United States v. Shah, Shashi

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 7, 2006 Decided July 11, 2006

No. 03-3070

UNITED STATES OF AMERICA,

APPELLEE

v.

SHASHI SHAH,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 98cr00235-02)

Sandra G. Roland, Assistant Federal Public Defender,

argued the cause for appellant. With her on the briefs was A. J.

Kramer, Federal Public Defender.

Suzanne C. Nyland, Assistant U.S. Attorney, argued the

cause for appellee. With her on the brief were Kenneth L.

Wainstein, U.S. Attorney, and Roy W. McLeese, III, Elizabeth

Trosman, and William J. O'Malley, Jr., Assistant U.S.

Attorneys.

Before: RANDOLPH and GRIFFITH, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

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Opinion for the Court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge: On October 16, 1998, Shashi

Shah pled guilty to an information charging him with conspiring

to import heroin into the District of Columbia, Maryland, and

New York from Nepal and Thailand between 1994 and August

1998, and with conspiring to possess with intent to distribute,

and conspiring to distribute, heroin during the same period of

time and in the same places. On the day of his plea, Shah and

his attorney signed a ten-page plea agreement, among the terms

of which was Shah’s pledge to be a cooperating witness. Shah’s

sentencing was therefore postponed. In June 2002 Shah filed a

motion to withdraw his plea. The district court denied the

motion and sentenced him to 292 months of imprisonment.

United States v. Shah, 263 F. Supp. 2d 10 (D.D.C. 2003). The

issues on appeal deal with the denial of the motion and with

sentencing.

Under Rule 11(d)(2)(B) of the Federal Rules of Criminal

Procedure, a district court may grant a presentence motion to

withdraw a guilty plea if “the defendant can show a fair and just

reason.” Although motions to withdraw a guilty plea before

sentencing are often granted, relief is not a matter of right.

United States v. Loughery, 908 F.2d 1014, 1017 (D.C. Cir.

1990). The district court's rejection of a withdrawal motion is

reviewed for abuse of discretion. United States v. Cray, 47 F.3d

1203, 1206 (D.C. Cir. 1995); United States v. Ford, 993 F.2d

249, 251 (D.C. Cir. 1993). Reversal is “uncommon.” Loughery,

908 F.2d at 1017.

Over the years we have developed tests for determining

when a district court abuses its discretion in rejecting a motion

like Shah’s: the defendant must show “an error in the taking of

his plea or some ‘more substantial’ reason he failed to press his

case rather than plead guilty”; he must “make out a legally

3

cognizable defense to” the charges; and even if he meets those

requirements, there is still the question “whether the

Government would have been substantially prejudiced by the

delay in going to trial.” Cray, 47 F.3d at 1207.

Shah does not argue that in taking his plea, the district

court committed any error. The 1998 proceedings fully

complied with Rule 11 of the Federal Rules of Criminal

Procedure. After Shah was put under oath, the district court told

him that “your answers to my questions are subject to the

penalty of perjury or making a false statement”; asked if he

understood this, Shah answered “Yes, sir.” The court then

conducted a meticulous examination, eliciting Shah’s agreement

and understanding that by pleading guilty he was waiving his

right to trial and his Fifth Amendment privilege against self-

incrimination. Shah signified that he fully understood the

charges against him and the potential sentence he faced. He

acknowledged his signature on the plea agreement and he swore

that the evidence set forth in the government’s proffer – which

Shah also signed – was true. Included in that evidence were

details about Shah’s smuggling and distribution of heroin,

including descriptions of transactions, participants, dates, and

amounts. As set forth in the plea agreement, the total amount of

heroin for which Shah was responsible was between 10 and 29

kilograms. Shah also acknowledged that he played a

supervisory role in the conspiracy. The plea agreement and the

government’s proffer described Shah’s involvement in the death

of Raymond Cruz, a drug courier who smuggled heroin from

Nepal by ingesting it and died in Shah’s presence in New York

City in May 1997.

