United States of America v. HAZIZ SELF a/k/a HAZEK HAZIZ SELF

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.

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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

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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 co-
defendants. 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.

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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 co-
defendants 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

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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.

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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.

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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.

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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.

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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

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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 co-
defendants. 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.”).

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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

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“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

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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

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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.

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1. “Mitigating Role” Adjustment
Haziz portrays himself to us as a loyal—albeit hard-
luck—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

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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

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(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.

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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.

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IV. Conclusion
For the foregoing reasons, we will affirm the
convictions but will vacate the sentence and remand for
resentencing.

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