United States v. Samuel Abraham

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-4790
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SAMUEL JOHN ABRAHAM, a/k/a Jamal S. Ibrahim, a/k/a J. Samuel Ibrahim, a/k/a
John S. Wynn,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Leonie M. Brinkema, District Judge. (1:19-cr-00111-LMB-1)
Submitted: July 14, 2020 Decided: July 24, 2020
Before GREGORY, Chief Judge, AGEE and HARRIS, Circuit Judges.
Dismissed in part and affirmed in part by unpublished per curiam opinion.
Geremy C. Kamens, Federal Public Defender, Patrick L. Bryant, Appellate Attorney,
Brooke S. Rupert, Assistant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Kimberly Riley Pedersen,
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Unpublished opinions are not binding precedent in this circuit.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:
Samuel John Abraham pled guilty, pursuant to a written plea agreement, to
conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349 (2018), and wire fraud,
in violation of 18 U.S.C. § 1343 (2018) and was sentenced to a total of 120 months’
imprisonment. Abraham timely appealed. Counsel has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious issues for
appeal but questioning the reasonableness of Abraham’s sentence. Although informed of
his right to file a pro se supplemental brief, Abraham has not done so.
“A criminal defendant may waive the right to appeal if that waiver is knowing and
voluntary.” United States v. Tate, 845 F.3d 571, 574 n.1 (4th Cir. 2017); United States v.
Copeland, 707 F.3d 522, 528 (4th Cir. 2013). To determine whether the waiver is knowing
and voluntary, we often look to the sufficiency of the plea colloquy and whether the district
court questioned the defendant about the appeal waiver, but ultimately the determination
turns on “the totality of the circumstances.” Copeland, 707 F.3d at 528 (internal quotation
marks omitted). In evaluating the totality of the circumstances, courts consider “the
particular facts and circumstances surrounding [the] case, including the background,
experience, and conduct of the accused.” United States v. Blick, 408 F.3d 162, 169 (4th
Cir. 2005) (internal quotation marks omitted). We “will enforce the waiver if it is valid and
the issue appealed is within the scope of the waiver.” Copeland, 707 F.3d at 528 (internal
quotation marks omitted).
We have reviewed the transcript of the Fed. R. Crim. P. 11 hearing and find that
Abraham knowingly and intelligently waived the right to appeal both his conviction and
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sentence. The district court specifically questioned Abraham about the written appellate
waiver and confirmed that he understood he was waiving his right to appeal by entering
the agreement. The terms of the waiver were “clear and unmistakable.” See Blick, 408
F.3d at 169. Abraham does not contend that the district court failed to question him
concerning the appellate waiver or that he did not understand the full significance of the
waiver. Based on the totality of the circumstances, we find that Abraham’s appeal waiver
was both knowing and intelligent and, therefore, enforceable as to issues within its scope.
A valid waiver does not bar matters outside the scope of the waiver or prevent this
court from correcting a miscarriage of justice. United States v. Adams, 814 F.3d 178, 182
(4th Cir. 2016). Nor does Abraham’s appeal waiver bar his constitutional challenge to the
knowing and voluntary nature of his guilty plea. See United States v. Attar, 38 F.3d 727,
732-33 & n.2 (4th Cir. 1994). We have reviewed the record and conclude that the district
court fully complied with the requirements of Rule 11 in ensuring that Abraham’s guilty
plea was knowing, voluntary, and supported by a sufficient factual basis. Therefore, we
find that his guilty plea was valid and affirm Abraham’s conviction.
In his Anders brief, counsel questions whether the 120-month below Guidelines
sentence was reasonable. Because Abraham’s sentence did not exceed the statutory
maximum, this claim falls within the scope of the waiver. Accordingly, we grant, in part,
the Government’s motion and dismiss the appeal as to Abraham’s sentence.
In accordance with Anders, we have reviewed the entire record in this case and have
found no other meritorious grounds for appeal outside the scope of the appellate waiver.
We therefore dismiss the portion of the appeal challenging the calculation of Abraham’s
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sentence based on his valid appellate waiver and affirm the remainder of the district court’s
judgment. This court requires that counsel inform Abraham, in writing, of the right to
petition the Supreme Court of the United States for further review. If Abraham 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 Abraham.
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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