United States v. Muhamadou Kamateh

• Court: Court of Appeals for the Eleventh Circuit
• Decided: December 10, 2021
• Docket: 21-11228
• Status: Unpublished

Opinion

USCA11 Case: 21-11228 Date Filed: 12/10/2021 Page: 1 of 13

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 21-11228 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MUHAMADOU KAMATEH,

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 1:20-cr-00103-TWT-LTW-3 ____________________ USCA11 Case: 21-11228 Date Filed: 12/10/2021 Page: 2 of 13

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Before WILSON, GRANT, and ANDERSON, Circuit Judges. PER CURIAM: Muhamadou Kamateh appeals his 46-month sentence for conspiracy to commit money laundering, 18 U.S.C. § 1956(a)(1)(B)(i) & (h). He argues that his sentence is procedurally and substantively unreasonable, and that the government’s failure to move for a downward departure based on his substantial assis- tance violated an implied plea agreement. For the reasons that fol- low, we affirm Kamateh’s conviction and sentence. I. In August 2018, Kamateh checked luggage containing ap- proximately $45,000 in cash onto a flight departing from Nashville International Airport, but he did not board the flight. Law enforce- ment officers seized the cash after a police dog gave a positive alert for the odor of narcotics on it. Two months later, Kamateh again checked luggage contain- ing a large amount of cash—this time almost $115,000—onto a flight departing from Nashville International Airport. Once again, a police dog alerted to the smell of narcotics on the money, and law enforcement officers seized it. Both sums of cash seized from Kamateh were later deter- mined to be proceeds from a marijuana trafficking organization run by one of Kamateh’s cousins, Alhaji Jewru Touray. Kamateh, Touray, and others were named in a six-count indictment charging USCA11 Case: 21-11228 Date Filed: 12/10/2021 Page: 3 of 13

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them with conspiracy to commit money laundering. The indict- ment also charged Kamateh’s codefendants with drug-trafficking and firearm offenses. Kamateh entered a guilty plea to the money laundering con- spiracy charge. The district court sentenced him to 46 months in prison followed by three years of supervised release. Kamateh now appeals, arguing that (1) the district court committed procedural error by denying his request for a mitigating role reduction when determining his Sentencing Guidelines sentencing range, (2) his 46- month sentence is substantively unreasonable, and (3) the govern- ment’s refusal to move for a substantial-assistance reduction vio- lated an implied plea agreement. We consider each argument in turn. II. A. Kamateh first argues that his sentence is procedurally unrea- sonable because the district court declined to reduce his U.S. Sen- tencing Guidelines offense level based on his role in the offense, which he contends was minimal. A district court’s conclusion about the defendant’s role in the offense is a factual finding that we review for clear error. United States v. Docampo, 573 F.3d 1091, 1096 (11th Cir. 2009). The defendant bears the burden of establish- ing by a preponderance of the evidence that he is entitled to a mit- igating role reduction. United States v. Cruickshank, 837 F.3d 1182, 1192 (11th Cir. 2016). USCA11 Case: 21-11228 Date Filed: 12/10/2021 Page: 4 of 13

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If a sentencing court finds that the defendant played a lesser role in the relevant criminal activity, it may reduce the defendant’s Guidelines offense level by two to four levels. U.S.S.G. § 3B1.2. The court may apply a two-level reduction for a “minor partici- pant,” a four-level reduction for a “minimal participant,” and a three-level reduction for a defendant whose participation falls in between. Id. A minor participant is someone “who is less culpable than most other participants in the criminal activity, but whose role could not be described as minimal,” while minimal participants are “plainly among the least culpable of those involved in the conduct of a group.” Id., cmt. nn.4 & 5. In determining whether a role reduction is appropriate, the district court should look to two guiding principles. First, “the dis- trict court must assess whether the defendant is a minor or minimal participant in relation to the relevant conduct attributed to the de- fendant in calculating her base offense level” under the Guidelines. United States v. Rodriguez De Varon, 175 F.3d 930, 941 (11th Cir. 1999) (en banc). Here, Kamateh’s base offense level was calculated based solely on the transportation of approximately $160,000 in drug proceeds—he was not held accountable for any of his code- fendants’ drug-trafficking activities or for the money-laundering crimes committed by other couriers in his cousin’s organization. For purposes of assessing Kamateh’s role under § 3B1.2 of the Sen- tencing Guidelines, therefore, the relevant conduct was identical to his actual conduct. USCA11 Case: 21-11228 Date Filed: 12/10/2021 Page: 5 of 13

