United States v. Rohit Jawa , 675 F. App'x 229 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4197
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROHIT JAWA,
Defendant - Appellant.
No. 16-4459
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROHIT JAWA,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Anthony John Trenga,
District Judge. (1:15-cr-00239-AJT-1)
Submitted: December 30, 2016 Decided: January 10, 2017
Before GREGORY, Chief Judge, and MOTZ and DIAZ, Circuit Judges.
Affirmed and remanded by unpublished per curiam opinion.
Geremy C. Kamens, Federal Public Defender, Frances H. Pratt,
Kevin R. Brehm, Assistant Federal Public Defenders, Alexandria,
Virginia, for Appellant. Dana J. Boente, United States Attorney,
Whitney Dougherty Russell, Assistant United States Attorney,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Rohit Jawa pled guilty to one count of aggravated identity
theft and eight counts of wire fraud. The district court
sentenced Jawa to 48 months’ imprisonment and entered a general
order of forfeiture. Jawa now appeals, challenging the district
court’s decision to sustain the Government’s objection to an
additional one-level reduction for acceptance of responsibility
under U.S. Sentencing Guidelines Manual § 3E1.1(b) (2015), and
the district court’s finding on the amount of forfeiture. We
affirm, but remand for correction of the forfeiture order.
Jawa first argues that the district court plainly erred by
allowing the Government to untimely object to an additional
one-level reduction for acceptance of responsibility that was
contained in the presentence report (PSR). He also asserts that
the district court plainly erred when it neglected to compel the
Government to file a motion for the reduction under USSG
§ 3E1.1(b). Because Jawa did not object at the sentencing
hearing to the untimeliness of the Government’s objection or the
district court’s purported error in denying an additional
one-level reduction under § 3E1.1(b), we review these issues for
plain error. To establish plain error, Jawa must demonstrate
that (1) the district court committed an error; (2) the error
was plain or obvious, “rather than subject to reasonable
dispute”; (3) the error affected his substantial rights; and
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(4) the error “seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.” Puckett v. United
States, 556 U.S. 129, 135 (2009) (citation and internal
quotation marks omitted).
Beginning with the timeliness of the Government’s objection
to the third level reduction under § 3E1.1(b), it is unclear
that the Government’s objection was untimely. Rule 32(f), Fed.
R. Crim. P., requires objections to the PSR to be made, in
writing, within 14 days of receiving the PSR. The Government
verbally objected at the sentencing hearing, which occurred 10
days after it received the final PSR.
Nevertheless, assuming that the Government failed to comply
with Fed. R. Crim. P. 32(f), the district court had the
authority to consider a “new objection” at the sentencing
hearing for good cause under Fed. R. Crim. P. 32(i)(1)(D).
Given Jawa’s failure to question the propriety of the
Government's objection at the sentencing hearing, “the district
court’s decision to hear the [G]overnment’s objection may be
treated as an implicit finding of the existence of good cause.”
United States v. Aidoo, 670 F.3d 600, 611-12 (4th Cir. 2012).
Furthermore, the district court had an independent obligation to
determine whether Jawa was entitled to an acceptance of
responsibility reduction, United States v. White, 875 F.2d 427,
431 (4th Cir. 1989), and therefore, any fault in the
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Government’s objection is not a sufficient reason for us to
grant Jawa relief, see Aidoo, 670 F.3d at 612 (declining to
exercise discretion to correct any plain error related to
objection to PSR because district court had obligation to
independently determine issue at sentencing).
Turning to the merits of Jawa’s claim under § 3E1.1(b), the
reduction should only be granted by the district court upon
motion of the government, and the government “retains discretion
to determine whether the defendant’s assistance has relieved it
of preparing for trial” because “the Government is in the best
position” to do so. United States v. Divens, 650 F.3d 343, 345,
346 (4th Cir. 2011) (emphasis and internal quotation marks
omitted). However, a district court may compel the government
to file such a motion if it is withheld on improper grounds,
meaning some reason other than the fact that the defendant’s
failure to timely accept responsibility for his offense required
the government to prepare for trial. Id. at 350.
Here the district court committed no plain error by not
compelling the Government to file a § 3E1.1(b) motion. The
Government asserted below that Jawa denied knowing the
identities of certain victims after his arrest, failed to
completely identify the accounts or victims that he defrauded,
and generally declined to provide assistance to the Government.
The Government also insists on appeal that Jawa’s lack of
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assistance caused it to expend significant resources to prepare
for trial during the five months between Jawa’s arrest and his
guilty plea. Nothing in the record clearly contradicts the
Government’s assertion. Therefore, even if we were to assume
error, any such error is not correctable on plain error review.
Next, Jawa contends that the district court plainly erred
in arriving at the forfeiture amount. On appeal, the Government
concedes error and agrees that we should remand for correction
of the forfeiture order to reflect a total amount of $145,866.25
subject to forfeiture. Because the parties agree that remand is
appropriate on this issue, and our independent review of the
record confirms that remand is proper, we remand for correction
of the forfeiture order to reflect a total amount of
$145,866.25.
Accordingly, we affirm the district court’s judgment, but
remand for correction of the forfeiture order consistent with
this opinion. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED AND REMANDED
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