                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4164


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

YOOHO WEON, a/k/a Peter,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Benson Everett Legg, Senior District
Judge. (1:10-cr-00780-BEL-1)


Argued:   May 17, 2013                    Decided:   July 17, 2013


Before KEENAN and FLOYD, Circuit Judges, and Henry E. HUDSON,
United States District Judge for the Eastern District of
Virginia, sitting by designation.


Affirmed by published opinion. Judge Keenan wrote the opinion,
in which Judge Floyd and Judge Hudson joined.


ARGUED: Paula Xinis, MURPHY, FALCON & MURPHY, Baltimore,
Maryland, for Appellant.     Sujit Raman, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.    ON BRIEF:
Kenneth W. Ravenell, Milin Chun, MURPHY, FALCON & MURPHY,
Baltimore, Maryland, for Appellant.    Rod J. Rosenstein, United
States Attorney, Baltimore, Maryland, for Appellee.
BARBARA MILANO KEENAN, Circuit Judge:

       Defendant Yooho Weon pleaded guilty to five counts of tax

evasion, in violation of 26 U.S.C. § 7201, pursuant to a plea

agreement       reached       with    the   government.        The      district       court

sentenced Weon to a prison term of 30 months, a sentence below

Weon’s advisory Sentencing Guidelines (the guidelines) range of

33 to 41 months’ imprisonment.

       On appeal, Weon argues that the sentence imposed by the

district        court     was        both    procedurally         and     substantively

unreasonable.           Weon contends that the actual tax revenue loss

caused     by    his     failure       to   pay    corporate      income       taxes     was

significantly less than the amount stated in the parties’ plea

agreement, and that the court erred in refusing to consider this

alleged    discrepancy         at     his   sentencing.      Upon       our   review,     we

conclude that the district court did not err in holding that

Weon   was      bound    by    the    tax   revenue   loss     figure     to    which     he

stipulated in the plea agreement, and that the court did not

commit    procedural          or     substantive    error    in    sentencing          Weon.

Accordingly, we affirm the district court’s judgment.



                                             I.

       Weon owned and operated Parkway Pawn Shop, Inc. (Parkway),

located in Bladensburg, Maryland, and an internet-based business

known as Earth 1 Computer, Inc. (Earth 1).                     Weon operated these

                                              2
companies     as    a    single     business   enterprise,    maintaining    their

books and records as one entity.

       The government filed a criminal information charging Weon

with five counts of willfully evading corporate income taxes,

alleging that Weon failed to file a corporate income tax return

for Parkway and Earth 1 for the calendar years 2004 through

2008.     Weon waived indictment and entered into a written plea

agreement in which he admitted all the charges and agreed to

plead guilty to them.

       In the plea agreement, the parties stipulated that “for

purposes of this plea agreement and sentencing, the total tax

loss    is   approximately          $2,400,000.”       (Emphasis   added.)    The

$2,400,000 figure represented a compromise amount determined by

the parties.        The government initially maintained that the tax

revenue loss was more than $2,500,000, which would have resulted

in a greater offense level under the guidelines.                   Weon, however,

claimed      that       the   tax    revenue    loss    was   much   lower   than

$2,400,000.        Significantly, during this plea bargaining process,

Weon received advice from a certified public accountant (CPA) he

had hired to evaluate the amount of the loss before entering

into the plea agreement.

       In addition to the government’s agreement to forego any

argument that the tax revenue loss exceeded $2,500,000, Weon

obtained other significant benefits by entering into the plea

                                           3
agreement.       The   government      stipulated      in   the   agreement         that

Weon’s   base    offense    level   under     the   guidelines          was   22,   and

agreed not to oppose a two-level reduction in the offense level

based on Weon’s acceptance of responsibility.                      The government

also agreed to file a motion under U.S.S.G. § 3E1.1(b) for an

additional one-level reduction in his offense level, lowering

the adjusted offense level to 19, based on certain conditions

including that Weon would not attempt to withdraw his guilty

plea.

     By pleading guilty, Weon avoided being charged with the

additional felony offenses of transporting stolen property and

of participating in a money laundering conspiracy, offenses for

which several other owners and employees of Baltimore-area pawn

shops had been prosecuted.          As a result of his plea, Weon also

avoided being charged by Maryland state authorities with the

felony offense of engaging in the trafficking of stolen goods.

