United States of America v. SCHMALSTIG, BRUCE LEWIS ABDUL MU'MIN IS'HA Abdul Mu'Min Is'Haq, formerly known as…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 01-3649
___________
UNITED STATES OF AMERICA
v.
SCHMALSTIG, BRUCE LEWIS
ABDUL MU'MIN IS'HA
Abdul Mu'Min Is'Haq,
formerly known as Bruce L. Schmalstig,
Appellant
_______________________________________________
On Appeal from the United States District Court
for the District of New Jersey
D.C. Criminal No. 93-cr-00321-2
(Honorable William G. Bassler)
___________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 4, 2002
Before: SCIRICA, BARRY and WEIS, Circuit Judges
(Filed July 30, 2002)
__________________
OPINION OF THE COURT
__________________
SCIRICA, Circuit Judge.

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1Is'Haq contends counsel advised him that his exposure, if convicted on all counts, would
be forty-five years, with a fifteen-year ineligibility period for good-time credits.
2
This is a sentencing appeal. Abdul Mu'Min Is'Haq, formerly known as Bruce
Schmalstig, contends the District Court committed several sentencing errors following his
entry of a guilty plea. We will affirm.
I.
On September 14, 1993, Abdul Mu'Min Is'Haq was charged in a ten-count
indictment with three bank robberies (violating 18 U.S.C. §§ 371, 2113(a) and (d)) and
three firearm offenses (violating 18 U.S.C. § 924(c)). Court-appointed counsel, who
allegedly misinformed Is'Haq of his potential length of incarceration,1 advised Is'Haq to
plead guilty. Nevertheless, Is'Haq refused a plea offer for a total of twenty-five years'
imprisonment. After a jury convicted Is'Haq on all counts, the District Court sentenced
him to almost sixty-seven years' imprisonment and three years of supervised release, and
ordered him to pay $23,328.12 in restitution. We affirmed these convictions in October
1995.
In 1997 Is'Haq brought a 28 U.S.C. § 2255 claim for post-conviction relief. After
an evidentiary hearing, the District Court concluded Is'Haq received ineffective assistance
of counsel during his plea negotiations. The District Court requested and received an
updated pre-sentence report. Is'Haq filed written objections to the PSR, claiming he
deserved a two-point reduction for acceptance of responsibility and that enhancement for
obstruction of justice was not warranted. Is'Haq also contended the restitution order was

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3
improper "double counting," because a co-defendant had been ordered to pay the same
amount (representing the total loss to the banks). After another hearing, the District Court
re-sentenced Is'Haq to twenty-five years' imprisonment, as if he had accepted the
government's 1994 plea offer. The Court rejected Is'Haq's two adjustment arguments and
affirmed the restitution order. This appeal followed.
II.
The District Court had jurisdiction under 18 U.S.C. § 3231 and 28 U.S.C. § 2255.
We have jurisdiction under 28 U.S.C. § 1291.
III.
Is'Haq contends the District Court wrongly denied his request for a two-point
reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. We review a district
court's "factual determination with respect to acceptance of responsibility" for clear error.
United States v. Muhammad, 146 F.3d 161, 167 (3d Cir. 1998). Is'Haq argues his re-
sentence should have placed him in the "position he would have occupied" if prior counsel
had provided effective assistance. From that position, Is'Haq suggests he would have
accepted the 1994 plea offer, "accepting responsibility" for purposes of § 3E1.1.
We disagree. The District Court determined Is'Haq's 1994 refusal to plead guilty
(his "roll" of "the dice") resulted in a lengthy trial, during which he falsely testified about
the robberies and lied to his trial counsel. Those determinations, which pertain directly to
Is'Haq's acceptance of responsibility, are entitled to "great deference," because the
sentencing judge "is in a unique position to evaluate a defendant's acceptance of

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2Nor do we believe the District Court "punished" Is'Haq for "steadfastly denying" the
weapon he used was a "handgun," the possession of which violated 18 U.S.C. § 924(c).
Is'Haq insists he used a pellet gun. But that testimony can be reconciled neither with
Is'Haq's willingness to plead guilty to 18 U.S.C. § 924 nor with the testimony of a robbery
victim, who stated, based on military experience, that Is'Haq's weapon was a handgun. The
District Court held, "I don't believe for a minute that that was a pellet gun . . . ." Given the
discretion accorded the sentencing judge on factual matters, we believe Is'Haq's failure to
"accept responsibility" for the weapon used during the robberies justified the denial of a
departure under U.S.S.G. § 3C1.1.
4
responsibility." U.S.S.G. § 3E1.1 app. n.5. Additionally, the District Court determined
Is'Haq had "obstructed justice," justifying an enhancement under U.S.S.G. § 3C1.1.
"Conduct resulting in an enhancement under U.S.S.G. § 3C1.1 ordinarily indicates that the
defendant has not accepted responsibility for his criminal conduct." U.S.S.G. § 3E1.1 app.
n.4. Is'Haq did not demonstrate his was an "extraordinary" case falling outside this
presumption.2 We see no error.
IV.
Is'Haq next argues the District Court incorrectly held the 1994 offer required him to
plead guilty to 18 U.S.C. § 2113(d) (endangering other persons with a dangerous weapon
during a bank robbery). We review for clear error. United States v. Boone, 279 F.3d 163,
177 n.9 (3d Cir. 2002). The District Court determined the plea offer was for "three bank
robberies and one weapons charge." As noted, the government offered to cap Is'Haq's
sentence at twenty-five years. Is'Haq suggests the "logical plain-sense understanding" of the
plea is that "three bank robberies" referred to charges under 18 U.S.C. § 2113(a), the
statutory maximum of which would be twenty years. Therefore, when added to the five-year

