United States of America v. Hueng Yu Wong

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HUENG YU WONG,
Defendant - Appellant.
No. 22-1161
(D.C. No. 1:18-CR-00104-CMA-GPG-1)
(D. Colo.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HOLMES, Chief Judge, BACHARACH and EID, Circuit Judges.
_________________________________
Hueng Yu Wong pled guilty to two counts of conspiracy to manufacture and
possess with intent to distribute one thousand or more marijuana plants. The district
court granted the government’s request to vary downward from the advisory
sentencing guidelines range of 120 to 121 months, and sentenced Mr. Wong to
84 months in prison. Although his plea agreement contained a waiver of his
appellate rights, he filed a notice of appeal. The government then filed a motion to
enforce the appeal waiver.
* This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
October 21, 2022
Christopher M. Wolpert
Clerk of Court
Appellate Case: 22-1161 Document: 010110756645 Date Filed: 10/21/2022 Page: 1

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Mr. Wong’s counsel filed a response to the motion pursuant to Anders v.
California, 386 U.S. 738 (1967), stating her belief that “[n]o non-frivolous legal
arguments exist on which to challenge the validity or enforceability of the appeal
waiver in Appellant’s plea agreement.” Resp. to Mot. at 9 (boldface omitted).
Counsel also filed a motion to withdraw. We gave Mr. Wong the opportunity to file
a pro se response to show why the appeal waiver should not be enforced. His
response was initially due on September 29, 2022, and we sua sponte extended the
deadline to October 11, 2022, but to date he has not filed a response.
We will enforce an appeal waiver if (1) “the disputed appeal falls within” the
waiver’s scope; (2) “the defendant knowingly and voluntarily waived his appellate
rights”; and (3) enforcing the waiver would not “result in a miscarriage of justice.”
United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc). The government
argues that all three of these conditions are met in this case.
Consistent with our obligation under Anders, we conducted an independent
review of the proceedings. See 386 U.S. at 744. After doing so, we agree that it
would be frivolous to oppose the government’s motion under Hahn. We therefore
grant the government’s motion and dismiss the appeal. We also grant counsel’s
motion to withdraw.
Entered for the Court
Per Curiam
Appellate Case: 22-1161 Document: 010110756645 Date Filed: 10/21/2022 Page: 2

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