Petition for Writ of Certiorari — Zongli Chang, Petitioner v. United States
Supreme Court briefDec 8, 2020
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IN THE
SUPREME COURT OF THE UNITED STATES
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— PETITIONER
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FILED
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—RESPONDEN (S)
ON PETITION FOR A WRIT OF CERTIORARI TO
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(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)
PETITION FOR WRIT OF CERTIORARI
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RECEIVED
DEC 3 0 2020
OFFICE OF THE CLERK
SUPREME COURT, U.S.
TRULINCS 56246039 - CHANG, ZONGLI - Unit: ELK-H-B
FROM: 56246039 CHANG, ZONGLI
TO:
SUBJECT: QUESTIONS PRESENTED
DATE: 12/07/2020 08:19 AM
QUESTIONS PRESENTED
In a plea agreement that was tied to a fine guideline range, the Petitioner was never told his "maximal possible penalty" in
terms of fine and forfeiture could go up to 4 million (11(b)(1)(H) and 32(h) violations make plea unknowing and sentence
unreasonable), and is ambiguous as to if he waived his appeal as to fines in these language in the plea: "there is no agreement
as to fines" and "if the defendant's sentence of imprisonment does not exceed 135 months, the defendant also waives any right
he may have to appeal his sentence on any grounds". This broad appellate waiver resulted Dr. Chang to be sentenced at the
whim of the district in terms of fines. While the statutory maximum fine pursuant to 21 USC 841(b)(1)(C) is $1,000,000 and the
Guideline range fine in plea agreement and PSR defined a maximum fine of 1,000,000 in accordance to statutory maximum,
pursuant to 5E1.2(c)(4), the Court imposed the Petitioner to pay a total fine of $4,000,000, including forfeitures, at four times
statutory maximum and Guideline maximum. This breached the plea agreement tied to the above guideline range, making the
appeal outside of the scope of the appellate waiver. The 2D1.1 Guideline (c)(5), in plea, mismatches with the merely alleged
drug quantity and offense level. The Court changed the 2D1.1 Guideline to (c)(3), and sentenced him accordingly, without
making more factual findings. When the drug quantity is merely alleged, there is no way to verify the guideline range and figure
out where the error originated. The Petitioner reserved objections to fine and forfeiture at sentencing. The Appellate Court
ignored petitioner's request to fully brief and dismissed the appeal by essentially treating the appellate waiver as an absolute
bar to any appeals citing US v. Grundy 844 F.3d 613 (6th Cir. 2016).
The questions presented are:
Did the Sixth Circuit err and violate Dr. Chang's Constitutional rights in enforcing an unknowing, invalid plea agreement, by
interpreting ambiguities in favor of government, ignoring breach of promise in fine guideline range and maximum fines in plea,
and ignoring fines that exceeded statutory maximum in violation of Supreme Court's rulings in Booker, Apprendi, Southern.
Union Company v. US (567 US 343) regarding application of Sixth Amendment jury trial right to Federal Sentencing Guidelines
18 USSC APPX (USSG) including statutes with statutory maximum for criminal fines, while he was sentenced under a different
2D1.1 guideline c(3) instead of the (c)(5) in plea, with a three point hike, relying on drug quantity that was merely alleged? Did
the lower court violate Petitioner's Fifth Amendment right of Due Process and Equal Protection in not applying equitable •
standards in reviewing my case with the case (US v. Grundy) it used to dismiss the appeal? Is appeal for 32(h) violation waived
when the plea is unknowing?
The petitioner argues that the plea is unknowing and the above appealable issues fall out of the scope of the appellate
waiver.
i
LIST OF PARTIES
pQ All parties appear in the caption of the case on the cover page.
[ ] All parties do not appear in the caption of the case on the cover page. A list of
all parties to the proceeding in the court whose judgment is the subject of this
petition is as follows:
RELATED CASES
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TABLE OF CONTENTS
OPINIONS BELOW
1
JURISDICTION
2
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
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STATEMENT OF THE CASE
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REASONS FOR GRANTING THE WRIT
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CONCLUSION
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INDEX TO APPENDICES
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APPENDIX A,•.
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APPENDIX G *
APPENDIX D
APPENDIX E
APPENDIX F
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FROM: 56246039 CHANG, ZONGLI
TO:
SUBJECT: TABLE OF AUTHORITIES CITED
DATE: 12/07/2020 07:47 AM
TABLE OF AUTHORITIES CITED
CASES
Southern Union Company v. United States, 567 U.S. 343
Apprendi v. New Jersey, 530 US 466
Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 US 257 (1989)
United States v. Dixon, 347 US 381
Honeycutt v. United States 137 S Ct 1626, 198 L Ed 2d 73 (2017)
Garza v. Idaho, 139 S Ct 738, 203 L Ed 2d 77 (2019)
US v. Bradley, 969 F.3d 585 (6th Cir. 2020)
Libretti v. United States 516 US 29 (1995)
United States v. Booker 543 US 220 (2005)
United States v. Ely, 468 F.3d 399 (6th Cir. 2006)
United States v. Carpenter, 317 F.3d 618 (6th Cir. 2003)
United States v. Castello, 611 F.3d 399 (2d Cir. 2006)
United States v. Ortiz-Garcia, 665 F.3d 279 (1st Cir. 2011).
King v. Dutton, 17 F.2d 151 (6th Cir. 1994)
United States, v. Carreon-lharra, 673 F.3d 358 (5th Cir. 2012)
United States v. Syal 963 F.2d 900 (6th Cir. 1992)
United States v. Caruthers, 458 F.3d 459, 472 (6th Cir. 2006)
Santobello v. New York, 404 US 257
United States v. Zakharia, 418 Fed Appx414 (6th Cir. 2011)
United States v. Smith 344 F.3d 479, 483 (6th Cir. 2003)
United States v. Hidenbrand, 527 F.3d 466 (5th Cir. 2008)
United States v. Adams, 448 F.3d 492 (2d 2006)
United States v. Portillo-Cano .192 F.3d 1246 (9th 1999)
Gall v. United States 552 US 38
United States v. Hah*359 F.3d 1315 (10th 2004)
United States v. Winans 748 F.3d 268
United States v. Grundy, 844 F.3d 613 (6th Cir. 2016)
United States v. Marin 961 F.3d 493
United States v. Barnes, 278 F.3d 644 (6th Cir. 2001)
Staten v. Neal, 880 F.2d 962 (7th 1989)
United States v Attar 38 F.3d 727 (4th Cir. 1994)
'¥ United States v. Camacho-Arellano, 624 F.3d 244 (6th Cir. 2010)
% Rosales-Mireles v. United States 138 S. Ct. 1897
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STATUTES AND RULES
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21 USCS 841
21 USCS 846
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21 USCS 841(b)(1)(C)
8
18 USCS APPX or USSG 5E1.2
9
9
18 USCS APPX or USSG 5E1.2(c)(3), (c)(4)
18 USCS APPX or USSG 5E1.2 Comment n.4, and n.5
$
18 USCS 853
to
Fed. Crim. R. Proc. 32.2
Fed. Crim. R. Proc. Rule 11(b)(1)(H) and Notes of Advisory Committee on 2002 Amendment §
9
OTHER
The following Administrative Law Judge's ruling was cited as evidence in Statement of the Case and is available on Google as
a PDF file: ((A
TRULINCS 56246039 - CHANG, ZONGLI - Unit: ELK-H-B
Department of Health and Human Services, Department of Appeals Board, Civil Remedies Division
Zongli Chang, MD/Metro Home Visiting Physicians PLLC v Center for Medicare & Medicaid Services
Docket No. c-15-1577, Decision No. CR-4540 (March 3 2016)
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IN THE
SUPREME COURT OF THE UNITED STATES
PETITION FOR WRIT OF CERTIORARI
Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.
OPINIONS BELOW
C*] For cases from federal courts:
I
The opinion of the United States court of appeals appears at Appendix SL
the petition and is
fyj reported at M ■ $ vU .c>. Af LdX(S I
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[ ] has been designated for publication but is not yet reported; or,
[ ] is unpublished.
The opinion of the United States district court appears at Appendix
the petition and is
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[ ] reported at
; or,
[ ] has been designated for publication but is not yet reported; or,
is unpublished.
[ ] For cases from state courts:
The opinion of the highest state court to review the merits appears at
Appendix_____ to the petition and is
[ ] reported at
; or,
[ ] has been designated for publication but is not yet reported; or,
[ ] is unpublished.
The opinion of the _
appears at Appendix
court
to the petition and is
[ ] reported at
; or,
[ ] has been designated for publication but is not yet reported; or,
[ ] is unpublished.
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JURISDICTION
[ ] For cases from federal courts:
The date on which the United States Court of Appeals decided my case
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was
[ ] No petition for rehearing was timely filed in my case.
1)0 A timely petition for rehearing was denied by the United States Court of
Appeals on the following date:
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and a copy of the
order denying rehearing appears at Appendix
[ ] An extension of time to file the petition for a writ of certiorari was granted
to and including______
(date) on
(date)
in Application No.__ A
The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).
