                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-23-2008

USA v. Salehi
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2696




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                                                            NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                            Nos. 07-2696 and 07-2697


                         UNITED STATES OF AMERICA

                                         v.

                          SHER MOHAMMAD SALEHI
                               a/k/a HAJI LATIF

                               Sher Mohammad Salehi,
                                             Appellant


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF NEW JERSEY
              (D.C. Crim. Nos. 01-cr-00401-10 and 01-cr-00674-02)
               District Judge: The Honorable Katharine S. Hayden


                    Submitted Under Third Circuit LAR 34.1(a)
                                 June 25, 2008


              Before: SLOVITER, BARRY and ROTH, Circuit Judges

                           (Opinion Filed: July 23, 2008)


                                    OPINION



BARRY, Circuit Judge

     Sher Mohammad Salehi appeals the District Court’s judgment of sentence
following his conviction on five counts of heroin trafficking. We will affirm.

                                              I.

       Because we write only for the parties, familiarity with the facts is presumed, and

we set forth only those facts that are relevant to our analysis.

       Between 1999 and 2001, Salehi, together with several co-conspirators, was

responsible for smuggling large quantities of heroin into the United States from Pakistan

and selling it to drug dealers who then repackaged it for street-level distribution. On

April 10, 2001, he was arrested and charged in two separate indictments, Nos. 01-674 and

01-401. Following a jury trial in No. 01-674, he was convicted of one count of

possession with intent to distribute heroin, in violation of 21 U.S.C. § 841, and one count

of conspiracy to do the same, in violation of 21 U.S.C. § 846. Shortly thereafter, he pled

guilty in No. 01-401 to two counts of possession with intent to distribute heroin, in

violation of § 841, and one count of conspiracy to do the same, in violation of § 846.

       Salehi’s convictions in Nos. 01-674 and 01-401 were consolidated for sentencing.

Following a hearing, the District Court found that he was an organizer or leader of

extensive criminal activity, resulting in a four-level increase in his offense level pursuant

to U.S.S.G. § 3B1.1(a), and that he had obstructed justice by threatening a cooperating

government witness, resulting in a two-level increase pursuant to U.S.S.G. § 3C1.1.

Having made those findings, the Court calculated his Sentencing Guidelines range at 151-

188 months, and sentenced him to 160 months imprisonment. He appealed.

       We affirmed his conviction, but remanded for re-sentencing in light of United

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States v. Booker, 543 U.S. 220 (2005). On remand, following a hearing, the District

Court reaffirmed its findings that he was a leader or organizer of extensive criminal

activity and that he had obstructed justice, resulting in the same Guidelines range of 151-

188 months. The Court sentenced him to 151 months imprisonment, finding that his post-

conviction efforts to cooperate with the government in an unrelated case merited a slight

reduction from its original 160-month sentence. He appeals, arguing that the Court erred

in applying both enhancements and in imposing an unreasonable sentence.

                                             II.

       We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. We review

factual findings underlying the enhancements for clear error, while exercising plenary

review over conclusions of law. United States v. Miller, 527 F.3d 54, 75 (3d Cir. 2008).

A factual finding is clearly erroneous “only if we are left with a definite and firm

conviction that a mistake has been committed.” United States v. Lessner, 498 F.3d 185,

199 (3d Cir. 2007). In reviewing the sentence for reasonableness, we determine, first,

whether the District Court gave meaningful consideration to the factors set forth in 18

U.S.C. § 3553(a), and second, whether the Court applied those factors reasonably to the

circumstances of the case. Id. at 203-04.

                                            III.

       Salehi claims that the District Court erred in applying a four-level enhancement

under § 3B1.1(a) because he was not an organizer or leader of criminal activity involving

five or more participants. This argument lacks merit, as it mischaracterizes the basis for

                                             3
the enhancement. Section 3B1.1(a) permits a sentencing court to increase the offense

level by four levels if the defendant was an “organizer or leader of a criminal activity that

involved five or more participants or was otherwise extensive.” U.S.S.G. § 3B1.1(a)

(emphasis added). At the original sentencing hearing, the Court expressly declined to

“count noses” under the first prong of § 3B1.1(a) – i.e., determine whether five or more

participants were involved in the criminal activity – because it found that the criminal

activity at issue was otherwise extensive. (Supp. App. 110.) At the re-sentencing

hearing, the Court stated that it was “going to stick with that enhancement” because “it

was properly applied according to the facts that were explicated in the course of the long

and hard fought trial.” (App. 13.) While the Court, both at the original sentencing

hearing and at the re-sentencing hearing, expressed a belief that the criminal activity

likely involved five or more participants, the basis for the four-level enhancement clearly

was its finding that the activity was otherwise extensive.1 Salehi does not challenge that

finding on appeal, and we will not disturb it.

       Salehi claims, next, that the District Court erred in finding he threatened a

cooperating government witness, Nadar Khan, during a break in Khan’s testimony. Khan

claimed that, as he walked past a cell containing Salehi and another defendant, Salehi

threatened to “tear [his] whole family to pieces.” (Supp. App. 43.) Upon hearing this


   1
     Salehi’s counsel acknowledged as much at the re-sentencing hearing: “I didn’t
spend a lot time [sic] on organizer leader [sic] because I knew exactly where the Court
was coming from. I will remind the Court you said it was otherwise extensive even if he
didn’t have the five or more.” (App. 17.)
                                              4
threat, Khan claimed he attempted to notify Deputy Marshal Brian Gillen, who was

accompanying him at the time, but Gillen told him to “keep going.” (Id.) Salehi denied

making any such threat. Gillen testified that (1) he heard voices speaking in Salehi’s cell,

but they were not speaking a language he understood; (2) as he and Khan passed Salehi’s

cell, Khan slowed and leaned his head in the direction of the cell, “clearly indicating that

he was listening”; and (3) after leaning his head toward the cell, Khan turned around and

looked at Gillen, and Gillen ordered him to continue moving. (App. 84-91.) The Court

found that Khan’s testimony was credible, that Gillen’s testimony generally supported

Khan’s version of events, and that Salehi had in fact threatened Khan.

       Salehi claims that discrepancies between Khan’s testimony and Gillen’s testimony

– including whether Salehi was talking loudly or softly and whether Khan said anything

when he turned to Gillen after allegedly hearing the threat – render Khan’s testimony

incredible. We disagree. Viewed in its entirety, the evidence strongly suggests that

Salehi said something to Khan as he passed Salehi’s cell. The District Court, having the

opportunity to weigh the credibility of Khan, Salehi, and Gillen, and in light of the

circumstances, found that the substance of the communication was a threat. That finding

does not leave us “with a definite and firm conviction that a mistake has been

committed,” Lessner, 498 F.3d at 199, and we will not disturb it.

       Finally, Salehi claims that his sentence is unreasonable because (1) the District

Court erred in imposing an organizer or leader enhancement; (2) the Court erred in

imposing an obstruction of justice enhancement; (3) he is 64 years old; (4) he faces

                                             5
immediate deportation at the end of his sentence; and (5) many of his co-defendants have

completed their sentences already. For the reasons discussed above, the first two claims

lack merit. The Court considered the remaining claims – Salehi’s age, the fact that he

faces deportation, and the severity of his sentence – but found they did not warrant a

lower sentence in light of other § 3553(a) factors, particularly the seriousness of the

offense and the need to promote respect for the law. We are satisfied that the Court gave

meaningful consideration to the § 3553(a) factors and reasonably applied those factors to

the circumstances of the case. Lessner, 498 F.3d at 203-04.

                                             IV.

       For the reasons set forth above, we will affirm the judgment of sentence.




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