USA v. Najeeb Rahman

Filing

FILED OPINION (DIARMUID F. O'SCANNLAIN, RONALD M. GOULD and AMY J. ST. EVE) DISMISSED. Judge: DFO Authoring, Judge: RMG , Judge: AJS . FILED AND ENTERED JUDGMENT. [7806643]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
NAJEEB RAHMAN,
Defendant-Appellant.

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No. 10-10293
D.C. No.
2:08-cr-00126-RLHPAL-1
OPINION

Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, District Judge, Presiding
Submitted May 13, 2011*
San Francisco, California
Filed July 5, 2011
Before: Diarmuid F. O’Scannlain and Ronald M. Gould,
Circuit Judges, and Amy J. St. Eve, District Judge.**
Opinion by Judge O’Scannlain

*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable Amy J. St. Eve, United States District Judge for the
Northern District of Illinois, sitting by designation.

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UNITED STATES v. RAHMAN

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COUNSEL
Kirk T. Kennedy, Las Vegas, Nevada, filed the brief for the
defendant-appellant.
Peter S. Levitt, Assistant United States Attorney, Las Vegas,
Nevada, filed the brief for the United States. Daniel G. Bogden, United States Attorney for the District of Nevada, and
Robert L. Ellman, Appellate Chief of the United States Attorney’s Office for the District of Nevada, were also on the brief.

OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether a criminal defendant’s waiver of
his right to appeal his conviction extends to the denial of his
subsequent motion to withdraw his guilty plea.
I
Najeeb Rahman pled guilty to aggravated identity theft and
to committing fraudulent transactions with access devices, in
violation of 18 U.S.C. §§ 1028A and 1029(a)(5), respectively.
In a written plea agreement, Rahman waived “his right to
appeal any aspect of his convictions.”
Before accepting Rahman’s guilty plea, the district court
conducted a hearing under Federal Rule of Criminal Proce-

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dure 11 in which it confirmed that Rahman was of sound
mind, explained to Rahman the charges against him and the
rights that he was giving up by pleading guilty, and determined that there was a factual basis for the plea. Rahman specifically affirmed that he had read and understood the plea
agreement, that he was satisfied with his counsel’s representation, and that he understood that he was waiving his right to
appeal.
Subsequently, Rahman moved to withdraw that plea and to
obtain new counsel, citing a “rift” and “overall communications difficulties” between himself and his counsel. Rahman
also claimed that his attorney “misinformed” and “misguided”
him. Rahman did not elaborate on these allegations, however.
The district court granted Rahman’s motion to appoint new
counsel and, after allowing Rahman’s new counsel to file a
supplemental brief, held a hearing on Rahman’s motion to
withdraw his guilty plea.
Rahman did not call any witnesses at the hearing. Instead,
his counsel relied on Rahman’s pro se filings which “alluded
to” the fact that Rahman was “misled” and “misguided” by
his former counsel. Still, Rahman’s new counsel admitted that
he did not “know exactly what it was that transpired” in the
talks between Rahman and his former counsel. He further
stated that he was “not sure of what representations or promises were made during conversations [between Rahman and
his prior counsel] that caused him to plead guilty.”
The district court denied Rahman’s motion to withdraw his
plea, noting that Rahman made no showing of ineffective
assistance and, in fact, spent most of his motion complaining
about prison conditions. This timely appeal ensued.
II
Rahman claims that the district court erred in denying his
motion to withdraw his guilty plea. The government counters

