                                                                  NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                               _______________

                                    No. 11-1598
                                  _______________

                          UNITED STATES OF AMERICA

                                           v.

                                    SYED ZAIDI,

                                                      Appellant
                                  _______________

                    On Appeal from the United States District Court
                             For the District of New Jersey
                    (D.C. Criminal Action No. 2-10-cr-00409-001)
                     District Judge: Honorable William J. Martini
                                   _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  January 27, 2012
                                 _______________

           Before: AMBRO, CHAGARES and HARDIMAN, Circuit Judges

                           (Opinion filed February 7, 2012)
                                 _______________

                                     OPINION
                                  _______________

AMBRO, Circuit Judge

      Syed Zaidi, pursuant to a negotiated plea agreement, pled guilty to: (1) conspiring

to defraud the United States by submitting fraudulent immigration documents to the

Department of Homeland Security, Citizenship and Immigration Services (USCIS), in
violation of 18 U.S.C. § 371, and (2) encouraging and inducing an alien to enter and

reside in the United States knowing that such entry or residence was in violation of law,

in violation of 8 U.S.C. § 1324. The District Court sentenced him to 26 months’

imprisonment. Zaidi appeals his conviction and sentence.

       Zaidi’s attorney moves to withdraw as counsel under Anders v. California, 386

U.S. 738 (1967), asserting that all potential grounds for appeal are frivolous. Zaidi has

filed a pro se brief. We grant counsel’s motion to withdraw and affirm Zaidi’s conviction

and sentence.1

                                             I.

       Because we write solely for the parties, we recite only those facts necessary to our

decision. A grand jury indicted Syed Zaidi and a codefendant for, among other things,

preparing fraudulent immigration documents on behalf of alien applicants and submitting

those documents to the USCIS in an effort to obtain legal residency for the applicants in

the United States. Based on these fraudulent documents, the USCIS approved many

applications that affected the various applicants’ immigration status. The applicants on

whose behalf the fraudulent documents were submitted paid Zaidi thousands of dollars

for his services.

       Zaidi pled guilty to the two charges noted above. His plea agreement with the

Government contained a “waiver of appeal” provision that became effective if the

sentence imposed was within or below the Guideline range that resulted from the agreed

1
 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under
18 U.S.C. § 3742 and 28 U.S.C. § 1291.

                                             2
total Guideline offense level of 16. Zaidi’s sentence of 26 months’ imprisonment was

consistent with the sentence contemplated by the parties in the plea agreement. Zaidi

nonetheless appeals.

                                             II.

       Our rules provide that “[w]here, upon review of the district court record, trial

counsel is persuaded that the appeal presents no issue of even arguable merit, counsel

may file a motion to withdraw and supporting brief pursuant to Anders.” 3d Cir. L.A.R.

109.2(a). If we concur with trial counsel’s assessment, we “will grant [the] Anders

motion, and dispose of the appeal without appointing new counsel.” Id. Accordingly,

our “inquiry is . . . twofold: (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).

       In his Anders brief, Zaidi’s attorney identifies two potential grounds for appeal:

(1) whether Zaidi’s plea was entered knowingly and voluntarily and otherwise in

compliance with Federal Rule of Criminal Procedure 11, and (2) whether Zaidi’s

sentence was procedurally and substantively reasonable and imposed in compliance with

Federal Rule of Criminal Procedure 32. Our review of the record confirms counsel’s

assessment that there are no non-frivolous issues for appeal.

       We review de novo the District Court’s compliance with Federal Rule of Criminal

Procedure 11. See United States v. Ebel, 299 F.3d 187, 191 (3d Cir. 2002). At the outset

of the plea hearing, the Court ensured that Zaidi could hear and understand the

proceedings. He was placed under oath and indicated to the Court that his testimony

                                              3
would be truthful. The Court informed Zaidi of his right to plead not guilty and have a

jury trial regarding the charges against him. It also inquired to be assured that Zaidi

understood his right to counsel. In addition, he was informed of his right to testify, call

witnesses and be protected from compelled self-incrimination. Zaidi and counsel

completed a “Rule 11 Form,” which reviewed Zaidi’s rights and included a discussion of

Zaidi’s right to cross-examine witnesses. The Court questioned Zaidi regarding this

document and ensured that Zaidi understood the document, completed it accurately, and

signed it. The Court, at various stages of the plea hearing, offered Zaidi the opportunity

to ask questions.

       The Court also questioned Zaidi at length regarding the two charges to which he

was pleading guilty to ensure that Zaidi understood them. It established that Zaidi

understood the maximum possible penalty. Additionally, the Court reviewed the terms of

the plea agreement with Zaidi, and specifically the provision of that agreement wherein

he agreed to waive his right to appeal or collaterally attack the sentence under certain

circumstances.

