US v. Aslam

Filing 920071025


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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-4431 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus FARHAN ASLAM, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. J. Frederick Motz, District Judge. (1:05-cr-00273-JFM) Submitted: September 28, 2007 Decided: October 25, 2007 Before MICHAEL, TRAXLER, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Allen H. Orenberg, THE ORENBERG LAW FIRM, P.C., North Bethesda, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Harry M. Gruber, Assistant United States Attorney, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Farhan Aslam appeals from the judgment imposed after he pled guilty, pursuant to a written plea agreement, to smuggling goods, in violation of 18 U.S.C. 545 (2000). His plea agreement The included a waiver of the right to appeal his sentence. Government filed a motion to dismiss the appeal based on the appellate waiver. it in part to The court granted the motion in part and denied the appeal based only upon claims of permit ineffective assistance of counsel. Aslam's attorney has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967). Aslam has filed a pro se informal brief. The Government filed a joint brief addressing this appeal and that of Aslam's brother, Zeeshan Aslam. Claims of ineffective assistance of counsel are generally not cognizable on direct appeal. F.3d 290, 295 (4th Cir. 1997). See United States v. King, 119 Rather, to allow for adequate development of the record, a defendant must bring his claim in a 28 U.S.C. 2255 (2000) motion. F.3d 415, 418 (4th Cir. 1994). See id.; United States v. Hoyle, 33 An exception exists when the record United States v. conclusively establishes ineffective assistance. Richardson, 195 F.3d 192, 198 (4th Cir. 1999); King, 119 F.3d at 295. Although Aslam's appellate counsel ultimately concludes that there is no error, he raises the issue that counsel was - 2 - ineffective in plea negotiations and in preparing for the sentencing hearing. alleges that trial In his pro se supplemental brief, Aslam counsel was ineffective related to the stipulation to the amount of loss at sentencing. The $759,161.16 that was stipulated to by all parties was contained in the plea agreement in the forfeiture provision. The plea agreement also contained a guideline stipulation that the value of the items exceeded $400,000, but was less than $1,000,000. Aslam now objects to the calculation of the value of the items seized. He states that trial counsel was inadequate because he did not independently investigate the financial records of the corporation as Aslam advised. The record is devoid of any comment by Aslam at the Fed. R. Crim. P. 11 hearing that he did not agree to the stipulated amount. We conclude that Aslam has not conclusively established ineffective assistance on this basis. There is no indication in the record on appeal that there was an obvious error in the value of loss calculation. Further, it is not evident that Aslam was Finally, at the prejudiced by the alleged ineffective assistance. Rule 11 hearing, Aslam agreed that he was satisfied with the services of counsel, and his statement, made under oath, is presumptively accepted as true. See Blackledge v. Allison, 431 U.S. 63, 74 (1977); Crawford v. United States, 519 F.2d 347, 349 (4th Cir. 1975), overruled on other grounds by United States v. - 3 - Whitley, 759 F.2d 327 (4th Cir. 1985). We therefore decline to consider Aslam's allegations of ineffective assistance of counsel, as he may raise them in a 28 U.S.C. 2255 motion. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. We therefore affirm Aslam's conviction and sentence. We deny counsel's motion to withdraw from representation. This court requires that counsel inform his client, in writing, of his right to petition the Supreme Court of the United States for further review. If the client requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel's motion must state that a copy thereof We dispense with oral argument because was served on the client. the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED - 4 -

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