Petition for Writ of Certiorari — Jong Whan Kim, Petitioner v. United States

No. 23A222

IN THE

_________________________

JONG WHAN KIM,

Petitioner,

v.

UNITED STATES OF AMERICA

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals for the Fourth

Circuit

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

Scottie Forbes Lee

David Keirstead

ELLIS & WINTERS LLP

300 North Greene St.

Suite 800

Greensboro, NC 27402

(336) 389-5684

Michelle A. Liguori

Counsel of Record

ELLIS & WINTERS LLP

4131 Parklake Ave, Suite 400

Raleigh, NC 27612

(919) 573-1294

michelle.liguori@elliswinters.com

Counsel for Petitioner Jong Whan Kim

TABLE OF CONTENTS

Appendix

Page:

Opinion

U.S. Court of Appeals for the Fourth Circuit

entered June 20, 2023 ........................................................................ Appendix A

Judgment

U.S. Court of Appeals for the Fourth Circuit

entered June 20, 2023 ........................................................................ Appendix B

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PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 22-4221

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JONG WHAN KIM,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at

Wilmington. Louise W. Flanagan, District Judge. (7:18-cr-00200-FL-1)

Argued: May 5, 2023

Decided: June 20, 2023

Before AGEE, Circuit Judge, TRAXLER, Senior Circuit Judge, and Henry E. HUDSON,

Senior United States District Judge for the Eastern District of Virginia, sitting by

designation.

Affirmed by published opinion. Senior Judge Traxler wrote in the opinion, in which Judge

Agee and Judge Hudson joined.

ARGUED: Michelle Ann Liguori, ELLIS & WINTERS, LLP, Raleigh, North Carolina,

for Appellant. Andrew Kasper, OFFICE OF THE UNITED STATES ATTORNEY,

Raleigh, North Carolina, for Appellee. ON BRIEF: Scottie F. Lee, ELLIS & WINTERS

LLP, Greensboro, North Carolina, for Appellant. Michael F. Easley, Jr., United States

Attorney, David A. Bragdon, Assistant United States Attorney, Kristine L. Fritz, Assistant

United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,

North Carolina, for Appellee.

APPENDIX A

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TRAXLER, Senior Circuit Judge:

Federal law prohibits the knowing or intentional distribution of a controlled

substance “[e]xcept as authorized.” 21 U.S.C. § 841(a). Jong Whan Kim, a medical doctor,

pleaded guilty to multiple charges under § 841 for prescribing oxycodone and other

controlled substances outside the usual course of professional practice and without a

legitimate medical need. See 21 C.F.R. § 1306.04(a) (“A prescription for a controlled

substance to be effective must be issued for a legitimate medical purpose by an individual

practitioner acting in the usual course of his professional practice. . . .”). After Kim was

sentenced, the Supreme Court issued its decision in Ruan v. United States, 142 S. Ct. 2370

(2022), which held that the statutory knowing-or-intentional mens rea applies not only to

the distribution-related elements of the crime, but also to the question of authorization.

Accordingly, if a defendant charged under § 841 “produces evidence that he or she was

authorized to dispense controlled substances, the Government must prove beyond a

reasonable doubt that the defendant knew that he or she was acting in an unauthorized

manner, or intended to do so.” Id. at 2375.

Before Ruan was decided, this circuit (and others) had held that whether a doctor’s

actions were authorized was an objective inquiry. See, e.g., United States v. Hurwitz, 459

F.3d 463, 479 (4th Cir. 2006). Because Ruan changed the law in this circuit, Kim contends

that his guilty plea must be set aside because the district court did not inform him that the

government would be required to prove that he knew he was acting in an unauthorized

manner when issuing the challenged prescriptions. Kim also contends that the district court

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failed to afford him an adequate opportunity to allocute before imposing sentence. Finding

no reversible error, we affirm.

I.

Kim was born in South Korea in 1949. He joined the Korean military and fought

alongside American forces in the Vietnam war. He immigrated to the United States when

he was 27. In Wisconsin, Kim got married and had three children. He worked in a factory

and as a gardener to support his family. Kim obtained a bachelor’s degree from the

University of Wisconsin in 1991 and received his medical degree in 1995.

