United States v. Muhammad Anwar

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 17-1411
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Muhammad Anwar
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Northern District of Iowa - Waterloo
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Submitted: September 21, 2017
Filed: January 24, 2018
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Before SMITH, Chief Judge, WOLLMAN and GRUENDER, Circuit Judges.
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SMITH, Chief Judge.
A jury convicted Muhammad Anwar of : (1) conspiracy to distribute controlled
substances and controlled substance analogues, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(c), and 846, and (2) conspiracy to commit money laundering, in violation
of 18 U.S.C. § 1956(h). The district court1 sentenced Anwar to 240 months’
imprisonment on the first count and 60 months on the second count, to run
consecutively, followed by three years of supervised release. Anwar appeals the jury
verdict and his sentence. We affirm.
I. Background
“We recite the facts in the light most favorable to the jury’s verdict.” United
States v. Payne–Owens, 845 F.3d 868, 870 n.2 (8th Cir. 2017) (quoting United States
v. Stevens, 439 F.3d 983, 986 (8th Cir. 2006)). Anwar agreed with Ahmad Saeed and
another person in 2012 to distribute synthetic cannabinoid products. Anwar and Saeed
knew these products, which contained both controlled substances and controlled
substance analogues, would be sold for human consumption. Anwar also agreed to
distribute synthetic cathinones (“bath salts”), which contained controlled substance
analogues intended for human consumption. The agreement ended about March of
2014. Anwar and Saeed’s main source for the controlled substances was Mohammed
Saleem. Saeed began dealing with Saleem as early as 2009, when Saleem supplied
Saeed with synthetic cannabinoid products. Saeed received and distributed thousands
of bags of synthetic cannabinoid products per week. Anwar became Saeed’s partner
in May 2012, although Saeed remained the sole person to deal with Saleem at the
beginning of the partnership. Anwar and Saeed also obtained synthetic cannabinoid
products from Shakeel Khan.
Beginning in late 2013, Anwar dealt directly with the wholesalers. On at least
five occasions, he purchased approximately $8,000 to $9,000 of synthetic cannabinoid
products at a time, which he received via FedEx. Anwar supplied the synthetic drug
products primarily to convenience stores in the Waterloo, Cedar Rapids, Cambridge,
and Des Moines, Iowa areas. At its peak, Saleem estimated that the Anwar–Saeed
1
The Honorable John A. Jarvey, Chief Judge, United States District Court for
the Southern District of Iowa.
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enterprise sold between $600,000 to $800,000 of products to consumers per month.
Store owners paid Anwar and Saeed by cash, check, or money order. At Anwar and
Saeed’s request, persons paying via check or money order—up to $1,000
each—always left the “pay to” line blank, and they often denoted a “loan” in the
“memo” line. The checks and money orders then could be used much in the same way
as cash.
Anwar’s activities coincided with a national rise in synthetic cannabinoid abuse.
In response, the Drug Enforcement Administration (DEA) conducted frequent drug
raids targeting both manufacturers and sellers. Not surprisingly, several store owners
returned products to Anwar and Saeed. Anwar addressed at least one store owner’s
concern with assurances that the products were legal; he also gave the store owner a
lab report purporting to prove that the products were legal.2 However, Anwar advised
another store owner to sell only to people he knew and to hide the products behind the
counter from the general public.
In August 2012, the Central Iowa Drug Task Force (CIDTF) began a series of
investigations into synthetic cannabinoid-containing products. CIDTF conducted
controlled buys from a Cambridge convenience store. Laboratory analyses revealed
the presence of XLR-11 and UR-144, both synthetic cannabinoids, in the incense
packages. CIDTF then received and executed a search warrant, which led to the
seizure of numerous packages of synthetic cannabinoid products from the store. Some
of the packages contained labels that read “100% cannabinoid free/DEA compliant.”
The store manager identified Anwar as the supplier of the products. The manager also
informed law enforcement officers that Anwar had also offered him a “bath salt”
product called “Pump It.” A confidential informant (CI) also purchased Pump It at a
2
The laboratory reports were not comprehensive. The reports only identified
substances that were not in the products tested and did not state what substances were
actually found in the test product.
