United States v. Owhib

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 14, 2009
No. 08-10725
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
IBRAHIM K OWHIB
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:08-CR-33-2
Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Ibrahim K. Owhib appeals his 84-month sentence following his guilty plea
conviction for aiding and abetting the use of fire to commit wire fraud. He
alleges several violations by the district court of Federal Rule of Criminal
Procedure 11.
Where, as here, a defendant does not object to Rule 11 errors in the district
court, this court reviews for plain error, and the “reviewing court may consult
the whole record when considering the effect of any error on substantial rights.”
*
Pursuant to Fifth Circuit Rule 47.5, the court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth in Fifth
Circuit Rule 47.5.4.
No. 08-10725
United States v. Vonn, 535 U.S. 55, 59 (2002). To show plain error, the appellant
must show a forfeited error that is clear or obvious and that affects his
substantial rights. Puckett v. United States,129 S. Ct. 1423, 1429 (2009). If the
appellant makes such a showing, this court has the discretion to correct the error
but only if it seriously affects the fairness, integrity, or public reputation of
judicial proceedings. Id. This court will find that a “substantial right” under
Rule 11 has been violated only if the defendant shows “a reasonable probability
that, but for the error, he would not have entered the plea. ” United States v.
Dominguez Benitez, 542 U.S. 74, 83 (2004).
Owhib alleges that the district court violated Rule 11(b)(3)1 because the
factual basis failed to establish that he intended to assist his co-defendant,
Motaz Wasif Amreya, in committing fraud. In a closely related argument,
Owhib argues that the district court violated Rule 11(b)(1)(G)2 by failing to
inform Owhib that the Government was required to prove that he intended to
commit fraud. Owhib is correct that, in order to prove that he aided and abetted
Amreya, the Government was required to show, inter alia, that Owhib shared
Amreya’s criminal intent. See United States v. Jaramillo, 42 F.3d 920, 923 (5th
Cir. 1995).
The undisputed facts establish that Owhib assisted Amreya in committing
arson, and that Amreya filed a fraudulent insurance claim on the burned
building hours later. While Owhib claims that his actions were motivated only
by Amreya’s alleged threats, Owhib’s trial counsel and the Government both
assured the district court that those alleged threats had been fully discussed and
did not undermine the factual basis for Owhib’s conviction.
1
Rule 11(b)(3) states that, before entering judgment on a guilty plea, a district court
“must determine that there is a factual basis for the plea.”
2
Rule 11(b)(1)(G) requires that a district court inform a defendant of “the nature of
each charge to which the defendant is pleading.”
2
No. 08-10725
Even assuming that the district court clearly or obviously erred, either by
violating Rule 11(b)(1)(G) or (3), or both, Owhib fails to show that his substantial
rights were affected. Owhib’s intentions were illuminated by the testimony of
Agent Sharon Whitaker, who testified at sentencing that Owhib admitted to her
his intent to commit the fraud at issue. Owhib fails to establish, based on the
entire record, a reasonable probability that he would not have entered the plea
but for the alleged errors of the district court. See Dominguez Benitez, 542 U.S.
at 83.
Owhib argues that he is entitled to a sentence reduction based upon
equitable estoppel because he relied upon misrepresentations by the
Government, the district court, and his trial counsel that he would receive an
acceptance of responsibility reduction in exchange for his guilty plea. We need
not decide whether a claim for equitable estoppel may sound against a district
court or defense counsel under these circumstances because Owhib cites no
mention of an acceptance of responsibility adjustment by anyone prior to, or
during, his plea upon which he reasonably could have relied. Accordingly, his
claim is without merit.3 See United States v. Bloom, 112 F.3d 200, 205 (5th Cir.
1997).
Owhib argues that his trial counsel provided ineffective assistance by
failing to tell him that he could not qualify for an acceptance of responsibility
reduction. As Owhib failed to raise this issue before the district court, we
decline to review it. See United States v. Aguilar, 503 F.3d 431, 436 (5th Cir.
2007); see also Massaro v. United States, 538 U.S. 500, 502–06 (2003) (noting
that a § 2255 motion is the preferred method for raising a claim of ineffective
assistance of counsel).
AFFIRMED.
3
Owhib’s claims that the same alleged misrepresentations by the district court violated
various provisions of Rule 11 likewise fail for lack of proof in the record.
3