After working for several years in a hospital in Pennsylvania, Kim was hired in 2002

as a hospitalist in Elizabethtown, North Carolina. The hospital eventually became

concerned about Kim’s practices for prescribing controlled substances. Hospital officials

met with Kim in December 2016 and informed him that his treatment notes did not justify

the prescriptions he was issuing. Kim was given the option of complying with the hospital’s

requirements or resigning; he chose to resign in March 2017.

After leaving the hospital, Kim began seeing patients at his home in Bladenboro,

North Carolina. In the summer of 2017, the still-married Kim started dating Tammy

Thompson, who then began helping Kim run his home-based medical practice. 1 In

Kim met Thompson in the early 2000s, when he was the primary care

physician for Thompson’s then-husband. Thompson’s husband had been in an accident,

and Kim prescribed him opiates in such large quantities that Thompson’s son became

concerned.

1

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September 2017, Kim opened a medical clinic in Tabor City, North Carolina. Thompson

was Kim’s business partner and served as the clinic’s office manager.

The information in the record shows that the clinic operated as a classic pill mill.

Beyond a scale, blood-pressure cuffs, and a stethoscope, there was no medical equipment

at the clinic. Kim issued prescriptions for strong pain medication without reviewing the

patient’s prior medical records and without performing a proper examination to determine

if medication was required. Although the clinic did perform drug tests on new patients,

the results were not properly documented in the patients’ files, and Kim issued

prescriptions even if the patient failed the drug test.

The clinic saw between 35 and 40 patients a day, and those patients frequently

reeked of marijuana. Thompson and her daughter, who also worked at the clinic, would

sometimes let a particular person (who was not a patient) bring a group of prospective

patients to the clinic, and Kim would issue prescriptions to the group. Patients who brought

other prospective patients would be seen more quickly. All patients paid in cash (usually

$200), regardless of insurance status, and clinic employees were also paid in cash. The cash

paid by the patients was placed by clinic employees in one of two lock boxes. At the end

of each day, Thompson would gather the money from the lock boxes and deposit it at one

of two banks. An employee of one of the banks told law enforcement that Thompson

usually made deposits ranging between $5,000 and $8,000 twice a week.

The clinic was located next to Tabor City Elementary School. The clinic parking lot

was often filled with patients waiting to be seen, which created safety concerns for the

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school. The school frequently cancelled recess because of activity at the clinic, and it was

forced to lock down more than once.

In 2018, law enforcement had a confidential informant pose as a clinic patient. The

CI saw Kim twelve times. Kim conducted a drug screen on the first visit, but not thereafter.

At each appointment, the CI paid $200 in cash and Kim issued prescriptions after minimal

or no medical examination. At several appointments, the CI also purchased marijuana from

Thompson. On one occasion when the CI was in the examination room with Kim,

Thompson brought the marijuana into the room and sold it to the CI in front of Kim. In

Kim’s presence, she told the CI that Kim was willing to trade work for prescriptions.

In May 2018, the CI asked Kim to prescribe stronger medication, and Kim complied

with no examination and no questions asked. At the CI’s last clinic visit in June 2018, the

CI asked Kim for a higher dosage of the medication so he could sell more pills on the street.

The CI and Kim also discussed which pharmacy the CI should use to ensure that the

prescription would not be recorded. At the CI’s request, Kim also issued a prescription for

the CI’s father, who was not present at the appointment and had never been seen by Kim.

The CI paid Kim $200 for the prescription issued in his name and $300 for the prescription

issued in his father’s name.

The day after his last clinic visit, the CI conducted a final controlled purchase from

Kim and Thompson at Kim’s residence, paying $700 for 81 hydrocodone pills and a

quantity of marijuana. At this visit, Kim and the CI discussed the possibility of the CI

lending Kim money to buy a house. Kim offered to pay the interest through prescriptions

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to the CI. The next day, law enforcement officials arrested Kim and Thompson on state

charges and executed search warrants for the clinic and Kim’s residence.

