IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-30907

Summary Calendar

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

YIPING QU, also known as Eric Qu, 

 Defendant - Appellant

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:13-CR-120-1

Before DAVIS, CLEMENT, and COSTA, Circuit Judges.

PER CURIAM:*

Yiping Qu, a Chinese citizen residing in the United States, pleaded 

guilty with the benefit of a plea agreement to conspiracy to knowingly export 

from the United States defense articles on the United States Munitions List. 

As part of his plea agreement, Qu knowingly and voluntarily “[w]aive[d] and 

[gave] up any right to appeal or contest his guilty plea, conviction, sentence, 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

July 17, 2015

Lyle W. Cayce

Clerk

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fine, supervised release, and any restitution imposed by any judge under any 

applicable restitution statute, including but not limited to any right to appeal 

. . . any aspect of his sentence.” ROA.359. One exception is “the right to bring 

a direct appeal of any sentence imposed in excess of the statutory maximum.” 

ROA.360. 

At sentencing, the district court sentenced Qu to a below-Guidelines 

prison term of 36 months. The court also imposed a three year term of 

supervised release, which would be nonreporting if Qu were deported. 

Relatedly, the court ordered that upon completion of his term of imprisonment, 

Qu “shall be surrendered to the custody of the United States Immigration and 

Customs Enforcement [ICE] for removal proceedings,” and that he “shall also 

cooperate in any removal proceedings.” ROA.331. Qu did not object to this 

condition at the sentencing hearing. 

Despite his waiver of appeal, Qu timely appealed and now challenges the 

“cooperation” condition. Qu argues that the district court’s special condition 

that he “cooperate in any removal proceedings initiated or pending by the 

United States [ICE] consistent with the Immigration and National Act” 

violates the statutory limitations on the conditions of supervised release 

because it exceeds the scope of 18 U.S.C. § 3583(d).1 See ROA.331. Specifically, 

he argues that the cooperation requirement is not reasonably related to his 

 

1 That statute provides that “[i]f an alien defendant is subject to deportation, the court 

may provide, as a condition of supervised release, that he be deported and remain outside the 

United States, and may order that he be delivered to a duly authorized immigration official 

for such deportation.” 18 U.S.C. § 3583(d). It also states that a condition on supervised 

release:

(1) is reasonably related to the factors set forth in section 3553(a)(1), (a)(2)(B), 

(a)(2)(C), and (a)(2)(D);

(2) involves no greater deprivation of liberty than is reasonably necessary for 

the purposes set forth in section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and

(3) is consistent with any pertinent policy statements issued by the Sentencing 

Commission pursuant to 28 U.S.C. 994(a).

Id. 

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crime of commission, is a greater deprivation of liberty than is necessary 

because the immigration court will determine whether or not he is removable, 

and constitutes a “condition ordering deportation” in violation of Sentencing 

Commission policy. He also contends that requiring him to cooperate in any 

removal proceeding is contrary to the plea agreement’s assurance that removal 

would be subject to a separate proceeding and that the district court thus 

violated the immigration court’s “ability to hear Mr. Qu’s speech,” which raises 

both statutory and constitutional issues. 

Qu does not dispute that he entered into the plea and waiver knowingly 

and voluntarily. See United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005) 

(“A defendant may waive his statutory right to appeal his sentence if the 

waiver is knowing and voluntary.”). Instead, he attempts to fit his appeal 

within the exempted portion of his appellate waiver by arguing that the 

condition requiring him to cooperate in any removal proceedings exceeded the 

statutory limits on supervised release conditions.

Terms of supervised release are a part of a sentence. See United States 

v. Higgins, 739 F.3d 733, 738 (5th Cir. 2014) (“[T]he term ‘sentence’ 

unambiguously includes [supervised release] and its conditions as a matter of 

law.”); see also Bond, 414 F.3d at 544 (considering “whether the waiver applies 

to the circumstances at hand, based on the plain language of the agreement” 

to determine whether an appeal is barred by a waiver). Like other aspects of 

a sentence, a defendant thus can waive appellate review of the conditions of 

supervised release. See, e.g., Higgins, 739 F.3d at 739 (finding appellate waiver 

barred appeal of condition of supervised release); United States v. Lamprecht, 

232 F.3d 207, *1 n.5 (5th Cir. 2000) (finding unconvincing defendant’s 

argument that appeal waiver did not cover special conditions of supervised 

release because supervised release is considered part of the sentence itself

(quoting United States v. Benbrook, 119 F.3d 338, 341 n.10 (5th Cir. 1997)). 

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We may thus review Qu’s supervised release condition requiring cooperation 

in immigration proceedings only if falls within the exception for a sentence 

imposed “in excess of the statutory maximum.” See Higgins, 739 F.3d at 739. 

That the term “statutory maximum” generally denotes a period of time 

seems obvious. See United States v. Ferguson, 669 F.3d 756, 766 (6th Cir. 2012) 

(“The statutory maximum punishment referred to in the plea agreement is 

most naturally construed to mean the maximum sentence per count.”); see also, 

e.g., United States v. Cortez, 413 F.3d 502, 503 (5th Cir. 2005) (providing that 

“the exception for a sentence imposed above the statutory maximum shall be 

afforded its natural and ordinary meaning of ‘the upper limit of punishment 

that Congress has legislatively specified for violations of a statute,’” and that 

a 63-month sentence was below the ten-year statutory maximum (internal 

citation omitted)); Bond, 414 F.3d at 543 (“[P]ost-Booker ‘statutory maximum’ 

assumes its ordinary definition of the maximum term of imprisonment 

authorized by the statute of conviction for purposes of the plea agreement.”). 

