court explained that the government bore “the burden of showing beyond a reasonable
doubt that you prescribed, dispensed, or distributed [a specified controlled substance]; you
acted knowingly, intentionally; and you did that outside the usual course of professional
practice and for other than a legitimate medical purpose.” J.A. 73.
Kim argues that because the district court did not expressly state that the government
would be required to prove that he knew or intended that his prescriptions were
unauthorized, as required by Ruan, the court failed to inform him of the true nature of the
charges against him and therefore committed plain error. See Johnson v. United States, 520
U.S. 461, 468 (1997) (“[W]here the law at the time of trial was settled and clearly contrary
to the law at the time of appeal[,] it is sufficient that the error be plain at the time of
appellate consideration.”).
The government, however, insists that the district court’s explanation was entirely
consistent with Ruan. The government contends that when the district court stated “‘you
did that outside the usual course of professional practice,’ the court incorporated the mens
rea requirement that it had just read.” Br. of Appellee at 21.
We need not decide whether the district court’s explanations should be understood
in the manner suggested by the government. While the Constitution requires that the
defendant understand the true nature of the charges he faces, that does not mean that a
recitation of all elements is always required in a Rule 11 proceeding. This court “has
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repeatedly refused to script the Rule 11 colloquy . . . to require the district courts to recite
the elements of the offense in every circumstance.” United States v. Wilson, 81 F.3d 1300,
1307 (4th Cir. 1996). Moreover, there is no requirement that the defendant receive all of
the information about the nature of the charges from the court “at the plea hearing itself.”
United States v. DeFusco, 949 F.2d 114, 117 (4th Cir. 1991) (cleaned up). Instead, the
district court may rely on “detailed information received [by the defendant] on occasions
before the plea hearing” when determining whether a guilty plea is knowing and voluntary.
Id. (cleaned up).
In this case, even if the district court’s explanation of the charges alone did not
properly reflect the mens rea required by Ruan, the language of the indictment does reflect
Ruan’s holding. This court has made it clear that when explaining the nature of the charges,
a district court may rely on the defendant’s sworn statement that he has read the indictment
and discussed it with his attorney. See Wilson, 81 F.3d at 1307 (“We again refuse to require
the district courts to recite the elements of the offense in every circumstance. In many cases,
such a procedure would be a formality and a needless repetition of the indictment, which
often tracks the essential elements of the offense.”) (emphasis added).
In each count of the second superseding indictment that involved Kim, the
government, apparently anticipating what Ruan would hold, alleged that Kim conspired
and issued the challenged prescriptions “while acting and intending to act outside the usual
course of professional practice and not for a legitimate medical purpose.” J.A. 39, 40, 41,
43 (emphasis added). Ruan requires the government to prove that the defendant knew or
intended to issue unauthorized prescriptions. Because a prescription issued outside the
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usual course of medical practice and not for a legitimate medical purpose is an unauthorized
prescription, see 21 C.F.R. § 1306.04(a), the indictment is consistent with the requirements
of Ruan.
Kim argues that the language of the second superseding indictment is irrelevant
because governing Fourth Circuit law at the time of his plea was not consistent with Ruan,
which, in Kim’s view, means that he did not plead guilty to any Ruan-compliant offense.
We disagree. Kim did not plead guilty to generic charges under § 841; he pleaded guilty to
the offenses spelled out in the second superseding indictment. In every count of that
indictment, the government alleged that Kim intended to act outside the usual course of
professional practice and not for a legitimate medical purpose. While Fourth Circuit
precedent did not then require the government to prove the defendant’s subjective intent,
the government nonetheless would have been bound by those allegations at trial. See
United States v. Pinson, 860 F.3d 152, 171 (4th Cir. 2017) (“Importantly,
the government is bound by the phrasing it uses in the indictment, even if it chooses to use
more specific language than necessary.”).
Kim also contends that the language of the indictment is not sufficient under Ruan
because it does not make clear that the government bears the burden of proving that Kim
intended to issue unauthorized prescriptions. While the indictment does not mention (and
would not be expected to mention) the burden of proof, the district court in the plea
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colloquy repeatedly informed Kim that the government bore the burden of proof at trial. 5
We believe that those repeated explanations, combined with the mens rea allegations
actually contained in the indictment, were sufficient.
As we explained in DeFusco, the question is not simply whether the court recited
each element of each charge at the plea hearing, but whether the district court ensured that
Kim understood the true nature of the charges. See DeFusco, 949 F.2d at 117 (“[T]he
defendant must receive notice of the true nature of the charge rather than a rote recitation
of the elements of the offense. . . .”). When determining whether a plea hearing complies
with the requirements of Rule 11, we are obligated to “accord deference to the trial court’s
decision as to how best to conduct the mandated colloquy with the defendant. The manner
of ensuring that the defendant is properly informed is committed to the good judgment of
the district court, to its calculation of the relative difficulty of comprehension of the charges
and of the defendant’s sophistication and intelligence.” Id. at 116 (cleaned up).
