11-4924-cr
United States v. Shahid

                               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
“SUMMARY 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 29th day of June, two thousand twelve.

PRESENT: JON O. NEWMAN,
         RALPH K. WINTER,
         REENA RAGGI,
                   Circuit Judges.

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UNITED STATES OF AMERICA,
                   Appellee,
               v.                                                                       No. 11-4924-cr

ABDUL SHAHID,
                                       Defendant-Appellant.
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FOR APPELLANT:                         COLLEEN P. CASSIDY, Federal Defenders of New York, Inc.,
                                       Appeals Bureau, New York, New York.

FOR APPELLEE:                          PAUL A. TUCHMANN (Amy Busa, on the brief), Assistant
                                       United States Attorneys, for Loretta E. Lynch, United States
                                       Attorney for the Eastern District of New York, Brooklyn, New
                                       York.


           Appeal from a judgment of the United States District Court for the Eastern District

of New York (Brian M. Cogan, Judge).
       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on November 21, 2011, is AFFIRMED.

       Abdul Shahid appeals from a judgment of conviction sentencing him principally to

15 months’ imprisonment following a jury trial in which he was found guilty of two counts

of giving false statements to a federal official, see 18 U.S.C. § 1001(a)(2), but was acquitted

of bribery, see id. § 201(b)(1). On appeal, Shahid argues that (1) the district court’s

consideration of Shahid’s relevant acquitted conduct in imposing sentence was

constitutionally impermissible; and (2) the 15-month sentence, which was one-and-a-half

times greater than the upper end of his Guidelines range, was procedurally and substantively

unreasonable. We review Shahid’s sentence under a “‘deferential abuse-of-discretion

standard,’” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (quoting Gall

v. United States, 552 U.S. 38, 41 (2007)), which “incorporates de novo review of questions

of law,” United States v. Bonilla, 618 F.3d 102, 108 (2d Cir. 2010) (internal quotation marks

omitted), cert. denied, 131 S. Ct. 1698 (2011). We assume the parties’ familiarity with the

facts and record of prior proceedings, which we reference only as necessary to explain our

decision to affirm.

1.     Acquitted Conduct

       At sentencing, Shahid recognized that the court was permitted to make findings

regarding his acquitted conduct, and did not object on constitutional grounds to the court’s

finding that Shahid bribed a public official. Thus, Shahid’s claim on appeal is subject to

plain error review. See United States v. Dupes, 513 F.3d 338, 343 (2d Cir. 2008). Even if

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we were to review Shahid’s claim de novo, however, his argument would still fail because

the district court committed no error of law.

       As Shahid acknowledges, we have previously considered and rejected arguments that

the Fifth Amendment’s Due Process Clause and the Sixth Amendment right to a jury trial

prohibit consideration of acquitted conduct in deciding on a sentence within the minimum

and maximum statutory range for the crime of conviction. See United States v. Martinez,

525 F.3d 211, 215 (2d Cir. 2008); United States v. Vaughn, 430 F.3d 518, 527 (2d Cir.

2005). Rather, we have held that the Fifth and Sixth Amendments permit a district court to

consider relevant acquitted conduct proved by a preponderance of the evidence, provided that

the court “does not impose (1) a sentence in the belief that the Guidelines are mandatory, (2)

a sentence that exceeds the statutory maximum authorized by the jury verdict, or (3) a

mandatory minimum sentence . . . not authorized by the verdict.” United States v. Vaughn,

430 F.3d at 527; accord United States v. Johnson, 507 F.3d 793, 797 (2d Cir. 2007). We are

bound by the prior decisions of this court unless and until those precedents are reversed en

banc or by the Supreme Court. See United States v. Jass, 569 F.3d 47, 58 (2d Cir. 2009).

For that reason, we cannot accept Shahid’s arguments that those precedents were wrongly

decided.