In December 2018, Kim and Thompson were indicted on federal charges, including

a charge of conspiracy to distribute controlled substances and multiple individual counts

of drug distribution. The case proceeded slowly through the system, as dates for trial were

set and then later extended. In July 2020, the government filed a superseding indictment

including additional counts against Kim and Thompson. A 34-count second superseding

indictment was filed on July 7, 2021. In addition to the conspiracy charge asserted against

Kim and Thompson, the second superseding indictment included twenty-five substantive

counts involving Kim alone; six substantive counts involving Thompson alone 2; and two

substantive counts involving both Kim and Thompson. Less than a week after the second

superseding indictment was filed, Thompson pleaded guilty to conspiracy and five of the

individual counts.

In November 2021, Kim signed a written agreement whereby he agreed to plead

guilty to conspiracy and eight substantive counts in exchange for the dismissal of the

remaining counts. At the plea hearing conducted on November 30, 2021, Kim testified that

he had read the second superseding indictment, understood the charges, and was prepared

to plead guilty. When the court listed the relevant counts and asked Kim how he pleaded,

Kim responded, “I plead guilty to those charges, Your Honor.” J.A. 68.

The individual counts against Thompson were based on her selling

marijuana to patients.

2

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After the government spelled out the penalties Kim faced on each charge, Kim

repeated that he was pleading guilty to the charges outlined in the plea agreement. The

court explained the elements of each offense, asked the government to present the factual

basis, and then asked Kim if he committed the offenses listed in the plea agreement. Kim

responded, “Your Honor, nothing I was doing willfully. I’m not guilty of any of this, Your

Honor. I was just advised by my counsel that this is the only way I can alleviate – mitigate

my sentence.” J.A. 86. After speaking with his client, counsel for Kim informed the court

that he was “not in a position today to enter a guilty plea,” J.A. 87, and requested a

continuance “to give me some more time with Dr. Kim to try to answer and clarify

questions he’s raised.” J.A. 87. The court granted the continuance and struck the existing

plea agreement from the record.

The parties returned to court on December 28, 2021, with a freshly executed plea

agreement. 3 The court explained that the hearing was a continuation of the prior hearing,

and Kim declined the court’s offer to repeat any of the information from the first hearing

about the charges, penalties, and the rights he was giving up. After the government spelled

out the factual bases for the charges, the court reiterated to Kim that if the court accepted

the plea agreement, “you can’t take it back. You’re bound by it.” J.A. 104. Kim stated that

he understood. The district court then asked Kim if he was in fact guilty of the charges

spelled out in the plea agreement, to which he responded, “Yes, your Honor.” J.A. 104.

Under the revised agreement, the government agreed to dismiss Count 34,

one of the counts to which Kim had originally agreed to plead guilty.

3

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The court determined that Kim knowingly and voluntarily pleaded guilty, and the court

accepted the plea agreement. At a subsequent hearing, the court sentenced Kim to a total

term of 78 months’ imprisonment. This appeal followed. 4

II.

We turn first to the Ruan question. “A plea of guilty is constitutionally valid only to

the extent it is voluntary and intelligent. We have long held that a plea does not qualify as

intelligent unless a criminal defendant first receives real notice of the true nature of the

charge against him, the first and most universally recognized requirement of due process.”

Bousley v. United States, 523 U.S. 614, 618 (1998) (cleaned up). To ensure that defendants

plead guilty knowingly and voluntarily, the Federal Rules of Criminal Procedure require a

district court, before accepting a guilty plea, to “inform the defendant of, and determine

that the defendant understands, . . . the nature of each charge to which the defendant is

pleading.” Fed. R. Crim. P. 11(b)(1)(G).

Kim contends his plea was not valid because the district court did not inform him

that, if he went to trial, the government would be required to prove beyond a reasonable

doubt that Kim subjectively knew or intended that his conduct was unauthorized, as

required by Ruan. Because Kim raised no objections below, we review for plain error only.

Under plain error review, Kim is entitled to relief only if he can

Although Kim’s plea agreement includes an appeal waiver, we nevertheless

proceed because the government has not sought to enforce the waiver. See United States v.

Jones, 667 F.3d 477, 486 (4th Cir. 2012) (“[T]he government does not seek to enforce the

waiver, and we will not sua sponte enforce it.”).

