UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4580
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
AHMED MOHAMMED SHAWAKHA,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:08-cr-00068-F-1)
Argued: October 27, 2010 Decided: January 31, 2011
Before NIEMEYER, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion. Judge Shedd wrote a
dissenting opinion.
ARGUED: H. Gerald Beaver, BEAVER, HOLT, STERNLICHT & COURIE, PA,
Fayetteville, North Carolina, for Appellant. Jennifer E. Wells,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee. ON BRIEF: George E. B. Holding, United States
Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant
United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ahmed Shawakha pled guilty to conspiring to distribute and
possessing with the intent to distribute more than 100 grams of
marijuana, in violation of 21 U.S.C. § 846. Departing upward
from the suggested Guidelines range, the district court
sentenced Shawakha to 87 months’ imprisonment. Shawakha now
appeals, raising issues related to the calculation of his
advisory Guidelines range, the district court’s decision to
upwardly depart, and the substantive reasonableness of his
sentence. For the reasons stated herein, we affirm the judgment
of the district court.
I.
Shawakha conspired with Dwight Arnold and his father Audley
Arnold to distribute drugs in the Fayetteville, North Carolina
area. Dwight fronted Shawakha the drugs, Shawakha’s contacts
sold the drugs, and Shawakha gave the drug proceeds to Audley to
pay Dwight.
One morning, Shawakha appeared unannounced at the FBI’s
office in Fayetteville, saying that he owed Jamaican drug
dealers approximately $24,000, could not pay them, and that he
needed the FBI’s assistance. He noted that an initial shipment
of 200 pounds of marijuana had already arrived and that he
expected future shipments.
2
While Shawakha was talking to the FBI, he received phone
calls instructing him to attend a meeting at a local restaurant.
The FBI placed a wire on Shawakha, observed him pick up Audley,
and continued surveillance while Shawakha attended the meeting.
Conversation among the co-conspirators revealed that Dwight was
at the meeting, although Shawakha had not expected him to be
there. When the meeting was over, Shawakha and Audley took
possession of 478 pounds of marijuana, which they initially
transported to Audley’s residence and then took to an industrial
building owned by Shawakha.
Later that night, Shawakha provided authorities with
written consent to search the property and they removed the 478
pounds of marijuana. Shawakha became “very irritated” during
the removal process because no one had informed him the drugs
would be seized, there was a large law enforcement presence on
his property, and he was concerned his safety would be
compromised. Joint Appendix (“J.A.”) at 185. Once the drugs
had been removed, the FBI allowed Shawakha to return home but
instructed him to maintain contact. Over the following weekend,
however, agents were unable to contact Shawakha and they found
no indication that he was at his residence.
Shawakha resurfaced on Monday and told the FBI that he had
taken his family to Pennsylvania for safekeeping. Agents
subsequently decided to fit Shawakha with another wire and send
3
him to talk with Audley. The ensuing conversation did not go as
agents expected and it became evident that both Shawakha and
Audley were “upset.” Id. at 187. Agents consequently called
Shawakha and instructed him to leave the meeting. Shortly
thereafter, authorities arrested Shawakha and Audley on state
drug charges.
Shawakha posted bond the day after his arrest, was
released, and contacted the FBI to let agents know that he was
“out of jail.” Id. at 189. FBI agents’ subsequent attempts to
contact Shawakha were unsuccessful. They did, however, receive
news that a confidential informant had reported that Shawakha
was traveling to California with the possible intent of
“crossing the border into Mexico.” Id. at 190. Agents
responded by obtaining a second state warrant for Shawakha’s
arrest and forwarding it to California authorities who took
Shawakha into custody.
The preceding events were given greater context once Audley
began cooperating with police, as Audley explained that his last
conversation with Shawakha went awry when Shawakha displayed the
wire he was wearing, causing both of them to be “upset.” Id. at
190-91. Audley also indicated that after authorities seized the
478 pounds of marijuana, Shawakha sent a mutual friend to him
with $500 and a message to get out of town and then called
Dwight to inform him the drugs were in police custody. The
4
veracity of Audley’s information was significantly bolstered by
the fact that he had a little more than $500 on his person at
the time of his arrest. Phone records further verified that
Shawakha placed a called to Dwight during the relevant period.
