United States v. Lajaward Khan ( 2019 )

18‐2870(L)
United States v. Lajaward Khan
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 27th day of November, two thousand nineteen.
PRESENT: AMALYA L. KEARSE,
RICHARD J. SULLIVAN,
MICHAEL H. PARK,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
v. No. 18‐2870‐cr
No. 18‐2874‐cr
LAJBAR LAJAWARD KHAN, also known as
Haki Lajaward, AMAL SAID SAID ALAM
SHAH, also known as Haji Zar Mohammad,
Defendants‐Appellants,
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HABIBULLAH HAKI KAN, also known as Habibullah,
Defendant.
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FOR APPELLANT LAJAWARD JAMES M. BRANDEN, Law Office of
KHAN: James M. Branden, New York, NY.
FOR APPELLANT SAID: EZRA SPILKE, Law Offices of Ezra
Spilke, PLLC, Brooklyn, NY.
FOR APPELLEE: REBEKAH DONALESKI, Assistant
United States Attorney (George
Turner, Karl Metzner, Assistant
United States Attorneys, on the brief),
for Geoffrey S. Berman, United States
Attorney for the Southern District of
New York, New York, NY.
Appeal from judgments of the United States District Court for the Southern
District of New York (Kimba M. Wood, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgments of the district court are
AFFIRMED.
Lajbar Lajaward Khan (“Lajaward Khan”) and Amal Said Said Alam Shah
(“Said”) appeal from the sentences imposed by the district court (Wood, J.)
following their guilty pleas to conspiracy to import at least one kilogram of heroin
into the United States, in violation of 21 U.S.C. §§ 963, 952(a), 959(a), 960(a)(1),
960(a)(3), and 960(b)(1)(A), and attempted distribution of at least one kilogram of
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heroin, intending and knowing that the heroin would be imported into the United
States, in violation of 21 U.S.C. §§ 963, 959(a), 960(a)(3), and 960(b)(1)(A). Judge
Wood sentenced Lajaward Khan and Said to 180 months’ and 131 months’
imprisonment, respectively. On appeal, Lajaward Khan and Said argue that their
sentences were procedurally and substantively unreasonable. Specifically, as to
their procedural unreasonableness claims, Lajaward Khan argues that that the
district court miscalculated his offense level under the United States Sentencing
Guidelines (“U.S.S.G.” or “Guidelines”) and that the district court erroneously
applied a three‐level enhancement for leadership role. Said argues the district
court erred in denying his motion for a reduction pursuant to the safety valve
provision of the Guidelines and 18 U.S.C. § 3553(f).
“We review the procedural and substantive reasonableness of a sentence
under a deferential abuse‐of‐discretion standard.” United States v. Yilmaz, 910 F.3d
686, 688 (2d Cir. 2018) (citation omitted). “A district court commits procedural
error where it fails to calculate (or improperly calculates) the . . . Guidelines range,
treats the . . . Guidelines as mandatory, fails to consider the [18 U.S.C.] § 3553(a)
factors, selects a sentence based on clearly erroneous facts, or fails adequately to
explain the chosen sentence.” United States v. Robinson, 702 F.3d 22, 38 (2d Cir.
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2012) (citation omitted). Our review for the substantive reasonableness of a
sentence is “particularly deferential,” and we will set aside a sentence as
substantively unreasonable only if it is “so shockingly high, shockingly low, or
otherwise unsupportable as a matter of law that allowing [it] to stand would
damage the administration of justice.” United States v. Broxmeyer, 699 F.3d 265, 289
(2d Cir. 2012) (internal quotation marks and citation omitted).
We assume the parties’ familiarity with the underlying facts and the record
of prior proceedings, to which we refer only as necessary to explain our decision
to affirm.
I. Procedural Reasonableness
a. Lajaward Khan’s Base Offense Level
Lajaward Khan argues that the district court erred in calculating his base
offense level under the Guidelines because he did not intend to sell, and was not
actually capable of selling, the quantity of heroin discussed with the undercover
agent during the investigation.1 But the district court’s conclusion was not clearly
erroneous, and was strongly supported by the evidence the government proffered
1In contrast to his opening brief, which stated that “[p]ursuant to Rule 28(i) of the Federal Rules of
Appellate Procedure, Said joins in the brief of Lajbar Lajaward Khan . . . , including with respect to
substantive reasonableness,” Said expressly disavowed any challenge to the district court’s drug quantity
calculation during oral argument.
