Filed: Jul. 23, 2008
Latest Update: Mar. 02, 2020
Summary: 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of the United 2008 Decisions States Court of Appeals for the Third Circuit 7-23-2008 USA v. Salehi Precedential or Non-Precedential: Non-Precedential Docket No. 07-2696 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "USA v. Salehi" (2008). 2008 Decisions. Paper 812. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/812 This decision is brought to you for free and open access by the Opinions of the United States
Summary: 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of the United 2008 Decisions States Court of Appeals for the Third Circuit 7-23-2008 USA v. Salehi Precedential or Non-Precedential: Non-Precedential Docket No. 07-2696 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "USA v. Salehi" (2008). 2008 Decisions. Paper 812. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/812 This decision is brought to you for free and open access by the Opinions of the United States ..
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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Precedential or Non-Precedential: Non-Precedential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
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"USA v. Salehi" (2008). 2008 Decisions. Paper 812.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/812
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL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
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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.)
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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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