United States v. Ishmael Wahid , 666 F. App'x 379 ( 2016 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 16a0602n.06
Nos. 15-3286/15-3305
UNITED STATES COURTS OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Nov 14, 2016
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
)
ON APPEAL FROM THE
v. )
UNITED STATES DISTRICT
)
COURT FOR THE
ISHMAEL WAHID; BRIAN SINGLETON, )
NORTHERN DISTRICT OF
)
OHIO
Defendants-Appellants. )
)
)
BEFORE: BATCHELDER, MOORE, and McKEAGUE, Circuit Judges.
ALICE M. BATCHELDER, Circuit Judge. A federal grand jury indicted Ishmael
Wahid and Brian Singleton, along with other co-conspirators, on various drug charges. It
charged Wahid with conspiracy to possess with intent to distribute and to distribute heroin in
violation of 21 U.S.C. §§ 846 and 84l(a)(1) and (b)(1)(B). It charged Singleton with conspiracy
to possess with intent to distribute and to distribute heroin, cocaine base (crack) and cocaine in
violation of 21 U.S.C. §§ 846 and 841(a)(l), (b)(l)(A), and (b)(1)(B), and possession with intent
to distribute heroin in violation of 21 U.S.C. §§ 841(a)(l) and (b)(l)(B). It charged both with
knowingly or intentionally using any communication facility in committing a felony in violation
of 21 U.S.C. § 843(b).
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Wahid and Singleton each entered into a written plea agreement, pleading guilty to
conspiracy to possess with intent to distribute and distribution of heroin. In his plea agreement,
Wahid retained the right to appeal the district court’s denial of his motion to suppress and the
court’s determination of his Criminal History Category; he waived all other appeal rights.
Singleton waived his rights to appeal, including the right to appeal his sentence. His waiver
explicitly did not, however, waive his right to claim ineffective assistance of counsel.
Each appeals his conviction and sentence. For the following reasons, we affirm.
I.
From May 2010 to June 2014, Wahid, Singleton, and others conspired to deal drugs and
performed various overt acts in furtherance of that conspiracy. In late 2013, the government
obtained an authorized wiretap on the phone of Mark Makupson, another member of the
conspiracy. As a result of that wiretap, the government obtained Wahid’s cell phone number and
conversations between Makupson and Wahid, and Makupson and Singleton. Police officers
identified and apprehended Wahid after they traced his location using his cell phone number.
Wahid moved to suppress the evidence obtained as a result of their tracking his cell phone; the
court held a hearing on the motion and denied it. Wahid then pleaded guilty. At sentencing, the
district court determined that Wahid was a career offender and calculated his offense level at 30,
and his Criminal History Category as VI. The court imposed a sentence of 120 months’
imprisonment.
During the conspiracy, Singleton possessed loaded firearms, 37.11 grams of heroin, and
0.15 grams of cocaine powder. Singleton’s PSR calculated his base level offense at 30, added a
two-point enhancement for possession of a firearm, and a three-point reduction for acceptance of
responsibility. And although his written plea agreement recommended against a two-point
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enhancement for possession of a firearm, the court disagreed and included the two-level
enhancement. The court found his total level offense to be 29 with a Criminal History Category
of V, and imposed a sentence of 140 months’ imprisonment.
II.
Wahid reserved in his plea agreement the right to appeal the court’s denial of his motion
to suppress. He argues that the government’s use of the evidence obtained from his cell site data
violated his Fourth Amendment rights because he had an expectation of privacy in his location.
It is long-settled that Fourth Amendment rights are personal rights which, like
some other constitutional rights, may not be vicariously asserted. As a result, a
defendant seeking to suppress evidence must demonstrate that he personally has
an expectation of privacy in the place searched, and that his expectation is
reasonable.
United States v. Noble, 762 F.3d 509, 526 (6th Cir. 2014) (internal quotations and citations
omitted).
We have held that there is no “reasonable expectation of privacy in the data given off by
[a] cell phone.” United States v. Skinner, 690 F.3d 772, 777 (6th Cir. 2012); see also United
States v. Carpenter, 819 F.3d 880, 886 (6th Cir. 2016) (holding that the government’s collection
of business records containing cell-site data was not a search under the Fourth Amendment).
Several of our sister circuits agree. See United States v. Graham, 824 F.3d 421, 427-29 (4th Cir.
2016) (en banc); United States v. Davis, 785 F.3d 498, 513 (11th Cir. 2015) (en banc); In re
Application of U.S. for Historical Cell Site Data, 724 F.3d 600, 615 (5th Cir. 2013). We do not
have the authority to revisit the question of privacy in cell site data, see United States v. Yoon,
398 F.3d 802, 806 (6th Cir. 2005) (“The prior decision [of a Sixth Circuit panel] remains
controlling authority unless an inconsistent decision of the United States Supreme Court requires
modification of the decision or this Court sitting en banc overrules the prior decision.”) (internal
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quotation marks and citation omitted), and in any event, the government in this case also
obtained a warrant to collect and examine radio signals emitted by his phone. The government
did not violate Wahid’s Fourth Amendment rights by collecting or using that data.
III.
