U.S.A. v. Shabazz

• Decision Date: 07 March 2001
• Docket Number: No. 99-2388,99-2388
• Citation: 263 F.3d 603
• Parties: (6th Cir. 2001) United States of America, Plaintiff-Appellee, v. Khalid Hassan Shabazz, Defendant-Appellant. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 603

263 F.3d 603 (6th Cir. 2001)

United States of America, Plaintiff-Appellee, v. Khalid Hassan Shabazz, Defendant-Appellant.

No. 99-2388

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: March 7, 2001

Decided and Filed: August 30, 2001

Appeal from the United States District Court for the Eastern District of Michigan at Detroit, No. 98-80473, Lawrence P. Zatkoff, Chief District Judge.

Walter I. Kozar, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, Kathleen Moro Nesi, Asst. U.S. Atty., Detroit, MI, for Appellee.

Joan E. Morgan, Troy, Michigan, for Appellant.

Before: KRUPANSKY, BOGGS, and BATCHELDER, Circuit Judges.

OPINION

ALICE M. BATCHELDER, Circuit Judge.

Defendant Khalid Hassan Shabazz appeals from the sentence entered by the district court on his plea of guilty to obstruction of justice. Shabazz contends that the court erred in its calculation of his base offense level under the obstruction of justice guideline because, rather than making factual findings regarding his knowledge of the aggravating sentencing factors of the underlying offense, the district court based its calculation of his base offense level on the total offense level of the underlying offense obstructed. For the reasons that follow, we vacate Shabazz's sentence and remand for resentencing.

I. Factual Background

In early 1998 an approximately three-month-long jury trial commenced in the prosecution of five defendants on charges of conspiracy under the Racketeering Influenced and Corrupt Organizations Act ("RICO"), stemming from their involvement in the Detroit Cosa Nostra organization. Numerous appeals to this court followed the convictions obtained in that case and the related prosecution of a sixth co-conspirator. See, e.g., United States v. Corrado, Nos. 98-2394, 99-1001, 2000 WL 1290343 (6th Cir. Sept. 8, 2000); United States v. Corrado, 227 F.3d 543 (6th Cir. 2000); United States v. Corrado, 227 F.3d 528 (6th Cir. 2000); United States v. Tocco, 209 F.3d 935 (6th Cir. 2000); United States v. Tocco, 200 F.3d 401 (6th Cir. 2000). One of the defendants in the RICO prosecution was Paul Corrado, whose most serious offense of conviction involved conspiracy to commit murder.

Khalid Hassan Shabazz, also known as Dwayne Ronald Harris, Dwayne Walter Lee, or "Dee," approached Corrado, an acquaintance, during a break in Corrado's trial two days before the scheduled delivery of closing arguments. Shabazz handed Corrado a lottery ticket with a pager number and the name "Dee" written on it and informed Corrado that he had two people in position to hang the jury and that Corrado should page him if interested. Corrado immediately told his attorney of this proposal; with Corrado's consent, the attorney contacted the Federal Bureau of Investigation ("FBI"). Corrado agreed to cooperate with an investigation into the matter.

The next day Corrado paged Shabazz, and the FBI recorded the ensuing telephone calls in which Shabazz told Corrado that a friend of his was on the jury, believed the defendants were not guilty, and would fight for acquittal. Additionally, Shabazz reported that his juror friend thought he could persuade two or three others to join him. Corrado inquired what payment Shabazz's friend required, to which Shabazz replied that he had been instructed to ask only for whatever he thought was fair. With closing arguments fast approaching, Corrado asked Shabazz to talk to his friend on the jury that day so that he could make arrangements to deliver the money. Eventually, Shabazz agreed to meet Corrado at a restaurant in downtown Detroit that night to discuss the matter further and indicated that he would meet with his friend on the jury beforehand. Corrado and Shabazz met as planned, and as Shabazz left the FBI arrested him.

In a post-arrest interview, FBI agents determined the identity of Shabazz's friend on the jury and learned that Shabazz had offered him $25,000 in exchange for his vote. When FBI agents contacted the juror, he informed them that Shabazz had approached him two days prior to closing arguments and asked him to tamper with the jury. Subsequently, the juror said, he avoided Shabazz altogether. As it happened, the juror proved to be an alternate who took no part in deliberations. A federal grand jury returned a single-count indictment charging Shabazz with obstructing justice in violation of 18 U.S.C. § 1503 by attempting to influence the jury in the prosecution of Paul Corrado.

