     05-6142-cr
     United States v. Habbas


 1                                     UNITED STATES COURT OF APPEALS
 2                                         FOR THE SECOND CIRCUIT


 3                                                       August Term, 2007

 4   (Argued: September 28, 2007                                                      Decided: May 30, 2008)


 5                                                Docket No. 05-6142-cr, 06-0427-cr


 6   - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X

 7   UNITED STATES OF AMERICA,

 8                                           Appellee,

 9   v.

10   FAWAZ HABBAS and MOHAMED RAHMAN,

11                       Defendants-Appellants.
12
13   -------------------------------X
14
15
16

17   Before: LEVAL and SACK, Circuit Judges, GARAUFIS, District Judge.*
18
19           Defendants, Fawaz Habbas and Mohamed Rahman, appeal from judgments of conviction
20   in the United States District Court for the Eastern District of New York (Gleeson, J.). Each
21   contends that his Guidelines range was incorrectly calculated and that his sentence was not
22   reasonable. Rahman contends, in addition, that the government breached its plea agreement, and
23   that he received ineffective assistance of counsel. Affirmed.


               *
               The Honorable Nicholas G. Garaufis, United States District Judge for the Eastern
     District of New York, sitting by designation.

                                                                        1
 1                                                 ROGER BURLINGAME, Assistant United States
 2                                                 Attorney, United States Attorney’s Office, Eastern
 3                                                 District of New York, Brooklyn, New York (David
 4                                                 C. James and Roslynn R. Mauskopf, United States
 5                                                 Attorney for the Eastern District of New York, on
 6                                                 the brief), for Appellee.

 7                                                 JAMES H. FELDMAN, JR., Law Offices of Alan
 8                                                 Ellis, Ardmore, Pennsylvania (Peter Goldberger and
 9                                                 Alan Ellis, on the brief), for Appellant Mohamed
10                                                 Rahman.

11                                                 Barry S. Turner, Law Office of Barry S. Turner,
12                                                 New York, New York, for Appellant Fawaz Habbas.

13   LEVAL, Circuit Judge:

14            Defendants Fawaz Habbas and Mohamed Rahman appeal from judgments of the United

15   States District Court for the Eastern District of New York (Gleeson, J.). Rahman pled guilty to

16   obstructing a federal grand jury investigation. 18 U.S.C. § 1512(c)(2), (j). Habbas pled guilty to

17   a similar charge of obstructing a federal grand jury investigation, and also to conspiracy to make

18   false statements to U.S. government officials, 18 U.S.C. § 371, and making false statements to a

19   government official. 18 U.S.C. § 1001(a)(2). The charges were based on defendants’

20   participation in a conspiracy to frame another person, falsely accusing him of an assault that the

21   defendants and their co-conspirators had in fact staged. We affirm the judgments of the district

22   court.

23                                           BACKGROUND

24            Defendants Rahman and Habbas conspired to frame Mohamed Abdel-Wahed. The

25   victim, Abdel-Wahed, had earlier testified against Rahman in an unrelated proceeding. To

26   retaliate against Abdel-Wahed, the defendants organized an elaborate conspiratorial plan,



                                                      2
 1   involving a number of co-conspirators and a simulated assault on co-conspirator Nadia Zeid, who

 2   later pled guilty and admitted her role in the plot.

 3          Zeid had recently testified in a murder trial against one Mohamed Khalil. The

 4   conspirators devised a plan to make it appear that Abdel-Wahed assaulted Zeid to punish her for

 5   testifying against Khalil. Zeid lay in the street, bleeding. A co-conspirator (Angelo Gordon),

 6   pretending to be an unrelated passerby, called 911 and flagged down a passing police car to

 7   report having witnessed an assault on Zeid, and gave a description of Abdel-Wahed as the

 8   assailant. Rahman and Habbas had previously conducted surveillance of Abdel-Wahed’s daily

 9   routines, and planned the simulated assault to occur near where Abdel-Wahed would be found.