[ ] For cases from state courts:
The date on which the highest state court decided my case was
A copy of that decision appears at Appendix_______
[ ] A timely petition for rehearing was thereafter denied on the following date:
--------------------------------- , and a copy of the order denying rehearing
appears at Appendix
[ ] An extension of time to file the petition for a writ of certiorari was granted
to and including____
(date) on
(date) in
Application No.__ A
The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).
2.
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TRULINCS 56246039 - CHANG, ZONGLI - Unit: ELK-H-B
FROM: 56246039 CHANG, ZONGLI
TO:
SUBJECT: STATUTES
DATE: 12/07/2020 07:42 AM
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
AMENDMENT V
No person shall be ... deprived of life, liberty, or property, without due process of law; nor shall private property be taken for
public use, without just compensation.
Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witness against him; to have compulsory process
for obtaining witness in his favor, and to have the Assistance of Counsel for his defense.
Amendment XIV:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.
21 USCS 841. Prohibited acts A
(a) Unlawful acts. Except as authorized by this title, it shall be unlawful for any person knowingly or intentionally -- (1) to..
manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance;
21 USCS 841(b)(1)(C):
In the case of a controlled substance in schedule I or II,.... such person shall be sentenced to a term of imprisonment of not
more than 20 years ... a fine not to exceed the greater of that authorized in accordance with the provisions of Title 18, United
States Code, or $1,000,000 if the defendant is an individual.
21 USCS 846. Attempt and conspiracy
Any person who attempts or conspires to commit any offense defined in this title shall be subject to the same penalties as those
prescribed for the offense, the commission of which was the object of the attempt or conspiracy.
18 USCS 853. Criminal forfeitures
(a) Property subject to criminal forfeiture. Any person convicted of a violation of this title or title III punishable by imprisonment
for more than one year shall forfeit to the United States, irrespective of any provision of State law (1) any property constituting,
or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation.
In lieu of a fine otherwise authorized by this part [21 USCS 841 et seq.], a defendant who derives profits or other proceeds from
an offense may be fined not more than twice the gross profits or other proceeds.
Fed. R. Crim. Proc. (or, FRCP) 32.2
(b)(1)(A)...If the government seeks forfeiture of specific property, the court must determine whether the government has
established the requisite nexus between the property and the offense. ...(B) Evidence and hearing. The court's determination
may be based on evidence already in the record, including any written plea agreement, and on any additional evidence or
information submitted by the parties and accepted by the court as relevant and reliable. If the forfeiture is contended, on either
party's request the court must conduct a hearing after the verdict or finding of guilty.
(2) Preliminary order... (B) Timing. Unless doing so is impractical, the court must enter the preliminary order sufficiently in
advance of sentencing to allow the parties to suggest revisions or modifications before the order becomes final as to the
3.
a. '
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TRULINCS 56246039 - CHANG, ZONGLI - Unit: ELK-H-B
defendant under Rule 32.2(b)(4).
(5) Jury determination. (A) Retaining the jury. In any case tried before a jury, in the indictment or information states that the
government is seeking forfeiture, the court must determine before the jury begins deliberating whether either party requests that
the jury be retained to determine the forfeitablility of specific property if it returns a guilty verdict....
18 USCS APPX Federal Sentencing Guidelines (In Booker, the Court expressly stated that "Six Amendment jury-trial right held
to apply to Federal Sentencing Guidelines (18 USCS APPX).
(same statutes are under United States Sentencing Guidelines (USSG)):
5E1.2 Fines for individual Defendants
5E1.2(c)(3): Fine Table fines (for Offense Level 29-31, a minimum fine of $30,000, a maximum of $300,000).
5E1.2(c)(4): ...if the defendant is convicted under a statute authorizing ... a maximum fine greater than $500,000 ... In such
cases, the court may impose a fine up to the maximum authorized by the statute.
Commentary:
n.4. The Commission envisions that for most defendants, the maximum of the guideline fine range from subsection (c)will be at
least twice the amount of gain or loss resulting from the offense. Where, however, two times either the amount of gain to the
defendant or the amount of loss caused by the offense exceeds the maximum of the guideline, an upward departure from the
fine guideline may be warranted. Moreover, where a sentence within the applicable fine guideline range would not be sufficient
to ensure both the disgorgement of any gain from the offense that otherwise would be disgorged (e.g., by restitution or
forfeiture) and an adequate punitive fine, an upward departure from the fine guideline range may be warranted.
* '
n.5 Subsection (c)(4) applies to statutes that contain provisions permitting larger fines; the guidelines do not limit maximum
fines in such cases. These statutes include, among others: 21 U.S.C. 841(b) and 960(b)...; 21 U.S.C. 848(a)...; 18 USC 1956
(a)...; 18 USC 1957(b)(2) ...; 33 USC 1319(c)...; 42 USC 6928(d) ...; 52 USC 30109(d)(1)(D) ... for violation of 52 USC 30122...
Fed. R. Crim. Proc. Rule 11
(b)(1) During this address, the court must inform the defendant of, and determine that the defendant understands, the following:
...(H) any maximum possible penalty, including imprisonment, fine, and term of supervised release
Notes of Advisory Committee on 2002 Amendments
"Amended Rule 11(b)(1) requires the court to apprise the defendant of his or her rights before accepting a plea of guilty or nolo
contendere. The Committee determined to expand upon the incomplete listing in the current rule of the elements of the
"maximum possible penalty" and any "mandatory minimum" penalty to include advice as to the maximum or minimal term of
imprisonment, forfeiture, fine and special assessment, in addition to the two types of maximum and minimum penalties
presently enumerated: restitution and supervised release. The outmoded reference to a term of "special parole" has been
eliminated."
Fed. R. Crim. Proc. 32(h). Notice of Possible Departure From Sentencing Guidelines.
Before the Court may depart from the applicable sentencing range on a ground not identified for departure either in the
presentence report or in a party's prehearing submission, the Court must give the parties reasonable notice that is
contemplating such a departure. The notice must specify any ground on which the court is contemplating a departure.
4*.
i
TRULINCS 56246039 - CHANG, ZONGLI - Unit: ELK-H-B
FROM: 56246039 CHANG, ZONGLI
TO:
SUBJECT: STATEMENT OF THE CASE
DATE: 12/07/2020 09:22 AM
STATEMENT OF THE CASE
1. Zongli Chang MD PhD, pro se, pled guilty of violating 21 USCS 841 and 846, in a case in which some of his
patients/codefendants sold prescribed controlled medications. The plea agreement used merely alleged drug quantity and was
converted to "an equivalency under the Sentencing Guidelines exceeding 10,000 kg of marijuana", without any indicia how the
original drug quantity was reached (e.g., never provided implicated patient list included for drug quantity calculation for
verification), therefore does not meet the alleged "standard of proof': "preponderance of evidence". R. 177, PagelD 655. A set
of US Sentencing Commission Worksheets is attached at the end of the plea. Id PagelD 664-671. The Offense Level Total was
31 on Worksheet D with a corresponding Guideline Range of 108 to 135 months. Id. PagelD 668.
2. The matching Fine Table fines, pursuant to 5E1.2(c)(3) Fine Table are a minimum of $30,000 and a maximum of $300,000.
The statutory maximum fines, pursuant to 21 USCS 841(b)(1)(C) (also see PSR) is $1,000,000. Therefore, the Fine Guideline
Range is a minimum of $30,000 and a maximum of $1,000,000, pursuant to 21 USCS 841(b)(1)(C) and 5E1.2(c)(4). Id. PagelD
671.
3. The cover page expressly defined a "Maximum fine: Not to exceed $1,000,000. Id. PagelD 652. The plea stated "there is
no agreement as to fines"
4. The 2D1.1 Guideline mismatches merely alleged drug quantity and offense level (there is no proof any was correctly
calculated). The original pled Guideline 2D1.1(c)(5) Worksheet A corresponds to at least 1000kg but less than 3000 kg of
converted drug weight and a level of 31 in USSG. However, it mismatches with the merely alleged "12,394 kg marijuana
equivalency" and Level 34 (the Offense Level before adjustment) on Worksheet A. Id. PagelD 664. The Offense Level Total that
matches with 2D1.1 (c)(5) was 27, which matches Guideline Range of 70-87 months. The matching Fine Guideline Range would
be $25,000 to $1,000,000. There is no proof any of these were correct. The pled Count 1 would account for all the drug quantity
in all related Counts (Counts 2-36), yet the sum of indicted drug quantity in Counts 2-36 is 2085 U of Schedule II medications
(R. 1, PagelD 5-13), or estimated 186.2-212 kg (a range since exact dose of hydrocodone not listed) marijuana. Since he pled
to only Count 1, the total of indicted drug quantity that could be verified is 2085 U of Schedule II medications, far less than the
merely alleged drug quantity.
5. According to the Indictment and Plea, Dr. Chang received payments for seeing patients. "Following the issuance of the
prescriptions, the recruiters then transported the patients to various pharmacies where the prescriptions were filled, and then
took possession of the controlled substances for further illegal distribution". It did not have any information how Chang got one
penny of the drug proceeds because patients got prescriptions and sold pills to the codefendants among themselves and never
came back to divide the profits.
