FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

HAROLD C. SPEAR, III, M.D.,

Defendant-Appellant.

No. 12-10124

D.C. No.

1:08-cr-00128-

DAE-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

HAROLD C. SPEAR, III, M.D.,

Defendant-Appellant.

No. 12-10125

D.C. No.

1:07-cr-00299-

DAE-1

OPINION

Appeal from the United States District Court

for the District of Hawaii

David A. Ezra, District Judge, Presiding

Argued and Submitted

October 8, 2013—Honolulu, Hawaii

Filed June 5, 2014
2 UNITED STATES V. SPEAR

Before: Alex Kozinski, Chief Judge, and Raymond C.

Fisher and Paul J. Watford, Circuit Judges.

Opinion by Judge Fisher

SUMMARY*

Criminal Law

In an appeal from a conviction by guilty plea to

distributing controlled substances outside the usual course of

professional medical practice and not for a legitimate medical

purpose, the panel held that the defendant’s knowing and

voluntary waiver of the right to appeal his sentence did not

extend to this appeal of his conviction. 

The panel affirmed the conviction for reasons stated in a

concurrently filed memorandum disposition.

COUNSEL

Michael Robert Levine (argued), Law Office of Michael R.

Levine, Portland, Oregon; Sheryl Gordon McCloud, Law

Offices of Sheryl Gordon McCloud, Seattle, Washington, for

Defendant-Appellant.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. SPEAR 3

Cynthia W. Lie (argued), Michael David Nammar and

William L. Shipley, Office of the U.S. Attorney, Honolulu,

Hawaii, for Plaintiff-Appellee.

OPINION

FISHER, Circuit Judge:

Defendant Harold C. Spear, III, M.D., appeals his

conviction by guilty plea to five counts of distributing

controlled substances outside the usual course of professional

medical practice and not for a legitimate medical purpose. 

The government argues this appeal should be dismissed based

on a provision of the plea agreement that limits Spear’s

appellate rights. We reject this argument and reach the merits

of this appeal because Spear’s knowing and voluntary waiver

of his right to appeal his sentence did not extend to this

appeal of his conviction by guilty plea.1

BACKGROUND

Spear was a licensed physician and the owner and

operator of two family practices in Kauai, Hawaii. In June

2007, Spear was indicted in the District of Hawaii for 20

counts of distributing oxycodone and methadone outside the

usual course of professional medical practice and not for a

legitimate medical purpose, in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(C). A two-count criminal information

charging Spear with dispensing hydrocodone outside the

usual and customary scope of professional practice and not

1 We address the merits of Spear’s appeal in a concurrently filed

memorandum disposition.
4 UNITED STATES V. SPEAR

for a legitimate medical purpose was later filed against him

in the Northern District of Alabama, then transferred to the

District of Hawaii.

In July 2009, Spear and the government entered a written

plea agreement, in which he agreed to plead guilty to four

counts of the indictment and one count of the information,

and in which the government promised to dismiss the

remaining counts. The agreement also contained this appeal

waiver provision:

The defendant is aware that he has the

right to appeal the sentence imposed under

Title 18, United States Code, Section 3742(a). 

Defendant knowingly waives the right to

appeal, except as indicated in subparagraph

“b” below, any sentence within the maximum

provided in the statute(s) of conviction or the

manner in which that sentence was

determined on any of the grounds set forth in

Section 3742, or on any ground whatever, in

exchange for the concessions made by the

prosecution in this plea agreement.

a. The defendant also waives his right to

challenge his sentence or the manner in which

it was determined in any collateral attack,

including, but not limited to, a motion brought

under Title 28, United States Code, Section

2255, except that defendant may make such a

challenge (1) as indicated in subparagraph “b”

below, or (2) based on a claim of ineffective

assistance of counsel.
UNITED STATES V. SPEAR 5

b. If the Court imposes a sentence greater

than specified in the guideline range

determined by the Court to be applicable to

the defendant, the defendant retains the right

to appeal the portion of his sentence greater

than specified in that guideline range and the

manner in which that portion was determined

under Section 3742 and to challenge that

portion of his sentence in a collateral attack.

A magistrate judge reviewed this waiver with Spear

during his change of plea hearing, explaining that Spear

would be “giving up [his] right to appeal or challenge [his]

sentence unless it’s outside the guideline range or if it has to

do with ineffective assistance of counsel.” A few weeks later,

the district court accepted Spear’s guilty plea. Spear twice

moved to withdraw his guilty plea, but he withdrew his first

such motion and the district court denied his second. Spear

was sentenced to 151 months’ imprisonment, the low end of

the Sentencing Guidelines range, and timely filed this appeal. 

