                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-4580


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

AHMED MOHAMMED SHAWAKHA,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:08-cr-00068-F-1)


Argued:   October 27, 2010                 Decided:   January 31, 2011


Before NIEMEYER, SHEDD, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.      Judge Shedd wrote a
dissenting opinion.


ARGUED: H. Gerald Beaver, BEAVER, HOLT, STERNLICHT & COURIE, PA,
Fayetteville, North Carolina, for Appellant. Jennifer E. Wells,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.    ON BRIEF: George E. B. Holding, United States
Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant
United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Ahmed Shawakha pled guilty to conspiring to distribute and

possessing with the intent to distribute more than 100 grams of

marijuana, in violation of 21 U.S.C. § 846.                      Departing upward

from     the      suggested      Guidelines    range,      the     district        court

sentenced Shawakha to 87 months’ imprisonment.                        Shawakha now

appeals,       raising     issues   related    to    the    calculation       of    his

advisory       Guidelines     range,   the    district     court’s     decision      to

upwardly       depart,     and   the   substantive      reasonableness        of     his

sentence.         For the reasons stated herein, we affirm the judgment

of the district court.



                                         I.

       Shawakha conspired with Dwight Arnold and his father Audley

Arnold to distribute drugs in the Fayetteville, North Carolina

area.        Dwight fronted Shawakha the drugs, Shawakha’s contacts

sold the drugs, and Shawakha gave the drug proceeds to Audley to

pay Dwight.

       One     morning,    Shawakha    appeared     unannounced      at   the      FBI’s

office       in   Fayetteville,     saying    that    he    owed     Jamaican       drug

dealers approximately $24,000, could not pay them, and that he

needed the FBI’s assistance.            He noted that an initial shipment

of   200     pounds   of   marijuana    had   already      arrived    and   that      he

expected future shipments.

                                          2
      While Shawakha was talking to the FBI, he received phone

calls instructing him to attend a meeting at a local restaurant.

The FBI placed a wire on Shawakha, observed him pick up Audley,

and continued surveillance while Shawakha attended the meeting.

Conversation among the co-conspirators revealed that Dwight was

at the meeting, although Shawakha had not expected him to be

there.     When the meeting was over, Shawakha and Audley took

possession     of   478     pounds    of   marijuana,    which   they   initially

transported to Audley’s residence and then took to an industrial

building owned by Shawakha.

      Later    that       night,     Shawakha    provided     authorities       with

written consent to search the property and they removed the 478

pounds of marijuana.              Shawakha became “very irritated” during

the removal process because no one had informed him the drugs

would be seized, there was a large law enforcement presence on

his     property,     and    he    was     concerned    his   safety    would    be

compromised.        Joint Appendix (“J.A.”) at 185.              Once the drugs

had been removed, the FBI allowed Shawakha to return home but

instructed him to maintain contact.              Over the following weekend,

however, agents were unable to contact Shawakha and they found

no indication that he was at his residence.

      Shawakha resurfaced on Monday and told the FBI that he had

taken    his   family       to    Pennsylvania   for    safekeeping.        Agents

subsequently decided to fit Shawakha with another wire and send

                                           3
him to talk with Audley.             The ensuing conversation did not go as

agents expected and it became evident that both Shawakha and

Audley were “upset.”            Id. at 187.              Agents consequently called

Shawakha    and       instructed     him    to    leave     the    meeting.       Shortly

thereafter, authorities arrested Shawakha and Audley on state

drug charges.

      Shawakha        posted    bond       the     day     after    his     arrest,     was

released, and contacted the FBI to let agents know that he was

“out of jail.”          Id. at 189.         FBI agents’ subsequent attempts to

contact Shawakha were unsuccessful.                      They did, however, receive

news that a confidential informant had reported that Shawakha

was   traveling        to   California           with     the    possible     intent     of

“crossing       the    border   into       Mexico.”         Id.    at     190.     Agents

responded by obtaining a second state warrant for Shawakha’s

arrest    and    forwarding     it     to    California         authorities      who   took

Shawakha into custody.

      The preceding events were given greater context once Audley

began cooperating with police, as Audley explained that his last

conversation with Shawakha went awry when Shawakha displayed the

wire he was wearing, causing both of them to be “upset.”                           Id. at

190-91.     Audley also indicated that after authorities seized the

478 pounds of marijuana, Shawakha sent a mutual friend to him

with $500 and a message to get out of town and then called

Dwight to inform him the drugs were in police custody.                                  The

                                             4
veracity of Audley’s information was significantly bolstered by

the fact that he had a little more than $500 on his person at

the time of his arrest.                Phone records further verified that

Shawakha placed a called to Dwight during the relevant period.

