2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-30-2012

USA v. Haziz Self

Precedential or Non-Precedential: Precedential

Docket No. 11-1763

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2012

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2012 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"USA v. Haziz Self" (2012). 2012 Decisions. Paper 900.

http://digitalcommons.law.villanova.edu/thirdcircuit_2012/900
PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 11-1763

_____________

UNITED STATES OF AMERICA

v.

HAZIZ SELF

a/k/a HAZEK

HAZIZ SELF,

 Appellant

______________

APPEAL FROM THE UNITED STATES DISTRICT 

COURT FOR THE EASTERN DISTRICT OF 

PENNSYLVANIA

(D.C. Crim. No. 09-cr-00512-002)

District Judge: Honorable Paul S. Diamond

____________

Submitted Under Third Circuit LAR 34.1(a)

April 17, 2012

____________

Before: VANASKIE, BARRY and CUDAHY,* Circuit 

Judges

(Opinion Filed: May 30, 2012)

____________

 

*

 Honorable Richard D. Cudahy, Senior Circuit Judge for the 

United States Court of Appeals for the Seventh Circuit, sitting 

by designation. 
2

Jeremy H.G. Ibrahim, Sr., Esq.

P.O. Box 1025

1631 Baltimore Pike

Chadds Ford, PA 19317-0000

Counsel for Appellant

K. T. Newton, Esq.

Office of United States Attorney 

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106

Counsel for Appellee

____________

OPINION OF THE COURT

____________

BARRY, Circuit Judge

Haziz Self (“Haziz”) was sentenced to 120 months‟ 

imprisonment after being convicted on two counts of 

distributing crack cocaine. On appeal, Haziz raises a number 

of challenges to both the underlying convictions and the 

subsequent sentence. We will affirm the convictions but 

vacate the sentence and remand for resentencing. 

I. Background

A. Underlying Offense

On March 4, 2009, a confidential informant (“CI”) 

made a series of recorded telephone calls to Haziz‟s brother, 

Rahmmar Self (“Rahmmar”), to arrange for the purchase of 

one-half ounce of crack cocaine. In those conversations, 

Rahmmar instructed the CI to proceed to his house to buy the 

drugs and informed him that “[m]y brother is going to meet 

you.” While wearing concealed audio and video recording 
3

devices, the CI proceeded to the house, where he purchased 

approximately twelve grams of crack from Haziz for a price 

of $500. Based on this transaction, a grand jury in 

Philadelphia returned a two count indictment charging Haziz 

and Rahmmar with: (1) distribution of five grams or more of 

cocaine base, in violation of 21 U.S.C. § 841(a)(1); and (2) 

distribution of cocaine base within 1,000 feet of a housing 

facility owned by a public housing authority, in violation of 

21 U.S.C. § 860(a).1 

B. Disqualification

Haziz was initially represented by a court-appointed 

attorney, but Mark Greenberg, Esq. (“Greenberg”), entered an 

appearance on behalf of Haziz on September 10, 2009. That 

same day, Barnaby Wittels, Esq. (“Wittels”), entered an 

appearance on behalf of Rahmmar. Greenberg and Wittels 

are attorneys in the same four-lawyer firm, Lacheen Wittels & 

Greenberg, LLP. 

Shortly after Greenberg and Wittels entered their 

appearances, the government raised the potential conflict of 

interest created by the same firm representing the two codefendants. Magistrate Judge Elizabeth T. Hey conducted a 

hearing in accordance with Federal Rule of Criminal 

Procedure 44(c), during which both Greenberg and Wittels 

stated that they did not believe that a conflict would arise 

from their joint representation, and both defendants waived 

their right to be represented by conflict-free counsel. Several 

weeks later, U.S. District Judge John R. Padova questioned 

each defendant separately. Again, Wittels and Greenberg 

stated that they foresaw no potential conflict. Rahmmar, who 

has a tenth-grade education, again waived any conflict of 

interest. Haziz, who completed high school, asked Judge 

Padova to explain how a conflict might manifest itself, 

requested a court recess to consider his options, and waived 

any conflict after discussing the issue with his attorney. 