       Further, although Shahid challenges the validity of our prior decisions rather than the

district court’s compliance with them, we note that the district court’s consideration of

Shahid’s acquitted conduct was consistent with our articulation of Fifth and Sixth

Amendment principles at sentencing. The district court found by a preponderance of the

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evidence that Shahid engaged in bribery; considered that conduct in weighing the 18 U.S.C.

§ 3553(a) sentencing factors and ultimately varying upward from Shahid’s Guidelines range;

and never used the acquitted conduct to adjust Shahid’s maximum or minimum statutory

sentence, which would have been constitutionally impermissible. See United States v.

Vaughn, 430 F.3d at 527.

       Accordingly, we reject Shahid’s argument that the district court’s consideration of

acquitted conduct violated his constitutional rights.

2.     Reasonableness

       Shahid contends that his 15-month sentence, which represented more than double the

upper end of his zero-to-six month Guidelines range, is procedurally and substantively

unreasonable insofar as it relies on the district court’s finding that Shahid committed bribery.

We are not persuaded.

       First, Shahid is incorrect when he suggests that the district court imposed an upward

variance solely because of Shahid’s relevant acquitted conduct. Rather, the district court

found that a higher sentence was warranted by the need to deter Shahid from his habit of

“try[ing] to game the system where opportunities present themselves.” Sentencing Tr. 18.

The court found this evidenced not only by the crime of conviction, making false statements

to federal investigators, but also by Shahid’s lies to the jury and the court at trial about that

conduct and the related bribery. Indeed, the bribery put the crime of conviction in context,

making clear that the false statements were not isolated violations but part of a larger pattern

of criminality. This was appropriate information for the district court to consider in deciding

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Shahid’s sentence for the false statements crime. See 18 U.S.C. § 3661 (proscribing

limitation on “information concerning the background, character, and conduct” of defendant

that district court may consider in selecting appropriate sentence).

       We further reject Shahid’s contention that the upward variance was unreasonable

because the trial evidence of bribery was weak. In fact, the government offered direct

evidence from the immigration official who took payments from Shahid. The district court

found this witness credible, and we accord substantial deference to that finding. See United

States v. Jones, 531 F.3d 163, 171 (2d Cir. 2008); United States v. Cuevas, 496 F.3d 256, 267

(2d Cir. 2007). The fact that a jury did not find this testimony sufficient to prove Shahid

guilty of bribery beyond a reasonable doubt did not preclude the district court from finding

the bribery proved by a preponderance of the evidence. See, e.g., United States v. Vaughn,

430 F.3d at 521, 526–27 (upholding sentencing judge’s authority to find that preponderance

finding that drug quantity attributable to defendant was higher than weight attributed by

jury). Insofar as Shahid urges that acquitted conduct must be proved by a standard greater

than a preponderance, see United States v. Treadwell, 593 F.3d 990, 1000 (9th Cir. 2010)

(stating that acquitted conduct must be proved by clear and convincing evidence at

sentencing), that argument is foreclosed by our decision in Vaughn, 430 F.3d at 527.

       In the absence of procedural error, whether factual or otherwise, we may set aside

Shahid’s sentence only if it is substantively unreasonable, which occurs only in the

exceptional instance where “the trial court’s decision cannot be located within the range of

permissible decisions.” United States v. Cavera, 550 F.3d at 189 (internal quotation marks

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omitted). That is not this case. The sentence imposed was adequately supported by the

district court’s findings of Shahid’s relevant acquitted conduct and continued lack of candor

with the court, its determination that specific deterrence required an above-Guidelines

sentence, and its conclusion that a sentence of greater than 15 months would impose a

hardship on Shahid and his family and would be more than necessary to achieve the ends of

sentencing.

3.     Conclusion

       Because the district court committed no error of law in considering Shahid’s relevant

acquitted conduct, and imposed a sentence that was neither procedurally nor substantively

unreasonable, the judgment of the district court is AFFIRMED.

                                   FOR THE COURT:
                                   CATHERINE O’HAGAN WOLFE, Clerk of Court




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