UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5033
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BUM GU KIM, a/k/a Jack,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:07-cr-00395-CCB-2)
Submitted: February 10, 2011 Decided: February 16, 2011
Before WILKINSON and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
David W. Lease, SMITH, LEASE AND GOLDSTEIN, LLC, Rockville,
Maryland, for Appellant. James Thomas Wallner, Assistant United
States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bum Gu Kim appeals from his convictions and 120-month
sentence imposed after pleading guilty to one count of
conspiracy to distribute and possess MDMA, also known as
Ecstasy, and one count of conspiracy to launder money. Kim’s
attorney has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), stating that there are no
meritorious issues for appeal but raising the issues of whether
Kim’s guilty plea was voluntary, whether trial counsel was
ineffective by advising Kim to plead guilty, whether the
district court properly determined the quantity of drugs
attributable to Kim, and whether the sentence should be vacated
because the plea agreement provided that the Government would
move for a third level of reduction for acceptance of
responsibility and it failed to do so. Kim has filed a pro se
supplemental brief. The Government elected not to file a brief.
Finding no error, we affirm.
Kim argues that his guilty plea may have been
involuntary because, at one point during the Fed. R. Crim. P. 11
hearing, he stated that he did not entirely agree with the
stipulated drug amount. How the Government determined the
amount was explained to Kim and he affirmed that he understood
reasonable foreseeability related to the conspiracy. A guilty
plea is constitutionally valid if it “represents a voluntary and
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intelligent choice among the alternative courses of action open
to the defendant.” North Carolina v. Alford, 400 U.S. 25, 31
(1970). This court evaluates a guilty plea based on the “the
totality of the circumstances” surrounding the guilty plea.
United States v. Moussaoui, 591 F.3d 263, 278 (4th Cir 2010).
Kim did not move to withdraw his guilty plea and this court
therefore reviews the adequacy of the plea pursuant to Fed. R.
Crim. P. 11 for plain error. See United States v. Vonn,
535 U.S. 55, 58-59 (2002) (holding defendant who lets Rule 11
error pass without objection in the district court must satisfy
the plain-error test); United States v. Massenburg, 564 F.3d
337, 342 (4th Cir. 2009). The court properly conducted the Rule
11 hearing and the record reveals that Kim’s plea was knowing
and voluntary. There is no ineffective assistance of counsel
conclusively appearing on the record, thus Kim’s issue related
to ineffective assistance related to the plea is not ripe for
review. See United States v. King, 119 F.3d 290, 295 (4th Cir.
1997) (claims of ineffective assistance of counsel generally are
not cognizable on direct appeal).
Kim contends that the Government failed to meet its
burden of proof in establishing the amount of MDMA attributable
to him. We review the district court’s calculation of the
quantity of drugs attributable to a defendant for sentencing
purposes for clear error. United States v. Randall, 171 F.3d
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195, 210 (4th Cir. 1999). Kim’s claim is without support. The
quantity was properly based on seized drugs, telephone
intercepts discussing distribution transactions, and ledgers
found in Kim’s home detailing sales. Accordingly, Kim has
failed to show clear error by the district court.
Finally, the sentence need not be vacated because the
Government did not move for a third level of reduction for
acceptance of responsibility. Although the plea agreement
stated that the Government would recommend a third point, it was
not required to do so if Kim failed to admit all stipulated
facts, gave conflicting statements about the offense, or denied
involvement in the offense as charged. The Government was not
bound to move for the third point because Kim requested and was
granted a hearing on drug quantity after he stipulated to an
amount in the plea agreement and at the guilty plea hearing. At
the quantity hearing he challenged whether he was involved with
the quantity of MDMA to which he pleaded guilty.
Kim filed a pro se supplemental brief challenging the
decisions the district court made at the quantity hearing
regarding wire taps, prosecutorial misconduct, and drug
quantity, that he was improperly being held responsible for the
actions of others in the conspiracy, and raising the
Government’s failure to move for a third level of reduction for
acceptance of responsibility. In accordance with Anders, we
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have reviewed these issues and the record in this case and have
found no meritorious issues for appeal. We therefore affirm
Kim’s convictions and sentence. This court requires that
counsel inform Kim, in writing, of the right to petition the
Supreme Court of the United States for further review. If Kim
requests that a petition be filed, but counsel believes that
such a petition would be frivolous, then counsel may move in
this court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on Kim. 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.
AFFIRMED
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