In re: Sealed Case

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 13, 2022 Decided July 8, 2022
No. 20-3076
IN RE: S EALED C ASE
Appeal from the United States District Court
for the District of Columbia
(No. 1:18-cr-00102-1)
Christine Pembroke, appointed by the court, argued the
cause and filed the briefs for appellant.
Tyler Anne Lee, Attorney, U.S. Department of Justice,
argued the cause for appellee. On the brief were Katharine A.
Wagner, Kaitlin J. Sahni, and David M. Lieberman, Attorneys.
Before: S RINIVASAN, Chief Judge, TATEL*, Circuit Judge,
and EDWARDS , Senior Circuit Judge.
Opinion for the Court filed by Chief Judge S RINIVASAN .
S RINIVASAN , Chief Judge: Appellant shipped a package
containing chemicals used to manufacture fentanyl from China
to Peru. The package landed in Memphis, Tennessee, on its
* Judge Tatel assumed senior status after this case was argued
and before the date of this opinion.

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way to Peru, but did not go through United States customs
while on the ground in Memphis.
Appellant pleaded guilty to three counts relating to the
importation of controlled substances and listed chemicals into
the United States. He raises a single challenge on appeal: he
contends that there is no importation into the United States
when a package stops temporarily in United States territory en
route to a foreign destination without ever clearing United
States customs.
We dismiss the appeal. Appellant’s plea agreement
contains an appeal waiver that expressly bars him from raising
the argument he now seeks to press on appeal. In the
circumstances of this case, the appeal waiver is enforceable.
I.
Around August 2017, appellant and an unidentified co-
conspirator agreed to sell two fentanyl precursor chemicals to
an undercover law enforcement officer posing as a fentanyl
manufacturer. The officer asked appellant to ship the
chemicals via FedEx to Peru from appellant’s location in
China. Appellant agreed to do so.
The package shipped on or about December 20, 2017.
Around December 24, it arrived on a plane at a FedEx
distribution center in Memphis, Tennessee. Roughly two days
later, the package left Memphis and went to its final destination
in Peru via Colombia. While on the ground in Memphis, the
package never cleared U.S. customs. Appellant sent periodic
tracking updates to the officer in the form of screenshots,
including a screenshot sent on December 26 showing that the
package was in Tennessee. Appellant also admits knowing that
the package would stop in the United States en route to South
America.

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Based on that conduct, appellant was indicted on a number
of counts, most of which involved the importation of controlled
substances or listed chemicals into the United States. See 21
U.S.C. §§ 952, 959(a), 960. Appellant later began discussions
with the government about a possible plea agreement.
Around the same time, his counsel alerted the district court
that appellant might want to explore a legal issue before
moving forward with a guilty plea. The issue, appellant’s
counsel said to the district court, was “whether a shipment
passing through the United States with [a] final destination
outside the United States” has been “imported into the United
States” for purposes of the applicable statutes. The parties
agreed that the issue was one of first impression in this circuit.
In August 2018, several months after appellant raised the
importation issue, the government extended its first plea offer
to him. Meanwhile, appellant contemplated filing a motion to
dismiss the charges on the ground that the temporary stopover
of the package in Memphis did not qualify as importation into
the United States. The government cautioned that it would
treat such a motion as a rejection of its outstanding plea offer.
For several months, appellant wavered between accepting the
plea offer and proceeding with the motion to dismiss.
The parties later compiled a list of relevant authorities on
the importation question, presented it to the district court, and
solicited the court’s preliminary view. The court informed the
parties that it believed the “crime of importation is complete
when possession occurs anywhere within the U.S. territory,
even . . . in a case like this where contraband does not clear
customs.” Transcript of Status Conference at 8 (Feb. 1, 2019),
J.A. 124. The court explained that it thus would feel
comfortable accepting appellant’s guilty plea were he to so
plead. The court clarified, though, that its views were only