In this case, the district court was presented with a mature, well-educated,
financially successful defendant who had no mental health conditions or substance abuse
5
See J.A. 63 (explaining to Kim that if he went to trial, “there would be no
burden on you. The burden rests on the shoulders of the government to prove you guilty
beyond a reasonable doubt.”); J.A. 64 (“[Y]ou are and would be presumed innocent. Again,
you don’t have to prove anything.”); J.A. 72 (After Kim stated that he was pleading guilty,
the district court explained, “Dr. Kim, you still have the right to plead not guilty. . . . The
government still has the burden on its back to prove you guilty beyond a reasonable doubt.
You are presumed innocent. You remain presumed innocent. And the government’s
burden, as I said, remains with it.”); J.A. 91 (explaining at the beginning of the second plea
hearing that “[t]he burden remains on the government to prove you guilty beyond a
reasonable doubt. And you are presumed innocent.”).
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problems. See id. at 117 (“In explaining the nature of the charges to the defendant, . . . the
trial court is given a wide degree of discretion in deciding the best method to inform and
ensure the defendant’s understanding. The trial court may look at the availability of
counsel, and the defendant’s personal characteristics, such as age, education, and
intelligence.”) (cleaned up). Kim told the district court during the first plea colloquy that
he understood and could communicate with his attorney and that he was satisfied with his
attorney. He confirmed that he had read the second superseding indictment and that his
attorney had explained it to him. As noted, the indictment’s mens rea allegations were
consistent with the requirement of Ruan, and the district court repeatedly informed Kim
that the burden of proof was on the government. When the parties reconvened a month
after the aborted plea hearing, Kim informed the court that he did not need the indictment
to be read to him. He confirmed that he had read and signed the revised plea agreement,
which spelled out the facts underlying the charges against him, and he confirmed that he
was in fact guilty of the charges listed in the plea agreement. Under these circumstances,
we find no error, plain or otherwise, in the manner in which the district court ensured Kim’s
understanding of the true nature of the charges he faced.
B.
Moreover, even if we could find error in the district court’s approach, we agree with
the government that Kim cannot show that his substantial rights were affected.
Because Kim pleaded guilty, the substantial-rights inquiry requires him to “show[]
that, if the District Court had correctly advised him of the mens rea element of the offense,
there is a reasonable probability that he would not have pled guilty.” Greer, 141 S. Ct. at
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2097 (cleaned up). “Although the reasonable probability standard is a demanding one, a
defendant need not prove by a preponderance of the evidence that but for error things would
have been different.” United States v. Lockhart, 947 F.3d 187, 192–93 (4th Cir. 2020) (en
banc) (cleaned up). “Instead, a defendant must satisfy the judgment of the reviewing court,
informed by the entire record, that the probability of a different result is sufficient to
undermine confidence in the outcome of the proceeding.” Id. (cleaned up).
In support of his claim that he would not have pleaded guilty if he had understood
that the government would be required to prove that he knew he was issuing prescriptions
outside the usual course of professional practice and not for a legitimate medical purpose,
Kim points to his initial hesitancy to plead guilty and his assertion in the first hearing that
he did nothing willfully and was “not guilty of any of this.” J.A. 86. He also points to the
government’s statements of the factual bases for the charges, which Kim contends did not
include evidence of Kim’s subjective intent for each prescription at issue. We are not
persuaded.
Although Kim expressed hesitancy in the first plea hearing, an isolated hiccup in
the course of a plea proceeding does not automatically satisfy the substantial-rights prong
of the plain-error inquiry. Kim expressed no further hesitancy when court reconvened
several weeks after the initial hearing. He responded in the negative when the district court
asked if he needed any other information from the court or had questions for his attorney,
and he confirmed that he was in fact guilty of the charges listed in the plea agreement.
Under these circumstances, the mere fact that Kim was briefly hesitant to plead guilty is
insufficient to carry Kim’s burden under plain-error review.
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When determining whether a plain-error defendant has established that he would
have gone to trial but for the error, we are entitled to consider the strength of the
government’s evidence and to ask “what [the defendant] might ever have thought he could
gain by going to trial.” United States v. Dominguez Benitez, 542 U.S. 74, 85 (2004).
The point of the question is not to second-guess a defendant’s actual
decision; if it is reasonably probable he would have gone to trial absent the
error, it is no matter that the choice may have been foolish. The point, rather,
is to enquire whether the omitted [explanation] would have made the
difference required by the standard of reasonable probability. . . .
