United States v. Sahi Sarwar

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 20, 2009
No. 08-17233 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 08-00037-CR-4-RH

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SAHI SARWAR,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Northern District of Florida
_________________________

(November 20, 2009)

Before BIRCH, BLACK and BARKETT, Circuit Judges.

PER CURIAM:

Sahi Sarwar appeals his 92-month sentence imposed for willfully failing to
make a timely application to depart the United States and taking action designed to

prevent his departure, after a final order of removal, in violation of 8 U.S.C.

§§ 1253(a)(1)(B), (a)(1)(C) and 1227(a)(2). Sarwar argues that the government

failed to prove that he was ever “admitted” to the United States for purposes of the

ten-year maximum sentence under 8 U.S.C. § 1253(a), and that his sentence must

be reversed accordingly. Sarwar also challenges the reasonableness of his sentence.

We AFFIRM.

I. BACKGROUND

Sarwar was indicted for willfully refusing to make a timely application to

depart the United States and for taking action designed to prevent his departure

from the United States, in violation of 8 U.S.C. §§ 1253(a)(1)(B), (a)(1)(C), and

1227(a)(2). R1-16. The indictment specified that Sarwar was an alien against

whom a final order of removal was outstanding due to his illegal presence in the

United States. Id.

Agent Angel Concepcion, an immigration enforcement agent, testified at the

jury trial about Sarwar’s alien registration file and his record of admission into the

United States, under a Form I-94 in the name of “Ghani Sarwar.” R2 at 34-35, 109.

The Form I-94 stated that Ghani Sarwar arrived in New York in May 1989 through

the Canada Peace Bridge port of entry with a Pakistani passport and temporary

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visitor visa, stating that he was a Pakistani citizen. Id. at 111, 121. Though Agent

Concepcion found another entry in the immigration database indicating that Ghani

Sarwar entered the country in July 1989, he found no record that Ghani Sarwar ever

departed the United States. Id. at 111-12.

Sarwar applied for asylum in 1993, at which time the government first

opened his immigration file, but Sarwar failed to appear for the asylum interview

and the process was terminated. Id. at 67. In the 1993 asylum application, Sarwar

claimed that he first arrived in the United States in February of 1990 with a passport

issued by Pakistan. Id. at 68, 70. Sarwar filed a second asylum application in 2007,

stating that he entered the United States in 1990 with a U.S. passport; the

application was denied. Id. at 68-69, 74, 84-85. Agent Concepcion testified that, in

November 2007, the Board of Immigration Appeals ordered that Sarwar be

removed from the United States to Pakistan. Id. at 37. Sarwar was served on

numerous occasions with a Form I-229(a), i.e., “Warning for Failure to Depart,” but

refused to sign the documents and claimed that he was not a citizen of Pakistan. Id.

at 39, 49-51, 63-64, 91-99.

Seema Harnanan, the mother of Sarwar’s two children, testified that she lived

in the United States with Sarwar from 1993 until 2004. Id. at 131-33. Harnanan

also stated that while Sarwar was in prison, she mailed his passports, country ID

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card, birth certificate, and other important paperwork back to his brother in

Pakistan, per Sarwar’s instructions. Id. at 139. She stated that Sarwar had two to

three Pakistani passports in different names, including Sahi Sarwar and Ghani

Khan. Id. at 139-40. While Sarwar was in prison, Harnanan received a letter from

Sarwar’s brother in Pakistan asking her to call him about “Ghani Sarwar,” and she

forwarded the letter to Sarwar. Id. at 141-45. Harnanan testified that Sarwar told

her that he used the name “Sahi Sarwar” because it was the name of his dead

brother, and if he was deported from the United States he would return under the

name “Ghani Sarwar.” Id. at 151-52. Harnanan testified that when she and Sarwar

moved from New York to Florida, Sarwar destroyed much of his personal

paperwork. Id. at 152-53.

