United States v. Muhamadou Kamateh

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11228
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MUHAMADOU KAMATEH,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:20-cr-00103-TWT-LTW-3
____________________
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2 Opinion of the Court 21-11228
Before WILSON, GRANT, and ANDERSON, Circuit Judges.
PER CURIAM:
Muhamadou Kamateh appeals his 46-month sentence for
conspiracy to commit money laundering, 18 U.S.C.
§ 1956(a)(1)(B)(i) & (h). He argues that his sentence is procedurally
and substantively unreasonable, and that the government’s failure
to move for a downward departure based on his substantial assis-
tance violated an implied plea agreement. For the reasons that fol-
low, we affirm Kamateh’s conviction and sentence.
I.
In August 2018, Kamateh checked luggage containing ap-
proximately $45,000 in cash onto a flight departing from Nashville
International Airport, but he did not board the flight. Law enforce-
ment officers seized the cash after a police dog gave a positive alert
for the odor of narcotics on it.
Two months later, Kamateh again checked luggage contain-
ing a large amount of cash—this time almost $115,000—onto a
flight departing from Nashville International Airport. Once again,
a police dog alerted to the smell of narcotics on the money, and law
enforcement officers seized it.
Both sums of cash seized from Kamateh were later deter-
mined to be proceeds from a marijuana trafficking organization
run by one of Kamateh’s cousins, Alhaji Jewru Touray. Kamateh,
Touray, and others were named in a six-count indictment charging
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21-11228 Opinion of the Court 3
them with conspiracy to commit money laundering. The indict-
ment also charged Kamateh’s codefendants with drug-trafficking
and firearm offenses.
Kamateh entered a guilty plea to the money laundering con-
spiracy charge. The district court sentenced him to 46 months in
prison followed by three years of supervised release. Kamateh now
appeals, arguing that (1) the district court committed procedural
error by denying his request for a mitigating role reduction when
determining his Sentencing Guidelines sentencing range, (2) his 46-
month sentence is substantively unreasonable, and (3) the govern-
ment’s refusal to move for a substantial-assistance reduction vio-
lated an implied plea agreement. We consider each argument in
turn.
II.
A.
Kamateh first argues that his sentence is procedurally unrea-
sonable because the district court declined to reduce his U.S. Sen-
tencing Guidelines offense level based on his role in the offense,
which he contends was minimal. A district court’s conclusion
about the defendant’s role in the offense is a factual finding that we
review for clear error. United States v. Docampo, 573 F.3d 1091,
1096 (11th Cir. 2009). The defendant bears the burden of establish-
ing by a preponderance of the evidence that he is entitled to a mit-
igating role reduction. United States v. Cruickshank, 837 F.3d 1182,
1192 (11th Cir. 2016).
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4 Opinion of the Court 21-11228
If a sentencing court finds that the defendant played a lesser
role in the relevant criminal activity, it may reduce the defendant’s
Guidelines offense level by two to four levels. U.S.S.G. § 3B1.2.
The court may apply a two-level reduction for a “minor partici-
pant,” a four-level reduction for a “minimal participant,” and a
three-level reduction for a defendant whose participation falls in
between. Id. A minor participant is someone “who is less culpable
than most other participants in the criminal activity, but whose role
could not be described as minimal,” while minimal participants are
“plainly among the least culpable of those involved in the conduct
of a group.” Id., cmt. nn.4 & 5.
In determining whether a role reduction is appropriate, the
district court should look to two guiding principles. First, “the dis-
trict court must assess whether the defendant is a minor or minimal
participant in relation to the relevant conduct attributed to the de-
fendant in calculating her base offense level” under the Guidelines.
United States v. Rodriguez De Varon, 175 F.3d 930, 941 (11th Cir.
1999) (en banc). Here, Kamateh’s base offense level was calculated
based solely on the transportation of approximately $160,000 in
drug proceeds—he was not held accountable for any of his code-
fendants’ drug-trafficking activities or for the money-laundering
crimes committed by other couriers in his cousin’s organization.