In an affidavit accompanying his motion to withdraw his

plea, Shah set forth no facts relating to these transactions or his

role in them and he never mentioned Cruz’s death. Instead, his

affidavit – apparently prepared with the assistance of counsel –

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merely asserted that the plea agreement “improperly inflated and

enhanced my role” in the conspiracy and that “[t]here was little

or no factual basis in the government’s proffer.” A somewhat

more comprehensive set of objections to the presentence report,

filed by Shah’s new attorney, admitted Shah’s responsibility for

about 6 kilograms of heroin, denied his responsibility for Cruz’s

death, and denied that Shah had a supervisory role in the

conspiracy. The government filed a lengthy response. Included

as an exhibit were summaries of Shah’s tape recorded

conversations while he was imprisoned awaiting sentencing.

Shah then stated that he recruited Cruz to act as a “mule” to

import heroin into the United States.

Shah contends that his plea was “tainted” because his

attorney was ineffective. His argument is that his plea

agreement and the government’s proffer inflated the amount of

heroin for which he was accountable, exaggerated his role in the

conspiracy, and wrongly assigned responsibility to him for

Cruz’s death, all of which increased his Sentencing Guidelines

range; and that his attorney nevertheless advised him to plead

guilty in view of the government’s promise to file, in return for

his cooperation, a letter urging the court to depart downward.

The government never supplied a departure letter because Shah

violated the plea agreement: while in prison awaiting

sentencing, he sought to arrange a narcotics transaction. Shah’s

affidavit stated that he delayed filing a motion to withdraw his

plea until he discovered that a departure letter would not be

forthcoming. In connection with Shah’s motion, his attorney at

the time of his guilty plea stated in an affidavit that “several

facts” in the plea agreement “inflated Shah’s knowledge and

participation” in the conspiracy. The attorney did not specify

which particular “facts” these were.

Shah’s argument – if not his affidavit – amounts to a

claim that the defect in the taking of his plea consisted of his

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committing perjury when, under oath, he acknowledged the truth

of the factual recitals in the plea agreement and in the

government’s proffer. Lying to a court is not a “fair and just

reason,” FED. R. CRIM. P. 11(d)(2)(B), for allowing a plea to be

withdrawn. See United States v. Peterson, 414 F.3d 825, 827

(7th Cir. 2005); United States v. Stewart, 198 F.3d 984, 987 (7th

Cir. 1999). A “motion that can succeed only if the defendant

committed perjury at the plea proceedings may be rejected out

of hand unless the defendant has a compelling explanation for

the contradiction.” Peterson, 414 F.3d at 827. Shah offers no

such explanation. The most one can glean from his affidavit,

and from his former attorney’s, is that he lied because he

expected to benefit from a government departure letter. But that

is no explanation at all. Guilty pleas, pursuant to an agreement,

usually confer some benefit on defendants as compared to their

going to trial. It does not follow that defendants therefore have

a compelling reason to commit perjury in the plea proceedings.

The district court acted within its discretion in denying Shah’s

motion for these reasons, see Shah, 263 F. Supp. 2d at 24.*

As to his sentence, Shah claims that a preponderance of

the evidence did not support the district court’s enhancement of

his offense level pursuant to § 3B1.1(c) of the Guidelines, which

provides: “If the defendant was an organizer, leader, manager,

or supervisor in any criminal activity other than described in (a)

or (b) [above], increase [his base offense level] by 2 levels.”

According to the application notes, “[t]o qualify for an

adjustment under this section, the defendant must have been the

organizer, leader, manager, or supervisor of one or more other

participants.” UNITED STATES SENTENCING GUIDELINES

MANUAL § 3B1.1 cmt. n.2. A “participant” is “a person who is

*

For the same reasons, we have no difficulty finding that the

district court acted within its discretion in denying Shah’s motion for

an evidentiary hearing.

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criminally responsible for the commission of the offense, but

need not have been convicted.” Id. § 3B1.1 cmt. n.1. Citing

United States v. Graham, 162 F.3d 1180, 1183 (D.C. Cir. 1998),

the district court reasoned that § 3B1.1(c) was “intended for

those supervising ‘relatively confined criminal activity.’” Shah,

263 F. Supp. 2d at 30. Factors to be considered in determining

whether a defendant qualifies for the adjustment include whether

there is evidence that he recruited accomplices. Graham, 162

F.3d at 1185 (quoting United States v. Thomas, 114 F.3d 228,

261 (D.C. Cir. 1997)).