6. Government fabricated in Indictment (R.1, PagelD2) that "Dr. Zongli Chang fraudulently billed Medicare for physician
services until September 10, 2014, when his Medicare enrollment was revoked". Public record on internet (by Googling "zongli
chang PDF"; acceptable evidence per appellate rules) from Department of Health's Administrative Law Judge (ALJ)
(Department of Health and Human Services, Departmental Appeals Board, Civil Remedies Division, Zonglic Chang, MD/Metro
Home Visiting Physicians PLLC v.. Centers for Medicare & Medicaid Services, Docket No. C-15-1577, Decision No. CR4540,
March 3, 2016) would show that Government's claim about Medicare fraudulent billing and event related with September 10,
2014 was fabricated in Indictment and maneuvered in plea to fabricate a reason to tell about conspiracy. There was never
Medicare fraud involved. ALJ found that Medicare was at fault "For the reasons outlined above, I find CMS did not have a
legitimate basis to revoke Petitioner's Medicare Enrollment and billing priviledges on the grounds that Petitioner was not
operational, and I reverse its revocation determination and its imposition of a two-year reenrollment bar upon Petitioner". The
fabricated information went into Indictment, Plea, PSR and I was sentenced accordingly to this fabrication. I only knew the
codefendants for two years (mid-2015 to mid-2017; see codefendants' plea agreement for verification). However, three and half
more years were added to the conspiracy to make it start from January of 2012 according to this fabrication (see Indictment,
Plea Tr, Sentencing Tr and PSR) so that the Government could find an excuse to exact extra forfeiture amount of income from
seeing Medicare patients from a physician, without any basis. Dr. Chang's top end guideline sentence and huge fines were a
direct result of these fabricated, erroneous information.
7. "Income Analysis": Assume all the payments for seeing patients were drug proceeds and patients never needed any of the
medications or other services, which were not true even according to Government reports, and assume that the merely alleged
TRULINCS 56246039 - CHANG, ZONGLI - Unit: ELK-H-B
drug quantity of 161,280 unit doses of Schedule II controlled medications (Id. PagelD 655) meet factual basis requirement
beyond mere allegation, this amount of medications would be equal to about 2150 patients visits (161,280 divided by 75)
because usually 75 unit doses were prescribed on average per visit (Schedule IV medications were only sometimes prescribed
and therefore would not reflect number of visits). Using $150 per visit as described in plea, the total charged would be $322,500
(2150 x 150; Government's own reports show many patients need their medications, therefore this is not drug proceeds). Per
the plea, $400 were charged for a few new patients (to price out patients that want strong medications because patients with
insurance usually try to find doctors that would take their insurances; established patients before a cut off date were not
charged as such). With this information accounted, the total fees charged would not exceed $350,000 to $400,000.
(Calculations based on Government's merely alleged drug quantity; Stand of proof: beyond reasonable doubt, if Government
provided numbers are correct and assumptions of all being drug proceeds are coorect - much higher standandard than
government's mere allegations).
8. "Street Value Analysis": Using street value of medications to calculate possible proceeds (again, there is nothing in factual
basis to say I got one penny) would also be much smaller than the above, especially considering other parties in the conspiracy
(Standard of proof: preponderance of evidence).
9. The plea hearing was on 11/20/2018 (R.206 Plea TR.), during which the Judge mentioned the fine amount is unknown (Id.
PagelD 826) and did not even mention the "possible maximum penalty" in terms of fines besides mentioning that the Indictment
indicted a fine of up to a million (Id. PagelD 818). An 11(b)(1)(H) violation, making the plea agreement unknowing. There was no
mentioning that the fines could go up to 4 million.
10. In the Presentence Report (PSR), the Court changed the mismatching Guideline from 2D1.1(c)(5), matching 1000 to
3,000kg marijuana and Level 31 in plea agreement, to 2D1.1(c)(3), matching Level 34, with a three point Offense Level hike,
without mentioning the error, without making any factual finding as to why the Court wanted to change the Guideline to (c)(3),
although the Court noticed discrepancy in the drug quantity from different MERELY ALLEGED numbers it got, apparently from
Government. The PSR mentioned that forfeiture was going to be determined at sentencing. Beside the USSR Guideline code
change without mentioning the change from (c)(5) to (c)(3), the PSR gave same Guideline range in terms of imprisonment and
Fine Guideline Range, as in Plea Agreement. It stressed the Fine Guideline maximum of $1,000,000.
11. Government had frozen Dr. Chang and his family's accounts that included his wife's income from work and many years of
savings, account with his son's savings in it, accounts with large sum of income from another not-implicated business, Dr.
Chang's retirement account, income from long before the conspiracy including income from when he worked as a medical
research scientist, without proving any of these to be funds he acquired from the conspiracy. R. 97 and 100, Forfeiture Bill of
Particulars (see account lists that included his wife solely owned retirement account, his retirement account at Charles Schwab
and accounts solely or jointly owned, with his, her and their son's income and savings, including income from another notimplicated business).
12. On Nov. 20, 2018, the Court scheduled sentencing for March 27, 2019. Dr. Chang repeatedly contested the amount of
forfeiture in huge excess of the possible proceeds from pled crime. R. 200, 208, 217. Government encouraged the Judge to
schedule the requested forfeiture hearing on sentencing day, to which after contest of being against requirements of F.R.C.P.
32.2, Judge scheduled the hearing on March 26, 2019, the day before originally scheduled sentencing. On morning of the
hearing, Judge did not address Dr. Chang at all, and just asked the attorney to come to the back with the prosecutors. This
whole arrangement, along with the Plea that did not specify amount of forfeiture, gave substantial, substantive procedural
advantage to the Government to pass a message brought back by the attorney. The attorney told Dr. Chang $3 million is the
best offer from the Government, either take it, or go to a hearing with the sentencing the next day, during which time the
Government would paint the worst picture of him and he would be guaranteed the top end of sentence, without any reduction.
Dr. Chang realized that the procedural advantage that has been created would make him in jail for 135 months unless he sign
the document presented to him. He then signed the document: a Stipulated Amended Preliminary Order of Forfeiture in the
amount of 3 million dollars. Right after Dr. Chang signed, the Judge changed the sentence hearing to April 17, 2019, to make
the process looking like compliant with the requirement of F.R.C.P. 32.2.
13. The Court did not give any notice or give the ground for more fine besides the forfeiture, and also did not give any ground
for doing so in PSR, in violation of 32(h). At sentencing on 4/17/2019, the Judge imposed a 1 million dollar fine. In the written
Judgment (Appendix 2), the 3 million dollar forfeiture showed in the Schedule of Payment section, along with the 1 million dollar
fine. The attorney objected the 135 months sentence, denial of the downward departure request, and the fine and stated "[tjhe
total forfeiture and fines in this case have now exceeded, greatly exceeded the amount that Dr. Chang has earned as a result of
this activity" (Sentencing Tr.). The Judge did not give any specific reason why he departed from the Fine Table Guideline range
as defined in the Plea and PSR. He did not mention at all statutory maximum fine defined by the Plea and 21 USCS 841(b)(1)
(C) was exceeded by four fold and did not give any reasoning for doing so. He did not explain according to requirements of
statutes including 21 USCS 841, Federal Sentencing Guidelines (18 USCS APPX)/USSG, F.R.C.P. 32(h), as well as Supreme
Court's holdings in Booker, Apprendi, Southern Union Company.
6-
TRULINCS 56246039 - CHANG, ZONGLI - Unit: ELK-H-B
14. On Sept. 11, 2019, his attorney filed a brief against Dr. Chang's will and instruction not to file it, which resulted in Dr.
Chang to file a Motion to Withdraw Attorney and Supplement or Replace Brief on 9/25/2019 (#19-1478, R.18; original tile was:
Appeal Brief and change of attorney; more details later).Then Government filed a Motion to Dismiss based on appellate waiver
on 10/1/2019 (#19-1478, R.19). Without considering issues that fell out of the scope of the appellate waiver Dr. Chang raised in
R.18, and without allowing him to fully brief through supplementing or replacing the intended-to-be withdrawn brief, on
4/23/2020, the panel in Sixth Circuit dismissed his appeal based on appellate waiver to be a absolute bar of appeals(Appendix
1) without giving him a chance to fully brief. On 8/17/2020, Dr. Chang filed a Petition for En Banc Rehearing, it was denied on
9/9/2020 (Appendix 3).
7.