      A federal grand jury charged Shawakha with conspiring to

distribute and possessing with the intent to distribute more

than 100 grams of marijuana, in violation of 21 U.S.C. § 846.

Shawakha pled guilty to this charge pursuant to a written plea

agreement,    which       included     an    appellate       waiver.     On     appeal,

Shawakha does not contest the validity of his guilty plea.



                                            II.

      The    Presentence         Investigation        Report     (“PSR”)      assigned

Shawakha a base offense level of 26.                   Shawakha then received a

three-level upward adjustment for being a manager or supervisor

of    criminal      activity,      a    two-level       upward     adjustment       for

obstruction of justice, and a three-level downward adjustment

for   acceptance     of    responsibility.            This   resulted    in    a   total

offense     level    of    28,    which      in   combination     with       Shawakha’s

criminal     history       category         of    I   established       an     advisory

Guidelines range of 78 to 97 months’ imprisonment.

      Shawakha filed three primary objections to the PSR, arguing

that (1) the 478 pounds of marijuana seized by law enforcement

should not be attributed to him as relevant conduct, (2) he was

                                             5
not a manager or supervisor of criminal activity, and (3) he was

entitled to the benefit of the safety valve provision found in

United States Sentencing Guidelines (“U.S.S.G.”) § 5C1.2.

     The    district   court    held     a    hearing   at   which   it   allowed

Shawakha and the Government to address these points.                      At the

conclusion of that hearing, the district court indicated that it

was considering an upward departure based on Shawakha’s multiple

acts of obstruction of justice.                It then continued Shawakha’s

sentencing    to   give   the        parties    time    to   research     whether

“multiple    obstructions      of      justice”     would    constitute     valid

“grounds for an upward departure.”             J.A. at 203.

     When Shawakha’s sentencing hearing reconvened, the district

court gave the parties another opportunity to address Shawakha’s

objections to the PSR, as well as the court’s question regarding

the propriety of an upward departure based on multiple acts of

obstruction of justice.         The district court ultimately declined

to impose a manager/supervisor enhancement and adopted the PSR’s

other   recommendations,       but    added    a   further    two-level    upward

departure based on Shawakha’s obstruction of justice, stating:

     [T]he court finds that the [initial] two level
     adjustment—enhancement for obstruction of justice does
     not adequately reflect the severity of the obstructive
     conduct engaged in by the defendant.

          Specifically, the defendant attempted to obstruct
     the prosecution of the instant offense on at least
     five occasions as referenced by his involvement in
     employing an unindicted co-conspirator to inform

                                         6
      Audley Arnold of the investigation of the instant
      offense, personally informing both Audley Arnold and
      Dwight   Arnold  of   the   investigation  into  their
      activities[,] compromising a meeting with Dwight
      Arnold and Audley Arnold by notifying them he was
      wearing a recording device, and attempting to avoid
      prosecution by fleeing to Mexico via California.

Id. at 226; see also id. (“Despite multiple acts of obstruction,

the   defendant       received     only    a    two   level     enhancement      of   the

offense level pursuant to 3C1.1.”).

      The    district        court       accordingly       calculated     Shawakha’s

offense     level       at   27,     stating      that     it     “considered         each

intervening offense level” and found that an offense level of 27

“adequately       account[ed]        for        the    defendant’s       obstructive

conduct.”       Id. at 227.        This resulted in an advisory Guidelines

range of 70 to 87 month’s imprisonment.                  Based on the “severity”

of Shawakha’s conduct, the district court determined that “a

sentence    at    the    upper     end    of    the   [Guidelines]       range    [was]

necessary to meet the goal[s] of sentencing.”                     Id.    Accordingly,

the court imposed a sentence of 87 months’ incarceration, the

high-end of the revised Guidelines range.



                                          III.

      On appeal, Shawakha argues the district court procedurally

erred (1) in attributing the 478 pounds of marijuana to him as

relevant conduct for purposes of sentencing, (2) in failing to

accord    him    an     offense    level       reduction      pursuant   to   U.S.S.G

                                            7
§ 5C1.2’s safety valve provision, and (3) in departing upwards

based    on    multiple       acts   of   obstruction      of     justice.     Shawakha

further contends the district court substantively erred (4) in

imposing an 87-month sentence.

     In response, the Government contends Shawakha waived his

right to raise the first two issues on appeal by virtue of his

plea agreement.            It also maintains that the district court’s

upward departure pursuant to U.S.S.G. § 5K2.0(a) was a proper

exercise      of   the    court’s     sentencing        discretion.         Lastly,    the

Government defends the district court’s imposition of an 87-

month    sentence        as   substantively          reasonable    given     the    unique

facts of his case.



