United States v. Khan

518 F. App'x 52

• Court: Court of Appeals for the Second Circuit
• Decided: May 8, 2013
• Docket: 12-2425-cr
• Status: Unpublished

Opinion

SUMMARY ORDER

Defendant-appellant Abdul Nadeem Khan was charged in a four-count Indictment filed on October 27, 2010. On May 9, 2011, Khan pleaded guilty before Judge Cote, pursuant to a plea agreement with the government, to three of the counts in the Indictment (conspiracy to commit bank fraud, in violation of 18 U.S.C. § 1349 (Count One), conspiracy to commit access device fraud, in violation of 18 U.S.C. § 1029(b)(2) (Count Two), and conspiracy to commit identity theft, in violation of 18 U.S.C. § 1028(f) (Count Three)). He then pleaded guilty before Magistrate Judge Cott, pursuant to a superseding cooperation agreement, 4 to aggravated identify theft, in violation of 18 U.S.C. § 1028A(a)(l)(c)(4)-(5), and 2 (Count Four).

On June 4, 2012, Khan was sentenced by Judge Cote to 39 months’ imprisonment on Counts One through Three, and 24 months’ imprisonment on Count Four. Judge Cote ordered that these sentences run consecutively, making Khan’s total term of imprisonment 63 months. The undisputed Guidelines range was 87 to 102 months’ imprisonment.

On appeal, Khan only argues that his sentence was procedurally unreasonable because Judge Cote did not expressly state that, under 18 U.S.C. § 3553(e), she could sentence him without regard to the 24-month mandatory minimum sentence otherwise applicable to the aggravated identity theft count (Count Four). We assume the parties’ familiarity with the facts and procedural history of this case.

DISCUSSION

Criminal sentences are generally reviewed for reasonableness, which “amounts to review for abuse of discretion.” United States v. Cavera, 550 F.3d 180, 187 (2d Cir.2008) (en banc). “Reasonableness review requires an examination of the length of the sentence (substantive reasonableness) as well as the procedure employed in arriving at the sentence (procedural reasonableness).” United States v. Johnson, 567 F.3d 40, 51 (2d Cir.2009). A district court errs procedurally when “it fails to calculate (or improperly calculates) the Sentencing Guidelines range, treats the Sentencing Guidelines as mandatory, fails to consider the § 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails adequately to explain the chosen sentence.” United States v. Robinson, 702 F.3d 22, 38 (2d Cir.2012) (citing Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)).

Where, as here, a defendant has not preserved a claim of procedural unreasonableness, “rigorous plain error analysis is appropriate.” United States v. Villafuerte, 502 F.3d 204, 208 (2d Cir.2007). Khan agrees that plain error review is appropriate in these circumstances. Appellant’s Br. 3, 6. A finding of “plain error” requires that

(1) there is an error; (2) the error is plain, that is, the error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected the appellant’s substantial rights, which in the ordinary case means it affected the outcome of the district court proceedings; and (4) the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

United States v. Marcus, 628 F.3d 36, 42 (2d Cir.2010) (internal quotation marks and bracket omitted).

We find no error, much less plain error, here. Khan’s arguments to the contrary-are not persuasive, and we find no basis in the record to support his view that Judge Cote misapprehended her authority, pursuant to 18 U.S.C. § 8553(e), to give a sentence below the statutory minimum on Count Four for several reasons.

First, we presume that sentencing judges are aware of their sentencing options. See, e.g., United States v. Quinones, 511 F.3d 289, 319 (2d Cir.2007) (“To the extent defendants submit that the district court must have misconstrued [a particular sentencing provision], we do not lightly assume that an experienced district judge has misread or misunderstood a criminal statute.”); United States v. Sweeney, 90 F.3d 55, 58 (2d Cir.1996).

Second, the record supports the view that Judge Cote was aware of her ability to sentence Khan below the 24-month mandatory minimum on Count Four. See App’x 44-45 (“I have nothing further to add, your Honor, except to say that I neglected to say that the government was moving under Section 3553(f) [sic ] 5 as well, which applies to the mandatory two year sentence, so I believe that would give the court complete discretion in terms of the sentence.”) (emphasis supplied). Indeed, Judge Cote only referenced Count Four’s 24-month mandatory minimum sentence in determining the applicable Guidelines range, see id. at 41-42, before the government discussed Khan’s cooperation and the District Court’s discretion pursuant to § 3553(e), see id. In the circumstances, we see no reason why Judge Cote needed to expressly state the obvious: that § 3553(e) allowed her to sentence Khan below the 24-month mandatory minimum sentence with regard to Count Four.

Third, despite Khan’s argument to the contrary, the ability of a district judge to sentence without regard to a mandatory minimum sentence, pursuant to § 3553(e), is clear from the text of the statute 6 and the law of this Circuit. See, e.g., United States v. Rivera, 662 F.3d 166, 175 n. 8 (2d Cir.2011) (“That remains true even though a substantial assistance motion under 18 U.S.C. § 3553(e) has been filed and the mandatory minimum is no longer applicable.”); United States v. Richardson, 521 F.3d 149, 159 (2d Cir.2008). Given our multiple decisions on this precise issue, we are at a loss to understand Khan’s basis for asserting that a district court’s authority under § 3553(e) is an open question in this Circuit.

CONCLUSION

We have considered all of Khan’s arguments on appeal and find them to be without merit. For the reasons stated above, we AFFIRM the District Court’s June 5, 2012 judgment.

4 . The government submitted, pursuant to U.S.S.G. § 5K1.1, a May 25, 2012 memorandum to the District Court, in which it asked the District Court to sentence Khan in light of his assistance in the prosecution of Shadid Bhatti, one of Khan’s co-defendants.

5 . The government incorrectly stated that it was moving under § 3553(f) instead of § 3553(e). This misstatement, however, was corrected by defense counsel immediately. App'x 45 ("Just thinking off the top of my head, I think it's 3553(e), your Honor, not F.”).

6 . 18 U.S.C. § 3553(e) provides:

(e) Limited authority to impose a sentence below a statutory minimum. — Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as a minimum sentence so as to reflect a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense. Such sentence shall be imposed in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28, United States Code.