Id.Although the record reveals no statement from Kim directly stating his subjective
intention to violate the law, the mountain of circumstantial evidence leaves little doubt. For
example, the record shows that Kim complied when the CI asked Kim to prescribe a higher
strength of medication so he could sell more pills on the street. Kim likewise complied
when the CI asked for a prescription for his father, who was not a patient of Kim’s and was
not present at the appointment. Kim did not correct Thompson when she told the CI, in
Kim’s presence, that Kim would trade work for prescriptions, and Kim asked the CI about
a possible loan and offered to write prescriptions to pay the interest. In the face of this
evidence, a jury would be highly unlikely to conclude that Kim subjectively believed he
was issuing authorized, medically necessary prescriptions, which in turn makes it unlikely
that Kim’s plead-or-trial calculation would turn on the precise contours of the statutory
mens rea requirements.
Moreover, counsel for Kim told the court at sentencing that once he got involved in
the case and explained the government’s evidence, Kim and his children “pretty quickly
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acknowledged that he, in fact, was guilty.” J.A. 120-21. Counsel explained that Kim’s
difficulty came from “his deep shame for this conduct” for bringing “dishonor to his
family.” J.A. 121.
[I]t was very difficult for Dr. Kim to overcome that sense of absolute shame
and dishonoring in his family. Part of what helped us in that are his own
children telling him that he’s a grandfather, and their father, and they didn’t
want him to die in prison, Your Honor. They wanted him to have time with
his family.
And so ultimately he came before the Court and pled guilty.
J.A. 121.
In our view, these statements undermine Kim’s claim that he would not have
pleaded guilty if he had understood the government’s obligation to prove he knew his
prescriptions were not authorized. While pleading guilty would not eliminate the dishonor
that Kim perceived, proceeding to trial would invite even more public attention on the
specifics of Kim’s actions, including details about his extra-marital relationship with
Thompson. Given the slim likelihood that a jury would agree that Kim believed he was
writing proper prescriptions, we have difficulty seeing how a more fulsome explanation of
the government’s burden to prove mens rea “could have had an effect on [Kim’s]
assessment of his strategic position.” Dominguez Benitez, 542 U.S. at 85.
After reviewing the record as a whole, we agree with the government that Kim has
not established a reasonable possibility that he would not have pleaded guilty if the charges
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against him had been more fully explained. Because Kim cannot show that his substantial
rights were affected, he is not entitled to relief under plain-error review. 6
III.
Finally, we turn briefly to Kim’s claim that the district court violated his right to
address the court before sentence is imposed. Because Kim did not object below, this issue
is likewise reviewed for plain error. See United States v. Muhammad, 478 F.3d 247, 249
(4th Cir. 2007).
The Rules of Criminal Procedure provide that, “[b]efore imposing sentence, the
[district] court must . . . address the defendant personally in order to permit the defendant
to speak or present any information to mitigate the sentence.” Fed. R. Crim. P.
32(i)(4)(A)(ii). “This rule is not satisfied by merely affording the Defendant’s counsel the
opportunity to speak.” Muhammad, 478 F.3d at 249 (cleaned up).
Kim concedes that while the district court did “eventually” give him an opportunity
to speak, that opportunity was insufficient because the district court by then had already
“express[ed] its views on the extent of Mr. Kim’s moral culpability.” Br. of Appellant at
40.
6
Because conspiracy involves “an agreement with the specific intent that the
underlying crime be committed by some member of the conspiracy,” Ocasio v. United
States, 578 U.S. 282, 288 (2016) (cleaned up), the government also contends that Kim’s
admission of guilt to the conspiracy count renders harmless any error in the explanation of
the substantive counts. Given our conclusion that Kim failed to establish a reasonable
probability that he would not have pleaded guilty if the charges had been properly
described, we need not consider this argument.
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Kim’s argument is functionally identical to an argument this court has already
rejected. In United States v. Engle, 676 F.3d 405 (4th Cir. 2012), the defendant argued that
his opportunity to allocute was meaningless because it came after the district court had
announced its intention to impose an upward variance. We disagreed:
Rule 32 only requires the district court to address the defendant
personally and permit him to speak or present any information to mitigate
the sentence before sentence is imposed; apart from that requirement, the rule
does not create a right of allocution at any specific point in the sentencing
proceeding. Moreover, when a judge announces a sentence before hearing
an allocution, it is fair to assume that such a sentence is tentative and that the
judge will consider the defendant’s statements before imposing a final
sentence.
Id. at 425 (cleaned up) (emphasis added).
There was nothing improper in Engle about the court expressing preliminary views
as to the appropriate sentence before hearing from the defendant, and there was nothing
improper here about the court expressing its views about the costs and societal harms of
Kim’s conduct before hearing from him. Because the district court afforded Kim the
opportunity to address the court before the court imposed sentence, Kim cannot establish
the existence of error, much less plain error.
IV.
Accordingly, for the foregoing reasons, we hereby affirm Kim’s conviction and
sentence.
AFFIRMED
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