]
TRULINCS 56246039 - CHANG, ZONGLI - Unit: ELK-H-B
FROM: 56246039 CHANG, ZONGLI
TO:
SUBJECT: REASONS I. ISSUES,LAWS,HOLDINGS,CONFLICTS-FINES
DATE: 12/07/2020 09:39 AM
REASONS FOR GRANTING THE PETITION
I. THE MAIN SENTENCING ISSUES; CONFLICTS AMONG AND WITHIN CIRCUITS REGARDING FINE AND FORFEITURE,
IN CONFLICTS WITH STATUTES AND SUPREME COURT HOLDINGS
A. Analysis of The Main Sentencing Issues Which Make the Appellate Waivers Not Enforceable
1. Breach of plea agreement:
After signing a plea agreement with appellate waiver that was tied to a Guideline Range of 105 to 135 months, Fine Table
Guideline Range from $30,000 to 300,000 and Guideline Range fines of $30,000 to $1,000,000, with expressly stated and
defined maximum of 1 million dollars, which was also the statutory maximum of $1,000,000. The Court imposed a 1 million
statutory in personam fine on top of 3 million dollar "stipulated" in personam forfeiture. The total in personam fines reached
$4,000,000, BREACHING THE $1,000,000 MAXIMUM FINE DEFINED IN THE PLEA AGREEMENT. R177, COVER PAGE
PagelD 652, PagelD 671. Breached plea could not be enforced and is an issue that can not be waived by appellate waiver.
2. Rule 11(b)(1)(H) violation:
Both of the in personam fines were unknown in terms of amount, manner of deciding amount, at time of signing plea
agreement. The Court did not mention the maximum possible penalty as required by 11(b)(1)(H), besides mentioning the fine
amount was unknown, MAKING THE PLEA AGREEMENT UNKNOWING. The Court imposed procedurally and substantively
UNREASONABLE SENTENCE, without giving any notice of departure from Fine Guideline Range, nor giving any ground
sufficiently ahead of sentencing, in VIOLATION OF 32(h).
3. Total fines exceeded statutory maximum by four times: The total in personam fines exceeded the statutory maximum fines by
4 times. As clearly stated in PSR and plea agreement, the determining Guideline Range is.determined by 21 USCS 841(b)(1)
(C), which stated:
In the case of a controlled substance in Schedule I or II...such person shall be sentenced to a term of imprisonment of
not more than 20 years..., a fine NOT TO EXCEED THE GREATER OF that authorized in accordance with the provisions
of title 18, United States Code, OR $1,000,000 if the defendant is an-individual...
The "Title 18 provisions" above apparently is referring to 18 USCS 853 regarding criminal in personam forfeiture, which says
that persons convicted of certain drug crimes must forfeit to the United States (a)(1) "any property constituting, or derived from,
any proceeds the person obtained, directly or indirectly, as the result of such violation". 21 USCS 853 continued to clarify:
"IN LIEU OF a fine otherwise authorized by this part [21 USCS 841 et seq.], a defendant who derives profits or other
proceeds from an offense may be fined not more than twice the gross profits or other proceeds."
Combining the languages together, the statutory maximum fine in violation of 18 USCS 841(b)(1)(C) with Dr. Chang's
Guideline Range is "A FINE" "NOT TO EXCEED THE GREATER OF "$1,000,000" OR "not more than twice the gross profits or
other proceeds."
Please note the words "OR" in 841, and "IN LIEU OF" in 853. It does not mean "and", or "in addition to", as happened in my
case, an in personam fine plus another in personam fine called forfeiture. Please also note that Congress used the word "a fine"
and "be fined" in 21 USCS 841 and 18 USCS 853 to refer both fine and forfeiture as fines.
One thing is clear in Dr. Chang's case, a statutory maximum $1,000,000 fine, as defined in Plea, is already ordered by the
judge, another penny additional fine would make it to exceed statutory maximum. As a matter of fact, it is 3 million in excess of
the statutory maximum, or, four times of statutory maximum. An outside guideline judgment is an Booker issue and when the
judgment is above statutory maximum, it triggers Sixth Amendment jury trial right as in Apprendi v. New Jersey (530 US 466)
and Southern Union Company v. US (567 US 343) Supreme Court cases, a right that is not waived by the appellate waiver
(more discussion later).
4. Forfeiture analysis: The above analysis already established that the fines are in excess of 21 USCS 841 and 21 USCS 853
8.
i
TRULINCS 56246039 - CHANG, ZONGLI - Unit: ELK-H-B
defined statutory maximum fines. For clarity of the case purpose, please refer to the 7th and 8th paragraph of the Statement of
Purpose section: the "Income Analysis" (income would not exceed $350,000 to 400,000) and "Street Value Analysis" (Estimate
would not be bigger than income analysis). Although not one penny was proven by Government to be drug proceeds that Dr.
Chang "obtained", assuming 50% to be drug proceeds obtained, 2 x profits or proceeds would not exceed $400,000. Assuming
100% drug proceeds (contradicting Government's reports), 2x profits or proceeds would not exceed $800,000 (2x 400,000). In
a real conspiracy, if the Petitioner got all the profits, nobody would be participating. Notice this apparently exaggerated profit or
proceeds even did not exceed the $1,000,000 statutory maximum fines. In real life situations of drug trafficking, the profit
amount should be most likely within the Fine Guideline Range, limited by drug quantity, in other words, under $300,000. This is
an amount the Booker Court asked all Courts to explain if departed upward. Moreover, the Booker, Apprendi, Southern Union
Company Courts and the Congress would all inquire into the holdings of the Courts.
1/ u-S •
S[62-6 (2-Ol7>
5. Honeycutt violation: Government violated Supreme Court Honeycutt ruling on forfeiture. The Government explicitly wrote to
Court that the following "is forfeitable including (1) amounts derived from uncharged substantive conduct; (2) proceeds of a
conspiracy, the aspects of which were not fully alleged in an indictment; and (3) proceeds resulting from acts for which the
defendant was not personally responsible". R. 207. PagelD 844. These include claims or crime Petitioner never admitted to,
never proven in court and all of these are proceeds petitioner never "obtained" and involved joint and several liability. These are
banned by Honeycutt, pursuant to 21 USCS 853(a).
B. SUPREME COURT REITERATED REPEATEDLY THAT CRIMINAL FORFEITURE UNDER 21 USCS 853 IS A FINE
Not only Congress used terms of "fine" to refer to forfeiture, for example, in cited paragraphs of 21 USCS 841, 18 USCS 853
above, in USSG (also 18 USCS APPX) and in 21 USCS 855 (Alternative Fines). Supreme Court noted "that at the time the
Constitution was adopted, ’the word "fine" was understood to mean a payment to a sovereign as punishment for some offense.'" (Browning-Ferris Industries of Vt. Inc. v. Kelco Disposal, Inc, 492 U.S. 257, 265 (1989)). "Forfeitures - payments in
kind - are thus 'fines' if they constitute punishment for an offense." United States v. Bajakajian 524 US 321. "This forfeiture is
plainly a penalty since there is no practical difference between taking a man's property by forfeiture and taking his money by a
fine". United States v. Dixon, 347 US 381.
C. STATUTES ABOUT GUIDELINES OF FINE THAT INVOLVES FORFEITURE:
1. Criminal fine Guideline Range apply to fines including forfeiture and Booker applies:
Fine Table Guideline minimum and maximum are determined by Offense Level under FEDERAL SENTENCING GUIDELINES
18 USCS APPX (or USSG) 5E1.2(c)(3), (c)(4). These apply to forfeiture and is made clear in 5E1.2 Comment n.4:
"The Commission envisions that for most defendants, the maximum of the guideline fine range from subsection (c) will
of
be at least twice the amount of gain or loss resulting from the offense. Where, however, two times either the amount
gain to the defendant or the amount of loss caused by the offense exceeds the maximum of the fine guideline, an
upward departure from the fine guideline maybe warranted. Moreover, where a sentence within the applicable fine
guideline range would not be sufficient to ensure both the disgorgement of any gain from the offense that otherwise
fine
would be disgorged (e.g., by restitution or forfeiture) and an adequate punitive fine, an upward departure from the
guideline range may be warranted".
Apparently, this Comment n.4 talks about how the Fine Table guideline and fine Guideline Range should be applied in
forfeiture and restitution and said in most cases the maximum of (c)(3) Fine Table Range should be at least twice amount of the
gain for forfeiture purpose. Upward departure could be warranted from the Fine Table Guideline or Fine Guideline Range to
disgorge all gain from the offense.
Booker (US v. Booker 543 US 220) apply and court needs to explain why when Fine Table Range is exceeded when it
departed upward (more below).
2. 5E1.2(c)(4) and 5E1.2 Comment n.5 defined statutory maximum for criminal fines under many statutes, Booker made
Apprendi applicable to criminal fine and forfeiture where statutory maximum apply
According to 5E1.2(c)(4), "if the defendant is convicted under a statute authorizing ...a maximum fine greater than $500,000"
"the court may impose a fine up to the maximum authorized by the statute". Then Comment n.5 gave a list of such statutes: 21
USC 841(b), 960(b), 848(a), 18 USC 1956(a), 1957(b)(2), 33 USC 1319(c), 42 USC 6928(d), 52 USC 30109(1 )(D), 30122.
As mentioned earlier 5E1.2 Comment n.4 made it clear the criminal Fine Guideline Range apply to forfeiture. Therefore,
5E1.2(c)(3), (c)(4), Comment n.4 and n.5 defined the statutory maximum for fines and forfeiture under the above mentioned
statutes.
