UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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