NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0382n.06 No. 10-4412 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNITED STAT ES O F AMERICA, P laintif f-App ellee,

v. AHMAD JA LLAD, Defendan t-Appellant. ) ) ) ) ) ) ) ) ) ON AP P EAL FROM THE UNITED STAT ES DIS TRICT C O U R T F O R T H E NORTHERN DISTRICT OF OHIO O P I N I O N

BEFORE: COLE an d McK EAGU E, Circuit Judges; and ZATKOF F , District Judge. * McK eague, Circuit Judge. Def endant- Appellant Ahmad J allad pleade d g uilty to one count of mail frau d i n v i o lation of 18 U.S.C. § 1341. He appea ls his sentenc e, arguing that the district court violated F ed. R. Crim. P. 32(i)(3)(B ) by failing to make a f

inding on contested issues of fa ct and err ed in apply ing a two-leve l enhan c e me n t f o r o b s tr u c ti n g justice under United States Sentencing Guidelines (“ U.S.S.G.”) § 3C1.1. We affir m. I. BACKG ROUND Whil e working as a manag er at a convenie nce store, J allad purcha sed i t em s s t o l en by profe ssional shoplifters (“booster s”) from drug store chains, such as Rite Aid and Walgr eens, at heavily discounted price s. He would then stock the shelves of the store with the se items. I n April

The Honorable L awr ence P. Z atkoff, United States Di s t ri ct J udg e for the Eastern District * of Michig an, sitting by

desig nation.No. 10-4412

United States v. J

allad 2004, J allad opened an eB ay acc ount and beg an selling the stolen items online, using the U.S. Mail
to ship the items to purcha sers. He was paid by elec tronic transfe r via Pay Pal or by chec k or money order sent to his home. J allad operated this scheme from April 2004 until he was arr ested on Fe bruar y 17, 2009. Pay

Pal rec ords ref

lect that $632,000 g ross proce eds wer e deposited into J allad’s

acc ount from April 2004 throug h November 2008. 1 At his arr aig nment, J allad executed a financ ial aff idavit to qualify for appointed counsel under the Criminal J ustice Act (“CJA”). He indicated on the aff idavit that he was not employ ed, had
not rec eived any income in the past 12 months from a business, profe ssion, form of self-e mploy ment,

or other source s, and had $90 cash on hand. A fede ral public defe nder was appointed for him at the

arr aig nment but was repla ced with reta ined counsel nine day s later. J allad was indicted on one count of mail fra

ud on Marc h 5, 2009 and ente red a g uilty plea on August 11, 2009. The plea ag ree ment advised that the g overnme nt intended to offe r evidenc e that J allad knowing ly submitt ed a false financia l aff idavit at his arr aig nment and that, based on this conduct, the g overnme nt would seek a two-leve l sentenc ing enhanc ement for obstructing justice pursuant to U.S.S.G. § 3C1.1. The g overnme nt ag ree d that J allad could object to such evidenc e and otherwise
contest the g overnme nt’s reque st for the enhanc ement. The g overnme nt also ag ree d to rec ommend

a two-leve l sentenc ing reduc tion for acc eptanc e of res p o n s ib il it y p u rsuant to U.S.S.G. § 3E1.1(a) and

an additional one-le vel reduc tion pursuant to § 3E1.1(b) for timely notify i n g au t h o ri t ies of his

The g overnme nt did not obtain Pay Pal rec ords for the period from Dec ember 2008 throug h 1 Fe bruar y 2009. J allad ultimately pleade d g uilty to rec eiving approximately $664,000 from the sale of stolen items. - 2 -No. 10-4412

United States v. J

allad intention to plead g uilty

. At his plea hear ing, J allad indicated that he rea d and understood the plea ag ree ment and sig ned it voluntarily

. A Presentenc e I nvestig at i o n R ep ort (“PSR”) was prepa red consistent with the plea ag ree ment. The PSR found that J allad’s repr esenta tions on the financ ial aff idavit—that he was not employ ed and had not rec eived any income in the past 12 months—were false “bec ause the defe ndant operated his eB ay sales business up to the day of his arr est and had net profits of approximately $80,000 in the prior twelve months.” Thi s i n fo rm at i on was provided by the g overnme nt. The PSR rec ommended both the two-leve l o b s tr u c ti o n o f ju s ti c e e nhance ment pursuant to U.S.S.G. § 3C.1.1 and three -leve l acc eptanc e of responsibility reduc tion pursuant to § 3E1.1(a)

