                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-24-2008

USA v. Muhammad
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4883




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                                                    NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                _______________

                                     No. 06-4883
                                   _______________

                           UNITED STATES OF AMERICA

                                             v.

                                  LONDON SMITH
                                       aka
                              SHAKIL MUHAMMAD
                           Shakil Muhammad a/k/a London Smith,

                                                Appellant
                                   _______________

                    On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                                 (D.C. No. 05-cr-00329)
                    District Judge: Honorable Christopher C. Conner
                                    _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  January 7, 2008

                   Before: FUENTES and JORDAN, Circuit Judges
                           and O’NEILL*, District Judge.

                                Filed: January 24, 2008
                                  _______________

                              OPINION OF THE COURT
                                  _______________

_______________
   *Honorable Thomas N. O’Neill, Jr., United States District Court Judge for the Eastern
District of Pennsylvania, sitting by designation.
JORDAN, Circuit Judge.

       Shakil Muhammad, also known as London Smith, appeals his conviction and

sentence for unlawful distribution and possession with intent to distribute heroin, in

violation of 21 U.S.C. § 841(a)(1), and for being a felon in unlawful possession of a

firearm, in violation of 18 U.S.C. § 922(g). Finding no error, we will affirm.

I.     Background

       Because we write solely for the parties’ benefit, we assume familiarity with the

case and discuss only the background information necessary to our decision. Muhammad

was indicted for the offenses already noted and, after some procedural steps not relevant

here, he chose to plead guilty to those offenses. Before accepting the guilty plea, the

District Court conducted a careful colloquy, which included the following exchanges with

Muhammad:

       The Court:    Do you understand that the terms of the plea agreement are
                     simply recommendations to the court, and that I can reject the
                     recommendations without permitting you to withdraw your
                     plea of guilty and impose a sentence which is more severe
                     than you may anticipate?

       Defendant:    Yes, Your Honor.

                                    *       *       *

       The Court:    Do you understand that the total statutory maximum term of
                     imprisonment under the United States Code for these offenses
                     is thirty years, a fine of 1.25 million dollars, ... a total of eight
                     years of supervised release, and in addition to the costs of
                     prosecution, denial of certain federal benefits, and a $200
                     assessment?


                                                2
       Defendant:    Yes, Your Honor.

                                   *      *       *

       The Court:    You should be advised that prior conviction can affect your
                     guideline sentencing range... . Do you understand this?

       Defendant:    Yes, Your Honor.

                                   *      *       *


       The Court:    Now, if your attorney or anyone else has estimated your
                     guideline sentence at this time and I determine after I review
                     the presentence report that the guideline is different from
                     what has been estimated to you, you cannot withdraw your
                     guilty plea. Do you understand that?

       Defendant:    Yes.

                                   *      *       *

       The Court:    Do you understand that the guideline range is advisory only,
                     and that after your guideline range has been determined that
                     the court has the authority to impose a sentence that is more
                     severe or less severe that the sentence called for by the
                     guidelines?

       Defendant:    Yes, Your Honor.

(Quoted in App. at 15-16.)

       In short, Muhammad affirmed that he understood the penalties facing him, that he

could not withdraw his guilty plea simply because it appeared he could receive a harsher

sentence than he thought he would, and that he wanted to plead guilty because he was, in

fact, guilty. (App. At 15-16, 64.) Nevertheless, after seeing the presentence report,

Muhammad decided that he really did not want to plead guilty after all. He freely admits

                                              3
that his change of heart came because he believed from the presentence report that he was

facing a harsher sentence than he had earlier anticipated. Since the report suggested that

he should be classified as a “career offender” and calculated his potential sentence on that

basis, Muhammad decided that he really had not possessed his heroin with the intent to

distribute it. It was, instead, his personal stash, for his personal use.

       In a written opinion, the District Court declined to allow Muhammad to withdraw

his guilty plea. That same day, an amended presentence report issued, saying that

Muhammad should not be classified as a “career offender” and adjusting his guideline

calculation accordingly. At sentencing a few days later, the Court agreed that the career

offender designation was not applicable and proceeded to sentence Muhammad to 104

months imprisonment on each of the two counts of conviction, the time to be served

concurrently. The sentence also included the payment of fines, special assessments,

restitution, and supervised release.

II.    Discussion

       Muhammad makes two arguments on appeal.1 First, he argues that the District

Court erred in refusing to allow him to withdraw his guilty plea. “We review a district

court's ruling denying a defendant's motion to withdraw his guilty plea before sentencing

pursuant to an abuse of discretion standard.” United States v. Jones, 336 F.3d 245, 252




  1
   The District Court had jurisdiction over this case pursuant to 18 U.S.C. § 3231. We
have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
                                               4
(3d Cir. 2003) (citation omitted). Under these circumstances, there was no abuse of

discretion in holding Muhammad to the plea he had freely entered.

