Filed: Jan. 24, 2008
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 1-24-2008 USA v. Muhammad Precedential or Non-Precedential: Non-Precedential Docket No. 06-4883 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "USA v. Muhammad" (2008). 2008 Decisions. Paper 1708. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1708 This decision is brought to you for free and open access by the Opinions of the United
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 1-24-2008 USA v. Muhammad Precedential or Non-Precedential: Non-Precedential Docket No. 06-4883 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "USA v. Muhammad" (2008). 2008 Decisions. Paper 1708. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1708 This decision is brought to you for free and open access by the Opinions of the United S..
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Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
1-24-2008
USA v. Muhammad
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-4883
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"USA v. Muhammad" (2008). 2008 Decisions. Paper 1708.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1708
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NOT PRECEDENTIAL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
_______________
No. 06-4883
_______________
UNITED STATES OF AMERICA
v.
LONDON SMITH
aka
SHAKIL MUHAMMAD
Shakil Muhammad a/k/a London Smith,
Appellant
_______________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 05-cr-00329)
District Judge: Honorable Christopher C. Conner
_______________
Submitted Under Third Circuit LAR 34.1(a)
January 7, 2008
Before: FUENTES and JORDAN, Circuit Judges
and O’NEILL*, District Judge.
Filed: January 24, 2008
_______________
OPINION OF THE COURT
_______________
_______________
*Honorable Thomas N. O’Neill, Jr., United States District Court Judge for the Eastern
District of Pennsylvania, sitting by designation.
JORDAN, Circuit Judge.
Shakil Muhammad, also known as London Smith, appeals his conviction and
sentence for unlawful distribution and possession with intent to distribute heroin, in
violation of 21 U.S.C. § 841(a)(1), and for being a felon in unlawful possession of a
firearm, in violation of 18 U.S.C. § 922(g). Finding no error, we will affirm.
I. Background
Because we write solely for the parties’ benefit, we assume familiarity with the
case and discuss only the background information necessary to our decision. Muhammad
was indicted for the offenses already noted and, after some procedural steps not relevant
here, he chose to plead guilty to those offenses. Before accepting the guilty plea, the
District Court conducted a careful colloquy, which included the following exchanges with
Muhammad:
The Court: Do you understand that the terms of the plea agreement are
simply recommendations to the court, and that I can reject the
recommendations without permitting you to withdraw your
plea of guilty and impose a sentence which is more severe
than you may anticipate?
Defendant: Yes, Your Honor.
* * *
The Court: Do you understand that the total statutory maximum term of
imprisonment under the United States Code for these offenses
is thirty years, a fine of 1.25 million dollars, ... a total of eight
years of supervised release, and in addition to the costs of
prosecution, denial of certain federal benefits, and a $200
assessment?
2
Defendant: Yes, Your Honor.
* * *
The Court: You should be advised that prior conviction can affect your
guideline sentencing range... . Do you understand this?
Defendant: Yes, Your Honor.
* * *
The Court: Now, if your attorney or anyone else has estimated your
guideline sentence at this time and I determine after I review
the presentence report that the guideline is different from
what has been estimated to you, you cannot withdraw your
guilty plea. Do you understand that?
Defendant: Yes.
* * *
The Court: Do you understand that the guideline range is advisory only,
and that after your guideline range has been determined that
the court has the authority to impose a sentence that is more
severe or less severe that the sentence called for by the
guidelines?
Defendant: Yes, Your Honor.
(Quoted in App. at 15-16.)
In short, Muhammad affirmed that he understood the penalties facing him, that he
could not withdraw his guilty plea simply because it appeared he could receive a harsher
sentence than he thought he would, and that he wanted to plead guilty because he was, in
fact, guilty. (App. At 15-16, 64.) Nevertheless, after seeing the presentence report,
Muhammad decided that he really did not want to plead guilty after all. He freely admits
3
that his change of heart came because he believed from the presentence report that he was
facing a harsher sentence than he had earlier anticipated. Since the report suggested that
he should be classified as a “career offender” and calculated his potential sentence on that
basis, Muhammad decided that he really had not possessed his heroin with the intent to
distribute it. It was, instead, his personal stash, for his personal use.
In a written opinion, the District Court declined to allow Muhammad to withdraw
his guilty plea. That same day, an amended presentence report issued, saying that
Muhammad should not be classified as a “career offender” and adjusting his guideline
calculation accordingly. At sentencing a few days later, the Court agreed that the career
offender designation was not applicable and proceeded to sentence Muhammad to 104
months imprisonment on each of the two counts of conviction, the time to be served
concurrently. The sentence also included the payment of fines, special assessments,
restitution, and supervised release.
II. Discussion
Muhammad makes two arguments on appeal.1 First, he argues that the District
Court erred in refusing to allow him to withdraw his guilty plea. “We review a district
court's ruling denying a defendant's motion to withdraw his guilty plea before sentencing
pursuant to an abuse of discretion standard.” United States v. Jones, 336 F.3d 245, 252
1
The District Court had jurisdiction over this case pursuant to 18 U.S.C. § 3231. We
have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
4
(3d Cir. 2003) (citation omitted). Under these circumstances, there was no abuse of
discretion in holding Muhammad to the plea he had freely entered.