- (b), for a total adjusted offe nse level of 20. Ba sed on this total offe nse level and a criminal history
cate g ory of I , t h e ad v i sory g uideline rang e was 33 to 41 months. J allad did not file any written objections to the PSR

. The parties met for sentenc ing on Marc h 15, 2010, but the court p o s t p o ned the hear ing in order t o d et er m i n e the wher eabouts of the money J allad made over the five-y ear period of his offe nse. J allad agr eed to take a p o l y graph examination. He had previously told postal inspectors and the probation office r that he had spent all the proce ed s an d h ad n ever g iven any money to rela tives. During the pre-test portion of t he poly g raph ex am, he admitted that he gave $20,000 to his sister; $9,000 to his cousin; and $2,000 to a friend. The poly g raph ex am i n er co n cl uded that J allad was being truthful, that he did not g ive any of the illega l proce eds to any one else, and that he was not trying to hide a

ny illega l assets from the g overnme nt.

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allad The parties met for se ntencing ag ain on J uly 26, 2010. Throug h counsel, J allad stated that he had revie wed his PSR and had no objections. The court then expressed its reservations over whether J allad merited an acc eptanc e of responsibility reduc tion. I t stated, “What is an issue, though, is whether the defendant, in light of his conduct in terms of making a false s t at em en t and financ ial aff

idavit to the mag istrate an d his having made appar ently inconsistent if not false
statements about having disbursed some of the proce eds would justify withholding the acc eptanc e of responsibility cre dit.” R. 41, Sentencing Tr. I I , at 5. The court also indicated that it ha d not y et made a finding on the obstruction of justice enhanc ement. Upon defe nse counsel’s reque st, the court g rante d a continuanc e. The parties met for the third and final time for sentenc ing on October 18, 2010. Ag ain, J allad stated t hat he had reviewe d the P SR with his attorney and had no objecti o n s . At t his hear ing, the discussion cente red around whether J allad merited a reduc tion for acc eptanc e of responsibility , his proper criminal history cate g ory , and the 18 U.S.C. § 3553(a) sentenc ing fac tors. The district court expressed conce rns about g ranting the acc epta n ce of responsibility reduc tion beca use J allad had initially lied to the probation office r about what he had done with the proce eds from the stolen g oods. I n expressing its conc erns, the court mentioned the obstruction of justice enha nceme nt as a matter alre ady decide d: “[J allad] was not forthrig ht with [t he probation office r], just as he was not forthrig ht with the mag istrate when he appea red and filled out the CJ A form , as t o wh i ch two points have alre ady been added for obstruction of justice.” R. 42, Sen t encing Tr. I I I , at 5. The g overnme nt supported the acc eptanc e of responsibil i t y reduc tion, descr ibing J allad’s cooper ation in all other respe cts, but stated that it share d the court’s conce rns and pointed out that “[t] hat’s why we rese rved - 4 -No. 10-4412

United States v. J

allad the right to reque st—and the prob at i o n o ffice has agr eed—the upwar d adjustment for obstruction of justice for ly ing on the form[.] ” Id

. at 8-9. The court then conclude d that it was “conte nt to g iving

acc eptanc e of responsibility cre dit” and “that would result in a base offe nse level o f 2 0 [

. ] ” Id

. at 10-11. De fense counsel c onfirmed that he had no objec tion to such finding. The court then discussed its conce rns that J allad’s criminal history cate g ory of I wa s “substantially inadequate and unde rstated.” Id. at 11. The gove rnment responded it believed the court’s conce rns on this point rela ted t o t h e § 3 553(a) fac tors that g uide the court’s sentenc ing deter mination once the a dvisory g uidelines are set, rathe r t han to t he De fenda nt’s criminal history
cate g ory . When defe nse counsel was given an opportunity to addr es s the i ssues, counsel stressed that he did not believe there should be an incr ease in the criminal history and that the court should adher e to the low end of the g uidelines. T h e court interrupted to confirm that the sentenc ing

rec ommendation was a “base offe nse level of 20, criminal history cate g ory of I , g uideline rang e [of] 33 to 41 months,” which the probation officer confirme d. Id

