United States v. Aslam

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4431
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FARHAN ASLAM,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, District Judge.
(1:05-cr-00273-JFM)
Submitted: September 28, 2007 Decided: October 25, 2007
Before MICHAEL, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Allen H. Orenberg, THE ORENBERG LAW FIRM, P.C., North Bethesda,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Harry M. Gruber, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Farhan Aslam appeals from the judgment imposed after he
pled guilty, pursuant to a written plea agreement, to smuggling
goods, in violation of 18 U.S.C. § 545 (2000). His plea agreement
included a waiver of the right to appeal his sentence. The
Government filed a motion to dismiss the appeal based on the
appellate waiver. The court granted the motion in part and denied
it in part to permit the appeal based only upon claims of
ineffective assistance of counsel. Aslam’s attorney has filed a
brief in accordance with Anders v. California, 386 U.S. 738 (1967).
Aslam has filed a pro se informal brief. The Government filed a
joint brief addressing this appeal and that of Aslam’s brother,
Zeeshan Aslam.
Claims of ineffective assistance of counsel are generally
not cognizable on direct appeal. See United States v. King, 119
F.3d 290, 295 (4th Cir. 1997). Rather, to allow for adequate
development of the record, a defendant must bring his claim in a 28
U.S.C. § 2255 (2000) motion. See id.; United States v. Hoyle, 33
F.3d 415, 418 (4th Cir. 1994). An exception exists when the record
conclusively establishes ineffective assistance. United States v.
Richardson, 195 F.3d 192, 198 (4th Cir. 1999); King, 119 F.3d at
295.
Although Aslam’s appellate counsel ultimately concludes
that there is no error, he raises the issue that counsel was
- 2 -
ineffective in plea negotiations and in preparing for the
sentencing hearing. In his pro se supplemental brief, Aslam
alleges that trial counsel was ineffective related to the
stipulation to the amount of loss at sentencing. The $759,161.16
that was stipulated to by all parties was contained in the plea
agreement in the forfeiture provision. The plea agreement also
contained a guideline stipulation that the value of the items
exceeded $400,000, but was less than $1,000,000. Aslam now objects
to the calculation of the value of the items seized. He states
that trial counsel was inadequate because he did not independently
investigate the financial records of the corporation as Aslam
advised. The record is devoid of any comment by Aslam at the Fed.
R. Crim. P. 11 hearing that he did not agree to the stipulated
amount.
We conclude that Aslam has not conclusively established
ineffective assistance on this basis. There is no indication in
the record on appeal that there was an obvious error in the value
of loss calculation. Further, it is not evident that Aslam was
prejudiced by the alleged ineffective assistance. Finally, at the
Rule 11 hearing, Aslam agreed that he was satisfied with the
services of counsel, and his statement, made under oath, is
presumptively accepted as true. See Blackledge v. Allison, 431
U.S. 63, 74 (1977); Crawford v. United States, 519 F.2d 347, 349
(4th Cir. 1975), overruled on other grounds by United States v.
- 3 -
Whitley, 759 F.2d 327 (4th Cir. 1985). We therefore decline to
consider Aslam’s allegations of ineffective assistance of counsel,
as he may raise them in a 28 U.S.C. § 2255 motion.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Aslam’s conviction and sentence. We
deny counsel’s motion to withdraw from representation. This court
requires that counsel inform his client, in writing, of his right
to petition the Supreme Court of the United States for further
review. If the client 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 the client. 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
- 4 -