UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4047
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SUNHYE BAE, a/k/a Sue Y. Bae, a/k/a Mrs. Kim, a/k/a Sunyong Bae,
Defendant - Appellant.
No. 08-4048
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JI WON KIM, a/k/a Raymond Kim, a/k/a Ji W. Kim,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:06-cr-00512-GBL-1; 1:06-cr-00512-GBL-2)
Submitted: June 18, 2008 Decided: August 5, 2008
Before NIEMEYER and DUNCAN, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Marvin D. Miller, Heather Golias, LAW OFFICES OF MARVIN D. MILLER,
Alexandria, Virginia; Joseph J. McCarthy, DELANEY, MCCARTHY &
COLTON, P.C., Alexandria Virginia, for Appellants. Chuck
Rosenberg, United States Attorney, G. Derek Andreson, Michael E.
Rich, Assistant United States Attorneys, Shana Wallace, Special
Assistant United States Attorney, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
These appeals arise out of Ji Won Kim’s conviction after
a guilty plea and 120-month sentence for bank fraud, in violation
of 18 U.S.C. § 1344 (2000), and Sunhye Bae’s conviction after a
guilty plea and 100-month sentence for interstate transportation of
stolen property, in violation of 18 U.S.C. § 2314 (2000). Counsel
for Appellants filed a consolidated brief in which they essentially
challenge the reasonableness of their sentences and ask this court
to remand for resentencing. The Government asserts that the
appeals are barred by the appellate waivers contained in
Appellants’ respective plea agreements. For the reasons that
follow, we dismiss the appeals.
Kim’s sole challenge on appeal is that the Government
breached his plea agreement when it introduced his polygraph
examination results to establish that he breached his plea
agreement, thereby convincing the district court to deprive him of
credit for acceptance of responsibility and increase his Guidelines
range for obstruction of justice. Because there was nothing in
Kim’s plea agreement that prevented the Government from presenting
his polygraph examination failure at sentencing, the Government did
not breach his plea agreement. Accordingly, Kim’s appeal is barred
by the appellate waiver contained in his plea agreement. See
United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005).
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Bae also asserts only that her departure sentence is
unreasonable because, according to Bae, the district court abused
its discretion when it departed upward due to Bae’s inability to
secure the return of money she secreted in South Korea. We agree
with the Government that Bae’s appeal is barred by her appellate
waiver. See id. Although Bae summarily asserts that her attorney
was ineffective because he failed to preserve her right to appeal
from an upward departure, ineffective assistance of counsel claims
are not generally cognizable on direct appeal unless ineffective
assistance “conclusively appears” on the record. See United
States v. James, 337 F.3d 387, 391 (4th Cir. 2003). We find that
it does not “conclusively appear” on the record that counsel was
ineffective for failing to preserve Bae’s right to appeal from an
upward departure at sentencing.
Accordingly, we dismiss the appeals. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
DISMISSED
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