. at 18. Def ense c ounsel then ar g ued that the § 3553(a) fac tors favor ed a low-end- of-guidelines sentenc e. And the end of his a rg ument, defe nse counse l addre ssed the fina ncial af fidavit: MR WI NGATE [for J allad]: And the only other thing I think that we would need to addre ss is the Court’s understanding , the repr esenta tion I have, I believe that it is, is the Court talked about the fo rm t h at he filled out rela tive to -- and if I ’m not mistaken, the form specific ally , the question that asked had to do with two: one was are y ou now employ ed, which he chec ked no; and the other one was have y ou rec eived in the past 12 months any income from a business, profe ssion, or other form of self-e mploy

ment o r i n the form of rent pay ments, dividends, retire ment, or annuity ; and that was chec ked no also. I would indicate to the Court -- and the Court has paper work, as far as repr esentation of conver sations with Mr. J allad. And I too have had numerous conver sations with him specific ally about, y ou know, wer e y ou employ ed when y ou signe d this paper work? And at that time the answe r was, no. He - 5 -No. 10-4412

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allad said that, I was no longe r employ ed at the carry out. But then the question beca me, Well, y ou’re selling is [sic] stuff on eB ay . Does that constitute employ ment? And I g uess if y o u look at it from one perspe ctive y ou would say , y es, that would constitute employ

ment. But ag ain, by the s am e t o k en , i f I ’m selling drug s, I don’t have a leg itimate job, but if y ou ask me, am Iemploy ed, I would have to sa

y no. THE COURT: You’r e g etting a n income. The re’ s money coming in. MR. WI NGATE: I understand. But that sort of dovetailed into the second question. Then the second question being , Do y ou have any income? And the Court’s question, of course , all rig ht, I ’m selling drug s; is it now incumbent upon me to tell the Court I have an income that is coming from my illega l enter prise? And I think that would, in fac t, be the client’s rig ht t o s ay n o or ref use to answe r that beca

use it could be somewhat incr iminating inasmuch a s y ou’re saying -

- THE OURT: Well, y ou don’t -- I ’m not sure y ou want to g o there beca use he didn’t have to a sk for c ourt appointed c ounsel. MR. W I NGATE: I

understand that. THE COURT: That’ s wh at t ri g g ers it. So I see y our quasi Fifth Amendment argument. I don’t know the answe r. I ’m sure there ’s case s out there that could tell us one way or another

. But ag ain, it appea red that he had the resour ces available to reta in counsel. He elec ted not to. So let’s may be move a

way from that. MR. WI NGATE: B ut just for that last point, Your Honor, that being Mr. J allad did not, in fac t, reta in counsel. I t was his pare nts that came in from J ordan who actua lly came in from J ordan and contac ted me, and that is who reta ined me to repr esent him. I n and o f i t self he did not have income to reta in counsel, as the Court can see and pursuant to the poly g raph that was g one. There was no income. I can only say to the Court that I ’m hoping that this sheds some light on the questions a nd conce rns that the Court has. THE COURT: I t does. MR. W I NGATE: I t may

not completely

answe r it or may

not satisfy

it -- THE COURT: I t moderate s it very substantially

. MR. W I NGATE: I

hope that it does. Aga in, on behalf of Mr. J allad, I respe ctfully ask the Court to follow the re commendations of the g overnme nt. - 6 -No. 10-4412

United States v. J

allad Id. at 23-25. A f te r D e f e n d a n t’ s a ll o c ution, defe nse counsel made closing comments during which he ag a in urg ed the court to follow the g overnme nt’s rec ommendation

. T h e co urt conclude d that it would

rema in within the g uideline rang e and imposed the maxi mum 41 months imprisonment. This w as the maxi mum under the g uideline rang e rec ommended by the PSR and included the obstruction of justice enhanc ement. At the end of sentenc ing, the court asked, pursuant to United States v. Bostic , 371 F.3d 865 (6th Cir. 2004), whether the parties had any objections not previously made, to which defe nse counse l answer ed, “[n]othi ng further .” Id . at 32-33. J allad appea ls, arguing that (1) the dist rict court violated Fe d. R. Crim. P. 32 by failing to make fac t finding s on disputed issues and (2) misstatements in a financ ial aff idavit executed for the purpose of recei v i n g appointed counsel do not constitute an obst ruction of justice under U.S.S .G. § 3C1.1. II. ANALYSIS A. Standards of