                                               IV.

     “[T]he        interpretation         of    plea    agreements     is    rooted     in

contract law.”           United States v. Peglera, 33 F.3d 412, 413 (4th

Cir. 1994).         In construing such an agreement, we look to its

“plain language” and seek “to ensure that each party receives

the benefit of [its] bargain.”                       United States v. Jordan, 509

F.3d 191, 195 (4th Cir. 2007) (quotation omitted).                                 We thus

enforce a waiver of appellate rights provided (1) the waiver is

valid and (2) the issue sought to be appealed is within its

scope.        See United States v. Manigan, 592 F.3d 621, 627 (4th

Cir. 2010).

                                                8
     The validity of Shawakha’s appellate waiver is uncontested

here, as the parties merely dispute the waiver’s scope. 1                In his

plea agreement, Shawakha agreed

     [t]o   waive  knowingly   and expressly   all  rights,
     conferred by 18 U.S.C. § 3742, to appeal whatever
     sentence is imposed, including any issues that relate
     to the establishment of the advisory Guideline range,
     reserving only the right to appeal from a sentence in
     excess of the applicable advisory Guideline range that
     is established at sentencing.

J.A. at 113.

     Shawakha    emphasizes    the     agreement’s     language    “reserving”

his right “to appeal from a sentence in excess of the applicable

advisory Guideline range . . . established at sentencing,” id.,

in arguing that the district court’s upward departure freed him

to   challenge    all    aspects   of       his   87-month   sentence.      The

appellate waiver does not, however, indicate that Shawakha is

precluded merely from appealing a sentence within the advisory

Guidelines range.        To the contrary, the plea agreement broadly

states that Shawakha agreed to waive “all rights, conferred by

18   U.S.C.    § 3742,   to   appeal    whatever      sentence    is   imposed,

including any issues that relate to the establishment of the


     1
       Even if Shawakha disputed the validity of his appellate
waiver, we would conclude it is valid. The record indicates the
district court carefully questioned Shawakha “concerning the
waiver provision of the plea agreement during the Rule 11
colloquy” and that Shawakha understood “the full significance of
the wavier.” Manigan, 592 F.3d at 627 (quotations omitted).



                                        9
advisory    Guidelines       range.”             Id.    (emphasis        added).       The

reservation       of    rights     clause,       in    contrast,     is    purposefully

narrow, extending “only” to Shawakha’s “right to appeal from a

sentence in excess of the applicable advisory Guidelines range

that is established at sentencing.”                    Id.

     Read in context, the agreement’s plain language reflects

that Shawakha “only” reserved his right to appeal from an upward

departure or variance, i.e., the portion of his “sentence in

excess     of   the      applicable     advisory         Guidelines        range     . . .

established at sentencing.”             Id.       Indeed, the plea agreement is

specific    that       Shawakha    “waive[d]          . . .    all   rights   . . .     to

appeal    . . .    any    issues     that    relate      to    the   establishment      of

[his]     advisory       Guideline     range,”         which     would     include    the

attribution of 478 pounds of marijuana as relevant conduct and

whether U.S.S.G. § 5C1.2’s safety valve provision applies.                             Id.

Doubtless, the waiver’s language could have been more concise.

But on this record we do not doubt that Shawakha understood that

he reserved only the right to appeal an upward deviation from

the advisory Guidelines range established at sentencing.

     At     Shawakha’s       Rule      11     hearing,         the    district       court

specifically inquired whether Shawakha “underst[ood] that [he]

reserve[d] only the right to appeal from an upward departure

from the advisory guideline established at sentencing and that

[he] otherwise waive[d] all rights to appeal whatever sentence

                                            10
[was] imposed.”         Id. at 110.       Shawakha replied, “Yes, Sir.”                  Id.

Accordingly,      we     conclude    Shawakha         has    waived       the    first   two

issues he raises on appeal, as they “relate to the establishment

of [his] advisory Guideline range.”                Id. at 113.



                                          V.

      Because the last two issues Shawakha raises on appeal do

not relate to his initial advisory Guidelines range but pertain

to the district court’s upward departure from that range, they

are   validly     before     this    Court       on    appeal.           Shawakha    first

challenges       the    district     court’s       finding       that      he     committed

multiple acts of obstruction of justice sufficient to justify an

upward departure under U.S.S.G. § 5K2.0.                      Specifically, Shawakha

argues    that    the     district    court      misconstrued            the    record   and

predicated its upward departure on improper factors.

