18‐2870(L)
United States v. Lajaward Khan

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.

      At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 27th day of November, two thousand nineteen.

        PRESENT: AMALYA L. KEARSE,
                         RICHARD J. SULLIVAN,
                         MICHAEL H. PARK,
                                 Circuit Judges.
        ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
        UNITED STATES OF AMERICA,

                        Appellee,

                  v.                                                         No. 18‐2870‐cr
                                                                             No. 18‐2874‐cr
        LAJBAR LAJAWARD KHAN, also known as
        Haki Lajaward, AMAL SAID SAID ALAM
        SHAH, also known as Haji Zar Mohammad,

                        Defendants‐Appellants,




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      HABIBULLAH HAKI KAN, also known as Habibullah,

                       Defendant.
      ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
      FOR APPELLANT LAJAWARD                            JAMES M. BRANDEN, Law Office of
      KHAN:                                             James M. Branden, New York, NY.

      FOR APPELLANT SAID:                     EZRA SPILKE, Law Offices of Ezra
                                              Spilke, PLLC, Brooklyn, NY.

      FOR APPELLEE:                           REBEKAH DONALESKI, Assistant
                                              United States Attorney (George
                                              Turner, Karl Metzner, Assistant
                                              United States Attorneys, on the brief),
                                              for Geoffrey S. Berman, United States
                                              Attorney for the Southern District of
                                              New York, New York, NY.

      Appeal from judgments of the United States District Court for the Southern

District of New York (Kimba M. Wood, Judge).

      UPON      DUE     CONSIDERATION,            IT   IS    HEREBY       ORDERED,

ADJUDGED, AND DECREED that the judgments of the district court are

AFFIRMED.

      Lajbar Lajaward Khan (“Lajaward Khan”) and Amal Said Said Alam Shah

(“Said”) appeal from the sentences imposed by the district court (Wood, J.)

following their guilty pleas to conspiracy to import at least one kilogram of heroin

into the United States, in violation of 21 U.S.C. §§ 963, 952(a), 959(a), 960(a)(1),

960(a)(3), and 960(b)(1)(A), and attempted distribution of at least one kilogram of
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heroin, intending and knowing that the heroin would be imported into the United

States, in violation of 21 U.S.C. §§ 963, 959(a), 960(a)(3), and 960(b)(1)(A). Judge

Wood sentenced Lajaward Khan and Said to 180 months’ and 131 months’

imprisonment, respectively. On appeal, Lajaward Khan and Said argue that their

sentences were procedurally and substantively unreasonable. Specifically, as to

their procedural unreasonableness claims, Lajaward Khan argues that that the

district court miscalculated his offense level under the United States Sentencing

Guidelines (“U.S.S.G.” or “Guidelines”) and that the district court erroneously

applied a three‐level enhancement for leadership role. Said argues the district

court erred in denying his motion for a reduction pursuant to the safety valve

provision of the Guidelines and 18 U.S.C. § 3553(f).

      “We review the procedural and substantive reasonableness of a sentence

under a deferential abuse‐of‐discretion standard.” United States v. Yilmaz, 910 F.3d

686, 688 (2d Cir. 2018) (citation omitted). “A district court commits procedural

error where it fails to calculate (or improperly calculates) the . . . Guidelines range,

treats the . . . Guidelines as mandatory, fails to consider the [18 U.S.C.] § 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.



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2012) (citation omitted). Our review for the substantive reasonableness of a

sentence is “particularly deferential,”                 and we will set aside a sentence as

substantively unreasonable only if it is “so shockingly high, shockingly low, or

otherwise unsupportable as a matter of law that allowing [it] to stand would

damage the administration of justice.” United States v. Broxmeyer, 699 F.3d 265, 289

(2d Cir. 2012) (internal quotation marks and citation omitted).

        We assume the parties’ familiarity with the underlying facts and the record

of prior proceedings, to which we refer only as necessary to explain our decision

to affirm.

                                I.      Procedural Reasonableness

             a. Lajaward Khan’s Base Offense Level

        Lajaward Khan argues that the district court erred in calculating his base

offense level under the Guidelines because he did not intend to sell, and was not

actually capable of selling, the quantity of heroin discussed with the undercover

agent during the investigation.1 But the district court’s conclusion was not clearly

erroneous, and was strongly supported by the evidence the government proffered



1In contrast to his opening brief, which stated that “[p]ursuant to Rule 28(i) of the Federal Rules of
Appellate Procedure, Said joins in the brief of Lajbar Lajaward Khan . . . , including with respect to
substantive reasonableness,” Said expressly disavowed any challenge to the district court’s drug quantity
calculation during oral argument.
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at sentencing. Said and Lajaward Khan’s negotiations in pursuit of a narcotics

sale, which were recorded by an undercover officer and presented to the district

court, are persuasive evidence of their intent. See United States v. Hazut, 140 F.3d

193 (2d Cir. 1998) (“[N]egotiations ordinarily constitute reliable admissions as to a

defendant’s intent to produce a particular quantity of narcotics in the course of a

conspiracy.” (internal quotation marks omitted)).        Moreover, in his proffer,

