United States v. Malik , 164 F. App'x 299 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4647
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KAMRAN MUZAFFAR MALIK, a/k/a Nasar A. Khara,
Defendant - Appellant.
On Remand from the United States Supreme Court.
(S. Ct. No. 04-9021)
Submitted: October 28, 2005 Decided: December 7, 2005
Before LUTTIG, MOTZ, and KING, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Atiq R. Ahmed, Silver Spring, Maryland, for Appellant. Paul J.
McNulty, United States Attorney, Steven A. Linick, Assistant United
States Attorney, Ian R. Conner, Special Assistant United States
Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Kamran Muzaffar Malik appeals his conviction and sentence
after pleading guilty to one count of conspiracy to commit credit
card fraud in violation of 18 U.S.C. § 1029(b)(2) (2000). In a
prior opinion, we granted the Government’s motion to dismiss in
part and affirmed the district court’s judgment. United States v.
Malik, No. 03-4647, 2004 WL 2434959 (4th Cir. Nov. 1, 2004)
(unpublished). The Supreme Court granted certiorari, vacated the
decision, and remanded for reconsideration in light of United
States v. Booker, 125 S. Ct. 738 (2005). Malik v. United States,
125 S. Ct. 1751 (2005).
Having reviewed the case in light of Booker, we conclude
that we reached the correct result in our first decision. The
issue of whether the district court abused its discretion in
denying Malik’s motion to withdraw his guilty plea is unaffected by
the Booker decision, and Malik does not challenge our prior ruling
in his supplemental brief. We conclude that the district court did
not abuse its discretion in denying the motion to withdraw. United
States v. Wilson, 81 F.3d 1300, 1305 (4th Cir. 1996).
The second claim Malik initially raised on appeal is that
the district court erred in using the 2002 edition of the U.S.
Sentencing Guidelines Manual rather than the 2000 edition. We held
in our prior opinion that Malik waived this issue by waiving his
right to appeal. Having reviewed the issue in light of Booker, we
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remain convinced that the waiver was knowing and voluntary and that
the claim is within the scope of that waiver. See United States v.
Blick, 408 F.3d 162, 170, 173 (4th Cir. 2005) (holding a plea
agreement’s waiver of the right to appeal that was accepted prior
to the Supreme Court’s decision in Booker was not invalidated by
the change in law effected by that decision). We reject Malik’s
contention, raised for the first time in his supplemental brief,
that the Government breached the plea agreement, thereby
invalidating the waiver.
Finally, we reject Malik’s allegation that his sentence
exceeded the statutory maximum. While such a claim is not barred
by an appellate waiver, see United States v. Johnson, 410 F.3d 137,
151 (4th Cir. 2005) (a defendant cannot waive appellate review of
a sentence in excess of the statutory maximum), Malik’s fifty-seven
month sentence is well within the ninety-month statutory maximum
set out in 18 U.S.C.A. § 1029(b)(2), (c) (West 2000 & Supp. 2005).
Malik’s argument that the term statutory maximum, as used under
Booker, means the maximum guideline sentence, is without merit.
Having reconsidered Malik’s appeal in light of Booker, we
affirm his conviction and grant the Government’s motion to dismiss
the appeal of his sentence. We deny Malik’s motion for bond
pending appeal as moot. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
AFFIRMED IN PART; DISMISSED IN PART
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