                                                                           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                           NOT FOR PUBLICATION                             AUG 09 2013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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