UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 95-5412

OMAR SHAHID ZAKI, a/k/a Edward

Shahid Zaki,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Albert V. Bryan, Jr., Senior District Judge.

(CR-94-503-A)

Submitted: November 26, 1996

Decided: December 20, 1996

Before HALL, LUTTIG, and WILLIAMS, Circuit Judges.

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Affirmed in part and dismissed in part by unpublished per curiam

opinion.

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COUNSEL

Cheryl J. Sturm, West Chester, Pennsylvania, for Appellant. Helen F.

Fahey, United States Attorney, Michael E. Rich, Assistant United

States Attorney, Andrew G. McBride, Assistant United States Attorney, Alexandria, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Omar Shahid Zaki entered a guilty plea to two counts of mail

fraud, 18 U.S.C.A. § 1341 (West Supp. 1996). He was sentenced to

a term of 51 months and fined $250,000. He appeals his conviction,

asserting that the district court failed to determine that he was mentally competent to enter a plea. He also seeks to appeal his sentence,

contending that the waiver provision in his plea agreement is invalid

on a number of grounds. We affirm the conviction and dismiss Zaki's

appeal of his sentence.

Zaki practiced medicine in northern Virginia from the late 1970's

until an investigation into his billing practices in 1991 caused him to

surrender his medical license and leave the state. He was diagnosed

with myasthenia gravis (a disorder causing muscle weakness) and

underwent surgery related to the disease in 1989. Between 1992 and

December 1994 when he was indicted on 76 counts of mail fraud and

money laundering, Zaki obtained numerous evaluations of his mental

condition, including at least two ordered by the district court in the

months preceding his indictment, in anticipation of a possible insanity

defense. In June 1994, the district court found Zaki competent to

stand trial after the court received the report of a month-long evaluation at the hospital of Zaki's choice and the parties waived a hearing

on his competency. The evaluator concluded that Zaki appeared to be

mentally ill but also appeared to be exaggerating and manipulating his

symptoms, making a diagnosis of his mental condition difficult. An

evaluation by a different doctor in the fall of 1994 found no mental

disease or defect. All the reports mentioned that various medications

had been prescribed for Zaki but that he did not take them consistently. In February 1995, Zaki entered his guilty plea.

Zaki did not try to withdraw his plea in the district court, but now

contends that, during the hearing pursuant to Fed. R. Crim. P. 11, the

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district court committed reversible error by not inquiring whether he

was under the influence of prescription drugs and thus failing to

ensure that his guilty plea was voluntary. We review the adequacy of

a guilty plea de novo; however violations of Rule 11 are reviewed

under a harmless error standard. United States v. Goins, 51 F.3d 400,

402 (4th Cir. 1995). Before accepting a guilty plea, the district court

is required to determine whether the defendant is competent to enter

a plea and whether the plea is knowing and voluntary and not the

result of force or threats or promises not contained in the plea agreement. Fed. R. Crim. P. 11(d); Godinez v. Moran, 509 U.S. 389, 396-

400 (1993).

Zaki does not allege that he was actually taking any medication on

the day of his plea or that his plea was in fact involuntary as a result.

The district court had previously determined that Zaki was competent

to stand trial, and the standard is the same for competence to enter a

guilty plea. Id. at 399. We find that the court was adequately informed

about Zaki's mental competence to enter a plea and that any error in

failing to inquire about his condition on the day of the plea was harmless error at most.

Zaki's attempt to raise issues concerning his sentence is foreclosed

by his valid waiver of that right in the plea agreement. Although he

argues that the government breached the agreement by requesting an

upward departure and thus relieved him of his own obligations under

the agreement, no breach occurred. The government did not promise

in the agreement that it would not ask for a departure, and Zaki stated

at the Rule 11 hearing that no other promises had been made to

induce his plea. He specifically acknowledged that he agreed to the

waiver provision. The court's failure to ask about his medication does

not render this portion of his plea involuntary.

Finally, the court did not impose a sentence above the statutory

maximum.* Zaki was convicted of violating 18 U.S.C.§ 1341, which

provides for a fine of not more than $1000. However, 18 U.S.C.A.

§ 3571(b) (West Supp. 1996) provides that an individual's fine may

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*Even a valid waiver would not prevent a defendant from appealing

a sentence in excess of the maximum penalty permissible under the statute. United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992).

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be the greatest of the fine specified in the law setting forth the offense

or, for a felony, not more than $250,000. Zaki's sentence thus did not

exceed the statutory maximum.

The conviction is therefore affirmed. We dismiss that portion of the

appeal which seeks review of the sentence. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the

decisional process.

AFFIRMED IN PART, DISMISSED IN PART

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