United States v. Al-Hababeh ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4277
ALI JAMIL AL-HABABEH,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CR-02-569)
Submitted: July 30, 2003
Decided: August 13, 2003
Before WILLIAMS, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
May Shallal Kheder, Maher Hanania, HANANIA, KHEDER &
NAWASH, Falls Church, Virginia, for Appellant. Paul J. McNulty,
United States Attorney, Robert W. Wiechering, Assistant United
States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. AL-HABABEH
OPINION
PER CURIAM:
Pursuant to a plea agreement, Ali Jamil Al-Hababeh pled guilty to
one count of fraud and misuse of visas, permits, and other documents,
in violation of 18 U.S.C.A. § 1546(a) (West Supp. 2003). The district
court denied his motion to withdraw his guilty plea and sentenced him
to five months in prison and two years of supervised release. As a
special condition of supervised release, the court ordered Al-Hababeh
to cooperate with any orders or directives of the Immigration and Nat-
uralization Service ("INS"). Al-Hababeh timely appealed. We affirm.
Al-Hababeh contends that the district court erred in denying his
motion to withdraw his guilty plea. This court reviews the denial of
a motion to withdraw a guilty plea for abuse of discretion. United
States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). A defendant
does not have an absolute right to withdraw a guilty plea. United
States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991). Rather, a defen-
dant bears the burden of demonstrating that a "fair and just reason"
supports his request to withdraw his plea. Id.Factors considered in determining whether a defendant has shown
a fair and just reason for withdrawing his guilty plea include:
(1) whether the defendant has offered credible evidence that
his plea was not knowing or voluntary, (2) whether the
defendant has credibly asserted his legal innocence, (3)
whether there has been a delay between the entering of the
plea and the filing of the motion, (4) whether defendant has
had close assistance of competent counsel, (5) whether with-
drawal will cause prejudice to the government, and (6)
whether it will inconvenience the court and waste judicial
resources.
Id. Based on our review of the record, we uphold the district court’s
finding that these factors do not favor Al-Hababeh’s position and con-
clude that the court did not err by denying his motion to withdraw his
guilty plea.
UNITED STATES v. AL-HABABEH 3
Intertwined with his claim that the district court erred by denying
his motion to withdraw his guilty plea, Al-Hababeh argues that the
Fed. R. Crim. P. 11 hearing was inadequate because the district court
failed to advise him about the essential elements of the offense or the
provision of his plea agreement whereby he waived his right to chal-
lenge deportation or removal proceedings. While the adequacy of the
plea generally is reviewed de novo, United States v. Good, 25 F.3d
218, 219 (4th Cir. 1994), in the Rule 11 context, violations are
reviewed for harmless error. United States v. Damon, 191 F.3d 561,
564 n.2 (4th Cir. 1999) (citing United States v. Goins, 51 F.3d 400,
402 (4th Cir. 1995)).
We find that the district court’s statements at the plea hearing ade-
quately gave Al-Hababeh notice of the charge to which he was plead-
ing guilty and satisfied the requirements of Rule 11. United States v.
Martinez, 277 F.3d 517, 530 (4th Cir.), cert. denied, 123 S. Ct. 200(2002); United States v. DeFusco, 949 F.2d 114, 116-17 (4th Cir.
1991). In addition, the district court’s failure to discuss the portion of
the plea agreement addressing Al-Hababeh’s waiver of challenges to
deportation or removal was, at most, harmless error. Fed. R. Civ. P.
11(h).
Although a defendant must know the direct consequences of his
guilty plea in order for it to be knowing and voluntary, Brady v.
United States, 397 U.S. 742, 755 (1970); Cuthrell v. Director, Patux-
ent Inst., 475 F.2d 1364, 1365 (4th Cir. 1973), the failure to inform
a defendant about a collateral consequence, such as deportability,
does not render the guilty plea involuntary. Cuthrell, 475 F.2d at
1366. Moreover, while the district court did not discuss the provisions
of the plea agreement concerning waiver of challenges to deportation
or removal, Al-Hababeh signed the plea agreement directly under the
passage stating that "I have read this plea agreement and carefully
reviewed every part of it with my attorney," and stated under oath at
the Rule 11 hearing that he had reviewed the agreement. The attorney
representing Al-Hababeh when he signed the plea agreement and
entered his guilty plea stated in an affidavit that he reviewed the plea
agreement with his client, including the provision that he was remov-
able and would not object to removal proceedings, and that he under-
stood when he pled guilty that deportation was a possible
consequence of his guilty plea. We therefore find that the court’s fail-
4 UNITED STATES v. AL-HABABEH
ure to address the deportation and removal provisions at the Rule 11
hearing amount, at most, to harmless error.
Al-Hababeh contends that the Rule 11 hearing was flawed because
the district court failed to advise him about the special conditions of
supervised release, namely that he must cooperate with the INS. In
support of his position, he cites United States v. Thorne, 153 F.3d 130(4th Cir. 1998). Unlike the defendant in Thorne, Al-Hababeh was
advised at the Rule 11 hearing that he faced a three-year term of
supervised release if he pled guilty and would have to serve that time
if he violated the terms of supervised release. Accordingly, we find
that the concerns raised in Thorne do not exist in this case.
For these reasons, we affirm Al-Hababeh’s conviction. We dis-
pense 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