<?.
TRULINCS 56246039 - CHANG, ZONGLI - Unit: ELK-H-B
3. Booker Court expressly extended its Sixth Amendment jury trial holdings to 18 USCS APPX Federal Sentencing Guidelines
and made the Apprendi holding applicable to criminal fine and forfeiture
In Booker, the Court expressly stated that both its "Sixth Amendment holding" and "Sentencing Act" must be applied "to all
cases on direct review. Id. at 268. Booker holds that "Sixth Amendment jury-trial right held to apply to Federal Sentencing
Guidelines (18 USCS APPX); Guidelines made effectively advisory...; these holdings held to apply to all cases currently pending
on direct review". The Booker Court extended Apprendi and Blakely to the Federal Sentencing Guidelines, holding the Sixth
Amendment Right requires that "any fact (other than a prior conviction) which is necessary to support a sentence exceeding the
maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to
a jury beyond a reasonable doubt.” Id, 125 S. Ct at 756.
Therefore, Because Booker extended Apprendi and Blakely's Sixth Amendment jury-trial right to the entire Sentencing
Guidelines, including criminal fines. It included 5E1.2. Because 5E1.2(c)(4) and Comment n.5 defined statutory maximum for
many statutes where statutory maximum apply, APPRENDI APPLY TO THESE STATUTES (SEE LIST ABOVE OR UNDER
5E1.2 COMMENT n.5).
In Southern Union Company, the Supreme Company affirmed this and noted that Apprendi rule apply to criminal fines and
the statute involved is 42 USC 6928(d), one that is listed under 5E1.2 Comment n.5.
5E1.2 Comment n.4 explained that the fine guideline range applies to forfeiture and restitution. Upward departure from
statutory maximum when it is also guideline range maximum is allowed in order to disgorge all profits (as much as 2x profits),
but then Apprendi and Southern Union Company would apply. In the same time, 21 USCS 853, Fed. R. Crirn. Proc. 32.2 and
Honeycutt ruling all apply. Therefore, there is no conflicts with 21 USCS 853 or any other forfeiture statute.
4. Southern Union Company Court included forfeiture in its criminal fines ruling
In Southern Union Company v US (567 US 343), the Court holds that the rule of Apprendi applied to the imposition of
criminal fines. In examining historical record, the Court stated "the record supports applying Apprendi to criminal fine ...for some
other offense, the maximum fine was capped by statute" and then gave an example of such statute "any consul who gives a
false certificate shall "forfeit" and pay a fine not exceeding ten thousand dollars, at the discretion of the court". The statute
example of forfeiting the fine makes it clear that Southern Union Company Court meant to apply its ruling of applying Apprendi
to the imposition of criminal fines include forfeiture when statutory maximum applies (see 5E1.2 Comment n.5 for a list of such
statutes).
(Part I continued on next page)
t O.
;
TRULINCS 56246039 - CHANG, ZONGLI - Unit: ELK-H-B
FROM: 56246039 CHANG, ZONGLI
TO:
SUBJECT: Reasons I. ISSUES AND LAW (continued)
DATE: 12/07/2020 09:47 AM
Part I, C: continued
5. Circuit courts historically use guideline range to measure excessiveness of forfeiture, but has made rulings that conflicts each
other, with statutes and Booker, Apprendi and Southern Union Company
Sixth Circuit, in United States v. Ely (468 F.3d 399), considered the guideline fine range and the statutory maximum in
assessing proportionality in a criminal forfeiture case akin to Bajakajian and found that "the forfeiture amount here is also within
the statutory fine of $250,000". 468 F.3d 399, 403 (6th Cir. 2006). Also see US v. Carpenter 317 F.3d 618 (6th Cir. 2003).
In US v. Castello, 611 f.3d 116 (2d Cir. 2014), Second Circuit made it clear "However, the proposed forfeiture must also be
compared to the Guidelines range" and "the relevant metric is the top of the Guidelines for the fine and for imprisonment". Id. at
123.
However, after Supreme Court clarified that Apprendi applies to criminal fines in Southern Union Company v. United States,
one circuit after another started turning against using statutory maximum in assessing jury trial right involving criminal forfeiture,
claiming there is no statutory maximum for criminal forfeiture, despite the apparent list of such statutes in USSG 5E1.2,
Comment n.5 in relation to 5E1.2(c)(4) and despite 5E1.2 Comment n.4 expressly tied forfeiture to the criminal fine guideline
range.
For example, in United States v. Bradley 969 F.3d 585, 590 (6th Cir. 2020), Sixth Circuit stated that "But no jury right exists in
criminal forfeiture proceedings", quoting Libretti v. United States 516 US 29, 49. However, Libretti was strictly about if jury right
in 32(e) exists for petitioner who has a forfeiture defined and embodies in a plea agreement. 32(e) was repealed and the Due
Process is now governed by 32.2 and 32.2(b)(5) specifically talks about jury determination in relation to a trial. Therefore,
Libretti's holdings no longer apply when its underlying focus of discussion 32(e) no longer exists. Therefore, Libretti did not say
Southern Union Company's ruling about jury trial does not apply to criminal forfeiture. As a matter of fact, Booker Court
expressly extended Apprendi to the entire Federal Sentencing Guideline 18 USCS APPX, which 5E1.2 Comment n.4, which
talked about is part of. Southern Union Company gave an explicit historical statute where forfeiting and fine was capped(discussed earlier).
Therefore, the issue of if Apprendi and Southern Union apply to forfeiture resolves by itself, when all statutes and Supreme
Court rulings are taken together. When statutes define statutory maximums that apply to sentencing guidelines, Booker made it
clear, Apprendi apply to the guidelines that include criminal fine, forfeiture. Accordingly, these statutes, USSG, relevant forfeiture
statute, and relevant guideline and forfeiture related Supreme Court rulings including Booker, Apprendi, Southern Union
Company, Honeycutt needs to be assessed together. All circuit rulings should satisfy all these statutes and holdings. By taking
Libretti's outdated opinion and other circuit's rulings that conflict with statutes and Supreme Court rulings would lead to
erroneous decisions.
6. Conclusion as to my case
As to my specific case, the Court did not let Petitioner know that he would.be exposed to 4 million dollar total fines either in
plea hearing, plea, PSR or anytime before sentencing, this made the waiver unknowing and unenforceable. Neither was it
explained why the total fines exceeded the pled Fine Table Guideline, nor was it explained why the total fines exceeded the
Fine Guideline range maximum and statutory maximum, nor was it explained why the maximum fine defined in plea's promise
on cover page was breached. The explicit language of 21 USCS 841 (b)(1)(C) regarding fines not to exceed the greater of
$1,000,000 or two times gross profits or proceeds, in other words, 841(b)(1)(C) defined statutory maximum, was exceeded, by
four times. These make Booker, Apprendi and Southern Union Company's Sixth Amendment jury trial right applicable.
(Part II on next page)
i I.
TRULINCS 56246039 - CHANG, ZONGLI - Unit: ELK-H-B
FROM: 56246039 CHANG, ZONGLI
TO:
SUBJECT: REASONS II: WAIVER NOT ABSOLUTE BAR TO APPEALS
DATE: 12/07/2020 09:51 AM
II. SIXTH CIRCUIT'S DECISION TO ENFORCE AN UNENFORCEABLE DECISION CONFLICTS WITH SUPREME COURT,
OTHER CIRCUITS AS WELL AS ITS OWN HOLDINGS
A. In its decision of dismissal, Sixth Circuit erroneously treats appellate waiver as an absolute bar of appellate claims
On 9/25/2019, Petitioner filed an Appellant Motion to Withdraw Counsel and to Supplement or Replace Brief (#19-1478, R.
18; original title: Appeal brief and change of attorney), in which I listed nine Exhibits including two certified mails and numerous
emails communications with my attorney Mr. Chapman, to show that despite my requests to discuss with him about appealable
issues, he never did. Dr. Chang explained in the brief that not discussing with him about appealable issues does not meet ABA
appellate standard (ABA Std, Criminal Appeals Std 21-22(b); ABA Std, The Defense Function Std. 4-8.2(a)) and that I need to
withdraw him as counsul (R.18, Page 1). He also explained, on 9/10/2019, the day before the due date for a brief, Mr. Chapman
sent petitioner a draft of his brief. Dr. Chang found out that his brief was lacking in depth and did not address issues Chang tried
to talk with him at all. Dr. Chang clearly told him not to file the draft version and instructed him to "please file an extension" and
stressed, in caps, that "I NEED TO READ THE FINAL BRIEF BEFORE FILING (Id. Page 2 and Exhibit 9 on Page 13).
Petitioner mentioned about "significant appealable issues that Mr. Chapman failed to address, such as government and court's
violation of 21 USC 853 and 21 USC 841 regarding fine and penalty, government's breach of plea agreement in seeking a fine
that was 4 times as much as the maximum amount defined by the plea agreement and 21 USC 841, insufficient and erroneous
factual basis that is contradicted by facts and evidence and even by other codefendants's plea agreements, reasonableness of
sentencing .." (Id. Page 2). On 10/1/2019, the Government filed a Motion to dismiss based on appellate waiver. The Court
allowed him to find a new attorney, but never gave him a chance to supplement or replace the brief all appealable issues and
dismissed the appeal based on appellate waiver on 4/22/2020 (Appendix 1).