 

1

The grand jury subsequently returned a superseding 

indictment adding five drug-related counts against Rahmmar 

only.
4

Two days after this hearing, Wittels had an apparent 

change of heart and moved to withdraw his representation on 

conflict grounds. In his motion, Wittels explained: 

After reflection it is apparent to undersigned 

counsel that no workable protocol can be 

created that will satisfy the court‟s concerns and 

that no workable “Chinese Wall” could be 

erected in what is a four lawyer firm in which 

the offices of counsel in this case are adjacent to 

one another and in which there is a common 

receptionist. 

U.S. District Judge Paul S. Diamond, to whom the case had 

been reassigned, held a hearing on Wittels‟ motion to 

withdraw. At the hearing, Wittels acknowledged that it was 

“very unusual for two lawyers in one firm to represent codefendants in a federal case,” and further explained that he 

now believed that the joint representation “would create a 

situation in which it would only damage the attorneys and my 

client. The potential for problems is just too great.” 

After the District Court granted Wittels‟ motion to

withdraw, it questioned Greenberg about why he should not 

also be disqualified, stating: “I am concerned about your 

ability vigorously to represent your client against, possibly 

against, the interests of another person, who was very recently 

a client of your firm.” Although Greenberg asserted that his 

representation of Haziz would not be limited by his firm‟s 

prior representation of Rahmmar, the Court remained 

concerned about a potential conflict. The hearing concluded 

with a discussion of two motions to continue the trial: one 

filed by the government, and the other filed by Wittels prior to 

his withdrawal. Greenberg objected to the government‟s 

motion, stating that Haziz was “ready to go to trial and we‟re 

prepared to go to trial.” However, Greenberg also stated that 

he did not object to Wittels‟ motion for a continuance, a 

contradictory position that the Court believed “may well 
5

underscore the need for two new counsel in this case.”2

On December 30, 2009, the District Court ordered that 

Greenberg be disqualified due to a serious potential for 

conflict. In a meticulous opinion accompanying the order, the 

Court explained that “Greenberg‟s continued presence in this 

case presents a minefield of potential problems that would 

compel me constantly to evaluate whether he is acting in the 

best interest of his firm‟s existing client or in his firm‟s 

former client.” The Court then appointed Jeremy Ibrahim, 

Esq., as Haziz‟s new defense counsel. 

C. Trial

Haziz‟s trial began on June 22, 2010.3 Simply put, the 

government‟s evidence of guilt was very strong. In addition 

to the eyewitness testimony of several ATF agents, the 

government also produced audio and video recordings of the 

CI‟s drug transaction with Haziz. Additionally, the CI 

testified that after making arrangements with Rahmmar over 

the phone, he purchased two baggies of crack cocaine from 

Haziz, whom he knew personally. His testimony continued: 

I went in there, gave [Haziz] the money right 

away, he counted it, he told me that -- that he --

you know, he don‟t do this anymore, he was just 

doing a favor for his -- for his brother. After 

that he gave me the crack cocaine and I 

proceeded to leave.

The government also called Ninan Varughese 

(“Varughese”), a forensic chemist employed by the 

Philadelphia Police Department Chemistry Laboratory. 

Varughese testified that he tested the substance in one of the 

 

2 After the District Court expressed some exasperation about 

this contradictory stance, Greenberg backtracked and stated 

that he also objected to Wittels‟ motion to continue the trial.

3 Rahmmar pled guilty on May 17, 2010 and was 

subsequently sentenced to 120 months of imprisonment.
6

two baggies purchased by the CI and determined that it 

contained cocaine base, that the tested bag contained 5.494 

grams of cocaine base, and that the total weight of both 

baggies was 12.05 grams. 