10   As planned by the conspirators, the police arrested Abdel-Wahed based on Gordon’s report and

11   description. Both Gordon and Zeid identified Abdel-Wahed as the assailant, and Zeid stated that

12   he did it to punish her for testifying against a fellow Egyptian. Based on the identification by

13   Gordon and Zeid, Abdel-Wahed was arrested, charged with a crime carrying a life sentence, and

14   held in custody for seven weeks pending his trial. Eventually, he was released when Habbas

15   informed authorities that the crime was bogus and that Abdel-Wahed had been framed.

16          Habbas and Rahman both pled guilty after providing detailed accounts of their crimes.

17   Habbas was sentenced to a prison term of twenty-seven months, two years of supervised release

18   and a special assessment of $300. Rahman was sentenced to a prison term of eight years, a three

19   year term of supervised release, and a $100 assessment.

20          Rahman raises three issues on appeal. He contends, first, that the government breached

21   his plea agreement by supporting a higher Guidelines level than the government had estimated in

22   his plea agreement; second, that his counsel’s failure to object to a four-level upward adjustment

                                                        3
 1   of his Guidelines range constituted ineffective assistance of counsel; and third, that his sentence

 2   of eight years imprisonment was unreasonable.

 3          Habbas raises four issues. He contends that the district court erred in, first, imposing a

 4   three-level increase for substantial interference with justice; second, refusing to adjust his

 5   Guidelines level downwards by reason of a minor role; third, not granting a downward departure;

 6   and, fourth, imposing a sentence which violated 18 U.S.C. § 3553(a) because it was “greater than

 7   necessary” to achieve the objectives of sentencing.

 8                                              DISCUSSION

 9   A. Rahman

10          I. Breach of Plea Agreement

11          Rahman argues that once the government, following our suggestion in United States v.

12   Pimentel, 932 F.2d 1029 (1991), provided an estimate of the Sentencing Guidelines range in his

13   plea agreement, it was not at liberty to argue in support of a more onerous guidelines analysis

14   than it had estimated, at least absent new information not in the government’s possession at the

15   time of the estimate.

16          In Pimentel, in the early days of sentencing under the United States Sentencing

17   Guidelines, we noted that we were “troubled by the escalating number of appeals from

18   convictions based on guilty pleas in which the appellant claim[ed] that he was unfairly surprised

19   by the severity of the sentence imposed under the Guidelines. In particular, we note[d] the

20   distressingly large number of appeals involving defendants indicted for drug offenses who, at the

21   time of tendering their pleas, were apparently unaware of the quantity of drugs that could be

22   included in calculating their base offense levels.” Id. at 1032. We expressed sympathy with the


                                                       4
 1   recurring claims that defendants “did not fully appreciate the consequences of their pleas.” Id.

 2   We therefore urged the government in making plea agreements to provide estimates to

 3   defendants of their likely Guidelines range to help “ensure that guilty pleas indeed represent

 4   intelligent choices by defendants.” Id. at 1034. We recognized that the government had no

 5   “legal obligation to provide this information.” Id.

 6          The government in this case followed our suggestion in Pimentel and set forth in

 7   Rahman’s plea agreement its estimate of “the likely adjusted offense level” of 16, resulting in a

 8   Guidelines range of 27 to 33 months. In so doing, the government however included language

 9   clearly indicating its intention and reservation of right to seek a sentence higher than the

10   Guidelines range. It clearly stated that its “estimate . . . is not binding on the [United States

11   Attorney’s] Office, the Probation Department or the Court.” The agreement went on to say that

12   “the government reserves the right to argue for a sentence beyond that called for by the

13   Guidelines based on the factors set forth in 18 U.S.C. § 3553(a).” It specified that the defendant

14   could not withdraw his plea, even if the Guidelines level “advocated by the [United States

15   Attorney’s] Office, or determined by the Probation Department or the Court” is “different from

16   the estimate.” And it specified further that defendant could not appeal so long as the sentence

17   did not exceed 60 months, which was far in excess of the government’s estimated range.