Review “When revie wing the district court’s application of the Sentencing Guidelines, we revie w the district court’s fac tual finding s for clea r err or and mix ed questions of law and fac t de novo.” United States v. Tolbert , 668 F.3d 798, 800 (6th Cir. 2012). “Whether the fac ts found war rant the application of a particula

r g uideline provision is a leg al question revie wed de novo.” United States

v. Corp , 668 F.3d 379, 386 (6th Cir. 2012). Whether the district court complied with the proce dural require ments of Fe dera l Rule of Criminal Proc edure 32(i) is a lso revie wed de novo. United States v. W hite , 492 F.3d 380, 414 ( 6th Cir. 2007). - 7 -No. 10-4412

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allad “I f a defe ndant fails to raise an objection befor e the district court, howeve r, our revie w is only for plain err or.” Corp , 668 F.3d at 386; Fe d. R. Crim. P 52(b)

. Un d er plain err or revie w, the Def endant m u s t show “(1) err or (2) that was obvious or clea r, (3) that aff

ecte d defe ndant’s substantial rig hts and (4) that aff ecte d the fairne ss, integ rity , or public reputa tion of the j u d i ci al proce eding s.” United States v. Vonner, 516 F.3d 382, 386 (6th C i r. 2 0 0 8) (en banc) (interna l quotation marks omitted). B. Rule 32 Be cause J allad did not object to the court’s failure to make specific finding s pursuant to Rule 32, even afte r g iven an opportunity to do so, we revie w for plain err or. Vonner, 516 F.3d at 385 (“I f

a sentenc ing judge asks [t he Bostic q u es t i o n ] and if the rele vant party does not object, then plain-er ror r eview a

pplies on appea l to those arg uments not preser ved in the district cour

t.”). Fe d. R. Crim. P. 32(i)(3) (B ) provides that at sentenc ing, the court “must—for any disputed 2 portion of the prese ntence repor t or other controve rted matter—rule on the dispute or deter mine that

a ruling is unnece ssary either beca use the matter will not aff ect sentenc ing, or beca

use the court will
not consider the matter in sentenc ing.” “As a threshold matter, the defe ndant must actively raise the dispute during the sentenc ing hear ing befor e the district court’s duty to find fac ts arises.” W hite , 492 F.3d at 415; see also United States v. Hurst , 228 F.3d 751, 760-61 (6th Cir. 2000). Once a dispute is raised, “Rule 32 ‘prohibits a court

. . . from adopting the fac tual finding s of the prese ntence repor t

For merly Fe d. R. Crim. P. 32(c) (3)( D) until 1994 and then Rule 32(c) (1) until 2002. Neither 2 chang e has altere d this Court’s substantive interpre tation of the rule. See United States v. Tackett , 113 F.3d 603, 613 n.8 (6th Cir. 1997); United States v. Darwich , 337 F.3d 645, 666 (6th Cir. 2003).

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allad without making fac tual deter minations of its own.’” United States v. Lang , 333 F.3d 678, 681 (6th Cir. 2003) (quoting United States v. Parrott , 148 F.3d 629, 633 (6th Cir. 1998)). We require “litera l compliance ” with the Rule, and“[i]f a sentenc ing court fails to make the nece ssary fac tual finding s, then we must rema

nd for rese ntencing .” United States v. Mi d d l et o n , 2 4 6 F.3d 825, 847 (6th Cir. 2001). J allad contends that he sufficie ntly raised an objection to the obstruction enhanc em ent, trig g ering the court’s duty to make finding s of fac t, when he disputed the PSR ’s conclusions that his fra udulent scheme constituted employ ment and that he had income in the 12 months prec eding his signing the financ ial aff

idavit. His arg ument, howeve r, is belied by the re cord. Under Rule 32(f) , parties must state in w riting any objections to the PSR within 14 day s of

rec eiving it. The probation office r may consider any objections and revise the PSR if appropr iate. Fe d. R. Crim. P. 32(f) (3). At least seven day s befor e sentenc ing, the probation office r must submit
t o t h e co u rt and parties the P SR and an addendum containing any unresolved objections. Fe d. R

