United States v. Heydar Sadeghi , 459 F. App'x 244 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4558
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HEYDAR SADEGHI, a/k/a Heydar ‘Ed’ Sadeghi, a/k/a Aeydar
Zadeghi, a/k/a Heidar Sadeghi, a/k/a Mir Goharbar, a/k/a Mir
Sadegh Goharbar,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:11-cr-00070-JCC-1)
Submitted: December 7, 2011 Decided: Decemer 22, 2011
Before AGEE and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
Michael S. Nachmanoff, Federal Public Defender, Frances H.
Pratt, Kevin R. Brehm, Assistant Federal Public Defenders,
Alexandria, Virginia, for Appellant. Ryan Scott Faulconer,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Heydar Sadeghi pled guilty, pursuant to a plea
agreement, to mail fraud in violation of 18 U.S.C. § 1341
(2006). The district court sentenced Sadeghi to five years’
probation. On appeal, Sadeghi’s counsel filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), stating that he
could identify no meritorious issues for appeal, but questioning
whether Sadeghi knowingly and intelligently waived his right to
appeal. The Government moved to dismiss the appeal as barred by
Sadeghi’s waiver of the right to appeal included in the plea
agreement.
We review de novo whether a defendant has effectively
waived his right to appeal. United States v. Marin, 961 F.2d
493, 496 (4th Cir. 1992). An appellate waiver must be “the
result of a knowing and intelligent decision to forgo the right
to appeal.” United States v. Broughton-Jones, 71 F.3d 1143,
1146 (4th Cir. 1995) (internal quotation marks and citation
omitted). To determine whether a waiver is knowing and
intelligent, we examine “the totality of the circumstances,
including the experience and the conduct of the accused, as well
as the accused’s educational background and experience with the
terms of the plea agreement.” United States v. General, 278
F.3d 389, 400 (4th Cir. 2002) (internal quotation marks and
citation omitted). Generally, if a court fully questions a
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defendant regarding the waiver of his right to appeal during the
Rule 11 colloquy, the waiver is both valid and enforceable.
United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005).
However, this court will “refuse to enforce an otherwise valid
waiver if to do so would result in a miscarriage of justice.”
Id. (internal quotation marks and citation omitted).
In the plea agreement, Sadeghi agreed to waive the
right to “appeal the conviction and any sentence imposed within
the statutory maximum . . . on any ground whatsoever.” Upon
review of the plea agreement and the transcript of the Fed. R.
Crim. P. 11 hearing, we conclude that Sadeghi knowingly and
voluntarily waived his right to appeal and that Sadeghi does not
seek to raise on appeal any issue outside the compass of his
waiver of appellate rights. Accordingly, we grant the
Government’s motion to dismiss Sadeghi’s appeal as to all issues
except those, such as ineffective assistance of counsel and
prosecutorial misconduct, that we deem exempt from even valid
waivers of appellate rights.
Although Sadeghi waived his right to appeal his
conviction and any within-Guidelines sentence, his appellate
waiver does not preclude this court’s Anders review of the
record for any potentially meritorious issues outside the scope
of Sadeghi’s appellate waiver. We have found none. We
therefore affirm Sadeghi’s conviction and sentence to the extent
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our obligation pursuant to Anders extends to matters not
precluded by the appellate waiver provision of Sadeghi’s plea
agreement.
This court requires that counsel inform Sadeghi, in
writing, of the right to petition to the Supreme Court of the
United States for further review. If Sadeghi requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this Court for
leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on Sadeghi. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
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