11-2461-cr 

United States v. Wee 

 

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT 

SUMMARY ORDER 

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY 

ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL 

RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN 

CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE 

EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY 

ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT 

REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals 

for the Second Circuit, held at the Thurgood Marshall United 

States Courthouse, 40 Foley Square, in the City of New York, on 

the 28th day of February, two thousand thirteen. 

PRESENT: DENNY CHIN, 

 CHRISTOPHER F. DRONEY, 

 Circuit Judges, 

 JANE A. RESTANI, 

 Judge.* 

 

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UNITED STATES OF AMERICA, 

 Appellee, 

 

 -v- 11-2461-cr 

 

DAVENG WEE, AKA DAVENG PUI KUI WEE, AKA 

DAVENG K.C. HUANG, AKA PUI KUI WEE, AKA 

KC HUANG DAVENG, AKA DAVENG HUANG, AKA 

KUO-CHANG HUANG, AKA K.C. HUANG, 

 Defendant-Appellant. 

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FOR APPELLEE: Paul M. Krieger, Katherine Polk 

Failla, Assistant United States 

Attorneys, for Preet Bharara, 

United States Attorney for the 

Southern District of New York, New 

York, New York. 

FOR DEFENDANT-APPELLANT: Marjorie M. Smith, Piermont, New 

York. 

 

*

 The Honorable Jane A. Restani, of the United States Court of 

International Trade, sitting by designation. 
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Appeal from the United States District Court for the 

Southern District of New York (Griesa and Crotty, JJ.). 

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the judgment of the district court is AFFIRMED 

IN PART AND VACATED AND REMANDED IN PART. 

Defendant-appellant Daveng Wee appeals from a judgment, 

entered June 6, 2011, after his plea of guilty, convicting him of 

five counts of making false statements, see 18 U.S.C. § 1001, and 

one count of aggravated identity theft, see 18 U.S.C. § 1028A. 

On June 2, 2011, the district court (Griesa, J.) sentenced Wee to 

48 months' imprisonment, two years' supervised release, and $600 

in special assessments. In a separate order entered July 22, 

2011, the district court (Crotty, J.) required Wee to pay $750 in 

restitution to one of the victims. Although Wee's plea agreement 

contained a waiver of his right to appeal a term of imprisonment 

within or below the range of 48 to 54 months, he nonetheless 

filed a notice of appeal. Thereafter, his appellate counsel 

filed a motion to withdraw, pursuant to Anders v. California, 386 

U.S. 738 (1967), concluding that there were no non-frivolous 

arguments to raise on appeal. In light of several challenges Wee 

raised in pro se responses to the Anders motion, two prior panels 

of this court deferred ruling on the motion. Appellate counsel 

eventually withdrew her Anders motion and filed a merits brief on 

what she concluded to be the only non-frivolous argument 

available on appeal. We assume the parties' familiarity with the 

underlying facts, the procedural history of the case, and the 

issues presented for review. 
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In the counseled merits brief, Wee argues that the 

district court did not comply with the procedural requirements of 

18 U.S.C. § 3664 when it ordered restitution without providing 

him an opportunity to challenge the proposed order. Section 3664 

sets forth procedures governing the issuance of restitution 

orders. It provides defendants with the opportunity to object to 

proposed restitution orders, and "[a]ny dispute as to the proper 

amount or type of restitution shall be resolved by the court by 

the preponderance of the evidence." 18 U.S.C. § 3664(e). 

Because the Government agrees that Wee did not have an adequate 

opportunity to review the proposed restitution order and related 

documents before the district court entered the order, we vacate 

the order of restitution and remand for the district court to 

consider Wee's objections. 

In Wee's pro se supplemental briefs, he requests new 

counsel because his appellate counsel allegedly ceased 

communicating with him and allegedly failed to raise several 

arguments on appeal. Wee insists he has meritorious arguments 

that his plea was not knowing and voluntary, his trial counsel 

provided ineffective assistance, and he was in fact innocent 

because he lacked the requisite intent to commit his crimes. In 

her Anders briefs, appellate counsel sets out her reasons for 

concluding these arguments are meritless.

After reviewing Wee's pro se arguments and appellate 

counsel's submissions, we agree that no additional non-frivolous 

issues exist. See United States v. Hsu, 669 F.3d 112, 117-18 (2d 

Cir. 2012) (addressing the merits of pro se supplemental brief). 

Wee's "bald statements that simply contradict what he said at his 
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plea allocution are not sufficient grounds to withdraw [his] 

guilty plea." United States v. Gonzalez, 647 F.3d 41, 56 (2d 

Cir. 2011) (internal quotation marks and citation omitted). 

Moreover, Wee's plea agreement clearly specified that he would 

not appeal a sentence "within or below the Stipulated Guidelines 

Range of 48 to 54 months' imprisonment." While Wee argues that 

his trial counsel did not adequately explain the plea agreement's 

"legal implications or its binding effects," Wee acknowledges in 

his pro se briefs that he read the plea agreement and had the 

opportunity to discuss and raise questions about it with his 

trial counsel. Additionally, he confirmed at the plea hearing 

that he signed the plea agreement voluntarily and understood his 

rights. Although Wee's pro se briefs suggest an argument that he 

was incompetent to plead guilty because he suffers from 

"depression and mental issues," he and his trial counsel attested 

to his competence at the plea hearing. As there are no other 

non-frivolous arguments to raise on appeal, we decline to appoint 

new counsel as it would not serve "the interests of justice." 18 

U.S.C. § 3006A(c). 

We have considered Wee's remaining arguments and find 

them to be without merit. Accordingly, Wee's conviction and 

sentence are AFFIRMED, except that the restitution order is 

VACATED and the case is REMANDED for further proceedings on the 

issue of restitution. 

 FOR THE COURT: 

 Catherine O'Hagan Wolfe, Clerk