* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion

should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-20712

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

SYED MAAZ SHAH

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:06-CR-428-1

Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges. 

PER CURIAM:*

On two bases, Syed Maaz Shah challenges his conviction, by a jury, of

possession of a firearm by an alien admitted to the United States under a nonimmigrant visa, in violation of 18 U.S.C. §§ 922(g)(5)(B) and 924(a)(2). Shah also

challenges his 78-month prison sentence. (The Government’s motion to

supplement the record with its original trial exhibits is GRANTED.)

United States Court of Appeals

Fifth Circuit

F I L E D

October 6, 2008

Charles R. Fulbruge III

Clerk
No. 07-20712

2

Following a lengthy FBI investigation, Shah was arrested on 28 November

2006 at the University of Texas at Dallas, where he was a student. Shah, who

testified that he was in the country on a non-immigrant student visa, admitted

to the arresting law-enforcement officers that, inter alia, he had been

participating in combat training in preparation for “jihad” against the United

States.

At trial, the evidence showed that Shah had possessed an Armalite model

M-15A4 semi-automatic rifle during two combat training sessions held at a camp

in Willis, Texas. The jury found him guilty of violating 18 U.S.C. §§ 922(g)(5)(B)

and 924(a)(2). 

At sentencing,the district court concluded that Shah’s underlying conduct

warranted an upward departure. He was sentenced to 78 months imprisonment.

For the first of his two bases for challenging his conviction, Shah claims

the district court erred by admitting in evidence his incriminating post-arrest

statements. He maintains the Government failed to demonstrate that the

statements were obtained in compliance with Miranda v. Arizona, 384 U.S. 436

(1966). We reject Shah’s assertion that he preserved this issue for appeal

through his motion to dismiss the indictment. Nevertheless, because the

testimony at the hearing on Shah’s motion to exclude evidence clearly focused

on whether Shah had voluntarily made the statements to the officers following

the issuance of Miranda warnings, we conclude that Shah sufficiently preserved

this issue for review.

Whether a defendant voluntarily waived his Miranda rights is a legal

question, subject to de novo review. E.g., United States v. Restrepo, 994 F.2d

173, 183 (5th Cir. 1993). We must, however, “give credence to the credibility

choices and findings of fact of the district court unless they are clearly

erroneous”. Id. The Government has the burden of proving, by a preponderance

of the evidence: that the defendant voluntarily waived his rights; and that the

statements he made were voluntary. Id. 
No. 07-20712

3

The district court had before it the consistent and corroborative testimony

of three officers that Shah did not request an attorney prior to making his

incriminating statements. The district court’s determination that the officers’

testimony was credible, and that Shah’s testimony was not credible, was not

clearly erroneous. See id. Moreover, by stating its credibility determination on

the record,the court complied with its obligation under Federal Rule of Criminal

Procedure 12(d).

For his other challenge to his conviction, Shah asserts that the district

court erred in denying his motion for a judgment of acquittal. Shah’s motion was

based on the affirmative defense of entrapment. Among other things, an

undercover agent participated in the training sessions. Shah maintains that

person entrapped him. (The Government incorrectly asserts that Shah failed to

renew his motion for a judgment of acquittal at the close of the evidence.)

“When a jury, which was fully charged on entrapment, rejects the

defendant’s entrapment defense, the applicable standard of review is the same

as that which applies to sufficiency of the evidence.” United States v. Rodriguez,

43 F.3d 117, 126 (5th Cir. 1995). We must accept every fact in the light most

favorable to the jury’s guilty verdict, and we may reverse only if no rational juror

could have found, beyond a reasonable doubt, either: (1) a lack of Government

inducement; or (2) predisposition to commit the offense charged. E.g., United

States v. Reyes, 239 F.3d 722, 739 (5th Cir. 2001).

Ample evidence permitted a rational juror to conclude that Shah was a

willing participantin the training sessions, and,thus,that he was not entrapped

into possessing a firearm. A defendant’s ready and willing participation in

Government solicited criminal activity is sufficient to prove predisposition. Id.

Shah’s attemptto characterize his purported entrapment as falling within

the “Bueno” defense is unavailing. “The principle of Bueno was rejected and the

case effectively overruled by the Supreme Court in Hampton v. United States,
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425 U.S. 484 [] (1976).” United States v. Hill, 626 F.2d 1301, 1306 (5th Cir.

1980); see United States v. Bueno, 447 F.2d 903 (5th Cir. 1971). 

Shah’s contention that he was not “positionally predisposed” to possess a

firearm is, likewise, without merit. Even assuming, arguendo, that this court

would recognize the positional-predisposition concept, Shah has not established

that no rational juror could have found that he could not have possessed a

firearm without the Government’s inducement. See United States v. Ogle, 328

F.3d 182, 188-89 (5th Cir. 2003); see also United States v. Hollingsworth, 27 F.3d

1196, 1200-03 (7th Cir. 1994) (because the defendants had “no prayer of

becoming money launderers without the government’s aid”, they were not

positionally predisposed to commit the offense). 

Finally, Shah contends that his 78-month sentence should be vacated

because the record fails to demonstrate thatthe district court was aware it could

go below “the floor of the guidelines level in sentencing” him. Shah posits that,

because he was sentenced prior to the decisions in Gall v. United States, 128 S.

Ct. 586 (2007), and Kimbrough v. United States, 128 S. Ct. 558 (2007), the

district court was unaware it had the discretion to sentence him below the

sentencing range set forth under the advisory guidelines. Shah never apprised

the district court of a constitutional claim regarding the court’s procedure in

assessing his sentence. Accordingly, this issue is reviewed only for plain error.

See United States v. Arnold, 416 F.3d 349, 355 (5th Cir. 2005). His contention

fails on the second prong of plain-error review: he fails to show a clear or

obvious error.

In Gall and Kimbrough, “the Supreme Court . . . more explicitly set forth

the permissible considerations in imposing a sentence, whether within or

without an applicable Guidelines range”. United States v. Williams, 517 F.3d

801, 809 (5th Cir. 2008). Even prior to the decisions in Gall and Kimbrough, the

Supreme Court had already recognized that a district court could impose a

sentence that varied from the advisory guideline range based solely on policy
No. 07-20712

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considerations, including disagreements with the Guidelines. See Williams, 517

F.3d at 809 (referencing Rita v. United States, 127 S. Ct. 2456 (2007)); see also

United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008) (noting

that, in Kimbrough, “the Court reiterated what it had conveyed in Rita”).

Because Rita was decided before Shah was sentenced, Shah’s contention that the

subsequent decisions in Gall and Kimbrough would have changed the district

court’s sentencing perspective is without merit. Moreover, there is no indication

in the record thatthe district court believed the advisory guidelines range should

presumptively apply. See United States v. Cisneros-Gutierrez, 517 F.3d 751, 766

(5th Cir. 2008). As stated, Shah has not demonstrated clear or obvious error in

the district court’s imposition of his sentence. See Arnold, 416 F.3d at 355.

AFFIRMED.