In its opinion, the panel cited United v. Grundy, 844 F.3d 613, 616 (6th Cir. 2016) and ignored Dr. Chang's request in a motion
to supplement or replace brief and ignored the fact that the total criminal fines departured from the pled fine guideline range by
four times and exceeded the statutory maximum by four times, and quoted United States v. Grundy, 844 F.3d 613, 616 (6th Cir.
2016) that stated "[B]y agreeing to waive his right to appeal his 'sentence', [a] defendant waive[s] any challenge to each of the
constitutent elements of his sentence, including restitution."). The panel did evaluate and denied 11(b)(1)N) violation. However,
the panel failed to recognize the apparent fact that the Fine Guideline Range maximum, which is derived from the statutory
maximum of 21 USCS 841 (b)(1)(C), that is tied to the appellate waiver, was exceeded by four times. Nowhere in the plea
agreement, PSR, plea hearing could it be found that Dr. Chang knew that he was going to be fined to four times Plea promised
maximum (11(b)(1)(H) violation), which is also the guideline range maximum and statutory maximum, making the appellate
waiver unknowing, involuntary, unintelligent made, invalid and the sentence not reasonable, in violation of Booker, Apprendi and
Southern Union Company.
The panel answered Dr. Chang's argument "that enforcing his appeal waiver will result in a miscarriage of justice" and that
"[a]t the outset, a valid appeal waiver does not necessarily deprive us of jurisdiction to correct an unlawful sentence. See United
States v. Caruthers, 458 F.3d 459, 472 n.6 (6th Cir. 2006)
In other words, without even allowing the Petitioner to fully brief (supplement or replace the brief), the panel took the
appellate waivers appellate bar to any appeals.
In Garza v. Idaho, 203 L Ed 2d 77 (2019), in explaining the term "appeal waivers", Supreme Court clarified that "no appeal
waiver serves as an absolute bar to all appellate claims". "All jurisdictions appear to treat at least some claims as unwaiveable.
Most fundamentally, courts agree that defendants retain the right to challenge whether the waiver itself is valid and enforceablefor example, on the ground that it was unknowing or involuntary. Consequently, while signing an appeal waiver means giving up
some, many, or even most appellate claims, some claims nevertheless remain" Id. at 86. In n.6, the Court further noted that
"Lower courts have also applied exceptions for other kinds of claims, including 'claims that a sentence is based on race
discrimination, exceeds the statutory maximum authorized, or is the product of ineffective assistance of counsel.1 King & O'Neill,
Appeal Waivers and the Future of Sentencing Policy, 55 Duke L.J. 209, 224 (2005)(collecting federal cases); see also, e.g.,
United States v. Puentes-Hurtado, 794 F.3d 1278, 1284 (CA 11 2015)([A]ppellate review is also permitted when a defendant
claims that the government breached the very plea agreement which purports to bar him from appealing or collaterally attacking
his conviction and sentence")...(holding that appeal waivers are subject to a "miscarriage of justice" exception)".
In various cases, Sixth Circuits have similar views regarding all above issues discussed above in Garza (see more discussions
I z.
TRULINCS 56246039 - CHANG, ZONGLI - Unit: ELK-H-B
later). These made the panel's dismissal quoting an absolute bar to stand on thin ground. In United States, v. Caruthers, 458
F.3d 459, 472, Sixth Circuit held that "an appellate waiver does not preclude an appeal asserting that the statutory-maximum
sentence has been exceeded". Well, Dr. Chang's waiver was tied to a 1 million statutory Max guideline, never knew he would
get 4 million total fines, making the plea unknowing. Also the statutory maximum has been exceeded in this case and the
guideline promise was breached.
/
B. Unknowing plea is unenforceable: 11 (b)(1)(H) violation
As described above in Garza, unknowing plea is not valid and unenforceable. An appeal waiver can not "bar a claim that the
waiver itself - or the plea agreement of which it was a part - was unknowing and involuntary". United States v. Carreon-lharra,
673 F.3d 358, 362, n.3 (5th Cir. 2012).
Rule 11 held that "the court must inform the defendant of, and determine that the defendant understands, the following ...(H).
any maximum possible penalty, including imprisonment, fine, and term of supervised release". In the Notes of Advisory
Committee on 2002 Amendments under Rule 11, the Committee wrote "Amendment Rule 11 (b)(1) requires the court to apprise
the defendant of his or her rights before accepting a plea of guilty .... The Committee determined to expand upon the
incomplete listing in the current rule of the elements of the "maximum possible penalty" and any "mandatory minimum" penalty
to include advice as to the maximum or minimum term of imprisonment, forfeiture, fine, and special assessment, in addition to
the two types of maximum and minimum penalties presently enumerated: restitution and supervised release...". Therefore, total
maximal possible fines including fine, forfeiture, special assessment, and restitution were all part of this requirement.
In United States v. Ortiz-Garcia, "Fed. R. Crim. P. 11(b)(1)(H) refers to 'maximum possible penalty' and not to 'statutory
penalty' or 'statutory maximum'; it therefore does not provide exception for situations in which statute itself does not specify
maximum". 665 F.3d 279 (1st Cir. 2011). "Fed. R. Crim. P. 11 violation constituted plain error because district court failed to
comply with Rule 11(b)(1)(H)'s mandate that it inform defendant of, and ascertain defendant's understanding of, any maximum
possible penalty". Id.
In Sixth Circuit, similar standard is held. "However, it is well-established that 'for a defendant's plea of guilty to be voluntary,
the defendant must be aware of the maximum sentence that could be imposed." King v. Dutton, 17 F.3d 151, 154 (6th Cir.
1994). See Rueas v. Wolfenbarger, 580 F.3d 403 (6th Cir. 2009), where defendant did not know maximum sentence he was
exposed. Also see United States v. Syal, 963 F.2d 900, 905 (6th Cir. 1992): "To plead knowingly, the defendant must know the
maximum possible penalty provided by law." (internal quotations omitted); and United States v. Monie, 858 F.3d 1029 (6th Cir.
2017).
Petitioner never knew the "maximum possible penalty" was going to be 4 million. As a matter of fact, I was fooled to believe it
was going to be below the Fine Table maximum since that was what I pled to and thought at most it was going to be 1 million
because I never thought the Government would breach words on paper and play a game to get an absolute-bar type of
appellate waiver and trap me into a much higher penalty that I was never told since I could not appeal if his language to match
Grundy-type appellate waiver work for the appellate court.
Nevertheless, the Rule 11(b)(1)(H) violation made the plea unknowing, involuntary and not intelligent. The plea agreement is
therefore unenforceable.
(PART II continued on next page)
IS.
TRULINCS 56246039 - CHANG, ZONGLI - Unit: ELK-H-B
FROM: 56246039 CHANG, ZONGLI
TO:
SUBJECT: Reasons II. NOT ABSOLUTE BAR - (CONTINUED)
DATE: 12/06/2020 11:23 PM
(PART II continued)
C. Sixth Circuit interpreted ambiguous appellate waiver that was constructively-worded in Grundy-type language in
government's favor
Supreme Court held that, in appropriate cases, the Court apply "the common-law rule of contract interpretation that a court
should construe ambiguous language against the interest of the party that crafted it." Mastrobuono v. Shearson Lebman Hutton,
Inc., 514 US 52, 62. "[P]lea agreement is contractual in nature, and as such, courts are guided by general principles of contract
interpretation when construing plea agreements." United States v. Moncivais 492 F.3d 652, 662. (6th Cir. 2007). "[A] plea
agreement is ambiguous if it is capable of more than one reasonable interpretation." United States v. Debreczeny, 69 Fed Appx
702, 706 (6th Cir. 2003) (quoting United States v. Gebbie, 294 F.3d 540, 551 (3d Cir. 2002))" (United States v. Zakharia (418
Fed Appx 414 (6th Cir. 2011).
In a case similar to the case US v. Grundy used by Sixth Circuit to dismiss this case, United States v Chino 331 Fed APPX
592 (6th Cir. 2009), Sixth Circuit first explained that "we read any ambiguities in plea agreements against the government, and
in favor of a defendant's right to appeal" and "[w]hile the portion of the agreement entitled "SENTENCING" includes "restitution
as may be ordered by the Court, ...the appellate waiver indicates only that Ms. Chino "knowingly waive[d] the right to appeal
any sentence within the maximum provided in the statute of conviction (or the manner in which that sentence was
determined)"...whether the sentence includes an order of restitution, with regard to the appellate waiver, is unclear".
In another similar case, the Court found that because "[t]he plea agreement is ambiguous as to the amount and manner of
determining restitution", "[w]e therefore hold that Defendant's appeal is not waived. See United States v. Johnson, 979 F.2d
396, 399 (6th Cir. 1992)(stating that "ambiguity [in a plea agreement] must be construed against the government"). United
States v. Smith 344 F.3d 479 (6th Cir. 2003).
