UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 02-51350
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ISHTIAQ AHMED,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Texas
March 10, 2003
Before DeMOSS, STEWART, Circuit Judges, and FALLON,1 District
Judge.
DeMOSS, Circuit Judge:
Appellant Ishtiaq Ahmed pled guilty to a one count indictment
alleging a violation of 8 U.S.C. § 1324(a)(1)(A)(iii) and (B)(ii)
for harboring an illegal alien. At sentencing, the district court
overruled Ahmed’s objection to a two level increase for obstructing
the investigation and sentenced Ahmed to six months imprisonment,
1
District Judge for the Eastern District of Louisiana, sitting
by designation.
1
three years supervised release, a $100.00 mandatory special
assessment fee, and a $1,000.00 fine. Ahmed now appeals his
sentence.
BACKGROUND
On or about July 14, 2002, four Pakistani nationals jumped
ship from the “Little Lady P,” a vessel which was docked in St.
Charles Parish, Louisiana. One of the four sailors was Ahmed’s
nephew. None of the Pakistani sailors had legal status to be in
the United States when not on the ship docked in an American port.
The sailors arranged for a local taxi cab driver, Burwell Harris,
to drive them to Texas. En route to Texas, Harris placed a phone
call for the sailors to a Waco, Texas, number but did not get an
answer. The sailors then continued their journey with Harris but
apparently Harris abandoned the sailors in Lafayette, Louisiana,
after receiving $400 from them for the trip.
The sailors then arranged to have another taxi cab driver,
Douglas Adams, drive them from Lafayette to Waco for $600. En
route to Waco, Adams also placed a phone call to Waco for the
sailors and received instructions as to where to deliver them.
Adams dropped the sailors off at a Jack-in-the-Box on I-35 in
Bellmead, Texas, where they were met by a man the sailors referred
to as “Uncle,” according to Adams.
Apparently, Ahmed was the contact in Waco who arranged to pick
up the sailors once they arrived. Once Ahmed picked the sailors up
2
from the Jack-in-the-Box, he took them to the Sandman Motel in Waco
where he got them two rooms in his name, so that they would have a
place to stay. The next day, July 15th, Ahmed picked up the
sailors and took them to get something to eat and to Wal-Mart to
get some new clothes. Ahmed then returned the individuals to the
motel and went to work.
Meanwhile, an FBI investigation into the missing sailors
whereabouts led to interviews with both cab drivers Harris and
Adams. The FBI investigation revealed that the Waco telephone
number that had been called was for a Sam’s Convenience Store,
which was owned by Saleem “Sam” Moosa and the Appellant, Ahmed.
The FBI went to the store on July 15th and questioned Ahmed about
the sailors, showing him pictures of the individuals. Ahmed
apparently denied any knowledge of the Pakistani sailors and then
left the store to return to his home. The FBI agents obtained
Ahmed’s home address and went to his house to attempt to continue
questioning. At Ahmed’s house, the FBI once again attempted to
interview Ahmed but he continued to insist that he had no knowledge
of the missing sailors.2 According to the pre-sentencing report
(“PSR”), the FBI then took Ahmed into custody apparently for
further questioning.
Subsequent to their attempted interviews with Ahmed, the FBI
2
It is unclear from the record what the actual questions and
responses were, but it is clear that Ahmed generally denied any
knowledge of the sailors.
3
learned, from sources other than Ahmed, that Ahmed had either a
friend or relative who owned the Sandman Motel. Based on this
information, the FBI went to the motel on July 15th (the same day
as their attempted interviews with Ahmed) and showed an employee
pictures of the missing sailors.3 The employee informed the FBI
that similar-looking individuals were staying in rooms 8 and 9.
Records from the motel showed that the individual who rented the
rooms was Ahmed. The FBI found all four sailors in room 9 and took
them into custody.
Ahmed pled guilty to a one count indictment alleging a
violation of 8 U.S.C. § 1324(a)(1)(A)(iii) and (B)(ii) for
harboring an illegal alien. Following objections by both the
government and Ahmed, the Probation Office produced a revised PSR,
which assigned a total offense level of 12 for the offense of
harboring an alien. This total offense level included a two level
reduction for acceptance of responsibility but also a two level
increase for obstruction of justice. The revised PSR also removed
a three level reduction, subsequent to an objection by the
government, that was previously granted based on U.S.S.G.
