16‐2995‐cr United States v. Ahlijah

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 2nd day of October, two thousand eighteen.

PRESENT: JOHN M. WALKER, JR., DENNY CHIN, Circuit Judges, JOHN F. KEENAN, District Judge.* ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

UNITED STATES OF AMERICA, Appellee,

v. 16‐2995‐cr

DICKSON KUMANKUMAH, Defendant,

FERDINAND AGBEKO AHLIJAH, Defendant‐Appellant.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

* Judge John F. Keenan, of the United States District Court for the Southern District of New York, sitting by designation.

FOR APPELLEE: ANDREW D. BEATY, Assistant United States Attorney (Won S. Shin, Daniel B. Tehrani, Assistant United States Attorneys, on the brief), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, New York.

FOR DEFENDANT‐APPELLANT: HARRY SANDICK (Michael N. Fresco, on the brief), Patterson Belknap Webb & Tyler LLP, New York, New York.

Appeal from the United States District Court for the Southern District of

New York (Daniels, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Defendant‐appellant Ferdinand Agbeko Ahlijah appeals from a judgment

entered August 17, 2016, convicting him of one count of conspiracy to import one

kilogram or more of heroin into the United States, in violation of

, and

one count of conspiracy to distribute or possess with the intent to distribute one

kilogram or more of heroin, in violation of

(a)(1), 841(b)(1)(A), and 846.

The district court sentenced Ahlijah principally to 86 monthsʹ imprisonment and three

yearsʹ supervised release. We assume the partiesʹ familiarity with the underlying facts,

the procedural history of the case, and the issues on appeal.

Between 2011 and June 2014, Ahlijah traveled from Ghana to the United

States on multiple occasions, smuggling several kilograms of heroin into the country for 2

distribution. On June 11, 2014, customs officials stopped Ahlijah at John F. Kennedy

Airport. They took him to the airportʹs medical facility, where an x‐ray examination

revealed pellets inside his abdomen. Ahlijah admitted to knowing that the pellets

contained heroin. Eventually, they recovered some 100 pellets containing more than

one kilogram of heroin that he had been hiding in his body. Ahlijah then assisted law

enforcement for approximately three days by making recorded calls to his supply

source in Ghana, whom he referred to as ʺUncle,ʺ and to co‐defendant Dickson

Kumankumah. Ahlijahʹs calls led to a controlled delivery to Kumankumah and to

Kumankumahʹs arrest.

On August 6, 2014, a federal grand jury indicted Ahlijah and

Kumankumah on the two counts. Kumankumah eventually pled guilty to the

importation charge, while Ahlijah proceeded to trial. On April 13, 2016, after a three‐

day trial, the jury convicted Ahlijah on both counts.

The presentence investigation report (the ʺPSRʺ) calculated Ahlijahʹs

Guidelines range of imprisonment to be 97‐121 months, based on a total offense level of

30 and a criminal history of category I. The PSR noted that it used the 2015 Guidelines

Manual. Ahlijah requested a mitigating role reduction under Guidelines § 3B1.2 based

on his minimal participation in the criminal offense. In response, the government

argued that no such downward adjustment was warranted and instead sought an

obstruction of justice enhancement.

3

On August 17, 2016, the district court sentenced Ahlijah. The court

confirmed that Ahlijah had reviewed the PSR. Ahlijah had no objections to the PSRʹs

factual recitations. After rejecting the governmentʹs request for an obstruction of justice

enhancement, the court adopted the findings of fact and Guidelines range contained in

the PSR. The court imposed two concurrent terms of 86 monthsʹ imprisonment

followed by two concurrent terms of three yearsʹ supervised release and explained its

reasoning for its sentence.

On appeal, Ahlijah challenges both the procedural and substantive

reasonableness of his sentence. He argues that the sentence is procedurally

unreasonable because the district court ʺappears to have relied onʺ an outdated

Guidelines provision with respect to his role in the offense. Def.‐Appellantʹs Br. 22. He

also argues that the sentence of 86 monthsʹ imprisonment ‐‐ a below‐Guidelines

sentence ‐‐ is substantively unreasonable given his lack of criminal history, extensive

post‐arrest cooperation, minimal role in the offense, and the substantially shorter

sentence imposed on his more culpable co‐defendant.