A federal grand jury charged Shawakha with conspiring to
distribute and possessing with the intent to distribute more
than 100 grams of marijuana, in violation of 21 U.S.C. § 846.
Shawakha pled guilty to this charge pursuant to a written plea
agreement, which included an appellate waiver. On appeal,
Shawakha does not contest the validity of his guilty plea.
II.
The Presentence Investigation Report (“PSR”) assigned
Shawakha a base offense level of 26. Shawakha then received a
three-level upward adjustment for being a manager or supervisor
of criminal activity, a two-level upward adjustment for
obstruction of justice, and a three-level downward adjustment
for acceptance of responsibility. This resulted in a total
offense level of 28, which in combination with Shawakha’s
criminal history category of I established an advisory
Guidelines range of 78 to 97 months’ imprisonment.
Shawakha filed three primary objections to the PSR, arguing
that (1) the 478 pounds of marijuana seized by law enforcement
should not be attributed to him as relevant conduct, (2) he was
5
not a manager or supervisor of criminal activity, and (3) he was
entitled to the benefit of the safety valve provision found in
United States Sentencing Guidelines (“U.S.S.G.”) § 5C1.2.
The district court held a hearing at which it allowed
Shawakha and the Government to address these points. At the
conclusion of that hearing, the district court indicated that it
was considering an upward departure based on Shawakha’s multiple
acts of obstruction of justice. It then continued Shawakha’s
sentencing to give the parties time to research whether
“multiple obstructions of justice” would constitute valid
“grounds for an upward departure.” J.A. at 203.
When Shawakha’s sentencing hearing reconvened, the district
court gave the parties another opportunity to address Shawakha’s
objections to the PSR, as well as the court’s question regarding
the propriety of an upward departure based on multiple acts of
obstruction of justice. The district court ultimately declined
to impose a manager/supervisor enhancement and adopted the PSR’s
other recommendations, but added a further two-level upward
departure based on Shawakha’s obstruction of justice, stating:
[T]he court finds that the [initial] two level
adjustment—enhancement for obstruction of justice does
not adequately reflect the severity of the obstructive
conduct engaged in by the defendant.
Specifically, the defendant attempted to obstruct
the prosecution of the instant offense on at least
five occasions as referenced by his involvement in
employing an unindicted co-conspirator to inform
6
Audley Arnold of the investigation of the instant
offense, personally informing both Audley Arnold and
Dwight Arnold of the investigation into their
activities[,] compromising a meeting with Dwight
Arnold and Audley Arnold by notifying them he was
wearing a recording device, and attempting to avoid
prosecution by fleeing to Mexico via California.
Id. at 226; see also id. (“Despite multiple acts of obstruction,
the defendant received only a two level enhancement of the
offense level pursuant to 3C1.1.”).
The district court accordingly calculated Shawakha’s
offense level at 27, stating that it “considered each
intervening offense level” and found that an offense level of 27
“adequately account[ed] for the defendant’s obstructive
conduct.” Id. at 227. This resulted in an advisory Guidelines
range of 70 to 87 month’s imprisonment. Based on the “severity”
of Shawakha’s conduct, the district court determined that “a
sentence at the upper end of the [Guidelines] range [was]
necessary to meet the goal[s] of sentencing.” Id. Accordingly,
the court imposed a sentence of 87 months’ incarceration, the
high-end of the revised Guidelines range.
III.
On appeal, Shawakha argues the district court procedurally
erred (1) in attributing the 478 pounds of marijuana to him as
relevant conduct for purposes of sentencing, (2) in failing to
accord him an offense level reduction pursuant to U.S.S.G
7
§ 5C1.2’s safety valve provision, and (3) in departing upwards
based on multiple acts of obstruction of justice. Shawakha
further contends the district court substantively erred (4) in
imposing an 87-month sentence.
