United States v. Arsalan Shemirani , 802 F.3d 1 ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 8, 2015 Decided June 12, 2015
Reissued June 23, 2015
No. 13-3080
UNITED STATES OF AMERICA,
APPELLEE
v.
ARSALAN SHEMIRANI,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:12-cr-00075-1)
Tony Axam Jr., Assistant Federal Public Defender, argued
the cause for appellant. With him on the briefs was A.J.
Kramer, Federal Public Defender.
James M. Perez, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Ronald C. Machen, Jr.,
U.S. Attorney, and Elizabeth Trosman, Chrisellen R. Kolb, and
Courtney Spivey Urschel, Assistant U.S. Attorneys.
Before: GARLAND, Chief Judge, PILLARD, Circuit Judge,
and EDWARDS, Senior Circuit Judge.
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Opinion for the Court filed by Circuit Judge PILLARD.
PILLARD, Circuit Judge: Arsalan Shemirani pleaded guilty
to conspiracy to violate the International Emergency Economic
Powers Act (IEEPA), 50 U.S.C. §§ 1701-1706, and to defraud
the United States, 18 U.S.C. § 371, by unlawfully exporting
United States-origin electronics and power equipment to Iran
via Canada and Hong Kong. On appeal, Shemirani raises two
challenges to his sentence. First, he claims that the sentencing
court granted a motion for downward departure from the
recommended Sentencing Guidelines range, but that the court
failed to calculate the departure correctly. Second, he contends
that the sentencing court did not give the requisite
individualized consideration to his request for a six-month
downward departure—a departure that he argues is necessary to
bring his sentence into line with those of defendants in similar
circumstances convicted of similar offenses. Finding no error,
we affirm the sentence imposed by the district court.
I.
The government argues that the appeal should be dismissed
because Shemirani waived his appeal rights when he entered his
guilty plea. The written plea agreement that Shemirani signed
with the advice of counsel stated that he “knowingly and
willingly” waived his right to appeal his sentence (with limited
exceptions that nobody contends apply here). Public App. 54.
Shemirani claims that his appeal waiver was not “knowing,
intelligent, and voluntary” and thus cannot be enforced, see
United States v. Guillen, 561 F.3d 527, 529 (D.C. Cir. 2009),
but he does not seek to withdraw from any other aspect of the
plea agreement.
This court has acknowledged that a criminal defendant may
by his plea agreement waive the right to appeal a sentence that
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is “within the statutory range and imposed under fair
procedures.” Guillen, 561 F.3d at 530. Even though such a
waiver is anticipatory, as it necessarily regards a sentence that
has yet to be imposed, it “is nonetheless a knowing waiver if the
defendant is aware of and understands the risks involved in his
decision.” Id. at 529; see In re Sealed Case, 702 F.3d 59, 63
(D.C. Cir. 2012) (reciting standard); see also United States v.
Godoy, 706 F.3d 493, 495-96 (D.C. Cir. 2013) (holding appeal
waiver unenforceable where the sentencing judge told the
defendant that, regardless of the terms of the plea agreement, he
could appeal “any illegal sentence”—advice that
“mischaracterized the meaning of the waiver in a fundamental
way”).
To provide assurances of the informed voluntariness of a
criminal defendant’s guilty plea and any accompanying plea
agreement, Federal Rule of Criminal Procedure 11 requires
district courts to conduct an oral, in-person colloquy with a
defendant before accepting a plea of guilty. United States v.
Vonn, 535 U.S. 55, 62 (2002). Rule 11(b)(1) specifically
provides that “the court must address the defendant personally
in open court” to “inform the defendant of, and determine that
the defendant understands” each of fifteen enumerated items,
including “the terms of any plea-agreement provision waiving
the right to appeal or to collaterally attack the sentence.” Fed.
R. Crim. P. 11(b)(1)(N). The court accepting Shemirani’s plea
accordingly was required to discuss any appeal waiver with him
in open court and determine that he understood it.
During Shemirani’s plea colloquy, however, the district
court did not satisfy the requirements of Rule 11(b)(1)(N).
Although the court advised the defendant of other rights he was
waiving in the plea agreement, it did not tell him about and
ensure his understanding of the appeal waiver. For its part, the
government said nothing during the plea colloquy about the
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appeal waiver. There is no dispute that the court failed to
comply with Rule 11(b)(1)(N); the disagreement is over the
effect of that deficiency in the context of this case.
