166 F.3d 349 (10th Cir. 1998), 97-4111, U.S. v. Shayesteh
| Citation | 166 F.3d 349 |
| Party Name | UNITED STATES of America, Plaintiff-Appellee, v. Ahmad R. SHAYESTEH, Defendant-Appellant. |
| Case Date | November 24, 1998 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Tenth Circuit |
Page 349
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA10 Rule 36.3 regarding use of unpublished opinions)
98 CJ C.A.R. 5970
Before SEYMOUR, BRORBY, and BRISCOE, Circuit Judges.
ORDER ON REHEARING
BRORBY.
This matter is before us on Defendant/Appellant's Petition for Rehearing of this court's October 6, 1998 Order and Judgment affirming his conviction and sentence. Mr. Shayesteh recites two grounds in support of his Petition: (1) the court misconstrued his argument concerning the legality of law enforcement questioning during a highway checkpoint detention, and (2) due to counsel's inadvertent failure to include the transcript of the sentencing hearing in the record on appeal, the court should permit him to supplement the record with the sentencing transcript and address his sentencing issues on the merits. 1 We deny Mr. Shayesteh's Petition for Rehearing on the first ground, but grant his Petition to consider only the sentencing issues he raised on appeal.
Mr. Shayesteh first argues the district court erred in sentencing because it failed to include all the factual predicates of perjury in its obstruction of justice finding. During the sentencing proceeding, the district court expressly found
that the adjustment for obstruction of justice is clearly appropriate ... that during the course of the trial ... Mr. Shayesteh did commit perjury, and that perjury is outlined at page 153 and 154 of the trial transcript, and that his testimony was false and committed clearly in a manner that establishes perjury.
A perjury finding in support of a sentence enhancement for obstruction of justice "must contain two components," United States v. Smith, 81 F.3d 915, 918 (10th Cir.1996): (1) the finding must encompass all the factual predicates of perjury (falsity, materiality, willful intent), and (2) the finding must specifically identify the perjured testimony. Id. In this case the district court adequately identified Mr. Shayesteh's perjured testimony. However, the district court's findings fail to set forth the factual predicates of materiality and willful intent necessary to support its general perjury finding. While we have little doubt the perjured testimony was both material and willful, the district court's finding in this case is indistinguishable from the finding we held deficient in Smith. 81 F.3d at 918-19. Accordingly, we must remand this case to the district court for further findings.
Mr. Shayesteh also challenges the adequacy of the district court's findings as they pertain to his request for a sentence reduction as a "minimal" or "minor" participant. The district court heard argument on this issue, but declined to give Mr. Shayesteh a corresponding reduction. The court denied the reduction without making an express finding concerning Mr. Shayesteh's role as a "minimal" or "minor" participant. Mr. Shayesteh argues the absence of an express finding on this issue constitutes error under United States v. Underwood, 938 F.2d 1086 (10th Cir.1991). We agree. Although there is no legal requirement that the sentencing judge state specific reasons to support his finding that a defendant is not entitled to an adjustment as a "minimal" or "minor" participant, see United States v. Donaldson, 915 F.2d 612, 615-16 (10th Cir.1990), 18 U.S.C. § 3553(c) mandates that the judge make an express finding as to whether such an adjustment is warranted. Absent a statement of the reasons for a particular sentence, including findings as to each guideline adjustment issue the parties raise, we are left to speculate as to the validity of that sentence. See id. at 616; Underwood, 938 F.2d at 1092. We therefore remand to the district court for an express finding on the issue of whether Mr. Shayesteh was a "minimal" or "minor" participant in the drug offense.
In summary, we grant Mr. Shayesteh's Petition for Rehearing for the limited purpose of considering the alleged sentencing errors on the merits. On review of those issues, we remand this case to the district court for additional findings in accordance with this order. We affirm Mr. Shayesteh's conviction and sentence in all other respects.
ORDER AND JUDGMENT [*]
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.
Mr. Shayesteh was convicted of two counts of possessing a controlled substance with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). The first count involved cocaine and the second methamphetamine. The district court sentenced him to 262 months of incarceration. Mr. Shayesteh appeals, asserting that the district court should have suppressed certain evidence and that it erred in sentencing him and in denying his motion for a new trial. We exercise jurisdiction under 28 U.S.C. § 1291, and affirm the conviction and the sentence.