For purposes of assessing Kamateh’s role under § 3B1.2 of the Sen-
tencing Guidelines, therefore, the relevant conduct was identical to
his actual conduct.
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21-11228 Opinion of the Court 5
Second, “the district court may also measure the defendant’s
culpability in comparison to that of other participants in the rele-
vant conduct.” Id. at 944. In conducting this comparative assess-
ment, the focus remains on the conduct for which the defendant
was held accountable at sentencing. Id. The “district court may
consider only those participants who were involved in the relevant
conduct attributed to the defendant,” and only to the extent that
such participants “are identifiable or discernable from the evi-
dence.” Id. Based on the evidence before the district court, the
only other participant in Kamateh’s conduct was his cousin Tou-
ray, the leader of the criminal enterprise who presumably directed
Kamateh’s activities at some level.
With these two principles in mind, we consider Kamateh’s
argument that the district court clearly erred in finding that he did
not play a minor or minimal role in the relevant conduct. Ka-
mateh’s chief argument is that by transporting money on two oc-
casions, he played only a minimal role in Touray’s drug-trafficking
organization. He points out that he had no part in buying, trans-
porting, or selling narcotics, and that the money he carried was
only a fraction of the millions of dollars laundered by his cousin
during the course of the conspiracy. This argument ignores the
first principle discussed above: “in determining a defendant’s role
in the offense, a district court must measure the defendant’s role
against the relevant conduct attributed to her in calculating her
base offense level.” De Varon, 175 F.3d at 943–44. Kamateh’s role
in his codefendants’ drug-trafficking conspiracy is irrelevant
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6 Opinion of the Court 21-11228
because Kamateh was not held accountable for the activities of the
drug-trafficking organization at sentencing. See id. at 941–42, 944.
As we have explained before, “where the relevant conduct at-
tributed to a defendant is identical to her actual conduct, she can-
not prove that she is entitled to a minor role adjustment simply by
pointing to some broader criminal scheme in which she was a mi-
nor participant but for which she was not held accountable.” Id. at
941.
As to the conduct for which Kamateh was held accounta-
ble—transporting cash proceeds from the drug-trafficking business
on two occasions—he has not carried his burden of showing that
he was a minor or minimal participant. Although defense counsel
argued at sentencing that Kamateh did not plan or organize his
money-laundering trips and had no decision-making authority or
discretion with regard to those trips, he presented no evidence to
support those contentions. See U.S.S.G. § 3B1.2, cmt. n.3(C)(ii)–
(iv). And even if we assume that Touray (as mastermind of the
larger conspiracy) played a managing role in Kamateh’s conduct,
that fact is not dispositive since it is possible that neither Kamateh
nor his cousin are minor or minimal participants in the relevant
conduct. De Varon, 175 F.3d at 944. On this record, the district
court did not clearly err in finding that Kamateh did not play a mi-
nor or minimal role in the criminal conduct for which he was held
accountable.
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21-11228 Opinion of the Court 7
B.
Next, Kamateh argues that his 46-month sentence is substan-
tively unreasonable in light of his personal history of childhood
abuse and privation and his candor and cooperation with the gov-
ernment. We review the substantive reasonableness of a sentence
using an abuse-of-discretion standard, considering the totality of
the circumstances and whether the sentence achieves the purposes
outlined in 18 U.S.C. § 3553(a). United States v. Irey, 612 F.3d 1160,
1188–89 (11th Cir. 2010) (en banc).