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different convenience store in October 2012; this store also received the bath salt from
Anwar or Saeed.
CIDTF conducted three controlled buys in June 2013 at a convenience store and
an adjoining mobile wireless store in Waterloo that Anwar supplied. On two
occasions, the CI purchased synthetic cannabinoid products at both stores, where the
products were stored behind the counter and out of the public view. Laboratory
analyses showed the presence of XLR-11. On the third occasion, the CI purchased
bath salts packaged as “White Angel” and “Blue.” Either Anwar or Saeed supplied
these controlled substances to the stores. Between December 2012 and June 2013,
they delivered synthetic cannabinoid products to the mobile wireless store three times,
each time supplying at least 500 packages of the products.
Law enforcement then executed search warrants at the Waterloo mobile
wireless store, convenience store, and two residences. The search led to seizures of
nearly 2,000 grams of synthetic cannabinoid products and almost 30 grams of bath
salts from the locations. Following the raid, the two store managers temporarily
ceased drug operations but soon resumed sales. Anwar never terminated his drug
wholesale enterprise. CIDTF again conducted control buys at the stores in December
2013 and February 2014. Officers executed a search warrant in March 2014, where
they seized nearly 90 grams of bath salts. The prosecution of this drug operation
resulted in convictions and prison sentences for Earl and Mary Ramos. United States
v. Ramos, 814 F.3d 910 (8th Cir. 2016). The Ramoses purchased the synthetic drugs
from Saeed and Anwar. Earl Ramos paid his suppliers with money orders, each up to
$1,000. Ramos’s internal records showed when and to whom the money orders were
paid, but the money orders themselves never identified Anwar as the payee.
In addition to supplying to the convenience stores, Anwar also opened a liquor
store in a Des Moines suburb. From there, he supplied synthetic cannabinoid products
to liquor and convenience stores in the Des Moines area. Anwar hired Erika Romar
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to work at the liquor store. He instructed Romar that each week the liquor store would
receive two large FedEx boxes. He directed her to place the shipment in the back
room, shut the door, and call him immediately. He later told Romar that the boxes
contained synthetic cannabinoid products. Eventually, Anwar assigned Romar the task
of dividing the products into smaller parcels for the customer stores. Anwar then
delivered these parcels to his customers.
After Romar had worked for several months at the liquor store, Anwar
transferred her to a Des Moines mobile wireless store, where she joined her then-
boyfriend, Randy Tyrell.3 Anwar then had the boxes of synthetic cannabinoids
shipped to the wireless store instead of the liquor store, and Romar performed the
same duty as she had previously—receiving the boxes and parsing out the products
to amounts the customers specified. Some of the customers came to the store to pick
up their synthetic cannabinoid orders and paid Romar. Anwar, accompanied by Tyrell,
also delivered to nine or ten other businesses in the surrounding area. At one point,
Anwar traveled to Pakistan; during his time out of the country, Romar called Anwar
to get instructions regarding product deliveries. Anwar also arranged for several
individuals—his wife, his daughters, Romar and Tyrell, and two others—to help
repackage old products that were not selling well into new packages under brand
names that sold well.
In March 2014, law enforcement officers executed a search warrant of the
mobile wireless store. They seized packages that later tested positive for the synthetic
cannabinoids XLR-11, UR-144, PB-22, and AB-FUBINACA. The day after the
search, Anwar told one of his customers that he had 500 “pieces” with illegal
chemicals taken from the wireless store.
3
Erika Romar and Randy Tyrell married in 2014.
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In September 2015, a grand jury returned a superseding indictment, charging
Anwar and Saeed with conspiracy to distribute controlled substances and controlled
substance analogues and conspiracy to launder money. Saeed pleaded guilty to both
counts. Saeed denied ever selling bath salts. Anwar did not plead guilty, and his case
proceeded to trial. Prior to the trial, Anwar gave a proffer interview with the
government. He admitted to the interviewing Internal Revenue Service (IRS) agent4
that he had always harbored suspicions about the legality of the products that he sold,
in part, because these products cost much more than other similarly marketed incense
products. Anwar also admitted that he knew that people purchased these products to
smoke or to ingest. Further, he agreed with the IRS agent that he remained willfully
blind to the nature of the substances that he sold. On the eve of Anwar’s trial, Saeed’s
attorney contacted the government by e-mail, informing the prosecution that Saeed
now admitted to selling bath salts, but he stopped selling the products in
approximately March 2012. The government did not inform Anwar of Saeed’s
admission.