18          When the Presentence Report (“PSR”) was prepared by the court’s probation office after

19   Rahman’s guilty plea, it recommended a four-level upward adjustment under U.S.S.G. §

20   3B1.1(a) by reason of the defendant’s leadership role in criminal activity that involved five or

21   more participants. In its Pimentel estimate set forth in the plea agreement, the government had

22   not included this adjustment. The sentence range recommendation in the PSR was therefore


                                                        5
 1   higher than the range that had been estimated by the government in the plea agreement. At the

 2   sentencing hearing, the government supported the four-level increase recommended by the PSR,

 3   and maintained that its own failure to include this upward adjustment in the earlier Pimentel

 4   estimate had been a “mistake.” The district court determined that the adjustment under §

 5   3B1.1(a) was appropriate, and calculated the proper Guidelines level as 20, providing a

 6   Guidelines range of 41 to 51 months. In considering the mandatory sentencing factors detailed in

 7   18 U.S.C. § 3553(a), however, the court concluded that Rahman’s crime was “outside the

 8   heartland,” was an “absolutely outrageous manipulation, distortion of the processes of this justice

 9   system,” and called for a considerably more severe sentence than the 51 month maximum under

10   the Guidelines range. The court thus imposed a sentence of eight years imprisonment.

11          Rahman contends that the government’s support of the four-level increase recommended

12   by the PSR was a breach of the plea agreement. We disagree. Upon full consideration of the

13   particular facts of this case, we reject Rahman’s argument that the government violated his rights

14   under the plea agreement by advocating a higher Guidelines level than it had estimated in the

15   plea agreement. Our conclusion is supported by a number of factors. These include that the plea

16   agreement clearly stated that the range set forth was merely a non-binding estimate, and warned

17   in several different ways that the government was likely to advocate for a higher sentence.

18   Further, there is no suggestion that the government acted in bad faith, either by intentionally low-

19   balling its initial estimate, intending to increase it subsequently, or in its subsequent advocacy of

20   a higher range. Finally, it appears that Rahman was not harmed by the government’s change of

21   position.

22          We recognize that notwithstanding recitations of liberty to seek a higher sentence (and


                                                       6
 1   even a declaration of intention to do so), in certain circumstances government deviation from its

 2   prior estimate could conceivably produce serious unfairness. This might be so, for example,

 3   where the change of position involved bad faith or where the government’s change of position

 4   (without new justifying facts) changed the defendant’s exposure so dramatically as to raise doubts

 5   whether the defendant could reasonably be seen to have understood the risks of the agreement.

 6   See, e.g., United States v. Griffin, 510 F.3d 354, 365-66 (2d Cir. 2007) (finding breach of plea

 7   agreement). Nothing of the kind was present in this case. See United States v. Amico, 416 F.3d

 8   163, 167-68 (2d Cir. 2005) (“mild, non-provocative, merely informative, and substantially

 9   justified” comment by the government contrasted with “egregious facts” of United States v. Vaval,

10   404 F.3d 144 (2d Cir. 2005)). There has been no suggestion that the government in any way acted

11   abusively or in bad faith either in its initial estimate or in the subsequent reevaluation. Nor did the

12   government reverse its position regarding the applicability or effect of a particular provision,

13   upsetting a reasonable reliance by the defendant on the government’s stated position. It appears in

14   this case that, under the pressures of preparing a Pimentel estimate after the defendant indicated

15   readiness to plead, the government simply failed to notice the possible applicability of § 3B1.1(a).



16          Finally the defendant suffered no prejudice resulting from the government’s eventual

17   decision to support the PSR recommendation of a four-level increase under § 3B1.1(a). The court

18   understandably found that the heinous cynicism and cruelty of defendant’s crime called for a

19   sentence of nothing less than eight years, which was far in excess of the range resulting from the

20   four-level addition. The court noted that the dispute about the Guidelines was “academic.” The

21   government’s support for the four-level increase proposed by the Probation Department thus had


                                                        7
 1   no effect on the ultimate sentence.

