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Precedential or Non-Precedential: Non-Precedential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NOT PRECEDENTIAL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-
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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.
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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