UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4606

ROBERT CHAEGON KIM,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Leonie M. Brinkema, District Judge.

(CR-97-117-A)

Submitted: December 22, 1998

Decided: January 14, 1999

Before ERVIN, LUTTIG, and MICHAEL, Circuit Judges.

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Affirmed in part and dismissed in part by unpublished per curiam

opinion.

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COUNSEL

James G. Gore, Vienna, Virginia; Mark H. Lynch, Patrick S. Kim,

COVINGTON & BURLING, Washington, D.C., for Appellant. Helen

F. Fahey, United States Attorney, Robert C. Chesnut, Assistant

United States Attorney, Alexandria, Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Robert Chaegon Kim pled guilty to an information charging him

with conspiracy to obtain national defense information, see 18

U.S.C.A. § 793 (West 1976 & Supp. 1998), while he was employed

by the Office of Naval Intelligence. He was sentenced to 108 months

imprisonment. In his plea agreement, Kim waived his right to appeal

any sentence within the statutory maximum "on any ground whatever." His attorney has filed a brief in accordance with Anders v.

California, 386 U.S. 738 (1967), raising several issues relating to the

sentence but stating that in his view there are no meritorious issues

for appeal. Kim has filed a pro se supplemental brief in which he contests his sentence on additional grounds and asserts that he received

ineffective assistance of counsel. After a thorough review of the

record, we affirm in part and dismiss in part.

A defendant may waive the right to appeal his sentence if the

waiver is knowing and intelligent. See United States v. BroughtonJones, 71 F.3d 1143, 1146 (4th Cir. 1995). A waiver is valid and

enforceable if the district court questions the defendant about it during

the Fed. R. Crim. P. colloquy. See United States v. Wessells, 936 F.2d

165, 167-68 (4th Cir. 1991). A waiver does not preclude the defendant from appealing a sentence which is in excess of the statutory

maximum or based on constitutionally impermissible factors. See

United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992). Here, the

district court discussed the waiver provision with Kim at the Rule 11

hearing, explained that he would be able to appeal only an illegal sentence, and further explained what would constitute an illegal sentence.

Kim assured the court that he understood that he was waiving his

right to appeal. We find that the waiver was valid and thus do not

address the claims made in the supplemental brief concerning the calculation of the guideline range, the district court's imposition of sentence at the high end of the range, and the disparity between Kim's

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sentence and the sentences imposed on others convicted of similar

offenses. Because it does not conclusively appear from the record that

Kim's attorneys rendered ineffective assistance of counsel at sentencing, his claim of ineffective assistance should be raised in a motion

to vacate sentence pursuant to 28 U.S.C. § 2255 (1994), rather than

in his direct appeal. See United States v. Smith , 62 F.3d 641, 651 (4th

Cir. 1995).

In the Anders brief, defense counsel suggests that the district court

considered constitutionally impermissible factors in imposing sentence. After the court decided that no factors were present which

would permit a departure below the guideline range, the court added

that, even if a departure were possible, it would not be appropriate.

The court then commented on the fact that Kim considered using his

church as a place to pass classified documents to a South Korean military attache, and deemed Kim's attitude "horrible hypocrisy." Counsel

argues that the remark indicates that the court chose not to depart

because Kim offended the court's own "personal sense of religiosity."

See United States v. Bakker, 925 F.2d 728, 740 (4th Cir. 1991)

(judge's religion may not be factor in sentencing). We find no constitutional violation in the court's comment, which was made after the

court had already decided not to depart.

Counsel also maintains that the court improperly considered Kim's

status as a naturalized citizen when it imposed sentence at the high

end of the guideline range. The court discussed the oath of allegiance

that is taken by naturalized citizens and the oath Kim took to abide

by the secrecy requirements of his job with the Office of Naval Intelligence. The court then stated that it felt it "must take into consideration [in addition to Kim's personal qualities and prior good works]

the message that is sent out to others who might be in a similar situation and think it's not so bad to help another country even if I breach

an oath to the United States." Our review of the record discloses that

the court's concern was the seriousness of Kim's violation of his

oaths rather than his national origin or immigration status. Consequently, we find no error.

Last, counsel argues that the district court mistakenly believed that

a departure on the basis of Kim's charitable works was foreclosed by

Koon v. United States, 518 U.S. 81 (1996), and United States v.

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Rybicki, 96 F.3d 754 (4th Cir. 1996). This issue is not properly raised

on appeal because all non-constitutional claims relating to the sentence were waived.

In accordance with Anders, we have examined the entire record in

this case and find no reversible error. We therefore affirm the conviction and sentence. We dismiss that portion of the appeal which challenges the sentence on other than constitutional grounds. This court

requires that counsel inform his client, in writing, of his right to petition the Supreme Court of the United States for further review. If the

client 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 the client. We dispense with oral

argument because the facts and legal contentions are adequately presented in the record and briefs, and oral argument would not aid the

decisional process.

AFFIRMED IN PART, DISMISSED IN PART

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