UNITED STATES of America, Plaintiff-Appellee, v. Safeen SADIQ, Defendant-Appellant.
No. 14-1176.
United States Court of Appeals, Sixth Circuit.
Sept. 10, 2014.
485
The Underhills listed their 100% ownership interest in Golf Chic as an asset when they filed for bankruptcy. They did not list claims that Golf Chic filed months later as contingent interests despite being aware of some of the conduct on which the claims were based. The majority rejects the Bankruptcy Court and the Bankruptcy Appellate Panel‘s conclusion that the claims were part of the Underhills’ bankruptcy estate and, in so doing, divests Huntington of its rightful share of the settlement proceeds in which the claims resulted. I must, therefore, respectfully dissent.
ROGERS, Circuit Judge.
Safeen Sadiq and a co-conspirator fraudulently obtained and used credit cards in other people‘s names. Sadiq pleaded guilty to conspiracy to commit access device fraud, and the district court sentenced him to 21 months’ imprisonment. Sadiq now appeals his sentence, arguing that the district court erred in not letting him withdraw his guilty plea, that the district court improperly concluded that Sadiq did not accept responsibility, that the district court imposed an unreasonable sentence, that the district court should have granted him relief under
Sadiq and a co-defendant, Farbod Djafari, were indicted by a grand jury and charged with one count of conspiracy to commit access device fraud, in violation of
As part of the plea agreement, Sadiq admitted the facts contained in the written plea agreement. Sadiq admitted that he and Djafari obtained unauthorized credit card accounts in the names of two other individuals, Djafari‘s business associate, Ammar Mikho, and mother-in-law Masoumeh Khoshbin, without their permission. On the applications, Sadiq and Djafari falsely represented that Mikho and Khoshbin were employees at Djafari‘s companies earning fictitious salaries of up to $396,500 per year. Sadiq and Djafari also put addresses, e-mail addresses, and telephone numbers that they controlled on the applications, so Mikho and Khoshbin would not receive communications from the credit card companies alerting them that accounts had been opened in their names. Sadiq personally completed and submitted several of the applications over the Internet. Sadiq and Djafari used the credit cards to secure cash advances and purchase goods and services. Sadiq admitted purchasing furniture, lingerie, airfare, and lodging.
In addition, the plea agreement explicitly contained no agreement about the appropriate sentencing guidelines factors or the final guidelines range, and instead stated that the district court would determine the facts and calculations relevant to sentencing. The plea agreement also provided that Sadiq “understands that disagreement with the Guideline range or sentence shall not constitute a basis for withdrawal of the plea.” Moreover, the agreement stated that Sadiq “knowingly waives the right to appeal any sentence that is at or below the maximum guideline range as determined by the Court before any upward departure or variance.” Finally, the agreement stated that “[t]his agreement has been entered into by both sides freely, knowingly, and voluntarily, and it incorporates the complete understanding between the parties.” Sadiq signed the written plea agreement and in writing acknowledged that he had read the agreement, understood its terms, and voluntarily agreed to its terms.
The presentence investigation report indicated that the total losses from Sadiq and Djafari‘s crimes amounted to $166,726.71. Sadiq‘s total offense level was 15, which included a 10-point enhancement for an intended or actual fraud loss of more than $120,000.00, and a criminal history category of I. The guideline imprisonment range thus came to 18-24 months, with a guideline range for a term of supervised release between 1 and 3 years. Sadiq submitted several objections to the presentence investigation report. Sadiq also filed two sentencing memoranda in which he objected to the loss amount attributed to Sadiq and argued for a minor-role adjustment. Later, at sentencing, Sadiq again objected to the loss amount and the lack of a minor-role reduction in the level-of-offense calculation. The objection to the loss amount was based on Sadiq‘s assertion that he only benefited in the amount of only approximately $4,700. Sadiq‘s counsel‘s statement contradicted facts in the plea agreement—specifically, that Sadiq did not initially know that Djafari lacked permission from Khoshbin and Mikho to open the credit card account—but Sadiq‘s counsel maintained that Sadiq should receive credit for acceptance of responsibility. The district court overruled Sadiq‘s amount-of-loss objection and adhered to the loss amount in the presentence investigation report, attributing the full loss amount to Sadiq. The district court also determined that Sadiq had not
On January 28, 2014, the district court sentenced Sadiq to 21 months in prison and 3 years of supervised release, ordered restitution to be paid in the amount of $166,726.71, as well as a special assessment of $100, and dismissed the other counts contained in Sadiq‘s indictment. Sadiq subsequently retained new counsel and moved to withdraw his guilty plea two weeks later, on February 11, 2014. On the same day, Sadiq moved under
1. Motion to Withdraw
We lack jurisdiction to review the district court‘s denial of Sadiq‘s motion to withdraw his guilty plea because Sadiq‘s notice of appeal preceded the district court‘s order denying his motion to withdraw his guilty plea by one day. “In a criminal case, a defendant‘s notice of appeal must be filed in the district court within 14 days after the later of ... (i) the entry of either the judgment or the order being appealed; or (ii) the filing of the government‘s notice of appeal.”
