United States v. Ka'ba S. Muhammad ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-1441
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KA’BA S. MUHAMMAD,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:00-cr-197 — James T. Moody, Judge.
____________________
ARGUED FEBRUARY 8, 2022 — DECIDED AUGUST 15, 2022
____________________
Before SYKES, Chief Judge, and SCUDDER and JACKSON-
AKIWUMI, Circuit Judges.
JACKSON-AKIWUMI, Circuit Judge. A district court vacated
Ka’ba Muhammad’s sentence on collateral review, and he
was resentenced. At resentencing, the parties incorrectly
stated that Muhammad had not made any restitution
payments. The court then reimposed the vacated, original
restitution judgment of $10,421.66 without crediting the
$433.32 Muhammad paid while incarcerated. Muhammad
2 No. 21-1441
appeals the new restitution judgment and argues that the
district court plainly erred by relying on inaccurate
information—that he had not made any restitution
payments—when it reimposed the original restitution
judgment. Even if Muhammad could show that the district
court erred, we decline to correct any such error on the facts
of this case where Muhammad concedes that he originally
owed $10,421.66 in restitution and where there is no
disagreement among the parties and the district court that he
should receive credit for his payments. Accordingly, we
affirm.
I
In 2001, a jury convicted Muhammad of being a felon in
possession of a firearm and stealing firearms from a federally
licensed firearms dealer, in violation of 18 U.S.C. §§ 922(g)(1)
and 922(u). The district court sentenced Muhammad as an
armed career criminal and ordered him to pay $10,421.66 in
restitution to the firearms dealer and its insurer under the
Mandatory Victims Restitution Act (“MVRA”). We affirmed
the sentence. See Zambrella v. United States, 327 F.3d 634 (7th
1
Cir. 2003).
On collateral review, the United States District Court for
the Central District of Illinois vacated Muhammad’s sentence
under 28 U.S.C. § 2241 after finding that he was improperly
sentenced as an armed career criminal. Muhammad v. Entzel,
No. 19-CV-1343-SLD, 2020 WL 7346027, at *11 (C.D. Ill. Dec.
14, 2020). The court transferred the matter to the United States
District Court for the Northern District of Indiana, which
1
Muhammad’s former name was Taurus Zambrella.
No. 21-1441 3
resentenced Muhammad to time served and one year of su-
pervised release. Relying on the restitution amount in the U.S.
Probation Office’s revised presentence report and the parties’
2
statements that Muhammad had not made any restitution
payments, the court also ordered Muhammad to pay
$10,421.66 in restitution. Muhammad timely appealed his
new sentence.
While the matter was pending on appeal, the parties
learned that Muhammad paid $433.32 toward his original
restitution judgment while incarcerated and before
resentencing. On Muhammad’s motion and the parties’ joint
stipulation, the district court entered an order updating the
record on appeal pursuant to Federal Rule of Appellate
Procedure 10(e) and Circuit Rule 10(b) to reflect that
Muhammad now owes $7,993.63 in restitution. This $2,228.03
reduction included $433.32 Muhammad paid while
incarcerated, $200 his codefendant paid, and $1,794.71 from a
U.S. Treasury Department offset. Meanwhile, Muhammad’s
appeal continued to briefing.
2
At resentencing, the following exchange took place:
[THE COURT]: The defendant must make restitution to the
following named victims in the amount indicated: Hamilton
Mutual Insurance Company of Cincinnati, Ohio in the
amount $9,421.66 and Albertson’s Sports Shop in Warsaw, In-
diana in the amount of $1,000. Does that cover it? None of that
has been paid, I take it?
[GOVERNMENT]: Correct, Your Honor.
[THE COURT]: Correct?
[DEFENSE]: Correct, Your Honor.
4 No. 21-1441
II
In this appeal, Muhammad seeks a limited remand so that
the district court can revisit the restitution judgment. He ar-
gues that the district court erred by relying on inaccurate in-
formation when it reimposed the $10,421.66 restitution judg-
ment. Muhammad forfeited this argument by failing to object
to the district court’s restitution decision at resentencing, so
we review it for plain error. See United States v. Jones, 22 F.4th
667 (7th Cir. 2022). To prevail on plain error review, Muham-
mad must show: “(1) an error, (2) that was plain, (3) that af-
fected his substantial rights, and (4) that seriously affected the
fairness, integrity, or public reputation of the proceedings.”
Id. at 675. Muhammad contends that all four prongs of plain
error review are met here.
To begin, Muhammad identifies the error as this: the dis-
trict court relied on inaccurate information—that he had not
made any restitution payments—to impose his restitution.
