F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v

.

H A R O L D C. S P E A R , I I I
, M.D.,

Defendant-Appellant

. N o. 12-10124

D.C. No. 1:08-cr-00128- DAE-1

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v

.

H A R O L D C. S P E A R , I I I
, M.D.,

Defendant-Appellant

. N o. 12-10125

D.C. No. 1:07-cr-00299- DAE-1

OPI NI ON

A ppeal from the United States District Court for the District of Hawaii David A. Ez ra, District J udg e, Presiding

Arg ued and Submitted October 8, 2013—Honolulu, Hawaii

F iled J une 5, 2014U N I T E D S T A T E S V

. S P E A R 2

B efore: Alex Koz inski, Chief J udg e, and Ray mond C. F isher and Paul J

. W atford, Circuit J udg e s.

O pinion by

J udg e F isher

SUMMARY *

Crim inal Law

I n an a p peal from a conviction by g uilty p lea to distributing controlled substances o utside the usual course o f professional medical practice and not for a leg itimate medical
purpose, the panel held that the defendant ’ s k n o wing a nd voluntary waiver o f the r ig ht to appeal his sentence did not

ex tend to this appeal of his conviction.

The panel affirmed the conviction for reasons stated in a concurrently

filed memorandum disposition.

COUNSEL

Michael Robert L evine ( a rg ued), L aw O ffice of Michael R. L evine
, P o rtland, Oreg on; Shery l Gordon McCloud, L aw Offices of Shery

l Gordon McCloud, Seattle, Washing ton, for Defendant-Appellant.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. S P E A R 3

Cy nthia W. L ie (arg

ued), Michael David Na m m a r a nd W illiam L

. Shipley
, Office of the U.S. Attorney
, Honolul u , Hawaii, for Plaintiff-Appellee.

OP INION

F I SHER, Circuit J udg e :

Defen d a nt Harold C. Spear, I I I
, M.D., appeals his conviction by g uilty p l e a t o five counts of distributing controlled substances outside the usual course of professional medical practice and not for a leg itimate medical pu rpose. The g overnment arg ues this appeal should be dismissed based

on a provision of the p lea ag reeme nt that limits Spear’s appellate rig hts. W e r eject this arg ument and reach the merits of this appeal b ecause Spear’s knowing and v oluntary w aiver of his rig ht to a

ppeal his sentence did not ex t e n d t o this appeal of his conviction by g uilty plea. 1

BACK G ROUND

Spear was a licensed p hy sician and the owner a nd operator of two family practices i n K auai, Hawaii. I n J u ne 2007, Spear was indicted in the District of Hawaii fo r 20 counts of distributing o x y codone and methadone outside the usual course of professio n a l m e dical practice and not for a leg itimate medical purpose, in viola t ion o f 21 U .S.C. § 841(a)(1) and (b)(1)(C). A two-count criminal information charg ing Spear with d is p en sing hy drocodone outside the usual and customary scope of profe s s i o n a l practice and not

1 W e ad dress th e m er i t s of Sp ear’ s ap p eal in a co n cu rren tly f iled

m em o ran d u m

d isp o s itio n

.U N I T E D S T A T E S V

. S P E A R 4

for a leg itimate m e d ical purpose was later filed ag a inst him in the North e r n Di s trict of Alabama, then transferred to the District of Hawaii.

I n J u ly 2009, Spear and the g o vernment entered a written
p lea ag reement, in which he ag reed to plead g uilty t o f o u r counts of the indictment and one count of the infor m a t i o n, and in which the g o v ernment promi s e d t o dismiss the remaining counts. The ag reement also c ontained this appeal waiver provision:

The defendan t i s a

w are that he has the

r i g ht to appeal the sentence imposed unde r Title 18, United States Code, Section 3742(a). Defenda nt knowing ly waives the rig ht to appeal, except a s indicated in subparagraph “b” below
, any sentence within the max imum provided in the statute(s) of conviction or the

m an n e r i n w h i c h t h a t se n t e n c e wa s determined on any

of the g rounds set forth in Section 3742, or on any g round wh a t e v e r, in

ex c hang e f

or t h e c oncessions made by the prosecution in this plea ag reement.

