United States v. Saad Basha , 691 F. App'x 716 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4530
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SAAD SUBHI BASHA,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina,
at Charlotte. Frank D. Whitney, Chief District Judge. (3:16-cr-00059-FDW-1)
Submitted: May 31, 2017 Decided: June 8, 2017
Before NIEMEYER, AGEE, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Frank A. Abrams, LAW OFFICE OF FRANK ABRAMS, PLLC, Arden, North Carolina,
for Appellant. Jill Westmoreland Rose, United States Attorney, Amy E. Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Saad Subhi Basha pled guilty, pursuant to a plea agreement, to conspiracy to
distribute and possess with intent to distribute a quantity of marijuana, in violation of
21 U.S.C. § 846 (2012), and conspiracy to engage in money laundering, in violation of
18 U.S.C. § 1956(h) (2012). The district court sentenced Basha to 30 months’
imprisonment. On appeal, Basha challenges his convictions, arguing that one of his
attorneys, Anthony Brooklier, rendered ineffective assistance and that the Government
engaged in misconduct. Basha also moves for leave to attach a document to his opening
brief.
The record on appeal consists of: “(1) the original papers and exhibits filed in the
district court; (2) the transcript of proceedings, if any; and (3) a certified copy of the
docket entries prepared by the district clerk.” Fed. R. App. P. 10(a). The rules provide,
however, that the record may be supplemented if “anything material to either party is
omitted from or misstated in the record by error or accident.” Fed. R. App. P. 10(e)(2).
Basha moves for leave to supplement the record with a document that does not fall into
any of the Rule 10(a) categories and apparently was not omitted from or misstated in the
record by error or accident. Accordingly, we deny Basha’s motion.
To succeed on his ineffective assistance of counsel claims, Basha must show that
Brooklier’s performance was constitutionally deficient and the deficient performance was
prejudicial. Strickland v. Washington, 466 U.S. 668, 687-88, 691-92 (1984). Moreover,
“[u]nless an attorney’s ineffectiveness conclusively appears on the face of the record,
such claims are not addressed on direct appeal” and “should be raised, if at all, in a
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28 U.S.C. § 2255 motion.” United States v. Faulls, 821 F.3d 502, 507–08 (4th Cir.
2016). To prevail on his prosecutorial misconduct claim, Basha must demonstrate both
that the prosecutor’s conduct was improper and that the conduct prejudicially affected his
substantial rights. United States v. Caro, 597 F.3d 608, 624-25 (4th Cir. 2010). Because
Basha did not raise a prosecutorial misconduct claim in the district court, our review is
for plain error. United States v. Alerre, 430 F.3d 681, 689 (4th Cir. 2005); see Henderson
v. United States, 133 S. Ct. 1121, 1126-27 (2013) (describing plain error review).
We have found no evidence in the current record supporting Basha’s ineffective
assistance and prosecutorial misconduct claims. Accordingly, we affirm the district
court’s judgment. 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.
AFFIRMED
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