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.