United States v. Lakhvir Nijher , 560 F. App'x 610 ( 2014 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 10, 2014
Decided June 24, 2014
Before
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 13-3389
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Central District of Illinois.
v. No. 12-10153-001
LAKHVIR NIJHER, James E. Shadid,
Defendant-Appellant. Chief Judge.
ORDER
Lakhvir Nijher contends that his guilty pleas were not knowing and voluntary
because the district court did not first estimate his guidelines range and admonish him
at his colloquy that the factors listed in 18 U.S.C. § 3553(a) would be considered in
determining his sentence. Because neither of these omissions violated due process or the
Federal Rules of Criminal Procedure, we enforce the appeal waiver in Nijher’s plea
agreement and dismiss the appeal.
No. 13-3389 Page 2
For several years Nijher under-reported sales (by $6.3 million) at his gas station
in Peoria Heights, Illinois, short-changing the Internal Revenue Service and Illinois
Department of Revenue by nearly $1 million. He was charged with mail fraud, 18 U.S.C.
§ 1341, and filing a false corporate tax return, 26 U.S.C. § 7206(2).
Nijher entered into a plea agreement with the government. The agreement
explained, among other things, that the sentencing court would calculate his advisory
guidelines range and consider the § 3553(a) factors. The agreement did not set a
guidelines offense level, but suggested that adjustments for both obstruction of justice
and acceptance of responsibility be applied. The agreement also contained a broad
appeal waiver, under which Nijher would waive his right to appeal both his conviction
and sentence.
A thorough plea colloquy took place before a magistrate judge in accordance
with Federal Rule of Criminal Procedure 11. The judge explained to Nijher the trial
rights he would give up by pleading guilty and the appeal rights he would waive under
the plea agreement. The judge also warned Nijher of the statutory-maximum sentences
he faced (20 years for mail fraud and 3 years for the false tax returns, 18 U.S.C. § 1341;
26 U.S.C. § 7206). (Neither crime subjected Nijher to a statutory-minimum penalty.) The
judge did not specify any applicable guidelines range or state that the § 3553(a) factors
would be considered at sentencing, though he did say—and Nijher acknowledged
understanding—that the sentencing court would make its “own independent
determination of the advisory sentencing guideline range.” Nijher said that he accepted
the plea agreement voluntarily. At the recommendation of the magistrate judge, the
district judge accepted the pleas.
At sentencing, the probation officer calculated a guidelines range of 41 to 51
months for the mail-fraud count and 36 months (the statutory maximum) for the false-
tax-return count. Neither party objected. (Nijher’s lawyer had suggested at the plea
hearing that the amount of lost taxes was disputed, but made no argument at
sentencing.) The district judge imposed a total term of 45 months (45 for mail fraud and
36 for the false tax return, concurrently).
Nijher did not move to withdraw his guilty pleas in the district court, so he can
overturn them on appeal only upon a showing of plain error. See United States v. Vonn,
535 U.S. 55, 59 (2002); United States v. Kilcrease, 665 F.3d 924, 927 (7th Cir. 2012).
On appeal Nijher contends that his guilty pleas were not knowing and voluntary
under the Due Process Clause because he was not given any “realistic expectation
No. 13-3389 Page 3
regarding the length of imprisonment that he faced” under the guidelines. But in United
States v. Salva, 902 F.2d 483 (7th Cir. 1990), we dispelled any suggestion that a district
court—before entering a plea—has to advise a defendant of the likely range to which he
will be exposed: “Due process . . . does not oblige the government or the court to predict
the defendant’s sentence.” Id. at 487; see also United States v. Elmendorf, 945 F.2d 989,
992–94 (7th Cir. 1991) (reaffirming Salva); United States v. Scott, 929 F.2d 313, 315 (7th
Cir. 1991) (same). Nijher points to language in Salva that encouraged district courts to
give defendants “as good an idea as possible of the likely guidelines result,” 902 F.2d at488—no doubt laudable—but the general rule is well settled: due process is satisfied as
long as a defendant knows the maximum and minimum possible sentences. Elmendorf,
945 F.2d at 994; Burton v. Terrell, 576 F.3d 268, 271 (5th Cir. 2009); Pickens v. Howes, 549
F.3d 377, 380 (6th Cir. 2008); Jamison v. Klem, 544 F.3d 266, 277 (3d Cir. 2008). The
magistrate judge here ensured exactly that: he recited that Nijher faced a statutory
maximum of 20 years for mail fraud and 3 for the false tax returns (no minima
applying).
Nijher also asserts that the magistrate judge violated Federal Rule of Criminal
Procedure 11 by not mentioning the § 3553(a) factors that would be considered at
sentencing. True, the judge neglected to tell Nijher, as Rule 11(b)(1)(M) requires, that in
addition to the guidelines, his sentence would be determined by “other sentencing
factors under 18 U.S.C. § 3553(a).” But Nijher has not established—as he must to
overturn his plea—that the judge’s recitation of the § 3553(a) factors likely would have
dissuaded him from pleading guilty. See United States v. Davila, 133 S. Ct. 2139, 2147
(2013); United States v. Polak, 573 F.3d 428, 431 (7th Cir. 2009). He says only that such a
recitation might “have prompted an explanation from his attorneys as to what these
factors were.” At all events, the magistrate judge’s omission was harmless because
Nijher’s written plea agreement specified that the § 3553(a) factors would be considered
at sentencing. See United States v. Dominguez Benitez, 542 U.S. 74, 85 (2004) (no plain
error for failing to give Rule 11 admonishment regarding information already contained
in plea agreement); United States v. Driver, 242 F.3d 767, 769 (7th Cir. 2001) (reviewing
for harmless error).
Because Nijher’s plea was knowing and voluntary, his appeal waiver must be
enforced. See United States v. Henry, 702 F.3d 377, 380 (7th Cir. 2012); United States v.
Hare, 269 F.3d 859, 860 (7th Cir. 2001).
DISMISSED.