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Second, “the district court may also measure the defendant’s culpability in comparison to that of other participants in the rele- vant conduct.” Id. at 944. In conducting this comparative assess- ment, the focus remains on the conduct for which the defendant was held accountable at sentencing. Id. The “district court may consider only those participants who were involved in the relevant conduct attributed to the defendant,” and only to the extent that such participants “are identifiable or discernable from the evi- dence.” Id. Based on the evidence before the district court, the only other participant in Kamateh’s conduct was his cousin Tou- ray, the leader of the criminal enterprise who presumably directed Kamateh’s activities at some level. With these two principles in mind, we consider Kamateh’s argument that the district court clearly erred in finding that he did not play a minor or minimal role in the relevant conduct. Ka- mateh’s chief argument is that by transporting money on two oc- casions, he played only a minimal role in Touray’s drug-trafficking organization. He points out that he had no part in buying, trans- porting, or selling narcotics, and that the money he carried was only a fraction of the millions of dollars laundered by his cousin during the course of the conspiracy. This argument ignores the first principle discussed above: “in determining a defendant’s role in the offense, a district court must measure the defendant’s role against the relevant conduct attributed to her in calculating her base offense level.” De Varon, 175 F.3d at 943–44. Kamateh’s role in his codefendants’ drug-trafficking conspiracy is irrelevant USCA11 Case: 21-11228 Date Filed: 12/10/2021 Page: 6 of 13

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because Kamateh was not held accountable for the activities of the drug-trafficking organization at sentencing. See id. at 941–42, 944. As we have explained before, “where the relevant conduct at- tributed to a defendant is identical to her actual conduct, she can- not prove that she is entitled to a minor role adjustment simply by pointing to some broader criminal scheme in which she was a mi- nor participant but for which she was not held accountable.” Id. at 941. As to the conduct for which Kamateh was held accounta- ble—transporting cash proceeds from the drug-trafficking business on two occasions—he has not carried his burden of showing that he was a minor or minimal participant. Although defense counsel argued at sentencing that Kamateh did not plan or organize his money-laundering trips and had no decision-making authority or discretion with regard to those trips, he presented no evidence to support those contentions. See U.S.S.G. § 3B1.2, cmt. n.3(C)(ii)– (iv). And even if we assume that Touray (as mastermind of the larger conspiracy) played a managing role in Kamateh’s conduct, that fact is not dispositive since it is possible that neither Kamateh nor his cousin are minor or minimal participants in the relevant conduct. De Varon, 175 F.3d at 944. On this record, the district court did not clearly err in finding that Kamateh did not play a mi- nor or minimal role in the criminal conduct for which he was held accountable. USCA11 Case: 21-11228 Date Filed: 12/10/2021 Page: 7 of 13

