United States v. Kheirallah Ahmad

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
4-28-2009
USA v. Kheirallah Ahmad
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-1374
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-1374
_____________
UNITED STATES OF AMERICA
v.
KHEIRALLAH AHMAD,
a/k/a POLICE OFFICER KENNY
Kheirallah Ahmad,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court No. 2-07-CR-00322-001
District Judge: The Honorable Eduardo C. Robreno
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
April 14, 2009
Before: McKEE, SMITH, Circuit Judges
and STEARNS, District Judge *
(Filed: April 28, 2009)
OPINION
SMITH, Circuit Judge.
Kheirallah Ahmad appeals from the sentence of 48 months of imprisonment
*
The Honorable Richard G. Stearns, District Judge for the United States District
Court for Massachusetts, sitting by designation.
imposed by the United States District Court for the Eastern District of Pennsylvania. He
contends that the District Court erred in calculating his total offense level by applying a
four-level enhancement for his role in the offense pursuant to § 3B1.1 of the United
States Sentencing Guidelines (U.S.S.G.). The government contends that Ahmad’s appeal
is barred by the terms of an appellate waiver that was a condition of his plea agreement.
Ahmad contends that the waiver does not bar his appeal for several reasons. We disagree.
Because Ahmad’s appellate waiver will not work a miscarriage of justice, we will enforce
the waiver and will affirm the judgment of the District Court.
I.
In June of 2007, Ahmad agreed to waive his right to be indicted by a grand jury
and to plead guilty to a two-count information, charging him with violating 18 U.S.C. §
371, and 26 U.S.C. § 7206(1). The criminal charges stemmed from a scheme in which
Ahmad, who owned and operated several markets in Philadelphia with his relatives, paid
certain employees cash under the table and “intentionally failed to truthfully collect,
account for, and pay over payroll taxes.” Although the Guilty Plea Agreement contained
several stipulations relative to sentencing, there was no agreement between the parties
regarding Ahmad’s role in the offense. Indeed, the Guilty Plea Agreement specifically
stated that Ahmad “understands that the government may seek an offense-level increase,
pursuant to Guideline Section 3B1.1(a), because the defendant acted as an organizer,
leader, manager, and/or supervisor of the criminal activity charged in the information.”
In addition, the Agreement contained a broad appellate waiver which waived all of
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Ahmad’s rights to appeal or collaterally attack his conviction, sentence, or any other
matter relating to his prosecution. The waiver was subject to a few narrow exceptions.
Ahmad could appeal if the government appealed, or if at sentencing the District Court
imposed a sentence that exceeded the statutory maximum, erroneously departed upward
pursuant to the sentencing guidelines, or imposed in the exercise of the Court’s discretion
under United States v. Booker, 125 S. Ct. 738 (2005), an unreasonable sentence above the
final sentencing guideline range determined by the District Court. In addition to the
Guilty Plea Agreement, Ahmad executed an Acknowledgment of Rights that listed the
rights he possessed and that he would be giving up by pleading guilty, including his right
to file an appeal.
Ahmad was born on the West Bank and emigrated to the United States in 1978,
becoming a naturalized citizen thereafter. At the start of the change of plea hearing, the
District Court inquired about Ahmad’s ability to read and understand the English
language. After a probing colloquy regarding his proficiency with the English language,
the District Court determined that it was satisfied that Mr. Ahmad was able to read, speak,
and understand the English language.
After waiving his right to be indicted by a grand jury, the District Court asked the
prosecutor to review the terms of the Guilty Plea Agreement. The prosecutor’s recitation
included the fact that Ahmad had waived his appellate rights. In response to inquiries
from the Court, Ahmad affirmed that his counsel had read the Guilty Plea Agreement to
him, that he understood it, and “that’s why I signed it.” The Court proceeded to ask
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Ahmad if he understood specific rights, including the fact that if he went to trial and was
found guilty, that he would be able to appeal the verdict and that he could have an
attorney represent him if he could not afford an attorney. Ahmad replied: “Yes, your
honor.” The Court continued, and asked if Ahmad understood “that by pleading guilty,
you are giving up the right to appeal from any conviction at the trial and that the only
appeal from the guilty plea would be if I impose an illegal sentence . . .?” Ahmad again
responded: “Yes, your honor.” Ahmad further acknowledged that he was greatly limiting
his right to appeal and to any later collateral attack by pleading guilty. After the Court
finished reviewing Ahmad’s rights, it asked if Ahmad still wanted to enter a plea of
guilty. He answered in the affirmative and pleaded guilty to the charges in the
information.
The Court directed the preparation of a presentence investigation report (PSR).
The PSR provided for a four-level upward adjustment under U.S.S.G. § 3B1.1 of
Ahmad’s offense level to account for his leadership role in the offense. Despite Ahmad’s
objection, the District Court concluded that the enhancement was warranted. With the
four-level enhancement, Ahmad’s total offense level was 23. Application of this offense
level and Ahmad’s criminal history category of I yielded a guideline range of 46 to 57
months. Although the prosecutor asked for a sentence at the top parameter of the
guideline range, the Court imposed a sentence of 48 months of imprisonment. After
announcing its sentence, the District Court advised Ahmad of his “right to appeal the
sentence of this Court.” Because the sentence of 48 months exceeded the maximum
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sentence of three years for the § 7206 offense, the District Court amended the judgment,
imposing a sentence of 48 months of imprisonment on the § 371 conspiracy and 36
months of imprisonment on the § 7206 offense, to be served concurrently.
Ahmad filed a timely appeal.1 He asserts that the District Court erred by imposing
under U.S.S.G. § 3B1.1 a four-level leadership role enhancement. In Ahmad’s view, the
appellate waiver does not preclude him from challenging this enhancement.
II.