3
The date of the Ahmed interviews and the motel raid are
listed in the briefs as July 15th but at the sentencing hearing, it
was asserted that the day of these events was July 16th. However,
neither party disputes that these events occurred on the same day
and in the order listed above, despite this slight discrepancy of
dates.
4
§2L1.1(b)(1).4
At sentencing, the government withdrew its earlier objection
to the three level decrease in base level under § 2L1.1(b)(1). As
the government no longer objected, the district court reduced
Ahmed’s total offense level to 9. Ahmed then reiterated an
objection he had to the PSR’s recommendation that his base level be
increased by two levels for obstruction of justice. The PSR based
this recommendation on Ahmed’s statements to the FBI that he did
not know the sailors. The PSR concluded that these statements were
materially false statements that significantly impeded the
investigation because the agents had to spend more time looking for
the sailors.
At the sentencing hearing, Ahmed’s counsel argued that these
two statements were not significant impediments as the FBI caught
the sailors only a few hours later, and that the FBI already had
the lead about the Sandman Motel by the time of the second
interview. The government offered no evidence in response as to
why Ahmed’s denials of knowing the sailors was a significant
impediment. Instead, the government simply argued that they had
thousands of leads as to where the sailors might be and had Ahmed
told the FBI where the sailors were, it would have saved them time.
The district court agreed with the government’s argument, stating:
4
This section allows for a three level decrease if the
harbored alien is the defendant’s spouse or child or both. The
definition of a “child” can be found in 8 U.S.C. § 1101(b)(1) and
the term encompasses a variety of possibilities.
5
The Court would determine that there was a significant
impediment to the investigation placed in the way of law
enforcement by the defendant and the argument to the
contrary seems to be that he should be credited for what
turned out to be [an] excellent investigation by the
Federal Bureau of Investigation. I don’t think that
would be appropriate. I’ll overrule that objection.
Apparently, the district court reached this conclusion based solely
on the brief arguments presented before it at sentencing. After
overruling the objection, the district court sentenced Ahmed based
on a total offense level of 9, with a guideline range of four to
ten months. On November 25, 2002, the district court sentenced
Ahmed to six months incarceration, three years supervised release,
a $100.00 mandatory special assessment fee, and a $1,000.00 fine.
On December 11, 2002, the district court denied a motion by Ahmed
to stay his sentence of imprisonment pending his appeal.5 Ahmed
now appeals his sentence and the district court’s application of
the obstruction of justice enhancement.
DISCUSSION
Did the district court clearly err by imposing a two level upward
adjustment for obstruction of justice under U.S.S.G. § 3C1.1?
Ahmed asserts that the district court erred in applying the
sentence enhancement for obstruction of justice under U.S.S.G. §
3C1.1. We review a district court’s application of the Sentencing
5
Based on this information, Ahmed has presumably served
approximately three months of his six month sentence. However, a
reduction in offense level could also affect the amount of Ahmed’s
fine. See § 5E1.2.
6
Guidelines to the facts for clear error. United States v. Smith,
203 F.3d 884, 891 (5th Cir. 2000). Section 3C1.1 of the Sentencing
Guidelines provides that “[i]f...the defendant willfully obstructed
or impeded, or attempted to obstruct or impede, the administration
of justice during the course of the investigation, prosecution, or
sentencing of the instant offense of conviction,...increase the
offense level by 2 levels.” U.S.S.G. § 3C1.1. The district court
applied §3C1.1 based on Application Note 4(g) which states that
“providing a materially false information to a law enforcement
officer that significantly obstructed or impeded the official
investigation or prosecution of the instant offense” is a basis for
the increase. § 3C1.1, cmt. n.4(g). Ahmed claims that his mere
denials of knowing the sailors did not amount to a significant
impediment.