4

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satisfy three threshold requirements. First, there must be an error. Second,

the error must be plain. Third, the error must affect substantial rights, which

generally means that there must be a reasonable probability that, but for the

error, the outcome of the proceeding would have been different. If those three

requirements are met, an appellate court may grant relief if it concludes that

the error had a serious effect on the fairness, integrity or public reputation of

judicial proceedings.

Greer v. United States, 141 S. Ct. 2090, 2096 (2021) (cleaned up). Kim bears the burden

of persuasion at each step of the inquiry; “[s]atisfying all four prongs of the plain-error test

is difficult.” Id. at 2097 (cleaned up).

Kim contends that the district court plainly erred because it never expressly

informed Kim that the government at trial would be required to prove that Kim knew or

intended that his prescriptions were not authorized and that he would not have pleaded

guilty if he had understood the government’s burden of proof. While the government

acknowledges that Ruan changed the law in this circuit, it disagrees with Kim at every

step of the plain-error path. In the government’s view, there was no error at all, let alone

plain error. In any event, the government contends that Kim cannot show his substantial

rights were affected.

A.

We first consider whether there was error, and, if so, whether the error was plain.

“Deviation from a legal rule is ‘error’ unless the rule has been waived.” United States v.

Olano, 507 U.S. 725, 732–33 (1993). An error is “plain” if the error is “clear” or “obvious.”

Id. at 733.

In the plea colloquy, the district court explained that for the conspiracy count, the

government was required to prove that Kim “formed an agreement to distribute, prescribe,

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and dispense and possess with the intent to distribute [specified controlled substances], and

that you knew the purpose of this agreement or conspiracy, and that you knowingly and

willfully participated in or became a part of it.” J.A. 72-73. As to the substantive counts,

the court explained that the government bore “the burden of showing beyond a reasonable

doubt that you prescribed, dispensed, or distributed [a specified controlled substance]; you

acted knowingly, intentionally; and you did that outside the usual course of professional

practice and for other than a legitimate medical purpose.” J.A. 73.

Kim argues that because the district court did not expressly state that the government

would be required to prove that he knew or intended that his prescriptions were

unauthorized, as required by Ruan, the court failed to inform him of the true nature of the

charges against him and therefore committed plain error. See Johnson v. United States, 520

U.S. 461, 468 (1997) (“[W]here the law at the time of trial was settled and clearly contrary

to the law at the time of appeal[,] it is sufficient that the error be plain at the time of

appellate consideration.”).

The government, however, insists that the district court’s explanation was entirely

consistent with Ruan. The government contends that when the district court stated “‘you

did that outside the usual course of professional practice,’ the court incorporated the mens

rea requirement that it had just read.” Br. of Appellee at 21.

We need not decide whether the district court’s explanations should be understood

in the manner suggested by the government. While the Constitution requires that the

defendant understand the true nature of the charges he faces, that does not mean that a

recitation of all elements is always required in a Rule 11 proceeding. This court “has

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repeatedly refused to script the Rule 11 colloquy . . . to require the district courts to recite

the elements of the offense in every circumstance.” United States v. Wilson, 81 F.3d 1300,

1307 (4th Cir. 1996). Moreover, there is no requirement that the defendant receive all of

the information about the nature of the charges from the court “at the plea hearing itself.”

United States v. DeFusco, 949 F.2d 114, 117 (4th Cir. 1991) (cleaned up). Instead, the

district court may rely on “detailed information received [by the defendant] on occasions

before the plea hearing” when determining whether a guilty plea is knowing and voluntary.

Id. (cleaned up).

In this case, even if the district court’s explanation of the charges alone did not

properly reflect the mens rea required by Ruan, the language of the indictment does reflect

Ruan’s holding. This court has made it clear that when explaining the nature of the charges,

a district court may rely on the defendant’s sworn statement that he has read the indictment

and discussed it with his attorney. See Wilson, 81 F.3d at 1307 (“We again refuse to require

the district courts to recite the elements of the offense in every circumstance. In many cases,

such a procedure would be a formality and a needless repetition of the indictment, which

often tracks the essential elements of the offense.”) (emphasis added).

