US v. Hassan Hammoud

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to dismiss appeal [999537838-2] Originating case number: 1:14-cr-00017-RDB-1 Copies to all parties and the district court/agency. [999595958].. [14-4823]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4823

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
HASSAN HAMMOUD,
Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
Richard D. Bennett, District Judge.
(1:14-cr-00017-RDB-1)

Submitted:

May 29, 2015

Decided:

June 4, 2015

Before KEENAN, WYNN, and DIAZ, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Gregory Dolin, UNIVERSITY OF BALTIMORE SCHOOL OF LAW, Baltimore,
Maryland, for Appellant. Sandra Wilkinson, Assistant United
States Attorney, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Hassan Hammoud appeals his conviction and 63-month sentence
imposed following his guilty plea to conspiracy to use fire to
commit

a

federal

felony.

On

appeal,

counsel

filed

a

brief

pursuant to Anders v. California, 386 U.S. 738 (1967), stating
that there are no meritorious grounds for appeal, but setting
forth arguments challenging the validity of the plea and the
reasonableness
motion

to

of

the

dismiss

sentence.

the

The

appeal

on

Government
the

basis

has

filed

that

a

Hammoud

explicitly waived his right to appeal in the plea agreement.
Hammoud has filed a pro se supplemental brief, arguing that he
is

innocent

and

that

his

plea

was

involuntary

because

he

received ineffective assistance of counsel.
A criminal defendant may waive the right to appeal if that
waiver is knowing and intelligent.

United States v. Poindexter,

492 F.3d 263, 270 (4th Cir. 2007).

Generally, if the district

court fully questions a defendant regarding the waiver of his
right to appeal during a plea colloquy performed in accordance
with

Fed. R.

Crim.

P.

11,

the

waiver

is

both

valid

and

enforceable.

United States v. Johnson, 410 F.3d 137, 151 (4th

Cir. 2005).

“[T]he law ordinarily considers a waiver knowing,

intelligent,

and

sufficiently

aware

if

the

defendant

fully

understands the nature of the right and how it would likely
apply

in

general

in

the

circumstances
2

—

even

though

the

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defendant may not know the specific detailed consequences of
invoking it.”
(4th

Cir.

United States v. Thornsbury, 670 F.3d 532, 537

2012)

emphases omitted).

(internal

alteration,

quotation

marks,

and

Whether a defendant validly waived his right

to appeal is a question of law we review de novo.

United States

v. Blick, 408 F.3d 162, 168 (4th Cir. 2005).
Our review of the record leads us to conclude that Hammoud
knowingly

and

voluntarily

conviction and sentence.
Hammoud

that

fall

within

waived

his

right

to

appeal

his

Thus, review of any claims raised by
the

scope

of

his

broad

waiver

is

barred.
We recognize, however, that there are certain fundamental
rights and appellate claims that cannot be barred by an appeal
waiver.

For instance, an appellate waiver in a plea agreement

will not bar appellate review of the denial of a motion to
withdraw the underlying guilty plea when the motion contains “a
colorable claim that the plea agreement . . . is tainted by
constitutional error,” such as involuntariness or the lack of
the effective assistance of counsel.

United States v. Attar, 38

F.3d 727, 733 n.2 (4th Cir. 1994); see also United States v.
Craig, 985 F.2d 175, 178 (4th Cir. 1993) (concluding that waiver
of appeal rights in plea agreement will not bar appeal from
denial of plea-withdrawal motion where “the waiver of appeal
itself

[is]

being

challenged

by
3

the

motion

to

withdraw

the

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guilty plea”).
valid

waiver

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Finally, we will refuse to enforce an otherwise
if

enforcing

miscarriage of justice.

the

waiver

would

result

in

a

United States v. Johnson, 410 F.3d 137,

151 (4th Cir. 2005).
Both counsel’s Anders brief and Hammoud’s pro se brief,
broadly construed, raise claims that challenge the voluntariness
of Hammoud’s plea.

However, counsel’s claims are frivolous, as

they are flatly belied by the record, as counsel admits.

Thus,

these claims, too, will be dismissed.
Turning to Hammoud’s pro se brief, while he challenges the
voluntariness of his plea, his claims are ones of ineffective
assistance

of

conclusively

counsel.
appears

on

Unless
the

an

face

attorney’s
of

the

ineffectiveness

record,

ineffective

assistance claims are not generally addressed on direct appeal.
United States v. Galloway, 749 F.3d 238, 241 (4th Cir.), cert.
denied, 135 S. Ct. 215 (2015).

Instead, such claims should be

raised in a motion brought pursuant to 28 U.S.C. § 2255 (2012),
in order to permit sufficient development of the record.

United

States

2010).

v.

Baptiste,

596

F.3d

214,

216

n.1

(4th

Cir.

Because the record does not conclusively establish ineffective
assistance of counsel, see Strickland v. Washington, 466 U.S.
668, 687-88 (1984), we will dismiss these claims as well.
In

accordance

with

Anders,

we

have

reviewed

the

entire

record in the case and have found no meritorious issues for
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appeal outside the scope of the appellate waiver.

Accordingly,

we

dismiss

grant

the

Government’s

motion

to

dismiss

and

the

appeal.

This court requires that counsel inform Hammoud, in

writing,

of

the

right

to

petition

United States for further review.

the

Supreme

Court

of

the

If Hammoud 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 was served on Hammoud.

We dispense

with oral argument because the facts and legal contentions are
adequately

presented

in

the

materials

before

this

court

and

argument would not aid the decisional process.
DISMISSED

5