At the outset of our analysis, the Court notes that Ahmed’s
denials of knowing the sailors could possibly qualify under
Application Note 2 of § 3C1.1 which states that “[a] defendant’s
denial of guilt (other than a denial of guilt under oath that
constitutes perjury) . . . is not a basis for application of this
provision.” In United States v. Surasky, this Court found that a
defendant’s false statements that he had nothing to do with a
prison escape attempt, when viewed in the light most favorable to
him, were nothing more than denials of guilt. 976 F.2d 242, 244-45
(5th Cir. 1992). However, in United States v. Smith, this Court
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refused to extend the exception to a defendant when her statements
“went far beyond merely denying her own involvement or refusing to
provide information, which would not qualify for the obstruction
enhancement.” 203 F.3d 884, 891 (5th Cir. 2000); but see United
States v. Barnett, 939 F.2d 405, 407 (7th Cir. 1991) (finding that
a defendant’s false statements, not made under oath, that she had
invested money rather than fraudulently kept it for herself was
nothing more than a denial of guilt). Had the FBI actually asked
Ahmed where the missing sailors were, the statement would have
fallen squarely in this category, but Ahmed foreclosed them from
asking such a question by denying even knowing the sailors. Ahmed
argues in his brief that his statements really amounted to nothing
more than remaining silent in that the information relayed had the
same effect. Whether Ahmed’s statements were mere denials of guilt
or whether they went beyond merely denying his own involvement is
difficult to determine. However, as we find that Ahmed’s
statements did not significantly impede the investigation we need
not delve any deeper into this issue.
Under Application Note 5(b), the sentence enhancement under
§3C1.1 shall not apply for “making false statements, not under
oath, to law enforcement officers, unless Application Note 3(g)
above applies.” Therefore, not all false statements to law
enforcement officers automatically incur the sentence enhancement.
United States v. Phillips, 210 F.3d 345, 349 (5th Cir. 2000) (“The
8
application notes to § 3C1.1 make clear that not all false
statements to law enforcement justify the enhancement.”). In the
present case, only material statements that significantly impede
the investigation shall qualify. § 3C1.1, cmt. n.4(g).
Application Note 6 defines a material statement as a statement
that, “if believed, would tend to influence or affect the issue
under determination.” § 3C1.1, cmt. n.6. As this Court noted in
Surasky, it is hard to imagine a scenario where an immaterial
statement could obstruct justice and conversely, “any statement
that significantly obstructs or impeded an investigation is likely
to always, or almost always, be material.” 976 F.2d at 246, n.5.
This does not mean, however, that all material statements
significantly impede an investigation. In the present case,
Ahmed’s statements, if believed, could have influenced the
investigation in that the officers would have left Ahmed alone and
quit looking into his contacts. We, therefore, conclude that
Ahmed’s statements meet the low threshold of materiality.
However, we do not agree with the district court that Ahmed’s
statements significantly impeded the investigation. In the past,
this Circuit has found that statements which lead officers on a
misdirected investigation do qualify as significant impediments.
United States v. Phipps, 2003 WL 123841, *11 (5th Cir. 2003)
(finding that defendants’ statements which misidentified an
accomplice significantly impeded the investigation so as to warrant
9
the enhancement); Smith, 203 F.3d at 891 (finding the enhancement
appropriate because the defendant’s “statement went far beyond
merely denying her own involvement or refusing to provide
information, which would not qualify for the obstruction
enhancement; she specifically sent the FBI investigators on the
trail of unknown suspects, whom she specifically described in order
to obstruct the investigation into her own and her co-conspirators’
involvement”); United States v. Rickett, 89 F.3d 224, 226-27 (5th
Cir.1996) (finding that an obstruction enhancement was appropriate
when a defendant gave officers a false identification at the time
of his arrest which led them to arrest an innocent third party and
forced them to file a superseding indictment against the
defendant). Conversely, courts have held that statements which do
not cause investigators to expend any additional resources on their
investigation are not the type of statements which significantly
impede the investigation. Surasky, 976 F.2d at 247 (finding that
even if the Court were to hold that the defendant’s statements were
more than mere denials of guilt, they still did not significantly
impede the investigation into a prison escape attempt because a co-
conspirator had already confessed to the defendant’s involvement
and other evidence also already pointed to the defendant’s
involvement); United States v. Griffin, 310 F.3d 1017, 1022-23 (7th
Cir. 2002) (holding that because there was no evidence that the
defendant’s statement impeded the official investigation, the
10
statement alone could not support the obstruction enhancement);
Barnett, 939 F.2d at 407 (finding that because a defendant’s false
statements did not cause investigators to expend additional
resources, the obstruction of justice enhancement should not be
imposed under Note 3(g) and also was excluded by the “denial of
guilt” exception); see also Phillips, 210 F.3d at 349 (finding that
a defendant’s false statement to officers that he did not know who
owned a station wagon or the drugs it contained did not qualify for
an obstruction of justice enhancement because the statement did not
lead the officers on a misdirected investigation or impede the
investigation). Also, as the Seventh Circuit has recently noted,
the language of Application Note 4(g) “requires a causal
relationship between the materially false statement given and a
resulting impediment upon the investigation or prosecution.”