In response, the Government contends Shawakha waived his
right to raise the first two issues on appeal by virtue of his
plea agreement. It also maintains that the district court’s
upward departure pursuant to U.S.S.G. § 5K2.0(a) was a proper
exercise of the court’s sentencing discretion. Lastly, the
Government defends the district court’s imposition of an 87-
month sentence as substantively reasonable given the unique
facts of his case.
IV.
“[T]he interpretation of plea agreements is rooted in
contract law.” United States v. Peglera, 33 F.3d 412, 413 (4th
Cir. 1994). In construing such an agreement, we look to its
“plain language” and seek “to ensure that each party receives
the benefit of [its] bargain.” United States v. Jordan, 509
F.3d 191, 195 (4th Cir. 2007) (quotation omitted). We thus
enforce a waiver of appellate rights provided (1) the waiver is
valid and (2) the issue sought to be appealed is within its
scope. See United States v. Manigan, 592 F.3d 621, 627 (4th
Cir. 2010).
8
The validity of Shawakha’s appellate waiver is uncontested
here, as the parties merely dispute the waiver’s scope. 1 In his
plea agreement, Shawakha agreed
[t]o waive knowingly and expressly all rights,
conferred by 18 U.S.C. § 3742, to appeal whatever
sentence is imposed, including any issues that relate
to the establishment of the advisory Guideline range,
reserving only the right to appeal from a sentence in
excess of the applicable advisory Guideline range that
is established at sentencing.
J.A. at 113.
Shawakha emphasizes the agreement’s language “reserving”
his right “to appeal from a sentence in excess of the applicable
advisory Guideline range . . . established at sentencing,” id.,
in arguing that the district court’s upward departure freed him
to challenge all aspects of his 87-month sentence. The
appellate waiver does not, however, indicate that Shawakha is
precluded merely from appealing a sentence within the advisory
Guidelines range. To the contrary, the plea agreement broadly
states that Shawakha agreed to waive “all rights, conferred by
18 U.S.C. § 3742, to appeal whatever sentence is imposed,
including any issues that relate to the establishment of the
1
Even if Shawakha disputed the validity of his appellate
waiver, we would conclude it is valid. The record indicates the
district court carefully questioned Shawakha “concerning the
waiver provision of the plea agreement during the Rule 11
colloquy” and that Shawakha understood “the full significance of
the wavier.” Manigan, 592 F.3d at 627 (quotations omitted).
9
advisory Guidelines range.” Id. (emphasis added). The
reservation of rights clause, in contrast, is purposefully
narrow, extending “only” to Shawakha’s “right to appeal from a
sentence in excess of the applicable advisory Guidelines range
that is established at sentencing.” Id.
Read in context, the agreement’s plain language reflects
that Shawakha “only” reserved his right to appeal from an upward
departure or variance, i.e., the portion of his “sentence in
excess of the applicable advisory Guidelines range . . .
established at sentencing.” Id. Indeed, the plea agreement is
specific that Shawakha “waive[d] . . . all rights . . . to
appeal . . . any issues that relate to the establishment of
[his] advisory Guideline range,” which would include the
attribution of 478 pounds of marijuana as relevant conduct and
whether U.S.S.G. § 5C1.2’s safety valve provision applies. Id.
Doubtless, the waiver’s language could have been more concise.
But on this record we do not doubt that Shawakha understood that
he reserved only the right to appeal an upward deviation from
the advisory Guidelines range established at sentencing.
At Shawakha’s Rule 11 hearing, the district court
specifically inquired whether Shawakha “underst[ood] that [he]
reserve[d] only the right to appeal from an upward departure
from the advisory guideline established at sentencing and that
[he] otherwise waive[d] all rights to appeal whatever sentence
10
[was] imposed.” Id. at 110. Shawakha replied, “Yes, Sir.” Id.
Accordingly, we conclude Shawakha has waived the first two
issues he raises on appeal, as they “relate to the establishment
of [his] advisory Guideline range.” Id. at 113.
V.
Because the last two issues Shawakha raises on appeal do
not relate to his initial advisory Guidelines range but pertain
to the district court’s upward departure from that range, they
are validly before this Court on appeal. Shawakha first
challenges the district court’s finding that he committed
multiple acts of obstruction of justice sufficient to justify an
upward departure under U.S.S.G. § 5K2.0. Specifically, Shawakha
argues that the district court misconstrued the record and
predicated its upward departure on improper factors.
