Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-19-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2349




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"USA v. Zaku" (2006). 2006 Decisions. Paper 1248.
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                                                                  NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
                            ___________

                                     No. 05-2349
                                     ___________

                          UNITED STATES OF AMERICA

                                           v.

                                  XHENGIZ ZAKU,

                                                      Appellant
                                     ___________

   On Appeal from a Final Judgment of Conviction and Sentence of the United States
                     District Court for the District of New Jersey
                        (D.N.J. Criminal No. 04-cr-00751-1)
                         District Judge: Hon. Jose L. Linares
                                     ___________

                     Submitted Under Third Circuit LAR 34.1(a)
                                  April 18, 2006

           BEFORE: SLOVITER, AMBRO, and MICHEL,* Circuit Judges.

                                (Filed: April 19, 2006)

                                     ___________

                                      OPINION
                                     ___________

MICHEL, Circuit Judge.

      Xhengiz Zaku appeals only the sentencing aspect of an April 21, 2005 final judgment


                *
                 Honorable Paul R. Michel, Chief Judge, United States
            Court of Appeals for the Federal Circuit, sitting by
            designation.
by Judge Jose L. Linares of the United States District Court for the District of New Jersey.

For the reasons given below, we affirm the district court’s judgment.

                                        BACKGROUND

       In or about 2002, Xhengiz Zaku, an adult male, conspired with a friend of his, Neat

Osmani, an adult male, to distribute more than five kilograms of cocaine and smuggle the

cocaine into Macedonia. The government conceded that the “kingpin of the drug importation

scheme” was Lado Istrefi, Osmani’s uncle, who lived in Macedonia. The government agreed

that Istrefi recruited his nephew Osmani and that Osmani, in turn, recruited Zaku. In April

2002, Zaku and Osmani together “approach[ed]” B.I.,1 a male then fifteen years old, and

Sedat Sulejmani, an adult male, and “ask[ed]” them to assist in the drug smuggling operation.

Zaku later “retrieve[d]” the airline tickets for B.I.,2 delivered the tickets to B.I., and “help[ed]

drive” B.I. to the airport , where B.I. was supposed to fly from Newark to Aruba, where he

and Sulejmani would procure the cocaine, and from Aruba to Norway, where they would

deliver the cocaine to Istrefi or one of his associates (whereby the cocaine would then be

smuggled into Macedonia). As part of the plan, Zaku also took B.I. to a department store to

purchase clothing for B.I. to be used during and for the smuggling operation.

       After B.I. and Sulejmani arrived in Aruba, they were arrested. B.I. cooperated with



                  1
                   The initials of the minor, B.I., are being used to protect his
               privacy.
                  2
                   Zaku also approached Sulejmani. The issue on appeal,
               however, is whether Zaku used a minor, namely, B.I., in the
               conspiracy. Thus, our discussion focuses on B.I.

                                                 2
police to effect the arrest of Zaku. On October 18, 2004, Zaku pled guilty to a “conspiracy

to distribute [a] controlled substance (cocaine).” This resulted in a base sentencing level of

33 and a reduction to level 29 for other factors, according to the sentencing guidelines.3 In

addition, Zaku offered substantial assistance to the government that led to the arrest of

Osmani.

       Because of Zaku’s substantial assistance, the government moved for a downward

departure of 3 levels to level 26. The district court granted the government’s motion based

on its analysis and weighing of the five factors outlined in section 5k1.1 of the United States

Sentencing Guidelines. During the sentencing hearing, the court recited all five 5k1.1

factors, stated that it considered and weighed the factors, discussed its analysis of the five

factors, and explained why it granted the government’s motion based on the factors. In her

Presentence Investigation Report, the Probation Officer calculated the total offense level with

a 2-level increase because Zaku used a minor in the conspiracy. This 2-level increase was

included in the base sentencing level of 33. In a letter to the Probation Officer, Zaku

objected to the enhancement, asserting that he did not use a minor. The trial court denied the

“motion” because it found that Zaku did use a minor. Thus, after the downward departure,

the trial court set Zaku’s sentencing level at 26, which carries a sentence range of 63 to 78

months. On April 21, 2005, the trial court sentenced Zaku to the lowest time in that range,


                 3
                  Zaku was given a 2-level reduction because “no aggravating
              role [was] applicable” to Zaku, as the trial court found that he was
              “not an organizer or leader of this particular criminal activity.” He
              was also given a safety valve reduction of 2 levels.

                                               3
63 months. On May 25, 2005, Zaku surrendered to commence serving his sentence.