Muhammad directs our attention to United States v. Oliver,
where we stated that “[c]onvicted defendants have a due pro-
cess right to be sentenced on the basis of accurate and reliable
information” and “a sentencing court commits a significant
procedural error if it selects a sentence based on clearly erro-
neous facts.” 873 F.3d 601, 608 (7th Cir. 2017) (quotations and
citations omitted).
Second, Muhammad argues that the error was plain. He
concedes that he owed $10,421.66 in restitution under the
MVRA because that was the amount of loss he caused the vic-
tims. But he views the district court’s decision to reimpose
that total amount as a clear or obvious error, see United States
v. Olano, 507 U.S. 725, 734 (1993), because he paid $433.32
No. 21-1441 5
before resentencing and the district court did not credit that
amount.
Third, Muhammad argues that the error affected his sub-
stantial rights. The third prong requires Muhammad to show
that he was prejudiced and there was “a reasonable probabil-
ity that, but for the error, the outcome of the proceeding
would have been different.” United States v. Morrow, 5 F.4th
808, 814 (7th Cir. 2021). Muhammad argues that the district
court’s error affected his right to be sentenced based on cor-
rect information and, but for that misinformation, the district
court would have credited Muhammad’s $433.22 payment
and reduced Muhammad’s restitution obligation.
Finally, Muhammad argues that the error impacted the
fairness, integrity, and public reputation of judicial proceed-
ings. This fourth prong of the plain error analysis is where we
must pause. Even when a litigant satisfies the first three
prongs of the plain error analysis, we “should exercise [our]
discretion at the fourth prong only if the error seriously affects
the fairness, integrity or public reputation of judicial proceed-
ings.” United States v. Hammond, 996 F.3d 374, 395 (7th Cir.
2021) (quotation omitted) (emphasis added). This means “we
“retain discretion to leave an error uncorrected.” Id. (quota-
tion omitted). In particular, we have “broad discretion under
prong four to leave even plain errors uncorrected where we
have no doubt as to the ultimate result of further proceed-
ings.” Id. at 395–96 (quotation omitted).
Here, we need not address all of Muhammad’s arguments
about plain error because, even if the first three prongs are
met, on the facts of this case we will not exercise our “broad
discretion” under the fourth prong to correct any error. The
fourth prong “has been compared to a miscarriage of justice.”
6 No. 21-1441
United States v. Pulliam, 973 F.3d 775, 781 (7th Cir. 2020), as
amended (Sept. 8, 2020). We are not convinced that the district
court’s error, if any, rises to that level. Muhammad concedes
that he did owe $10,421.66 in restitution under the MVRA, so
the restitution judgment noting Muhammad’s restitution ob-
ligation of $10,421.66 is not inaccurate.
Further, as we see it, Muhammad’s complaints amount to
a crediting issue, and to that, we have “no doubt as to the ul-
timate result of further proceedings.” Hammond, 996 F.3d at
395–96 (quotation omitted). Muhammad’s payments while
incarcerated may have escaped the parties’ attention before,
but there is now no disagreement among the parties or the
district court—or us—that he should receive full credit for all
payments made toward his restitution obligation. The gov-
ernment acknowledged in its briefing and at oral argument
that Muhammad should receive full credit for his payments.
The district court signaled its willingness to credit Muham-
mad for his payments when it entered an order attempting to
3
update the record on appeal. In sum, we are confronted with
3
We say “attempt[ed]” because it was improper for the district court to
use Federal Rule of Appellate Procedure 10(e) to update the record on ap-
peal to reflect Muhammad’s payments. Rule 10(e) allows petitioners to
correct omissions or misstatements in the appellate record. Evidence of
Muhammad’s restitution payments was absent from the district court rec-
ord entirely. Rule 10(e) was not a proper vehicle to update the record on
appeal with information that was never in the district court record to
begin with. Prairie Rivers Network v. Dynegy Midwest Generation, LLC, 2
F.4th 1002, 1012–13 (7th Cir. 2021) (“Rule 10(e) is permissive, but as a gen-
eral rule we will not consider evidence on appeal that was not before the
district court.”).
No. 21-1441 7
a crediting issue about which all involved agree, even if it re-
quires some diligence by the district court and the govern-
ment offices that track Muhammad’s restitution payments to
ensure that Muhammad is properly and officially credited.
On these facts, “there is no risk of a miscarriage of justice be-
cause the error here,” if any, “does not seriously harm the fair-
ness, integrity, or public reputation of judicial proceedings.”
Pulliam, 973 F.3d at 782.
III
For the reasons above, we AFFIRM the judgment of the
4
district court and decline to order a limited remand. Because
everyone involved agrees that Muhammad paid $433.32 to-
wards his restitution, we are confident he has or will receive
credit for that amount.
4
At oral argument, Muhammad’s attorney requested for the first time a
complete resentencing at which the district court could reconsider Mu-
hammad’s term of supervised release. We deem the request waived, and
decline to address it.