At trial, Anwar moved for a mistrial, alleging that a government witness made
an improper comment. He also orally moved for a judgment of acquittal. The district
court denied both motions. The jury found Anwar guilty on both conspiracy counts.
Anwar moved for a new trial, which the district court denied. At sentencing, Anwar
objected to the district court’s calculation of his base offense level and to the court
applying two sentencing enhancements. The court overruled Anwar’s objections.
Anwar’s total offense level of 43 and criminal history category of II yielded a
Guidelines recommendation of life imprisonment. However, because the statutory
maximum for each of Anwar’s convicted offenses was 20 years’ imprisonment, see
21 U.S.C. § 841(b)(1)(C); 18 U.S.C. § 1956(h), his Guidelines range was 480 months’
4
The IRS was involved in the criminal investigation because “in many narcotic
investigations . . . those activities have a strong financial component to them.” Trial
Transcript, Vol. III, at 472, United States v. Anwar, No. 6:15-cr-02005-JAJ-1 (N.D.
Iowa Oct. 28, 2015), ECF No. 128.
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imprisonment, see U.S.S.G. § 5G1.2(b). The district court applied a downward
variance to the Guidelines recommendation and sentenced Anwar to 300 months’
imprisonment—240 months’ imprisonment on the drug conspiracy conviction and 60
months on the conspiracy conviction, to run consecutively.
II. Discussion
Anwar raises four issues on appeal. First, he argues that his conviction is not
supported by sufficient evidence. Second, Anwar contends that the district court erred
in denying his motion for a new trial based on an improper government witness
statement. Third, he alleges that the district court procedurally erred in calculating his
total offense level under the Sentencing Guidelines. Last, Anwar asserts that his
sentence was substantively unreasonable.
A. Sufficiency of the Evidence
We first address Anwar’s argument that the government failed to prove both
charges. “We review the sufficiency of the evidence de novo, viewing evidence in the
light most favorable to the government, resolving conflicts in the government’s favor,
and accepting all reasonable inferences that support the verdict.” United States v.
Guenther, 470 F.3d 745, 747 (8th Cir. 2006) (quoting United States v. Washington,
318 F.3d 845, 852 (8th Cir. 2003)). “[I]t is axiomatic that [we do] not pass upon the
credibility of witnesses or the weight to be given their testimony . . . .” United States
v. Spight, 817 F.3d 1099, 1102 (8th Cir. 2016) (quoting United States v. Goodale, 738
F.3d 917, 923 (8th Cir. 2013)). Finally, “[t]he verdict will be upheld if there is any
interpretation of the evidence that could lead a reasonable jury to convict.” United
States v. Brandon, 521 F.3d 1019, 1025 (8th Cir. 2008) (citation omitted).
1. Conspiracy To Distribute a Controlled Substance or Controlled Substance
Analogue
To convict under 21 U.S.C. § 841(a), “the government had to prove beyond
reasonable doubt (1) knowledge; (2) possession; and (3) intent to distribute the
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controlled substance.” United States v. Noibi, 780 F.2d 1419, 1421 (8th Cir. 1986)
(citing 21 U.S.C. § 841(a)). Anwar disputes only the knowledge element of the crime.
He claims that the government did not prove that he knowingly sold controlled
substances of any kind. He argues that he could not have known the products were
illegal because these chemicals were obscure and their illegality was uncertain
throughout the time he sold them.
“[A] defendant does ‘not need to know the exact nature of the substance in [his]
possession, only that it was a controlled substance of some kind.’” United States v.
Morales, 813 F.3d 1058, 1065 (8th Cir. 2016) (quoting United States v. Martin, 274
F.3d 1208, 1210 (8th Cir. 2001)). “[T]he knowledge element . . . can be proved by
demonstrating either actual knowledge or deliberate ignorance.” United States v.
