United States v. Yousef Qattoum

United States Court of Appeals
For the Eighth Circuit
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No. 15-2176
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Yousef Qattoum
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
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Submitted: March 18, 2016
Filed: June 23, 2016
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Before WOLLMAN, ARNOLD, and SHEPHERD, Circuit Judges.
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WOLLMAN, Circuit Judge.
Yousef Qattoum pleaded guilty pursuant to a written plea agreement to
conspiracy to distribute and possess with intent to distribute controlled substances
and analogues of controlled substances, in violation of 21 U.S.C. § 846, and
conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h).
Qattoum now appeals from the district court’s1 denial of his motion to withdraw his
guilty plea. We affirm.
I.
Qattoum owned a business in Little Rock, Arkansas, where he sold synthetic
cannabinoids, which he referred to as K2. In July 2012, law enforcement officers
conducted a controlled buy of K2, which was later confirmed to contain a Schedule
I controlled substance. On July 25, officers executed a search warrant at the business
and recovered K2 that contained controlled substances and controlled-substance
analogues, including the analogue XLR-11. Qattoum was arrested and released
pending trial in state court.
After his release, Qattoum purchased a different business, where he resumed
selling K2. On October 22 and 23, 2012, law enforcement conducted two controlled
buys of K2 from Qattoum’s new location, which, as later lab analysis confirmed,
contained XLR-11. Qattoum sold that business in December 2012 and thereafter used
a different storefront to continue selling synthetic cannabinoids. A June 26, 2013,
search of that business revealed controlled substances and controlled-substance
analogues, including XLR-11.
Qattoum purchased synthetic cannabinoids from suppliers that included iLCM
and KC Incense, paying for them with money orders. When Qattoum sold his second
location to Aziz Farishta in December 2012, he told Farishta who his suppliers were,
how to conduct financial transactions in a manner to avoid detection, how to price the
synthetic cannabinoids, and how to hide the drugs.
1
The Honorable Brian S. Miller, Chief Judge, United States District Court for
the Eastern District of Arkansas.
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Qattoum was arrested on June 26, 2013, and later charged in a superseding
federal indictment with the two conspiracy counts set forth above, as well as with two
counts of distribution of a controlled-substance analogue that were based on the
October 2012 controlled purchases. Qattoum was released from federal custody on
bond. Just before trial, Qattoum obtained a passport and fled to Mexico, where he
was apprehended after purchasing a one-way ticket to Jordan.
Shortly after Qattoum was returned to federal custody, he reached a plea
agreement with the federal government. Qattoum agreed to plead guilty to the
conspiracy charges, with the government agreeing to dismiss the two distribution
charges. At the change-of-plea hearing on October 2, 2014, the district court2
reviewed the elements of the two conspiracy offenses with Qattoum, as well as the
purpose, consequences, and terms of the plea agreement. The government recited the
facts as set forth above, noting that it would have proved those facts had the case
proceeded to trial. Qattoum stated that he understood those facts and that they were
true, whereupon the district court accepted the plea.
Based on the drug quantity and the sentencing enhancements that Qattoum and
the government had agreed upon, the presentence investigation report (PSR)
determined that Qattoum’s advisory sentencing range under the U.S. Sentencing
Guidelines was 121 to 151 months’ imprisonment. While Qattoum awaited
sentencing, a jury acquitted Farishta of charges related to Qattoum’s. Soon thereafter,
Qattoum discharged his attorney, retained new counsel, and moved to withdraw his
guilty plea, arguing, inter alia, that there was an inadequate factual basis for his guilty
plea on the conspiracy-to-distribute count. The district court denied the motion and
sentenced Qattoum to 121 months’ imprisonment. On appeal, Qattoum challenges
the adequacy of the factual basis for his guilty plea on both counts.
2
The Honorable Kristine G. Baker, United States District Judge for the Eastern
District of Arkansas.
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II.
Qattoum first argues that the district court should have granted his motion to
withdraw his guilty plea on the conspiracy-to-distribute count. “We review the denial
of a motion to withdraw a guilty plea for abuse of discretion.” United States v. Van
Doren, 800 F.3d 998, 1001 (8th Cir. 2015) (citing United States v. Gamble, 327 F.3d
662, 663 (8th Cir. 2003)). Federal Rule of Criminal Procedure 11(d)(2)(B) provides
that “[a] defendant may withdraw a plea of guilty . . . after the court accepts the plea,
but before it imposes sentence if . . . the defendant can show a fair and just reason for
requesting the withdrawal.” “A defendant may establish a fair and just reason for
withdrawing his guilty plea by demonstrating that his plea is not supported by an
adequate factual basis.” Van Doren, 800 F.3d at 1001; see also Fed. R. Crim. P.