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B. Next, Kamateh argues that his 46-month sentence is substan- tively unreasonable in light of his personal history of childhood abuse and privation and his candor and cooperation with the gov- ernment. We review the substantive reasonableness of a sentence using an abuse-of-discretion standard, considering the totality of the circumstances and whether the sentence achieves the purposes outlined in 18 U.S.C. § 3553(a). United States v. Irey, 612 F.3d 1160, 1188–89 (11th Cir. 2010) (en banc). Under § 3553(a), a sentencing court must consider the na- ture and circumstances of the defendant’s offense and the defend- ant’s history and characteristics and impose a sentence that is “suf- ficient, but not greater than necessary, to comply with” the statu- tory purposes of sentencing. 18 U.S.C. § 3553(a). Those purposes include the need to reflect the seriousness of the offense, promote respect for the law, provide just punishment for the offense, deter criminal conduct, protect the public from further crimes by the de- fendant, and provide the defendant with needed education and treatment. Id. § 3553(a)(2). The court must also consider the kinds of sentences available, the defendant’s Guidelines sentencing range, applicable guidelines and policy statements issued by the Sentencing Commission, the need to avoid unwarranted sentenc- ing disparities among similarly situated defendants, and the need for restitution, if any. Id. § 3553(a)(3)–(7). “A district court abuses its considerable discretion and im- poses a substantively unreasonable sentence only when it (1) fails USCA11 Case: 21-11228 Date Filed: 12/10/2021 Page: 8 of 13

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to afford consideration to relevant factors that were due significant weight, (2) gives significant weight to an improper or irrelevant fac- tor, or (3) commits a clear error of judgment in considering the proper factors.” United States v. Rosales-Bruno, 789 F.3d 1249, 1256 (11th Cir. 2015) (citation and quotation marks omitted). Ap- plying the abuse-of-discretion standard, we will reverse only if we are “left with the definite and firm conviction that the district court arrived at a sentence falling outside the range of reasonable sen- tences.” United States v. McQueen, 727 F.3d 1144, 1156 (11th Cir. 2013). The 46-month sentence here was well within the range of reasonable sentences that the district court could have imposed for Kamateh’s crime. The court explained that it had considered the relevant § 3553(a) sentencing factors and believed that a within- Guidelines sentence appropriately accounted for them. The court emphasized the seriousness of Kamateh’s offense, which involved laundering a total of approximately $160,000 in drug-trafficking proceeds, and it concluded that the sentence of home confinement that Kamateh requested would not provide just punishment for the offense. Contrary to Kamateh’s argument on appeal, the weight to be accorded to any one of these factors, as compared to Kamateh’s personal history, “is a matter committed to the sound discretion of the district court, and the court is permitted to attach great weight to one factor over others.” United States v. Riley, 995 F.3d 1272, 1279 (11th Cir. 2021) (citations and quotation marks omitted). USCA11 Case: 21-11228 Date Filed: 12/10/2021 Page: 9 of 13

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We also reject Kamateh’s argument that the district court should have given him a below-Guidelines sentence to account for his cooperation with the government, despite the government’s re- fusal to request a downward departure on that ground. The court was aware that Kamateh had supplied information leading to the indictment of at least one codefendant but refused to provide any assurance that he would continue to cooperate (by, for example, testifying at his codefendants’ trials). Under the circumstances, it was not unreasonable for the district court to decline to vary down- ward below Kamateh’s Guidelines range based on his cooperation. We also note that the sentence was at the low end of the Guidelines range of 46–57 months and well below the statutory maximum sentence of 20 years in prison. See 18 U.S.C. § 1956(a)(1) & (h). Although a Guidelines sentence is not entitled to a presump- tion of reasonableness, “sentences that fall within the Guidelines range or that are below the statutory maximum are generally rea- sonable,” and the defendant bears the burden of showing that his sentence is unreasonable in light of the record and the § 3553(a) factors. United States v. Muho, 978 F.3d 1212, 1227 (11th Cir. 2020); United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). Kamateh has not met his burden here, and we conclude that the district court did not abuse its discretion in sentencing him. C. Last, Kamateh argues that the government’s refusal to move for a downward departure pursuant to U.S.S.G. § 5K1.1 breached USCA11 Case: 21-11228 Date Filed: 12/10/2021 Page: 10 of 13

