2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-2-2012

USA v. Muhsin Abdur-Rahiim

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-3691

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-3691

_____________

UNITED STATES OF AMERICA

v.

MUHSIN HANIF ABDUR-RAHIIM, 

a/k/a Darrell Gregory Hughes

Muhsin Hanif Abdur-Rahiim,

 Appellant

_____________

On Appeal from the United States District Court

for the District of New Jersey

(No. 11-cr-265)

District Judge: Honorable Jerome B. Simandle

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

June 29, 2012

____________

Before: SLOVITER, CHAGARES, and JORDAN, Circuit Judges.

(Opinion Filed: July 2, 2012)

____________

OPINION 

___________
2

CHAGARES, Circuit Judge.

Muhsin Hanif Abdur-Rahiim pled guilty to possession of contraband in a federal 

correctional facility following prison officials’ discovery of a home-made knife that 

appeared to belong to him. Abdur-Rahiim’s counsel has moved to withdraw his 

representation on the basis that there are no non-frivolous issues to raise on appeal. 

Abdur-Rahiim responded by filing a pro se brief. We will grant counsel’s motion to 

withdraw and, finding that Abdur-Rahiim’s pro se brief raises no meritorious arguments, 

we will affirm the District Court’s judgment of conviction and sentence.

I. 

Because we write exclusively for the parties, we provide only an abbreviated 

summary of the facts essential to our disposition. On April 19, 2011, Abdur-Rahiim pled 

guilty to one count of possession of contraband in a federal correctional facility, in 

violation of 18 U.S.C. §§ 1791(a)(2) and (b)(3). These charges arose from the discovery 

of a home-made knife by prison officials at the Federal Correctional Institution at Fairton, 

New Jersey, where Abdur-Rahiim is presently incarcerated. Surveillance video showed 

that Abdur-Rahiim placed the chair, to which the knife was taped underneath, in a room 

used by inmates at the prison. Abdur-Rahiim admitted the knife belonged to him while 

being questioned by prison officials.

Under the terms of Abdur-Rahiim’s plea agreement, he waived the right to 

challenge any sentence that was within the range prescribed by the United States 

Sentencing Guidelines (the “Guidelines”). Abdur-Rahiim’s sentencing was held on 

September 21, 2011. The District Court determined that Abdur-Rahiim had a criminal 
3

history score of III and the offense level was 11. After careful consideration, the Court

declined to issue the downward variance requested by Abdur-Rahiim’s counsel.

1

Abdur-Rahiim filed a timely notice of appeal on September 29, 2011. On 

December 14, 2011, Abdur-Rahiim received a copy of his counsel’s brief filed pursuant 

to Anders v. California, 386 U.S. 738 (1967), in which defense counsel opined there are 

no non-frivolous grounds for appeal. Abdur-Rahiim filed a pro se brief on April 20, 

2012. The Government has filed briefs in response to both defense counsel’s Anders

brief and the contentions made in Abdur-Rahiim’s pro se brief.

 AbdurRahiim was sentenced to 12 months of imprisonment, the bottom end of the advisory

Guidelines range of 12 to 18 months, to run consecutively to the sentence for which 

Abdur-Rahiim was initially incarcerated. 

II.2

Counsel may seek to withdraw from representation if, after a thorough 

examination of the record, he or she is “persuaded that the appeal presents no issue of 

even arguable merit.” 3d Cir. L.A.R. 109.2(a); see also Anders, 386 U.S. at 744 (“[I]f 

counsel finds his case to be wholly frivolous, after a conscientious examination of it, he 

should so advise the court and request permission to withdraw.”). Our inquiry of such a 

request is two-fold: first, we ask whether counsel has thoroughly examined the record for 

 1

 This downward variance was sought based on Abdur-Rahiim’s “exceptional 

institutional adjustment, his fear of assault in prison[,] and the collateral punishment 

already imposed by the Bureau of Prisons as a result of his conduct.” Def. Counsel’s 

Anders Br. at 4.

2

 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction 

pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
4

appealable issues and has adequately explained to the court why any such issues are 

frivolous; second, we ask whether an independent review of the record presents any nonfrivolous issues. United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). After a 

review of the Anders brief submitted in this case, we are convinced that Abdur-Rahiim’s 

counsel has “thoroughly examined the record in search of appealable issues,” id., and has 

adequately explained why any issues arguably supporting the appeal are frivolous. 

Abdur-Rahiim has also filed a pro se brief in which he alleges: (1) his guilty plea 

was not knowing and voluntary, and several of his constitutional rights were violated, 

because he had been tricked into believing the surveillance video showed him committing 

the offense; (2) his counsel was ineffective for advising him to plead guilty given the 

ambiguity of the video evidence; and (3) the District Court erred by imposing a 

consecutive, rather than a concurrent, sentence. Abdur-Rahiim did not file a motion to 

withdraw his plea at the District Court level. Given the lack of a complete record, we are 

unable to consider his first claim. Similarly, the record is currently insufficient for us to 

consider Abdur-Rahiim’s ineffective assistance of counsel claims. See United States v. 

Headley, 923 F.2d 1079, 1083 (3d Cir. 1991) (explaining that “[i]neffective assistance of 

counsel claims are not generally entertained on direct appeal” unless “the record is 

sufficient to allow determination” of such claims). Finally, our review of the record 

reveals that the District Court properly gave Abdur-Rahiim a consecutive sentence as 

mandated by 18 U.S.C. § 1791(c). We thus agree with defense counsel that the issues 

raised by Abdur-Rahiim are frivolous and that no other non-frivolous issues exist.
5

III.

For the foregoing reasons, we will grant counsel’s motion to withdraw and affirm 

the judgment and sentence of the District Court.