United States v. Tijani Saani , 794 F.3d 44 ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 11, 2014 Decided July 17, 2015
No. 12-3067
UNITED STATES OF AMERICA,
APPELLEE
v.
TIJANI AHMED SAANI,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cr-00147-1)
Beverly G. Dyer, Assistant Federal Public Defender, argued
the cause for appellant. With her on the briefs was A.J. Kramer,
Federal Public Defender. Tony Axam Jr., Assistant Federal
Public Defender, entered an appearance.
William A. Glaser, Attorney, U.S. Department of Justice,
argued the cause for appellee. On the brief was Kevin R.
Gingras, Attorney. Sangita K. Rao, Attorney, and Elizabeth
Trosman, Assistant U.S. Attorney, entered appearances.
Before: ROGERS, Circuit Judge, and SENTELLE and
RANDOLPH, Senior Circuit Judges.
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Opinion for the Court filed by Senior Circuit Judge
SENTELLE.
SENTELLE, Senior Circuit Judge: Appellant Tijani Saani
was charged with under-reporting income on his tax returns. He
pled guilty to five counts of filing a false tax return and was
given an above-guidelines sentence of 110 months in prison.
Saani appealed, arguing that the district court’s sentence was
impermissibly influenced by his refusal to reveal the source of
his unreported income. In United States v. Saani, 650 F.3d 761
(D.C. Cir. 2011), we vacated Saani’s sentence and remanded to
the sentencing court so the court could explain whether Saani’s
sentence was infected by an arguably improper consideration,
i.e., his failure to reveal the source of his unreported income.
Upon remand the district court again sentenced Saani to 110
months imprisonment, stating that its initial sentencing of Saani
had nothing to do with his refusal to discuss the source of his
unreported funds. Saani again appeals his sentence. This time
we affirm.
Background
The facts of this case are thoroughly set forth in our
previous opinion in this matter, United States v. Saani, 650 F.3d
at 763-65 (“Saani I”). We will reiterate only those facts
necessary for clarity of our disposition. Appellant Tijani Ahmed
Saani was a contract specialist for the U.S. Air Force in Kuwait,
overseeing million-dollar procurement actions. A government
investigation revealed that from 2003 through 2006 Saani spent
approximately $2.4 million more than he received from known
sources of income. Subsequently, the government indicted
Saani on five counts of filing a false tax return, one count for
each return filed in the five tax years 2003 through 2007. The
indictment did not contain any allegation pertaining to the
source of the unreported monies in Saani’s various accounts.
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One day before his pretrial conference, Saani pled guilty to all
five counts without having entered into a plea agreement. At his
sentencing hearing, Saani requested that he be given a two-level
reduction in his base offense level for acceptance of
responsibility pursuant to United States Sentencing Guideline
(“U.S.S.G.”) § 3E1.1(a). He claimed that he should receive
credit for acceptance of responsibility because his guilty plea
was sufficient to satisfy all the elements of the crime charged.
The government argued that Saani should not be given credit for
acceptance of responsibility because he failed to cooperate with
the Probation Officer by refusing to discuss any details about his
general financial condition or the instrumentalities of his crimes.
The district court agreed with the government, denying Saani
credit for acceptance of responsibility in view of Saani’s
“unwillingness to be forthcoming with Probation over and above
his unwillingness to be more forthcoming about his conduct.”
Saani I, 650 F.3d at 764. The sentencing guidelines
recommended a sentence in the range of 78 to 97 months. The
district court varied upward from the guidelines and sentenced
Saani to 110 months in prison. Id. at 765. The court also
sentenced Saani to pay the maximum statutory fine. Id.
Saani appealed his sentence, arguing that the district court
erred in not giving him credit for acceptance of responsibility
and in varying upward from the guidelines range. We vacated
Saani’s sentence and remanded for re-sentencing, stating that we
were unable to determine whether “in denying Saani credit for
acceptance of responsibility and varying upward from the
Guidelines range, the court relied solely upon constitutionally
permissible factors.” Id. at 763. We noted that the record was
“unclear as to whether an arguably improper consideration
infected the district court’s decisions,” i.e., Saani’s refusal to
speak about the source of his unreported funds. Id. at 772.