       Federal Rule of Criminal Procedure 32(e) provides, in pertinent part: “If a motion

to withdraw a plea of guilty ... is made before a sentence is imposed, the court may permit

the plea to be withdrawn if the defendant shows any fair and just reason.” The defendant

bears the burden of demonstrating he has a “fair and just” reason, “and that burden is

substantial.” Jones, 336 F.3d at 252. We have asked district courts to consider three

factors when considering a motion to withdraw a guilty plea: “(1) whether the defendant

asserts his innocence; (2) the strength of the defendant's reasons for withdrawing the plea;

and (3) whether the government would be prejudiced by the withdrawal.” Id. We focus,

as did the District Court, on the first two factors, since the government chose not to assert

that it would be prejudiced by withdrawal of the plea.

       As to the first factor, Muhammad does assert his innocence, claiming that he never

intended to distribute the heroin that he packaged in 300 baggies. The District Court

justifiably found the claim incredible, but, besides being beyond belief, such “[b]ald

assertions of innocence are insufficient to permit a defendant to withdraw his guilty plea.”

Jones, 336 F.3d at 252. Instead, “[a]ssertions of innocence must be buttressed by facts in

the record that support a claimed defense.” United States v. Brown, 250 F.3d 811, 818

(3d Cir. 2001) (internal quotation marks and citation omitted). Since Muhammad points

to nothing in the record to justify his new claim of innocence, it does not support his

effort to withdraw his guilty plea.

                                              5
       As to the second factor, i.e., the strength of the reasons for withdrawal,

Muhammad again is unpersuasive. Leaving aside the repeated affirmations he gave about

the knowing and voluntary character of his plea, his argument for withdrawal is hard to

take seriously because it is fundamentally illogical. He admits that he is now taking a

position about his guilt that is directly contrary to the one he asserted at his change of plea

hearing, and the only explanation he has for the about-face is that his “contradictory

positions are the result of his former counsel’s failure to adequately advise him requisite

to the guideline range.” (Appellant’s Brief at 11-12.) Whether Muhammad has any

viable claim for post-conviction relief based on the allegation that his former counsel did

not adequately explain sentencing possibilities to him is irrelevant to whether he is in fact

guilty of the crimes with which he was charged. The potential penalties do not change

historical facts, including what his intent was when he possessed the heroin he still admits

he possessed. He admitted having the intent to distribute that heroin, and nothing he

argues bears on that admission in the least.2 “A shift in defense tactics, a change of mind,

or the fear of punishment are not adequate reasons to impose on the government the

expense, difficulty, and risk of trying a defendant who has already acknowledged his guilt




  2
    We note too that the only argument made about Muhammad’s counsel being
ineffective is that counsel failed to tell Muhammad he faced exposure to higher penalties
as a career offender. Since the District Court determined that Muhammad would not be
treated as a career offender, we are left to wonder what the basis is for the ineffective
assistance argument and hence for the motion to withdraw.
                                              6
by pleading guilty.” Brown, 250 F.3d at 815 (internal quotation marks and citation

omitted).

       Muhammad’s only other argument on appeal is that the District Court erroneously

applied a stolen firearms enhancement while calculating the applicable Guidelines range.

We look for clear error when reviewing a district court’s factual findings related to

sentencing. United States v. Grier, 475 F.3d 556, 570 (3d Cir. 2007) (en banc). Our

review of a district court’s interpretation of the Sentencing Guidelines is plenary. Id.

“We review the District Court's application of the Guidelines to facts for abuse of

discretion.” United States v. Tupone, 442 F.3d 145, 149 (3d Cir. 2006) (citation omitted).

The District Court did not abuse its discretion in imposing the stolen firearms

enhancement in this case.

       Section 2K2.1(b)(4) provides that a defendant’s Guidelines offense level should be

increased by two points if an unlawfully possessed firearm was stolen. In this case, the

government provided at sentencing a police report stating that the firearm Muhammad

possessed had been reported stolen. Muhammad complains that he was denied due

process because the police report was hearsay and was provided only “moments before

the [sentencing] hearing.” (Appellant’s Brief at 15.) The government points out in

response, first, that the Federal Rules of Evidence do not apply at a sentencing

proceeding. See 18 U.S.C. § 3661 (“No limitation shall be placed on the information

concerning the background, character, and conduct of a person convicted of an offense

which a court of the United States may receive and consider for the purpose of imposing

                                             7
an appropriate sentence.”); U.S.S.G., § 6A1.3(a) (“In resolving any dispute concerning a

factor important to the sentencing determination, the court may consider relevant

information without regard to its admissibility under the rules of evidence applicable at

trial, provided that the information has sufficient indicia of reliability to support its

probable accuracy.”). The government next notes that Muhammad had long anticipated

that exactly this type of evidence would be presented. Indeed, Muhammad’s sentencing

memorandum, submitted over a month before the sentencing hearing, states, “defendant

anticipates that the government will merely attempt to present evidence that the firearms

were ‘reported stolen’.” (Appellee’s Brief at 19.) Since we can discern no unfair surprise

nor any lack of indicia of reliability in the report presented to the District Court, there was

no abuse of discretion in choosing to believe the report and impose the two-point

enhancement.

III.   Conclusion

       Accordingly, we will affirm the conviction and judgment of sentence.




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