In United States v. Khattak, 273 F.3d 563, 558 (3d Cir. 2001), we held that
“waivers of appeals, if entered into knowingly and voluntarily, are valid unless they work
a miscarriage of justice.” Because the government has invoked the appellate waiver set
forth in the Guilty Plea Agreement, we must consider: (1) whether the appeal waiver was
knowing and voluntary; (2) whether one of the specific exceptions in the appeal waiver
precludes enforcement of the waiver here; and (3) whether enforcing the waiver would
work a miscarriage of justice. United States v. Goodson, 544 F.3d 529, 536 (3d Cir.
2008). Ahmad asserts that the appellate waiver is unenforceable for several reasons.
A.
Initially, Ahmad contends that the appeal waiver is invalid because the District
Court failed to ensure that he understood the terms of the written waiver in light of his
limited ability to read and write the English language. We are not persuaded that
1
The District Court had jurisdiction under 18 U.S.C. § 3231. We exercise
appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
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Ahmad’s limitations with the English language precluded him from understanding the
terms of the Guilty Plea Agreement or the significance of the change of plea hearing.
Indeed, the District Court was cognizant that a language barrier might be at play and took
the necessary time to verify that Ahmad was capable of understanding the charges against
him, the constitutional rights he possessed if he went to trial, the rights that Ahmad was
waiving by pleading guilty, and the maximum penalties Ahmad faced.
Ahmad further argues that the waiver is invalid because the District Court failed to
ensure during the colloquy that he understood the terms of the appellate waiver. Because
Ahmad did not object to the adequacy of the Rule 11 colloquy, we review for plain error
whether any deficiency in the colloquy warrants setting aside the waiver. Goodson, 544
F.3d at 539 (citing Vonn v. United States, 535 U.S. 55, 59 (2002)). We conclude that the
District Court failed to comply with the mandate of Federal Rule of Criminal Procedure
11(b)(1)(N) as it did not personally inform Ahmad of and determine that he understood
the terms of the provision waiving the rights to appeal and to collaterally attack his
sentence. As we explained in Goodson, such failure constitutes error and the error is
obvious. 544 F.3d at 540.
This, however, is not a sufficient basis for setting aside the appellate waiver. To
succeed on plain error review, Ahmad must also demonstrate that “the deficient colloquy
affected his substantial rights by precluding him from knowing of and understanding the
significance of the binding appellate waiver in the plea agreement.” Id. The record
before us reveals that, during the Rule 11 colloquy, Ahmad confirmed that his counsel
6
had read him the Guilty Plea Agreement “word for word,”’ that he understood the
Agreement, which included the appellate waiver, and that he signed it for that reason. He
also signed the Acknowledgment of Rights, which reiterated that he had a right to file an
appeal and that by pleading guilty he waived that right as set forth in the Guilty Plea
Agreement. Both the Guilty Plea Agreement and the Acknowledgment of Rights were
witnessed by his counsel. Despite any deficiency in the colloquy, the Court nonetheless
confirmed that Ahmad was aware of the fact that he had a right to appeal, that he could
have an attorney represent him on appeal, and that by pleading guilty he was giving up his
right to appeal unless the District Court imposed an illegal sentence. Immediately before
Ahmad pleaded guilty to the charges in the information, and in response to a question
from the Court, Ahmad’s counsel expressed her belief that Ahmad was competent to enter
the plea. She expressed her belief that he was doing so voluntarily and with full
understanding of his right to contest the charges against him. In light of these
circumstances, we conclude that Ahmad has failed to demonstrate that his substantial
rights were affected by the inadequate Rule 11 colloquy. Accordingly, we conclude that
Ahmad’s appeal waiver is enforceable.
Ahmad asserts that even if the appellate waiver is valid, it was rendered
unenforceable by the District Court’s advice at sentencing that he could file an appeal.2
As we pointed out in United States v. Corso, 549 F.3d 921, 931 n.2 (3d Cir. 2008), a
2
We exercise plenary review in deciding the validity of an appellate waiver.
United States v. Jackson, 523 F.3d 234, 237 (3d Cir. 2008).
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District Court’s post-sentencing remarks pursuant to Federal Rule of Criminal Procedure
32(j)(1) will not render an otherwise enforceable appellate waiver ineffective. Id. (citing
United States v. Liriano-Blanco, 510 F.3d 168, 173 (2d Cir. 2007)).
B.
Ahmad also asserts that his challenge to the District Court’s enhancement for his
leadership role is excepted from the appellate waiver. We conclude otherwise. Ahmad
notes that his sentence of 48 months exceeded the three year statutory maximum for
violating 26 U.S.C. § 7206(1). Although Ahmad is correct that this error, which was
subsequently corrected by the District Court, allowed him to file a direct appeal, the
explicit language of the waiver provides that his “appeal . . . may raise only” the claim
that his sentence exceeded the statutory maximum for that count. Thus, this exception
does not provide a basis for us to review the District Court’s assessment of the leadership
enhancement.
The other exceptions to the appellate waiver allow an appeal in the event the
District Court’s sentence is an upward departure from the guidelines range, or a variance
above the guidelines range under Booker. Inasmuch as the District Court imposed a
sentence within the guidelines range, neither exception affords Ahmad an avenue to
appeal the enhancement based on his leadership role. Although Ahmad equates the
enhancement with an upward departure under the sentencing guidelines, we rejected a
similar argument in United States v. Shedrick, 493 F.3d 292, 298 n.5 (3d Cir. 2007).
C.
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Ahmad contends enforcement of his appellate waiver will work a miscarriage of
justice. Inasmuch as we have concluded that the Rule 11 error did not affect Ahmad’s
substantial rights, we reject the contention that enforcement of the waiver will work a
miscarriage of justice. Goodson, 544 F.3d at 541 n.11.
9