a. The defendant also w aives h i s rig h t to challeng e his sentence or the manner in which it was determined in any c ollateral a t t ack, including
, but not limited to, a motion broug ht under T i tle 28, United States Code, Section 2255, ex cept that defendant may make such a challeng e (1) as indicated in subparag r aph “b” b e l ow, or (2) based on a claim of ineffect i v e assistance of counsel.U N I T E D S T A T E S V

. S P E A R 5

b. I f the Court imposes a sentence g reater than specified in the g uideline r ang e determined by the Court to b e ap plicable to the defendant, the d ef

endant retains the rig ht
to appeal the portion of his sentence g rea t er than specified in that g uideline rang e and the

manner in which that portion was determined

un d er Section 3742 and to challeng e that portion of his sentence in a collateral attack.

A mag istrate judge r e v iewed this waiver with Spear during his chang e o f plea h earing
, ex plaining that Spear would be “g iving u p [ h i s ] rig ht to appeal o r c halleng e [ his]
sentence u nless it’s outside the g uideline rang e or if it has to do with ineffective assistance of c o u nsel.” A few weeks later, the district c o u r t accepted Spear’s g uilty plea. Spear twice moved to withdraw his g uilty plea, but he w ithdrew his first such motion and the district court denied his second

. Spear

was sentenced to 151 months’ imprisonment, the low end o f the Sentencing Guidelines r ang e, and timely filed this appeal. On appeal, he arg ues that his g uilty ple a l a c ked a sufficient factual basis, that the g overnment breached t h e plea
ag reement and that the district court abused its discretion by deny ing his motion to withdraw his g uilty plea.

STANDARD OF REVIEW

W e review d e novo whet h er a criminal defendant has waived h is rig ht to appeal. S e e U nited States v

. Tercero
, 734 F .3d 979, 981 (9th Cir. 2013).U N I T E D S T A T E S V

. S P E A R 6

D ISCUSSION

A defendant’s wai v e r of appellate rig hts is enforceable

w h e n “(1) the lang u ag e o f the waiver encompasses his r i gh t to a p p e a l on the g rounds raised, and (2) the waiver is knowing ly and voluntarily made.” United States v

. Rahman
, 642 F .3d 1257, 1259 (9th Cir. 2011) (quoting United S t a t e s

v. Jeronimo
, 398 F .3d 1149, 1 153 (9th Cir. 2005), a brogated

on other grounds by United States v. Castillo
, 496 F .3d 947, 957 ( 9th Cir

. 2007) (en b anc)) (internal quotation marks omitted). Spear does n o t challeng e the knowing a nd voluntary nature of h is waiver, b u t arg ues tha t the w aiver
p e r t ained only to a

n appeal from his sentence a nd therefore does n ot encompas s t his appeal f rom his c onviction

. W e ag ree.

The lang uag e of the waiver provision supports Spear’s position. The first sentence refers to Spear’s “rig ht to appeal the sentence imposed,” sig naling that the entire w aiver concerns sentencing

.

Th e second sentence states that Spear waived “ the rig ht
to appeal, ex cept as indicated in subparag raph ‘b’ below, any sentence within the max imum provided in the s t atute(s) o f conviction or the manner in which that sentence was determined on any of the g rounds set forth in [ 18 U.S.C.] Section 3742, or on any g ro u n d whatever.” Althoug h the lang uag e a r gu a bly c ould b e read as waiving “the rig ht to appeal

. . . on any g round whatever,” that is not a sensi ble reading

. Spear did not waive his rig ht to appeal, full stop, but only h is “rig ht to appeal

. . . any sentence wi t h i n t he

max imum provided in the statute(s) of conviction or t he

ma n ner in w hich that sentence was determined.” The two f ollowing prepositional p hrases, “on any of the g rounds s etU N I T E D S T A T E S V

. S P E A R 7

forth in Section 3 742 ” a n d “on any g round w hatever,” describe the bases for potenti a l a p peals of his sentence or of the manner in which that sentence was determined

. That is, “any sentence” and “the m a n n er in which that sentence was determined” d escribe whi c h appeals Spear ag reed to waive, and “on any o f the g rounds set f orth in Section 3742” and “ on any g round whatever” c larify that there were no unlisted

ex c e ptions for particular reasons supporting such appeals.