As noted above, the government urges us to enforce the
written appeal waiver by its terms and so dismiss the appeal,
whereas Shemirani contends that his waiver of his right to
appeal was not knowing and voluntary, so we should address the
substance of his appeal. Review of a claim of invalidity of an
ostensible waiver of the right to appeal (but not the entire plea)
raises difficult issues that are unsettled in this circuit, and as to
which other courts take varying approaches. See, e.g., Tellado
v. United States, 745 F.3d 48, 54 (2d Cir.) cert. denied, 135 S.
Ct. 125 (2014); United States v. Tanner, 721 F.3d 1231, 1233-
34 (10th Cir. 2013); United States v. Oliver, 630 F.3d 397, 412
(5th Cir. 2011); Sotirion v. United States, 617 F.3d 27, 34-38
(1st Cir. 2010); United States v. Frook, 616 F.3d 773, 777 (8th
Cir. 2010); United States v. Goodson, 544 F.3d 529, 539-541
(3d Cir. 2008); United States v. Smith, 618 F.3d 657, 664-65
(7th Cir. 2010); United States v. Sura, 511 F.3d 654, 655-56 (7th
Cir. 2007); United States v. Murdock, 398 F.3d 491, 498-99 (6th
Cir. 2005); United States v. Arellano-Gallegos, 387 F.3d 794,
797 (9th Cir. 2004). Because, as discussed below, Shemirani’s
sentencing challenges lack merit, and because Shemirani’s
waiver of appellate rights is not a jurisdictional issue,1 we
decline to decide whether he has effectively waived his right to
appeal.
We recognize the great care and attention the district courts
in this circuit devote to the process of accepting criminal
1
See, e.g., United States v. Jacobo Castillo, 496 F.3d 947, 957 (9th
Cir. 2007); United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir.
2007); United States v. Mason, 343 F.3d 893, 893 (7th Cir. 2003);
United States v. Hines, 196 F.3d 270, 272 (1st Cir. 1999).
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defendants’ guilty pleas. In order to assure consistent
enforceability of waivers of rights in plea agreements, courts
conducting plea colloquies must scrupulously adhere to the
obligations of Rule 11. We also take this opportunity to
emphasize that the United States Attorney’s Office would be
well advised to develop instructions and training for its
attorneys to make it part of their routine practice to help ensure
that district courts fulfill each of the requirements of Rule 11,
including Rule 11(b)(1)(N), when a defendant enters a plea.
II.
Turning to the merits of Shemirani’s appeal of his sentence,
we conclude that the district court did not err in evaluating the
first of two requests for a downward departure at issue in this
case.
Shemirani argues that the district court intended to grant a
downward departure from the Guidelines range but erred by
imposing a within-Guidelines sentence. Cf. United States v.
Vazquez-Lebron, 582 F.3d 443, 445 (3d Cir. 2009). The record
reveals, however, that the district court did not intend to grant
the departure motion. The court instead imposed a sentence
within the Guidelines range, appropriately considered the
sentencing factors set forth by 18 U.S.C. § 3553, and explained
how and why it arrived at the specific sentence that it imposed.
The transcript of the sentencing hearing and the court’s
Judgment confirm the court’s reasoning. The judge heard what
the government was requesting and its proposed methodology
and expressed his disagreement with it.
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III.
Finally, we conclude that Shemirani’s request for a six-
month departure was given adequate consideration before it was
denied.
Defendants are entitled to an individualized consideration
by the sentencing judge. See Gall v. United States, 552 U.S. 38,
52 (2007). For that reason, and to ensure an adequate record on
appeal, sentencing judges must explain their reasons for
imposing a particular sentence. See Rita v. United States, 551
U.S. 338, 356 (2007); In re Sealed Case, 527 F.3d 188, 192
(D.C. Cir. 2008). Moreover, courts have held that sentencing
judges commit reversible error when they ignore a defendant’s
non-frivolous argument for leniency. See, e.g., United States v.
Friedman, 658 F.3d 342, 362 (3d Cir. 2011); United States v.
Villegas-Miranda, 579 F.3d 798, 801 (7th Cir. 2009).
Shemirani claims that his request for departure was
summarily denied without individualized consideration pursuant
to the sentencing judge’s categorical rule against granting the
type of departure Shemirani sought. Such a categorical rule
would give us pause, as it could pose a serious risk of depriving
defendants of the individual consideration to which they are
entitled. Here, however, the record shows that the sentencing
judge acknowledged his authority to depart. Shemirani’s
request was typical of prior, similar requests made by other
defendants—the same type of request that the sentencing judge
had rejected. Shemirani offered no argument to suggest that his
situation differed in any individualized respect. In light of the
way Shemirani’s request was presented, the district court’s
consideration was adequately individualized.
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* * *
For the foregoing reasons, the judgment of the district
court is affirmed.
So ordered.