Honea, 660 F.3d 318, 328 (8th Cir. 2011) (alteration in original) (quoting United
States v. Hristov, 466 F.3d 949, 952 (11th Cir. 2006)). “Deliberate ignorance is
established if the defendant was ‘presented with facts that put him on notice that
criminal activity is probably afoot’ but ‘failed to investigate those facts, thereby
deliberately declining to verify or discover the criminal activity.’” United States v.
Sdoulam, 398 F.3d 981, 993 (8th Cir. 2005) (quoting United States v. Hildebrand, 152
F.3d 756, 764 (8th Cir. 1998), abrogated on other grounds by Whitfield v. United
States, 543 U.S. 209 (2005)). “[A] defendant’s concealment of his activities, evasive
behavior with respect to law enforcement, knowledge that a particular substance
produces a ‘high’ similar to that produced by controlled substances, and knowledge
that a particular substance is subject to seizure” are all examples of circumstantial
evidence for the knowledge element. McFadden v. United States, 135 S. Ct. 2298,
2304 n.1 (2015).
Here, the government showed that Anwar chose to remain deliberately
indifferent to knowledge of the illegality of the products that he trafficked. He
admitted knowing that people ingested or smoked the products despite their being
marketed as an incense. He instructed store owners to conceal these products from the
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general public and the police. Anwar knew that the items had been seized by law
enforcement. He knew that the products were selling at prices as much as 10 to 20
times higher than traditional incense products. He also admitted to remaining ignorant
of what was in the products because they were selling. Taken together, Anwar’s
admissions show that he was on notice that criminal activity was afoot, but he
deliberately declined to verify or discover the criminal activity. See Sdoulam, 398 F.3d
at 993. Because Anwar’s deliberate ignorance satisfies the knowledge element of the
crime, the government met its burden of proof with respect to knowledge.
2. Conspiracy To Launder Money
Anwar claims that the transactions he entered with Earl Ramos were recorded
business transactions and not money laundering. He also questions Ramos’s
credibility, implying that Ramos testified on the government’s behalf in exchange for
a lesser prison sentence.
“[T]he three essential elements of conspiracy to launder money are: (1) an
agreement . . . to launder money; (2) the defendant’s voluntary joinder of the
agreement; and (3) the defendant’s knowing joinder of the agreement.” United States
v. Jarrett, 684 F.3d 800, 802 (8th Cir. 2012) (ellipsis in original) (quotations omitted).
Money laundering consists of four elements:
(1) defendant conducted, or attempted to conduct a financial transaction
which in any way or degree affected interstate commerce or foreign
commerce; (2) the financial transaction involved proceeds of illegal
activity; (3) defendant knew the property represented proceeds of some
form of unlawful activity; and (4) defendant conducted or attempted to
conduct the financial transaction knowing the transaction was “designed
in whole or in part [] to conceal or disguise the nature, the location, the
source, the ownership or the control of the proceeds of specified
unlawful activity.”
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United States v. Dvorak, 617 F.3d 1017, 1021–22 (8th Cir. 2010) (alteration in
original) (quoting United States v. Phythian, 529 F.3d 807, 813 (8th Cir. 2008)).
As an appellate court, we do not “judge credibility of witnesses.” United States
v. Tillman, 765 F.3d 831, 834 (8th Cir. 2014) (quoting United States v. Conway, 754
F.3d 580, 587 (8th Cir. 2014)); see also United States v. Rodriguez–Mendez, 336 F.3d
692, 694 (8th Cir. 2003) (“The jury was capable of evaluating the credibility of
testimony given in light of the agreements each witness received from the
government. The appellate court is not required to re-weigh the evidence or judge
credibility of witnesses.”). At trial, Earl Ramos testified for the government that he
would pay Anwar for the synthetic cannabinoid-laced products with money orders,
each up to $1,000. Anwar kept his name off the money orders themselves, but
Ramos’s internal records showed when and to whom the money orders were paid. The
internal records consisted only of cryptic notations on stubs in a check ledger. None
of Ramos’s records explicitly identify Anwar or any corporation with which he was
associated as being involved in the drug sale. Ramos’s testimony, however, gave a
reasonable jury the opportunity to understand the true nature of each transaction and
the identities of the participants in that transaction.
