United States v. Al-Taweel , 105 F. App'x 972 ( 2004 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 29 2004
TENTH CIRCUIT
__________________________ PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. Nos. 03-5176 & 03-5195
(N.D. Okla.)
TARIG AL-TAWEEL, (D.Ct. Nos. CR-03-57-P & CR-02-58-P)
Defendant-Appellant.
____________________________
ORDER AND JUDGMENT *
Before TACHA, Chief Circuit Judge, and PORFILIO and BRORBY, Senior
Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
Appellant Tarig Al-Taweel, a federal prisoner represented by counsel, pled
guilty in two separate cases to one count of mailing threatening communications
in violation of 18 U.S.C. § 876 (District Court for the Northern District of
Oklahoma Case No. 02-CR-58-P; 10th Circuit Court of Appeals Docket No. 03-
5195), and one count of conspiracy to commit fraud in violation of 18 U.S.C.
§ 371 (District Court for the Northern District of Oklahoma Case No. 03–CR-57-
P; 10th Circuit Court of Appeals No. 03-5176). The district court sentenced Mr.
Al-Taweel to twelve months imprisonment for mailing a threatening
communication, and zero months imprisonment and three years supervised release
for conspiracy to commit fraud, to run concurrently with each other, but
consecutively to concurrent state convictions he is presently serving. 1 Mr. Al-
Taweel appeals both federal convictions and sentences, which we consolidate for
our review.
After Mr. Al-Taweel filed timely notices of appeal in both cases, his
counsel filed appeal briefs, pursuant to Anders v. California, 386 U.S. 738, 744
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Mr. Al-Taweel received convictions in state court on eight counts of altering
grades for which he received a two-year sentence for each count to run consecutively, for
a total of sixteen years imprisonment. His other state conviction consists of two counts of
impersonating another, for which he received a two-year sentence for each count to run
concurrently together and with his other sixteen-year sentence.
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(1967), alleging that after “diligently search[ing] the record for any non-frivolous
issues ... arguable on appeal,” no meritorious appellate issues exist, and
requesting an order permitting him to withdraw as Mr. Al-Taweel’s counsel in
both cases. Pursuant to Anders, this court gave Mr. Al-Taweel an opportunity to
raise points in response to the Anders’ brief, which he did by filing a reply brief,
raising two appeal issues. Id. Exercising our jurisdiction under 28 U.S.C. 1291,
we affirm Mr. Al-Taweel’s convictions and sentences.
I. Procedural Background
In pleading guilty in both cases to one count of mailing a threatening
communication and one count of conspiracy to commit fraud, Mr. Al-Taweel
entered two plea agreements in which he waived “all appellate rights,” including
all collateral attacks, except for any ineffective assistance of counsel claims. In
the same plea agreements, the government stipulated it would recommend any
federal imprisonment imposed run concurrently with his state sentences; in turn,
Mr. Al-Taweel declared he understood the court was not bound by this stipulation
and would ultimately decide his sentence.
At the sentencing hearing, the district court imposed a twelve-month
sentence for mailing a threatening communication in violation of 18 U.S.C. § 876.
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Similarly, the district court determined the appropriate sentence for the charge of
conspiracy to commit fraud in violation of 18 U.S.C. § 371 was twelve months
imprisonment, but adjusted the sentence to compensate for the time already spent
in state custody for a conviction directly related to the federal charge. As a
result, the court imposed a sentence of zero months imprisonment and three years
supervised release to run concurrently with his other federal sentence of twelve
months. In addition, despite the government’s aforementioned stipulation in the
plea agreement and both parties’ verbal requests at sentencing for concurrent
sentencing, the district court determined Mr. Al-Taweel’s federal sentences
should run consecutively, rather than concurrently, with his state convictions.
The district court based its decision on the fact Mr. Al-Taweel’s twelve-month
federal sentence for mailing a threatening communication was unrelated to any of
his other criminal cases, stating Mr. Al-Taweel has “not yet been held accountable
for this serious event. To run this sentence ... concurrent[ly] with any other
criminal cases [would] allow [him] to avoid punishment for this offense.”
II. Discussion
Consistent with Anders, Mr. Al-Taweel’s counsel has submitted two appeal
briefs, explaining no viable appeal issues exist. Specifically, his counsel points
out Mr. Al-Taweel received a sentence of zero months on his conspiracy
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conviction so “no relief can be awarded on appeal.” As to his twelve-month
sentence for mailing a threatening communication, his counsel explains Mr. Al-
Taweel’s appeal does not concern the validity of his plea, but the district court’s
discretionary decision to impose his sentence to run consecutively with his state
sentences, which was fully addressed in the Presentencing Report. Mr. Al-
Taweel’s counsel suggests “no viable appellate issues” exist on appeal because
the terms of the plea agreement did not guaranty concurrent sentencing and the
district court did not abuse its discretion in determining the federal sentence
should run consecutively with the state sentences.
In response, Mr. Al-Taweel filed a pro se reply brief raising two grounds
on appeal. First, while he admits the district court is not required to give him
credit for time spent serving his state sentence for an unrelated offense, he argues
he is entitled to receive such credit based on the government’s stipulation in the
plea agreement that it would seek concurrent sentences. Next, Mr. Al-Taweel
argues he received ineffective assistance of counsel because his attorney failed at
sentencing to object to the consecutive sentence the district court imposed.
