United States v. Jason Jian Liang , 537 F. App'x 710 ( 2013 )

FILED
NOT FOR PUBLICATION AUG 09 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50210
Plaintiff - Appellee, D.C. No. 8:10-cr-00116-DOC-1
v.
MEMORANDUM*
JASON JIAN LIANG,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Submitted August 7, 2013**
Pasadena, California
Before: SILVERMAN and WARDLAW, Circuit Judges, and CEDARBAUM,
Senior District Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Miriam Goldman Cedarbaum, Senior District Judge
for the U.S. District Court for the Southern District of New York, sitting by
designation.
Jason Jiang Liang appeals his conviction and sentence following his
unconditional guilty plea for violating the International Emergency Economic
Powers Act (“IEEPA”), 50 U.S.C. §1705, and the Export Administration
Regulations (“EAR”), 15 C.F.R. §§ 736.2, 764.2. We have jurisdiction pursuant to
28 U.S.C. § 1291 and affirm the district court.
Liang’s unconditional guilty plea waived his right to seek review of any
alleged defects in his indictment or in the constitutionality of the underlying
statutes. See United States v. Lopez-Armenta, 400 F.3d 1173, 1175 (9th Cir. 2005)
(“[I]t is well-settled that an unconditional guilty plea constitutes a waiver of the
right to appeal all nonjurisdictional antecedent rulings and cures all antecedent
constitutional defects.”).
Even absent waiver, Liang’s arguments lack merit. The indictment was not
defective because the foreign availability of an item on the Commodity Control
List is not an element of an IEEPA violation. See United States v. Mandel, 914
F.2d 1215, 1223 (9th Cir. 1990). The indictment alleged that Liang knew that a
license was required for export of the thermal imaging cameras, that he lacked the
license, and that he chose to export the cameras. This is sufficient to make out a
violation of the IEEPA. See United States v. Zhi Yong Guo, 634 F.3d 1119, 1123
2
(9th Cir. 2011). Moreover, we have held that the IEEPA is not unconstitutionally
vague, and Liang has provided no basis to conclude otherwise. See id.The district court did not err when it calculated Liang’s Sentencing
Guidelines range. See United States v. Garro, 517 F.3d 1163, 1167 (9th Cir.
2008). In 2011, the Sentencing Commission amended the Guidelines Manual to
include U.S.S.G. § 2M5.1 as a cross-reference for IEEPA violations. U.S.S.G.
App. C at 401. Because Liang was convicted in 2012, the district court properly
consulted § 2M5.1 in calculating his Guidelines range. See U.S.S.G. § 1B1.11
(“The court shall use the Guidelines Manual in effect on the date that the defendant
is sentenced.”). The district court correctly concluded that a base offense level of
26 was appropriate given that Liang’s offense conduct involved the evasion of
“national security controls.” U.S.S.G. § 2M5.1.
We decline to reach Liang’s claim that he received ineffective assistance of
counsel due to his counsel’s alleged ignorance of 50 U.S.C. App. 2403(c).
“[I]neffective counsel claims cannot generally be evaluated on direct appeal.”
United States v. Wagner, 834 F.2d 1474, 1483 (9th Cir. 1987). The record is
insufficiently developed at this stage to evaluate Liang’s claims. See United States
v. Hanoum, 33 F.3d 1128, 1131-32 (9th Cir. 1994). Liang remains free to raise his
claims in a collateral attack on his conviction under 28 U.S.C. § 2255. See id at
3
1131 (“The customary procedure in this Circuit for challenging the effectiveness of
defense counsel in a federal criminal trial is by collateral attack on the conviction
under 28 U.S.C. § 2255.”).
AFFIRMED.
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