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at sentencing. Said and Lajaward Khan’s negotiations in pursuit of a narcotics
sale, which were recorded by an undercover officer and presented to the district
court, are persuasive evidence of their intent. See United States v. Hazut, 140 F.3d
193 (2d Cir. 1998) (“[N]egotiations ordinarily constitute reliable admissions as to a
defendant’s intent to produce a particular quantity of narcotics in the course of a
conspiracy.” (internal quotation marks omitted)). Moreover, in his proffer,
Lajaward Khan confirmed that he and Said had the ability and intent to sell
between 100 to 200 kilograms of heroin. In the lead‐up to the Fatico hearing,
Lajaward Khan objected to the drug weight for the first time. In light of Lajaward
Khan’s belated objection, which conflicted with both contemporaneous recordings
with the undercover officer and his earlier proffer statements, the district court did
not commit clear error in concluding that he intended to and was capable of selling
at least 90 kilograms of heroin. Accordingly, the district court was justified in
finding that his base offense level was 38. See U.S.S.G. § 2D1.1(c)(1).
b. Lajaward Khan’s Role Enhancement
Lajaward Khan also argues that the district court erred in applying a three‐
level role enhancement when calculating his Guidelines range. Under the
Sentencing Guidelines, such an enhancement is appropriate if the defendant “was
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a manager or supervisor . . . and the criminal activity involved five or more
participants or was otherwise extensive.” U.S.S.G. § 3B1.1(b). In determining if
the activity was “otherwise extensive,” a court looks to whether the scheme is the
“functional equivalent” of one involving at least five knowing participants. United
States v. Kent, 821 F.3d 362, 369 (2d Cir. 2016).
In reaching its conclusion, the district court determined that Lajaward Khan
was a manager or supervisor of an individual known as “Salamat,” whom he
recruited to participate in the criminal activity and directed to pick up and deliver
heroin in Afghanistan. See United States v. Payne, 63 F.3d 1200, 1212 (2d Cir. 1995)
(applying the role enhancement to a drug dealer who recruited and paid a
participant to sell drugs). The district court also found that the conspiracy
involved the participation of at least six named individuals and was otherwise
extensive as it involved a complex, international, drug‐trafficking organization.
Based on the record before it, the district court did not err in applying the role
enhancement.
c. Said’s Safety Valve Eligibility
Said challenges the district court’s conclusion that he was not eligible for the
“safety valve” provision of 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2, which allows
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a court to sentence a defendant “without regard to any minimum statutory
sentence,” and U.S.S.G. § 2D1.1(b)(18), which results in a two‐level reduction in a
defendant’s offense level. To qualify for the safety valve, a defendant must satisfy
five criteria, including that “the defendant has truthfully provided to the
Government all information and evidence the defendant has concerning the
offense or offenses that were part of the same course of conduct or of a common
scheme or plan.” 18 U.S.C. § 3553(f)(5); U.S.S.G. § 5C1.2(a)(5). Said argues that the
district court erred in finding him untruthful and provided insufficient bases for
its ruling. See United States v. Gambino, 106 F.3d 1105, 1111 (2d Cir. 1997) (“Further
factual findings will be required where [the appellate court] is unable to discern
from the record the basis of the district court’s ruling.”).
Both arguments are unpersuasive. The district court was entitled to reject
Said’s uncorroborated claim regarding his lack of intent, particularly because it
conflicted with the contemporaneous undercover recordings and with Lajaward
Khan’s post‐arrest proffer statements. Judge Wood also had the opportunity to
observe Said’s testimony at the Fatico hearing, and was well situated to make
credibility findings. She also made clear that she credited Lajaward Khan’s proffer
statement, which she found to be at odds with Said’s testimony. When viewing
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the sentencing record as a whole, the grounds for the sentence were sufficiently
clear, and we discern no error in the district court’s factual and credibility
determinations.
II. Substantive Reasonableness
Finally, Defendants argue that their sentences were substantively
unreasonable. Defendants raise a laundry list of factors in their favor, including
their difficult upbringings in impoverished areas, the fact that they are removed
from their families in Afghanistan, and an allegation – explicitly rejected by the
district court – that the undercover officer engaged in sentencing entrapment. But
the record demonstrates that the district court considered all of Defendants’
arguments, as well as the factors set forth in 18 U.S.C. § 3553, before imposing their
sentences. It bears noting that the district court sentenced each Defendant below
his applicable Guidelines range, reflecting a careful and reasoned assessment of
the entire record. Put simply, the sentences imposed here were not “so shockingly
high, shockingly low, or otherwise unsupportable as a matter of law that allowing
[them] to stand would damage the administration of justice.” Broxmeyer, 699 F.3d
at 289; see also United States v. Messina, 806 F.3d 55, 66 (2d Cir. 2015) (“While we do
not presume that a Guidelines sentence is necessarily substantively reasonable,
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that conclusion is warranted in the overwhelming majority of cases, and thus
especially when, as here, a defendant challenges a below‐Guidelines sentence.”
(internal quotation marks and citation omitted)).
We have considered Said’s and Lajaward Khan’s remaining arguments and
conclude that they are without merit. For the foregoing reasons, the judgments of
the district court are AFFIRMED.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk of Court
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