Finally, the government called Devinearth Freeman 

(“Freeman”), Haziz‟s niece, who lived in the same house as 

Haziz and was present in the house at the time of the drug 

transaction with the CI. Upon being interviewed by ATF 

agents prior to trial, Freeman had refused to say whether 

Haziz was present at the time of the transaction. At trial, 

when Freeman was shown a video recording of the 

transaction, she claimed to be unable to identify Haziz in the 

video. This led to the following exchange, as the prosecutor 

questioned Freeman about her possible bias:

Q: And when you were asked if Haziz was in 

the kitchen the first time, you just didn‟t answer 

that question, didn‟t you?

A: No, I didn‟t. 

Q: Because your Uncle Haziz is like a father to 

you, right?

A: Oh, yeah.

Q: And you don‟t want to see him go to jail?

MR. IBRAHIM: Judge, I‟m going 

to object.

THE COURT: Over --

MR. IBRAHIM: This is her witness.

THE COURT: -- overruled. Please.

THE WITNESS: He‟s already in jail.

THE COURT: Repeat the question.
7

Q: You don‟t want to see him get convicted and 

spend more time in jail, do you?

A: He‟s already in jail.

After the jury was dismissed for the day, defense counsel 

moved for a mistrial, arguing that Haziz had been prejudiced 

by Freeman‟s statements that he was already in jail. The 

District Court declined to grant a mistrial but invited defense 

counsel to submit a cautionary instruction. Defense counsel 

did so, and the Court read the instruction to the jury the next 

morning. 

D. Allegations by Alternate Juror

Following three days of evidence, the trial concluded 

and the District Court instructed the jury. The Court then 

separated the two alternate jurors, who did not participate in 

deliberations, and twelve jurors repaired to the jury room to 

deliberate. After approximately two hours, the jury returned a 

unanimous verdict finding Haziz guilty on both counts. The 

Court polled the jury, and each member confirmed his or her 

agreement with the verdict. 

After the jury was dismissed and the courtroom had 

emptied, however, one of the alternate jurors approached the 

courtroom deputy and stated that “several” of the jurors had 

told her that “they went along with the verdict even though 

they did not necessarily agree with it.” The deputy asked the 

alternate juror to write down her name and telephone number, 

as well as the names of the jurors who did not necessarily 

agree with the verdict. The alternate wrote down her name 

and the name of one other juror, and the deputy passed this 

information along to the District Court. 

The next day, the District Court conducted a phone 

conference during which it informed counsel of the alternate 

juror‟s allegations. Defense counsel moved to interview the 

alternate juror, a request the government opposed. In a 

memorandum opinion, the Court denied the motion.
8

E. Sentencing

The presentence report (“PSR”) found Haziz to have 

an offense level of 22 and a criminal history category of III, 

which resulted in a guideline range of 51 to 63 months. 

However, because he had a prior felony drug conviction and 

because his offense involved more than five grams of cocaine 

base, Haziz was subject to a ten-year mandatory minimum 

sentence pursuant to 21 U.S.C. § 841(b)(1)(B). 

On March 18, 2011, Haziz appeared for sentencing and 

raised several objections to the PSR. First, he argued that the 

Court should apply the Fair Sentencing Act of 2010 (“FSA”), 

which would preclude him from being subject to a mandatory 

minimum sentence. The Court rejected this argument, 

holding that the FSA, which was passed before Haziz‟s 

sentencing but after his conviction, did not apply to 

defendants who had been convicted prior to its enactment. 

Next, Haziz objected to the calculation of his offense level, 

arguing that: (1) the offense level should reflect only the 

weight of one of the two baggies of crack (i.e. the baggie that 

actually had been tested); and (2) he was entitled to a 

“mitigating role” adjustment pursuant to U.S.S.G. § 3B1.2. 

The Court rejected both of these objections as well, and noted 

that, in any event, disagreements as to the offense level were 

moot in light of the 120-month mandatory minimum sentence. 

The Court then sentenced Haziz to 120 months of 

imprisonment with eight years of supervised release. Haziz 

timely appealed.

