United States v. Hassan Hammoud

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4823
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
HASSAN HAMMOUD,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:14-cr-00017-RDB-1)
Submitted: May 29, 2015 Decided: June 4, 2015
Before KEENAN, WYNN, and DIAZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Gregory Dolin, UNIVERSITY OF BALTIMORE SCHOOL OF LAW, Baltimore,
Maryland, for Appellant. Sandra Wilkinson, Assistant United
States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Hassan Hammoud appeals his conviction and 63-month sentence
imposed following his guilty plea to conspiracy to use fire to
commit a federal felony. On appeal, counsel filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), stating
that there are no meritorious grounds for appeal, but setting
forth arguments challenging the validity of the plea and the
reasonableness of the sentence. The Government has filed a
motion to dismiss the appeal on the basis that Hammoud
explicitly waived his right to appeal in the plea agreement.
Hammoud has filed a pro se supplemental brief, arguing that he
is innocent and that his plea was involuntary because he
received ineffective assistance of counsel.
A criminal defendant may waive the right to appeal if that
waiver is knowing and intelligent. United States v. Poindexter,
492 F.3d 263, 270 (4th Cir. 2007). Generally, if the district
court fully questions a defendant regarding the waiver of his
right to appeal during a plea colloquy performed in accordance
with Fed. R. Crim. P. 11, the waiver is both valid and
enforceable. United States v. Johnson, 410 F.3d 137, 151 (4th
Cir. 2005). “[T]he law ordinarily considers a waiver knowing,
intelligent, and sufficiently aware if the defendant fully
understands the nature of the right and how it would likely
apply in general in the circumstances — even though the
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defendant may not know the specific detailed consequences of
invoking it.” United States v. Thornsbury, 670 F.3d 532, 537
(4th Cir. 2012) (internal alteration, quotation marks, and
emphases omitted). Whether a defendant validly waived his right
to appeal is a question of law we review de novo. United States
v. Blick, 408 F.3d 162, 168 (4th Cir. 2005).
Our review of the record leads us to conclude that Hammoud
knowingly and voluntarily waived his right to appeal his
conviction and sentence. Thus, review of any claims raised by
Hammoud that fall within the scope of his broad waiver is
barred.
We recognize, however, that there are certain fundamental
rights and appellate claims that cannot be barred by an appeal
waiver. For instance, an appellate waiver in a plea agreement
will not bar appellate review of the denial of a motion to
withdraw the underlying guilty plea when the motion contains “a
colorable claim that the plea agreement . . . is tainted by
constitutional error,” such as involuntariness or the lack of
the effective assistance of counsel. United States v. Attar, 38
F.3d 727, 733 n.2 (4th Cir. 1994); see also United States v.
Craig, 985 F.2d 175, 178 (4th Cir. 1993) (concluding that waiver
of appeal rights in plea agreement will not bar appeal from
denial of plea-withdrawal motion where “the waiver of appeal
itself [is] being challenged by the motion to withdraw the
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guilty plea”). Finally, we will refuse to enforce an otherwise
valid waiver if enforcing the waiver would result in a
miscarriage of justice. United States v. Johnson, 410 F.3d 137,
151 (4th Cir. 2005).
Both counsel’s Anders brief and Hammoud’s pro se brief,
broadly construed, raise claims that challenge the voluntariness
of Hammoud’s plea. However, counsel’s claims are frivolous, as
they are flatly belied by the record, as counsel admits. Thus,
these claims, too, will be dismissed.
Turning to Hammoud’s pro se brief, while he challenges the
voluntariness of his plea, his claims are ones of ineffective
assistance of counsel. Unless an attorney’s ineffectiveness
conclusively appears on the face of the record, ineffective
assistance claims are not generally addressed on direct appeal.
United States v. Galloway, 749 F.3d 238, 241 (4th Cir.), cert.
denied, 135 S. Ct. 215 (2015). Instead, such claims should be
raised in a motion brought pursuant to 28 U.S.C. § 2255 (2012),
in order to permit sufficient development of the record. United
States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010).
Because the record does not conclusively establish ineffective
assistance of counsel, see Strickland v. Washington, 466 U.S.
668, 687-88 (1984), we will dismiss these claims as well.
In accordance with Anders, we have reviewed the entire
record in the case and have found no meritorious issues for
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appeal outside the scope of the appellate waiver. Accordingly,
we grant the Government’s motion to dismiss and dismiss the
appeal. This court requires that counsel inform Hammoud, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Hammoud 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 Hammoud. 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
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