                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-3-2008

USA v. Liu
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3401




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008

Recommended Citation
"USA v. Liu" (2008). 2008 Decisions. Paper 165.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/165


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 07-3401


                           UNITED STATES OF AMERICA

                                             v.

                                  CHANG SHAN LIU,

                                               Appellant


                    On Appeal from the United States District Court
                              for the District of New Jersey
                           (D.C. Criminal No. 05-cr-00355-2)
                     District Judge: Honorable Jerome B. Simandle


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  December 2, 2008

           Before: AMBRO, WEIS, and VAN ANTWERPEN, Circuit Judges.

                                (Filed December 3, 2008)




                              OPINION OF THE COURT


VAN ANTWERPEN, Circuit Judge.

      Appellant Chang Shan Liu appeals the District Court’s July 31, 2007 Judgment of

Sentence. After pleading guilty to a charge of conspiring to violate the Racketeer
Influenced and Corrupt Organizations Act (“RICO”), Liu was sentenced to 135 months’

imprisonment and three years of supervised release. Because Liu executed a valid

appellate waiver, we decline to exercise our jurisdiction to hear this appeal.

                                              I.

       Because we write solely for the parties, we will address only those facts necessary

to our opinion.

       On May 10, 2005, a grand jury returned a 58-count indictment against 16

individuals, including Appellant Chang Shan Liu and his wife. The indictment arose out

of an extensive conspiracy involving the illegal importation of counterfeit cigarettes and

Viagra pills from China into the United States. According to the facts adduced at the plea

hearing and contained in the Pre-Sentence Report, Liu and his wife were key players in

the conspiracy and personally made arrangements with undercover law enforcement

agents to import, store, transport, and deliver counterfeit cigarettes and Viagra pills to

other members of the enterprise.

       On December 12, 2006, Liu and the Government entered into a Plea Agreement in

which Liu agreed to plead guilty to the first count of the Indictment, which charged him

with RICO conspiracy. In return, the Government agreed to dismiss the remaining

charges against Liu and all of the charges against Liu’s wife. The agreement also

included a mutual waiver of appeal, under which Liu waived the right to appeal the

District Court’s sentence if it fell “within or below the Guidelines range that results from



                                              2
the agreed total Guidelines offense level of 33.” The District Court ultimately imposed a

sentence of 135 months’ imprisonment, which is at the low end of the Guidelines range of

135 to 168 months.1

                                             II.

       The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. This

Court has appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). See

United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir. 2007) (“[T]his court retains subject

matter jurisdiction over [an] appeal by a defendant who [has] signed an appellate

waiver.”). We review the validity of appellate waivers de novo. See United States v.

Khattak, 273 F.3d 557, 560 (3d Cir. 2001).

       In addressing the validity of an appellate waiver, this Court considers whether the

waiver was knowing and voluntary, whether one of the specific exceptions set forth in the

plea agreement prevents enforcement of the waiver, and whether enforcement of the

waiver would work a “miscarriage of justice.” United States v. Jackson, 523 F.3d 234,

243-44 (3d Cir. 2008); see also Khattak, 273 F.3d at 563 (“Waivers of appeal, if entered

into knowingly and voluntarily, are valid, unless they work a miscarriage of justice.”).

Appellant bears the burden of establishing that the appellate waiver should not be




       1
       This sentencing range corresponds to an Offense Level of 33 and a Criminal
History Category of I.
.


                                             3
enforced. See Khattak, 273 F.3d at 562-63. It is undisputed that the current action does

not fall within one of the specific appellate waiver exceptions set forth in the plea

agreement.

       Liu does not dispute that he knowingly and voluntarily waived his right to appeal

during the guilty plea proceeding. He argues, however, that the waiver was invalidated

by the Government’s failure to object to a statement made by the District Court to Liu at

the end of the sentencing hearing:


              You are hereby advised that you have the right to appeal from
              this sentence[.] . . . If you’re interested in appealing, speak to
              your attorney who will file a Notice of Appeal on your behalf if
              you ask him to do so. . . . If your plea contains a waiver of
              appeal, your attorney can advise you.


Sentencing Hr’g at 73, United States v. Liu, No. 05-cr-00355-2 (D.N.J. July 31, 2007). Neither

the District Court’s statement at sentencing nor the Government’s failure to object to that

statement invalidate the knowing and voluntary nature of Liu’s plea waiver. The

language of the plea agreement is “clear as to its purpose and effect” to bind Liu and the

Government to its provisions. See Gwinnett, 483 F.3d at 203-04. During the plea

hearing, the District Court, after confirming that Liu’s attorney had explained the plea

agreement to him, independently conducted a thorough review of the terms of the plea

agreement, discussing the appellate waiver at some length. Liu informed the District

Court that he fully understood the appellate waiver and its implications. That the District



                                              4
Court later made reference to a general right to appeal does not change the fact that Liu

knowingly and voluntarily waived that right, especially when the court explicitly told Liu

that his attorney would advise him if an appellate waiver applied.

       Having established that Liu’s waiver of appeal was knowing and voluntary, we

must now determine whether this case presents one of the “unusual circumstance[s]”

where enforcement of the waiver would work a “miscarriage of justice.” See Khattak,

273 F.3d at 562; Gwinnett, 483 F.3d at 203. As Liu’s sole argument on appeal–that the

District Court violated his due process rights during sentencing because it discussed his

wife’s misconduct–fails to establish any sentencing error at all, it is clear that

enforcement of the appellate waiver would not work a miscarriage of justice.

       During sentencing, Liu argued that a downward departure was warranted because

he was responsible for the care of his disabled wife. The District Court evaluated this

argument under U.S.S.G. § 5H1.6, which states that “family ties and responsibilities are

not ordinarily relevant in determining whether a departure may be warranted.” The

argument that the District Court, in evaluating whether Liu’s circumstances warranted

such a departure, violated due process when it considered Liu’s wife’s involvement in the

counterfeiting scheme is entirely without merit. See U.S.S.G. § 5H1.6, p.s., comment.

(n.1) ( “In determining whether a departure is warranted under this policy statement, the

court shall consider . . . [t]he involvement in the offense, if any, of members of the

defendant’s family.”).



                                               5
       Because Liu knowingly and voluntarily executed a valid appellate waiver and fails

to establish that its enforcement would work a miscarriage of justice, this Court declines

to exercise its jurisdiction to hear his appeal. We affirm the District Court’s judgment in

all respects.




                                             6
