     Case: 14-30907      Document: 00513119688         Page: 1    Date Filed: 07/17/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                       Fifth Circuit

                                                                                    FILED
                                                                                 July 17, 2015
                                    No. 14-30907
                                                                                 Lyle W. Cayce
                                  Summary Calendar                                    Clerk


UNITED STATES OF AMERICA,

              Plaintiff - Appellee

v.

YIPING QU, also known as Eric Qu,

              Defendant - Appellant




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:13-CR-120-1


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM:*
       Yiping Qu, a Chinese citizen residing in the United States, pleaded
guilty with the benefit of a plea agreement to conspiracy to knowingly export
from the United States defense articles on the United States Munitions List.
As part of his plea agreement, Qu knowingly and voluntarily “[w]aive[d] and
[gave] up any right to appeal or contest his guilty plea, conviction, sentence,



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                        No. 14-30907
fine, supervised release, and any restitution imposed by any judge under any
applicable restitution statute, including but not limited to any right to appeal
. . . any aspect of his sentence.” ROA.359. One exception is “the right to bring
a direct appeal of any sentence imposed in excess of the statutory maximum.”
ROA.360.
       At sentencing, the district court sentenced Qu to a below-Guidelines
prison term of 36 months.            The court also imposed a three year term of
supervised release, which would be nonreporting if Qu were deported.
Relatedly, the court ordered that upon completion of his term of imprisonment,
Qu “shall be surrendered to the custody of the United States Immigration and
Customs Enforcement [ICE] for removal proceedings,” and that he “shall also
cooperate in any removal proceedings.” ROA.331. Qu did not object to this
condition at the sentencing hearing.
       Despite his waiver of appeal, Qu timely appealed and now challenges the
“cooperation” condition. Qu argues that the district court’s special condition
that he “cooperate in any removal proceedings initiated or pending by the
United States [ICE] consistent with the Immigration and National Act”
violates the statutory limitations on the conditions of supervised release
because it exceeds the scope of 18 U.S.C. § 3583(d). 1 See ROA.331. Specifically,
he argues that the cooperation requirement is not reasonably related to his


       1 That statute provides that “[i]f an alien defendant is subject to deportation, the court
may provide, as a condition of supervised release, that he be deported and remain outside the
United States, and may order that he be delivered to a duly authorized immigration official
for such deportation.” 18 U.S.C. § 3583(d). It also states that a condition on supervised
release:
       (1) is reasonably related to the factors set forth in section 3553(a)(1), (a)(2)(B),
       (a)(2)(C), and (a)(2)(D);
       (2) involves no greater deprivation of liberty than is reasonably necessary for
       the purposes set forth in section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and
       (3) is consistent with any pertinent policy statements issued by the Sentencing
       Commission pursuant to 28 U.S.C. 994(a).
Id.
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                                 No. 14-30907
crime of commission, is a greater deprivation of liberty than is necessary
because the immigration court will determine whether or not he is removable,
and constitutes a “condition ordering deportation” in violation of Sentencing
Commission policy. He also contends that requiring him to cooperate in any
removal proceeding is contrary to the plea agreement’s assurance that removal
would be subject to a separate proceeding and that the district court thus
violated the immigration court’s “ability to hear Mr. Qu’s speech,” which raises
both statutory and constitutional issues.
      Qu does not dispute that he entered into the plea and waiver knowingly
and voluntarily. See United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005)
(“A defendant may waive his statutory right to appeal his sentence if the
waiver is knowing and voluntary.”).     Instead, he attempts to fit his appeal
within the exempted portion of his appellate waiver by arguing that the
condition requiring him to cooperate in any removal proceedings exceeded the
statutory limits on supervised release conditions.
      Terms of supervised release are a part of a sentence. See United States
v. Higgins, 739 F.3d 733, 738 (5th Cir. 2014) (“[T]he term ‘sentence’
unambiguously includes [supervised release] and its conditions as a matter of
law.”); see also Bond, 414 F.3d at 544 (considering “whether the waiver applies
to the circumstances at hand, based on the plain language of the agreement”
to determine whether an appeal is barred by a waiver). Like other aspects of
a sentence, a defendant thus can waive appellate review of the conditions of
supervised release. See, e.g., Higgins, 739 F.3d at 739 (finding appellate waiver
barred appeal of condition of supervised release); United States v. Lamprecht,
232 F.3d 207, *1 n.5 (5th Cir. 2000) (finding unconvincing defendant’s
argument that appeal waiver did not cover special conditions of supervised
release because supervised release is considered part of the sentence itself
(quoting United States v. Benbrook, 119 F.3d 338, 341 n.10 (5th Cir. 1997)).
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We may thus review Qu’s supervised release condition requiring cooperation
in immigration proceedings only if falls within the exception for a sentence
imposed “in excess of the statutory maximum.” See Higgins, 739 F.3d at 739.
       That the term “statutory maximum” generally denotes a period of time
seems obvious. See United States v. Ferguson, 669 F.3d 756, 766 (6th Cir. 2012)
(“The statutory maximum punishment referred to in the plea agreement is
most naturally construed to mean the maximum sentence per count.”); see also,
e.g., United States v. Cortez, 413 F.3d 502, 503 (5th Cir. 2005) (providing that
“the exception for a sentence imposed above the statutory maximum shall be
afforded its natural and ordinary meaning of ‘the upper limit of punishment
that Congress has legislatively specified for violations of a statute,’” and that
a 63-month sentence was below the ten-year statutory maximum (internal
citation omitted)); Bond, 414 F.3d at 543 (“[P]ost-Booker ‘statutory maximum’
assumes its ordinary definition of the maximum term of imprisonment
authorized by the statute of conviction for purposes of the plea agreement.”).
“Maximum,” or its counterpart “minimum,” generally refers to something that
can    be   quantified.      See,   e.g., Maximum, Merriam-Webster          Online,
http://www.merriam-webster.com/dictionary/maximum (last visited June 24,
2015) (defining “maximum” as “the high number or amount that is possible or
allowed” (emphasis added)).
       The waiver exception would thus allow Qu to appeal if the district court
had sentenced him beyond the five year statutory maximum for his sentence
or the three year statutory maximum for his term of supervised release. See
18 U.S.C. § 371 (sentence up to five years); 18 U.S.C. § 3583(b)(2) (supervised
release up to three years). It did neither.
       The condition of supervised release that Qu seeks to challenge, even if it
is an unreasonable one, does not exceed a “statutory maximum.” See Ferguson,
669 F.3d at 766 (rejecting challenge to special condition of supervised release
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                                No. 14-30907
that defendant claimed constituted a sentence exceeding statutory minimum
because it required a “strained construction” of appellate waiver and neither
sentence nor supervised release exceeded statutory maximum or Guidelines
range); United States v. Stevenson, 281 F. App’x 85, 86 (3d Cir. 2008) (finding
that appeal of condition requiring defendant to submit to search of place of
business was barred by waiver of appeal because challenged condition did not
exceed statutory maximum); United States v. Hartshorn, 163 F. App’x 325, 330
(5th Cir. 2006) (holding that retroactively applying new version of DNA Act
authorizing collection of defendant’s DNA as a condition of supervised release
did not constitute “a sentence in excess of the statutory maximum”).
      Appellate waivers foreclose challenges to many aspects of a sentence that
may be unlawful, such as improper application of sentencing enhancements or
substantively unreasonable sentences. See, e.g., United States v. Rodriguez-
Estrada, 741 F.3d 648, 649 (5th Cir. 2014) (dismissing appeal challenging
district court’s imposition of 16-level enhancement as barred by plea waiver of
appeal); United States v. Garza, 571 F. App’x 302, 302–03 (5th Cir. 2014)
(same); United States v. Ramirez, 575 F. App’x 398, *1 (5th Cir. 2014) (finding
that enforceable appeal waiver barred appeal of sentence based on its
substantive unreasonableness). So long as those errors do not exceed the
statutory maximum, a waiver like the one Qu entered into precludes appellate
review. See Higgins, 739 F.3d at 739. Challenging the reasonableness of a
supervised release condition is no different. We therefore conclude that the
issue Qu raises is not one challenging “a sentence imposed in excess of the
statutory maximum.” See Ferguson, 669 F.3d at 766 (rejecting defendant’s
argument that a condition of supervised release constituted a sentence
exceeding the statutory maximum because allowing that sort of challenge
under a similar appeal waiver “would potentially render waivers meaningless”


