United States v. Waleed Ahmed ( 2015 )

FILED
NOT FOR PUBLICATION
OCT 27 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50123
Plaintiff - Appellee, D.C. No. 2:12-cr-00943-PSG-1
v.
MEMORANDUM*
WALEED AHMED,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Argued and Submitted October 21, 2015
Pasadena, California
Before: IKUTA and OWENS, Circuit Judges and SESSIONS,** District Judge.
Waleed Ahmed appeals his 132 month sentence for conspiracy to commit
wire fraud in violation of 18 U.S.C. § 1349. We have jurisdiction pursuant to 18
U.S.C. § 3742(a) and 28 U.S.C. § 1291.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable William K. Sessions III, District Judge for the U.S.
District Court for the District of Vermont, sitting by designation.
The district court expressly adopted the factual findings of the presentence
report (PSR), which satisfies the requirement that it make factual findings. See
United States v. Gadson, 763 F.3d 1189, 1220 (9th Cir. 2014). Because the PSR
set forth factual findings amply supporting the conclusion both that a substantial
part of Ahmed’s fraudulent scheme was committed from outside the United States
and that the offense involved sophisticated means for purposes of § 2B1.1(b)(10)
of the Sentencing Guidelines, we reject Ahmed’s argument that the district court
plainly erred by imposing a two-level enhancement under § 2B1.1(b)(10) without
providing a sufficient explanation or considering Ahmed’s arguments.
The district court did not clearly err in imposing a two-level enhancement
for obstruction of justice under § 3C1.1 of the Sentencing Guidelines. The PSR
(adopted by the district court) made the factual finding that “Ahmed told the co-
conspirator to delete evidence relating to the instant offense which could be used
against himself or a coconspirator.” This finding was not clearly erroneous,
because the emails sent by Ahmed from prison could reasonably be interpreted as
attempting to erase evidence of Ahmed’s fraudulent activities and to hide assets
derived from those activities in order to help him in his federal case. Accordingly,
the district court did not clearly err in imposing an enhancement under § 3C1.1 for
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obstructing justice by attempting to impede the sentencing process. See United
States v. Petersen, 98 F.3d 502, 508 (9th Cir. 1996).
The district court did not err in interpreting § 3E1.1 of the Sentencing
Guidelines to require that a defendant “at least show contrition or remorse” in
order to receive a reduction. United States v. Nielsen, 371 F.3d 574, 582 (9th Cir.
2004). The district court’s determination that Ahmed did not show such emotions,
and that the emails Ahmed sent from prison were inconsistent with acceptance of
responsibility, was not clearly erroneous. Therefore, the district court did not err in
denying Ahmed a two-level reduction for acceptance of responsibility under
§ 3E1.1. See United States v. Innie, 7 F.3d 840, 848 (9th Cir. 1993); U.S.S.G.
§ 3E1.1, n.5.
Ahmed’s sentence was not procedurally unreasonable. The district court
stated that it had considered both parties’ sentencing briefs and each of the
§ 3553(a) factors, and a court does not abuse its discretion by focusing on the
factors it deemed most important. See United States v. Gutierrez-Sanchez, 587
F.3d 904, 908 (9th Cir. 2009). Because the district court identified the information
that it considered before imposing the sentence and described its reasons for
varying above the Guidelines range, its explanation was sufficient to allow for
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meaningful appellate review. See United States v. Carty, 520 F.3d 984, 992 (9th
Cir. 2008) (en banc).
The district court’s imposition of an upward variance of 24 months above
the Guidelines range was not substantively unreasonable. The district court did not
clearly err in construing Ahmed’s emails as demonstrating a lack of respect for the
law, an intent to commit additional frauds, and an absence of remorse.
Considering the totality of the circumstances, the district court did not abuse its
discretion in determining that these findings warranted an above-Guidelines
sentence. See United States v. Hilgers, 560 F.3d 944, 947–48 (9th Cir. 2009).
AFFIRMED.
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