     The district court held a hearing pursuant to Rule 11 of

the Federal Rules of Criminal Procedure (the Rule 11 hearing),

during which the court determined that Weon’s guilty plea was

entered knowingly and voluntarily.              The parties represented at

the Rule 11 hearing that the amount of tax revenue loss “we have

agreed   to     regarding    this   plea      agreement     and    sentencing        is

approximately     $2.4     million,”    but    noted    that      the    figure     was

subject to change for restitution purposes only depending on the

                                         4
result of an anticipated civil agreement between Weon and the

Internal Revenue Service (IRS).                      In response to the district

court’s questions, Weon further confirmed under oath that he had

reviewed the factual stipulations in the plea agreement, that he

did not wish to change any aspect of those stipulated facts,

that those facts were true and correct, and that the government

could prove those facts had Weon’s case proceeded to trial.

        After the Rule 11 hearing, Weon obtained a postponement of

his sentencing hearing for a period of more than six months.

Two     weeks       before     the   rescheduled            hearing,       Weon    informed

government counsel that Weon only recently had learned that the

amount of tax revenue loss was actually around $40,000, rather

than    the    $2,400,000      figure     to       which    the   parties     earlier      had

stipulated.           Among     other     reasons          offered    to     explain      this

discrepancy,         Weon     contended     that      Parkway        and   Earth     1    were

separate businesses, rather than the single entity described in

the parties’ plea agreement.

       Weon advanced this argument in his sentencing memorandum

filed    with       the   district    court.          The    court     issued      an    order

further delaying the sentencing hearing, and directed Weon to

produce       the    report     of   Jeffrey        Barsky,       Weon’s     new   forensic

accountant.           The    court   also      ordered       that     Weon    make       Barsky

available for a deposition before the sentencing hearing.



                                               5
      Two   weeks    later,   the     district     court   held   that    Weon    was

bound by his stipulation in the plea agreement concerning the

tax revenue loss, for purposes of both his advisory guidelines

range and the court’s consideration of the sentencing factors in

18 U.S.C. § 3553(a).          In reaching this conclusion, the district

court observed that Weon had represented under oath during the

Rule 11 hearing that the statements in the plea agreement were

correct.    Accordingly, the court prohibited Weon’s counsel from

arguing during the sentencing hearing that the tax revenue loss

was materially less than $2,400,000, including for purposes of

the § 3553(a) factors.          Nevertheless, the court stated that it

would permit Weon to move to withdraw his plea at a later date

if he could demonstrate that the discrepancy in the revenue loss

calculations resulted from a “mistaken assumption of facts.”

      In response, Weon filed a motion seeking to withdraw his

guilty plea in which he argued, among other things, that the

plea was not knowing and voluntary because he entered it under

the   mistaken      belief    that    the    tax    revenue   loss       figure    of

$2,400,000 was accurate.         Weon further argued that the recently

completed “full defense forensic accounting analysis” conducted

by Barsky established that the tax revenue loss was “in the

$40,000 range.”

      The government opposed Weon’s motion to withdraw, arguing

that Weon    had    entered    into    the   plea    agreement    knowingly       and

                                         6
voluntarily.      The government also disputed Barsky’s analysis on

its merits, offering an affidavit from Bradley Whites, a former

IRS special agent with over 20 years’ experience.

      The district court held a hearing on Weon’s motion during

which the court heard argument and considered the evidence of

record,    including     Whites’    affidavit       and    Barsky’s       report   and

deposition testimony.        At the conclusion of the hearing, the

court denied Weon’s motion, stating that Weon had entered his

guilty plea voluntarily.

      In denying the motion, the district court further observed

that Weon had stipulated in the plea agreement to a tax revenue

loss of $2,400,000 after receiving advice from a CPA, despite

Weon’s    disagreement    concerning         that   amount.         The   court    also

stated that it found Barsky’s report and testimony concerning

the purported lower loss figure “highly unpersuasive and riddled

with holes.”      Finally, the court concluded that Weon’s request

to   withdraw   from   the   plea   agreement        was     “tactical     [and]   not

based upon an honest mistake,” and that allowing him to withdraw

would result in prejudice to the government.

      Following    its    ruling    on       the    motion     to    withdraw,     the

district court conducted Weon’s sentencing hearing.                          At that

time, the government declined to file a motion for an additional

one-level decrease in offense level because Weon had sought to

withdraw his guilty plea.