Under § 3553(a), a sentencing court must consider the na-
ture and circumstances of the defendant’s offense and the defend-
ant’s history and characteristics and impose a sentence that is “suf-
ficient, but not greater than necessary, to comply with” the statu-
tory purposes of sentencing. 18 U.S.C. § 3553(a). Those purposes
include the need to reflect the seriousness of the offense, promote
respect for the law, provide just punishment for the offense, deter
criminal conduct, protect the public from further crimes by the de-
fendant, and provide the defendant with needed education and
treatment. Id. § 3553(a)(2). The court must also consider the kinds
of sentences available, the defendant’s Guidelines sentencing
range, applicable guidelines and policy statements issued by the
Sentencing Commission, the need to avoid unwarranted sentenc-
ing disparities among similarly situated defendants, and the need
for restitution, if any. Id. § 3553(a)(3)–(7).
“A district court abuses its considerable discretion and im-
poses a substantively unreasonable sentence only when it (1) fails
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8 Opinion of the Court 21-11228
to afford consideration to relevant factors that were due significant
weight, (2) gives significant weight to an improper or irrelevant fac-
tor, or (3) commits a clear error of judgment in considering the
proper factors.” United States v. Rosales-Bruno, 789 F.3d 1249,
1256 (11th Cir. 2015) (citation and quotation marks omitted). Ap-
plying the abuse-of-discretion standard, we will reverse only if we
are “left with the definite and firm conviction that the district court
arrived at a sentence falling outside the range of reasonable sen-
tences.” United States v. McQueen, 727 F.3d 1144, 1156 (11th Cir.
2013).
The 46-month sentence here was well within the range of
reasonable sentences that the district court could have imposed for
Kamateh’s crime. The court explained that it had considered the
relevant § 3553(a) sentencing factors and believed that a within-
Guidelines sentence appropriately accounted for them. The court
emphasized the seriousness of Kamateh’s offense, which involved
laundering a total of approximately $160,000 in drug-trafficking
proceeds, and it concluded that the sentence of home confinement
that Kamateh requested would not provide just punishment for the
offense. Contrary to Kamateh’s argument on appeal, the weight to
be accorded to any one of these factors, as compared to Kamateh’s
personal history, “is a matter committed to the sound discretion of
the district court, and the court is permitted to attach great weight
to one factor over others.” United States v. Riley, 995 F.3d 1272,
1279 (11th Cir. 2021) (citations and quotation marks omitted).
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21-11228 Opinion of the Court 9
We also reject Kamateh’s argument that the district court
should have given him a below-Guidelines sentence to account for
his cooperation with the government, despite the government’s re-
fusal to request a downward departure on that ground. The court
was aware that Kamateh had supplied information leading to the
indictment of at least one codefendant but refused to provide any
assurance that he would continue to cooperate (by, for example,
testifying at his codefendants’ trials). Under the circumstances, it
was not unreasonable for the district court to decline to vary down-
ward below Kamateh’s Guidelines range based on his cooperation.
We also note that the sentence was at the low end of the
Guidelines range of 46–57 months and well below the statutory
maximum sentence of 20 years in prison. See 18 U.S.C. § 1956(a)(1)
& (h). Although a Guidelines sentence is not entitled to a presump-
tion of reasonableness, “sentences that fall within the Guidelines
range or that are below the statutory maximum are generally rea-
sonable,” and the defendant bears the burden of showing that his
sentence is unreasonable in light of the record and the § 3553(a)
factors. United States v. Muho, 978 F.3d 1212, 1227 (11th Cir.
2020); United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).
Kamateh has not met his burden here, and we conclude that the
district court did not abuse its discretion in sentencing him.
C.
Last, Kamateh argues that the government’s refusal to move
for a downward departure pursuant to U.S.S.G. § 5K1.1 breached
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10 Opinion of the Court 21-11228