U.S.S.G. § 5K2.0(a)(3) allows the district court to base a
departure on a “circumstance . . . taken into consideration in
determining the [G]uideline range” provided this factor “is
present in the offense to a degree substantially in excess of
. . . that which ordinarily is involved in that kind of
offense.” Here, the district court concluded that Shawakha
committed five acts obstructing justice, which rendered this an
“exceptional case” in which an upwards departure was justified
under § 5K2.0(a)(3), despite the fact that Shawakha already
11
received a two-level enhancement for obstructing justice in the
computation of his initial sentencing range.
Shawakha claims the district court incorrectly stated that
he “compromise[d] a meeting with Dwight Arnold and Audley Arnold
by notifying them he was wearing a recording device[].” Opening
brief at 21. We normally review the district court’s factual
findings “under the clearly erroneous standard,” but “where, as
here, the defendant did not object to the finding below, the
finding is reviewable only for plain error.” United States v.
Wells, 163 F.3d 889, 900 (4th Cir. 1998). To meet the plain-
error standard, Shawakha must establish (1) an error; (2) that
is plain; (3) that affected his substantial rights; and
(4) seriously affected the fairness, integrity, or public
reputation of judicial proceedings. See United States v.
Lipford, 203 F.3d 259, 271 (4th Cir. 2000).
Shawakha is correct that the district court mistakenly
stated that he compromised a meeting with both Dwight and Audley
Arnold by notifying them he was wearing a recording device.
Only Audley was present at the meeting in which Shawakha
displayed his wire. We agree with the Government, however, that
“[t]his slip of the tongue is not material.” Response Brief at
23. The fact that Shawakha revealed the wire he was wearing to
one coconspirator, rather than two, does not meaningfully affect
the district court’s departure analysis. Shawakha is thus
12
unable to show that the district court’s factual error caused
him prejudice, even if we assume this error was plain.
Shawakha also contends that there was insufficient evidence
for the district court to conclude that he was attempting to
avoid prosecution by traveling to California. Because Shawakha
preserved this argument below, we review the district court’s
factual finding for clear error. See Wells, 163 F.3d at 900. A
district court at sentencing need only establish facts “by a
preponderance of the evidence.” United States v. Young, 609
F.3d 348, 357 (4th Cir. 2010). We conclude that standard is met
here. By the time Shawakha traveled to California, he was out
on bond, had previously revealed the FBI’s investigation to two
of his coconspirators, and actively enticed one of them to flee
in order to elude police custody. It was not clearly erroneous
for the district court to conclude that Shawakha traveled to a
border state with the intent of eluding custody himself.
In addition, Shawakha maintains that even if the evidence
was sufficient to establish that he was attempting to flee from
custody, such flight does not constitute obstructing justice
under U.S.S.G. § 3C1.1. Shawakha is correct that application
notes 5 to U.S.S.G. § 3C1.1 indicates that “avoiding or fleeing
from arrest” does not trigger an “adjustment” for obstructing
justice. But the record reveals that Shawakha failed to make
this argument before the district court, so we review this issue
13
only for plain error. See United States v. Stewart, 256 F.3d
231, 251 (4th Cir. 2001).
In short, we conclude that even if the district court erred
in considering Shawakha’s flight to California as an act
obstructing justice within the meaning of the Guidelines,
Shawakha cannot demonstrate that this error caused him
prejudice. The district court clearly indicated that its upward
departure was also based on Shawakha (1) sending $500 to Audley
with a message to get out of town, (2) calling Dwight to inform
him that police were in possession of the 478 pounds of
marijuana, and (3) exposing his wire to Audley. 2 These acts were
sufficient, in and of themselves, to support the district
court’s modest two-level upward departure.
Shawakha further suggests that his conduct was legally
insufficient to support an upward departure under U.S.S.G.