On appeal, he argues that his guilty plea lacked a sufficient

factual basis, that the government breached the plea

agreement and that the district court abused its discretion by

denying his motion to withdraw his guilty plea.

STANDARD OF REVIEW

We review de novo whether a criminal defendant has

waived his right to appeal. See United States v. Tercero,

734 F.3d 979, 981 (9th Cir. 2013).
6 UNITED STATES V. SPEAR

DISCUSSION

A defendant’s waiver of appellate rights is enforceable

when “(1) the language of the waiver encompasses his right

to appeal on the grounds raised, and (2) the waiver is

knowingly and voluntarily made.” United States v. Rahman,

642 F.3d 1257, 1259 (9th Cir. 2011) (quoting United States

v. Jeronimo, 398 F.3d 1149, 1153 (9th Cir. 2005), abrogated

on other grounds by United States v. Castillo, 496 F.3d 947,

957 (9th Cir. 2007) (en banc)) (internal quotation marks

omitted). Spear does not challenge the knowing and

voluntary nature of his waiver, but argues that the waiver

pertained only to an appeal from his sentence and therefore

does not encompass this appeal from his conviction. We

agree.

The language of the waiver provision supports Spear’s

position. The first sentence refers to Spear’s “right to appeal

the sentence imposed,” signaling that the entire waiver

concerns sentencing.

The second sentence states that Spear waived “the right

to appeal, except as indicated in subparagraph ‘b’ below, any

sentence within the maximum provided in the statute(s) of

conviction or the manner in which that sentence was

determined on any of the grounds set forth in [18 U.S.C.]

Section 3742, or on any ground whatever.” Although the

language arguably could be read as waiving “the right to

appeal . . . on any ground whatever,” that is not a sensible

reading. Spear did not waive his right to appeal, full stop, but

only his “right to appeal . . . any sentence within the

maximum provided in the statute(s) of conviction or the

manner in which that sentence was determined.” The two

following prepositional phrases, “on any of the grounds set
UNITED STATES V. SPEAR 7

forth in Section 3742” and “on any ground whatever,”

describe the bases for potential appeals of his sentence or of

the manner in which that sentence was determined. That is,

“any sentence” and “the manner in which that sentence was

determined” describe which appeals Spear agreed to waive,

and “on any of the grounds set forth in Section 3742” and “on

any ground whatever” clarify that there were no unlisted

exceptions for particular reasons supporting such appeals.

We are not convinced by the government’s construction

of the second sentence as a waiver of Spear’s “right to

appeal . . . on any of the grounds set forth in Section 3742, or

on any ground whatever.” This construction, which

encompasses all appeals not explicitly excepted, would allow

“on any ground whatever” to override all of the provision’s

specific sentencing language and make most of the

provision’s first paragraph mere surplusage. In particular,

this construction completely eliminates the terms “any

sentence” and “the manner in which that sentence was

determined,” but the grammatical structure of the sentence as

it was actually drafted does not allow this excision. If the two

prepositional phrases were meant to modify Spear’s “right to

appeal” generally, then including “any sentence” and “the

manner in which that sentence was determined” as specific

descriptions of which appeals were waived would serve no

purpose. See United States v. Hamdi, 432 F.3d 115, 123–24

(2d Cir. 2005) (applying to a plea agreement the principle of

contract law preferring an interpretation that does not leave

a portion of the contract superfluous); United States v. Brye,

146 F.3d 1207, 1211 (10th Cir. 1998) (same). We therefore

conclude that the language of the waiver limits its scope to

sentencing issues. Indeed, the Department of Justice uses

very similar language as an example of a “broad sentencing

appeal waiver [that] requires the defendant to waive any and
8 UNITED STATES V. SPEAR

all sentencing issues on appeal.” U.S. Dep’t of Justice, U.S.

Attorneys’ Manual, tit. 9, Criminal Resource Manual § 626.2

Even if we preferred the government’s construction, it is

at least ambiguous whether the waiver covers appeals of

Spear’s conviction or only of his sentence. We have

“steadfastly appl[ied] the rule that any lack of clarity in a plea

agreement should be construed against the government as

drafter.” United States v. Cope, 527 F.3d 944, 951 (9th Cir.

2008) (quoting United States v. Transfiguracion, 442 F.3d

1222, 1228 (9th Cir. 2006)) (internal quotation marks

omitted). Requiring the government to bear responsibility for

the lack of clarity is particularly appropriate in this context,

as there are numerous examples of appellate waivers that

clearly encompass both the defendant’s right to appeal his

sentence and his right to appeal his conviction. See, e.g.,

United States v. Arias-Espinosa, 704 F.3d 616, 617 (9th Cir.