 2           Rahman’s argument relies heavily on our decision in United States v. Palladino, 347 F.3d

 3   29 (2d Cir. 2003). He contends Palladino established a rule that, absent new justifying facts not

 4   known to the government at the time of its Pimentel estimate, the government is forbidden from

 5   advocating or supporting a higher level than it estimated. This misreads Palladino. The holding

 6   of Palladino depended on its particular facts, which were substantially different from the facts

 7   herein. Palladino did not purport to adopt such a broad rule.

 8          In Palladino, the defendant had signed a plea agreement, in which the initially assigned

 9   Assistant United States Attorney estimated an adjusted offense level of 10; the defendant pled

10   guilty to transmitting a threat in interstate commerce (18 U.S.C. § 875(c)). Id. at 30-33; U.S.S.G.

11   § 2A6.1(a) (base offense level). After the plea, in preparing the PSR, the probation officer

12   considered whether to recommend a six-point upward adjustment for “conduct evidencing an

13   intent to carry out [the] threat.” U.S.S.G. § 2A6.1(b)(1). The probation officer decided against

14   recommending the increase, finding that it was not supported by the evidence. Palladino, 347

15   F.3d at 31. The case was reassigned to a new Assistant United States Attorney, who apparently

16   took a more aggressive view of the case than the originally assigned Assistant. In an effort to

17   persuade the probation officer to recommend the increase, the new Assistant transcribed a tape

18   recording of the defendant’s incriminating statements, of which the government had all along

19   been aware. This stratagem persuaded the Probation Office to change its position and to

20   recommend the increase. Id. The new Assistant then wrote a letter to the district court arguing in

21   favor of this upward adjustment and successfully renewed the argument at the sentencing hearing.

22   Id. “In the circumstances presented in this case,” our court most appropriately concluded, “we


                                                      8
 1   believe that defendant had a reasonable expectation that the Government would not press the

 2   Court for an enhanced offense level in the absence of new information.” Id. at 34 (emphasis

 3   added).

 4             The Palladino opinion emphasized repeatedly that it was a narrow holding addressed to

 5   the circumstances before it. The critical circumstances included importantly the court’s sense that

 6   the government’s new advocacy for the upward adjustment resulted from the transfer of

 7   responsibility to a new Assistant United States Attorney, who took a more aggressive view than

 8   the Assistant who had handled the defendant’s plea. Cf. Santobello v. New York, 404 U.S. 257,

 9   262 (1971) (violation of plea agreement found when new prosecutor breached the promise made

10   by previous prosecutor). The potential for unfairness was aggravated by the fact that the plea

11   agreement specified that the government would not move for an “upward departure” or even make

12   a recommendation “within the Guidelines range.” Palladino, 347 F.3d at 32. Having agreed

13   neither to advocate a specific sentence nor an upward departure, the government nonetheless

14   engaged in aggressive advocacy of a higher offense level. These circumstances led the district

15   court to note the defendant’s “surprise,” id., and this court persuasively found on appeal that the

16   understandable surprise violated the “spirit” of the agreement. Id. at 30. We found that “[a]t the

17   very least, the plea agreement was ambiguous as to whether the Government could justifiably

18   pursue the enhancement sought in this case.” Id. at 34; see also, e.g., United States v. Khan, 920

19   F.2d 1100, 1105 (2d Cir. 1990) (applying “implied obligation of good faith and fair dealing” to

20   plea agreement). The ambiguity found in the Palladino agreement is not present here. To the

21   contrary, Rahman was given clear warning that the government planned to advocate a sentence

22   above the originally estimated Guidelines range. The most important circumstances which

                                                       9
1   persuasively support the Palladino decision are not present here.

