Argued and Submitted, Honolulu, Hawaii: October 8,
Appeal from the United States District Court for the District of Hawaii. D.C. No. 1:08-cr-00128-DAE-1. D.C. No. 1:07-cr-00299-DAE-1. David A. Ezra, District Judge, Presiding.
Michael Robert Levine (argued), Law Office of Michael R. Levine, Portland, Oregon; Sheryl Gordon McCloud, Law Offices of Sheryl Gordon McCloud, Seattle, Washington, for Defendant-Appellant.
Cynthia W. Lie (argued), Michael David Nammar and William L. Shipley, Office of the U.S. Attorney, Honolulu, Hawaii, for Plaintiff-Appellee.
Before: Alex Kozinski,
Chief Judge, and Raymond C. Fisher and Paul J. Watford, Circuit Judges.
FISHER, Circuit Judge:
Defendant Harold C. Spear, III, M.D., appeals his conviction by guilty plea to five
counts of distributing controlled substances outside the usual course of professional medical practice and not for a legitimate medical purpose. The government argues this appeal should be dismissed based on a provision of the plea agreement that limits Spear's appellate rights. We reject this argument and reach the merits of this appeal because Spear's knowing and voluntary waiver of his right to appeal his sentence did not extend to this appeal of his conviction by guilty plea.
Spear was a licensed physician and the owner and operator of two family practices in Kauai, Hawaii. In June 2007, Spear was indicted in the District of Hawaii for 20 counts of distributing oxycodone and methadone outside the usual course of professional medical practice and not for a legitimate medical purpose, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). A two-count criminal information charging Spear with dispensing hydrocodone outside the usual and customary scope of professional practice and not for a legitimate medical purpose was later filed against him in the Northern District of Alabama, then transferred to the District of Hawaii.
In July 2009, Spear and the government entered a written plea agreement, in which he agreed to plead guilty to four counts of the indictment and one count of the information, and in which the government promised to dismiss the remaining counts. The agreement also contained this appeal waiver provision:
The defendant is aware that he has the right to appeal the sentence imposed under Title 18, United States Code, Section 3742(a). Defendant knowingly waives the right to appeal, except as indicated in subparagraph " b" below, any sentence within the maximum provided in the statute(s) of conviction or the manner in which that sentence was determined on any of the grounds set forth in Section 3742, or on any ...