Upon remand, the district court sentenced Saani to the same
sentence, explaining that Saani’s failure to reveal the source of
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his income had not been a factor in the initial sentencing.
Saani again appeals his sentence.
Discussion
A. Acceptance of responsibility
In Saani I, we considered Saani’s argument that at his initial
sentencing the district court erred as a matter of law in not
giving him credit for acceptance of responsibility. Saani
asserted that in refusing him credit the district court relied upon
his unwillingness to discuss with the government matters about
which he had a Fifth Amendment privilege not to speak, i.e., the
source of his unreported funds. We did not resolve the
constitutional issue at that time because we could not “determine
from the present record whether the district court did indeed take
into account Saani’s refusal to disclose specifically the source of
his funds when it denied him credit under § 3E1.1.” Saani I,
650 F.3d at 770. Instead we vacated Saani’s sentence and
remanded to the district court to “clarify the basis or bases for,
and if necessary reconsider, its conclusion Saani did not accept
responsibility for his crimes.” Id. In particular we were
concerned that the district court “may have erred as a matter of
law . . . by penalizing Saani for invoking his right to remain
silent about certain matters beyond the offense of conviction.”
Id. at 767. At the remand hearing, however, the district court
denied that Saani’s right to remain silent was a factor in the
court’s sentencing decision. The district court stated that
with regard to the issue of acceptance of responsibility,
the Court’s decision there was not a function of
[Saani]’s failure to reveal the source of his income . . .
The Court did not accept his acceptance of
responsibility request because he had failed to admit
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that he had underreported his income and he had not
been candid with regard to the circumstances
surrounding his conviction. He refused to cooperate
with Probation.
Transcript of Resentencing at 3-4, Aug. 1, 2012.
The district court imposed the same sentence as the initial
sentence. Saani now argues again that the district court erred in
denying him credit towards his sentence for acceptance of
responsibility pursuant to U.S.S.G. § 3E1.1(a). First, Saani
contends that the district court failed to consider his argument
that he should not be penalized because he fully admitted to his
offense prior to sentencing. Consequently, according to Saani,
this Court should remand for consideration by the district court
whether his admission to the offense and the government’s
allegations against him prior to sentencing required a reduction
in his sentencing guidelines range for acceptance of
responsibility under § 3E1.1. Second, Saani asserts that the
district court denied him credit for acceptance of responsibility
based on his constitutional right to silence with respect to sums
of money, or other unreported foreign accounts containing
income, that could have subjected him to greater punishment.
In response the government contends that Saani’s
acceptance-of-responsibility argument was already decided by
this Court in Saani I. We agree. In discussing Saani’s
acceptance-of-responsibility argument in Saani I, we noted that
at the initial sentencing the district court “point[ed] to reasons
for believing Saani had not in fact accepted responsibility—his
failure at the plea hearing to admit he had underreported income
and his refusal later to cooperate fully with Probation.” 650
F.3d at 767. We concluded that those were “adequate reasons
for denying [Saani] credit” for acceptance of responsibility. Id.
Having already addressed and rejected Saani’s acceptance-of-
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responsibility argument, and Saani now offering no reason why
we should reverse our earlier holding, we need not revisit this
argument.
In short, insofar as Saani is asserting that the district court
failed to rely on relevant factors in making its determination
respecting the acceptance of responsibility issue, we have
decided that question, and law of the case governs. Insofar as he
relies on the alleged improper reliance on his silence regarding
the amount or location of other unreported income in violation
of his Fifth Amendment rights, he did not raise that argument in
his first appeal and therefore forfeited it. United States v. Brice,
748 F.3d 1288, 1289 (D.C. Cir. 2014). Insofar as Saani attempts
to inject any other argument respecting the district court’s
handling of acceptance of responsibility, any such new argument
is forfeited, and in the absence of plain error, which Saani has
not shown, we will not revisit the result in Saani I. Cf. Yesudian
ex rel. United States v. Howard Univ., 270 F.3d 969, 972 (D.C.