11(b)(3). “A guilty plea is supported by an adequate factual basis when the record
contains ‘sufficient evidence at the time of the plea upon which a court may
reasonably determine that the defendant likely committed the offense.’” United
States v. Cheney, 571 F.3d 764, 769 (8th Cir. 2009) (quoting Gamble, 327 F.3d at
664). When determining whether a sufficient factual basis for a guilty plea exists, we
may consider the plea agreement, the prosecutor’s summary of the facts, the colloquy
between the defendant and the district court during the change-of-plea hearing, as
well as the facts set forth in the PSR. United States v. Scharber, 772 F.3d 1147, 1150
(8th Cir. 2014); see also United States v. Brown, 331 F.3d 591, 595 (8th Cir. 2003)
(citing 24 Moore’s Federal Practice § 611.08(2)(b) (3d ed. 1998)).
Qattoum argues that no factual basis exists to show that he knew the product
he was selling was illegal, that he knew it was a controlled substance, or that he knew
the chemical composition of the product (i.e., that he knew the K2 he was selling was
XLR-11 or some other controlled substance or controlled-substance analogue).
Qattoum was charged with conspiracy to distribute and possess with intent to
distribute controlled substances and analogues of controlled substances. 21 U.S.C.
§ 846. The crime of distribution and possession with intent to distribute, id. § 841,
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in turn, requires proof of knowledge—that is, “that the defendant knew he was
dealing with ‘a controlled substance.’” McFadden v. United States, 135 S. Ct. 2298,
2302 (2015). To prove knowledge, the government need show only “a general
criminal intent, i.e., awareness that the substance possessed was a controlled
substance of some kind.” United States v. Ramos, 814 F.3d 910, 915 (8th Cir. 2016)
(quoting United States v. Noibi, 780 F.2d 1419, 1421 (8th Cir. 1986)). “Since the
factfinder can seldom know with certainty what someone actually knows, knowledge
must necessarily be shown circumstantially.” Id. (quoting Noibi, 780 F.2d at 1421).
Qattoum contends that circumstantial evidence is insufficient in the context of a
guilty plea, but we have previously upheld guilty pleas based on such evidence. See,
e.g., Cheney, 571 F.3d at 769 (concluding that circumstantial evidence that a
defendant possessed a firearm “in furtherance of” a drug conspiracy provided a
sufficient factual basis to uphold a guilty plea).
The record contains sufficient circumstantial evidence of Qattoum’s
knowledge. During the change-of-plea hearing, Qattoum admitted to the facts set
forth by the government, including that he was arrested in July 2012 for selling
synthetic drugs containing the controlled substance XLR-11, and short time later he
bought a new store and resumed selling synthetic drugs containing the XLR-11; that
he educated Farishta about how to conduct financial transactions related to synthetic
cannabinoids “in a manner to avoid detection”; that he used money orders to pay his
suppliers rather than business checks or a business credit account; and that he
attempted to flee the country to avoid prosecution. Moreover, the PSR states that
Qattoum gave away marijuana for free to a confidential source who had purchased
a large amount of K2 and that, in an intercepted phone call, one of Qattoum’s co-
conspirators believed he was being watched by law enforcement and warned
Qattoum. Accordingly, we conclude that the district court did not abuse its discretion
in denying Qattoum’s motion to withdraw his guilty plea.
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Qattoum also challenges the factual basis for his guilty plea on the money-
laundering-conspiracy count, arguing that there were no facts alleged at the change-
of-plea hearing that he had reached an agreement with another person to launder
money. Because he did not raise this argument in his motion to withdraw his guilty
plea, we review only for plain error. United States v. Frook, 616 F.3d 773, 775, 776
(8th Cir. 2010) (standard of review). A conspiracy requires “an agreement among
two or more people to achieve an illegal purpose.” United States v. Hudspeth, 525
F.3d 667, 676-77 (8th Cir. 2008). Evidence of a tacit understanding is sufficient to
show the existence of an agreement. Id. at 678. The government stated at the
change-of-plea hearing that “Federal Express routinely delivered the synthetic
cannabinoids from iLCM in New York and other suppliers, and Qattoum used money
orders to pay for the substances.” That statement was sufficient to show that Qattoum
and his suppliers had reached an agreement for Qattoum to buy synthetic
cannabinoids from the suppliers using money orders. Given the nature of the product
and the fact that Qattoum and his suppliers structured the transactions using money
orders, which do not create records of the transactions, the district court could
reasonably conclude that there was at least a “tacit understanding” between Qattoum
and his suppliers to launder money. See 18 U.S.C. § 1956(a)(1)(A)(i), (B)(i). The
district court thus did not commit plain error, if indeed any error at all.
III.
The judgment is affirmed.
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