. Crim. P. 32(g ). Stil l, a party may make a new objection at any time befor e sentenc e is imp osed, which the court “may , for g ood cause , allow[.] ” Fe d. R. Crim. P. 32(i)(1) (D). Any undisputed portion of t he P SR may be acce pted as a finding of fact by the s entenc ing court. Fe d. R. Crim. P. 32(i)(3) (A). Despite these numerous opportunities to make an objection known, J allad disreg arde d them all. J allad filed no written objections to the PSR

. He twice aff irmed befor e the district court that he had revie wed the PSR and had no objections. He did not object to the court’s finding that the proper base offe nse level was 20, which was the level rec ommended by the PSR and i n cl u d ed the - 9 -No. 10-4412

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allad obstruction enhanc ement. And he repe atedly urg ed the court to follow the rec ommendations of the g overnme nt, one of which was application of the enhanc ement as indicated clea rly in both the PSR and plea ag ree ment. On this recor d, we can hardly find that the obs truction enhanc ement was “in dispute”; rathe r, Jallad ga ve eve ry indication to the court that it was not. J al l ad n o netheless contends that his dialog ue with the court at t he end of t he thi rd hearing sufficie ntly controve rted the matter to trig g er Rule 32. We disag re e. T h o u g h he did bring up the financ ial aff

idavit at the end of the third hear ing, he did not ref er to the rele vant g uideline or

o t h erw ise make clea

r he was disputing the enhanc ement. See United States v. Caballero, 4 1 7 F. App’x 500, 504-05 (6th Cir. 2011) (f inding no objec tion to the PSR wher e defe ndant made casua l ref ere nce to “low participa tion” and neither cited the rele vant g uideline for a minor role adjustment

nor develope d any meaning ful argument). Rather, it se ems he was simply explaining his be havior in an attempt t o as s u age the court’s conce rns reg arding the accepta nce of responsibility reduc tion and his cr i m inal history cate g ory , which, in addition to the § 3553(a) sentenc ing fac tors, wer e the only topics of discussion during the hear ing. Reg ardle ss of J allad’s intention, howeve r, the fac t

rema ins that he did not make any dispute clea r. Given that J allad repe atedly led the court to believe he had no objection to the obstruction enhanc ement, his ref ere nce to the aff

i d av i t at the end of a hear ing that focuse d only on other sentenc ing fac tors, without any atten dant notice of a new objection, did not sufficie ntly raise a dispute trig g ering Rule 32(i)(3) (B )’s proce dural require ments. See W hite , 492 F.3d at 415 (“A s a threshold matter, the defe ndant must actively raise the dispute during the sentenc ing hear ing befor e the district court’s duty to find fac ts arises.” ); United States v. Hooke r , No. 09-2286, 2012 WL 171396, at *2 (6th Cir. J an. 23, 2012) (“We cannot fault the district - 10 -No. 10-4412

United States v. J

allad court for not r

uling on objections never raised befor e it.”). We f ind no err or, much less one that is plain, for the district court’s failure to comply with an obligation that was never incumbent upon it. C. Obstruction of Ju stice J allad also contests the merits of the obstruction of justice enhanc ement. As he did not raise the ar g ument below, we revie w for pla in error

. Section 3C1.1 of the U.S. Sentencing Guidelines provides: I f (A) the defe ndant willfully obstructed or imped ed , or attempted to obstruct or impede, the a dminist ration of justice with r espec t to the investigation, prosecution, or sentenc ing o f the instant offe nse of conviction, and (B ) the obstructive conduct rela ted to ( i) the def

endant’ s offe nse of c onviction and any rele vant conduct; or (ii) a close ly rela ted offe nse, incre ase the offe nse leve l by 2 levels. U.S.S.G. § 3C1.1 (2008). The application notes g ive examples of cover ed conduct, one of which 3 is “providing materia lly

false inf ormation to a judg e or ma g istrate.” § 3C1.1 c mt. 4(f). Mate rially false information is information “that, if believed, would tend to influence or aff ect the issue under deter mination.” § 3C1.1 cmt. 6. A circ uit split exis ts on the question of whether this enhanc ement applies to false statements g iven for the purpose of obtaining appointed counsel. The disag ree ment is cente red on the showing of i ntent nece ssary to apply the enhanceme nt. Compare United St ates v. Ruff , 79 F. 3 d 1 2 3 (11th Cir. 1996) (finding the enhanc ement applied to def en d an t ’s s tatements g iven for the purpose of obtaining appointed counsel beca use such statements wer e delibera tely false and tended to influence

or aff ect the issue under deter mination, i.e. the appointment of counsel), and United S t a t es v.

