United States v. Malik , 112 F. App'x 894 ( 2004 )

Certiorari granted, April 4, 2005
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4647
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KAMRAN MUZAFFAR MALIK, a/k/a Nasar A. Khara,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (CR-03-171)
Submitted: September 22, 2004 Decided: November 1, 2004
Before LUTTIG, MOTZ, and KING, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Atiq R. Ahmed, Silver Spring, Maryland, for Appellant. Paul J.
McNulty, United States Attorney, Steve A. Linick, Assistant United
States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Kamran Muzaffar Malik appeals his conviction and sentence
after pleading guilty to one count of conspiracy to commit credit
card fraud in violation of 18 U.S.C. § 1028 (2000). The Government
has moved to dismiss the appeal as waived under the terms of his
plea agreement. For the reasons stated below, we dismiss the
appeal insofar as it relates to Malik’s sentence and affirm the
district court’s judgment.
Malik first contends the district court abused its
discretion by denying his motion to withdraw his guilty plea.
Because this issue does not pertain to Malik’s sentence, we
conclude Malik has not waived its review on appeal.
We review the district court’s denial of a motion to
withdraw a guilty plea for abuse of discretion. United States v.
Wilson, 81 F.3d 1300, 1305 (4th Cir. 1996). A defendant who seeks
to withdraw his guilty plea before sentencing must demonstrate a
“fair and just reason” for withdrawal of the plea. Fed. R. Crim.
P. 32(e). The district court typically considers: (1) whether the
defendant has offered credible evidence that his plea was not
knowing or voluntary; (2) whether the defendant has credibly
asserted his legal innocence; (3) whether there has been a delay
between the entry of the plea and the filing of the motion;
(4) whether the defendant has had close assistance of competent
counsel; (5) whether withdrawal will cause prejudice to the
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government; and (6) whether it will inconvenience the court and
waste judicial resources. United States v. Moore, 931 F.2d 245,
248 (4th Cir. 1991).
The most important consideration, however, is whether the
plea colloquy was properly conducted under Fed. R. Crim. P. 11.
See United States v. Bowman, 348 F.3d 408, 414 (4th Cir. 2003),
cert. denied, 124 S. Ct. 1523 (2004). We will closely scrutinize
the Rule 11 colloquy and attach a strong presumption that the plea
is final and binding if the Rule 11 proceeding is adequate. United
States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992).
We conclude the plea colloquy was adequate and that none
of the Moore factors support Malik’s argument strongly enough to
overcome the strong presumption that Malik’s plea was knowing and
voluntary. Accordingly, the district court did not abuse its
discretion when it found Malik failed to demonstrate a fair and
just reason to withdraw his guilty plea.
With respect to Malik’s sentence, it is well-settled that
a defendant may, in a valid plea agreement, waive the right to
appeal under 18 U.S.C. § 3742(a) (2000), as long as it is the
result of a knowing and intelligent decision to forego the right to
appeal. United States v. Wessells, 936 F.2d 165 (4th Cir. 1991).
We review the validity of a waiver de novo. United States v.
Brown, 232 F.3d 399, 402-03 (4th Cir. 2000).
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Because we conclude that Malik knowingly agreed to the
waiver, we grant the Government’s motion to dismiss with respect to
Malik’s argument that he was sentenced using the incorrect U.S.
Sentencing Guidelines Manual. We also reject Malik’s contention
that his sentence exceeded statutory maximums under Blakely v.
Washington, 542 U.S. __, 124 S. Ct. 2531 (2004). See United
State v. Hammoud, __ F.3d __, 2004 WL 2005622, *28 (4th Cir. Sept.
8, 2004) (No. 03-4253), petition for cert. filed, __ U.S.L.W. __
(U.S. Aug. 6, 2004) (No. 04-193).
Accordingly, we affirm the district court’s judgment. 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 IN PART; DISMISSED IN PART
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