2          We reject the defendant’s contention that Palladino established a broad rule, categorically

3   prohibiting the government from deviating from a Pimentel estimate, absent newly discovered

4   facts. Each case tuns on its facts, and the number of significant variables potentially in play in

5   such an inquiry is enormous. We think it would be foolhardy to attempt to set a broad rule,

6   beyond noting the obvious importance of good faith on the government’s part. On the present

7   facts, we find no basis for doubting the government’s good faith. Nor do we find other reasons to

8   prohibit a good-faith revision of the original estimate.1


           1
               We are mindful of the government’s dilemma and of the potential for unfair surprise to
    the defendant when a Pimentel estimate is later changed. The government furnishes estimates,
    although not obligated by law to do so, in response to this court’s suggestion in Pimentel that
    such estimates would protect defendants from unfair surprise after pleading guilty. While it is
    obviously not ideal for the government to overlook an applicable guideline adjustment when
    making its estimate, it is understandable that such a mistake can happen in good faith. The
    Guidelines are long and complex, and Pimentel estimates are generally made in haste when the
    possibility arises to dispose of a case through a plea agreement. If the government perceives that
    it risks being barred from good-faith revisions because it accommodated defendants by
    furnishing good-faith (but not foolproof) estimates, it will likely cease to furnish estimates, and
    the fairness of the system to defendants will suffer.
             In Palladino, the plea agreement expressly stated that the Pimentel estimate was “based
    on information known to the government.” It was undisputed that the information, which the
    government claimed as justification for its change of position, had been known to the
    government at the time of its Pimentel estimate. Palladino, 347 F.3d at 33. In an effort to
    protect its ability after Palladino to deviate in good faith from an earlier estimate, the
    government in this case chose to delete from its Pimentel estimate the words “based on
    information known to the government.” We respectfully suggest that this was not the best
    approach to solving the problem.
             The words, “based on information known to the government,” or other words
    communicating the same thought, serve the important purpose of clarifying the government’s
    freedom to advocate for a higher guideline range when its change of position is based on its
    subsequent acquisition of aggravating information. The problem in Palladino was not that those
    words appeared in the Pimentel estimate, but rather the combination of the passages of the plea
    agreement conferring assurance that the government would not advocate for a sentence higher
    than the estimate, with the aura of unfair dealing that underlay the government’s change of

                                                      10
 1   II. Ineffective Assistance of Counsel

 2          Rahman’s counsel at the time of sentencing did not object to the four-level upward

 3   adjustment recommended by the PSR under U.S.S.G. § 3B1.1(a) by reason of the defendant’s

 4   leadership role in criminal activity that involved five or more participants. Rahman contends that

 5   his counsel was constitutionally ineffective in failing to object. The question of ineffective

 6   assistance is determined by a two-part test. A defendant must demonstrate “(1) that counsel’s

 7   performance was so unreasonable under prevailing professional norms that counsel was not

 8   functioning as the counsel guaranteed the defendant by the Sixth Amendment; and (2) that

 9   counsel’s ineffectiveness prejudiced the defendant such that there is a reasonable probability that,

10   but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

11   United States v. Gaskin, 364 F.3d 438, 468 (2d Cir. 2004) (citing Strickland v. Washington, 466

12   U.S. 668, 668, 687, 694 (1984)) (internal citations and quotation marks omitted).

13          Rahman’s claim of ineffective assistance cannot succeed because he cannot show

14   prejudice. Rahman’s claim thus fails under the second part of the Strickland test because the




     position. Based on our reading of Palladino, we very much doubt that the result of that case
     would have changed if, all else remaining the same, those words had not appeared in the
     Pimentel estimate. By the same token, the reasoning of the Palladino panel strongly suggests it
     would have reached the opposite result, and would have accepted the change of position,
     notwithstanding the words “based on information known to the government,” if the change had
     resulted from a good-faith, understandable oversight made under pressure to produce a plea
     agreement with a Pimentel estimate.
             We believe the government would be better advised to retain words clarifying its right to
     change its position on the basis of new information not yet known to the prosecution, and to warn
     as clearly as possible that the furnishing of a Pimentel estimate will not bar the government from
     making good-faith changes to its position, even as to information already in its possession, if, for
     instance, further study shows the applicability of guideline provisions not considered in making
     the estimate.