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“preliminary” and that it had not made a “final determination.”
Id. at 12, J.A. 128. The court advised appellant that he could
still file a motion to dismiss and potentially persuade the court
that its preliminary view was incorrect.
Appellant ultimately decided to accept the government’s
plea offer, under which he would plead guilty to three drug
importation counts and the government would forgo pursuing
three other counts. His plea agreement included an “Appeal
Waiver.” Plea Agreement ¶ 7, J.A. 257. Among other things,
the waiver stated that “the Defendant waives any argument that
. . . his admitted conduct does not fall within the scope of the
statute” to “which [he] is pleading guilty.” Id. At his plea
hearing, the district court reviewed the terms of the appeal
waiver with appellant, who confirmed that he understood them.
The district court sentenced appellant to 84 months of
imprisonment and a 24-month term of supervised release, and
he now appeals.
II.
Appellant’s sole contention on appeal is the same one he
considered raising before the district court: that his conviction
cannot be sustained under the relevant statutes because
shipping chemicals intending or knowing they will stop in the
United States on their way to South America does not
constitute importation into the United States (or knowledge of
such importation). That argument, however, falls squarely
within the terms of the appeal waiver appellant executed as part
of his plea agreement. In his “Appeal Waiver,” appellant
“waive[d] any argument that . . . his admitted conduct does not
fall within the scope of the statute” to “which he is pleading
guilty.” Plea Agreement ¶ 7, J.A. 257. Appellant thereby
expressly waived his ability to present the exact claim he now
seeks to raise on appeal.

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Appellant contends that, while his appeal waiver precludes
him from disputing the nature of his admitted conduct, it does
not bar him from making a purely interpretive argument about
the scope of the applicable statutes. That reading contradicts
the plain terms of appellant’s appeal waiver. The waiver takes
“his admitted conduct” as a given and bars any claim alleging
that the conduct falls outside the relevant statutes. That is
precisely what appellant seeks to do.
Appellant next argues that, even if his appeal waiver bars
the argument he now seeks to make, we should decline to
enforce the waiver for two reasons. His first argument begins
with the recognition that an appeal waiver is generally
enforceable only if voluntary and knowing. See United States
v. Guillen, 561 F.3d 527, 529 (D.C. Cir. 2009). According to
appellant, his waiver was not a “knowing” one because the
district court misled him about the charges he faced by
misinforming him that the package’s stopover in Memphis
qualified as an importation for purposes of the relevant statutes.
The district court, however, made clear that its view about
the scope of the statutes was a “preliminary” one. Transcript
of Status Conference at 12 (Feb. 1, 2019), J.A. 128. The court
went on to remind appellant that his counsel could brief the
issue and persuade the court that its initial view was mistaken.
In that context, there is no basis for appellant’s contention that
the district court misled him about the reach of the statutes.
At any rate, we have explained that an appeal waiver
generally meets the requirement that it be “knowing” when
“the defendant is aware of and understands the risks involved”
and “his choice is made with eyes open.” See Guillen, 561 F.3d
at 529–30 (citations and internal quotations omitted). Here,
appellant does not—and could not—claim to have
misunderstood the relevant risks: even assuming arguendo that

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the district court’s preliminary view about the meaning of
“importation” was flawed, appellant understood that, by
entering into the plea agreement and accepting the appeal
waiver, he relinquished the opportunity to challenge the court’s
initial view in an appeal.
Appellant’s second objection to enforcing the appeal
waiver is that doing so would amount to a miscarriage of
justice. See id. at 531. Holding appellant to the terms of his
appeal waiver, however, would not work any miscarriage of
justice.
Because appellant identified early on that he had questions
about whether the circumstances of this case involved an
“importation” into the United States, both he and the
government were aware of the issue during the bulk of the
proceedings in the district court. And the possibility that
appellant would formally raise the claim informed the parties’
negotiations and subsequent decisions. Soon after appellant
indicated he might file a motion to dismiss, the government
presented him with a choice. He could accept a plea offer
pursuant to which the government would drop three of the
counts against him; and by doing so, appellant would waive his
ability to raise in an appeal his potential objection to the
government’s understanding of “importation” (along with
various other possible claims). J.A. 205. Alternatively,
appellant could file a motion to dismiss, knowing that, if he did
so, the government might withdraw its plea offer.
Appellant considered both options. From the start, he did
so with the advice of counsel. Eventually, he also obtained the
district court’s preliminary view on his contemplated motion.
And at all times, both parties had every reason to understand
that appellant was choosing not just whether to plead guilty,

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but also whether to accede (or object) to the government’s
understanding of “importation.”
In the end, appellant made the decision to forgo the
uncertainty of filing a motion to dismiss and to instead accept
the government’s plea offer. The agreement he signed
memorialized the benefits and costs of that decision. He
obtained the benefit of the government’s dropping three
additional counts against him. In exchange, he waived his right
to raise certain objections to his counts of conviction in any
appeal, thereby securing a benefit for the government, too. See
United States v. Lee, 888 F.3d 503, 506 (D.C. Cir. 2018).
Appellant now seeks to avoid one of the known costs of his
plea agreement by reviving the very claim he opted to
relinquish. In these circumstances, enforcing his appeal waiver
would not work any miscarriage of justice.
* * * * *
For the foregoing reasons, we dismiss the appeal.
So ordered.

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