United States v. Abrorkhodja Askarkhodjaev , 444 F. App'x 105 ( 2011 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 11-2111
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Abrorkhodja Askarkhodjaev, also *
known as Alex, also known as * [UNPUBLISHED]
Abdumajid Maksudov, also known *
as Abror, *
*
Appellant. *
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Submitted: December 20, 2011
Filed: December 23, 2011
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Before MURPHY, ARNOLD, and BENTON, Circuit Judges.
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PER CURIAM.
Under the terms of a written plea agreement that contained an appeal waiver,
Abrorkhodja Askarkhodjaev pleaded guilty to conspiracy to engage in racketeering,
in violation of 18 U.S.C. § 1962(d); fraud in foreign labor contracting, in violation
of 18 U.S.C. §§ 1351 and 1349; identity theft, in violation of 18 U.S.C. § 1028(a)(7);
and evasion of corporate employment tax, in violation of 26 U.S.C. § 7201. The
district court1 imposed a sentence of 144 months in prison, 3 years of supervised
release, and $1,007,492.28 in restitution. Mr. Askarkhodjaev filed a pro se notice of
appeal, and his counsel has submitted a brief under Anders v. California, 386 U.S.
738 (1967), in which he moves to withdraw. In a pro se filing before this court,
Mr. Askarkhodjaev asserts that he received ineffective assistance of counsel.
We conclude that Mr. Askarkhodjaev’s claim of ineffective assistance is not
barred by the appeal waiver, but also is not appropriate for consideration on direct
appeal. See United States v. McAdory, 501 F.3d 868, 872 (8th Cir. 2007). We
further conclude that the appeal waiver should be enforced as to all other issues in
this appeal. See United States v. Andis, 333 F.3d 886, 889-92 (8th Cir. 2003) (en
banc) (court should enforce appeal waiver and dismiss appeal where appeal falls
within scope of waiver, both plea agreement and waiver were entered into knowingly
and voluntarily, and no miscarriage of justice would result); see also United States v.
Estrada-Bahena, 201 F.3d 1070, 1071 (8th Cir. 2000) (per curiam) (enforcing appeal
waiver in Anders case).
Having independently reviewed the record under Penson v. Ohio, 488 U.S. 75(1988), we have found no nonfrivolous issue not covered by the waiver.
Accordingly, we decline to consider Mr. Askarkhodjaev’s ineffective-assistance
claim, we dismiss this appeal, and we grant counsel’s motion to withdraw, subject to
counsel informing Mr. Askarkhodjaev about procedures for seeking rehearing or
filing a petition for certiorari.
______________________________
1
The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
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