United States v. Rakhmatov

21-151 (L)
United States v. Rakhmatov
1
2 In the
3 United States Court of Appeals
4 For the Second Circuit
5 ________
6
7 AUGUST TERM 2021
8
9 ARGUED: FEBRUARY 24, 2022
10 DECIDED: NOVEMBER 17, 2022
11
12 Nos. 21-151(L), 21-167 (Con)
13
14 UNITED STATES OF AMERICA,
15 Appellee,
16
17 v.
18
19 AZIZJON RAKHMATOV,
20 Defendant-Appellant,
21
22 ABDURASUL HASANOVICH JURABOEV, AKA ABDULLOH IBN HASAN,
23 AKHROR SAIDAKHMETOV, ABROR HABIBOV, DILKHAYOT KASIMOV,
24 AKMAL ZAKIROV,
25 Defendants.
26 ________
27
28 Appeal from the United States District Court
29 for the Eastern District of New York.
30 ________
31
32 Before: LIVINGSTON, Chief Judge, KEARSE and WALKER, Circuit Judges.
33 ________
34 In these appeals, Azizjon Rakhmatov challenges the sentence
35 imposed following his guilty plea for conspiring to support a terrorist
2 21-151(L), 21-167(Con)
1 group (No. 21-151) and the denial of his Federal Rule of Criminal
2 Procedure 35(a) motion to correct the sentence (No. 21-167). In this
3 opinion, we address whether the Rule 35(a) motion is barred by the
4 appeal waiver in his plea agreement. Rakhmatov argues that the
5 district court erred in denying his motion to correct its alleged
6 sentencing errors. We disagree, and DISMISS the appeal in No. 21-
7 167. We address Rakhmatov’s remaining arguments in a summary
8 order filed concurrently with this opinion.
9 ________
10
11 LAWRENCE MARK STERN, Esq., New York, New
12 York, for Defendant-Appellant Azizjon Rakhmatov.
13 DAVID K. KESSLER, Assistant United States
14 Attorney (Susan Corkery, Douglas M. Pravda, J.
15 Matthew Haggans, Assistant United States
16 Attorneys, on the brief), for Jacquelyn M. Kasulis,
17 Acting United States Attorney for the Eastern
18 District of New York, Brooklyn, New York, for
19 Appellee United States of America.
20 ________
21 JOHN M. WALKER, JR., Circuit Judge:
22 In these appeals, Azizjon Rakhmatov challenges the sentence
23 imposed following his guilty plea for conspiring to support a terrorist
24 group (No. 21-151) and the denial of his Federal Rule of Criminal
25 Procedure 35(a) motion to correct the sentence (No. 21-167). In this
26 opinion, we address whether the Rule 35(a) motion is barred by the
27 appeal waiver in his plea agreement. Rakhmatov argues that the
28 district court erred in denying his motion to correct its alleged
29 sentencing errors. We disagree, and DISMISS the appeal in No. 21-
30 167. We address Rakhmatov’s remaining arguments in a summary
31 order filed concurrently with this opinion.
3 21-151(L), 21-167(Con)
1 BACKGROUND
2 In 2019, Appellant Rakhmatov pleaded guilty in the Eastern
3 District of New York (Kuntz, J.) to conspiring to provide material
4 support to the terrorist group ISIS in violation of 18 U.S.C. § 2339B.
5 He pleaded pursuant to a plea agreement in which he agreed not to
6 “file an appeal or otherwise challenge” his sentence so long as he was
7 sentenced to 150 months or less of imprisonment. 1 We will refer to
8 this provision in the plea agreement as the “appeal waiver.”
9 In January 2021, the district court sentenced Rakhmatov to 150
10 months’ imprisonment and lifetime supervised release, accompanied
11 by several special conditions. Three days later, Rakhmatov filed a
12 letter objecting to his term of imprisonment. He urged the district
13 court to “correct the sentence” or resentence him within 14 days,
14 citing Federal Rule of Criminal Procedure 35(a). 2 The district court
15 “denied” the motion. Rakhmatov then appealed his sentence (No. 21-
16 151) and the denial of his Rule 35(a) motion (No. 21-167).
17 On appeal, a motions panel of this court granted in part the
18 government’s motion to dismiss, holding that Rakhmatov’s appeal of
19 his term of imprisonment was barred by his plea agreement. The
20 panel permitted the challenge to proceed, however, as to his
21 supervised release, the special conditions, and the district court’s
22 denial of his Rule 35(a) motion, on the basis that they were not
23 covered by the appeal waiver.
1 App. 151.
Id. at 444. Rule 35(a) states that “[w]ithin 14 days after sentencing, the
2
court may correct a sentence that resulted from arithmetical, technical, or
other clear error.”