       Moreover, the Court engaged Zaidi in a colloquy to ensure that his guilty plea was

voluntary and not the result of any force, threats, or promises not contained in the plea

agreement. Zaidi gave a factual basis for the plea that the Court approved. Finally, it

ascertained that Zaidi was aware of the implications a guilty plea would have on his

immigration status.

       In sum, it is clear that Zaidi “voluntarily and understandingly entered his



                                              4
plea of guilty” and that the District Court otherwise complied with Rule 11. Boykin v.

Alabama, 395 U.S. 238, 244 (1969). There are no non-frivolous issues to pursue on

appeal with respect to the validity of the plea hearing.

       We review de novo whether Zaidi’s sentence complies with Federal Rule of

Criminal Procedure 32. See United States v. Furst, 918 F.2d 400, 406 (3d Cir. 1990).

Initially, the District Court inquired that Zaidi and counsel had read and reviewed the

Presentence Report and made certain they were given the opportunity to comment on the

report. Defense counsel was given the full opportunity to speak on Zaidi’s behalf and

read a letter from Zaidi pertaining to sentencing. Also, Zaidi was afforded the

opportunity to address the Court regarding the sentence to be imposed. Finally, it advised

Zaidi, after imposition of sentence, of his right to appeal. Thus, the District Court

complied with the requirements of Federal Rule of Criminal Procedure 32.

       We review Zaidi’s sentence itself for procedural and substantive reasonableness.

See United States v. Lessner, 498 F.3d 185, 203 (3d Cir. 2007). The District Court

properly applied the three-step process that we outlined in United States v. Gunter, 462

F.3d 237, 247 (3d Cir. 2006). It initially calculated the Sentencing Guideline range to be

21 to 27 months. There was no objection to that range, as it was consistent with the range

to which the parties stipulated in the plea agreement. As evidenced by the sentencing

submissions of the parties, there were no departure motions to be ruled on by the Court.

Finally, the Court exercised its discretion in considering the 18 U.S.C. § 3553(a) factors

in imposing sentence. Thus, the sentence was procedurally and substantively reasonable.

There are no non-frivolous issues to pursue on appeal with respect to Zaidi’s sentencing

                                              5
hearing or his sentence itself. Furthermore, the appellate waiver contained in the plea

agreement precludes this appeal.

       In his pro se brief, Zaidi identifies five issues he desires to raise on appeal. First,

he alleges a claim of perjury and misrepresentation to the grand jury. Second, Zaidi

argues that the witnesses against him are not credible. Third, he raises a newly

discovered evidence claim. Ineffective assistance of counsel is his fourth claim. His

fifth, and final, claim is actual innocence. None of these is an arguable issue for appeal.

       Zaidi’s guilty plea waives all non-jurisdictional errors leading up to his conviction,

except those affecting the adequacy of the plea. See United States v. Moussaoui, 591

F.3d 263, 279-80 (4th Cir. 2010). Therefore, his claim of errors in the grand jury

proceedings is not a basis for appeal.2 Similarly, claims about witness credibility and

newly discovered evidence are irrelevant because Zaidi has admitted his guilt.

       A claim of ineffective assistance of counsel typically is not considered on direct

appeal. See United States v. Benish, 5 F.3d 20, 25 (3d Cir. 1993). Zaidi’s sworn

statements made during his guilty plea hearing contradict his allegations of improper

conduct by his trial counsel. Most or all of Zaidi’s allegations would doubtless be

contested at an evidentiary hearing. Therefore, the record is not sufficient to allow us to

reach the merits of his ineffective-assistance-of-counsel claim.




2
 With this backdrop, Zaidi’s pro se “Motion for Copy of Grand Jury Transcripts at the
Government’s Expense” is denied.

                                               6
       Finally, Zaidi’s claim of “actual innocence,” based on an allegation of mistaken

identity, is incompatible with his numerous and detailed admissions under oath at the

time of the entry of his guilty plea.

                                        *   *   *   *   *

       Counsel adequately fulfilled the requirements of Anders. Because our

independent review of the record reveals no non-frivolous ground for appeal, we grant

counsel’s motion to withdraw and affirm Zaidi’s judgment of conviction and sentence. In

addition, we certify that that the issues presented by Zaidi and his counsel lack sufficient

legal merit and that counsel is not required to file a petition for writ of certiorari with the

Supreme Court. 3d Cir. L.A.R. 109.2(b).




                                                7