In each count of the second superseding indictment that involved Kim, the

government, apparently anticipating what Ruan would hold, alleged that Kim conspired

and issued the challenged prescriptions “while acting and intending to act outside the usual

course of professional practice and not for a legitimate medical purpose.” J.A. 39, 40, 41,

43 (emphasis added). Ruan requires the government to prove that the defendant knew or

intended to issue unauthorized prescriptions. Because a prescription issued outside the

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usual course of medical practice and not for a legitimate medical purpose is an unauthorized

prescription, see 21 C.F.R. § 1306.04(a), the indictment is consistent with the requirements

of Ruan.

Kim argues that the language of the second superseding indictment is irrelevant

because governing Fourth Circuit law at the time of his plea was not consistent with Ruan,

which, in Kim’s view, means that he did not plead guilty to any Ruan-compliant offense.

We disagree. Kim did not plead guilty to generic charges under § 841; he pleaded guilty to

the offenses spelled out in the second superseding indictment. In every count of that

indictment, the government alleged that Kim intended to act outside the usual course of

professional practice and not for a legitimate medical purpose. While Fourth Circuit

precedent did not then require the government to prove the defendant’s subjective intent,

the government nonetheless would have been bound by those allegations at trial. See

United States v. Pinson, 860 F.3d 152, 171 (4th Cir. 2017) (“Importantly,

the government is bound by the phrasing it uses in the indictment, even if it chooses to use

more specific language than necessary.”).

Kim also contends that the language of the indictment is not sufficient under Ruan

because it does not make clear that the government bears the burden of proving that Kim

intended to issue unauthorized prescriptions. While the indictment does not mention (and

would not be expected to mention) the burden of proof, the district court in the plea

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colloquy repeatedly informed Kim that the government bore the burden of proof at trial. 5

We believe that those repeated explanations, combined with the mens rea allegations

actually contained in the indictment, were sufficient.

As we explained in DeFusco, the question is not simply whether the court recited

each element of each charge at the plea hearing, but whether the district court ensured that

Kim understood the true nature of the charges. See DeFusco, 949 F.2d at 117 (“[T]he

defendant must receive notice of the true nature of the charge rather than a rote recitation

of the elements of the offense. . . .”). When determining whether a plea hearing complies

with the requirements of Rule 11, we are obligated to “accord deference to the trial court’s

decision as to how best to conduct the mandated colloquy with the defendant. The manner

of ensuring that the defendant is properly informed is committed to the good judgment of

the district court, to its calculation of the relative difficulty of comprehension of the charges

and of the defendant’s sophistication and intelligence.” Id. at 116 (cleaned up).

In this case, the district court was presented with a mature, well-educated,

financially successful defendant who had no mental health conditions or substance abuse

See J.A. 63 (explaining to Kim that if he went to trial, “there would be no

burden on you. The burden rests on the shoulders of the government to prove you guilty

beyond a reasonable doubt.”); J.A. 64 (“[Y]ou are and would be presumed innocent. Again,

you don’t have to prove anything.”); J.A. 72 (After Kim stated that he was pleading guilty,

the district court explained, “Dr. Kim, you still have the right to plead not guilty. . . . The

government still has the burden on its back to prove you guilty beyond a reasonable doubt.

You are presumed innocent. You remain presumed innocent. And the government’s

burden, as I said, remains with it.”); J.A. 91 (explaining at the beginning of the second plea

hearing that “[t]he burden remains on the government to prove you guilty beyond a

reasonable doubt. And you are presumed innocent.”).

5

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problems. See id. at 117 (“In explaining the nature of the charges to the defendant, . . . the

trial court is given a wide degree of discretion in deciding the best method to inform and

ensure the defendant’s understanding. The trial court may look at the availability of

counsel, and the defendant’s personal characteristics, such as age, education, and

intelligence.”) (cleaned up). Kim told the district court during the first plea colloquy that

he understood and could communicate with his attorney and that he was satisfied with his

attorney. He confirmed that he had read the second superseding indictment and that his

attorney had explained it to him. As noted, the indictment’s mens rea allegations were

consistent with the requirement of Ruan, and the district court repeatedly informed Kim

that the burden of proof was on the government. When the parties reconvened a month

after the aborted plea hearing, Kim informed the court that he did not need the indictment

to be read to him. He confirmed that he had read and signed the revised plea agreement,

which spelled out the facts underlying the charges against him, and he confirmed that he

was in fact guilty of the charges listed in the plea agreement. Under these circumstances,

we find no error, plain or otherwise, in the manner in which the district court ensured Kim’s

understanding of the true nature of the charges he faced.