Sarwar testified in his defense that he flew into the United States from

Pakistan in 1989 with a false Pakistani passport in the name of “Ghani Sarwar,”

then left the United States for Pakistan at an unspecified date via the Canada Peace

Bridge in New York, and returned to the United States in February 1990 via the

Canada Peace Bridge. R3 at 181-84. Sarwar admitted that he has remained in the

United States since his arrival in 1990. Id. at 180. Sarwar testified that his real

name is “Sahi Sarwar” and that he simply used the name “Ghani Sarwar” for entry

into the United States. Id. at 188, 241. He went on to state that he lied to a

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probation officer about his family and about other requested information. Id. at

240-41. The jury found Sarwar guilty. R1-35.

At sentencing, Sarwar objected to the applicability of 8 U.S.C. § 1227(a),

arguing that he was never “admitted” to the United States for purposes of that

statute and thus did not qualify for the statutory maximum sentence of ten years.

R4 at 3. When the district court inquired as to whether, at one point, Sarwar legally

entered the United States, Sarwar’s counsel responded, “At one point, yes, sir.” Id.

The court then overruled Sarwar’s objection. Id. at 4. The court sentenced Sarwar

to 92 months’ imprisonment, as provided for in the guidelines (of 92 to 115

months) of §§ 1227(a) and 1253(a)(1). Id. at 50.

II. DISCUSSION

A. “Admission” under 8 U.S.C. §§ 1227(a)

On appeal, Sarwar argues that the government failed to prove that he was

ever “admitted” to the United States under 8 U.S.C. §§ 1227(a)(2)(A)(iii) and

(a)(2)(C) for purposes of the maximum sentence, and that his sentence must be

reversed accordingly. Sarwar insists that, to qualify him for the ten-year maximum

sentence under 8 U.S.C. § 1253(a)(1), the government had to prove that he was

convicted of an aggravated felony or an enumerated firearms offense “at any time

after admission” to the United States. While Sarwar concedes that the government

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proved he was convicted of such offenses, he argues that there is insufficient

evidence to show that he was first “admitted” to the United States under 8

U.S.C. § 1101(a)(13)(A). If the government failed to prove that Sarwar was

convicted of certain enumerated offenses after admission to the United States, the

maximum statutory sentence would be four, rather than ten, years in prison.

An alien who is convicted under 8 U.S.C. § 1253(a)(1) for willful failure to

make a timely departure application or taking action to prevent departure is subject

to a statutory maximum sentence of four years in prison. 8 U.S.C. § 1253(a)(1).

However, if the alien falls within the ambit of 8 U.S.C. § 1227(a)(2), then the

maximum term of imprisonment is ten years. Id. Under 8 U.S.C.

§ 1227(a)(2)(A)(iii), “[a]ny alien who is convicted of an aggravated felony at any

time after admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii) (emphasis

added). Similarly, “[a]ny alien who at any time after admission is convicted under

any law of . . . possessing . . . a firearm . . . in violation of any law is deportable.” 8

U.S.C. § 1227(a)(2)(C) (emphasis added). The term “admission” is defined as “the

lawful entry of the alien into the United States after inspection and authorization by

an immigration officer.” 8 U.S.C. § 1101(a)(13)(A).

Sarwar argues that the plain language of 8 U.S.C. § 1101(a)(13)(A) controls,

i.e., “admission” means “the lawful entry of the alien into the United States after

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inspection and authorization by an immigration officer.” Appellant’s Brief at 15.

Sarwar next argues that the government failed to prove his “admission” by “clear,

unequivocal, and convincing evidence” because the Immigration Form I-94

introduced through the testimony of Agent Concepcion was surrounded by

fraudulent circumstances.

Sarwar contends that the various identities he used, i.e., Ghani Sarwar, Sahi

Sarwar do not support a finding of “admission” under 8 C.F.R. § 101.2, which

provides a limited presumption of lawful admission for entry under an erroneous

name in certain circumstances. Sarwar also submits, inter alia, the following in

support of the argument that he was not admitted in 1990: (1) the government’s file

on Sarwar was not opened until 1993; and (2) Sarwar stated in his 2007 asylum

application that he entered the United States in February 1990 without having been

inspected by an immigration officer. For the first time on appeal, Sarwar argues

that, when the immigration judge ordered his removal from the United States, the

judge found that Sarwar did not have any valid entry documents, and that this

further illustrates that he had not been “admitted.”

