United States v. Aldair Hodza , 650 F. App'x 167 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4520
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ALDAIR HODZA,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:15-cr-00032-HEH-1)
Submitted: April 27, 2016 Decided: May 27, 2016
Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Matthew B. Kaplan, KAPLAN LAW FIRM, Arlington, Virginia, for
Appellant. Dominick Salvatore Gerace, II, Heather L. Hart,
Assistant United States Attorneys, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Aldair Hodza pled guilty in accordance with a written plea
agreement to sex trafficking by force, 18 U.S.C. § 1591(a)
(2012), and interstate transportation of a person for
prostitution, 18 U.S.C. § 2421 (2012). Hodza received an
aggregate sentence of 500 months in prison. He now appeals.
His attorney has filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), claiming that the sentence is unreasonable
but stating that there are no meritorious issues for appeal.
Hodza has filed a pro se supplemental brief raising several
issues. The United States moves to dismiss the appeal based on
a waiver-of-appellate-rights provision in the plea agreement.
Hodza has responded to the motion. We dismiss the appeal.
In the plea agreement, Hodza waived his right to appeal his
convictions and sentence on any ground other than ineffective
assistance of counsel. Upon review of the record, we conclude,
given the totality of the circumstances, that the waiver is
valid and enforceable. * We further find that Hodza’s claims that
* In this regard, we note that the district court
substantially complied with Fed. R. Crim. P. 11, Hodza
represented at the Rule 11 hearing that he fully understood the
plea agreement, in which the waiver provision was set forth in a
separate paragraph, and Hodza was questioned about the waiver at
the Rule 11 proceeding. Additionally, Hodza assured the court
that his plea was not the result of coercion or threats and that
he understood the provision in the plea agreement stating that,
although the parties would recommend a 35-year sentence pursuant
(Continued)
2
he is innocent and his sentence is unreasonable fall within the
scope of the waiver. See United States v. Blick, 408 F.3d 162,
168-69 (4th Cir. 2005). Accordingly, we grant the motion to
dismiss the appeal.
Hodza did not waive his right to claim on appeal that
defense counsel was ineffective. 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. Benton, 523 F.3d 424, 435 (4th
Cir. 2008). Instead, to allow for adequate development of the
record, the defendant should raise such a claim, if at all, in a
motion brought pursuant to 28 U.S.C. § 2255 (2012). United
States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010).
Here, ineffectiveness of counsel is not apparent from the
record, and we will not address this claim.
Pursuant to Anders, we have reviewed the entire record for
meritorious, nonwaivable issues and have found none. We
therefore dismiss the appeal. This court requires that counsel
to Fed. R. Crim. P. 11(c)(1)(B), the recommendation was not
binding on the court. There is nothing in the record that would
overcome these solemn assurances made in open court. See
Blackledge v. Allison, 431 U.S. 63, 64 (1977). Finally, the
record lends no credence to Hodza’s bald claim that his religion
or citizenship played any part whatsoever in the disposition of
this case.
3
inform Hodza, in writing, of his right to petition the Supreme
Court of the United State for further review. If Hodza requests
that such a petition be filed, but counsel believes that the
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 of the motion was served on Hodza. 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.
DISMISSED
4