J allad’s PSR relied upon the Sentenc ing Guidelines eff ective N ovember

1, 2008. 3 - 11 -No. 10-4412

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allad Hernande z-Ramirez , 254 F.3d 841 (9th Cir. 2001) (finding enhanc ement applied to d e f e n d a nt’s false financ ial aff

idavit in support of procur ing appointed counsel for the same rea sons and that the eff ort to o b t ai n fr ee counsel was rela ted to the prosec ution of the instant offe nse), with United States v. Khimchiachvili , 372 F.3d 75 (2d Cir. 2004) (finding enhanc ement did not apply to false financ ial aff idavit in support of appointed counsel beca use such aff

idavit d i d “n o t reve al the require d obstructive intent” and the motivation was to g et a fre e lawy er, not to “pre vent justice or even delay it.”), supplemente d with United States v. Sherry , 107 F. App’x 253 (2d Cir. 2004), vacate d on other grounds sub nom. Berwick v . United States , 544 U.S. 917 (2005) (me m). Be cause we have y et t o decide the i ssue, “the very exis tence of a rea sonable disagr eeme nt

on this point prec ludes the conclusion that the err or was plain.” United States v. Madden , 515 F.3d 6 0 1, 608 (6th Cir. 2008); see also United States v. Lanham , 617 F.3d 873, 884 (6th Ci r. 2 0 1 0 ) (“Where there are conflicting authorities, the district court could not have committed plain err or.”)

. We also aff

irm the obstruction of justice e nhance ment under the doctrine of invited err or. Under this doctrine, “whe n a party has himself provoked the court to commit an err or, that party may not complain of the err or on appea l u n l es s t h at err or would result in manifest injusti ce.” United States v. Demm ler , 655 F.3d 451, 458 (6th Cir. 2011). The doctrine “is a branc h of the doctrine of waiver by which courts preve nt a party from inducing an err oneous ruling and later seeking to profit from the leg al conseque nces of having the ruling set aside[.] ” Ford v. Cnty. of Grand Traverse , 535 F.3d 483, 490-91 (6th Cir. 2008) (quoting Harvis v. Roadway Express Inc. , 923 F.2d 59, 61 (6th Cir. 1991)). “Whether the circ umstances of a particula r case jus tify deviation from the normal rule of

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allad waiver under this doctrine is left l arg ely to the di scre tion of t he appellate court.” United St ates v. Barrow , 118 F.3d 482, 491 ( 6th Cir. 1997). Her e, J allad repe atedly indicated his ag ree ment wi t h t he PSR ’s and g overnme nt’s

rec ommendations, which both included the obstruction of justice enhanc ement. He cannot now, on appea l, seek to reve rse what he expli ci t l y s o u g ht below. We have previously upheld sentenc ing enhanc ements under the invited err or doctrine wher e defe nse counsel asked the court to acc ept the prosec utor’s g uideline calc ulations. United States v. Mee han , 41 F. App’x 741, 742 (6th Cir. 2002). And thoug h invited error

does not fore close re lief whe n the intere sts of justice demand other wise, Barrow , 118 F.3d at 491, we find no manifest injusti ce here , wher e the application of § 3C1.1 to the fac ts at hand is an issue not c lear ly decide d by this Court and one on which rea sonable minds have disag ree d. Cf. United States v. Finley , 8 F. App’x 557, 558 (6th Cir. 2001) (re manding case for

rese ntencing even though defe nse counsel reque sted the enhanc ement beca use sentenc ing err or was “undisputed” a

nd both parties ag ree d case should be rema nded). III. CONCLUSION For the re asons above , we a ffirm the se ntence imposed by the district court.

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