2012) (“The agreement included an explicit waiver of his

right to appeal his conviction and any sentence imposed

within the range permitted by the agreement.”); United States

v. Watson, 582 F.3d 974, 986 (9th Cir. 2009) (quoting the

2 The specific text of the example waiver is: “The defendant is aware

that 18 U.S.C. § 3742 affords a defendant the right to appeal the sentence

imposed. Acknowledging all this, the defendant knowingly waives the

right to appeal any sentence within the maximumprovided in the statute(s)

of conviction (or the manner in which that sentence was determined) on

the grounds set forth in 18 U.S.C. § 3742 or on any ground whatever, in

exchange for the concessions made by the United States in this plea

agreement. The defendant also waives his right to challenge his sentence

or the manner in which it was determined in any collateral attack,

including but not limited to a motion brought under 28 U.S.C. § 2255.” 

U.S. Dep’t of Justice, U.S. Attorneys’ Manual, tit. 9, Criminal Resource

Manual § 626. The manual further explains that “[t]he advantage of a

broad sentencing appeal waiver is that it will bar the appeal of virtually

any Sentencing Guideline issue.” Id.
UNITED STATES V. SPEAR 9

plea agreement as requiring the defendant “to give up [his]

right to appeal [his] conviction(s), the judgment, and orders

of the Court” and “to waive any right [he] may have to appeal

any aspect of [his] sentence” (emphasis omitted)). The

government’s failure to draft a clear waiver of Spear’s right

to appeal his conviction also supports limiting the waiver to

his right to appeal his sentence.

The rest of the provision further supports this limited

interpretation. As noted above, the first sentence of the

provision acknowledges Spear’s “right to appeal the sentence

imposed.” Subparagraphs (a) and (b) similarly concern only

sentencing disputes. Subparagraph (a) waives Spear’s “right

to challenge his sentence or the manner in which it was

determined in any collateral attack.” Subparagraph (b)

preserves Spear’s right to “appeal the portion of his sentence

greater than specified in [the] guideline range and the manner

in which that portion was determined under Section 3742 and

to challenge that portion of his sentence in a collateral

attack.” Because both subparagraphs address only Spear’s

rights regarding his sentence or the manner in which that

sentence was imposed, it is a reasonable inference that the

affirmative waiver provision was similarly limited. Cf., e.g.,

United States v. Rivera, 682 F.3d 1223, 1227 (9th Cir. 2012)

(noting that it was reasonable to read exceptions to an

appellate waiver as mirroring the coverage of the affirmative

waiver itself).3

3 The government argues that United States v. Anglin, 215 F.3d 1064

(9th Cir. 2000), suggests that this waiver is “a full and complete waiver of

all appeal rights.” The language of the Anglin waiver was identical to the

waiver in this case and Anglin did describe it as a “well-developed” and

“carefully negotiated waiver of appellate rights.” Id. at 1067. But these

observations were made in an appeal raising completely different issues. 

Anglin did not challenge her conviction and argued “that the district judge
10 UNITED STATES V. SPEAR

We reject the government’s contention that, because the

waiver language tracks and cites 18 U.S.C. § 3742, the term

“sentence” should be interpreted to mean “judgment,” which

encompasses the conviction by implication. First, to the

extent the government argues that § 3742 is the sole source of

a defendant’s right to appeal a criminal conviction, it is

incorrect. A criminal defendant’s statutory right to appeal his

conviction arises from 28 U.S.C. § 1291, as acknowledged by

the government in its jurisdictional statement. See United

States v. De Bright, 730 F.2d 1255, 1259 (9th Cir. 1984) (en

banc). In contrast, § 3742 “is the only source of any right to

appeal the sentence,” United States v. Joyce, 357 F.3d 921,

923 (9th Cir. 2004) (emphasis added), and allows review of

a sentence when it was imposed in violation of law,4 was

based on an incorrect guidelines application, was above the

guidelines range or was plainly unreasonable if no sentencing

guideline applied. All these conditions use “sentence” to

mean the terms of punishment, not a more general criminal

judgment.

misapplied the United States Sentencing Guidelines.” Id. at 1065. The

question presented was not whether the scope of the waiver extended

beyond sentencing disputes to the defendant’s conviction by guilty plea,

but whether a waiver had been effectuated at all due to conflicting

language elsewhere in the plea agreement. See id. at 1066. Here, in

contrast, there is no question of the waiver’s effectiveness, only its scope.

4 Sentences imposed in violation of law under 18 U.S.C. § 3742(a)(1)

include sentences that exceed the statutory maximum for the crime of

conviction, see United States v. Littlefield, 105 F.3d 527, 528 (9th Cir.

