11-2461-cr
United States v. Wee

                  UNITED STATES COURT OF APPEALS
                      FOR THE SECOND CIRCUIT
                               SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY
ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.

           At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
StatesthCourthouse, 40 Foley Square, in the City of New York, on
the 28 day of February, two thousand thirteen.

PRESENT:    DENNY CHIN,
            CHRISTOPHER F. DRONEY,
                      Circuit Judges,
            JANE A. RESTANI,*
                      Judge.

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UNITED STATES OF AMERICA,
                    Appellee,

                  -v-                                         11-2461-cr

DAVENG WEE, AKA DAVENG PUI KUI WEE, AKA
DAVENG K.C. HUANG, AKA PUI KUI WEE, AKA
KC HUANG DAVENG, AKA DAVENG HUANG, AKA
KUO-CHANG HUANG, AKA K.C. HUANG,
                    Defendant-Appellant.
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FOR APPELLEE:                        Paul M. Krieger, Katherine Polk
                                     Failla, Assistant United States
                                     Attorneys, for Preet Bharara,
                                     United States Attorney for the
                                     Southern District of New York, New
                                     York, New York.

FOR DEFENDANT-APPELLANT:             Marjorie M. Smith, Piermont, New
                                     York.


*
     The Honorable Jane A. Restani, of the United States Court of
International Trade, sitting by designation.
          Appeal from the United States District Court for the

Southern District of New York (Griesa and Crotty, JJ.).
          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED

IN PART AND VACATED AND REMANDED IN PART.

          Defendant-appellant Daveng Wee appeals from a judgment,

entered June 6, 2011, after his plea of guilty, convicting him of

five counts of making false statements, see 18 U.S.C. § 1001, and

one count of aggravated identity theft, see 18 U.S.C. § 1028A.

On June 2, 2011, the district court (Griesa, J.) sentenced Wee to

48 months' imprisonment, two years' supervised release, and $600

in special assessments.   In a separate order entered July 22,

2011, the district court (Crotty, J.) required Wee to pay $750 in

restitution to one of the victims.      Although Wee's plea agreement

contained a waiver of his right to appeal a term of imprisonment

within or below the range of 48 to 54 months, he nonetheless

filed a notice of appeal.   Thereafter, his appellate counsel

filed a motion to withdraw, pursuant to Anders v. California, 386
U.S. 738 (1967), concluding that there were no non-frivolous
arguments to raise on appeal.   In light of several challenges Wee

raised in pro se responses to the Anders motion, two prior panels

of this court deferred ruling on the motion.     Appellate counsel

eventually withdrew her Anders motion and filed a merits brief on

what she concluded to be the only non-frivolous argument

available on appeal.   We assume the parties' familiarity with the

underlying facts, the procedural history of the case, and the

issues presented for review.


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          In the counseled merits brief, Wee argues that the

district court did not comply with the procedural requirements of

18 U.S.C. § 3664 when it ordered restitution without providing

him an opportunity to challenge the proposed order.    Section 3664

sets forth procedures governing the issuance of restitution

orders.   It provides defendants with the opportunity to object to

proposed restitution orders, and "[a]ny dispute as to the proper

amount or type of restitution shall be resolved by the court by

the preponderance of the evidence."    18 U.S.C. § 3664(e).

Because the Government agrees that Wee did not have an adequate

opportunity to review the proposed restitution order and related

documents before the district court entered the order, we vacate

the order of restitution and remand for the district court to

consider Wee's objections.

          In Wee's pro se supplemental briefs, he requests new

counsel because his appellate counsel allegedly ceased

communicating with him and allegedly failed to raise several

arguments on appeal.   Wee insists he has meritorious arguments

that his plea was not knowing and voluntary, his trial counsel

provided ineffective assistance, and he was in fact innocent

because he lacked the requisite intent to commit his crimes.    In

her Anders briefs, appellate counsel sets out her reasons for
concluding these arguments are meritless.

          After reviewing Wee's pro se arguments and appellate

counsel's submissions, we agree that no additional non-frivolous

issues exist.   See United States v. Hsu, 669 F.3d 112, 117-18 (2d
Cir. 2012) (addressing the merits of pro se supplemental brief).

Wee's "bald statements that simply contradict what he said at his
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plea allocution are not sufficient grounds to withdraw [his]

guilty plea."    United States v. Gonzalez, 647 F.3d 41, 56 (2d

Cir. 2011) (internal quotation marks and citation omitted).

Moreover, Wee's plea agreement clearly specified that he would

not appeal a sentence "within or below the Stipulated Guidelines

Range of 48 to 54 months' imprisonment."    While Wee argues that

his trial counsel did not adequately explain the plea agreement's

"legal implications or its binding effects," Wee acknowledges in

his pro se briefs that he read the plea agreement and had the
opportunity to discuss and raise questions about it with his

trial counsel.    Additionally, he confirmed at the plea hearing

that he signed the plea agreement voluntarily and understood his

rights.   Although Wee's pro se briefs suggest an argument that he

was incompetent to plead guilty because he suffers from

"depression and mental issues," he and his trial counsel attested

to his competence at the plea hearing.    As there are no other

non-frivolous arguments to raise on appeal, we decline to appoint

new counsel as it would not serve "the interests of justice."      18

U.S.C. § 3006A(c).
          We have considered Wee's remaining arguments and find

them to be without merit.    Accordingly, Wee's conviction and

sentence are AFFIRMED, except that the restitution order is

VACATED and the case is REMANDED for further proceedings on the

issue of restitution.

                                FOR THE COURT:
                                Catherine O'Hagan Wolfe, Clerk




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