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United States v. Basim Hamad, 11-4821 (2012)

Court: Court of Appeals for the Fourth Circuit Number: 11-4821 Visitors: 25
Filed: Jun. 08, 2012
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4821 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BASIM ALBERT HAMAD, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever, III, Chief District Judge. (5:10-cr-00121-D-1) Submitted: May 31, 2012 Decided: June 8, 2012 Before MOTZ, KING, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas P. McNamara, Federal P
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                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4821


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

BASIM ALBERT HAMAD,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   James C. Dever, III,
Chief District Judge. (5:10-cr-00121-D-1)


Submitted:   May 31, 2012                     Decided:   June 8, 2012


Before MOTZ, KING, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Eric J. Brignac, Research and
Writing Specialist, Raleigh, North Carolina, for Appellant.
Thomas G. Walker, United States Attorney, Jennifer P. May-
Parker, Kristine L. Fritz, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Basim Albert Hamad appeals his sentence of 210 months

of imprisonment following his guilty plea to one count of armed

bank robbery, in violation of 18 U.S.C. § 2113(a), (d) (2006),

and one count of being a convicted felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g)(1) (2006).                         Hamad

contends    that     the   district    court      erred    during   sentencing    in

relying on an unsworn proffer and its own recollections from

related proceedings to find that an employee of the credit union

robbed by Hamad and his coconspirators was not a party to the

crime.     We affirm.

             Generally, a district court must find facts relevant

to sentencing by a preponderance of the evidence, and we review

such findings for clear error.                  See United States v. Alvarado

Perez, 
609 F.3d 609
, 612, 614 (4th Cir. 2010); United States v.

Grubbs, 
585 F.3d 793
, 803 (4th Cir. 2009).                     When, as here, a

defendant fails to object to factual findings in his presentence

report (“PSR”), the district court may consider the evidentiary

burden satisfied and rely on those findings in sentencing the

defendant without further inquiry.                See United States v. Revels,

455 F.3d 448
, 451 n.2 (4th Cir. 2006).

             Here,      Hamad’s       PSR       reported     law    enforcement’s

conclusion     that     the   credit    union      employee    in   question     was

abducted by Hamad and did not willingly aid in the robbery.

                                            2
Hamad’s counsel did not object to the PSR.                                   Accordingly, we find

the    PSR    alone       sufficient             to       support       the     district       court’s

conclusion         that        the        employee         was      a        victim    and     not     a

coconspirator.             The       evidence         cited       by    Hamad     at     sentencing,

including the employee’s failed polygraph exam and her initial

omission      of    a     significant            detail        of      the    robbery,       does    not

invalidate this conclusion.

              We also find no error in the district court’s reliance

on its familiarity with the crime from the prior sentencings of

Hamad’s      coconspirators,               or    its      consideration          of     the    unsworn

statement of a government agent present at Hamad’s sentencing,

made in response to an inquiry from the court.                                        Because Hamad

did not object, our review is for plain error.                                   United States v.

Olano, 
507 U.S. 725
, 732 (1993).

              A district court is largely unencumbered with respect

to    the    sources      of     information              it     may    consider        when    making

factual      determinations           at        sentencing.             See     United    States      v.

Nichols,      
438 F.3d 437
,       439-40         (4th     Cir.       2006).         We    have

consistently approved a sentencing court’s reliance on unsworn

and out of court statements so long as such statements exhibit

an    adequate      indicia          of    reliability.                 See    United     States      v.

Powell, 
650 F.3d 388
, 392 (4th Cir. 2011); 
Nichols, 438 F.3d at 440
.    Considering this lenient evidentiary standard and the fact

that Hamad is unable to point to inaccuracy or unfair surprise,

                                                      3
we   are   unable   to   find    plain   error.     See   United   States   v.

Morales, 
994 F.2d 386
, 389-90 (7th Cir. 1993); United States v.

Notrangelo, 
909 F.2d 363
, 364-66 (9th Cir. 1990).

            Accordingly,        we   affirm   the   judgment   below.       We

dispense    with    oral   argument      because    the   facts    and   legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                                     AFFIRMED




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Source:  CourtListener

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