II. Discussion4

Haziz identifies six separate instances of possible 

error: (1) the disqualification of Greenberg; (2) the denial of 

his motion for a mistrial; (3) the denial of defense counsel‟s 

request to interview the alternate juror; (4) the District Court‟s 

refusal to adopt a “mitigating role” adjustment; (5) the total 

 

4

The District Court had jurisdiction pursuant to 18 U.S.C. § 

3231. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 

18 U.S.C. § 3742.
9

weight of the drugs involved in the offense; and (6) the use of 

pre-FSA thresholds for determining whether a mandatory 

minimum sentence applied. No error was committed as to all 

but one of these allegations. As to that one, we conclude, and 

the government concedes, that in the wake of our decision in 

United States v. Dixon, 648 F.3d 195 (3d Cir. 2011), the FSA 

applies and Haziz is not subject to a mandatory minimum 

sentence. Accordingly, although we affirm the convictions, 

we will remand for resentencing. 

A. Disqualification

Haziz argues, first, that the District Court‟s 

disqualification of Greenberg, his privately retained counsel, 

violated his Sixth Amendment right to counsel of his choice

and, thus, that his convictions should be reversed. We review 

a district court‟s disqualification order in two stages. “First, 

we exercise plenary review to determine whether the district 

court‟s disqualification was arbitrary—the product of a failure 

to balance proper considerations of judicial administration 

against the right to counsel.” United States v. Stewart, 185 

F.3d 112, 120 (3d Cir. 1999) (citation and internal quotations

omitted). If the order was not arbitrary, “we then determine 

whether the court abused its discretion in disqualifying the 

attorneys.” Id. Because Haziz concedes that the Court “did 

not issue an arbitrary ruling,” the only question is whether it 

abused its discretion in determining that Greenberg‟s 

representation of Haziz gave rise to a serious potential for 

conflict of interest. We answer that question in the negative.

“The right to select counsel of one‟s choice . . . has 

been regarded as the root meaning of the [Sixth 

Amendment‟s] constitutional guarantee.” United States v. 

Gonzalez-Lopez, 548 U.S. 140, 147-48 (2006). “The right to 

counsel of choice, however, is not absolute. Thus, where 

considerations of judicial administration supervene, the 

presumption in favor of counsel of choice is rebutted and the 

right must give way.” United States v. Voigt, 89 F.3d 1050, 

1074 (3d Cir. 1996) (citation and internal quotations omitted). 

A conflict of interest arising from the joint representation of 

criminal co-defendants is one instance in which a defendant‟s 
10

right to counsel of choice may be rebutted, as joint 

representation in a criminal case “engenders special dangers 

of which a court must be aware.”5 United States v. Wheat, 

486 U.S. 153, 159 (1988). Indeed, the Federal Rules of 

Criminal Procedure place an affirmative duty on district 

courts to investigate when this particular danger appears: 

The court must promptly inquire about the 

propriety of joint representation and must 

personally advise each defendant of the right to 

the effective assistance of counsel, including 

separate representation. Unless there is good 

cause to believe that no conflict of interest is 

likely to arise, the court must take appropriate 

measures to protect each defendant‟s right to 

counsel.

Fed. R. Crim. P. 44(c ). It is well-established that 

disqualification of counsel is among the “appropriate 

measures” available to a district court in cases of conflict 

caused by joint representation. See, e.g., Voigt, 89 F.3d at 

1078; United States v. Flanagan, 679 F.2d 1072, 1076 (3d 

Cir. 1982), vacated on other grounds, 465 U.S. 259 (1984). 

There was no abuse of discretion in the District Court‟s 

disqualification of Greenberg. The Court recognized that 

different and potentially conflicting defenses were available 

to each co-defendant. Indeed, Haziz‟s primary argument is 

that he was less culpable than his co-defendant brother 

because he “was merely carrying out [his] instructions.” 

There can be little doubt that this “blame the co-defendant”

strategy created a potentially serious conflict of interest, and

Wittels conceded as much when he said that “no workable 

„Chinese Wall‟ could be erected in what is a four lawyer firm 

in which the offices of counsel in this case are adjacent to one 

 

5

The law makes no distinction between one lawyer and 

multiple lawyers from the same firm representing codefendants. See Fed. R. Crim. P. 44(c) (“Joint representation 

occurs when . . . the defendants are represented by the same 

counsel, or counsel who are associated in law practice.”).
11

another and in which there is a common receptionist.” 

