United States v. Matar, Fawaz

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 15, 2006
Decided December 15, 2006
Before
Hon. WILLIAM J. BAUER , Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 05-3929
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Northern District of
Illinois, Eastern Division
v.
No. 04-CR-107-2
FAWAZ MATAR,
Defendant-Appellant. Harry D. Leinenweber,
Judge.
ORDER
Fawaz Matar pleaded guilty, in a written plea agreement, to mail fraud, see
18 U.S.C. § 1341. The court calculated a guidelines imprisonment range at 4 to 10
months, and sentenced Matar to 3 years’ probation, with some home detention, see
U.S.S.G. § 5B1.1(a)(2). The court also ordered him to pay $2,305 in restitution.
Matar filed a timely notice of appeal, but his counsel now moves to withdraw
because he cannot discern a nonfrivolous basis for appeal. See Anders v. California,
386 U.S. 738, 744 (1967). Counsel’s supporting brief is facially adequate, and we
limit our review to the potential issues identified by counsel and Matar’s Rule 51(b)
response. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).
No. 05-3929 Page 2
Matar has lived in the United States since 1997 and is married to a United
States citizen with whom he has a son. He has applied for legal permanent
residency. His guilty plea stems from his involvement in a scheme with several
others to defraud an insurance company through the submission of auto accident
and property damage claims totaling $48,305. Matar was nabbed through an FBI
investigation of fraudulent staged car accidents, in which an FBI agent posed as a
lawyer willing to help accident victims submit their claims to the insurance
company.
We note at the outset that Matar in his Rule 51(b) response has expressed a
desire to withdraw his guilty plea. He did not move to withdraw his plea in the
district court, so our review would be for plain error. See United States v. Vonn, 535
U.S. 55, 59 (2002); United States v. Villarreal-Tamayo, 467 F.3d 630, 632 (7th Cir.
2006). He contends that his plea was not knowing and voluntary because he
disagrees with its factual basis and was unaware of its immigration consequences.
However, the court conducted a plea colloquy to confirm that Matar’s plea was
knowing and voluntary. See Fed. R. Crim. P. 11. The court explained the charges,
possible penalties, and the rights Matar would give up by pleading guilty. While we
note that the court failed to mention Matar’s right to plead not guilty, Fed R. Crim.
P. 11(b)(1)(B), he was undoubtedly aware of this right since he already had pleaded
not guilty and sought to change that plea. See United States v. Knox, 287 F.3d 667,
670 (7th Cir. 2002). The court also did not mention Matar’s right to counsel, see
Fed. R. Crim. P. 11(b)(1)(D), but the omission was harmless, since Matar was
represented by counsel at the colloquy and does not claim that he would have done
things differently had the judge informed him of the right, see United States v.
Lovett, 844 F.2d 487, 491-92 (7th Cir. 1988). Given the circumstances of Matar’s
plea, challenging it as involuntary and unknowing would be frivolous.
In a related argument, Matar asserts that he disagrees with the factual basis
for his plea. However, at the plea colloquy, the government recited the factual basis
for the mail fraud charge—that Matar and others schemed to stage a car accident to
claim damages from an insurance company and knowingly mailed false medical and
property damage claims to the insurance company. At the colloquy, Matar also
agreed under oath that the factual account was correct. His representations at the
hearing are presumed truthful, see United States v. Loutos, 383 F.3d 615, 619 (7th
Cir. 2004), and Matar has not rebutted the presumption. Further, both the plea
agreement and plea colloquy provide a sufficient factual basis for mail fraud, see 18
U.S.C. § 1341.
Matar finally argues that his plea was unknowing and involuntary because
he was not aware of the immigration consequences of his conviction. For a plea to
be knowing and voluntary, the defendant must be informed of direct, not collateral,
consequences of the plea, see Dalton v. Battaglia, 402 F.3d 729, 733 (7th Cir. 2005).
No. 05-3929 Page 3
Immigration consequences are collateral. See Santos v. Kolb, 880 F.2d 941, 944 (7th
Cir. 1989); United States v. George, 869 F.2d 333, 337 (7th Cir. 1989). Thus, the
district court was not required to inform Matar of any immigration consequences of
his plea.
Counsel next considers whether Matar could challenge the reasonableness of
his sentence. We agree with counsel that such an argument would be frivolous.
Matar’s sentence falls within the properly calculated guidelines range and is
therefore presumed reasonable. United States v. Mykytiuk, 415 F.3d 606, 608 (7th
Cir. 2005). Although the Supreme Court recently granted a writ of certiorari to
consider whether according a presumption of reasonableness to within-guidelines
sentences is consistent with United States v. Booker, 543 U.S. 220 (2005), see United
States v. Rita, No. 05-4674, 2006 WL 1144508 (4th Cir. May 1, 2006), cert. granted,
75 U.S.L.W 3246 (U.S. Nov. 3, 2006) (No. 06-5754), the resolution of that case would
not affect our conclusion that a reasonableness challenge here would be frivolous.
Not only did Matar agree in his plea agreement that he was subject to a sentence of
6 to 12 months’ imprisonment (above the 4 to 10 month range the district court
used), but the district court imposed a sentence of probation only—a sentence below
the length of imprisonment recommended in the guidelines. Neither counsel nor
Matar has identified any factors within 18 U.S.C. § 3553(a) that would compel a
lower sentence.
Finally, to the extent Matar suggests that his trial counsel rendered
ineffective assistance by failing to inform him of the immigration consequences of
his plea, we have said that the possible immigration consequences of a guilty plea
are collateral aspects of the prosecution not covered by the Sixth Amendment, and
thus the failure to advise a defendant of such consequences does not amount to
ineffective assistance. See Santos, 880 F.2d at 944. See also Broomes v. Ashcroft,
358 F.3d 1251, 1256-57 (10th Cir. 2004). We have also repeatedly said that claims
of ineffective assistance of counsel are more properly raised through a collateral
attack. See, e.g., United States v. Rezin, 322 F.3d 443, 445 (7th Cir. 2003).
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.