Federal Rule of Criminal Procedure 32(e) provides, in pertinent part: “If a motion
to withdraw a plea of guilty ... is made before a sentence is imposed, the court may permit
the plea to be withdrawn if the defendant shows any fair and just reason.” The defendant
bears the burden of demonstrating he has a “fair and just” reason, “and that burden is
substantial.” Jones, 336 F.3d at 252. We have asked district courts to consider three
factors when considering a motion to withdraw a guilty plea: “(1) whether the defendant
asserts his innocence; (2) the strength of the defendant's reasons for withdrawing the plea;
and (3) whether the government would be prejudiced by the withdrawal.”
Id. We focus,
as did the District Court, on the first two factors, since the government chose not to assert
that it would be prejudiced by withdrawal of the plea.
As to the first factor, Muhammad does assert his innocence, claiming that he never
intended to distribute the heroin that he packaged in 300 baggies. The District Court
justifiably found the claim incredible, but, besides being beyond belief, such “[b]ald
assertions of innocence are insufficient to permit a defendant to withdraw his guilty plea.”
Jones, 336 F.3d at 252. Instead, “[a]ssertions of innocence must be buttressed by facts in
the record that support a claimed defense.” United States v. Brown,
250 F.3d 811, 818
(3d Cir. 2001) (internal quotation marks and citation omitted). Since Muhammad points
to nothing in the record to justify his new claim of innocence, it does not support his
effort to withdraw his guilty plea.
5
As to the second factor, i.e., the strength of the reasons for withdrawal,
Muhammad again is unpersuasive. Leaving aside the repeated affirmations he gave about
the knowing and voluntary character of his plea, his argument for withdrawal is hard to
take seriously because it is fundamentally illogical. He admits that he is now taking a
position about his guilt that is directly contrary to the one he asserted at his change of plea
hearing, and the only explanation he has for the about-face is that his “contradictory
positions are the result of his former counsel’s failure to adequately advise him requisite
to the guideline range.” (Appellant’s Brief at 11-12.) Whether Muhammad has any
viable claim for post-conviction relief based on the allegation that his former counsel did
not adequately explain sentencing possibilities to him is irrelevant to whether he is in fact
guilty of the crimes with which he was charged. The potential penalties do not change
historical facts, including what his intent was when he possessed the heroin he still admits
he possessed. He admitted having the intent to distribute that heroin, and nothing he
argues bears on that admission in the least.2 “A shift in defense tactics, a change of mind,
or the fear of punishment are not adequate reasons to impose on the government the
expense, difficulty, and risk of trying a defendant who has already acknowledged his guilt
2
We note too that the only argument made about Muhammad’s counsel being
ineffective is that counsel failed to tell Muhammad he faced exposure to higher penalties
as a career offender. Since the District Court determined that Muhammad would not be
treated as a career offender, we are left to wonder what the basis is for the ineffective
assistance argument and hence for the motion to withdraw.
6
by pleading guilty.” Brown, 250 F.3d at 815 (internal quotation marks and citation
omitted).
Muhammad’s only other argument on appeal is that the District Court erroneously
applied a stolen firearms enhancement while calculating the applicable Guidelines range.
We look for clear error when reviewing a district court’s factual findings related to
sentencing. United States v. Grier, 475 F.3d 556, 570 (3d Cir. 2007) (en banc). Our
review of a district court’s interpretation of the Sentencing Guidelines is plenary.
Id.
“We review the District Court's application of the Guidelines to facts for abuse of
discretion.” United States v. Tupone,
442 F.3d 145, 149 (3d Cir. 2006) (citation omitted).
The District Court did not abuse its discretion in imposing the stolen firearms
enhancement in this case.
Section 2K2.1(b)(4) provides that a defendant’s Guidelines offense level should be
increased by two points if an unlawfully possessed firearm was stolen. In this case, the
government provided at sentencing a police report stating that the firearm Muhammad
possessed had been reported stolen. Muhammad complains that he was denied due
process because the police report was hearsay and was provided only “moments before
the [sentencing] hearing.” (Appellant’s Brief at 15.) The government points out in
response, first, that the Federal Rules of Evidence do not apply at a sentencing
proceeding. See 18 U.S.C. § 3661 (“No limitation shall be placed on the information
concerning the background, character, and conduct of a person convicted of an offense
which a court of the United States may receive and consider for the purpose of imposing
7
an appropriate sentence.”); U.S.S.G., § 6A1.3(a) (“In resolving any dispute concerning a
factor important to the sentencing determination, the court may consider relevant
information without regard to its admissibility under the rules of evidence applicable at
trial, provided that the information has sufficient indicia of reliability to support its
probable accuracy.”). The government next notes that Muhammad had long anticipated
that exactly this type of evidence would be presented. Indeed, Muhammad’s sentencing
memorandum, submitted over a month before the sentencing hearing, states, “defendant
anticipates that the government will merely attempt to present evidence that the firearms
were ‘reported stolen’.” (Appellee’s Brief at 19.) Since we can discern no unfair surprise
nor any lack of indicia of reliability in the report presented to the District Court, there was
no abuse of discretion in choosing to believe the report and impose the two-point
enhancement.
III. Conclusion
Accordingly, we will affirm the conviction and judgment of sentence.
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