      U.S.S.G. § 5K2.0(a)(3) allows the district court to base a

departure on a “circumstance . . . taken into consideration in

determining      the     [G]uideline      range”      provided       this       factor   “is

present in the offense to a degree substantially in excess of

. . .    that     which    ordinarily       is    involved          in    that    kind    of

offense.”        Here,    the    district      court        concluded      that   Shawakha

committed five acts obstructing justice, which rendered this an

“exceptional case” in which an upwards departure was justified

under    § 5K2.0(a)(3),         despite   the     fact       that    Shawakha       already

                                          11
received a two-level enhancement for obstructing justice in the

computation of his initial sentencing range.

       Shawakha claims the district court incorrectly stated that

he “compromise[d] a meeting with Dwight Arnold and Audley Arnold

by notifying them he was wearing a recording device[].”                                 Opening

brief at 21.           We normally review the district court’s factual

findings “under the clearly erroneous standard,” but “where, as

here, the defendant did not object to the finding below, the

finding is reviewable only for plain error.”                              United States v.

Wells, 163 F.3d 889, 900 (4th Cir. 1998).                            To meet the plain-

error standard, Shawakha must establish (1) an error; (2) that

is     plain;    (3)       that     affected       his    substantial         rights;        and

(4) seriously         affected       the      fairness,      integrity,           or     public

reputation       of    judicial       proceedings.          See       United       States     v.

Lipford, 203 F.3d 259, 271 (4th Cir. 2000).

       Shawakha       is   correct       that    the     district         court    mistakenly

stated that he compromised a meeting with both Dwight and Audley

Arnold    by    notifying         them   he   was     wearing    a    recording         device.

Only    Audley     was      present      at     the    meeting       in    which       Shawakha

displayed his wire.           We agree with the Government, however, that

“[t]his slip of the tongue is not material.”                          Response Brief at

23.     The fact that Shawakha revealed the wire he was wearing to

one coconspirator, rather than two, does not meaningfully affect

the    district       court’s      departure        analysis.         Shawakha         is   thus

                                              12
unable to show that the district court’s factual error caused

him prejudice, even if we assume this error was plain.

     Shawakha also contends that there was insufficient evidence

for the district court to conclude that he was attempting to

avoid prosecution by traveling to California.            Because Shawakha

preserved this argument below, we review the district court’s

factual finding for clear error.         See Wells, 163 F.3d at 900.     A

district court at sentencing need only establish facts “by a

preponderance of the evidence.”            United States v. Young, 609

F.3d 348, 357 (4th Cir. 2010).          We conclude that standard is met

here.   By the time Shawakha traveled to California, he was out

on bond, had previously revealed the FBI’s investigation to two

of his coconspirators, and actively enticed one of them to flee

in order to elude police custody.          It was not clearly erroneous

for the district court to conclude that Shawakha traveled to a

border state with the intent of eluding custody himself.

     In addition, Shawakha maintains that even if the evidence

was sufficient to establish that he was attempting to flee from

custody,   such   flight   does   not    constitute   obstructing   justice

under U.S.S.G. § 3C1.1.       Shawakha is correct that application

notes 5 to U.S.S.G. § 3C1.1 indicates that “avoiding or fleeing

from arrest” does not trigger an “adjustment” for obstructing

justice.    But the record reveals that Shawakha failed to make

this argument before the district court, so we review this issue

                                    13
only for plain error. See United States v. Stewart, 256 F.3d

231, 251 (4th Cir. 2001).

       In short, we conclude that even if the district court erred

in     considering         Shawakha’s          flight    to       California          as    an     act

obstructing         justice        within       the     meaning         of    the     Guidelines,

Shawakha          cannot       demonstrate        that        this       error        caused       him

prejudice.         The district court clearly indicated that its upward

departure was also based on Shawakha (1) sending $500 to Audley

with a message to get out of town, (2) calling Dwight to inform

him    that       police       were    in    possession           of    the     478       pounds    of

marijuana, and (3) exposing his wire to Audley. 2                              These acts were

sufficient,         in     and    of     themselves,         to     support         the     district

court’s modest two-level upward departure.

       Shawakha         further       suggests        that    his      conduct        was    legally

insufficient         to     support       an    upward       departure          under       U.S.S.G.