W e are not convinced by th e g overnment’s c onstruction of t h e second sentence as a waiver o f Spear’s “rig ht to appeal

. . . on any of the g rounds set forth in Section 3742, o r

o n any g round whatever.” This construction, w h i c h
encompasses all appeals not ex plicitly ex cepted, would allow

“ o n any g round w hatever” to o verride all of the provis i o n ’s specific sentencing lang uag e and make most of the provision’s first parag r aph mere surplusag e. I n particul a r, this construction c o mpletely e liminates t he terms “any sentence” an d “the manner in w hich that sentence was determined,” but the g rammatical structure of the sentence a s it was actually drafted does not allow this ex cision. I f the two prepositional phrases were meant to modify Spear’s “rig ht to appeal” g enerally
, then including “any sentence” and “the

manner in which that sentence w as determine d ” a s specific d e s c r i p tions of which appeals were waived would serve no purpose. See United States v

. Hamdi
, 432 F .3d 115, 123–24 (2d Cir. 2005) (apply ing to a plea ag reement the principle o f
contract law p referring an interpretation that does n o t leave

a portion of the contract superfluous); United States v. Brye
, 146 F .3d 1207, 1211 (10th Cir. 1998) (same). W e therefore conclude that the lang uag e of the waiver limits i t s scope to sentencing issues. I ndeed
, t h e Department of J ustice u ses very similar lang uag e as a n ex a mple of a “broad sentencing appeal waiver [ that] r equires the defendant to w aive a ny a ndU N I T E D S T A T E S V

. S P E A R 8

all sentencing issues on appeal.” U.S. Dep’t o f J ustice, U.S. Attorney s’ Manual, tit. 9, Criminal Resource Manual § 626. 2

Even if we preferred the g overnment’s construction, it is
at least ambig uous whether t h e w a iver covers appeals o f Spear’s conviction or o n l y o f his sentence. W e have “steadfastly a

ppl[ ied] the rule that any lack of clarity in a plea
ag reement should be construed ag ainst the g overnment a s drafter.” United States v. Cope
, 527 F .3d 944, 951 (9th Cir. 2008) (quoting United States v

. T ransfiguracion
, 442 F .3d 1222, 1228 (9th Cir. 2006)) ( intern al quotation marks omitted). Requiring the g overnment to bear responsibility for the lack of clarity is particularly ap p r o priate in this contex t,

as there are numerous e x amples of appellate waivers that clearly encompass both the defendant’s rig h t t o appeal his

se n t e n c e and his rig ht to appeal his conviction. See, e.g. , United States v

. Arias-Espinosa
, 7 0 4 F .3d 616, 617 (9th Cir. 2012) (“The ag r eement included an ex p l i c i t waiver of his rig ht to appeal his conviction and any sentence imposed within the rang e p ermitted by the ag r eement.”); United States

v. W atson , 582 F .3d 974, 986 (9th Cir. 2 0 0 9 ) ( quoting the

2 T h e sp ecif

ic t ex t o f t h e ex am

ple w aiv er is: “ T h e d ef

en d an t is aw are th at 18 U.S.C. § 3 7 4 2 af

f o rd s a d ef en d an t th e rig h t to ap p eal th e sen ten ce im p o s ed

. A ck

n o w led gi n g a l l th is, t

h e d ef en d an t k n o w in g l y w aiv es th e rig h t t o ap p eal an y sen t en ce w ith in th e m ax im u m p ro v id ed in th e statu t e(s)

o f co n v ictio n (o r th e m a n n e r i n w h ich th at sen ten ce w as d eterm in ed ) on th e g ro u n d s set f

