United States v. Zargari
United States v. Zargari
Opinion of the Court
ORDER
Hossein Zargari pleaded guilty to one count of conspiring to possess ecstasy with intent to distribute, 21 U.S.C. §§ 846, 841(a)(1). The district court sentenced Zargari to 60 months’ incarceration and three years’ supervised release, and also imposed a $300 fine and a $100 special assessment. His appointed counsel has now moved to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because he is unable to discern a nonfrivolous issue for appeal. Because Zargari declined our invitation to file a response, see Circuit Rule 51(b), and counsel’s Anders brief is adequate, we limit our review of the record to the potential issues identified in counsel’s brief, see United States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997) (per curiam).
Counsel first considers whether Zargari could argue that his guilty plea was not knowing and voluntary. Because Zargari did not move to withdraw his plea, we would review such a claim only for plain error, see United States v. Driver, 242 F.3d 767, 769 (7th Cir. 2001), petition for cert. filed, (U.S. May 16, 2001) (No. 00-10033), but even if we were to review under the more exacting harmless error standard, see United States v. Vonn, 224 F.3d 1152, 1155 (9th Cir. 2000), cert. granted, 531 U.S. 1189, 121 S.Ct. 1185, 149 L.Ed.2d 102 (2001), we would still agree that a challenge to Zargari’s guilty plea would be frivolous.
Counsel next examines whether Zargari could argue that the drug offense for which he was convicted is unconstitutional. Zargari, however, waived any such claim by pleading guilty. See United States v. Broce, 488 U.S. 563, 569,109 S.Ct. 757, 102 L.Ed.2d 927 (1989). Moreover, waiver aside, this court has upheld the constitutionality of §§ 841(a)(1) and 846, see United States v. Westbrook, 125 F.3d 996, 1009 (7th Cir. 1997), rendering this potential challenge frivolous.
Finally, counsel considers whether Zargari could lodge a nonfrivolous claim that his trial counsel performed deficiently by failing to attack previous convictions that contributed to his criminal history calculation. We agree with counsel that a potential challenge on this ground would be frivolous. With the exception of convictions obtained in violation of the right to counsel, criminal defendants' cannot collaterally attack the validity of prior convictions used to determine a federal sentence. See Custis v. United States, 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994); Ryan v. United States, 214 F.3d 877, 878 (7th Cir. 2000). Moreover, a potential claim of ineffective assistance of counsel would not be ripe for adjudication on direct appeal. See United States v. Garrett, 90 F.3d 210, 214-15 (7th Cir. 1996).
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS Zargari’s appeal.
Reference
- Full Case Name
- United States v. Hossein ZARGARI
- Status
- Published