On May 22, 1995, the Utah Highway Patrol filed an application with a state court for authority to establish and operate an administrative traffic checkpoint. 1 A state magistrate judge granted permission to do so. The order provided the roadblock was for purposes of checking drivers' licenses and registrations, and looking for impaired drivers. The order also provided, in part: "[U]nless the officer making the initial contact ... has reasonable suspicion that criminal activity has occurred ... the officer shall not further detain the vehicle or its occupants nor ask for consensual permission to search the occupants or the vehicle."
The roadblock was set up and operating on a highway in southern Utah on Memorial Day 1995. Northbound vehicles were stopped and then sent on their way if there were no irregularities in their license and registration and if the driver did not appear impaired. If there was a problem, the driver and car were sent off to the right lane, a secondary checkpoint.
Mr. Shayesteh drove up to the checkpoint around five o'clock in the afternoon. He was the sole occupant of his car. Trooper Joe Reynolds asked him for his license and registration. Because Mr. Shayesteh could not find his registration, the trooper directed him into the secondary checkpoint area.
Trooper Reynolds went to his vehicle, ran a registration check, and learned the vehicle was registered to Mr. Shayesteh. The trooper returned Mr. Shayesteh's license to him and told him everything was fine. At that point, Mr. Shayesteh was free to leave. However, he was unable to leave as there were vehicles in front of and behind him. While waiting for a chance to merge Mr. Shayesteh's vehicle back into the traffic lane, Trooper Reynolds carried on a short conversation with him. The trooper engaged in this conversation in order to be friendly.
The trooper asked Mr. Shayesteh where he was going. Mr. Shayesteh said he was going to Salt Lake City for a few days. Because no luggage was visible in the car, the trooper asked Mr. Shayesteh where his luggage was and Mr. Shayesteh responded he did not have any. The trooper then asked what was in the trunk, and Mr. Shayesteh told him the trunk was empty, and volunteered "would you like to look?" Trooper Reynolds replied "sure." Mr. Shayesteh got out of the car and the trooper frisked him and searched the passenger compartment for weapons. Mr. Shayesteh then opened the trunk with his key. Contrary to Mr. Shayesteh's earlier statement, the trunk contained two duffle bags. Mr. Shayesteh said the bags were not his.
The trooper took one of the bags out of the trunk to see if there was anything behind it. A county sheriff's officer was present with a certified drug detection dog, although the dog was not being used at the roadblock site. The dog, a Chesapeake Bay Retriever, sniffed the bag on the ground and alerted. Mr. Shayesteh was then handcuffed, and a search of the bag revealed a large quantity of cocaine and methamphetamine.
Mr. Shayesteh moved to suppress the drugs. The motion was referred to a magistrate judge. The magistrate judge held two hearings on the matter. Mr. Shayesteh testified at one of the hearings. The gist of his testimony was that he did not consent to the search and only did as he was ordered. He denied that the dog alerted. He described the fifty-five pound retriever as a "very tiny, very small dog," no bigger than the officer's foot. He further testified the dog did not react to the bag, but the officer did by picking it up, sniffing it, and stating he smelled marijuana. The magistrate judge issued a Report and Recommendation recommending denial of the motion. The district court adopted the Report and Recommendation in its entirety over Mr. Shayesteh's objection, and denied the motion.
Mr. Shayesteh also testified at trial. He stated a man in Arizona asked him to deliver the bag in which the drugs were found to Utah, and that he had never opened the bag. Mr. Shayesteh further testified that while he was in jail, a trooper came to him with a ziplock baggie and had him touch it, which was how his fingerprints came to be on a baggie of drugs found in the bag. Despite this testimony, the jury found him guilty on both charges.
At sentencing, the district court increased the offense level by two points for obstruction of justice based upon the fact Mr. Shayesteh committed perjury at trial by testifying under oath that he was framed by the officers and at the motion to suppress hearing with his testimony concerning the dog. The sentencing court also failed to grant Mr. Shayesteh's motion for a downward departure for being a minimal...
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