To designate Wahid a career offender, the district court relied on a 2003 conviction for
possession of cocaine and having a weapon under disability, and a 1995 conviction for
conspiracy to distribute and possess with intent to distribute cocaine. Wahid reserved the right to
appeal the court’s determination of his Criminal History Category, and now argues that his 2003
conviction was voided and should not have been included in the guidelines calculus pursuant to
U.S.S.G. § 4A1.2. “This Court reviews a district court’s factual findings concerning a
defendant’s criminal history category, which must be based on a preponderance of the evidence,
under the clearly erroneous standard of review.” United States v. Adkins, 729 F.3d 559, 569 (6th
Cir. 2013) (internal quotation marks omitted).
Wahid’s claim is meritless. The Ohio Revised Code requires the court to impose a period
of post-release control at the sentencing hearing when sentencing a defendant. When the court
fails to do so (or does so only in a journal entry without mentioning the fact at the sentencing
hearing), and where the defendant had already served his sentence, the defendant is not entitled
to resentencing. State v. Bezak, 868 N.E.2d 961, 964 (Ohio 2007), overruled in part by State v.
Fischer, 942 N.E.2d 332 (Ohio 2009). The Summit County Common Pleas Court voided
Wahid’s sentence of post-release control, stating:
Where the sentence contains improper notification of post release control, the
Supreme Court of Ohio has declared that the sentence must be considered void.
In the instant case, defendant is not subject to re-sentencing because he has
completed serving the incarceration portion of his sentence. As a result, the
determination that his sentence is void means that defendant cannot now be
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sentenced to a period of post release control. Pursuant to Bezak, this court hereby
declares that defendant has fully completed his sentence and is not subject to post
release control. To the extent the Adult Parole Authority has placed defendant on
post release control, that placement is invalid and must be terminated forthwith.
(internal citation omitted). The Ohio Supreme Court later stated that “[i]t is only the post-
release-control aspect of the sentence that is void and that must be rectified. The remainder of
the sentence . . . remains valid under the principles of res judicata.” Fischer, 942 N.E.2d at 339.
Clearly, Wahid’s voided post-release control sentence does not affect the underlying conviction,
and, therefore, it does not change the outcome of the guidelines calculation. The district court
did not err in calculating Wahid’s Criminal History Category and classifying him as a career
offender.
IV.
Singleton argues that he received ineffective assistance of counsel because his counsel
did not tell him that he might receive a two level enhancement for possession of a weapon.
Although the PSR included an additional two-point enhancement for possession of a firearm,
Singleton’s written plea agreement did not include the two-level enhancement. His agreement
did state, however, that its recommendations would not bind the court. Contrary to Singleton’s
assertion, the record does not support his claim of ineffective assistance of counsel, and in any
event, he suffered no prejudice.
“Ineffective assistance of counsel claims are mixed questions of law and fact, which we
review de novo on appeal.” Mallett v. United States, 334 F.3d 491, 497 (6th Cir. 2003). In order
to prevail on his ineffective assistance of counsel claim,
First, the defendant must show that counsel’s performance was deficient [such
that] counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance prejudiced the defense. This
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requires showing that counsel’s errors were so serious as to deprive the defendant
of a fair trial, a trial whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
To show prejudice “[t]he defendant must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694. Singleton appears to argue that he would not have pleaded guilty
had his counsel told him that the court might impose a two-level enhancement, thus increasing
his guidelines range from 120-150 months to 140-175. However, the plea agreement stated
explicitly that the sentencing recommendations were not binding on the court. Furthermore,
Singleton’s 140-month sentence falls within the range contemplated in the recommended
sentencing range.
V.
Singleton also appeals his sentence, but he waived that right in his written plea agreement
[R. 441, at 2102] and “[a] defendant in a criminal case may waive ‘any right, even a
constitutional right,’ by means of a plea agreement.” United States v. Fleming, 239 F.3d 761,
763-64 (6th Cir. 2001) (quoting United States v. Ashe, 47 F.3d 770, 775-76 (6th Cir. 1995)).
“Criminal defendants may waive their right to appeal as part of a plea agreement so long as the
waiver is made knowingly and voluntarily.” United States v. Swanberg, 370 F.3d 622, 625 (6th
Cir. 2004). “This Court reviews the question of whether a defendant waived his right to appeal
his sentence in a valid plea agreement de novo.” Id. at 626 (quoting United States v. Smith, 344
F.3d 479, 483 (6th Cir. 2003).
Singleton acknowledged under oath at the plea hearing that he: (1) had discussed this
case and this plea agreement in detail with his counsel, who advised him of his constitutional and
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other trial and appeal rights; (2) had sufficient time and opportunity to discuss all aspects of the
case in detail with counsel; (3) fully understood the plea agreement; (4) was satisfied with the
legal counsel and assistance provided by his attorney; and (5) had entered into the agreement
voluntarily. Singleton provides no evidence to call into question his knowing and voluntary
waiver, and he has therefore waived his right to appeal his sentence.
VI.
For the foregoing reasons, we AFFIRM Wahid and Singleton’s convictions and
sentences.
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KAREN NELSON MOORE, Circuit Judge, dissenting in part. I dissent from Part IV
of the opinion. I would not resolve the ineffective-assistance-of-counsel claim on this record.
Generally, we do not review such claims on direct appeal where the record is not fully
developed. See United States v. Penaloza, 648 F. App’x 508, 529 (6th Cir. 2016). Here the
record is thin regarding why the facts underlying the firearm enhancement were included in
Singleton’s plea agreement when the sentencing-related stipulations did not contemplate
application of a firearm enhancement. The ineffective-assistance issue should be resolved in a
28 U.S.C. § 2255 proceeding rather than on direct appeal.
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