As mentioned earlier, the government submitted

accounts of conversations between Shah and a jailhouse

informant during which Shah said that he had been paid a

commission of $2,000 for recruiting Raymond Cruz to act as a

mule to import heroin into the United States. The district court

concluded that Shah had introduced Cruz to a drug importer

named Victor Valles, that Valles had provided Cruz with heroin

to smuggle into the United States, and that Cruz had ingested the

heroin before boarding a plane in Nepal bound for New York

City, where Shah met him and unsuccessfully tried to assist him

in passing the heroin. The district court found that this

“evidence of recruitment and introduction,” combined with

Shah’s admission in the plea agreement that he had been a

supervisor, manager, leader, or organizer, supported the

application of U.S.S.G. § 3B1.1(c)’s two-level enhancement.

Shah, 263 F. Supp. 2d at 31.

Shah contends that “recruitment alone is insufficient” to

support application of § 3B1.1(c), but the record demonstrates

that Shah did considerably more. Shah told the informant that

not only had he recruited others to “mule,” but also that he “had

people swallow [heroin] before, th[at] Victor [Valles] has gone

3 or 4 times for him.” Thus, even if we assume arguendo that

Shah’s involvement with Cruz alone was insufficient to trigger

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§ 3B1.1(c), the district court’s finding was not clearly erroneous,

which is the standard of review. United States v. Stover, 329

F.3d 859, 871 (D.C. Cir. 2003).

Shah also claims that insufficient evidence supported the

district court’s finding that Valles or Cruz were participants in

the same drug conspiracy to which he pled guilty. Because he

failed to raise this point in the district court, it is subject to

review under the plain-error standard. As in the related context

of United States v. Mellen, 393 F.3d 175, 184 (D.C. Cir. 2004),

it was incumbent upon the district court to find that any

supervisory role Shah played with respect to Cruz was within

the scope of a conspiracy charged in the information. Shah pled

guilty to conspiring to import heroin into New York from Nepal

and Thailand, and to conspiring to possess it with intent to

distribute it, between 1994 and August 1998. Cruz died on May

5, 1997, after ingesting heroin while smuggling it from Nepal to

New York. Shah tried unsuccessfully to get him to pass the

heroin in New York. On this record, it was not plainly

erroneous for the district court to infer that Cruz died “muling”

heroin as part of the same drug conspiracy to which Shah pled

guilty.

The final issue, again not raised below, relates to

§ 2D1.1(a)(2) of the Guidelines. This sets a defendant’s base

offense level at 38 “if the defendant is convicted under 21

U.S.C. §§ 841(b)(1)(A), (b)(1)(B), or (b)(1)(C), or 21 U.S.C.

§§ 960(b)(1), (b)(2), or (b)(3), and the offense of conviction

establishes that death or serious bodily injury resulted from the

use of the substance.” As above, Shah contends that Cruz’s

death was not related to the conspiracy to which he pled guilty

and that he did not plead guilty to any offense that was within

the language just quoted. We have already rejected his first

contention. The second founders on the fact that Shah pled

guilty to violating 21 U.S.C. § 960(b)(1)(A), which

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contemplates “death or serious bodily injury from the use of”

heroin. It is true that the prosecutor and the district court stated,

as did the presentence report, that Shah faced a mandatory

minimum of 10 years in prison, whereas § 960(b)(1)(A)

provides a minimum of 20 years if death or serious bodily injury

results. But it is also true that the prosecution and the defense

understood that Shah was accountable for the death as part of his

offense. The plea agreement said precisely that as did the

government’s proffer. We cannot find plain error in the court’s

application of § 2D1.1(a)(2).

Shah seeks a limited remand under United States v.

Coles, 403 F.3d 764 (D.C. Cir. 2005), to determine whether the

district court would impose a lesser sentence under an advisory

Guidelines regime. The government does not object and the

district court’s sentence at the low end of the Guidelines range

supports Shah’s position.

Accordingly we will remand the record pursuant to

Coles. In all other respects the judgment of the district court is

affirmed.

So ordered.