The government showed that Anwar and Ramos agreed that Ramos would pay
Anwar for the sale of the illegal synthetic cannabinoids through a mechanism where
the money was not traceable back to Anwar. On this record, the government met its
burden in proving Anwar’s conspiracy to launder money.
B. Motion for a New Trial
Anwar argues that the district court erred in denying his motion for a new trial
for two reasons: (1) the government violated Brady5 by withholding a co-conspirator’s
confession, and (2) the court erred in permitting a government witness to give
5
Brady v. Maryland, 373 U.S. 83 (1963).
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prejudicial testimony. We review a district court’s denial of a motion for a new trial
for abuse of discretion. United States v. Schropp, 829 F.3d 998, 1005 (8th Cir. 2016).
However, motions for a new trial “are disfavored and reviewed for a clear abuse of
discretion, a rigorous standard.” United States v. Rubashkin, 655 F.3d 849, 857 (8th
Cir. 2011) (citation omitted).
1. Brady Violation
Anwar’s Brady violation argument rests on Saeed’s admission to the
government, on the eve of Anwar’s trial, that he sold bath salts. He argues that
Saeed’s admission was potentially exculpatory, but the government withheld the
information. We disagree.
“The government must disclose evidence favorable to a defendant whether
requested or not.” United States v. Jones, 101 F.3d 1263, 1272 (8th Cir. 1996) (citing
Kyles v. Whitley, 514 U.S. 419, 433 (1995)). “The rule of Brady is limited to the
discovery, after trial, of information which had been known to the prosecution but
unknown to the defense.” United States v. Kime, 99 F.3d 870, 882 (8th Cir. 1996)
(citation omitted). A Brady violation has three components: “The evidence at issue
must be favorable to the accused, either because it is exculpatory, or because it is
impeaching; that evidence must have been suppressed by the State, either willfully or
inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263,
281–82 (1999).
To prove a Brady violation, “the defendant must show that the evidence was
favorable and material and that the government suppressed the evidence.” United
States v. Ellefsen, 655 F.3d 769, 778 (8th Cir. 2011) (emphasis added) (citation
omitted). “[E]vidence is ‘material’ only if there is a ‘reasonable probability’ that, had
it been disclosed, ‘the result of the proceeding would have been different.’” United
States v. Robinson, 809 F.3d 991, 996 (8th Cir. 2016) (quoting Strickler, 527 U.S. 263
at 280). Additionally, “[t]he government does not suppress evidence in violation of
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Brady by failing to disclose evidence to which the defendant had access through other
channels.” United States v. Zuazo, 243 F.3d 428, 431 (8th Cir. 2001) (citation
omitted). Likewise, “when the government does not disclose a potential source of
evidence but the evidence available from that source is cumulative of evidence already
available to the defendant, it has committed no Brady violation.” Id. (citation omitted).
Here, the withheld information was neither favorable nor material to Anwar’s
case. Saeed’s confession in no way exculpated Anwar because Saeed never claimed
to be the sole person distributing bath salts. Indeed, the evidence could reasonably
tend to inculpate Anwar, as it supports the existence of a conspiracy to distribute the
controlled substance. Moreover, the evidence was cumulative; Anwar acknowledged
in his opening brief that he already knew that Saeed was selling bath salts. Taken
together, the government did not withhold evidence that was favorable and material
to Anwar’s case. The district court did not abuse its discretion in denying Anwar’s
Brady motion for a new trial.
2. Prejudicial Witness Testimony
Anwar contends that a government witness gave impermissible trial testimony
that prejudiced his case; the witness stated that Anwar previously “had legal troubles
and he was prosecuted federally.” Trial Transcript, Vol. III, at 570.
Upon the defendant’s motion, “the [district] court may vacate any judgment and
grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33(a).
However, “Rule 33 motions are disfavored.” Rubashkin, 655 F.3d at 857 (citation
omitted). “Rule 33 is [an] unusual remedy that is reserved for ‘exceptional cases in
which the evidence preponderates heavily against the verdict.’” United States v.