5K2.0(a)(3). We disagree. It is well established “that
multiple acts of obstruction of justice may warrant an upward
departure” under the Guidelines. United States v. Milton, 147
F.3d 414, 421 (5th Cir. 1998). Given the district court’s
“sizeable discretion” in sentencing, United States v. Abu Ali,
2
We reject Shawakha’s argument that the district court
failed to adequately explain its chosen sentence. The district
court’s reasoning was straightforward and clear. Furthermore,
the three instances of obstruction of justice noted above
clearly justify an additional two-level enhancement.
14
528 F.3d 210, 266 (4th Cir. 2008), and Shawakha’s serious acts
of obstruction, we cannot say the district court legally erred
in determining that Shawakha engaged in a degree of obstruction
“substantially in excess of . . . that which ordinarily is
involved” in a case in which a defendant receives an
obstruction-of-justice enhancement. U.S.S.G. § 5K2.0(a)(3).
Lastly, Shawakha contends that his 87-month sentence is
substantively unreasonable. We review the substantive
reasonableness of the district court’s chosen sentence for an
abuse of discretion. See Abu Ali, 528 F.3d at 274. Although we
look to the “extent of the difference between a particular
sentence and the recommended Guidelines range,” we give “due
deference to the district court’s decision” and will not
“reverse simply because we might reasonably have concluded that
a different sentence was appropriate.” Id. at 261 (quotations
omitted).
In this case, we cannot conclude that Shawakha’s 87-month
sentence was substantively unreasonable. Shawakha committed
three serious acts of obstruction, which the district court
reasonably determined required an additional two-level
enhancement. The district court then calculated Shawakha’s
revised Guidelines range and chose a sentence that comported
with the high-end of that range. Although an 87-month sentence
was not the only reasonable sentence Shawakha could have
15
received, it constitutes a legitimate exercise of the district
court’s sentencing discretion and must therefore be affirmed.
VI.
For all of the foregoing reasons, the judgment of the
district court is affirmed.
AFFIRMED
16
SHEDD, Circuit Judge, dissenting:
The majority holds that Shawakha waived his right to appeal
any issues relating to the establishment of his advisory
Guidelines range, and it affirms Shawakha’s sentence upon its
consideration of the two issues it deems not to have been
waived. In my view, the majority misreads the appeal waiver
provision and, in doing so, precludes Shawakha from raising the
additional issues, one of which has merit. Therefore, I
dissent.
Shawakha waived his right “to appeal whatever sentence is
imposed, including any issues that relate to the establishment
of the advisory Guideline range.” However, he reserved the right
“to appeal from a sentence in excess of the applicable advisory
Guideline range.” J.A. 113 (emphasis added). Shawakha’s
sentence clearly exceeds the advisory Guideline range.
Therefore, the plain language of the plea agreement allows
Shawakha to appeal his entire sentence, not merely some limited
portion of it. Therefore, the appeal waiver does not limit him
to appealing only the upward deviation from his advisory
Guideline range. *
*
If the plain language of Shawakha’s plea agreement is also
open to the majority’s reading, the language is ambiguous.
Consequently, it should be construed against the government to
find that Shawakha reserved the right to appeal his entire
sentence. See United States v. Harvey, 791 F.2d 294, 300-301
(Continued)
17
Accordingly, I believe all four issues Shawakha raises on
appeal are validly before this Court. Of those four issues, I
believe one has merit. In my view, the district court erred
when it failed to explain its rationale for denying Shawakha’s
request for a downward adjustment pursuant to the safety valve
provisions of USSG § 5C1.2(a). The PSR states that Shawakha was
ineligible for safety valve relief because of his status as a
manager or supervisor of criminal activity. J.A. 251. However,
during sentencing, the court granted Shawakha’s objection to the
finding that he was a manager or supervisor. Yet the court
still denied Shawakha’s request for safety valve relief without
stating a basis for this ruling. J.A. 225. Given these
facts, if Shawakha is able to meet the criteria of USSG §
5C1.2(a), he is entitled to a two-level reduction of his offense
level pursuant to USSG §2D1.1(b)(11). For this reason, I would
remand to the district court for resentencing.
(4th Cir. 1986) (where a plea agreement is ambiguous in its
terms, the terms must be construed against the government,
especially where “the Government has proffered the terms or
prepared a written agreement”).
18