Griffin, 310 F.3d at 1023. In the present case, there is
absolutely no evidence that Ahmed’s statements caused the FBI
agents to go on a “wild goose chase,” or in any other way misled
the agents in the sort of manner that has traditionally been the
basis for enhancement. Rather, the FBI had to go forward with
their investigation as they normally would, i.e. continue searching
for and tracking down possible leads as to the sailors whereabouts.
The government argues only that the district court was
correct, but at the sentencing hearing, the government justified
the enhancement because “[h]ad Mr. Ahmed cooperated in the
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beginning, [the FBI] would not have had to track down all the rest
of the leads that they did have to go to.” This justification is
flawed for two reasons. First, the FBI agents never asked Ahmed
where the sailors were, only if he knew them. Though it is true
that the question they asked was probably preliminary to them
asking where the sailors were, it is hard to conceive how Ahmed’s
statement that he didn’t know the sailors could have created an
additional impediment to the investigation. Even if the FBI agents
had asked Ahmed if he knew where the sailors were located, as we
have already stated, a negative response to this question would
have qualified as a denial of guilt. The second flaw in the
government’s argument is that it seeks to punish Ahmed not for
impeding the investigation, but for not aiding in the
investigation. Under U.S.S.G. § 5K1.1, a defendant may receive a
downward departure in his sentencing for providing substantial
assistance to authorities, but this provision does not
axiomatically require a sentence enhancement for failing to assist
the authorities. Indeed, under § 5K1.2 “[a] defendant’s refusal to
assist authorities in the investigation of other persons may not be
considered as an aggravating sentencing factor.” U.S.S.G. § 5K1.2
(emphasis added). We therefore hold that the district court erred
in applying the sentence enhancement under § 3C1.1.6
6
We additionally note that Ahmed received a downward departure
for his acceptance of responsibility under §3E1.1, which the
government has never objected to. Application Note 4 of § 3E1.1
states, “Conduct resulting in an enhancement under § 3C1.1
12
“[W]hen an appellate court finds that the Guidelines have been
incorrectly applied, ‘a remand is appropriate unless the reviewing
court concludes, on the record as a whole, that the error was
harmless, i.e., that the error did not affect the district court's
selection of the sentence imposed.’” Surasky, 976 F.2d at 247
(quoting Williams v. United States, 503 U.S. 193, 203 (1992)).
“Such error is harmless only if it did not affect the selection of
the sentence imposed.” United States v. Reyes-Maya, 305 F.3d 362,
368 (5th Cir. 2002). Ahmed’s range of imprisonment under Offense
level 9 was 4-10 months. Under level 7, his range of imprisonment
would be 0-6 months. While it is true that the sentence Ahmed
received, 6 months, falls within both levels’ ranges, it falls at
the low end of level 9 but is the maximum recommended sentence
under level 7. Also, the district court stated that in sentencing
Ahmed, it would consider the fact that this was aberrant behavior
for Ahmed when selecting a sentence within the guideline range.
We, therefore, hold that the district court’s error in applying the
sentence enhancement under § 3C1.1 was not harmless.
CONCLUSION
Having carefully reviewed the record of this case and the
(Obstructing or Impeding the Administration of Justice) ordinarily
indicates that the defendant has not accepted responsibility for
his criminal conduct. There may, however, be extraordinary cases
in which adjustments under both §§ 3C1.1 and 3E1.1 may apply.”
U.S.S.G. § 3E1.1, cmt. n. 4. The government has never attempted to
demonstrate why this is an extraordinary case, and, it is this
Court’s belief that it is not.
13
parties’ respective briefing and for the reasons set forth above,
we conclude that the district court clearly erred by enhancing
Ahmed’s offense level for obstruction of justice. We accordingly
VACATE Ahmed’s sentence and REMAND for re-sentencing.
VACATED AND REMANDED.
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