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3Under § 4B1.1, the "career offender provision," a conviction under 18 U.S.C. § 2113(a)
carries a statutory maximum of twenty years, with a corresponding career offense level of
32. A conviction under 18 U.S.C. § 2113(d) carries a statutory maximum of twenty-five
years, with a corresponding career offense level of 34.
5
consecutive sentence for a 18 U.S.C. § 924(c) charge, the plea offer would total twenty-
five years. But in its September 2001 opinion, the District Court found the plea agreement
encompassed all six robbery counts, which ultimately enhanced Is'Haq's total offense level
under U.S.S.G. § 4B1.1.3
Is'Haq did not demonstrate the government had offered (or would offer) to dismiss
the § 2113(d) counts. When asked about his understanding of the agreement, Is'Haq
testified he only thought if he "pled guilty [the government] would drop the two gun
charges." Moreover, the Assistant United States Attorney testified the government's plea
offer would have required Is'Haq to plead guilty to § 2113(d). The government and defense
counsel apparently referred to counts under §§ 2113(a) and (d) as "the three bank
robberies." The District Court found the reference to a twenty-year maximum sentence was
"not probative of whether the plea agreement would encompass a guilty plea to the §
2113(d) charges." That conclusion is supported by the record. We see no error.

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V.
Is'Haq contends the District Court should not have granted a two-point enhancement
under U.S.S.G. § 3C1.1. We review the factual determination that Is'Haq obstructed justice
for clear error. United States v. Powell, 113 F.3d 464, 467 (3d Cir. 1997). We exercise
plenary review over the District Court's legal interpretation of the sentencing guidelines.
Id.
Is'Haq concedes he committed perjury during his trial. But he suggests enhancing
his sentence by two levels was improper, because with proper legal representation, he
would never have had a trial – or an opportunity to "obstruct justice." Is'Haq contends the
sentencing court did not "return" him to his pre-trial "position" and that any "obstruction"
was directly related to ineffective assistance.
We disagree. Application note 4 to § 3C1.1 identifies "committing, suborning, or
attempting to suborn perjury" as justifications for the enhancement. Is'Haq admitted he
committed perjury during trial and induced his father to testify falsely, hoping to establish
an alibi. At the post-conviction hearing Is'Haq testified his attorney advised him not to take
the stand, so his "obstructions" did not result from counsel's advice. Sentencing courts
responding to claims of denial of effective counsel "have considerable discretion in
fashioning a remedy appropriate under the circumstances." United States v. Day, 969 F.2d
39, 47 (3d Cir. 1992). Under the facts of this case, a two-level enhancement under § 3C1.1
was justified. See United States v. Bethancourt, 65 F.3d 1074, 1081 (3d Cir. 1995).
Moreover, Is'Haq's adjusted offense level, including the enhancement, was 34, the same it

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would be under the career offender provision (U.S.S.G. § 4B1.1(B)), for which Is'Haq
qualified. We see no error.
VI.
Finally, Is'Haq contends the District Court did not adequately address his ability to
satisfy the restitution order. Given Is'Haq's failure to object during the § 2255 hearing, we
review for plain error. United States v. Diaz, 245 F.3d 294, 312 (3d Cir. 2001). During the
post-conviction hearing, Is'Haq's current counsel represented, "[Is'Haq] does not quibble
with the $23,000. He just thinks it ought to be equally apportioned. But he understands
that it is money he has stolen . . . and that therefore he is responsible for that and willing to
pay that." When asked for clarification, counsel said Is'Haq hoped to ensure his obligations
were "joint and several" with his co-defendant, Edward Lugo. The District Court then
entered the order on liability that Is'Haq requested, finding Is'Haq and Lugo "jointly and
severally" liable for restitution in the amount of $23,328.12.
Defense counsel did not object to Is'Haq's paying restitution under the Inmate
Financial Responsibility Program (IFRP). Is'Haq simply asked the District Court to
suspend his obligation to pay while he was incarcerated, and direct him to pay the entire
amount on supervised release. Thereafter, the District Court adopted the PSR's finding that
Is'Haq was capable of paying the restitution amount. See United States v. Gibbs, 190 F.3d
188, 207 n.10 (3d Cir. 1999) (holding an unchallenged conclusion in a PSR is "of course, a
proper basis for sentence determination") (quotations and citations omitted); see also
United States v. Cannistraro, 871 F.2d 1210, 1214 (3d Cir. 1989) ("By failing to contest

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4The VWPA was supplemented in 1996 by the Victims Restitution Act of 1996, 18
U.S.C. §§ 3663A and 3664, which orders restitution regardless of the defendant's ability to
pay. But Is'Haq's crime was committed in 1993, so the VWPA provides the relevant
standards. See United States v. Edwards, 162 F.3d 87, 89 (3d Cir. 1998) (considering
whether restitution was tailored "to a defendant's potential assets or earning capacity").
8
the underlying factors used by the district court imposing the order of restitution,
[defendant] has waived his right to contest this order.").
The restitution order complied with the requirements of the Victim and Witness
Protection Act (VWPA), 18 U.S.C. § 3663.4 The District Court chose not to impose a fine
and waived the interest requirement on the restitution sum. Based on Is'Haq's
representations – along with his good health and vocational skills – the District Court found
Is'Haq could satisfy the restitution order. The District Court met its obligations under
VWPA. See United States v. Kendis, 883 F.2d 209, 210 (3d Cir. 1989) (specific findings
relating to a defendant's ability to pay restitution "not required when there is no dispute
regarding a defendant's ability to make restitution") (quotations and citations omitted). We
see no error.
VII.
For the foregoing reasons we will affirm the sentence imposed by the District
Court.

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TO THE CLERK:
Please file the foregoing opinion.
/s/Anthony J. Scirica
Circuit Judge

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