Campos, 306 F.3d 577, 579 (8th Cir. 2002) (quoting 3 Charles Alan Wright, Federal
Practice and Procedure § 553, at 248 (2d ed. 1982)). The district court “must exercise
the Rule 33 authority ‘sparingly and with caution.’” Id. (quoting United States v.
Lincoln, 630 F.2d 1313, 1319 (8th Cir. 1980)). While “the district court is permitted
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to ‘weigh the evidence, disbelieve witnesses, and grant a new trial even where there
is substantial evidence to sustain the verdict,’” the “court may grant a new trial . . .
only if the evidence weighs so heavily against the verdict that a miscarriage of justice
may have occurred.” United States v. McClellon, 578 F.3d 846, 857 (8th Cir. 2009)
(quoting United States v. Starr, 533 F.3d 985, 999 (8th Cir. 2008)). However,
“[a]dmission of a prejudicial statement is normally cured by striking the testimony and
instructing the jury to disregard the remark.” United States v. Brandon, 521 F.3d 1019,
1026 (8th Cir. 2008) (citation omitted).
Here, the district court held a Rule 33 hearing and found that the government
had not acted in bad faith by eliciting improper testimony. The court further found that
the “improper testimony was brief, and while it implied prior criminal charges, it did
not imply a conviction.” United States v. Anwar, No. 6:15-cr-02005-JAJ, slip op. at
5 (N.D. Iowa Feb. 3, 2016), ECF No. 125. Moreover, the district court at the close of
the trial “reminded the jury to focus on the crimes Mr. Anwar was charged with, and
not on peripheral issues.” Id. Finally, the district court concluded that “there [was]
‘strong evidence in the record to support each of [Mr. Anwar’s] convictions.’” Id.
(second alteration in original) (quoting United States v. Maples, 754 F.2d 299, 301
(8th Cir. 1985)). The court noted:
The Government called witnesses from each step of Mr. Anwar’s
wholesale process: his suppliers, employees, and customers all testified
that they saw him buying, selling, and delivering synthetic drugs. Law
enforcement officers testified that they seized and lab-tested drugs from
Mr. Anwar’s store and Mr. Anwar’s customers. The Government offered
evidence that he knew the drugs were illegal, including pictures of their
unusual labeling, evidence of their disproportionate prices, and testimony
that Mr. Anwar was told about police raids on sellers. The jury also
heard about Mr. Anwar’s proffer agreement, and that Mr. Anwar
admitted selling the drugs while willfully blind to their illegality. And
the Government provided records and testimony showing that Mr.
Anwar concealed the payments made to him.
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Id. at 5–6. Thus, the court concluded that “[a]ny prejudice that resulted from [the]
isolated testimony ‘was harmless in the context of the whole trial.’” Id. at 6 (quoting
United States v. Reed, 724 F.2d 677, 680 (8th Cir. 1984)).
In sum, the district court weighed the overwhelming evidence against Anwar
against a single instance of admission of objectionable testimony. After veering into
the weeds, the government’s questioning immediately returned to an admissible line.
The court found that no prejudice occurred during the brief detour. The court also
reminded the jury to disregard peripheral issues and to focus on Anwar’s charged
crimes. Taken together, the district court did not clearly abuse its discretion in denying
Anwar’s motion for a new trial under Rule 33.
C. Calculation of Total Offense Level Under the Sentencing Guidelines
Anwar asserts that the district court erred in: (1) calculating his base offense
level; (2) adding two levels for maintaining the premises under U.S.S.G.
§ 2D1.1(b)(12); and (3) adding three levels for his role as a “supervisor” or “manager”
under § 3B1.1(b). “We review the district court’s application of the sentencing
guidelines de novo and its factual findings for clear error.” United States v. Miller,
511 F.3d 821, 823 (8th Cir. 2008) (citation omitted).
1. Base Offense Level
Anwar objects to the district court’s use of the 1:167 ratio when calculating
drug amounts to determine the base offense level under the Guidelines. “In cases
involving controlled substances not specifically referenced in the guidelines,” such as
here, “the district court must use the marijuana-equivalency ratio for the most closely
related controlled substance found in the drug-equivalency tables.” Ramos, 814 F.3d
at 918 (citing U.S.S.G § 2D1.1, cmt. 6).