                                         7
       The    district        court      otherwise     adopted       the       presentence

report,      which     incorporated         the    stipulations           in        the    plea

agreement that the base offense level was 22, and that Weon was

entitled       to      a     two-level       reduction         for    acceptance            of

responsibility.            The court found that Weon’s guidelines range

was 33 to 41 months’ imprisonment based on an adjusted offense

level of 20 and a criminal history category of I.                          Nevertheless,

the court stated that it would base its sentence on an adjusted

offense      level    of     19   as    contemplated    in     the   plea       agreement,

resulting      in      a     guidelines      range     of      30    to        37     months’

imprisonment.

       The district court considered the sentencing factors set

forth in § 3553(a) but, based on its earlier ruling, refused to

consider any evidence or argument that the tax revenue loss was

materially     lower       than    $2,400,000.        After     receiving           testimony

from    Weon’s       other    witnesses      and     hearing    argument            from   the

parties, the court imposed concurrent sentences of 30 months’

imprisonment on each of the five counts, a sentence below the

guidelines range found by the court and at the bottom of the

range applicable to an adjusted offense level of 19.                                The court

declined to impose a more lenient sentence in view of Weon’s

previous      conviction          for    selling      about     $46,000         worth       of

counterfeit computer accessories to an undercover FBI agent, as



                                             8
well as the seriousness of Weon’s present offenses.                     Weon timely

filed a notice of appeal.



                                        II.

       Initially, we address the government’s argument that Weon

waived his right to appeal under the terms of the appellate

waiver provision in the plea agreement.                That provision stated,

in relevant part, that the parties agreed to waive all rights to

appeal the sentence imposed by the district court, but that Weon

“reserve[d]   the    right     to    appeal    from   any    sentence       above   the

advisory    guidelines    range        resulting      from    an   adjusted         base

offense level of 19.”         (Emphasis added.)

       A defendant’s waiver of his right to appeal a conviction or

sentence is valid and enforceable if such waiver was knowingly

and intelligently made.             United States v. Blick, 408 F.3d 162,

168-71 (4th Cir. 2005).              In determining whether an appellate

waiver provision bars consideration of the issues raised in a

particular appeal, we interpret the terms of the parties’ plea

agreement in accordance with traditional principles of contract

law.    United States v. Davis, 714 F.3d 809, 814 (4th Cir. 2013);

United States v. Harvey, 791 F.2d 294, 300 (4th Cir. 1986).

Because appellate waiver provisions usually are drafted by the

government, and because such provisions implicate a defendant’s

constitutional      rights,    we    hold     the   government     to   a    “greater

                                         9
degree     of     responsibility”            for        any    ambiguities               than     the

defendant,       or    even    than        the    drafter      of     a    provision            of   a

commercial       contract.           Davis,       714    F.3d    at       814-15         (citation

omitted);       Harvey,     791     F.2d    at    300-01.        Accordingly,             we    will

enforce an appellate waiver provision against a defendant only

if that provision is clearly and unambiguously applicable to the

issues raised by the defendant on appeal.

       In the present case, we conclude that the language of the

appellate       waiver      provision       cannot      be    termed       unambiguous           when

considered in the context of the district court’s finding that

the adjusted base offense level was 20 rather than 19.                                    Based on

the waiver provision’s explicit reservation of Weon’s right to

appeal from any sentence above the “advisory guidelines range

resulting from an adjusted base offense level of 19,” Weon has a

colorable argument that the provision is ambiguous as applied to

him.     Given        the    heightened          standard      that       we    apply      to    the

interpretation of an appellate waiver provision entered into by

a criminal defendant, we will not construe the waiver provision

as barring Weon’s present appeal.

       Turning to the merits of this case, we next consider Weon’s

challenges         regarding          the         procedural              and        substantive

reasonableness         of     his    sentence.            We    first          address      Weon’s

argument    that      the     district      court’s       imposition            of   a    30-month

sentence was procedurally unreasonable.                         Weon asserts that the

                                                 10
district      court    was     required        in    its    consideration        of    the    §

3553(a) factors to consider Weon’s proffered evidence that the

tax    revenue      loss     amount       of   $2,400,000         was   incorrect.           We

disagree with Weon’s argument.