In reply, the government argues Mr. Al-Taweel’s appeal must be dismissed
because he voluntarily and knowingly waived his appellate rights after consulting
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with his attorney, and fails to claim his waiver was involuntary and unknowing or
will result in a miscarriage of justice. In the event we decline to decide the
appeal on the waiver issue, the government suggests we affirm the sentences as
the district court was not bound by the government’s stipulation and did not abuse
its discretion in ordering a consecutive sentence for an offense unrelated to Mr.
Al-Taweel’s other criminal offenses. Finally, the government contends Mr. Al-
Taweel’s ineffective assistance of counsel issue should be brought in a collateral
proceeding, as he fails to meet the exception to raising it on direct appeal, which
is to show the record needs no further development.
We begin our review by noting “[t]his court will hold a defendant to the
terms of a lawful plea agreement,” including “[a] defendant’s knowing and
voluntary waiver of the statutory right to appeal his sentence.” United States v.
Atterberry, 144 F.3d 1299, 1300 (10th Cir. 1998). However, as Mr. Al-Taweel’s
counsel pointed out in his Anders briefs, “the government has not filed a motion
to enforce the waiver of appeal,” as required by United States v. Hahn, 359 F.3d
1315, 1328 (10th Cir. 2004). In response to this point, the government raised and
addressed the issue of waiver in its appeal brief, rather than filing a separate
motion. As we stated in Hahn, the purpose for filing a motion for enforcement of
a plea waiver is to give the government an opportunity to address the factors for
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such waiver therein, allow the defendant to respond, and provide this court the
opportunity to summarily dismiss the appeal if the plea agreement is enforceable.
Id. at 1328. Because neither Mr. Al-Taweel nor his counsel responded to the
government’s waiver argument, we decline in this case to address the wavier issue
raised by the government, and instead, resolve the appeal issues on other grounds.
Turning to the issue of Mr. Al-Taweel’s federal sentences running
consecutively with his state sentences, we review a district court’s decision to
impose a consecutive sentence for an abuse of discretion. See United States v.
Hurlich, 293 F.3d 1223, 1230 (10th Cir. 2002). In exercising its discretion to
impose a concurrent or consecutive sentence, the district court must provide
reasons for its decision. Id. While a prosecutor may make sentencing
recommendations, such recommendations are only advisory and the court is not
bound by them. See United States v. Garcia, 78 F.3d 1457, 1462 (10th Cir.
1996).
In this case, even though the government recommended all sentences run
concurrently, the district court acted within its discretionary authority in ordering
Mr. Al-Taweel’s federal sentences to run consecutively with his state sentences.
In so doing, it explicitly provided its reasoning, which was to ensure Mr. Al-
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Taweel received punishment for an offense unrelated to his state offenses and
sentences. Moreover, a review of the record shows Mr. Al-Taweel was fully
informed of the district court’s discretionary authority to impose consecutive
sentences, as evidenced by the terms of the plea agreement and presentencing
report which explained this authority, and the plea hearing colloquy where he
clearly testified he understood this authority and entered the plea agreement
voluntarily and knowingly. Under the circumstances presented, we hold the
district court did not abuse its discretion in ordering Mr. Al-Taweel’s sentences to
run consecutively with his state sentences.
Next, Mr. Al-Taweel bases his ineffective assistance of counsel claim on
the fact his counsel failed to object to the district court’s imposition of a
consecutive sentence. As the government points out, ineffective assistance of
counsel claims generally should be brought in collateral proceedings, not on
direct appeal, for the purpose of developing a factual record on the issue and
allowing the district court the opportunity to address it. United States v.
Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc). Nevertheless, we have
recognized exceptions in rare instances where an ineffectiveness of counsel claim
needs no further development prior to review and resolution on direct appeal. Id.We conclude this case meets the rare exception, as no further development of the
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record would benefit our resolution of the issue. Accordingly, we review the
issue under Strickland v. Washington, 466 U.S. 668, 687 (1984), which requires a
defendant asserting ineffective assistance of counsel to show both deficient
performance of counsel and prejudice resulting from such deficient performance.
In this case, Mr. Al-Taweel’s counsel, at sentencing, explicitly asked the
district court to adopt the plea agreement, including the government’s stipulation
Mr. Al-Taweel’s federal sentences run concurrently with his state sentences. The
government, at length, also expressly recommended and requested concurrent
sentences. Nevertheless, the district court declined to follow these requests for
the reasons already articulated herein, and instead, directed the parties to file an
appeal within ten days for the purpose of contesting its sentencing decision.
Under the circumstances presented, we cannot say counsel’s failure to object to
the district court’s sentencing decision at the conclusion of the sentencing hearing
amounted to ineffective assistance of counsel or in anyway prejudiced the
defense, given Mr. Al-Taweel could and did raise the consecutive sentence issue
on appeal, which proved meritless, as previously discussed.
III. Conclusion
After a careful review of the record on appeal, we grant counsel’s request
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to withdraw and AFFIRM Mr. Al-Taweel’s convictions and sentences.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
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