                                                      11
 1   district court made it clear that this dispute about the Sentencing Guidelines was “academic.” The

 2   dispute was academic because the district court reasonably believed that the sentencing range

 3   produced by the Guidelines was inadequate for the crime and thus departed upward to a sentence

 4   of eight years. It made no difference whether counsel objected to the four-level adjustment.

 5   Rahman suffered no prejudice.

 6          III. Reasonableness of the Sentence

 7          Rahman contends his sentence was unreasonable. He argues three reasons. First, Rahman

 8   contends that the district court did not “consider” the Guideline range. Second, the district court’s

 9   reasons for the sentence were “not supported by any factual basis in the record.” Third, the

10   district court “did not explain why it believed a sentence [higher than the guidelines range] was

11   necessary.”

12          We find no basis for his contentions. The court did consider the Guidelines range,

13   although deciding for good reason that it did not provide sufficient punishment for so horrendous,

14   cruel and despicable a crime. The court’s reasons for the sentence were well supported by the

15   facts of record, and the court explained the need for a sentence above the Guidelines range.

16   B. Habbas

17          Habbas challenges the overall reasonableness of his sentence under the “parsimony”

18   clause of 18 U.S.C. § 3553(a), and makes three objections to the way his sentence was calculated

19   under the Guidelines.

20          Habbas’s contention that his sentence of twenty-seven months violated 18 U.S.C. §

21   3553(a) because it was “greater than necessary” to serve the objectives of sentencing is frivolous.

22   As described above, this horrendous crime, designed to inflict cruel devastation on the life of the

23   victim, appropriately merited a sentence far above the Guidelines range. Habbas, nonetheless,

                                                      12
 1   received a twenty-seven month sentence, which was within the Guidelines range. The only reason

 2   that the district court did not depart upward was because of Habbas’s cooperation. We find no

 3   merit to Habbas’s contention that the sentence was higher than necessary to serve the objectives of

 4   sentencing.

 5          Habbas objects to the three-level increase under U.S.S.G. § 2J1.2, because his case

 6   involved a “substantial interference with the administration of justice.” The commentary to the

 7   Guidelines states that “‘[s]ubstantial interference with the administration of justice’ includes . . .

 8   an indictment . . . based upon . . . false testimony, or other false evidence.” U.S.S.G. § 2J1.2, cmt.

 9   n.1 (2005). Habbas’s crime falls directly within the plain meaning of this Guideline rule.

10          Habbas contends that, under U.S.S.G. § 3B1.2(b), he should have been awarded a two-

11   level downward adjustment because he only played a “minor role,” one analogous to a driver or a

12   courier in a drug transaction. Habbas himself acknowledges that he “recruited” a member of the

13   conspiracy. His role was greater than that of a courier. The district court was within its discretion

14   in rejecting Habbas’s contention that he warranted a minor role adjustment.

15          Finally, Habbas argues that the court erred in refusing to depart downward by reason of his

16   cooperation with the government in the prosecution. The government submitted a motion

17   pursuant to U.S.S.G. § 5K1.1 detailing the substantial assistance that Habbas provided. The

18   district court, however, declined to depart below the Guidelines range, explaining that it was

19   because of Habbas’s cooperation that the court did not depart upward, as it had done in the case of

20   Rahman. Even though the sentence was within the Guidelines range, Habbas received ample

21   credit for his cooperation, which resulted in a substantially lower sentence than he otherwise

22   would have received. There was no error, much less abuse of discretion.

23          For the foregoing reasons, the judgments of the District Court are hereby AFFIRMED.

                                                       13
