     13-4574
     United States of America v. Lawani

                          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 A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 19th day of December, two thousand fourteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                DEBRA ANN LIVINGSTON,
 8                RAYMOND J. LOHIER, JR.,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               13-4574
16
17       YASSER LAWANI,
18                Defendant-Appellant.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        Ryan Thomas Truskoski,
22                                             Harwinton, Connecticut.
23
24       FOR APPELLEE:                         Alixandra E. Smith, David C.
25                                             James, Assistant United States
26                                             Attorneys (for Loretta E. Lynch,
27                                             United States Attorney for the


                                                  1
 1                              Eastern District of New York),
 2                              Brooklyn, New York.
 3
 4        Appeal from a judgment of the United States District
 5   Court for the Eastern District of New York (Brodie, J.).
 6
 7        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 8   AND DECREED that the judgment of the district court be
 9   AFFIRMED.
10
11        Yasser Lawani appeals from a judgment of the United
12   States District Court for the Eastern District of New York
13   (Brodie, J.), sentencing him to 60 months of imprisonment
14   for conspiring to export stolen motor vehicles (in violation
15   of 18 U.S.C. §§ 371 and 553(a)(1)) and for filing false
16   federal income tax returns (in violation of 18 U.S.C.
17   § 287). We assume the parties’ familiarity with the
18   underlying facts, the procedural history, and the issues
19   presented for review.
20
21        Lawani claims that his sentence is procedurally
22   unreasonable, citing two alleged errors in the calculation
23   of the advisory guidelines range: (1) imposing an
24   enhancement for obstruction of justice, and (2) refusing to
25   apply a reduction for acceptance of responsibility. Both
26   arguments are meritless.
27
28        1. “On review of a district court’s decision to
29   enhance a defendant’s sentence for obstruction of justice,
30   we accept the court’s findings of facts unless they are
31   clearly erroneous.” United States v. Pena, 751 F.3d 101,
32   105 (2d Cir. 2014) (per curiam) (internal quotation marks
33   omitted). “We review de novo a ruling that the established
34   facts constitute obstruction of justice, giving due
35   deference to the district court’s application of the
36   guidelines to the facts.” Id. (internal quotation marks
37   omitted).
38
39        The district court made two independent findings
40   relating to obstruction. First, based on a series of
41   recorded telephone calls from jail, the court found that
42   Lawani instructed his brother to destroy evidence relating
43   to his crime and discussed the possibility of fleeing the
44   country if released on bail. Second, the court found that
45   Lawani lied under oath at the trial of his (co-defendant)
46   brother. These factual findings are not clearly erroneous.
47

                                  2
 1        Directing others to destroy evidence of a crime,
 2   planning an escape, and perjury each may suffice as
 3   obstruction of justice. See, e.g., United States v. Triumph
 4   Capital Grp., Inc., 544 F.3d 149, 169 (2d Cir. 2008)
 5   (destruction of evidence); United States v. Aponte, 31 F.3d
 6   86, 88 (2d Cir. 1994) (flight with intent to avoid judicial
 7   proceedings); United States v. Savoca, 596 F.3d 154, 159 (2d
 8   Cir. 2010) (perjury at trial of a co-defendant). Moreover,
 9   U.S.S.G. § 3C1.1 covers failed attempts as well as acts of
10   successful obstruction. See, e.g., United States v. Feliz,
11   286 F.3d 118, 120 (2d Cir. 2002) (per curiam). So the
12   district court’s decision to impose an enhancement for
13   obstruction of justice under U.S.S.G. § 3C1.1 is affirmed.
14
15        2. As to the court’s refusal to apply a reduction for
16   acceptance of responsibility, a defendant may qualify for
17   such a reduction if the district court finds that “the
18   defendant clearly demonstrates acceptance of responsibility
19   for his offense.” U.S.S.G. § 3E1.1.
20
21        On appeal, “a district court’s determination whether a
22   defendant is entitled to credit for acceptance of
23   responsibility merits ‘great deference’ because the
24   ‘sentencing judge is in a unique position to evaluate a
25   defendant’s acceptance of responsibility.’” United States
26   v. Nouri, 711 F.3d 129, 146 (2d Cir. 2013) (quoting U.S.S.G.
27   § 3E1.1 cmt. 5). The question is one of fact, so “a
28   district court’s determination in this regard will not be
29   disturbed unless it is without foundation.” United States
30   v. Taylor, 475 F.3d 65, 68 (2d Cir. 2007) (per curiam)
31   (internal quotation marks and alteration omitted).
32
33        Although Lawani pleaded guilty, “[a] defendant ‘who
34   enters a guilty plea is not entitled to an adjustment [for
35   acceptance of responsbility] as a matter of right.’” United
36   States v. Kumar, 617 F.3d 612, 635 (2d Cir. 2010) (quoting
37   U.S.S.G. § 3E1.1 cmt. 3). More to the point here, a
38   defendant who obstructs justice is typically disentitled to
39   such a reduction. See id. (an obstruction enhancement
40   forecloses an acceptance of responsibility reduction except
41   in “extraordinary cases”) (quoting U.S.S.G. § 3E1.1 cmt.
42   4).
43
44        The district court found that Lawani’s perjury at his
45   brother’s trial--which took place after Lawani entered his
46   guilty plea--“belies the fact that [Lawani] ha[d] indeed
47   accepted responsibility for what happened here.” The

                                  3
 1   district court’s refusal to treat Lawani’s as an
 2   “extraordinary case” (i.e., one in which the reduction was
 3   warranted notwithstanding the obstruction) was not without
 4   foundation. So, we affirm.
 5
 6                               ***
 7
 8        For the foregoing reasons, and finding no merit in
 9   Lawani’s other arguments, we hereby AFFIRM the judgment of
10   the district court.
11
12                              FOR THE COURT:
13                              CATHERINE O’HAGAN WOLFE, CLERK
14




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