United States v. Gurpreet Bajwa ( 2021 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-4343
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GURPREET SINGH BAJWA,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Leonie M. Brinkema, District Judge. (1:20-cr-00060-LMB-1)
Submitted: January 22, 2021 Decided: February 4, 2021
Before HARRIS and RUSHING, Circuit Judges, and SHEDD, Senior Circuit Judge.
Dismissed in part, affirmed in part by unpublished per curiam opinion.
Laura P. Tayman, LAURA P. TAYMAN, PLLC, Newport News, Virginia, for Appellant.
Katherine Elise Rumbaugh, Daniel Taylor Young, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gurpreet Singh Bajwa pled guilty, pursuant to a written plea agreement, to
distribution of Adderall and Oxycodone, and the district court sentenced him to 120 months
in prison. On appeal, Bajwa’s counsel has filed a brief under Anders v. California, 386
U.S. 738 (1967), certifying that no meritorious grounds exist for appeal but questioning the
sufficiency of the Federal Rule of Criminal Procedure 11 hearing and asserting that the
district court erred in permitting certain testimony at sentencing. The Government has
moved to dismiss the appeal based on the appellate waiver in Bajwa’s plea agreement.
Bajwa has received notice of the right to file a pro se supplemental brief, but he has not
done so. However, through counsel, Bajwa has filed a response to the motion to dismiss,
asking the court to conduct an Anders review.
We conclude that Bajwa’s appeal waiver is valid because he entered it knowingly
and intelligently. See United States v. Manigan, 592 F.3d 621, 627 (4th Cir. 2010). Bajwa
does not argue otherwise, and he has therefore waived the right to appeal his conviction
and any sentence within the statutory maximum. Accordingly, we grant the Government’s
motion to dismiss in part and dismiss the appeal as to Bajwa’s sentence. As to Bajwa’s
challenge to his convictions, we deny the motion.
Despite the appeal waiver, Bajwa can still appeal issues unwaivable by law. Such
issues include claims that a sentence exceeded the statutory maximum or relied on a
constitutionally impermissible factor such as race or claims of ineffective assistance of
counsel. See United States v. Copeland, 707 F.3d 522, 530 (4th Cir. 2013). In addition,
although the waiver bars an appeal of his sentence as discussed above, Bajwa’s appellate
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waiver does not foreclose his challenge to the voluntariness of his plea. See United States v.
Attar, 38 F.3d 727, 733 n.2. Because Bajwa did not move to withdraw his plea, we review
his Rule 11 hearing for plain error. Henderson v. United States, 568 U.S. 266, 272 (2013);
United States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002) (discussing standard). In the
guilty plea context, a defendant demonstrates that an error affected his substantial rights by
“show[ing] a reasonable probability that, but for the error, he would not have entered the
plea.” United States v. Massenburg, 564 F.3d 337, 343 (4th Cir. 2009) (internal quotation
marks omitted).
Bajwa asserts that his Rule 11 hearing contained three omissions. First, he contends
that the district court did not advise him of the possibility of restitution. However, given
that there was no restitution ordered because the Government did not request it, Bajwa
cannot credibly argue that, had he been advised of the possibility, he would not have pled
guilty. Next, Bajwa asserts that, although he was informed as to his right to appointed
counsel at trial should he not be able to afford any attorney, he was not advised that he had
a right to an attorney at all stages of the criminal process. However, Bajwa had retained
counsel in district court throughout the proceedings. As such, the right to have counsel
appointed was not an issue relevant to his decision to plead guilty, and he does not argue
otherwise. Finally, he asserts that he was not advised of the possible consequences for
non-U.S. citizens. However, Bajwa is a U.S. citizen, so this advice would have been
irrelevant. Accordingly, we find that the district court’s substantial compliance with Rule
11 did not affect Bajwa’s substantial rights and that there is no indication that Bajwa would
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not have pled guilty had the district court’s plea colloquy been more exacting. See
Massenburg, 564 F.3d at 343. As such, we affirm Bajwa’s convictions.
In accordance with Anders, we have reviewed the entire record in this case and have
found no meritorious grounds for appeal. This court requires that counsel inform Bajwa,
in writing, of the right to petition the Supreme Court of the United States for further review.
If Bajwa 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 Bajwa. 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.
DISMISSED IN PART, AFFIRMED IN PART
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