We review a district court’s factual findings for clear error and its application

of the Sentencing Guidelines to those facts de novo. United States v. Kinard, 472

F.3d 1294, 1297 n.3 (11th Cir. 2006) (per curiam). Moreover, “we review de novo

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questions of statutory interpretation.” United States v. Maupin, 520 F.3d 1304,

1306 (11th Cir. 2008) (per curiam).

Sarwar’s counsel conceded that Sarwar had entered the United States legally

at least once by 1990. Unless withdrawn, an attorney’s statements in court, on

behalf of his client, “which dispense with proof of facts . . . are not merely evidence

as in the case of an ordinary admission. They are absolutely binding. As long as

they stand, they foreclose the matter altogether.” Laird v. Air Carrier Engine

Service, Inc., 263 F.2d 948, 953 (5th Cir. 1959). The district court was free to take

this statement as evidence that Sarwar had entered the country legally.

Sarwar argues that the I-94 form introduced by Agent Concepcion is

insufficient to show “admission” to the United States because it was fraudulent. He

bases this argument on his own declaration that the name “Ghani Sarwar” on the

Pakistani passport was fraudulent. The court was within its discretion to discount

this statement as not credible and to credit Harnanan’s testimony that Sarwar told

her that he used the name “Sahi Sarwar” because it was the name of his dead

brother, and that he would return under the name “Ghani Sarwar” if deported. The

district court did not abuse its discretion in discounting Sarwar’s testimony and

accepting his counsel’s concession to legal entry.

Sarwar’s concession to legal entry in 1990 at the latest, coupled with his

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convictions in 2005 under 8 U.S.C. §§ 1227(a)(2)(A)(iii) and (a)(2)(C), support the

district court’s finding that Sarwar was convicted of an aggravated felony and an

enumerated firearms offense after “admission” to the United States for the purposes

of 8 U.S.C. § 1253(a)(1), and thus subject to the maximum statutory sentence of ten

years’ imprisonment.

B. Reasonableness of Sentence

Sarwar, without further argument, asserts that a sentence beyond the four

year statutory maximum was both procedurally and substantively unreasonable.

We review a defendant’s sentence for reasonableness under an abuse-of-discretion

standard. Gall v. United States, 552 U.S. ___,128 S.Ct. 586, 594 (2007). “[T]he

party who challenges the sentence bears the burden of establishing that the sentence

is unreasonable in light of both [the] record and the factors in section 3553(a).”

United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).

A sentence is procedurally unreasonable if the district court fails to consult,

consider, and properly calculate the Sentencing Guidelines. See United States v.

Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008). A sentence is substantively

unreasonable if, considering all the circumstances, it fails to achieve the sentencing

purposes of § 3553(a). See id. at 1191. Although a court must consider all of the

§ 3553(a) factors, it need not discuss each factor individually. See id. at 1191 n.8.

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We may apply a presumption of reasonableness to sentences that fall within the

guidelines range. See id. at 1190. Sarwar has the burden in asserting both and fails

to carry this burden by merely calling the sentence unreasonable. Because it falls

within the sentencing range of 92 to 115 months, the sentence is presumed

reasonable. See id. The district court properly found that Sarwar was subject to a

ten-year maximum sentence under §§ 1227(a)(2)(A)(iii), (a)(2)(C), but ultimately

sentenced him to 92 months of imprisonment, the low end of the guideline range.

Sarwar’s blanket statement challenging the reasonableness of his sentence is

insufficient to establish that the district court abused its discretion.

III. CONCLUSION

Sarwar argues that the ten-year maximum sentence provided for under 8

U.S.C. § 1253(a)(1) does not apply to him and challenges the reasonableness of his

sentence. We conclude that the district court did not abuse its discretion in finding

that 8 U.S.C. § 1253(a)(1) applied to Sarwar and that the sentence imposed was

neither procedurally nor substantively unreasonable. Accordingly, we AFFIRM the

judgment of the district court.

AFFIRMED.

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