B.

Moreover, even if we could find error in the district court’s approach, we agree with

the government that Kim cannot show that his substantial rights were affected.

Because Kim pleaded guilty, the substantial-rights inquiry requires him to “show[]

that, if the District Court had correctly advised him of the mens rea element of the offense,

there is a reasonable probability that he would not have pled guilty.” Greer, 141 S. Ct. at

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2097 (cleaned up). “Although the reasonable probability standard is a demanding one, a

defendant need not prove by a preponderance of the evidence that but for error things would

have been different.” United States v. Lockhart, 947 F.3d 187, 192–93 (4th Cir. 2020) (en

banc) (cleaned up). “Instead, a defendant must satisfy the judgment of the reviewing court,

informed by the entire record, that the probability of a different result is sufficient to

undermine confidence in the outcome of the proceeding.” Id. (cleaned up).

In support of his claim that he would not have pleaded guilty if he had understood

that the government would be required to prove that he knew he was issuing prescriptions

outside the usual course of professional practice and not for a legitimate medical purpose,

Kim points to his initial hesitancy to plead guilty and his assertion in the first hearing that

he did nothing willfully and was “not guilty of any of this.” J.A. 86. He also points to the

government’s statements of the factual bases for the charges, which Kim contends did not

include evidence of Kim’s subjective intent for each prescription at issue. We are not

persuaded.

Although Kim expressed hesitancy in the first plea hearing, an isolated hiccup in

the course of a plea proceeding does not automatically satisfy the substantial-rights prong

of the plain-error inquiry. Kim expressed no further hesitancy when court reconvened

several weeks after the initial hearing. He responded in the negative when the district court

asked if he needed any other information from the court or had questions for his attorney,

and he confirmed that he was in fact guilty of the charges listed in the plea agreement.

Under these circumstances, the mere fact that Kim was briefly hesitant to plead guilty is

insufficient to carry Kim’s burden under plain-error review.

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When determining whether a plain-error defendant has established that he would

have gone to trial but for the error, we are entitled to consider the strength of the

government’s evidence and to ask “what [the defendant] might ever have thought he could

gain by going to trial.” United States v. Dominguez Benitez, 542 U.S. 74, 85 (2004).

The point of the question is not to second-guess a defendant’s actual

decision; if it is reasonably probable he would have gone to trial absent the

error, it is no matter that the choice may have been foolish. The point, rather,

is to enquire whether the omitted [explanation] would have made the

difference required by the standard of reasonable probability. . . .

Id.

Although the record reveals no statement from Kim directly stating his subjective

intention to violate the law, the mountain of circumstantial evidence leaves little doubt. For

example, the record shows that Kim complied when the CI asked Kim to prescribe a higher

strength of medication so he could sell more pills on the street. Kim likewise complied

when the CI asked for a prescription for his father, who was not a patient of Kim’s and was

not present at the appointment. Kim did not correct Thompson when she told the CI, in

Kim’s presence, that Kim would trade work for prescriptions, and Kim asked the CI about

a possible loan and offered to write prescriptions to pay the interest. In the face of this

evidence, a jury would be highly unlikely to conclude that Kim subjectively believed he

was issuing authorized, medically necessary prescriptions, which in turn makes it unlikely

that Kim’s plead-or-trial calculation would turn on the precise contours of the statutory

mens rea requirements.

Moreover, counsel for Kim told the court at sentencing that once he got involved in

the case and explained the government’s evidence, Kim and his children “pretty quickly

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acknowledged that he, in fact, was guilty.” J.A. 120-21. Counsel explained that Kim’s

difficulty came from “his deep shame for this conduct” for bringing “dishonor to his

family.” J.A. 121.

