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-
6

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.