o rth in 1 8 U.S.C. § 3 7 4 2 o r on an y g ro u n d w h atev er, in

ex ch an g e f

o r th e co n cessio n s m ad e b y th e Un ited States in t h is p l ea ag reem en t. T h e d ef

en d an t also w aiv es h is rig h t to ch allen g e h is sen ten ce

o r th e m an n er in w

h ich it w as d eterm in ed in an y co l l a t e r a l a t tack
, in clu d in g b u t n o t lim i ted to a m o tio n b ro u g h t u n d er 2 8 U.S.C. § 2 2 5 5 .” U.S. D ep ’ t o f J u stice, U.S. A tto rn ey s’ Man u al, tit. 9
, Crim in al Reso u rce Man u al § 6 2 6

. T h e m an u al f u rth er ex p lain s th at “ [t]h e ad v an ta g e o f a b ro ad sen ten cin g ap p eal w aiv er is th at it w ill b ar th e ap p eal o f v irtu ally

an y Sen t en cin g Gu id elin e issu e.” Id

.U N I T E D S T A T E S V

. S P E A R 9

plea ag reement as requiring the defendant “to g ive up [ his] rig ht to a ppeal [ his] c onviction(s), the judg ment, a n d orders of the Court” and “to waive any rig ht [ h e] may have to appeal
any aspect o f [ his] se n t e n ce” (emphasis omitted)). The
g overnment’s failure to draft a c l ear waiver of Spear’s rig ht
to appeal his convictio n also supports limiting the waiver to his rig ht to appeal his sentence.

The rest of the provision further supports this limited interpretation. A s n oted above, the first sente n c e of the provision a cknowledg es Spear’s “rig ht to appeal the sentence imposed.” Subparag raphs (a) a nd (b) similarly concern only sentencing d isputes. Subparag raph (a) waives Spear’s “rig ht
to challeng e his s e n tence or the manner in which it was determined in any c o llateral a ttack.” Subparag raph (b)
preserves Spear’s rig ht to “appeal the p ortion of h is sentence g reater than specified in [ the] g uideline r ang e and the manner in which that portion was determined under Section 3742 a nd
to challeng e that portion o f his sente n c e i n a collateral attack.” B ecause both subparag raphs ad d r e s s only Spear’s rig hts reg arding his sentence or the man n er i n which that
sentence was imposed, it is a rea s o n a b le inference that the affirmative waiver provision was similarly limited. Cf., e.g. , United States v. Rivera
, 682 F .3d 1223, 1227 (9th Cir. 2 012) (noting that it w a s r e as onable to read ex ceptions to an appellate waiver as mirroring the coverag e of the affirmative waiver itself). 3

3 T h e g o v ern m en t arg u es th a t Un ited Sta tes v. An g lin
, 2 1 5 F.3 d 1 0 6 4 (9 th Cir. 2 0 00 ), su g g ests th at th i s w aiv er i s “ a f u l l an d co m

p lete w aiv er of all ap p eal rig h t s.” T h e lan g u ag e o f th e An g lin w aiv er w as id en tical to th e

w aiv er in t

h is case an d An g l in d id d escrib e i t as a “ w ell- d ev elo p ed ” an d

“ caref u lly n eg o tiated w aiv er o f

ap p ellate rig h ts.” Id

. at 1 0 6 7

. B u t th ese

o b serv atio n s w ere m ad e i n an ap p eal raisin g co m

p letely d i f f eren t issu es. A n g lin d id n o t ch allen g e h er co n v ictio n an d arg u ed “ th at th e d istrict j u dg eU N I T E D S T A T E S V

. S P E A R 10

W e reje c t the g overnment’s contention that, because the waiver lang

uag e tracks and c ites 18 U.S.C. § 3742, the term “sentence” should be interpreted to mean “judg ment,” which
encompasses the convict i o n by implication. F irst, to the

ex tent the g o vernment arg ues that § 3 742 is the sole source o f

a defendant’s rig ht to a

ppeal a criminal conviction, i t is incorrect. A criminal defendant’s statutory rig ht to appeal his conviction arises from 28 U.S.C. § 1291, as acknowledg e d b y the g overnmen t in its jurisdictional statement. S ee United States v