[I]t was very difficult for Dr. Kim to overcome that sense of absolute shame

and dishonoring in his family. Part of what helped us in that are his own

children telling him that he’s a grandfather, and their father, and they didn’t

want him to die in prison, Your Honor. They wanted him to have time with

his family.

And so ultimately he came before the Court and pled guilty.

J.A. 121.

In our view, these statements undermine Kim’s claim that he would not have

pleaded guilty if he had understood the government’s obligation to prove he knew his

prescriptions were not authorized. While pleading guilty would not eliminate the dishonor

that Kim perceived, proceeding to trial would invite even more public attention on the

specifics of Kim’s actions, including details about his extra-marital relationship with

Thompson. Given the slim likelihood that a jury would agree that Kim believed he was

writing proper prescriptions, we have difficulty seeing how a more fulsome explanation of

the government’s burden to prove mens rea “could have had an effect on [Kim’s]

assessment of his strategic position.” Dominguez Benitez, 542 U.S. at 85.

After reviewing the record as a whole, we agree with the government that Kim has

not established a reasonable possibility that he would not have pleaded guilty if the charges

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against him had been more fully explained. Because Kim cannot show that his substantial

rights were affected, he is not entitled to relief under plain-error review. 6

III.

Finally, we turn briefly to Kim’s claim that the district court violated his right to

address the court before sentence is imposed. Because Kim did not object below, this issue

is likewise reviewed for plain error. See United States v. Muhammad, 478 F.3d 247, 249

(4th Cir. 2007).

The Rules of Criminal Procedure provide that, “[b]efore imposing sentence, the

[district] court must . . . address the defendant personally in order to permit the defendant

to speak or present any information to mitigate the sentence.” Fed. R. Crim. P.

32(i)(4)(A)(ii). “This rule is not satisfied by merely affording the Defendant’s counsel the

opportunity to speak.” Muhammad, 478 F.3d at 249 (cleaned up).

Kim concedes that while the district court did “eventually” give him an opportunity

to speak, that opportunity was insufficient because the district court by then had already

“express[ed] its views on the extent of Mr. Kim’s moral culpability.” Br. of Appellant at

40.

Because conspiracy involves “an agreement with the specific intent that the

underlying crime be committed by some member of the conspiracy,” Ocasio v. United

States, 578 U.S. 282, 288 (2016) (cleaned up), the government also contends that Kim’s

admission of guilt to the conspiracy count renders harmless any error in the explanation of

the substantive counts. Given our conclusion that Kim failed to establish a reasonable

probability that he would not have pleaded guilty if the charges had been properly

described, we need not consider this argument.

6

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Kim’s argument is functionally identical to an argument this court has already

rejected. In United States v. Engle, 676 F.3d 405 (4th Cir. 2012), the defendant argued that

his opportunity to allocute was meaningless because it came after the district court had

announced its intention to impose an upward variance. We disagreed:

Rule 32 only requires the district court to address the defendant

personally and permit him to speak or present any information to mitigate

the sentence before sentence is imposed; apart from that requirement, the rule

does not create a right of allocution at any specific point in the sentencing

proceeding. Moreover, when a judge announces a sentence before hearing

an allocution, it is fair to assume that such a sentence is tentative and that the

judge will consider the defendant’s statements before imposing a final

sentence.

Id. at 425 (cleaned up) (emphasis added).

There was nothing improper in Engle about the court expressing preliminary views

as to the appropriate sentence before hearing from the defendant, and there was nothing

improper here about the court expressing its views about the costs and societal harms of

Kim’s conduct before hearing from him. Because the district court afforded Kim the

opportunity to address the court before the court imposed sentence, Kim cannot establish

the existence of error, much less plain error.

IV.

Accordingly, for the foregoing reasons, we hereby affirm Kim’s conviction and

sentence.

AFFIRMED

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UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

___________________

No. 22-4221

(7:18-cr-00200-FL-1)

___________________

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

JONG WHAN KIM

Defendant - Appellant

___________________

JUDGMENT

___________________

In accordance with the decision of this court, the judgment of the district

court is affirmed.

This judgment shall take effect upon issuance of this court's mandate in

accordance with Fed. R. App. P. 41.