       We   review     a     district     court’s        imposition     of   a   sentence,

“whether      inside,      just     outside,        or    significantly      outside       the

Guidelines       range[,]       under      a    deferential        abuse-of-discretion

standard.”       Gall v. United States, 552 U.S. 38, 41 (2007).                              In

considering a challenge to the procedural reasonableness of a

sentence,      we     must    assess,       among        other    things,    whether       the

district court considered the 18 U.S.C. § 3553(a) factors and

analyzed the arguments presented by the parties.                         Id. at 46-47.

       In interpreting the terms of a plea agreement in conformity

with   principles       of    general      contract        law,    we   apply    the      plain

meaning of the agreement’s terms with the goal of providing each

party the benefit of its bargain.                    United States v. Jordan, 509

F.3d 191, 195 (4th Cir. 2007).                  When a term in a plea agreement

is unambiguous, neither party will be permitted “unilaterally to

renege or seek modification simply because of uninduced mistake

or change of mind.”           Harvey, 791 F.2d at 300.

       The decisions of our sister circuits are in accord with

this   view    that,       absent     a   successful        withdrawal       from     a    plea

agreement or other very exceptional circumstances, a defendant

remains bound by the factual stipulations in his plea agreement

                                               11
once the plea has been accepted by the district court.                                     See,

e.g., United States v. Teeter, 257 F.3d 14, 28 (1st Cir. 2001)

(a    court’s    acceptance        of    a    factual      stipulation         in    a     plea

agreement     “firm[ly]”      binds      the       parties    to   that    stipulation,

because “the defendant knows what she has done, and has little

cause   for     complaint     if   the       district      court   takes       her    at    her

word”); United States v. Granik, 386 F.3d 404, 411-13 (2d Cir.

2004) (discussed below); United States v. Williams, 510 F.3d

416, 422 (3d Cir. 2007) (“When a defendant stipulates to a point

in a plea agreement, he ‘is not in a position to make . . .

arguments       [to    the    contrary].’”)              (alteration      in        original)

(citation omitted); United States v. Porretta, 116 F.3d 296, 301

(7th Cir. 1997) (“Absent any compelling basis for disregarding

the [plea agreement] admissions, they must stand.”).

       We   observe    that    the      Second      Circuit    addressed        a     similar

issue in United States v. Granik, in which the defendant sought

to avoid at sentencing the consequences of his plea stipulation

of a certain loss amount resulting from his criminal activity.

386 F.3d at 410-14.           In rejecting the defendant’s argument that

the   loss    amount    was    less      than      the    amount   to     which       he   had

stipulated earlier, the court stated that “a stipulation as to

the amount of loss in a plea agreement that is knowing and

voluntary will generally govern the resolution of that issue,”

and will bind the parties from contesting the substance of that

                                              12
stipulation.           Id.   at     411-12.          The       Second        Circuit    further

explained      that    factual        stipulations         in    plea        agreements      “are

bargaining chips in the hands of defendants,” and that “[i]f

defendants are not held to their factual stipulations . . . the

government has no reason to make concessions in exchange for

them.”    Id. at 412-13.

       Here, we have little difficulty in concluding that Weon’s

attempts to argue that the tax revenue loss was materially less

than $2,400,000 constituted a “unilateral reneging” on the basis

of “uninduced mistake or change of mind,” Harvey, 791 F.2d at

300,     and    that     the      district         court        was     well     within       its

discretionary         authority       to      hold      Weon     to     the     loss        amount

stipulated      in     the     plea     agreement.              Weon’s       plea    agreement

expressly provided that “for purposes of this plea agreement and

sentencing,     the     total     tax      loss    is     approximately          $2,400,000.”

(Emphasis added.)            Moreover, we observe that Weon stated under

oath during the Rule 11 hearing that the factual stipulations in

the    agreement      were     true     and    correct.           Thus,        those    factual

stipulations remained binding in the absence of any demonstrated

exceptional circumstances.              See Fields v. Att’y Gen. of Md., 956

F.2d 1290, 1299 (4th Cir. 1992) (defendants are generally bound

to    representations        made      under       oath    during        a    Rule     11    plea

colloquy).