Zakharia's case is extremely similar to the current case, although the current case involved more problems as described. It
even contained specific language that says he waived appeals as to fines. However, as in the current case, Zakharia's case
specifically states "[t]here is no agreement as to fines" and his total fines exceeded guideline maximum. And as in this case
described in Statement of the Case, at 13, Zakharia reserved his objection. Because of these, he held that "he has not waived
the right to challenge on appeal the fine and costs imposed by the district court. The court found that "Zakharia's contrary
interpretation is equally viable. This ambiguity requires that we give the benefit of the doubt to Zakharia". Zakharia, 418 Fed
Appx 414.
In the current case, the plea agreement clearly stated "there is no agreement as to fines". Its waiver language stated "[i]f the
defendant's sentence of imprisonment does not exceed 135 months, the defendant also waives any right he may have to
appeal his sentence on any grounds". In this waiver language, two occasions of the same word within the same sentence
should be referring to the same thing. There is no doubt the first word "sentence" means "sentence of imprisonment" and by
logic, grammar, common sense, good practice of writing, and ethics of good moral value in practice of law, the second
"sentence" also means sentence of imprisonment. At least this created a viable interpretation, an ambiguity. The fact that the
plea explicitly stated "there is no agreement as to fines" adds to the argument, and the counsel's objection to the fines including
forfeiture at sentencing confirmed the argument. For example, if I make such a promise to John Smith by writing "since John
Smith is a good friend, I will send John a gift". The readers would understand it to mean that John Smith should expect a gift,
not John Doe, or John Miller. At least, I meant to refer to John Smith is a viable interpretation, if not prevailing one.
However, the Government insists that the second instance of "sentence" means sentence of fine, forfeiture, restitution, or
anything, at any amount, creating a situation that thee signer would be subject him to be sentenced at the whim of the Court, for
indefinite amount of fines to wipe out defendant's all assets. In Caruthers, Sixth Circuit made it clear that "It is well settled in
federal courts that 'a defendant who waives his right to appeal does not subject himself to being sentenced entirely at the whim
of the district court.' United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992)" Caruthers, 458 F.3d at 471 and "we agree with
our unanimous sister circuits that an appellate waiver does not preclude an appeal asserting that the statutory-maximum
sentence has been exceeded". In other words, the Government's interpretation would not be enforceable when the fines
exceeded statutory maximum sentence.
Significantly, the ambiguity in the waiver is constructively-worded to follow a similar pattern - waive one thing and then claim
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more later for unknown amount of criminal fines or forfeiture - all these cases (Zakharia, Grundy, US v Winans 748 F.3d 268
(6th Cir, 2014), and this case) originated from the same Eastern District Court of Michigan. But in Grundy and Winans, the
cases are distinguishable in that the plea was not unknowing in that defendants knew their maximum exposure of penalty, while
in Zakharia, the Circuit Court ordered district to correct his sentence. If the Government meant to include all types of sentences,
just say so. To constructively and intentionally word a waiver to say one thing and then claim more later is deceiving and is a
trap and, according to Supreme Court, is unenforceable.
In dismissing the appeal by citing US v. Grundy (844 F.3d 613)(6th Cir. 2016) without addressing the clear ambiguities and
the distinguishable characteristics, the panel's opinion contradicted that of the Supreme Court, in Mastrobuono v Shearson
Lehman Hutton, Inc., regarding the common-law rule of contract interpretation and that of the Sixth Circuit's standings in Smith,
Chino and Zakharia, and essentially made the appellate waiver absolute bar for appeals, and is contracting this court's opinion
in Garza v. Idaho.
D. Even If The Appellate Waiver Is Knowing And Not Ambiguous, It Was Still Not Enforceable Because It Was Tied To A Fine
Guideline Range And The Range Maximum (Plea Agreement) Was Breached And Statutory Maximum Was Breached
1. The panel's assessment of upward departure from guidelines and miscarriage of justice:
The panel did address the issue of guideline range and its maximum was breached by a factor of four: "Chang's argument is
that his fine, when combined with a $3,00,000 forfeiture judgment enforced by the district court, "exceedjs] the maximum fine by
a factor of four." This is information that would make the panel be on alert it would make Grundy and Winans not applicable
because in both cases the defendants knew ahead of time their exposure range and the range was not breached either. The
panel argued that since Chang does not allege that he will be unable to pay the fine in reasonable installments, and he is
psychologically capable of entering a knowing plea. Therefore, "Chang has not established that enforcing his appeal waiver will
result in a miscarriage of justice".
2. Circuit holdings in assessing miscarriage of justice
US v. Hahn (359 F.3d 1315) is frequently cited in assessment of miscarriage of justice: "Appellate waivers are subject to
certain exceptions including (1) where the district court relied on an impermissible factor such as race, (2) where ineffective
assistance of counsel in connection with the negotiation of the waiver render the waiver invalid, (3) where the sentence exceeds
the statutory maximum, or (4) where the waiver is otherwise unlawful".
In various cases, various circuits recognizes the above exceptions to appellate waivers. See Gruthers, King v. Dutton in Sixth
Circuit. In United States v. Attar, 38 F.3d 727 (4th Cir. 1994) holds that a defendant "could not be said to have waived his right to
appellate review of a sentence imposed in excess of the maximum penalty provided by a statute or based on a constitutionally
impermissible factor such as race".
3. The total criminal fines of four millions exceeded statutory maximum by a factor of four
The plea's cover and fine guideline range clearly limited fine not to excess 1 million dollars, as is limited by 21 USCS 841(b)
(1)(C) and also defined statutory maximum as 1 million, as was in PSR. This, however, was breached by a factor of four.
Therefore, as adequately discussed, this made the appellate waiver unenforceable. "A defendant who executes a general
waiver of the right to appeal his sentence in a plea agreement does not [thereby] subject himself to being sentenced entirely at
the whim of the district court. US v. Marin, 961 F.2d 493, 496. See also Caruthers, Attar, Hahn. This also triggered Sixth
Amendment jury trial right as defined by Apprendi, and Southern Union Company and affirmed in Booker.
4. The upward departure from fine guideline maximum by a factor of four breached the plea agreement
In US v. Barnes 278 F.3d 644 (6th Cir. 2001), "the government breached the plea agreement in the matter at hand by failing
to expressly request that Defendant be sentenced at the low end of the guideline range". In the current case, the Government
limited maximum fine not to exceed 1 million, and tied the appellate waiver to a fine guideline range of $30,000 to $1,000,000,
but ended up started pursuing 4 million or more in total fines. The fines Dr. Chang received as a result of Government's actions
breached the plea.
In Barnes, Sixth Circuit relied mainly on Santobello v. New York, 404 US 257, and stated ""[b]ecause a defendant is foregoing
these precious constitutional guarantees when entering into a plae agreement with the government, it is essential that "fairness"
on the part of the prosecutor is presupposed." See Santobello, 404 US at 261. In this context, "fundamental fairness means that
the courts will enforce promises made during the plea bargaining process that induce a criminal defendant to waive his
constitutional rights and plead guilty." (quoting Staten v. Neal, 880 F.2d 962,963 (7th Cir. 1989).
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In Barnes, the Court followed Supreme Court's Santobello's remedy:"we VACATE Defendant's sentence and REMAND for
resentencing before a different district judge". (Santobello, 404 US at 263).
5. Lower Court's Decision of Dismissal Violated Defendant's Fifth Amendment Right of Due Process and Equal Protection
"The Fifth Amendment does not contain an explicit equal protection clause as does the Fourteenth Amendment applicable on
its face only to the states, but statutory classifications may be so unjustified as to be violative of the due process clause of the
Fifth Amendment (...). Consequently, the due process clause of the Fifth Amendement provides the same basic safeguards as
the equal protection clause and the general principles of the latter apply to the former" (US v. Craven 478 F.2d 1329, 1338)f
£* r .
The lower court cited US v. Grundy in dismissing this case, but in Grundy's case, the Petitioner was allowed to fully brief
because"" [gjiven the fact-specific inquirey necessary to determine whether the appellate-waiver provision is enforceable," we
deferred decision on the govenment's motion until full briefing and preparation of the record" ..."Having received both, the
appeal and motion are ripe for decision".
(♦7? >.
However, in the current case, after Dr. Chang showed evidence that the brief was filed against his will when his counsul did
not follow ABA Std and filed a Motion to Withdraw Attorney and to Supplement or Replace Brief (#19-1478; R.18; see Statement
of the Case, at 14 for more details). The Court allowed him to withdraw his attorney, but dismissed the appeal on Government's
motion to dismiss before he was able to fully brief by supplementing or replacing the originally wrongly filed brief, citing Grundy.