Even if we had jurisdiction to review the district court‘s order, we would conclude that the district court properly denied Sadiq‘s motion to withdraw his guilty plea, because the motion was filed after his sentence was imposed. Sadiq was sentenced on January 28, 2014, and filed his motion to withdraw the plea two weeks later, on February 11, 2014. “After the court imposes sentence, the defendant may not withdraw a plea of guilty or nolo contendere, and the plea may be set aside only on direct appeal or collateral attack.”
2. Acceptance of Responsibility
The district court did not clearly err in denying the defendant an acceptance-of-responsibility reduction. See United States v. Genschow, 645 F.3d 803, 813 (6th Cir.2011) (stating clearly erroneous scope of review). This standard of review entails substantial deference: Because the trial court‘s assessment of a defendant‘s contrition will depend heavily on credibility assessments, the
Sadiq argues that he should have been given a two- or three-level reduction in his guidelines offense level for acceptance of responsibility, as permitted by
I‘m sorry for what I did for my—you know, I did mistakes. But I‘m learning from my mistakes as I grew. I was used by [Djafari], you know, for a while. I‘m sorry, you know, for the victims, you know, what they probably went through and everybody else. You know, if I should have—if I wouldn‘t have helped [Djafari], this wouldn‘t have happened, and I apologize to them and everybody for what I did. I‘ve been going through pains, and this won‘t happen again.
Moreover, Sadiq also filed two sentencing memoranda in which he objected to the loss amount attributed to him and argued for a minor-role adjustment. We have previously pointed out that “[m]erely expressing regret for the consequences of the criminal conduct, without admitting wrongful intent, does not constitute acceptance of responsibility within the meaning of the Guidelines.” Genschow, 645 F.3d at 813. “Although a guilty plea may provide some evidence of a defendant‘s acceptance of responsibility, that acceptance remains questionable where, as here, the plea may have been induced by factors of overwhelming evidence of guilt and desire to avoid the risk of conviction on other charges....” Carroll, 893 F.2d at 1512. Therefore, the district court did not commit clear error in declining to grant Sadiq an “acceptance of responsibility” reduction.
In connection with this issue, Sadiq also argues that his attorney was ineffective for filing sentencing memoranda and raising issues at the sentencing hearing that jeopardized Sadiq‘s ability to receive credit for acceptance of responsibility, namely, contesting the loss amount and asserting that Sadiq believed the victims gave Djafari consent to open the credit card accounts. However, “[t]his Court typically will not review a claim of ineffective assistance on direct appeal except in rare cases where the error is apparent from the existing record.” United States v. Ross, 703 F.3d 856, 882 (6th Cir.2012) (internal quotations omitted); see also United States v. McAllister, 693 F.3d 572, 586 (6th Cir.2012). Because further exploration and findings of facts would be helpful for resolving an ineffective assistance of counsel claim in this case, we decline to consider Sadiq‘s ineffective assistance arguments on direct appeal.
3. Reasonableness of Sadiq‘s Sentence
Sadiq argues unpersuasively that the district court failed to consider all the
By virtue of his guilty plea, [Sadiq] is most likely going to lose any safe status here. Or certainly could. And so I think in a sense he is a man without a country. He‘s not sure legally where he‘s going to go after this. So that‘s caused a lot of mistrust, doubt, confusion, and fear, frankly.
And so I think the Court needs to understand that to really get an understanding of Mr. Sadiq and maybe his behavior through some of this.
In addition to listening to that argument, the district judge reflected on the
4. Rule 35(a) Resentencing Motion
We lack jurisdiction to review the district court‘s order denying Sadiq‘s
when a defendant‘s timely notice of appeal follows [a post-judgment motion to correct a sentence under
Rule 35(a) ] but predates any action on the motion by the district court ... the original notice of appeal, unamended, does not create appellate jurisdiction to review the district court‘s subsequent disposition of theRule 35(a) motion. In order to test the post-appeal denial ofRule 35(a) relief, the defendant must either amend his original notice of appeal or file a new notice of appeal.
United States v. Ortiz, 741 F.3d 288, 290 (1st Cir.2014). Moreover, under
Moreover, the district court correctly denied Sadiq‘s
5. Motion to Seal
For the same reasons as those outlined above with respect to Sadiq‘s motion to withdraw his guilty plea and his
For the foregoing reasons, we dismiss the appeal with respect to Sadiq‘s motion to withdraw his guilty plea, his motion under