5K2.0(a)(3).              We     disagree.        It     is       well       established         “that

multiple acts of obstruction of justice may warrant an upward

departure” under the Guidelines.                        United States v. Milton, 147

F.3d       414,   421     (5th    Cir.      1998).       Given         the    district       court’s

“sizeable discretion” in sentencing, United States v. Abu Ali,

       2
       We reject Shawakha’s argument that the district court
failed to adequately explain its chosen sentence. The district
court’s reasoning was straightforward and clear.     Furthermore,
the three instances of obstruction of justice noted above
clearly justify an additional two-level enhancement.



                                                 14
528 F.3d 210, 266 (4th Cir. 2008), and Shawakha’s serious acts

of obstruction, we cannot say the district court legally erred

in determining that Shawakha engaged in a degree of obstruction

“substantially        in     excess    of     . . .      that       which    ordinarily        is

involved”      in     a     case      in     which      a     defendant       receives         an

obstruction-of-justice enhancement.                     U.S.S.G. § 5K2.0(a)(3).

       Lastly,      Shawakha       contends    that         his    87-month       sentence     is

substantively         unreasonable.                We       review      the        substantive

reasonableness of the district court’s chosen sentence for an

abuse of discretion.           See Abu Ali, 528 F.3d at 274.                       Although we

look    to    the    “extent    of     the    difference           between    a     particular

sentence and the recommended Guidelines range,” we give “due

deference      to     the    district        court’s         decision”       and     will    not

“reverse simply because we might reasonably have concluded that

a different sentence was appropriate.”                            Id. at 261 (quotations

omitted).

        In this case, we cannot conclude that Shawakha’s 87-month

sentence      was    substantively         unreasonable.              Shawakha       committed

three    serious      acts    of    obstruction,            which    the    district        court

reasonably          determined        required          an        additional         two-level

enhancement.          The    district        court      then       calculated       Shawakha’s

revised Guidelines range and chose a sentence that comported

with the high-end of that range.                     Although an 87-month sentence

was     not   the     only     reasonable          sentence        Shawakha        could    have

                                              15
received, it constitutes a legitimate exercise of the district

court’s sentencing discretion and must therefore be affirmed.



                                   VI.

     For   all   of   the   foregoing    reasons,   the   judgment    of   the

district court is affirmed.

                                                                     AFFIRMED




                                    16
SHEDD, Circuit Judge, dissenting:

      The majority holds that Shawakha waived his right to appeal

any    issues     relating      to     the     establishment        of    his    advisory

Guidelines range, and it affirms Shawakha’s sentence upon its

consideration      of    the    two        issues    it   deems    not    to    have   been

waived.      In my view, the majority misreads the appeal waiver

provision and, in doing so, precludes Shawakha from raising the

additional      issues,      one      of    which     has   merit.        Therefore,     I

dissent.

      Shawakha waived his right “to appeal whatever sentence is

imposed, including any issues that relate to the establishment

of the advisory Guideline range.” However, he reserved the right

“to appeal from a sentence in excess of the applicable advisory

Guideline    range.”           J.A.    113     (emphasis        added).         Shawakha’s

sentence     clearly         exceeds         the     advisory      Guideline       range.

Therefore,      the    plain    language        of    the   plea     agreement     allows

Shawakha to appeal his entire sentence, not merely some limited

portion of it.         Therefore, the appeal waiver does not limit him

to    appealing       only   the      upward        deviation     from    his    advisory

Guideline range. *


      *
       If the plain language of Shawakha’s plea agreement is also
open to the majority’s reading, the language is ambiguous.
Consequently, it should be construed against the government to
find that Shawakha reserved the right to appeal his entire
sentence.   See United States v. Harvey, 791 F.2d 294, 300-301
(Continued)
                                              17
     Accordingly, I believe all four issues Shawakha raises on

appeal are validly before this Court.            Of those four issues, I

believe one has merit.         In my view, the district court erred

when it failed to explain its rationale for denying Shawakha’s

request for a downward adjustment pursuant to the safety valve

provisions of USSG § 5C1.2(a).        The PSR states that Shawakha was

ineligible for safety valve relief because of his status as a

manager or supervisor of criminal activity.            J.A. 251.        However,

during sentencing, the court granted Shawakha’s objection to the

finding that he was a manager or supervisor.                 Yet the court

still denied Shawakha’s request for safety valve relief without

stating a basis for this ruling.             J.A. 225.            Given these

facts,   if   Shawakha   is   able   to   meet   the   criteria    of    USSG   §

5C1.2(a), he is entitled to a two-level reduction of his offense

level pursuant to USSG §2D1.1(b)(11).            For this reason, I would

remand to the district court for resentencing.




(4th Cir. 1986) (where a plea agreement is ambiguous in its
terms, the terms must be construed against the government,
especially where “the Government has proffered the terms or
prepared a written agreement”).



                                     18