. De Bright
, 730 F .2d 1255, 1259 (9th Cir. 1984) (en banc). I n contrast, § 3742 “is the only source of any

rig ht to appeal the sentence ,” U

nited States v. Joyce
, 357 F .3d 921, 923 (9th Cir. 2 004) (emphasis added), and allows review o f

a sentence when it w as imposed in violation o f l a w, 4 was b a sed o n an incorrect g uidelines a pplication, was abov e t h e g uidelines rang e or was p lainly unreasonable if no sentencing
g uideline applied. A ll these conditions u s e “ sentence” to

mean the terms of punishment, not a m o re g eneral criminal judg ment.

m isap p lied th e Un ited States Sen ten cin g Gu id elin e s

. ” Id

. at 1 0 6 5

. T h e q u estio n p resen t ed w a s no t w h eth er th e sco pe o f th e w aiv er ex ten ded b ey o n d sen ten cin g d isp u t es to th e d ef en d an t’ s co n v ictio n

b y g u ilty p lea, b u t w h et h e r a w aiv er h ad b een ef f ectu ated at all d u e to co n f lictin g lan g u ag e elsew

h ere in th e p l ea ag reem en t. S ee id

. a t 1 0 66

. Here, in

co n trast, th ere is n o qu estio n o f t h e w aiv er’ s ef

f ectiv en ess, o n ly its sco p e.

4 Sen ten c e s i m

p o s e d in v io latio n o f law u n der 1 8 U.S.C. § 37 4 2(a)(1 ) in clu d e sen ten ces th at e x c e e d t h e statu to ry m ax im

u m f o r th e crim e of

co n v ic t i o n , s e e Un ited S ta tes v. Littlefield
, 1 0 5 F.3 d 5 2 7
, 5 2 8 (9 th Cir. 1 9 9 7 ) (p er c u r iam ), an d sen t en ces w ith in t h e g u id elin es ran g e th at are

n ev erth eless u n reaso n ab le, see Un ited S t a t e s v. Plo u ffe
, 4 4 5 F.3 d 1 1 2 6
, 1 1 3 0 ( 9 th Cir. 20 0 6 ). T h e g o v ern m en t h as cited n o cases, an d w e a r e

aw are o f n on e, th at all o w a c r i m in al d ef en d an t to seek rev iew o f h is

u n d erly in g co n v ictio n

u n d er 1 8 U.S.C. § 3 74 2 (a)(1 ).U N I T E D S T A T E S V

. S P E A R 11

Second, for purposes of interpreting a plea ag reement, we look to “what the defendant reasonably understood to be the
terms of the ag r e e m e n t w hen he pleaded g uilty

. ” United States v. Lee
, 725 F .3 d 1159, 1166 (9th Cir. 2013) (per curiam) ( quoting United States v. De la Fuente
, 8 F .3d 1333, 1337 (9th Cir. 1 993)) (in t ernal quotation marks omitted). According ly
, we g enerally construe terms in plea ag reements by considering their common leg al usag e

. See United States

v. Streitch
, 560 F .3d 926, 930 ( 9th Cir. 2009) (interpreting the
term “prosecute” in a plea ag reement as having its “common usag e

. . . in connection with the law”); Unite d States v

. Speelman
, 4 31 F .3d 1 226, 1230–31 ( 9 t h Cir. 2 005) (construing “postconviction proceeding ” in a plea ag reement by looking to its “common leg a l usag e”). Althoug h the term “sentence” is defined both as “the punishment imposed on a criminal wrong doer” a

n d as “ [ t] he judg ment that a court formally pronounces after finding a c riminal defendant
g uilty ,” B lack’s L aw Dictionary 1 4 85 ( 9 t h ed. 2 009), in

common leg al usag e it g enerally refers t o t h e former. F o r

ex a mple, in J

oyce , we c oncluded that under § 3742(a)(3) the
term “sentence” meant “fines, periods of i m p r isonment a nd supervised release, and mandatory and special conditions o f supervised release.” 357 F .3d at 924.