We review sentencing decisions for procedural and substantive

reasonableness. See United States v. Cavera,

(2d Cir. 2008) (en banc);

United States v. Verkhoglyad,

(2d Cir. 2008). We apply a ʺdeferential

abuse‐of‐discretionʺ standard to both procedural and substantive review. Cavera,

(quoting Gall v. United States,

(2007)). A district court

4

ʺcommits procedural error where it fails to calculate the Guidelines range (unless

omission of the calculation is justified), makes a mistake in its Guidelines calculation,

. . . treats the Guidelines as mandatory[,] . . . does not consider the § 3553(a) factors, or

rests its sentence on a clearly erroneous finding of fact.ʺ Id. at 190 (citations omitted). A

sentence is substantively unreasonable if it ʺcannot be located within the range of

permissible decisions,ʺ id. (quoting United States v. Rigas,

(2d Cir.

2007)), that is, a sentence is substantively unreasonable if it ʺshock[s] the conscience,ʺ

constitutes a ʺmanifest‐injustice,ʺ or is otherwise substantively unreasonable, United

States v. Rigas,

(2d Cir. 2009)). It is ʺdifficult to find that a below‐

Guidelines sentence is unreasonable,ʺ because ʺin the overwhelming majority of cases, a

Guidelines sentence will fall comfortably within the broad range of sentences that

would be reasonable in the particular circumstances.ʺ United States v. Perez‐Frias,

(2d Cir. 2011) (internal quotation marks and brackets omitted).

Because Ahlijah did not challenge the procedural reasonableness of his

sentence in the lower court, we review the challenge on appeal for plain error. See

United States v. Alvarado,

(2d Cir. 2013) (per curiam). ʺA finding of

ʹplain errorʹ requires that: (1) there is an error; (2) the error is clear or obvious, rather

than subject to reasonable dispute; (3) the error affected the appellantʹs substantial

rights, which in the ordinary case means it affected the outcome of the district court

5

proceedings; and (4) the error seriously affects the fairness, integrity or public

reputation of judicial proceedings.ʺ

The district court did not commit plain error in determining its sentence.

It is neither clear nor obvious that the court used an outdated, incorrect version of the

Guidelines in denying Ahlijahʹs request for a mitigating role reduction. The Probation

Office clearly stated that its calculations were based on the 2015 Guidelines, the then‐

current version, which included the revised commentary to § 3B1.2 on which Ahlijah

now relies, and the court explicitly adopted the PSRʹs calculations. Both parties made

arguments consistent with the correct version of the Guidelines in their sentencing

submissions and at the sentencing hearing. In determining relative culpability in the

criminal activity, for instance, they properly compared Ahlijah to his co‐conspirators

and not to ʺthe universe of persons participating in similar crimes.ʺ U.S.S.G. app. C,

amend. 794. Contrary to Ahlijahʹs claim on appeal, the court never suggested that it

viewed the governmentʹs argument that Ahlijah ʺplayed an integral roleʺ to be

dispositive. Rather, the court correctly considered the extent of Ahlijahʹs involvement

as one of several factors, enumerated in

(a) and the post‐Amendment

794 Guidelines § 3B1.2 commentary, relevant to crafting an appropriate sentence.

Accordingly, Ahlijah has not demonstrated any error, let alone plain error, and his

sentence is procedurally reasonable.

6

We further find the sentence substantively reasonable. ʺThe particular

weight to be afforded aggravating or mitigating factors is a matter firmly committed to

the discretion of the sentencing judge.ʺ United States v. Broxmeyer,

(2d

Cir. 2012) (internal quotation marks omitted). The district court carefully considered

both partiesʹ arguments made in their written submissions and during the sentencing

hearing, as well as factors such as Ahlijahʹs age and the nature of his activity, before

concluding that Ahlijah was involved in ʺvery serious, illegal conductʺ on ʺmore than

one occasionʺ because of his ʺown desire to profit.ʺ App. 553‐54. The court imposed a

below‐Guidelines sentence of 86 monthsʹ imprisonment that took into account Ahlijahʹs

initial cooperation with the government, and yet was still ʺsubstantialʺ enough to

accomplish the goals of sentencing.

Nor are we persuaded that Ahlijahʹs sentence was substantively

unreasonable because his co‐conspirator, Kumankumah, received only an 18‐month

sentence. See United States v. Wills,

(2d Cir. 2007) (section 3553(a) ʺdoes

not require district courts to consider sentencing disparity among co‐defendants,ʺ

although disparities may be considered) (emphasis added)). Ahlijah and Kumankumah

were not similarly situated. Kumankumah fully proffered with the government,

pleaded guilty, and was more advanced in age. The sentencing disparity therefore

does not render Ahlijahʹs sentence substantively unreasonable.

7

We have considered Ahlijahʹs remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the district courtʹs judgment.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk of Court

8