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that Rahman waived the right to bring this appeal. “A defendant’s waiver of his appellate rights is enforceable if (1) the
language of the waiver encompasses his right to appeal on the
grounds raised, and (2) the waiver is knowingly and voluntarily made.” United States v. Jeronimo, 398 F.3d 1149, 1153
(9th Cir. 2005). Because Rahman’s appellate waiver meets
both of these conditions, his waiver is effective.
A
[1] We have consistently read general waivers of the right
to appeal to cover all appeals, even an appeal from the denial
of a motion to withdraw a guilty plea. For instance, in United
States v. Michlin, each defendant pled guilty under a plea
agreement which included a waiver of “his right to appeal his
conviction.” 34 F.3d 896, 898 (9th Cir. 1994). The defendants
later moved to withdraw their guilty pleas, a motion the district court denied. Id. at 897. We dismissed the defendants’
subsequent appeal as waived, determining that their appellate
waiver covered an appeal from the denial of a request to withdraw their guilty pleas. See id. Similarly, in United States v.
Jeronimo, the defendant waived “any and all rights to
appeal,” but subsequently appealed the denial of his motion
to withdraw his guilty plea. 398 F.3d at 1154. We dismissed
the appeal as waived, reasoning that, “while Jeronimo’s plea
agreement does not specifically contemplate the possibility of
an appeal based on the district court’s denial of a motion to
withdraw [his guilty plea], its broad language clearly bars him
from bringing this appeal.” Id.
[2] There is admittedly some tension between the Michlin
and Jeronimo, on the one hand, and United States v. Nguyen,
235 F.3d 1179 (9th Cir. 2000), on the other. Nguyen, like
Rahman, pled guilty, waived his right to appeal, moved to
withdraw his guilty plea, and then appealed the district court’s
denial of that motion. But rather than dismissing the appeal as
waived, we determined, in one paragraph, that “[t]he district
court did not abuse its discretion” in denying Nguyen’s

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motion to withdraw his plea. Id. at 1182. To the extent that
the discussion of the merits of Nguyen’s motion to withdraw
implied that general appellate waivers do not cover appeals
from withdrawal of plea motions, such implicit dicta has been
abrogated by subsequent Ninth Circuit cases which explicitly
held to the contrary. See, e.g., Jeronimo, 398 F.3d at 1154.
[3] Here, Rahman waived “his right to appeal any aspect
of his convictions.” Because an appeal from the denial of his
motion to withdraw his plea is an appeal from his convictions,
Rahman’s appellate waiver extends to this appeal.
B
Notwithstanding that his waiver of appeal extends to the
denial of withdrawal of his guilty plea, Rahman further claims
that his waiver was not made knowingly and voluntarily
because of ineffective assistance of counsel. “[A]s a general
rule, we do not review challenges to the effectiveness of
defense counsel on direct appeal.” Jeronimo, 398 F.3d at
1155. We have permitted ineffective assistance claims to be
reviewed on direct appeal only in the unusual cases where (1)
the record on appeal is sufficiently developed to permit determination of the issue, or (2) the legal representation is so
inadequate that it obviously denies a defendant his Sixth
Amendment right to counsel. Id. at 1156 (citing United States
v. Daychild, 357 F.3d 1082, 1095 (9th Cir. 2004)).
[4] Neither exception applies here. The record contains no
evidence of ineffective assistance of counsel. In fact, Rahman’s new attorney admitted to the district court that he did
not “know exactly what it was that transpired” in the talks
between Rahman and his former attorney, and that he was
“not sure” what misrepresentations Rahman’s former attorney
might have made in order to induce Rahman to plead guilty.
And, despite claiming that he was “misinformed” and “misguided” by his prior counsel, Rahman has not provided any
specifics.

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[5] Accordingly, we cannot now conclude that Rahman’s
waiver of his right to appeal was made involuntarily. See id.
at 1156. “Further, ‘we will not remand a case from direct
appeal for fact-finding related to an ineffective assistance of
counsel claim, but allow a defendant to pursue the issue in
district court collateral proceedings.’ ” Id. (quoting United
States v. Reyes-Platero, 224 F.3d 1112, 1117 (9th Cir. 2000)).
We therefore leave open the possibility that Rahman might
raise an ineffective assistance of counsel claim in a subsequent collateral attack.
III
For the foregoing reasons, this appeal is
DISMISSED.