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an unwritten plea agreement. 1 When a defendant’s “plea rests in any significant degree on a promise or agreement of the prosecu- tor, so that it can be said to be part of the inducement or consider- ation, such promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262 (1971). Accordingly, if the government promises to file a substantial-assistance motion in exchange for the defend- ant’s assistance and guilty plea and later breaches that agreement, we may enforce the government’s promise by remanding for re- sentencing and specific performance or to allow the defendant to withdraw his guilty plea. See id. at 263; United States v. Hunter, 835 F.3d 1320, 1329 (11th Cir. 2016). Generally, where the facts are undisputed, we review whether the government breached a plea agreement with the de- fendant de novo. Hunter, 835 F.3d at 1324. But because Kamateh failed to object on this ground in the district court, we review only for plain error. See Puckett v. United States, 556 U.S. 129, 133–34 (2009). Plain error exists where (1) there is an error; (2) that is “clear or obvious”; and (3) that affected the defendant’s substantial rights. Id. at 135. If all three prongs are satisfied, we may reverse “if the error seriously affect[s] the fairness, integrity, or public

1 Section 5K1.1 provides, in relevant part, that the district court may depart from a defendant’s Guidelines range “[u]pon motion of the government stat- ing that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense.” USCA11 Case: 21-11228 Date Filed: 12/10/2021 Page: 11 of 13

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reputation of judicial proceedings.” Id. (alteration in the original) (quoting United States v. Olano, 507 U.S. 725, 736 (1993)). We find no error—let alone plain error—here. Kamateh claims that he cooperated with the government and entered a guilty plea “with the implicit understanding that he would benefit from assistance that benefited the government.” But while it is ev- ident that the parties discussed the possibility of a government sub- stantial-assistance motion, it is equally evident that the govern- ment made no promises in that regard. Kamateh testified at the change-of-plea hearing that no one had made him any promises that induced him to plead guilty, and his counsel confirmed that she had no knowledge of any plea agreement or bargain affecting Kamateh’s guilty plea. And at sentencing, the parties explained that they had been unable to reach a plea agreement because the gov- ernment would not agree to file a substantial-assistance motion based solely on Kamateh’s past cooperation, and Kamateh would not commit to providing continued assistance until the conclusion of his codefendants’ trials. Since the government did not promise to file a substantial-assistance motion, its failure to file such a mo- tion was not a breach of a plea agreement. Cf. United States v. Copeland, 381 F.3d 1101, 1105 (11th Cir. 2004) (the first step in de- termining whether the government breached a plea agreement is to “determine the scope of the government’s promises”). In the absence of an enforceable promise by the govern- ment, our review of the government’s decision not to file a sub- stantial-assistance motion is limited. Section 5K1.1 gives the USCA11 Case: 21-11228 Date Filed: 12/10/2021 Page: 12 of 13

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government “a power, but not a duty, to file a motion when a de- fendant has substantially assisted.” Wade v. United States, 504 U.S. 181, 185 (1992). In other words, the decision whether to file a sub- stantial-assistance motion is a matter of prosecutorial discretion, and the government is not obligated to file a motion for a down- ward departure merely because the defendant has provided sub- stantial assistance. See id. at 185–86, 187. Judicial review of the exercise of this discretion “is appropriate only ‘when there is an al- legation and a substantial showing that the prosecution refused to file a substantial assistance motion because of a constitutionally im- permissible motivation.’” United States v. Dorsey, 554 F.3d 958, 961 (11th Cir. 2009) (emphasis in original) (quoting United States v. Forney, 9 F.3d 1492, 1502 (11th Cir. 1993)). Kamateh has not made any showing that the government’s refusal stemmed from an unconstitutional motivation. Instead, he argues that the government was obligated to reward his assistance because the information he provided led to indictments. But a “claim that a defendant merely provided substantial assistance will not entitle a defendant to a remedy.” Wade, 504 U.S. at 186. III. We conclude that Kamateh’s sentence is not procedurally or substantively unreasonable, and that the government did not breach a plea agreement with Kamateh by refusing to file a motion for a downward departure pursuant to U.S.S.G. § 5K1.1. We there- fore AFFIRM Kamateh’s conviction and sentence. USCA11 Case: 21-11228 Date Filed: 12/10/2021 Page: 13 of 13

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AFFIRMED.