United States v. Najeeb Rahman

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 27, 2018
• Docket: 17-10200
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 27 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-10200 17-10445 Plaintiff-Appellee, D.C. No. v. 2:15-cr-00178-LDG-GWF-1

NAJEEB RAHMAN, MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada Lloyd D. George, District Judge, Presiding

Submitted December 17, 2018** San Francisco, California

Before: GILMAN,*** PAEZ, and OWENS, Circuit Judges.

Najeeb Rahman appeals from his guilty plea conviction and sentence for

conspiracy to commit wire fraud (18 U.S.C. § 1349). Rahman argues that the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Ronald Lee Gilman, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. district court erred in denying his motion to withdraw his guilty plea because it was

not knowing or voluntary. Rahman also argues that his guilty plea was not

knowing or voluntary because the district court’s plea colloquy did not comport

with Federal Rule of Criminal Procedure 11. We have jurisdiction under 28 U.S.C.

§ 1291, and we dismiss due to a valid appellate waiver.

Rahman’s guilty plea includes a standard waiver of his right to appeal that

covers this appeal. See United States v. Rahman, 642 F.3d 1257, 1259 (9th Cir.

2011) (“We have consistently read general waivers of the right to appeal to cover

all appeals, even an appeal from the denial of a motion to withdraw a guilty

plea.”). However, a waiver of appellate rights is enforceable only if the guilty plea

itself is knowing and voluntary. See id. Thus, whether Rahman waived his right to

appeal depends on the merits of his arguments.

Rahman’s arguments fail. For starters, the district court did not err in

denying Rahman’s motion to withdraw his guilty plea. We review a district

court’s decision to deny a motion to withdraw a guilty plea for abuse of discretion.

United States v. Briggs, 623 F.3d 724, 727 (9th Cir. 2010). A defendant may

withdraw a guilty plea after entering the plea, but before sentencing, if the

defendant can show a “fair and just” reason for the withdrawal. Fed. R. Crim. P.

11(d)(2)(B); United States v. Ruiz, 257 F.3d 1030, 1031 (9th Cir. 2001) (en banc).

Rahman asserts two reasons for his request to withdraw his plea.

2 Rahman’s first purported reason is that his counsel misled him to believe

that he would receive 18 months of imprisonment total. Where “a defendant

shows that his counsel’s gross mischaracterization [of a possible sentence]

plausibly could have motivated his decision to plead guilty,” the defendant indeed

has a fair and just reason for withdrawal. United States v. McTiernan, 546 F.3d

1160, 1167 (9th Cir. 2008) (alteration and emphasis in original) (internal quotation

marks omitted). However, there was no such mischaracterization here because the

express language of Rahman’s plea agreement provides for more than 18 months

of imprisonment, and the record reflects that Rahman understood these terms.

Rahman’s second reason for withdrawal is that he was allegedly coerced by

a threat from the prosecutor to initiate grand jury proceedings against certain

family members if he withdrew from the plea agreement. “We have indicated that

governmental threats of criminal sanctions against relatives are relevant to the

voluntariness determination.” Sanchez v. United States, 50 F.3d 1448, 1455 (9th

Cir. 1995). If the government could bring a prosecution against a relative in good

faith, however, then informing the defendant of that fact does not amount to

coercion by itself. Id.; Cortez v. United States, 337 F.2d 699, 702 (9th Cir. 1964).

Instead, voluntariness is evaluated by looking to “the totality of circumstances”

and is a “question[] of fact which could only be determined after an evidentiary

hearing.” Johnson v. Wilson, 371 F.2d 911, 912 (9th Cir. 1967). Here, the district

3 court held such an evidentiary hearing and did not abuse its discretion in

determining that Rahman’s plea was voluntary. The district court recognized that

the government could have initiated grand jury proceedings against certain

relatives because they were suspected co-conspirators.

In addition, Rahman argues for the first time on appeal that his guilty plea is

invalid because of an inadequate Rule 11 colloquy. Our review of a Rule 11

violation not objected to below is limited to plain error. Fed. R. Crim. P. 52(b);

United States v. Vonn, 535 U.S. 55, 58 (2002). Under plain error review, the

defendant bears the burden of demonstrating that there is (1) an error; (2) that is

plain; and (3) that affects substantial rights. United States v. Olano, 507 U.S. 725,

732 (1993). And to establish an effect on substantial rights, “a defendant is

obliged to show a reasonable probability that, but for the error, he would not have

entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 76 (2004).

Here, Rahman asserts numerous alleged deficiencies in the district court’s

Rule 11 colloquy, but he makes no argument—other than a few conclusory

statements—that he would not have entered the plea had the district court made

these disclosures. Thus, even if we assume without deciding that there were errors,

Rahman has not met his burden to show that the errors affected his substantial

rights.

For the foregoing reasons, we conclude that Rahman’s guilty plea was

4 knowing and voluntary. Thus, his appellate waiver is effective.

DISMISSED.