However, as in my case, the appellate waiver was tied to "a USSG range that itself was explicitly based on a specific Iss
amount range", "of between $1 million and $2.5 million". His restitution amoun of $1,380,767 was well within the range. Grundy,
844 F.3d at 614. Similarly, in Wnans, the case cited in Grundy to make its ruling, the court explained the difference of that case
with US v. Smith 344 F.3d 479, and made the case that Smith's plea was neither knowing or voluntary because he did not know
the amount and manner of determinng amount of restitution, then explained that his restitution sentence amount was of about
4.8 million (next page)
(
TRULINCS 56246039 - CHANG, ZONGLI - Unit: ELK-H-B
FROM: 56246039 CHANG, ZONGLI
TO:
SUBJECT: REASONS III UNREASONABLE SENTENCE
DATE: 12/07/2020 07:34 AM
was within the guideline loss amount of between 7 to 20 million dollars, that he knew before signing plea.
In other words, the panels in Winans and Grundy assessed the appealable issues of unknowing plea, guideline departure,
and breach of plea, which are nonexistent in these.
The panel knew that Dr. Chang was sentenced to fines "exceeding] the maximum fine by a factor of four" (Appendix 1,
Page3), and that Dr. Chang did not know this before signing the plea, yet still used Grundy to dismiss his appeal.
There is no rational basis for the appellate court to blindly take Dr. Chang's appellate waiver as an absolute bar to any
appeals, and apply a different standards as the "binding precedent" Grundy by neglecting the apparent departure that "exceed
[s] the maximum by a factor of four" and not to give him a chance to fully brief, to deny his appeals. There is no rational basis in
ignoring the apparent ambiguity constructively created to deceive - in other words, if the Government who drafted the plea
intended to enforce a broader appellate waiver, they should write it clearly as such, instead of writing it in a way that are more
likely to be logically interpreted in a much narrower way than not as a inducement, if not deception and trap, for the signer
defendant.
Therefore, Sixth Circuit violated Dr. Chang's Fifth Amendment Rights of Due Process and Equal Protection in Direct Appeal
process in applying different standards to its cited case and defendant in Grundy. He was not equitably denied a chance of
direct appeal guaranteed by law.
III. INSUFFICIENT FACTUAL BASIS, PROSECUTORIAL MISCONDUCT, DISTRICT COURT'S JUDGMENT IS
PROCEDURALLY AND SUBSTANTIVELY UNREASONABLE
A. Insufficient Factual Basis and Prosecutorial Misconduct
An appeal waiver does not bar a Rule 11 claim that there is an insufficient factual basis to support a guilty plea. See United
States v. Hildenbrand, 527 F.3d 466, 474 (5th Cir. 2008); United States v. Adams, 448 F.3d 492, 497-98 (2d Cir. 2006); United
States v. Portillo-Cano, 192 F.3d 1246, 1250 (9th Cir. 1999). Such a claim "go to the heart of whether [the] guilty plea, in
including the waiver of appeal, is enforceable" Portillo-Cano, 192 F.3d at 1250.
Dr. Chang pled in his plea agreement to Count 1 which stated that the conspiracy was related with codefendants only.
However, he only knew these codefendants for two years from mid 2015 to mid 2017 (see their plea agreements for evidence).
In order to exact more fines from him, the Government fabricated evidence about "Medicare fraudulent billing" from 2012 "until
September 10 2014" to add three and half more years of conspiracy so as to "justify" a much bigger fine. Citing public record as
evidence, the Petitioner showed that the September 10 2014 revocation had nothing to do with fradulent Medicare billing and
was reversed by ALJ at HHS and Medicare was found to be "without any basis" (see Statement of the Case, at 6 and cited HHS
authority).
However, the fabricated information has poisoned the grand jury hearing, indictment, plea and sentence hearing, leading to
the status of the case and the court used this erroneous information of five and half years of conspiracy from 2012 in
sentencing top-end guideline imprisonment and excessive fines that exceeded statutory maximum by four times (see
Sentencing Tr.).
Therefore, out of the 5.5 years conspiracy, three and half years was fabricated and without any evidence, the other two years
were without evidence too but were pled by petitioner in relation to Count 1. Therefore, at least 3.5 years out of 5.5 years of
conspiracy were completely without any basis and greatly affected the whole unfair process with no integrity. This is not a
complete discussion of factual basis, but the evidence presented is enough to prove that 3.5 years of it was complete
fabrication.
B. Procedural and Substantive Unreasonable Sentence
A sentence is not procedurally reasonable if the district court "fails to calculate [or improperly calculates] the Guidelines
range, treat[s] the Guidelines as mandatory, fail[s] to consider the 3553(a) factors, [or] selects[s] a sentence based on clearly
erroneous facts ..." Gall v. US 552 US 38 (2007). "Substantive unreasonableness focuses on the length and type of the
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sentence and will be foud when the district court selects a sentence arbitraily, bases the sentence on impermissible factrs, fails
to consider relevant sentencing factors, or give an unreasonable amount of weight to any pertinent factor." United States v.
Camacho-Arellano, 614 F.3d 244, 247 (6th Cir. 2010).
As discussed before, Court changed 2D1.2 Guideline from (c)(5) to (c)(3), a three point hike, without any factual finding.
Guid2D1.1(c)(5) mismatches with merely alleged drug quantity and offense level. "The Government must prove drug quantity
by a preponderance of evidence" (US v. Anderson 526 F.3d 319) because the Circuit treats drug quantity as an essential
element of the offense. The drug quantity was a mere allegation and there was no way to verify (no implicated patient list, for
example). "A miscalculation of a Guidelines sentencing range that has been determined to be plain and to affect a defendants'
substantial rights calls for a court of appeals to exercise its discretion under Rule 52(b) to vacate the defendant's sentence in
the ordinary case" Rosales-Mireles v. US 138 S Ct 1897 (2018).
The plea agreement tied a fine guideline of $30,000 to 1,000,000 fine and expressly defined fines as "there is no agreement
as to fines" and also "not to exceed 1,000,000" on the cover page. The Court in PSR confirmed this maximum fine. In no time
during the plea hearing, in the plea agreement, or PSR, was the petitioner given notice that he may receive a departure by a
factor as much as four times, nor was he given grounds for this even during the sentence hearing. He was never given factual
findings to warrant departure from fine table guidelines (the quantity he pled), pled fine guideline range maximum and statutory
maximum. This is a 32(h) violation, in addition to the 11(b)(1)(H) violation discussed earlier.
During the sentence hearing, the court based the sentence on erroneous, fabricated information. The fines exceeded the
guideline range maximum and exceeded the statutory maximum by a factor of four times, without any specific information as to
why there was this departure from the fine table range, fine guideline range maximum or statutory maximum fine. The court did
not make any factual findings in finding any nexus or forfeitability of any of the assets. This makes the sentence substantively
unreasonable.
IS-
TRULINCS 56246039 - CHANG, ZONGLI - Unit: ELK-H-B
FROM: 56246039 CHANG, ZONGLI
TO:
SUBJECT: REASONS IV: National Importance; V: Conclusion:
DATE: 12/06/2020 10:54 PM
IV. THE QUESTIONS PRESENTED ARE RECURRING ISSUES OF NATIONAL IMPORTANCE THAT WARRANT THIS
COURT'S IMMEDIATE RESOLUTION
The Sixth Circuit panel's dismissal of the appeal without addressing the unknowing, involuntary nature (unknowing final
exposure to total fines; 11(b)(1)(H) violations) the appellate waivers. The appellate waiver was constructively-modeled
according to Grundy to mislead the Petitioner to think he waived his appeal for sentence of imprisonment and his fines would be
according to the pled drug quantity and corresponding guideline range, including fine guideline range. However, upon appeal,
the Government claimed that the appellate waiver applied to fines. The panel realized the total fines exceeded the guideline
maximum in the plea by a factor of four, which should make the plea as unknowing, involuntary, per Sixth Circuit's ruling in US
v. Smith, and per the Smith Court's interpretation of the ambiguity against the interest of the Government.
The panel, without addressing the unknowing plea nature caused by the total fines falling way out of the scope of the plea by
a factor of four, and the apparent ambiguous nature of the waiver language, dismissed the appeal, essentially making the
appellate waiver as an absolute bar to appeals, in contradiction to this Court's opinion in Garza v. Idaho, and Sixth Circuit's US
v Caruthers.
The dismissal essentially subjects the Defendant to unlimited fine, forfeiture, restitution, even supervised release on the basis
of appeal waiver.
This essentially gave green light to Government to induce unsuspecting defendants to sign ambiguous and deceiving
appellate waivers and only later find out the waiver made himself to be subject to be sentenced at the whim of the court for
criminal fines and restitution that departs from pled fine guideline range maximum and statutory maximum, for the target of
wiping out their and their family's life time savings, most of which were unrelated to pled crime.
This is a serious case, but quite unique in its scheme. But excessive fines affect many people. Not to follow previous
precedents and blindly enforce a plea agreement and disregard all the departures would seriously affects the fairness, integrity
of the proceedings and the system.
,
This warrants this court's immediate resolution.
19.
:!
r
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\
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted,
,eoyf; tOtniwf ■
Date:
V-j-V 6( 'WVo
2 0.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.