1997) (per curiam), and sentences within the guidelines range that are

nevertheless unreasonable, see United States v. Plouffe, 445 F.3d 1126,

1130 (9th Cir. 2006). The government has cited no cases, and we are

aware of none, that allow a criminal defendant to seek review of his

underlying conviction under 18 U.S.C. § 3742(a)(1).
UNITED STATES V. SPEAR 11

Second, for purposes of interpreting a plea agreement, we

look to “what the defendant reasonably understood to be the

terms of the agreement when he pleaded guilty.” United

States v. Lee, 725 F.3d 1159, 1166 (9th Cir. 2013) (per

curiam) (quoting United States v. De la Fuente, 8 F.3d 1333,

1337 (9th Cir. 1993)) (internal quotation marks omitted). 

Accordingly, we generally construe terms in plea agreements

by considering their common legal usage. See United States

v. Streitch, 560 F.3d 926, 930 (9th Cir. 2009) (interpreting the

term “prosecute” in a plea agreement as having its “common

usage . . . in connection with the law”); United States v.

Speelman, 431 F.3d 1226, 1230–31 (9th Cir. 2005)

(construing “postconviction proceeding” in a plea agreement

by looking to its “common legal usage”). Although the term

“sentence” is defined both as “the punishment imposed on a

criminal wrongdoer” and as “[t]he judgment that a court

formally pronounces after finding a criminal defendant

guilty,” Black’s Law Dictionary 1485 (9th ed. 2009), in

common legal usage it generally refers to the former. For

example, in Joyce, we concluded that under § 3742(a)(3) the

term “sentence” meant “fines, periods of imprisonment and

supervised release, and mandatory and special conditions of

supervised release.” 357 F.3d at 924.

The government cites Corey v. United States, 375 U.S.

169 (1963), for the proposition that “[t]he sentence is the

judgment,” but Corey is inapposite. Id. at 174 (quoting

Berman v. United States, 302 U.S. 211, 212 (1937)) (internal

quotation marks omitted). In Corey, the Supreme Court

considered when a criminal defendant may appeal a sentence

imposed under 18 U.S.C. § 4208(b), which has since been

repealed. See Sentencing Reform Act of 1984, Pub. L. No.

98-473, tit. II, ch. 2, § 218(a)(5), 98 Stat. 1037, 2027 (1984). 

Under § 4208(b), the sentencing judge would first “impose[]
12 UNITED STATES V. SPEAR

a sentence of imprisonment ‘deemed to be’ the maximum

prescribed by the law, and then, after the defendant has been

imprisoned for three or six months, . . . fix[] a new sentence

which may be quite different from the one originally

imposed.” Corey, 375 U.S. at 172. The question presented

was when the “conventional requirements of finality for

purposes of appeal” were satisfied: after the first sentencing,

after the second sentencing or, as the Court held, both. See

id. at 172–74. In this context, therefore, the Court was not

equating the sentence with the judgment of conviction, as the

government argues, but with final judgment for purposes of

an appeal. See id. at 173–74; see also Korematsu v. United

States, 319 U.S. 432, 434 (1943); Berman, 302 U.S. at

212–13.5

Finally, we have recognized, at least in passing, that a

defendant’s waiver of the right to appeal his sentence is

distinct from a waiver of the right to appeal his conviction.

See United States v. Littlejohn, 224 F.3d 960, 964 n.2 (9th

Cir. 2000) (“The government concedes in his brief, and we

agree, that while Littlejohn’s plea agreement included a

waiver of his right to appeal his sentence, nowhere did he

give up his right to appeal his conviction.”). The government

has no support for its argument that a defendant’s waiver of

the right to appeal his sentence under 18 U.S.C. § 3742

includes by implication a waiver of the right to appeal his

conviction. We therefore hold that a defendant’s knowing

5

In fact, Corey also used “sentence” according to its common legal

usage by explaining that after a defendant pleads guilty or is convicted by

a factfinder, “[a] judgment of conviction setting forth the sentence is then

entered.” 375 U.S. at 171 (emphasis added). Because the sentence – that

is, the quantum of punishment – is set forth in the judgment, the two terms

are not synonymous.
UNITED STATES V. SPEAR 13

and voluntary waiver of his right to appeal his sentence does

not inherently encompass a knowing and voluntary waiver of

his right to appeal his conviction.

CONCLUSION

The government is entitled to receive “what it bargains

for but nothing more.” United States v. Pruitt, 32 F.3d 431,

433 (9th Cir. 1994). Because the scope of Spear’s appellate

waiver concerned only his sentence and the issues raised in

this appeal concern only his conviction, Spear did not waive

his right to bring this appeal. For the reasons stated in the

concurrently filed memorandum disposition, however, we

affirm Spear’s conviction.

AFFIRMED.