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                                 No. 14-30907
(internal citations omitted)). The knowing and voluntary appellate waiver
thus precludes our review.
      We nonetheless note that Qu’s appeal would not succeed even if we
reached its merits. Because he did not object at the sentencing hearing, our
review is limited to plain error. He thus must show, among other things, that
the district court’s error was clear or obvious. See United States v. Vonn, 535
U.S. 55, 59 (2002) (holding that a defendant who fails to object to an error at a
plea colloquy hearing must satisfy the plain error rule); Puckett v. United
States, 556 U.S. 129, 135 (2009) (delineating the plain error standard
(paraphrasing United States v. Olano, 507 U.S. 725 (1993)).
      Without deciding whether the district court made any error in imposing
the cooperation condition, we can easily conclude that any assumed error was
not plain or obvious.    A district court may impose special conditions of
supervised release when they meet certain criteria. Specifically, the condition
must be reasonably related to (1) the nature and circumstances of the offense
and the history and characteristics of the defendant, (2) the need to afford
adequate deterrence to criminal conduct, (3) the need to protect the public from
further crimes of the defendant, and (4) the need to provide the defendant with
needed [training], medical care, or other correctional treatment in the most
effective manner, 18 U.S.C. § 3553(a)(1)–(2); must involve no greater
deprivation of liberty than is reasonably necessary to provide adequate
deterrence, protection of the public, and provide treatment, id.; and must be
consistent with the Sentencing Commission’s policy statements. See 18 U.S.C.
§ 3583(d).
      Qu contends that the district court’s requirement that he cooperate in
any removal proceedings violated each of these criteria. But he cites no case
law invalidating a similar condition, which makes it difficult for him to show
the district court clearly erred. See United States v. Ramos Ceron, 775 F.3d
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222, 226 (5th Cir. 2014) (finding that a defendant cannot demonstrate clear or
obvious error in the “absence of case law unequivocally supporting” a position
on appeal (citing United States v. Trejo, 610 F.3d 308, 319 (5th Cir. 2010) for
the proposition that a claim is “doomed for plain error” when it is “novel” and
“not entirely clear under the existing case authority”)).     Nor is any error
obvious without recourse to precedent. For one thing, Qu’s characterization of
the condition as one “ordering deportation” is hard to reconcile with the court’s
acknowledgment that any removal proceedings would be “initiated or pending”
by ICE and that Qu might not actually be deported. See ROA.331 (noting that
“should [Qu] not be deported for any reason,” he would be required to serve a
full three-year term of supervised release).         As to the “cooperation”
requirement, that could reasonably be read to mean that he not evade removal
proceedings and that he comply with the result, not that he waive any defenses
he might have in that hearing. All of this convinces us that Qu has not satisfied
his burden of showing plain or obvious error to the extent any error even
occurred.
      Because we find the appeal waiver was knowing and voluntary and that
it precludes Qu’s appeal, his appeal is DISMISSED. See United States v.
Walters, 732 F.3d 489, 490 (5th Cir. 2013).




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