Case: 14-10969 Document: 00513292075 Page: 1 Date Filed: 12/02/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 2, 2015
No. 14-10969
Lyle W. Cayce
Summary Calendar
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
HONG JAE KIM,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:13-CR-50-1
Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Hong Jae Kim pleaded guilty to conspiracy to engage in monetary
transactions in property derived from specified unlawful activity, in violation
of 18 U.S.C. §§ 1956(h) and 1957. Kim was sentenced, inter alia, to 120 months’
imprisonment. He contends, for the first time on appeal: his guilty plea was
unknowing because he did not understand the factual resume, and counsel
failed to inform him of the immigration consequences of his conviction; his
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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No. 14-10969
appeal waiver is invalid because he was forced to waive his right to appeal in
order to receive a reduction for acceptance of responsibility, and counsel failed
to inform him of the immigration consequences of his conviction; and, the
Government made direct use of proffer information in violation of Sentencing
Guideline § 1B1.8 (limiting what self-incriminating information can be used to
determine a Guidelines sentencing range).
Because Kim did not raise these issues in district court, review is only
for plain error. E.g., United States v. Broussard, 669 F.3d 537, 546 (5th Cir.
2012). Under that standard, Kim must show a forfeited plain (clear or obvious)
error affecting his substantial rights. Puckett v. United States, 556 U.S. 129,
135 (2009). If he does so, we have the discretion to correct the error, but should
do so only if it seriously affects the fairness, integrity, or public reputation of
the proceedings. Id.
Kim fails to demonstrate the court committed a clear-or-obvious error by
accepting his guilty plea as knowing. At his rearraignment, Kim
acknowledged: he understood, signed, and read the factual resume outlining
his conduct; the facts provided in the resume were true and correct; and, he
had discussed them with his attorney. He also stated that he understood he
could be sentenced to a term of up to ten years’ imprisonment and a fine not to
exceed $250,000.
Kim’s sworn statements at rearraignment “carry a strong presumption
of verity”. Blackledge v. Allison, 431 U.S. 63, 74 (1977). Nothing about the
circumstances surrounding the plea indicate he lacked “a full understanding
of what the plea connote[d] and of its consequence”. Boykin v. Alabama, 395
U.S. 238, 244 (1969); see also United States v. Rivera, 898 F.2d 442, 447 (5th
Cir. 1990) (defendant aware of plea’s consequences when he understood length
of time he may receive). Kim’s post-rearraignment statements that he did not
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No. 14-10969
understand the factual resume were uncorroborated and inconsistent with
these sworn statements.
Kim’s contentions regarding Padilla v. Kentucky, 559 U.S. 356 (2010)
(holding counsel must inform client of deportation consequences of guilty plea),
suffer from several flaws. First, as Kim does not explain why Padilla applies
to the facts of his case, his assertions are arguably waived by virtue of
inadequate briefing. See United States v. Reagan, 596 F.3d 251, 254–55 (5th
Cir. 2010). Second, at rearraignment, the court asked if Kim and his attorney
discussed the plea’s impact upon Kim’s legal status; Kim answered “Yes”.
Finally, the record is not sufficiently developed to determine whether counsel
rendered ineffective assistance based on Padilla because Kim did not raise that
claim in district court. See United States v. Isgar, 739 F.3d 829, 841 (5th Cir.
2014), cert. denied, 135 S. Ct. 123 (2014).
Kim does not support his assertion that he was forced to waive his right
to appeal in order to receive a reduction for acceptance of responsibility under
Guideline § 3E1.1(b). He fails to demonstrate clear-or-obvious error with
respect to the validity of his appeal waiver. Therefore, his claim that the
Government made direct use of proffer information in violation of § 1B1.8 is
barred by that waiver. See United States v. Story, 439 F.3d 226, 231 (5th Cir.
2006); United States v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994).
AFFIRMED.
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