Lajaward Khan confirmed that he and Said had the ability and intent to sell

between 100 to 200 kilograms of heroin. In the lead‐up to the Fatico hearing,

Lajaward Khan objected to the drug weight for the first time. In light of Lajaward

Khan’s belated objection, which conflicted with both contemporaneous recordings

with the undercover officer and his earlier proffer statements, the district court did

not commit clear error in concluding that he intended to and was capable of selling

at least 90 kilograms of heroin. Accordingly, the district court was justified in

finding that his base offense level was 38. See U.S.S.G. § 2D1.1(c)(1).

         b. Lajaward Khan’s Role Enhancement

      Lajaward Khan also argues that the district court erred in applying a three‐

level role enhancement when calculating his Guidelines range.             Under the

Sentencing Guidelines, such an enhancement is appropriate if the defendant “was



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a manager or supervisor . . . and the criminal activity involved five or more

participants or was otherwise extensive.” U.S.S.G. § 3B1.1(b). In determining if

the activity was “otherwise extensive,” a court looks to whether the scheme is the

“functional equivalent” of one involving at least five knowing participants. United

States v. Kent, 821 F.3d 362, 369 (2d Cir. 2016).

      In reaching its conclusion, the district court determined that Lajaward Khan

was a manager or supervisor of an individual known as “Salamat,” whom he

recruited to participate in the criminal activity and directed to pick up and deliver

heroin in Afghanistan. See United States v. Payne, 63 F.3d 1200, 1212 (2d Cir. 1995)

(applying the role enhancement to a drug dealer who recruited and paid a

participant to sell drugs).    The district court also found that the conspiracy

involved the participation of at least six named individuals and was otherwise

extensive as it involved a complex, international, drug‐trafficking organization.

Based on the record before it, the district court did not err in applying the role

enhancement.

          c. Said’s Safety Valve Eligibility

      Said challenges the district court’s conclusion that he was not eligible for the

“safety valve” provision of 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2, which allows



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a court to sentence a defendant “without regard to any minimum statutory

sentence,” and U.S.S.G. § 2D1.1(b)(18), which results in a two‐level reduction in a

defendant’s offense level. To qualify for the safety valve, a defendant must satisfy

five criteria, including that “the defendant has truthfully provided to the

Government all information and evidence the defendant has concerning the

offense or offenses that were part of the same course of conduct or of a common

scheme or plan.” 18 U.S.C. § 3553(f)(5); U.S.S.G. § 5C1.2(a)(5). Said argues that the

district court erred in finding him untruthful and provided insufficient bases for

its ruling. See United States v. Gambino, 106 F.3d 1105, 1111 (2d Cir. 1997) (“Further

factual findings will be required where [the appellate court] is unable to discern

from the record the basis of the district court’s ruling.”).

      Both arguments are unpersuasive. The district court was entitled to reject

Said’s uncorroborated claim regarding his lack of intent, particularly because it

conflicted with the contemporaneous undercover recordings and with Lajaward

Khan’s post‐arrest proffer statements. Judge Wood also had the opportunity to

observe Said’s testimony at the Fatico hearing, and was well situated to make

credibility findings. She also made clear that she credited Lajaward Khan’s proffer

statement, which she found to be at odds with Said’s testimony. When viewing



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the sentencing record as a whole, the grounds for the sentence were sufficiently

clear, and we discern no error in the district court’s factual and credibility

determinations.

                          II.   Substantive Reasonableness

      Finally, Defendants argue that their sentences were substantively

unreasonable. Defendants raise a laundry list of factors in their favor, including

their difficult upbringings in impoverished areas, the fact that they are removed

from their families in Afghanistan, and an allegation – explicitly rejected by the

district court – that the undercover officer engaged in sentencing entrapment. But

the record demonstrates that the district court considered all of Defendants’

arguments, as well as the factors set forth in 18 U.S.C. § 3553, before imposing their

sentences. It bears noting that the district court sentenced each Defendant below

his applicable Guidelines range, reflecting a careful and reasoned assessment of

the entire record. Put simply, the sentences imposed here were not “so shockingly

high, shockingly low, or otherwise unsupportable as a matter of law that allowing

[them] to stand would damage the administration of justice.” Broxmeyer, 699 F.3d

at 289; see also United States v. Messina, 806 F.3d 55, 66 (2d Cir. 2015) (“While we do

not presume that a Guidelines sentence is necessarily substantively reasonable,



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that conclusion is warranted in the overwhelming majority of cases, and thus

especially when, as here, a defendant challenges a below‐Guidelines sentence.”

(internal quotation marks and citation omitted)).

      We have considered Said’s and Lajaward Khan’s remaining arguments and

conclude that they are without merit. For the foregoing reasons, the judgments of

the district court are AFFIRMED.

                                     FOR THE COURT:
                                     Catherine O=Hagan Wolfe, Clerk of Court




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