United States v. Sarder Faruk

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-11485 ELEVENTH CIRCUIT
NOVEMBER 10, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 08-00029-CR-ORL-22-DAB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SARDER FARUK,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 10, 2009)
Before CARNES, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Sarder Faruk appeals his 27 convictions of bank fraud. 18 U.S.C. § 1344.
Faruk argues, for the first time on appeal, there is a variance between his
indictment and the factual basis for his guilty pleas. We affirm.
Faruk’s knowing, voluntary, and unconditional plea of guilt “waive[d] all
nonjurisdictional defects in the proceeding.” United States v. Patti, 337 F.3d 1317,
1320 (11th Cir. 2003). Faruk may obtain relief from his pleas of guilt only if he
identifies a defect that affected the power of the district court to enter its judgment.
See United States v. Cotton, 535 U.S. 625, 630, 122 S. Ct. 1781, 1785 (2002). A
jurisdictional error must be apparent on the “‘face of the indictment or the record at
the time of the plea.’” United States v. Tomeny, 144 F.3d 749, 751 (11th Cir.
1998) (quoting United States v. Caperell, 938 F.2d 975, 977–78 (9th Cir. 1991)).
Faruk’s argument does not cast doubt on the jurisdiction of the district court.
Faruk argues that he was charged with and pleaded guilty to violating section
1344(2), but that his conduct instead violated section 1344(1). The record reveals
no jurisdictional defect. Faruk was indicted for and admitted violating section
1344, and the factual basis stated to support Faruk’s guilty plea, that he kited
checks at seven financial institutions, constitutes a violation of section 1344. See
United States v. Goldsmith, 109 F.3d 714, 716 (11th Cir. 1997) (“Where the
indictment . . . charge[s] both clauses of [section 1344], as was done in this case,
the defendant’s conviction may be sustained under either clause.”); see also United
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States v. Sirang, 70 F.3d 588, 595–96 (11th Cir. 1995) (check-kiting encompassed
in 18 U.S.C. § 1344). Faruk waived any nonjurisdictional error by unconditionally
pleading guilty.
Faruk’s convictions are AFFIRMED.
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