United States v. Arborkhodja Askarkhodjaev, No. 11-2111 (8th Cir. 2011)
Annotate this CaseCourt Description: Criminal case - Criminal law. Anders case. Claim of ineffective assistance of counsel was not barred by defendant's appeal waiver, but the issue would not be considered on direct appeal; the other issues raised by the appeal were barred by the waiver, and the appeal is dismissed.
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United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 11-2111 ___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Western District of Missouri. Abrorkhodja Askarkhodjaev, also * known as Alex, also known as * [UNPUBLISHED] Abdumajid Maksudov, also known * as Abror, * * Appellant. * ___________ Submitted: December 20, 2011 Filed: December 23, 2011 ___________ Before MURPHY, ARNOLD, and BENTON, Circuit Judges. ___________ PER CURIAM. Under the terms of a written plea agreement that contained an appeal waiver, Abrorkhodja Askarkhodjaev pleaded guilty to conspiracy to engage in racketeering, in violation of 18 U.S.C. § 1962(d); fraud in foreign labor contracting, in violation of 18 U.S.C. §§ 1351 and 1349; identity theft, in violation of 18 U.S.C. § 1028(a)(7); and evasion of corporate employment tax, in violation of 26 U.S.C. § 7201. The district court1 imposed a sentence of 144 months in prison, 3 years of supervised release, and $1,007,492.28 in restitution. Mr. Askarkhodjaev filed a pro se notice of appeal, and his counsel has submitted a brief under Anders v. California, 386 U.S. 738 (1967), in which he moves to withdraw. In a pro se filing before this court, Mr. Askarkhodjaev asserts that he received ineffective assistance of counsel. We conclude that Mr. Askarkhodjaev s claim of ineffective assistance is not barred by the appeal waiver, but also is not appropriate for consideration on direct appeal. See United States v. McAdory, 501 F.3d 868, 872 (8th Cir. 2007). We further conclude that the appeal waiver should be enforced as to all other issues in this appeal. See United States v. Andis, 333 F.3d 886, 889-92 (8th Cir. 2003) (en banc) (court should enforce appeal waiver and dismiss appeal where appeal falls within scope of waiver, both plea agreement and waiver were entered into knowingly and voluntarily, and no miscarriage of justice would result); see also United States v. Estrada-Bahena, 201 F.3d 1070, 1071 (8th Cir. 2000) (per curiam) (enforcing appeal waiver in Anders case). Having independently reviewed the record under Penson v. Ohio, 488 U.S. 75 (1988), we have found no nonfrivolous issue not covered by the waiver. Accordingly, we decline to consider Mr. Askarkhodjaev s ineffective-assistance claim, we dismiss this appeal, and we grant counsel s motion to withdraw, subject to counsel informing Mr. Askarkhodjaev about procedures for seeking rehearing or filing a petition for certiorari. ______________________________ 1 The Honorable Ortrie D. Smith, United States District Judge for the Western District of Missouri. -2-
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