United States v. Richard Chung ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 6 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50164
Plaintiff-Appellee, D.C. No. 8:15-cr-0004-CJC
v. MEMORANDUM*
RICHARD HOON CHUNG, AKA Yoon
Hoon Chung, AKA Hoon Chung Yong,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Submitted August 12, 2020**
Pasadena, California
Before: WARDLAW and CLIFTON, Circuit Judges, and HILLMAN,*** District
Judge.
Richard Hoon Chung challenges his sentence following his guilty plea to
two counts of wire fraud in violation of 18 U.S.C. § 1343. The district court
*
This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Timothy Hillman, United States District Judge for the District of
Massachusetts, sitting by designation.
sentenced Chung to 33-months’ imprisonment on each count, to be served
concurrently. Chung contends that the district court erred in applying a 2-level
enhancement under U.S.S.G. § 3B1.3 for abuse of a position of trust, the
government breached its plea agreement by arguing for such enhancement, and his
sentence is substantively unreasonable under 18 U.S.C. § 3553(a). The
government argues that Chung’s appeal should be dismissed based on the waiver
provision in his plea agreement. We have jurisdiction under 28 U.S.C. § 1291, and
we affirm.
1. We review de novo whether the defendant has waived his right to appeal.
United States v. Nunez, 223 F.3d 956, 958 (9th Cir. 2000). Chung argues the
waiver is not enforceable because at the sentencing hearing, the district court
advised him of his right to appeal the sentence imposed. An appeal waiver is
enforced when its language encompasses the defendant’s right to appeal on the
grounds claimed and the waiver was made knowingly and voluntarily. Id. (citing
United States v. Martinez, 143 F.3d 1266, 1270–71 (9th Cir.1998)). An exception
applies when the district court advises a defendant that he has a right to appeal
“unequivocally, clearly, and without qualification.” United States v. Arias-
Espinosa, 704 F.3d 616, 620 (9th Cir. 2012). Where the court so advises the
defendant and the government does not object, the government loses the right to
enforce the appellate waiver. United States v. Felix, 561 F.3d 1036, 1041 (9th Cir.
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2009) (where the district court clearly advises the defendant of his right to appeal,
waiver of the right will be enforced only if the government immediately objects to
the court’s advisement of a right to appeal and the court subsequently
acknowledges the waiver). In his plea agreement, Chung knowingly and
voluntarily waived his right to appeal the within the Guidelines sentence imposed
by the district judge. However, based on a misreading of that agreement, the
district judge unequivocally told Chung that he had a right to appeal the issues he
now raises before us and the government did not object. Under these
circumstances, we will not enforce the waiver.
2. Chung argues that the government breached the plea agreement by arguing
for a 2-level upward adjustment pursuant to U.S.S.G. § 3B1.3 for abuse of a position
of trust. Because Chung did not make this argument to the district court, our review
is for plain error. United States v. Bonilla-Guizar, 729 F.3d 1179, 1187 (9th
Cir.2013). “Relief for plain error is available if there has been (1) error; (2) that was
plain; (3) that affected substantial rights; and (4) that seriously affected the fairness,
integrity, or public reputation of the judicial proceedings.” United States v. Cannel,
517 F.3d 1172, 1176 (9th Cir. 2008) (citation omitted). In the plea agreement, the
parties’ agreed that that Chung’s offense level was 18 but expressly reserved the
right to argue that additional adjustments or departures would be appropriate under
the Guidelines. The government further agreed to recommend a term of
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imprisonment at the low end of the applicable Guidelines range provided the district
court determined the range based on an offense level of 18 or higher and did not
depart downward in offense level or criminal history category. At sentencing, the
government argued for a 2-level enhancement for abuse of trust. The district court
applied the requested enhancement and calculated Chung’s offense level to be 20
and his Guidelines range to be 33‒41 months’ imprisonment. The government then
recommended that Chung be sentenced to 33 months. The government’s requested
2-level upward adjustment and its sentence recommendation did not breach the
terms of the plea agreement and therefore, there was no error, never mind plain error.
3. Chung argues that the district court erred by imposing a 2-level upward
adjustment pursuant to U.S.S.G. § 3B1.3 for abuse of trust because he did not have
the requisite discretionary authority vis-a-vis his alleged victims, and his position
did not significantly facilitate his offense. We review the district court’s factual
findings for clear error and its application of the Sentencing Guidelines to those
findings for abuse of discretion. United States v. Gasca-Ruiz, 852 F.3d 1167, 1170
(9th Cir.) (en banc). Under U.S.S.G. § 3B1.3, a defendant’s offense level should
be increased by two levels “[i]f the defendant abused a position of public or private
trust, or used a special skill, in a manner that significantly facilitated the
commission or concealment of the offense.” Chung, who owned and operated
numerous medical clinics, submitted fraudulent claims to Medicare using provider
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codes of unwitting physicians and physical therapists he employed, and
electronically deposited the funds received into bank accounts in their names that
he controlled and had opened without their knowledge. The district court found
that Chung’s actions abused a private trust that these medical providers had placed
in him to manage their financial affairs and dealings with Medicare. As the facts
clearly demonstrate that Chung held a position of trust “characterized by
professional … discretion” which “contributed in some significant way to
facilitating the commission . . . of [his] offense,” see U.S.S.G. § 3B1.3, cmt. 1, the
district court did not abuse its discretion in applying this adjustment.
4. Chung asserts that his within Guidelines 33-month sentence is
substantively unreasonable because it was greater than necessary to achieve the
aims of § 3553(a) given that he is a non-violent offender with no criminal history,
has lost his professional livelihood, and faces future legal and financial turmoil as
the result of this case. We review the substantive reasonableness of a sentence for
abuse of discretion considering the totality of the circumstances. Gall v. United
States, 552 U.S. 38, 51 (2007). While we do not presume that a within Guidelines
sentence is reasonable, “a correctly calculated Guidelines sentence will normally
not be found unreasonable on appeal.” United States v. Carty, 520 F.3d 984, 988
(9th Cir. 2008) (en banc). The district court appropriately considered the factors
and objectives of sentencing under § 3553(a), identified two aggravating factors
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(the eight-year duration of Chung’s fraud and its impact on Medicare, a critical
public program) and three mitigating factors (Chung’s community service, recent
mental health issues, and family hardships), and determined that a sentence at the
low end of the Guidelines was appropriate. There was no abuse of discretion.
AFFIRMED.
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