4 21-151(L), 21-167(Con)
1 DISCUSSION
2 At issue in this opinion is the letter Rakhmatov filed three days
3 after his sentencing. This letter was not styled as a motion but rather
4 “stat[ed] Mr. Rakhmatov’s objections to the sentence imposed.” 3 It
5 argued that the district court had failed to properly apply the 18
6 U.S.C. § 3553(a) sentencing factors and improperly issued a “blanket
7 rejection” of his objections to the presentence report. 4 The letter
8 concluded by urging the district court to correct Rakhamtov’s
9 sentence or resentence him, citing Rule 35(a).
10 The district court construed the letter as a motion brought
11 under Rule 35(a). It “denied” the motion on two grounds: (1) the
12 letter’s objections could not be raised under Rule 35(a), and (2)
13 Rakhmatov’s appeal waiver, which stated that he would not “file an
14 appeal or otherwise challenge” his sentence, 5 barred him from bringing
15 a Rule 35(a) motion. 6 On appeal, Rakhmatov argues that the letter
16 was a Rule 35(a) motion that was improperly denied. 7 The
17 government responds that his appeal waiver barred him from making
18 a Rule 35(a) motion and that the letter’s objections were not
3 App. at 443.
4 Id.
5 Id. at 151 (emphasis added).
6Special App. 13. The district court characterizes its disposition as a
denial, but it is more properly a dismissal. See, e.g., United States v. Borden,
16 F.4th 351, 356 (2d Cir. 2021) (dismissing a challenge to a sentence that is
barred by an appeal waiver).
7In his opening brief, Rakhmatov suggests, in the alternative, that his
post-sentencing letter was not a Rule 35(a) motion but an objection at
sentencing. We need not address this argument because, as the motions
panel held, any challenge to the term of imprisonment itself is barred by his
appeal waiver.
5 21-151(L), 21-167(Con)
1 redressable through Rule 35(a). Consistent with the district court and
2 the litigants on appeal, we treat Rakhmatov’s post-sentencing letter
3 as a Rule 35(a) motion. Therefore, we must decide whether the appeal
4 waiver prohibits his Rule 35(a) motion.
5 Rule 35(a) allows the district court to correct a sentence that
6 contains an “arithmetical, technical, or other clear error.” 8 We have
7 repeatedly stated, quoting the rule’s advisory committee notes, that it
8 “is intended to be very narrow and to extend only to those cases in
9 which an obvious error or mistake has occurred in the sentence.” 9 It
10 is not “meant to allow the district court to reopen issues previously
11 resolved at the sentencing hearing through the exercise of the court’s
12 discretion with regard to the application of the sentencing guidelines,
13 or to reconsider the application or interpretation of the sentencing
14 guidelines.” 10 District courts have invoked Rule 35(a) to, for example,
15 correct a restitution award that was initially calculated incorrectly.11
16 On the other hand, disputes about the application of the sentencing
17 guidelines fall “outside the very narrow scope of the rule.” 12
18 In this case, Rakhmatov’s motion did not identify any
19 arithmetical, technical, or similar errors with the sentence. Instead,
20 he alleged that the district court failed to properly apply the
21 sentencing factors and failed to adequately consider his objections,
8 Fed. R. Crim. P. 35(a).
9United States v. Donoso, 521 F.3d 144, 146 (2d Cir. 2008) (per curiam)
(quoting United States v. Abreu-Cabrera, 64 F.3d 67, 72 (2d Cir. 1995), itself
quoting Fed. R. Crim. P. 35, 1991 advisory committee’s note) (abrogated on
different grounds).
United States v. DeMartino, 112 F.3d 75, 79 (2d Cir. 1997) (quotation
10
marks omitted).
11 See United States v. Spallone, 399 F.3d 415, 419 (2d Cir. 2005).
12 Califano v. United States, 2000 WL 730398, at *2 (2d Cir. 2000).
6 21-151(L), 21-167(Con)
1 resulting in a prison term that was “unreasonable, cruel and unusual,
2 . . . and greater than necessary to accomplish [its] purpose.” 13 The
3 motion’s arguments thus plainly fall outside of Rule 35(a)’s “very
4 narrow” scope. 14 Instead of filing a genuine Rule 35(a) motion,
5 Rakhmatov simply stated his objections to the district court’s
6 sentence.
