US v. Andysheh Ayatollahi

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to dismiss appeal [999982757-2] Originating case number: 2:10-cr-00015-RAJ-FBS-1 Copies to all parties and the district court/agency. [1000007234].. [16-4466]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-4466

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ANDYSHEH AYATOLLAHI, a/k/a Andy,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:10-cr-00015-RAJ-FBS-1)

Submitted:

January 17, 2017

Decided:

January 20, 2017

Before GREGORY, Chief Judge, and KING and DIAZ, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Joseph Ryland Winston, LAW OFFICES OF JOSEPH R. WINSTON,
Richmond, Virginia, for Appellant. Alan Mark Salsbury, Assistant
United States Attorney, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
In

accordance

Ayatollahi
institution

pled

with

guilty

fraud,

18

a

written

to

plea

conspiracy

U.S.C.

§ 1349

agreement,
to

commit
and

financial
making

and

subscribing a false tax return, 26 U.S.C. § 7206(1) (2012).

He

was sentenced to 74 months in prison.

(2012),

Andysheh

Ayatollahi now appeals.

His attorney has filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), raising two issues but stating that there
are no meritorious grounds for appeal.

Ayatollahi was advised

of his right to file a pro se brief but has not filed such a
brief. The United States moves to dismiss the appeal based upon
a

waiver-of-appellate-rights

provision

Ayatollahi has responded to the motion.

in

the

plea

agreement.

We grant the motion to

dismiss the appeal.
I
We review de novo the validity of an appeal waiver.

United

States v. Copeland, 707 F.3d 522, 528 (4th Cir. 2013).

Where

the Government seeks to enforce an appeal waiver and did not
breach its obligations under the plea agreement, we will enforce
the

waiver

if

the

record

establishes

that

(1)

the

defendant

knowingly and intelligently waived his right to appeal, and (2)
the issues raised on appeal fall within the scope of the waiver.
United States v. Blick, 408 F.3d 162, 168-69 (4th Cir. 2005).

2

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A
To determine whether a waiver is knowing and intelligent,
we examine “the totality of the circumstances, including the
experience and conduct of the accused, as well as the accused’s
educational background and familiarity with the terms of the
plea agreement.”
(4th

Cir.

United States v. General, 278 F.3d 389, 400

2002)

(internal

quotation

marks

omitted).

Other

factors to be considered are whether the waiver language in the
plea

agreement

was

“unambiguous”

and

“plainly

embodied,”

and

whether the district court fully questioned the defendant during
the Fed. R. Crim. P. 11 colloquy regarding the waiver of his
right to appeal.

Id. at 400-401; see United States v. Johnson,

410 F.3d 137, 151 (4th Cir. 2005); United States v. Wessells,
936

F.3d

165,

167-68

(4th

Cir.

1991).

Generally,

if

the

district court specifically questioned the defendant regarding
the waiver during the colloquy or the record otherwise indicates
that

the

defendant

understood

waiver, the waiver is valid.

the

full

significance

of

Johnson, 410 F.3d at 151.

Ayatollahi’s plea agreement provided in relevant part:
The defendant . . . understands that Title 18, United
States Code, Section 3742 affords a defendant the
right to appeal the sentence imposed.
Nonetheless,
the defendant knowingly waives the right to appeal the
conviction and any sentence within the statutory
maximum . . . (or the manner in which that sentence
was determined) . . . on any ground whatsoever, in
exchange for the concessions made by the United
States. . . .
3

the

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In signing the agreement, Ayatollahi acknowledged:
I have consulted with my attorney and fully understand
all rights with respect to the pending indictment.
Further, I fully understand all rights with respect to
Title 18, United States Code, Section 3553 and the
provisions of the Sentencing Guidelines Manual that
may apply in my case. I have read this plea agreement
and carefully reviewed every part of it with my
attorney. I understand this agreement and voluntarily
agree to it.
At the Rule 11 hearing, Ayatollahi advised the court that
he was 36, had a high school diploma, and was not under the
influence of any medication.

He stated that he was pleading

guilty freely and voluntarily and that the factual basis offered
in

support

of

the

plea

was

accurate.

satisfied” with his attorney’s services.

He

was

“entirely

He had read the plea

agreement, which he understood, and had discussed it with his
attorney.

The court reviewed the terms of the appellate waiver

with Ayatollahi, who said that he understood it.

Our review of

the hearing transcript discloses that the court fully complied
with Rule 11.
We conclude that, under the totality of the circumstances,
Ayatollahi knowingly and voluntarily waived his right to appeal
both his convictions and sentence.
B
Under

Blick,

the

next

question

is

whether

the

issues

Ayatollahi seeks to raise on appeal fall within the scope of the
waiver.

We conclude that they do.
4

The only issues raised in

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Anders

accepted
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brief

the

guilty

issues

therefore

are

are

hold

whether

plea

and

clearly

that

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the

district

whether

the

encompassed

Ayatollahi

sentence

by

validly

court

the

waived

correctly
is

valid.

waiver.
his

We

right

to

challenge his convictions and sentence.
II
Pursuant to Anders, we have reviewed the entire record and
have found no meritorious issues for appeal.
grant the motion to dismiss the appeal.
that

counsel

inform

Ayatollahi,

Supreme

Court

of

in
the

Accordingly, we

This court requires

writing,
United

of

the

States

right

for

to

petition

the

further

review.

If Ayatollahi requests that a petition be filed, but

counsel believes that such a petition would be frivolous, then
counsel

may

move

representation.
was

served

on

in

this

court

for

leave

to

withdraw

from

Counsel’s motion must state that a copy thereof
Ayatollahi.

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

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