an unwritten plea agreement. 1 When a defendant’s “plea rests in
any significant degree on a promise or agreement of the prosecu-
tor, so that it can be said to be part of the inducement or consider-
ation, such promise must be fulfilled.” Santobello v. New York,
404 U.S. 257, 262 (1971). Accordingly, if the government promises
to file a substantial-assistance motion in exchange for the defend-
ant’s assistance and guilty plea and later breaches that agreement,
we may enforce the government’s promise by remanding for re-
sentencing and specific performance or to allow the defendant to
withdraw his guilty plea. See id. at 263; United States v. Hunter,
835 F.3d 1320, 1329 (11th Cir. 2016).
Generally, where the facts are undisputed, we review
whether the government breached a plea agreement with the de-
fendant de novo. Hunter, 835 F.3d at 1324. But because Kamateh
failed to object on this ground in the district court, we review only
for plain error. See Puckett v. United States, 556 U.S. 129, 133–34
(2009). Plain error exists where (1) there is an error; (2) that is
“clear or obvious”; and (3) that affected the defendant’s substantial
rights. Id. at 135. If all three prongs are satisfied, we may reverse
“if the error seriously affect[s] the fairness, integrity, or public
1 Section 5K1.1 provides, in relevant part, that the district court may depart
from a defendant’s Guidelines range “[u]pon motion of the government stat-
ing that the defendant has provided substantial assistance in the investigation
or prosecution of another person who has committed an offense.”
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21-11228 Opinion of the Court 11
reputation of judicial proceedings.” Id. (alteration in the original)
(quoting United States v. Olano, 507 U.S. 725, 736 (1993)).
We find no error—let alone plain error—here. Kamateh
claims that he cooperated with the government and entered a
guilty plea “with the implicit understanding that he would benefit
from assistance that benefited the government.” But while it is ev-
ident that the parties discussed the possibility of a government sub-
stantial-assistance motion, it is equally evident that the govern-
ment made no promises in that regard. Kamateh testified at the
change-of-plea hearing that no one had made him any promises
that induced him to plead guilty, and his counsel confirmed that
she had no knowledge of any plea agreement or bargain affecting
Kamateh’s guilty plea. And at sentencing, the parties explained that
they had been unable to reach a plea agreement because the gov-
ernment would not agree to file a substantial-assistance motion
based solely on Kamateh’s past cooperation, and Kamateh would
not commit to providing continued assistance until the conclusion
of his codefendants’ trials. Since the government did not promise
to file a substantial-assistance motion, its failure to file such a mo-
tion was not a breach of a plea agreement. Cf. United States v.
Copeland, 381 F.3d 1101, 1105 (11th Cir. 2004) (the first step in de-
termining whether the government breached a plea agreement is
to “determine the scope of the government’s promises”).
In the absence of an enforceable promise by the govern-
ment, our review of the government’s decision not to file a sub-
stantial-assistance motion is limited. Section 5K1.1 gives the
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12 Opinion of the Court 21-11228
government “a power, but not a duty, to file a motion when a de-
fendant has substantially assisted.” Wade v. United States, 504 U.S.
181, 185 (1992). In other words, the decision whether to file a sub-
stantial-assistance motion is a matter of prosecutorial discretion,
and the government is not obligated to file a motion for a down-
ward departure merely because the defendant has provided sub-
stantial assistance. See id. at 185–86, 187. Judicial review of the
exercise of this discretion “is appropriate only ‘when there is an al-
legation and a substantial showing that the prosecution refused to
file a substantial assistance motion because of a constitutionally im-
permissible motivation.’” United States v. Dorsey, 554 F.3d 958,
961 (11th Cir. 2009) (emphasis in original) (quoting United States v.
Forney, 9 F.3d 1492, 1502 (11th Cir. 1993)).
Kamateh has not made any showing that the government’s
refusal stemmed from an unconstitutional motivation. Instead, he
argues that the government was obligated to reward his assistance
because the information he provided led to indictments. But a
“claim that a defendant merely provided substantial assistance will
not entitle a defendant to a remedy.” Wade, 504 U.S. at 186.
III.
We conclude that Kamateh’s sentence is not procedurally or
substantively unreasonable, and that the government did not
breach a plea agreement with Kamateh by refusing to file a motion
for a downward departure pursuant to U.S.S.G. § 5K1.1. We there-
fore AFFIRM Kamateh’s conviction and sentence.
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21-11228 Opinion of the Court 13
AFFIRMED.