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In Ramos, we held that the 1:167 marijuana-equivalency ratio is the correct
ratio to apply to the synthetic cannabinoids at issue in this case because these
chemicals most closely resemble THC, which has a 1:167 marijuana-equivalency
ratio. Id. at 919. Additionally, at Anwar’s sentencing hearing, a DEA expert witness
testified that the synthetic cannabinoid products at issue most closely resembled THC,
rather than marijuana. Anwar’s counsel also conceded that the 1:167 ratio is “standing
law” in this circuit. On appeal, Anwar again acknowledges that the 1:167 ratio is the
law, but he contends nevertheless that the ratio should be 1:1.
“Our long standing rule is that one panel may not overrule an earlier decision
by another.” Jackson v. Ault, 452 F.3d 734, 736 (8th Cir. 2006) (citation omitted).
Only the en banc court “has [the] authority to overrule a prior panel opinion, whether
in the same case or in a different case.” Cottier v. City of Martin, 604 F.3d 553, 556
(8th Cir. 2010) (en banc). The district court therefore correctly calculated Anwar’s
base offense level using the 1:167 ratio.
2. Maintaining the Premises
Anwar next argues that the district court erred in applying a two-level
enhancement for maintaining the premises. The district court must increase the offense
by two levels “[i]f the defendant maintained a premises for the purpose of
manufacturing or distributing a controlled substance.” U.S.S.G. § 2D1.1(b)(12). This
enhancement “applies when a defendant uses the premises for the purpose of
substantial drug-trafficking activities, even if the premises” also served other,
legitimate, functions. United States v. Miller, 698 F.3d 699, 707 (8th Cir. 2012). To
determine whether a defendant maintained a premises, “the court should consider
whether the defendant had a possessory interest in the premises and the extent to
which the defendant controlled access to, or activities at, the premises.” United States
v. Renteria–Saldana, 755 F.3d 856, 859 (8th Cir. 2014) (citing U.S.S.G.
§ 2D1.1(b)(12), cmt. n.17). Holding title to the premises is not required for purposes
of this section. United States v. Garcia, 774 F.3d 472, 475 (8th Cir. 2014) (per
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curiam) (noting that the defendant maintained the premises “although the rent and
utilities for the premises were in another individual’s name, . . . this individual was
rarely at the premises and [the defendant] had free access to the premises, mowed the
lawn, and took out the garbage”).
The premises at issue is the Des Moines mobile wireless store. Anwar does not
own the building. However, the district court found that “there was no question from
the evidence in this case that Defendant Anwar used [the mobile wireless shop] to
store and distribute the controlled substances at issue.” Sentencing Transcript at 132,
United States v. Anwar, No. 6:15-cr-02005-JAJ-1 (N.D. Iowa Feb. 7, 2017), ECF No.
187. Anwar employed Romar and Tyrell to work at the store, and they testified that
Anwar “ran that shop, used it to have . . . these synthetic products dropped off,” and
that the Tyrells “would then help [Anwar] deliver.” Id. at 121. The district court
concluded:
There’s no question from even the photographs of this case that the
[mobile wireless] store, whatever legitimate reason or purpose it might
have had or if it was just a front for the drug distribution, it doesn’t
matter, it doesn’t matter that [another person] technically might have
been the owner or manager of the store, there was no question from the
evidence in this case that Defendant Anwar used it to store and distribute
the controlled substances at issue in this case.
Id. at 132. Because the evidence showed that Anwar used the wireless store for the
purpose of substantial drug-trafficking activities, the district court did not clearly err
in finding that he maintained a drug premises. See Miller, 698 F.3d at 707.
3. Aggravating Role in the Offense
Anwar contends that the district court erred in finding that he qualified for an
offense level increase due to an aggravating role in the offense. He further maintains
that the court should have instead decreased his offense level for a mitigating role.
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The Guidelines require a three-level increase “[i]f the defendant was a manager
or supervisor (but not an organizer or leader) and the criminal activity involved five
or more participants.” U.S.S.G. § 3B1.1(b). “[W]e define . . . ‘manager’ and
‘supervisor’ quite liberally.” United States v. Irlmeier, 750 F.3d 759, 764 (8th Cir.