                                              13
      Contrary to Weon’s argument, the plea agreement stipulation

setting the tax revenue loss at around $2,400,000 applies under

its plain terms for purposes of “sentencing.”                    The stipulation

thus encompasses the amount of tax revenue loss both for the

district court’s calculation of Weon’s guidelines range and for

the court’s consideration of the sentencing factors set forth in

§ 3553(a).        Accordingly, to the extent that the court refused to

consider Weon’s argument about the amount of tax revenue loss

for purposes of § 3553(a), that result clearly was contemplated

by the parties and formed part of their bargain as reflected in

the plea agreement.

      Weon argues, nevertheless, that the plea agreement allowed

him to contest the tax revenue loss amount for purposes of §

3553(a).      In making this contention, Weon relies on provisions

of the plea agreement that as a general matter: (1) permit him

“to   seek    a    reduction    in    sentence    under   any    Section   3553(a)

factor”; and (2) reserve to the parties the right to bring to

the district court’s attention during sentencing “all relevant

information        concerning      [Weon’s]      background,     character,     and

conduct.”     We are not persuaded by this argument.

      The provisions of the plea agreement on which Weon relies

are   broad       and   general,     and   do   not   relate    directly   to   the

stipulated tax revenue loss.               In contrast, the plea agreement

explicitly provides that the tax revenue loss is approximately

                                           14
$2,400,000 for purposes of both the plea agreement and Weon’s

sentencing.         To the extent that there is any conflict between

the    very      general     provisions     recited        above       and    the   explicit

stipulation regarding the tax revenue loss, we apply under basic

contract law principles the more specific provision fixing the

amount of the tax revenue loss.                  See PCS Nitrogen Inc. v. Ashley

II    of       Charleston    LLC,    714    F.3d     161,       174    (4th    Cir.       2013)

(citation         omitted)    (the     specific      provisions          of    a    contract

control over potentially conflicting general provisions).

       We further observe that Weon does not challenge on appeal

the district court’s denial of his motion to withdraw from the

plea agreement or the court’s finding that Weon knowingly and

voluntarily entered into the agreement, including the factual

stipulations contained therein.                    We note that Weon would have

faced      a    formidable    challenge      had    he    raised       such    an   argument

before us, because he contested the amount of tax revenue loss

with    the      assistance     of    counsel      and     a    CPA    during       the    plea

bargaining process before ultimately agreeing to the $2,400,000

figure.           Moreover,     we     observe      that       the     district       court’s

repudiation         of      Barsky’s       tax     loss        analysis        as     “highly

unpersuasive         and    riddled     with     holes”        would    be    entitled      to

significant deference on appeal.                    See United States v. Chase,

466 F.3d 310, 314 (4th Cir. 2006) (district court’s findings of

fact reviewed for clear error).

                                            15
      Accordingly, we hold that the district court did not abuse

its discretion in prohibiting Weon from arguing that the tax

revenue loss was materially lower than $2,400,000, because Weon

knowingly and voluntarily stipulated to that amount in his plea

agreement.       Thus, we reject Weon’s argument that the district

court      committed           procedural        error     in     its         sentencing

determination.

     Finally,      we        address   Weon’s     argument      that    the    30-month

sentence imposed by the district court, which was below Weon’s

guidelines range, was substantively unreasonable.                       In analyzing

a   sentence      for    substantive      reasonableness,         we    consider    the

sentence     under       a     deferential       abuse-of-discretion           standard,

whereby we “must defer to the trial court and can reverse a

sentence only if it is unreasonable, even if the sentence would

not have been the choice of the appellate court.”                       United States

v. Evans, 526 F.3d 155, 160 (4th Cir. 2008) (emphasis omitted).

We apply a presumption of reasonableness to a sentence within or

below a properly calculated guidelines range.                     United States v.

Susi, 674 F.3d 278, 289 (4th Cir. 2012).

     As    the     district       court     observed     during    the        sentencing

hearing, Weon previously had been convicted of selling to an

undercover FBI agent counterfeit computer accessories having a

retail    value     of       around    $46,700.      The     district     court     also

discussed the seriousness of Weon’s present tax offenses, noting

                                            16
that this was not a case in which there were unreported “small

shaving[s],” but rather that “millions and millions of dollars

of income were not reported to the [IRS].”              After reviewing the

record   and   the   parties’   arguments,     we     conclude   that   Weon’s

below-guidelines     sentence   of    30    months’    imprisonment     is   not

substantively unreasonable.



                                     III.

     For these reasons, we affirm the district court’s judgment.



                                                                      AFFIRMED




                                      17