 

Haziz asserts, however, that “the possibility of a 

conflict is not sufficient to disqualify appellant‟s counsel of 

choice.” The case law says otherwise, and says so 

emphatically. In Wheat, the leading case in this area, the 

Supreme Court explicitly stated that the presumption in favor 

of a defendant‟s counsel of choice “may be overcome not 

only by a demonstration of actual conflict but by a showing of 

a serious potential for conflict.” 486 U.S. at 164. This is

necessary, the Court explained, because district courts are 

required to evaluate possible conflicts in the “murkier pretrial 

context when relationships between parties are seen through a 

glass, darkly.” Id. at 162. As such, the Court held that district 

courts must be given “substantial latitude” to take protective 

steps “not only in those rare cases where an actual conflict 

may be demonstrated before trial, but in the more common 

cases where a potential for conflict exists which may or may 

not burgeon into an actual conflict as the trial progresses.” Id.

at 163. Our decisions are, of course, in accord. See, e.g., 

Voigt, 89 F.3d at 1075 ( “Clearly, the potential for serious 

conflicts is a consideration of judicial administration that can 

outweigh a defendant‟s right to counsel of choice.”). 

Nor did Wittels‟ withdrawal from the case cure the 

problem. The District Court found that a serious potential 

conflict exists “if Mr. Greenberg retains any loyalty to his 

firm‟s former client.” Indeed, this concern had some basis in 

fact in light of Greenberg‟s puzzling decision not to oppose 

Rahmmar‟s motion for a continuance despite having 

represented to the Court that Haziz wished to proceed to trial 

immediately. In Flanagan, we considered whether a firm that 

had been disqualified from representing several co-defendants 

should have been permitted to continue representing just one 

of the defendants. 679 F.2d at 1076. In affirming the district 

court‟s disqualification of the entire firm, we explained that 

“[t]he potential for conflict arising from the firm‟s receipt of 

confidential information from all the defendants, and its 

obligations in defending just one of the defendants, perhaps at 

the expense of the others, is obvious.” Id.; see also Pa. Rules 

of Prof‟l Conduct 1.7 (stating that a conflict exists where 
12

“there is a significant risk that the representation . . . will be 

materially limited by the lawyer‟s responsibilities to . . . a 

former client”) (emphasis added). Given the foregoing, and 

even though Rahmmar had become a former client of the 

firm, the Court did not abuse its discretion in determining that 

a serious potential for conflict remained and that Greenberg 

should be disqualified. 

B. Denial of Mistrial

Haziz next argues that the District Court abused its 

discretion in denying him a mistrial. As described above, 

Haziz‟s motion for a mistrial was prompted by the testimony 

of his niece, Devinearth Freeman, who twice made unsolicited 

mention of the fact that Haziz was “already in jail” in

response to the prosecutor‟s questions. After the jury had 

been excused for the day, defense counsel moved for a 

mistrial, alleging prejudice. The Court denied the motion, but 

stated: “[D]o you want a cautionary instruction? . . . I will 

give it tomorrow morning after you consult with the 

Government, assuming it‟s a reasonable cautionary, I‟ll be 

happy to give it.” Defense counsel agreed and drafted the 

following instruction, which the Court read to the jury the 

next morning: “Ladies and gentlemen, I‟m instructing you to 

disregard, from your consideration, any testimony which 

might have discussed the custody status of Mr. Haziz Self.” 