2014) (citation omitted). The enhancement applies to defendants “even where they
manage or supervise only one other participant in the conspiracy.” Id. (citations
omitted). Indeed, “the enhancement ‘may apply even if the management activity was
limited to a single transaction.’” Id. (quoting United States v. Lopez, 431 F.3d 313,
318 (8th Cir. 2005)). However, “[t]he ‘defendant[] must direct or enlist the aid of
others.’” Id. (quoting Lopez, 431 F.3d at 318).
Anwar argues that instead of the aggravating role enhancements, he should have
received a decrease for mitigating roles—he was recruited by Saeed, who according
to Anwar “called the shots throughout;” he was ignorant of the legality of the
substances he peddled because he had no training in chemistry, and law enforcement
did not tell him that the substances were illegal.
These arguments fail. The district court found that Saeed clearly recruited
Anwar to the conspiracy, but the two “quickly became partners.” Sentencing
Transcript at 133. Anwar recruited multiple store owners to sell the synthetic drugs,
and Anwar supervised the Tyrells extensively in the drug operation. The district court
found that Anwar “clearly gets an aggravating role just as it relates to [his supervision
of] Erika and Randy Tyrell alone.” Id. at 132. Anwar’s reliance on his ignorance of
the illegality of the synthetic cannabinoids is also misplaced. As discussed above,
Anwar had ample reasons to suspect that these products were illegal, but he chose to
remain deliberately ignorant. See supra Part II.A.1.
The district court committed no clear error in finding Anwar had an aggravating
role under the Guidelines.
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D. Substantive Reasonableness of the Sentence
Despite the district court applying a downward variance, Anwar argues that his
sentence nevertheless is substantively unreasonable. He contends that no prison
sentence is necessary because of his medical needs, his education level, and his
cooperation with the government. Further, Anwar argues that he is not likely to
recidivate because he is subject to deportation. See 8 U.S.C. § 1227(a)(2)(B)(i).
“When we review the imposition of sentences, whether inside or outside the
Guidelines range, we apply a deferential abuse-of-discretion standard.” United States
v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (quoting United States v.
Hayes, 518 F.3d 989, 995 (8th Cir. 2008)). “[W]e are to ‘take into account the totality
of the circumstances . . . .’” Id. (quoting Gall v. United States, 552 U.S. 38, 51
(2007)). A sentence is presumptively reasonable when it falls within the advisory
guidelines. United States v. Sanchez–Garcia, 642 F.3d 658, 663 (8th Cir. 2011)
(citations omitted). “[W]here a district court has sentenced a defendant below the
advisory guidelines range, it is nearly inconceivable that the court abused its
discretion in not varying downward still further.” United States v. Worthey, 716 F.3d
1107, 1116 (8th Cir. 2013) (alteration in original) (quoting United States v. Spencer,
700 F.3d 317, 322 (8th Cir. 2012)).
Here, the district court found that Anwar’s conspiracy “was massive, one of the
largest” that the court had seen. Sentencing Transcript at 151. “In fashioning an
appropriate sentence,” id., the district court considered the § 3553(a) factors,
specifically citing consideration of the seriousness of the offense, the question of just
punishment, the need for adequate deterrence to criminal conduct, the available
sentencing options under the Sentencing Guidelines, the need to avoid unwarranted
sentencing disparity among defendants with similar records, and the defendant’s lack
of remorse. The court found that the conspiracy “was wildly lucrative, totally greed
driven,” id., and that “[i]t was dressed up as something that was legal” so that small
town law enforcement would not “catch it,” id. at 152. Further, while other defendants
came through the court, which “serve[d] as such a wonderful wake-up call and they
. . . never . . . come back again,” Anwar “came back in with a rampage.” Id. at
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152–53. The court also “weighed heavily the need to avoid unwarranted sentencing
disparity among defendants with similar records or lack thereof who have been found
guilty of similar conduct.” Id. at 153. Finally, the court found “Anwar show[ed] little
remorse.” Id.
In rendering its judgment, the court spent substantial time considering and
discussing the § 3553(a) factors. We find no abuse of discretion. Anwar’s sentence is
not substantively unreasonable.
III. Conclusion
For the reasons articulated above, we affirm the district court.
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