                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-21-2004

USA v. Alayun
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3962




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"USA v. Alayun" (2004). 2004 Decisions. Paper 1082.
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                                               NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT


                     No. 02-3962


           UNITED STATES OF AMERICA

                          v.

                MICHAEL ALAYUN,
               a/k/a TAWFEIG SAEED,
            a/k/a THOMAS E. MANNING

                     Michael Alayun,
                                 Appellant


APPEAL FROM THE UNITED STATES DISTRICT COURT
  FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                D.C. Crim. No. 01-cr-00452
      District Judge: The Honorable Anita B. Brody


       Submitted Under Third Circuit LAR 34.1(a)
                   January 13, 2004


Before: BARRY, SMITH, and GREENBERG, Circuit Judges


           (Opinion Filed: January 21, 2004)


                      OPINION
BARRY, Circuit Judge

       Appellant, Michael Alayun, using at least two aliases, opened a number of credit

card and bank accounts. He also opened financial accounts on behalf of a number of

unwitting victims, thereby committing what is popularly known as identity theft. Alayun

drafted checks against the accounts of his victims, and deposited them at a Philadelphia

branch of Mellon Bank in an account he had opened under an alias. He would then

withdraw cash from the account. Between October of 1998 and January of 1999, Alayun

employed this network of fraudulent accounts in a scheme that ultimately deprived

Mellon Bank of $36,959.68.

       Although, to use the vernacular, Alayun “bucked the odds” in the short term,

ultimately, the old adage proved true: crime doesn’t pay. Alayun was arrested and

subsequently indicted on one count of bank fraud and two counts of identification

document fraud. 18 U.S.C. §§ 1344 & 1028(a)(6). On June 25, 2002, he pleaded guilty

to all counts of the indictment, and on October 15 was sentenced – in accordance with the

United States Sentencing Guidelines and the terms of his plea agreement – to 14 months

of imprisonment. He was also ordered to pay restitution. A timely notice of appeal was

filed. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and appellate

jurisdiction is proper under 28 U.S.C. § 1291.

       Defense counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967), seeking to withdraw from the case because, in his estimation, there are no non-



                                            2
frivolous issues for appeal. We agree.

       Under Anders, when defense counsel finds an appeal “to be wholly frivolous, after

a conscientious examination of it, he should so advise the court and request permission to

withdraw.” Anders, 386 U.S. at 744. Counsel’s request must “be accompanied by a brief

referring to anything in the record that might arguably support the appeal.” Id. When

undertaking review of an Anders brief, we must inquire: “(1) whether counsel adequately

fulfilled the rule’s requirements; and (2) whether an independent review of the record

presents any nonfrivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d Cir.

2001) (citations omitted). We also consider issues raised by Alayun in his pro se brief.

       First, Alayun decries the District Court’s failure to advise him of the negative

effect that his plea would have on his immigration status. It has long been the law,

however, that there is “no error in the sentencing court’s failure to inform [defendants] in

the Rule 11 colloquy of [their] possible deportation.” United States v. Romero-Vilca, 850

F.2d 177, 179 (3d Cir. 1988).

       Second, Alayun argues that his counsel provided ineffective representation by

failing to advise him of the effects a guilty plea would have on his immigration status.

But for reasons we need not enumerate here, “[i]t has long been the practice of this court

to defer the issue of ineffectiveness of trial counsel to a collateral attack.” United States

v. Thornton, 327 F.3d 268, 271 (3d Cir. 2003). This case does not call for an exception to

this practice.



                                              3
       Third, Alayun raises a number of Fourth, Fifth, and Sixth Amendment challenges

to his arrest and subsequent prosecution. But these complaints are irrelevant, as Alayun

unconditionally admitted his guilt in open court. See Tollett v. Henderson, 411 U.S. 258,

267 (1973) (“when a criminal defendant has solemnly admitted in open court that he is in

fact guilty of the offense with which he is charged, he may not thereafter raise

independent claims relating to the deprivation of constitutional rights that occurred prior

to the entry of the guilty plea”).

       Finally, there is no question that Alayun’s plea was voluntary, had a factual basis,

and that he understood its terms. The District Court conducted the plea proceedings in

accordance with Federal Rule of Criminal Procedure 11, and Alayun has no legitimate

ground to contest his plea.

       Because there are no non-frivolous issues to raise on appeal, we will grant defense

counsel’s request to withdraw, and will affirm the judgment of sentence.




TO THE CLERK OF THE COURT:

       Kindly file the foregoing Opinion.




                                                  /s/ Maryanne Trump Barry
                                                  Circuit Judge