We review a district court‟s denial of a mistrial for 

abuse of discretion. United States v. Hakim, 344 F.3d 324, 

328 (3d Cir. 2003). There is no dispute that Freeman‟s 

mention of the fact that Haziz was “already in jail” was 

improper. However, “[a] mistrial is not required where 

improper remarks were harmless, considering their scope, 

their relation to the context of the trial, the ameliorative effect 

of any curative instructions and the strength of the evidence 

supporting the conviction.” United States v. Rivas, 493 F.3d 

131, 140 (3d Cir. 2007). Here, Freeman‟s statements were 

brief, isolated, and unsolicited by the prosecutor. As such, 

when viewed in the context of the entire trial, their impact 

was negligible—especially considering the very strong

evidence adduced by the government. Moreover, out of an 
13

abundance of caution, the District Court instructed the jury to 

disregard any testimony as to Haziz‟s custody status, the 

instruction defense counsel requested. In light of the 

principle that a jury is presumed “to disregard inadmissible 

evidence inadvertently presented to it,” Greer v. Miller, 483 

U.S. 756, 766 n.8 (1978), this instruction neutralized the 

prejudice—if any—from Freeman‟s two improper responses. 

The Court did not abuse its discretion in denying Haziz‟s 

motion for a mistrial. 

C. Allegations by Alternate Juror

Haziz argues, next, that he is entitled to a new trial 

because the District Court abused its discretion in denying his 

request to conduct a post-trial interview of an alternate juror. 

As noted above, the alternate juror—who did not participate 

in jury deliberations—approached a courtroom deputy after 

the verdict had been returned and reported that “„several‟ of 

the regular jurors had told her that they went along with the 

verdict even though they did not necessarily agree with it.” 

The Court related this exchange to counsel, and defense 

counsel requested permission to interview the alternate juror, 

a request that the Court denied. 

We review for abuse of discretion a district court‟s 

handling of allegations of irregularities in jury deliberations. 

United States v. Stansfield, 101 F.3d 909, 914 (3d Cir. 1996). 

At the outset, we note that post-trial interviews of discharged 

jurors are generally disfavored, as we are “„always reluctant 

to haul jurors in after they have reached a verdict in order to 

probe for potential instances of bias, misconduct or 

extraneous influences.‟” United States v. Gilsenan, 949 F.2d 

90, 97 (3d Cir. 1991) (quoting United States v. Ianniello, 866 

F.2d 540, 543 (2d Cir. 1989)); see also 3-606 Weinstein’s 

Federal Evidence § 606.06 (2011) (“The federal courts are 

notoriously reluctant to permit either informal post-verdict 

interviews with or testimony from discharged jurors.”). This 

reluctance to allow post-trial questioning of jurors stems from 

a recognition that “post-verdict inquiries may lead to evil 

consequences: subjecting juries to harassment, inhibiting 

juryroom deliberation, burdening courts with meritless 
14

applications, increasing temptation for jury tampering and 

creating uncertainty in jury verdicts.” Gilsenan, 949 F.2d at 

97 (citation and internal quotations omitted). Surely, then, 

post-verdict inquiries of alternate jurors who never 

participated in deliberations, much less in return of the 

verdict, should be given short shrift, indeed. 

We need not reprise the District Court‟s careful 

consideration of defense counsel‟s request to interview the 

alternate juror. Suffice it to say that all Haziz argues to us is 

that questioning the alternate juror “would have been proper 

to determine if any outside influence [was] improperly 

brought to bear [sic] upon any juror.” But nowhere did the 

alternate juror even suggest that there had been any outside 

influence on any juror. At best, and we stress at best, the

alternate juror‟s statement suggests only that some jurors may 

have persuaded others to set aside their misgivings and vote to 

convict. The District Court did not abuse its discretion in 

denying Haziz‟s request. 

D. Guidelines Calculations

Haziz raises two arguments related to the calculation of 

his guideline sentencing range. First, he argues that he was 

entitled to a downward adjustment for a “mitigating role” 

pursuant to U.S.S.G. § 3B1.2. Second, he argues that his 

offense level should have reflected only the weight of one of 

the two baggies of crack, because only one baggie was 

actually tested by the drug lab. The District Court considered 

and rejected both of these arguments.6 We review its findings

for clear error. United States v. Isaza-Zapata, 148 F.3d 236, 

237 (3d Cir. 1998); United States v. Yeung, 241 F.3d 321, 322 

(3d Cir. 2001). 