7 We have not yet decided, and need not decide today, whether
8 an appeal waiver can bar a motion to correct a “technical,
9 arithmetical, or other clear error,” as specified in Rule 35(a). 15 Simply
10 citing Rule 35(a), however, cannot allow a defendant to obtain
11 substantive review that would otherwise be barred by an appeal
12 waiver. If Rule 35(a) were to permit such end-runs, it would
13 functionally deprive the government of the benefit of the waiver. As
14 a result, appeal waivers “would cease to have value as a bargaining
15 chip in the hands of defendants.” 16 Accordingly, we hold that when
16 a challenge to a prison sentence purportedly under Rule 35(a) does
17 not fall within the narrow scope of Rule 35(a), an appeal waiver can
18 bar consideration of the motion.
19 The terms of this appeal waiver plainly bar consideration of the
20 motion. As part of his plea agreement, Rakhmatov agreed not to “file
21 an appeal or otherwise challenge, by petition pursuant to 28 U.S.C.
22 § 2255 or any other provision, the conviction or sentence” provided he
13 App. 444.
Donoso, 521 F.3d at 146; see also United States v. Escobar, 542 F. App’x
14
38, 41 (2d Cir. 2013) (suggesting that arguments related to a sentence’s
procedural and substantive reasonability are not appropriately raised in a
Rule 35(a) motion).
15 Fed. R. Crim. P. 35(a).
United States v. Arevalo, 628 F.3d 93, 98 (2d Cir. 2010) (quotation marks
16
omitted).
7 21-151(L), 21-167(Con)
1 was sentenced to 150 months’ imprisonment or less. 17 The district
2 court sentenced him to 150 months in prison. Although he disagrees
3 with this sentence, he cannot use Rule 35(a) to overcome his waiver.
4 His appeal from the decision on the motion must be dismissed. 18
5 Rakhmatov tries to avoid this outcome by insisting that his
6 motion falls within the parameters of Rule 35(a). This argument is
7 without merit. First, he cites precedent suggesting that the rule is
8 “broadly available” to correct unjust or unlawful sentences. 19 All of
9 the cases he cites, however, are either out of circuit or analyze
10 previous versions of Rule 35 that allowed courts to correct any
11 “illegal” sentence. 20 As discussed, our precedent and the advisory
12 committee’s comments make clear that the current Rule 35(a) is far
13 narrower in scope.
14 Next, Rakhmatov points to United States v. Waters, which held
15 that Rule 35(a) permitted a district court to correct a sentence when it
16 had failed to consider a Sentencing Guidelines policy statement in
17 setting its original sentence. 21 Rakhmatov equates this to the district
17 App. 151 (emphasis added).
18A motions panel previously declined to dismiss Rakhmatov’s appeal
as to this issue. In permitting the appeal to proceed, however, the panel did
not discuss whether Rakhmatov had brought a valid Rule 35(a) motion. In
any case, our authority to reconsider issues decided by a motions panel is
well established. See, e.g., United States v. Brown, 623 F.3d 104, 111–12 (2d
Cir. 2010); Rezzonico v. H & R Block, Inc., 182 F.3d 144, 149 (2d Cir. 1999).
19United States v. Thompson, 261 F.2d 809, 810 (2d Cir. 1958); see also
United States v. Braun, 382 F. Supp. 214 (S.D.N.Y. 1974); United States v.
Himsel, 951 F.2d 144 (7th Cir. 1991); Benson v. United States, 332 F.2d 288 (5th
Cir. 1964); United States v. Patrick Petroleum Corp. of Michigan, 703 F.2d 94(5th Cir. 1982).
20 See Himsel, 951 F.2d at 146 (quoting the previous rule).
21 84 F.3d 86, 90 (2d Cir. 1996) (per curiam).
8 21-151(L), 21-167(Con)
1 court’s alleged failure to properly apply the sentencing factors in his
2 case. In Waters, however, we emphasized that the “district court [had]
3 neglected to consider the policy statement at all,” contrary to the law’s
4 requirements, because it was unaware “of the policy statement’s
5 existence.” 22 Indeed, the district court stated on the record that it had
6 not taken the statement into account when imposing the original
7 sentence. 23 In this case, the district court explicitly invoked and
8 applied the § 3553(a) sentencing factors when arriving at
9 Rakhmatov’s sentence. Rakhmatov asserts that the district court did
10 not “actually” apply the factors, 24 but this amounts to an objection to
11 its analysis, not an unmistakable error as in Waters. Rakhmatov’s
12 arguments are plainly beyond the scope of Rule 35(a) and thus are
13 barred by his appeal waiver.
14 CONCLUSION
15 For the foregoing reasons, we DISMISS Rakhmatov’s appeal
16 from the denial of his Rule 35(a) motion (No. 21-167). We address his
17 appeal in No. 21-151 in the concurrently filed summary order.
22 Id. at 90–91.
23 Id. at 91.
24 Appellant’s Brief at 53.