Cir. 2001).
B. Upward variance
At Saani’s initial sentencing, his Sentencing Guidelines
range was determined to be 78 to 97 months. Saani I, 650 F.3d
at 765. The district court, however, varied upward from that
determination, sentencing Saani to 110 months. Saani
previously argued to us that the district court varied upward
because of Saani’s refusal to disclose the source of his
unreported income, and that this was a violation of his right
against self-incrimination. Although we agreed with Saani that
portions of the record could be read to suggest that the district
court varied upward in part because Saani refused to disclose the
source of his funds, we nevertheless remanded the case to the
district court for further clarification on its reason for varying
upward. We noted that it was “not evident a constitutional
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violation occurred . . . because the record makes clear that, in
addition to concern about the source of Saani’s income, the
decision to vary upward was based upon the need to deter tax
evasion by persons entrusted with the expenditure of federal
funds.” Id. at 771. We further noted that if the district court’s
decision “to vary upward rested solely upon the latter ground
[i.e., deterrence], then it would be not only constitutional but
also a reasonable exercise of the district court’s considerable
discretion.” Id. At the sentencing hearing on remand the district
court again denied that Saani’s refusal to reveal the source of his
funds was a factor in the sentencing decision. The district court
stated:
With regard to an upward departure, the basis for that
decision also had nothing to do, nothing to do with
[Saani]’s refusal to discuss or reveal the source of his
income, nothing to do with that. It was to put it bluntly
an overarching concern on the Court’s part of the
importance of deterring other Government officials,
other Government employees working in foreign
countries during a war and having access to large sums
of money and having the ability to manipulate that
money and manipulate contracts relating to it, was to
deter them from engaging in any conduct of this kind
in the future.
Transcript of Resentencing at 4, Aug. 1, 2012.
Saani now argues that the district court erred on remand
when it varied his sentence upward for the purpose of deterring
government officials from manipulating government funds or
contracts. He contends that although we concluded in Saani I
that a higher sentence to deter tax evasion by government
employees with public funds would have been reasonable, that
conclusion did not endorse a higher sentence to deter
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manipulation of government funds or contracts. It does not
follow, according to Saani, that a higher sentence for tax fraud
would further the purpose of deterring similarly situated
individuals from committing crimes other than tax fraud. In
response, the government argues that the district court did not
err in varying upward from the sentencing guidelines range. In
support of this argument, the government explains that in Saani
I this Court remanded so that the district court could clarify
whether its decision to vary upward was based on the need to
“deter tax evasion by persons entrusted with the expenditure of
federal funds,” which this Court said “would be not only
constitutional but also a reasonable exercise of the district
court’s considerable discretion.” Saani I, 650 F.3d at 771. The
government states that in answering this question, the district
court explained that it was indeed deterrence, and not Saani’s
refusal to disclose the source of his funds, that underlay the
upward variance.
Saani did not object to the district court’s reliance on
deterrence during his re-sentencing, nor did he ask for
clarification; we therefore review for plain error. United States
v. Ginyard, 215 F.3d 83, 86–87 (D.C. Cir. 2000) (per curiam);
cf. In re Sealed Case No. 98-3116, 199 F.3d 488, 491 (D.C. Cir.
1999); United States v. Pinnick, 47 F.3d 434, 439 (D.C. Cir.
1995). We conclude that the district court did not plainly err in
its reasoning for an upward variance. Justifying its decision to
depart upwards, the district court stated that it did not rely on the
undisclosed source of the charged income but instead relied on
deterrence. We concluded in Saani I that deterrence of tax
evasion was a permissible reason. While the district court’s
statement on remand may have evidenced a certain ambiguity
with regard to the behavior it intended to deter, it certainly did
not constitute plain error.
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Conclusion
The judgment of the district court is affirmed.
It is so ordered.