/s/ PATRICIA S. CONNOR, CLERK

APPENDIX B

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UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 22-4221,

US v. Jong Kim

7:18-cr-00200-FL-1

________________________

NOTICE OF JUDGMENT

________________________

Judgment was entered on this date in accordance with Fed. R. App. P. 36. Please

be advised of the following time periods:

PETITION FOR WRIT OF CERTIORARI: The time to file a petition for writ

of certiorari runs from the date of entry of the judgment sought to be reviewed, and

not from the date of issuance of the mandate. If a petition for rehearing is timely

filed in the court of appeals, the time to file the petition for writ of certiorari for all

parties runs from the date of the denial of the petition for rehearing or, if the

petition for rehearing is granted, the subsequent entry of judgment. See Rule 13 of

the Rules of the Supreme Court of the United States; www.supremecourt.gov.

VOUCHERS FOR PAYMENT OF APPOINTED OR ASSIGNED

COUNSEL: Vouchers must be submitted within 60 days of entry of judgment or

denial of rehearing, whichever is later. If counsel files a petition for certiorari, the

60-day period runs from filing the certiorari petition. (Loc. R. 46(d)). If payment is

being made from CJA funds, counsel should submit the CJA 20 or CJA 30

Voucher through the CJA eVoucher system. In cases not covered by the Criminal

Justice Act, counsel should submit the Assigned Counsel Voucher to the clerk's

office for payment from the Attorney Admission Fund. An Assigned Counsel

Voucher will be sent to counsel shortly after entry of judgment. Forms and

instructions are also available on the court's web site, www.ca4.uscourts.gov, or

from the clerk's office.

BILL OF COSTS: A party to whom costs are allowable, who desires taxation of

costs, shall file a Bill of Costs within 14 calendar days of entry of judgment.

(FRAP 39, Loc. R. 39(b)).

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PETITION FOR REHEARING AND PETITION FOR REHEARING EN

BANC: A petition for rehearing must be filed within 14 calendar days after entry

of judgment, except that in civil cases in which the United States or its officer or

agency is a party, the petition must be filed within 45 days after entry of judgment.

A petition for rehearing en banc must be filed within the same time limits and in

the same document as the petition for rehearing and must be clearly identified in

the title. The only grounds for an extension of time to file a petition for rehearing

are the death or serious illness of counsel or a family member (or of a party or

family member in pro se cases) or an extraordinary circumstance wholly beyond

the control of counsel or a party proceeding without counsel.

Each case number to which the petition applies must be listed on the petition and

included in the docket entry to identify the cases to which the petition applies. A

timely filed petition for rehearing or petition for rehearing en banc stays the

mandate and tolls the running of time for filing a petition for writ of certiorari. In

consolidated criminal appeals, the filing of a petition for rehearing does not stay

the mandate as to co-defendants not joining in the petition for rehearing. In

consolidated civil appeals arising from the same civil action, the court's mandate

will issue at the same time in all appeals.

A petition for rehearing must contain an introduction stating that, in counsel's

judgment, one or more of the following situations exist: (1) a material factual or

legal matter was overlooked; (2) a change in the law occurred after submission of

the case and was overlooked; (3) the opinion conflicts with a decision of the U.S.

Supreme Court, this court, or another court of appeals, and the conflict was not

addressed; or (4) the case involves one or more questions of exceptional

importance. A petition for rehearing, with or without a petition for rehearing en

banc, may not exceed 3900 words if prepared by computer and may not exceed 15

pages if handwritten or prepared on a typewriter. Copies are not required unless

requested by the court. (FRAP 35 & 40, Loc. R. 40(c)).

MANDATE: In original proceedings before this court, there is no mandate. Unless

the court shortens or extends the time, in all other cases, the mandate issues 7 days

after the expiration of the time for filing a petition for rehearing. A timely petition

for rehearing, petition for rehearing en banc, or motion to stay the mandate will

stay issuance of the mandate. If the petition or motion is denied, the mandate will

issue 7 days later. A motion to stay the mandate will ordinarily be denied, unless

the motion presents a substantial question or otherwise sets forth good or probable

cause for a stay. (FRAP 41, Loc. R. 41).