 

6

The District Court noted that these arguments were 

academic in light of the applicable mandatory minimum 

sentence. As discussed below, however, Haziz is not subject 

to a mandatory minimum, and so it is necessary for us to 

address the arguments he makes as to the guidelines 

calculations. 
15

1. “Mitigating Role” Adjustment

Haziz portrays himself to us as a loyal—albeit hardluck—brother whose crime resulted only from the desire to 

help out a wayward sibling. In keeping with this theme, 

Haziz argues that the District Court committed clear error 

when it declined to grant him a discretionary “mitigating role 

adjustment” under the guidelines. See U.S.S.G. § 3B1.2. At 

sentencing, the Court stated: “I don‟t think a reduction or a 

departure . . . is warranted. . . . I have the discretion to grant it,

but I choose not to grant it based on the evidence that was 

presented at trial.” This determination was not clearly 

erroneous. 

The guidelines permit the downward adjustment of a 

defendant‟s offense level if the defendant was “substantially 

less culpable than the average participant.” U.S.S.G. § 3B1.2 

cmt. n.3. Specifically, the “mitigating role adjustment” 

provision states: 

Based on the defendant‟s role in the offense, 

decrease the offense level as follows:

(a) If the defendant was a minimal 

participant in any criminal activity, decrease by 

4 levels. 

(b) If the defendant was a minor 

participant in any criminal activity, decrease by 

2 levels. 

In cases falling between (a) and (b), 

decrease by 3 levels.

U.S.S.G. § 3B1.2. In determining whether this adjustment is 

warranted, we have instructed district courts to consider “such 

factors as the nature of the defendant‟s relationship to other 

participants, the importance of the defendant‟s actions to the 

success of the venture, and the defendant‟s awareness of the 

nature and scope of the criminal enterprise.” United States v. 

Headley, 923 F.2d 1079, 1084 (3d Cir. 1991) (citation and 

internal quotations omitted). We have also observed that 

“[t]he district courts are allowed broad discretion in applying 

this section, and their rulings are left largely undisturbed by 
16

the courts of appeal.” Isaza-Zapata, 148 F.3d at 238. 

Haziz points out that it was his brother, Rahmmar, who 

spoke to the CI and set up the drug deal, and repeatedly 

asserts that he “was merely carrying out the instructions of his 

co-defendant brother.” As such, Haziz characterizes his 

involvement in the offense as “simply receiving the payment 

for a previously negotiated transaction,” and stresses that he 

told the CI that he “[doesn‟t] do this anymore.” 

Even accepting this as true, it cannot be said that the 

District Court erred, much less clearly erred, in denying Haziz 

a mitigating role adjustment. Haziz did not indirectly further 

a criminal activity or further that activity in some minor way; 

to the contrary, he directly engaged in the very act at the heart 

of the criminal enterprise—namely, the distribution of drugs 

in exchange for money. Thus, under the Headley factors set 

forth above, “the importance of [his] actions to the success of 

the venture” could not be clearer. Headley, 923 F.2d at 1084. 

Additionally, the fact that Haziz was trusted to handle the 

distribution of wholesale quantities of drugs worth hundreds 

of dollars speaks to the remaining Headley factors: his 

relationship with the other members involved in the criminal 

enterprise and his knowledge of the nature and scope of the 

venture. See Isaza-Zapata, 148 F.3d at 241 (“[T]he amount 

of drugs with which the defendant is charged may be an 

important factor which weighs heavily in the court‟s view of 

the defendant‟s relative culpability.”). While there may well 

be two permissible views as to whether the evidence supports 

a mitigating role adjustment, “the factfinder‟s choice between 

them cannot be clearly erroneous.” Anderson v. Bessemer 

City, 470 U.S. 564, 574 (1985). 

2. Weight of Drugs

Mr. Varughese, the government‟s forensic chemist, 

testified that in accordance with standard lab procedures, he 

tested the contents of only one of the two baggies purchased 

by the CI from Haziz in the arranged drug transaction. 