Th e g overnment cites Corey v

. U nited States
, 375 U.S. 169 ( 1963), f

or the p ro p o s i tion that “[ t] he sentence is the judg men t , ” b ut Corey is inapposite. Id. at 174 (quoting Berman v. United States
, 302 U.S. 211, 2 12 ( 1937)) (internal quotation m a r k s omitted). I n Corey
, the Supreme Court considered when a criminal defendant may appeal a sentence imposed u nder 18 U .S.C. § 4208(b), which has si n c e b een

r e pealed. S

e e Sentencing Reform A ct of 1984, Pub. L

. N o

. 98-473, tit. I I
, ch. 2, § 218(a)(5), 98 Stat. 1037, 2027 (1984). Under § 4 2 08(b), the sentencing judg e would first “impose[ ]U N I T E D S T A T E S V

. S P E A R 12

a sentence of imprisonment ‘deemed to be’ the max im um prescribed by the law, and then, after the defendant h a s been imprisoned for three or six months, .

. . fix [ ] a new sentence wh ich may be quite different from the one orig inally imposed.” Corey
, 3 75 U.S. a t 172. The question pres e n ted

was when the “conventional requi r e m e nts of finality for
purposes o f appeal” were satisfied: after the first sentencing
, after the s e co nd sentencing or, as the Court held, b oth. See id

. a t 1 7 2–74. I n this contex t, therefore, the Court was not equating the sentence with the judgment of conviction
, as the
g overnment arg ues, but with final judgment for purposes o f

an a p p e a l

. See id. at 173–74; see also Korematsu v. United S t a t e s , 319 U.S. 432, 4 34 (1943); Berman
, 302 U.S. a t 212–13. 5

F inally
, we have recog niz ed, at l east in passing
, that a defendant’s waiver o f the r ig ht to appeal his sentence is distinct from a waiver of the r ig ht to a p peal h is c onviction. See U nited States v. Littlejohn
, 224 F .3d 9 6 0
, 964 n.2 (9th Cir. 2000) (“The g overnment concedes in h is brief, and we ag ree, that w hile L ittlejohn’s p lea ag reement i n c l uded a waiver of his rig ht to appeal his se n t ence , nowhere d id he
g ive up his r ig h t to a

ppeal his conviction .”). The g overnment has no support for its a r gu m ent that a defendant’s waiver o f the rig ht to appe al h is sentence under 18 U.S.C. § 3742 includes by implicati on a waiver of the rig ht to appeal his conviction. W e therefore hold that a defendan t ’s knowing

5 In f act, C o rey also u sed “ sen t en ce” acco rd in g to i t s co m m o n leg al

u sag e b y ex

p lain in g th at af

ter a d ef en d an t p lead s g u i lty o r i s co n v i cted b y

a f actf in d er, “ [a] j u d g m en t of co n v ictio n settin g fo rth th e sen ten ce is th en

en tered .” 37 5 U.S. at 1 7 1 (em p h asis ad d ed ). Becau se th e sen ten ce

– th at is, th e q u an t

u m o f p u n ish m en t

– i s set f

orth i n t h e j u d g m en t, th e tw o term s

are n o t sy n o n y m o u s.U N I T E D S T A T E S V

. S P E A R 13

and voluntary waiver of his rig ht to a ppeal his sentence does
not inherently e ncompass a knowing and voluntary waiver o f his rig ht to appeal his conviction

.

CONCLUSION

The g overnment is entitled to receive “what it barg ains for b ut nothing more.” United States v. Pruitt
, 32 F .3d 431, 433 ( 9th Cir. 1994). B e c ause the scope of Spear’s appellate waiver con c e rned only his sentence and the issues r a ised in this appeal concern only his conviction, Spear did not waive hi s rig ht to bring this appeal. F or the reasons stated in the

concu r rently f

iled memorandum disposition, however, we affirm Spear’s conviction.

AF F IRMED.