       On appeal, Zaku argues that the trial court erred because it “misapplied the

[sentencing] guidelines, misunderstood the legal standard for departures, and failed to

consider properly the relevant factors regarding substantial assistance.” He also argues that

the trial court erred by finding that he used a minor in the conspiracy. We conclude that the

trial court did not err in interpreting and applying the law and considering all of the factors.

We also hold that the trial court did not err in finding that Zaku used a minor in the

conspiracy. Thus, we affirm the trial court’s judgment.

                                        DISCUSSION

                                               A

       As a preliminary matter, the government asserts that this Court does not have

jurisdiction over one aspect of this appeal, namely, the downward departure for substantial

assistance, because a defendant may not appeal the extent of a downward departure, which

is given at the discretion of the judge. Thus, the government asserts, Zaku’s appeal on this

issue is dismissible for lack of jurisdiction. Zaku responds that he is not merely appealing

the extent of the downward departure and, thus, his appeal falls within the jurisdiction of this

Court. United States v. Khalil, 

, 898 (3d Cir. 1997). Zaku is correct that a

defendant may appeal a sentence that “was imposed as a result of an incorrect application of

the sentencing guidelines.” 18 U.S.C. § 3742(a)(2). Because Zaku is challenging the

application of the guidelines and the consideration of all guideline factors, we believe that

this Court has jurisdiction under (a)(2) and we will analyze this appeal on the merits.

                                               4
                                                B

       Zaku asserts that the trial court erred as a matter of law because it misunderstood and

misapplied the law. Yet, other than these general allegations, he fails to explain how the

guidelines were misapplied. Indeed, he quotes the trial court’s analysis and application of

the five factors during the sentencing hearing and recites what the trial court did state as to

each factor, showing that the trial court did consider the factors. Thus, while he claims that

the court misunderstood and misapplied the law, he actually is merely contesting the

weighing of the factors and the result that the offense level was reduced “by only three

levels.”

       The government responds that the trial court did correctly apply the guidelines and

consider each factor in its analysis, as shown by the trial court’s specific discussion of the

five factors in the sentencing transcript. We agree with the government.

       Regarding the second factor (the “truthfulness, completeness, and reliability” of

Zaku’s information), although the trial court did not explicitly discuss this factor, it implicitly

found Zaku’s information truthful, complete, and reliable. Otherwise it would not have

considered it and granted the downward departure based on it.

       As to the fourth factor, any “danger or risk of injury to the defendant or his family,”

Zaku states that “there is literally no mention of the danger or risk to not only the defendant,

but to his family, as well.” Yet Zaku did not present any supporting evidence prior to or at

the sentencing hearing. For the first time on appeal, he now submits supplemental evidence

alleging that “[t]hreats to the defendant were made telephonically,” that Zaku himself was

                                                5
“physically assaulted on one occasion,” and that Zaku’s car “was vandalized.” The trial

court could not have erred regarding this 5k1.1 factor because no such evidence was before

the trial court.4

                                               C

       Zaku also alleges that the trial court erred in finding that he “used” a minor in the

conspiracy because he did not “decide” to use B.I., the minor. Rather, he states, Istrefi and

Osmani “decided” to use the minor and Zaku merely “accepted” their decision. The

government counters that Zaku’s sworn admission during his plea hearing that he

“approach[ed]” and “ask[ed]” B.I. to join the conspiracy, “retrieve[d]” airline tickets for B.I.,

and “help[ed] drive” B.I. to the airport so that B.I. could pick up the cocaine in Aruba and

“deliver” it in Norway proved “use” of a minor within its statutory meaning. We agree.

       The United States Sentencing Guidelines define “use” of a minor as “includ[ing]

directing, commanding, encouraging, intimidating, counseling, training, procuring, recruiting

or soliciting.” U.S.S.G. 3B1.4, Appl. Note 1. Indeed, we have explained that section 3B1.4

merely requires “some affirmative act. . . .” United States v. Pojilenko, 

, 247

(3d Cir. 2005). The admitted acts clearly constitute “some affirmative act beyond mere joint

participation in a crime with a minor. . . .” 

. Thus, Zaku “used”



                    4
                    Moreover, we cannot consider this evidence now, for the first
               time on appeal. See, e.g., In re Capital Cities/ABC, Inc’s
               Application for Access to Sealed Transcripts, 

, 96 (3d
               Cir. 1990) (holding that an appellate court “cannot consider
               material on appeal that is outside of the district court record”).

                                                6
B.I., a minor, in the conspiracy, within the meaning of section 3B1.4.

           For the foregoing reasons, we affirm the judgment of the trial court.




                                             7