Seizing on this fact, Haziz argues that he should only be held 

responsible for the weight of the crack in the tested baggie 
17

(5.494 grams), not the total weight of both baggies (12.05 

grams). At sentencing, the District Court determined that “the 

calculation was appropriate at 12.05 grams.” The Court did 

not clearly err in reaching this conclusion. 

The government bears the burden of proving the 

weight of the drugs involved in an offense by a preponderance

of the evidence. United States v. McCutchen, 992 F.2d 22, 25 

(3d Cir. 1993). When a defendant “challenges a drug quantity 

estimate based on an extrapolation from a test sample, the 

government must show, and the court must find, that there is 

an adequate basis in fact for the extrapolation and that the 

quantity was determined in a manner consistent with accepted 

standards of reliability.” Id. at 25-26. This does not, 

however, require the government to adduce any sort of 

statistical evidence; rather, “reasonable reliability is the 

touchstone of the determination.” Id. at 26. 

Haziz simply recites this “reasonable reliability” 

standard and offers a conclusory statement that the standard 

was not met. The record, however, shows otherwise. 

Although Varughese tested only one of the two bags of 

suspected crack, he explained that this was standard and 

accepted procedure for the Philadelphia Police Department: 

“[A]ccording to our lab policy, we are analyzing only 10 

percent of the exhibit we are submitted . . . . [T]hat same 

policy [applies] for every case we are getting.”7 Varughese 

emphasized that the police lab was fully accredited and that, 

in order to maintain accreditation, it “need[s] to show for each 

and every case [the] same procedures,” regardless of the 

number of items submitted for testing. Additionally, he 

testified that the baggies purchased by the CI had a similar 

appearance, size, and packaging. Finally, the fact that the CI 

agreed to buy one-half ounce (about fourteen grams) of crack 

 

7

For example, if one thousand small packets are submitted 

for testing, the lab analyzes one hundred packets. Varughese 

went on to explain that if the lab gets sixteen bags (which it 

rounds up to twenty), it analyzes two. If only fourteen bags 

are submitted (which it rounds down to ten), the lab analyzes 

only one. 
18

gives rise to a strong inference that the 12.05 grams of chunky 

white substance in the two baggies was crack cocaine, even 

without the fact, and fact it be, that the two baggies were 

purchased from the same source in the same transaction. In 

light of the use of an established testing procedure, the similar 

size and appearance of the packages, and the incriminating 

circumstances of the transaction, the weight calculation was 

reasonably reliable. As such, the District Court‟s 

determination of the quantity of drugs involved in the offense 

was not clearly erroneous. 

E. Fair Sentencing Act

Finally, Haziz argues that we should vacate his 

sentence and remand for a de novo resentencing in light of the 

Fair Sentencing Act of 2010 (“FSA”). The FSA, which was 

aimed at reducing sentencing disparity between crack cocaine 

and powder cocaine offenses, raised the amount of crack that 

triggered a mandatory minimum sentence from five grams to 

twenty-eight grams. Fair Sentencing Act of 2010, Pub. L. 

111-220, § 2, 124 Stat. 2372, 2372 (2010). Because Haziz‟s 

offense involved approximately twelve grams of crack, he fell 

within the class of offenders who stood to benefit from this 

change in law. However, although the FSA already had been 

signed into law at the time of sentencing, the government 

argued that it should not apply because Haziz had been 

convicted prior to its enactment. The District Court agreed, 

and Haziz was thus subjected to a ten-year mandatory 

minimum sentence, which was duly imposed. 

A few months after sentencing, however, we decided 

United States v. Dixon, 648 F.3d 195 (3d Cir. 2011). We held 

in Dixon that the FSA applies to all defendants sentenced 

after its enactment, regardless of whether their offenses and 

convictions predated its passage. In light of Dixon, the 

government concedes that “the appropriate remedy is to 

vacate [Haziz‟s] sentence and remand the case for a de novo

resentencing proceeding.” We agree, and will vacate the 

sentence and remand for resentencing in accordance with the 

provisions of the FSA. 
19

IV. Conclusion

For the foregoing reasons, we will affirm the 

convictions but will vacate the sentence and remand for 

resentencing.