In November 1998 Shabazz executed a plea agreement with the government. In exchange for his guilty plea, the United States agreed not to take a position on which guidelines or sentencing factors apply, on whether Shabazz qualified for an offense-level reduction for acceptance of responsibility, or on the correct methodology for calculating the appropriate guideline range. In essence, because of the difficulties in calculating a sentence in this case, the parties agreed that a probation officer would recommend the appropriate guideline range, which the government would not oppose, but Shabazz could challenge the judge's ultimate determination on appeal.

II. Sentencing Proceedings

During plea negotiations with the government, Paul Daniel Curtis represented Shabazz. Effective December 22, 1998, the Michigan Bar suspended Curtis for forty days for neglect of an unrelated criminal appeal in state court and failure to refund the unearned portion of his retainer in that representation. The Michigan Attorney Discipline Board's investigatory report of the incident giving rise to the discipline notes that Curtis had been reprimanded and admonished several times during the period in which he represented Shabazz in plea negotiations. Notwithstanding his suspension, Curtis represented Shabazz at his first sentencing hearing in early 1999. ¹

Shortly before the sentencing hearing, the probation officer completed the presentence investigation report ("PSR"), which calculated a guideline range of seventy to eighty-seven months' imprisonment based on a total offense level of 25 and a criminal history category of III. The PSR figured Shabazz's total offense level of 25 by applying U.S.S.G. §2X3.1, which provides that an offense involving the obstruction of a criminal investigation or prosecution takes an offense level 6 levels lower than that of the underlying offense obstructed. The PSR then, erroneously, used a total offense level of 34 for Corrado, ² reduced by an additional 3 levels for acceptance of responsibility. Further, the PSR assigned 2 criminal history points to Shabazz for a 1993 misdemeanor conviction for possession of marijuana and operating a vehicle in violation of license restrictions. Because at the time of the instant offense, Shabazz was on probation for the traffic offense, he received an additional 2 criminal history points, placing him at the bottom of criminal history category III.

Curtis filed objections to the PSR and urged the court to depart downward from the recommended guideline sentencing range as being excessive for the gravity of the offense. At the sentencing hearing, the suspended Curtis pressed these arguments before the district court, which overruled the objections and imposed a sentence of seventy months' imprisonment. With respect to the request for a downward departure, the sentencing judge stated, "I also read the defense's [objections] as a motion for a downward departure indicating that this is a matter that was not taken into consideration by the sentencing commission in adopting the guidelines. I do not believe that to be the case."

When Shabazz learned that his attorney had failed to file a notice of appeal and had appeared at sentencing while suspended from the practice of law, he obtained new appointed counsel and successfully sought enlargement of the time within which to file an appeal. The district court granted the motion of Shabazz's new attorney to enlarge the record on appeal to include the PSR prepared for Corrado's sentencing. Corrado's PSR calculated a total offense level of 33, which included adjustments of his base offense level upward to reflect (1) specific offense characteristics, (2) Corrado's role in certain offenses, and (3) multiple count adjustments. Recognizing that the district court had based Shabazz's sentence on the belief that Corrado's total offense level was 34, the government confessed error, and we vacated the sentence and remanded.

During resentencing proceedings, Shabazz raised two issues before the district court in addition to the use of the improper base offense level. First, he argued that calculation of his base offense level should begin with the base offense level of the underlying offense obstructed and that using instead the total offense level of 33 for Corrado's underlying offense overstated Shabazz's offense level because it incorporated multiple-count adjustments and because Shabazz lacked any knowledge of or involvement with the RICO violations that were involved in reaching Corrado's total offense level. Second, Shabazz pointed to the severity of the guideline range, the overstatement of his criminal history, the fact that he attempted to influence only an alternate juror, and ambiguities about proper application of the guidelines in his case to support his request for a downward departure.

A revised PSR concluded that Shabazz's total offense level was 24 based on Corrado's total offense level of 33, less 6 levels pursuant to U.S.S.G. § 2X3.1 and less an additional 3 levels for acceptance of responsibility. With a criminal history in category III, then, the proper guideline range was sixty-three to seventy-eight months' imprisonment.

In an opinion and order issued on November 23, 1999, the district court addressed Shabazz's arguments regarding the proper offense level to use in calculating his guideline range. Relying on United States v. Miller, 161 F.3d 977 (6th Cir. 1998), the court reasoned that Shabazz had pleaded guilty to...