United States v. Aslam , 251 F. App'x 850 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4430
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ZEESHAN ASLAM, a/k/a Shawn,
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Affirmed by unpublished per curiam opinion.
William S. Little, STARK & LITTLE, Baltimore, 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Unpublished opinions are not binding precedent in this circuit.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:
Zeeshan 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.
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.
Aslam argues that 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
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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. He states on appeal that he also furnished financial
records and calculation amounts to the district court, but none are
found in the record. The record is also devoid of any comment by
Aslam at the Fed. R. Crim. P. 11 hearing that he did not agree to
the stipulated amount.
Aslam next argues that his financial records demonstrated
that he had a negative net worth and therefore his counsel should
not have permitted him to be subject to joint and several liability
for the entire forfeiture amount contained in the plea agreement.
Aslam contends that, because he had to rely upon his co-defendant
father’s satisfaction of the obligation, and that obligation was
not satisfied by the first deadline, he was prejudiced by being
held jointly and severally liable. He contends that his counsel
should not have permitted him to enter into the plea agreement
based on these conditions. We conclude that Aslam has not
conclusively established ineffective assistance of counsel on this
basis. Again, 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 related to sentencing. Aslam received a
downward departure based upon over-represented criminal history.
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He also received a downward departure from the Guidelines range
established in the presentence report based upon the court’s
finding that he would likely spend time in post-sentence
administrative detention pending his removal from the United
States.
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. 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.
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
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