“Maximum,” or its counterpart “minimum,” generally refers to something that 

can be quantified. See, e.g., Maximum, Merriam-Webster Online, 

http://www.merriam-webster.com/dictionary/maximum (last visited June 24, 

2015) (defining “maximum” as “the high number or amount that is possible or 

allowed” (emphasis added)). 

The waiver exception would thus allow Qu to appeal if the district court 

had sentenced him beyond the five year statutory maximum for his sentence 

or the three year statutory maximum for his term of supervised release. See 

18 U.S.C. § 371 (sentence up to five years); 18 U.S.C. § 3583(b)(2) (supervised 

release up to three years). It did neither. 

The condition of supervised release that Qu seeks to challenge, even if it 

is an unreasonable one, does not exceed a “statutory maximum.” See Ferguson, 

669 F.3d at 766 (rejecting challenge to special condition of supervised release 

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that defendant claimed constituted a sentence exceeding statutory minimum 

because it required a “strained construction” of appellate waiver and neither 

sentence nor supervised release exceeded statutory maximum or Guidelines 

range); United States v. Stevenson, 281 F. App’x 85, 86 (3d Cir. 2008) (finding 

that appeal of condition requiring defendant to submit to search of place of 

business was barred by waiver of appeal because challenged condition did not 

exceed statutory maximum); United States v. Hartshorn, 163 F. App’x 325, 330 

(5th Cir. 2006) (holding that retroactively applying new version of DNA Act 

authorizing collection of defendant’s DNA as a condition of supervised release 

did not constitute “a sentence in excess of the statutory maximum”).

Appellate waivers foreclose challenges to many aspects of a sentence that 

may be unlawful, such as improper application of sentencing enhancements or 

substantively unreasonable sentences. See, e.g., United States v. RodriguezEstrada, 741 F.3d 648, 649 (5th Cir. 2014) (dismissing appeal challenging 

district court’s imposition of 16-level enhancement as barred by plea waiver of 

appeal); United States v. Garza, 571 F. App’x 302, 302–03 (5th Cir. 2014) 

(same); United States v. Ramirez, 575 F. App’x 398, *1 (5th Cir. 2014) (finding 

that enforceable appeal waiver barred appeal of sentence based on its 

substantive unreasonableness). So long as those errors do not exceed the 

statutory maximum, a waiver like the one Qu entered into precludes appellate 

review. See Higgins, 739 F.3d at 739. Challenging the reasonableness of a 

supervised release condition is no different. We therefore conclude that the 

issue Qu raises is not one challenging “a sentence imposed in excess of the 

statutory maximum.” See Ferguson, 669 F.3d at 766 (rejecting defendant’s 

argument that a condition of supervised release constituted a sentence 

exceeding the statutory maximum because allowing that sort of challenge 

under a similar appeal waiver “would potentially render waivers meaningless” 

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(internal citations omitted)). The knowing and voluntary appellate waiver 

thus precludes our review.

We nonetheless note that Qu’s appeal would not succeed even if we 

reached its merits. Because he did not object at the sentencing hearing, our 

review is limited to plain error. He thus must show, among other things, that 

the district court’s error was clear or obvious. See United States v. Vonn, 535 

U.S. 55, 59 (2002) (holding that a defendant who fails to object to an error at a 

plea colloquy hearing must satisfy the plain error rule); Puckett v. United 

States, 556 U.S. 129, 135 (2009) (delineating the plain error standard 

(paraphrasing United States v. Olano, 507 U.S. 725 (1993)). 

Without deciding whether the district court made any error in imposing 

the cooperation condition, we can easily conclude that any assumed error was 

not plain or obvious. A district court may impose special conditions of 

supervised release when they meet certain criteria. Specifically, the condition 

must be reasonably related to (1) the nature and circumstances of the offense 

and the history and characteristics of the defendant, (2) the need to afford 

adequate deterrence to criminal conduct, (3) the need to protect the public from 

further crimes of the defendant, and (4) the need to provide the defendant with 

needed [training], medical care, or other correctional treatment in the most 

effective manner, 18 U.S.C. § 3553(a)(1)–(2); must involve no greater 

deprivation of liberty than is reasonably necessary to provide adequate 

deterrence, protection of the public, and provide treatment, id.; and must be 

consistent with the Sentencing Commission’s policy statements. See 18 U.S.C. 

§ 3583(d). 

Qu contends that the district court’s requirement that he cooperate in

any removal proceedings violated each of these criteria. But he cites no case 

law invalidating a similar condition, which makes it difficult for him to show 

the district court clearly erred. See United States v. Ramos Ceron, 775 F.3d 

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222, 226 (5th Cir. 2014) (finding that a defendant cannot demonstrate clear or 

obvious error in the “absence of case law unequivocally supporting” a position 

on appeal (citing United States v. Trejo, 610 F.3d 308, 319 (5th Cir. 2010) for 

the proposition that a claim is “doomed for plain error” when it is “novel” and 

“not entirely clear under the existing case authority”)). Nor is any error 

obvious without recourse to precedent. For one thing, Qu’s characterization of 

the condition as one “ordering deportation” is hard to reconcile with the court’s 

acknowledgment that any removal proceedings would be “initiated or pending” 

by ICE and that Qu might not actually be deported. See ROA.331 (noting that 

“should [Qu] not be deported for any reason,” he would be required to serve a 

full three-year term of supervised release). As to the “cooperation” 

requirement, that could reasonably be read to mean that he not evade removal 

proceedings and that he comply with the result, not that he waive any defenses 

he might have in that hearing. All of this convinces us that Qu has not satisfied 

his burden of showing plain or obvious error to the extent any error even 

occurred. 

Because we find the appeal waiver was knowing and voluntary and that 

it precludes Qu’s appeal, his appeal is DISMISSED. See United States v. 

Walters, 732 F.3d 489, 490 (5th Cir. 2013). 

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