USA v. Samih Abdel Rahman

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13109
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SAMIH ABDEL RAHMAN,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:12-cr-00515-VMC-AEP-1
____________________
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2 Opinion of the Court 22-13109
Before WILSON, LUCK, and ED CARNES, Circuit Judges
PER CURIAM:
Samih Abdel Rahman pleaded guilty to conspiracy to com-
mit money laundering. His plea agreement included a forfeiture
provision and a sentence appeal waiver. Years later, the govern-
ment filed a motion seeking forfeiture of the contents of Rahman’s
Federal Bureau of Prisons Trust Fund Account in connection with
the forfeiture provision in his plea agreement. Rahman appeals the
district court’s grant of that motion. The government moves to
dismiss Rahman’s appeal because the sentence appeal waiver bars
Rahman from objecting to the forfeiture.
I.
In 2014 Rahman pleaded guilty to conspiracy to commit
money laundering offenses. As part of his plea deal, Rahman
agreed to forfeit “an amount to be determined by the court at sen-
tencing representing the amount involved in the offense.” The
agreement also included a sentence appeal waiver that stated Rah-
man could not appeal his sentence “on any ground” unless he con-
tended his sentence exceeded the applicable guidelines range, ex-
ceeded the statutory maximum penalty, violated the Eighth
Amendment, or unless the government appealed the sentence.
During Rahman’s change of plea hearing, the magistrate
judge told Rahman that his plea agreement included a provision
that “expressly waive[s his] right to appeal [his] sentence unless cer-
tain events occur” and then listed those four exceptions. The
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22-13109 Opinion of the Court 3
magistrate judge then asked Rahman if he “understand[s] that by
this provision of [his] plea agreement, [he has] expressly waived
[his] right to appeal [his] sentence” and Rahman confirmed that he
understood. The court accepted Rahman’s guilty plea.
The Court then entered a forfeiture money judgment find-
ing that Rahman obtained at least $3,371,747.00 in proceeds from
his participation in a money laundering conspiracy. The judgment
allowed the government to seek forfeiture of any of Rahman’s
property up to that amount.
Years later, the government moved to forfeit the money in
Rahman’s Inmate Trust Account as partial satisfaction for his order
of forfeiture. The district court granted the government’s motion
the same day. Rahman objected to the forfeiture order and filed a
notice of appeal. The government moves to dismiss the appeal be-
cause the appeal waiver in Rahman’s plea agreement forecloses his
ability to appeal the forfeiture.
II.
We review de novo the validity and scope of a sentence ap-
peal waiver. King v. United States, 41 F.4th 1363, 1366 (11th Cir.
2022).
Sentence appeal waivers are enforceable if a criminal defend-
ant knowingly and voluntarily agreed to the waiver. See United
States v. Bushert, 997 F.2d 1343, 1350 (11th Cir. 1993). To prove a
waiver was made knowingly and voluntarily, the government
must show that either (1) the district court specifically questioned
the defendant about the waiver during the plea colloquy, or (2) the
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4 Opinion of the Court 22-13109
record makes clear that the defendant otherwise understood the
full significance of the waiver. Id. at 1351.
Sentence appeal waivers bar appeals of forfeiture orders be-
cause “[f]orfeiture is an element of the sentence.” See Libretti v.
United States, 516 U.S. 29, 38–39 (1995); 18 U.S.C. § 982(a)(1) (“The
court, in imposing sentence on a person convicted of [the offense
Rahman pleaded guilty to] shall order that the person forfeit to the
United States any property, real or personal, involved in such of-
fense, or any property traceable to such property.”) (emphasis
added); 28 U.S.C. § 2461(c) (“If the defendant is convicted of the
offense giving rise to the forfeiture, the court shall order the forfeiture
of the property as part of the sentence in the criminal case.”) (emphasis
added); cf. United States v. Johnson, 541 F.3d 1064, 1067, 1069 (11th
Cir. 2008) (finding that a sentence appeal waiver barred an appeal
of a restitution order because restitution penalties are “incorpo-
rated into the traditional sentencing structure”).
Here, Rahman knowingly and voluntarily waived the right
to appeal his sentence because at his change of plea hearing, the
magistrate judge explained the sentence appeal waiver and Rah-
man confirmed that he understood the waiver. And none of the
exceptions to the appeal waiver within Rahman’s plea agreement
apply. Because Rahman cannot appeal his sentence, including any
forfeiture orders accompanying that sentence, the government’s
motion to dismiss this appeal pursuant to the appeal waiver in Rah-
man’s plea agreement is granted.
APPEAL DISMISSED.
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