Filed: Jun. 21, 2012
Latest Update: Mar. 26, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4164 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MOHAMAD YOUSSEF HAMMOUD, a/k/a Ali Abousaleh, a/k/a Ali Albousaleh, Defendant – Appellant. No. 11-4346 UNITED STATES OF AMERICA, Plaintiff - Appellant, v. MOHAMAD YOUSSEF HAMMOUD, a/k/a Ali Abousaleh, a/k/a Ali Albousaleh, Defendant – Appellee. Appeals from the United States District Court for the Western District of North Carolina, at Charlotte. Graham C. Mullen, Seni
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4164 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MOHAMAD YOUSSEF HAMMOUD, a/k/a Ali Abousaleh, a/k/a Ali Albousaleh, Defendant – Appellant. No. 11-4346 UNITED STATES OF AMERICA, Plaintiff - Appellant, v. MOHAMAD YOUSSEF HAMMOUD, a/k/a Ali Abousaleh, a/k/a Ali Albousaleh, Defendant – Appellee. Appeals from the United States District Court for the Western District of North Carolina, at Charlotte. Graham C. Mullen, Senio..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4164
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MOHAMAD YOUSSEF HAMMOUD, a/k/a Ali Abousaleh, a/k/a Ali
Albousaleh,
Defendant – Appellant.
No. 11-4346
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v.
MOHAMAD YOUSSEF HAMMOUD, a/k/a Ali Abousaleh, a/k/a Ali
Albousaleh,
Defendant – Appellee.
Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen,
Senior District Judge. (3:00-cr-00147-GCM-DSC-1)
Argued: May 15, 2012 Decided: June 21, 2012
Before DAVIS and KEENAN, Circuit Judges, and JAMES R. SPENCER,
United States District Judge for the Eastern District of
Virginia, sitting by designation.
Affirmed by unpublished opinion. Judge Davis wrote the opinion,
in which Judge Keenan and Judge Spencer joined.
ARGUED: Stanley L. Cohen, STANLEY COHEN & ASSOCIATES, LLC, New
York, New York; James Patrick McLoughlin, Jr., MOORE & VAN
ALLEN, PLLC, Charlotte, North Carolina, for Appellant/Cross-
Appellee. David Alan Brown, Sr., OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee/Cross-
Appellant. ON BRIEF: Christopher D. Tommlinson, MOORE & VAN
ALLEN, PLLC, Charlotte, North Carolina, for Appellant/Cross-
Appellee. Anne M. Tompkins, United States Attorney, Craig D.
Randall, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee/Cross-
Appellant.
Unpublished opinions are not binding precedent in this circuit.
2
DAVIS, Circuit Judge:
Mohamad Youssef Hammoud (“Hammoud”) was convicted of
fourteen offenses following a jury trial. 1 He was sentenced under
the then-mandatory Sentencing Guidelines to 155 years’
imprisonment. After we affirmed the convictions and sentence,
see United States v. Hammoud, 381 F.3d 316 (4th Cir. 2004) (en
banc), the Supreme Court vacated and remanded in light of United
States v. Booker,
543 U.S. 220 (2005), see Hammoud v. United
States,
543 U.S. 1097 (2005). On remand, we reinstated the
portions of our prior opinion resolving Hammoud’s challenges to
his convictions and the calculation of the guidelines range and
remanded for resentencing. See United States v. Hammoud,
405
F.3d 1034 (4th Cir. 2005). The district court conducted a
1
Hammoud was convicted of the following offenses: marriage
to evade a provision of the immigration laws (Count 1); false
statements to Immigration and Naturalization Services (Count 2);
conspiracy to ship, transport, receive, possess, sell,
distribute and purchase contraband cigarettes (Count 35);
conspiracy to commit money laundering (Count 36); ship,
transport, receive, possess, sell and distribute contraband
cigarettes and evade state taxes, and aiding and abetting the
same (Counts 37 and 41); money laundering (Counts 43 and 49);
conspiracy to use one or more counterfeit access devices and to
use of one or more unauthorized access devices (Count 53);
unlawful use of counterfeit access devices, and aiding and
abetting the same (Count 54); use of unauthorized access
devices, and aiding and abetting the same (Count 55);
racketeering (Count 71); conspiracy to provide material support
or resources to a designated foreign terrorist organization
(“DFTO”) (Count 72); and providing or attempting to provide
material support or resources to a DFTO (Count 78).
3
resentencing hearing and granted a variance sentence of 30
years’ imprisonment. Both parties appeal, challenging among
other things the reasonableness of the sentence imposed. We
affirm.
I.
In Hammoud’s earlier appeal, we laid out the “largely
undisputed” facts underlying this prosecution, which are
unnecessary to repeat in any detail here. See Hammoud, 381 F.3d
at 325-27. In that opinion, we rejected, inter alia, Hammoud’s
challenges to his convictions for providing, and conspiring to
provide, material support to a DFTO and to the district court’s
application of U.S.S.G. § 3A1.4, the terrorism enhancement. We
rejected Hammoud’s contention that the preponderance standard
should not apply to the application of § 3A1.4 because it “is ‘a
tail which wags the dog of the substantive offense.’” Id. at
354-55 (quoting McMillan v. Pennsylvania, 477 U.S. 79, 88
(1986)).
We also rejected his contentions that the district court
should have applied U.S.S.G. § 2M5.3, the guideline applicable
to violations of 18 U.S.C. § 2339B, and should not have applied
§ 3A1.4. Id. at 355-56. We stated, “Even assuming that the
district court should have applied § 2M5.3, there was no error.”
Id. at 355 (footnote omitted). We held that “a defendant who has
4
been convicted of providing material support to [a DFTO] may be
subject to the enhancement if the evidence establishes that he
provided such support with the intent to influence or coerce
government conduct,” that the application of § 3A1.4 did not
result in impermissible “double counting,” and that the evidence
presented at trial was sufficient to support application of the
enhancement. Id. at 355-56. We affirmed the judgment of the
district court in its entirety. Id. at 357.
Hammoud’s base offense level was 46 (treated as 43, see
U.S.S.G. Ch.5, Pt.A, cmt. n.2) and his criminal history category
(“CHC”) was VI. Id. at 327. “Because none of the offenses of
conviction carried a statutory maximum of life imprisonment,”
for which the guidelines provided, “the district court imposed
the maximum sentence on each count and ordered all sentences to
be served consecutively.” Id. (citing U.S.S.G. § 5G1.2(d)). We
thus consider 155 years’ imprisonment to be Hammoud’s “advisory
Guidelines range” for purposes of considering the extent of the
variance. See United States v. Sarras, 575 F.3d 1191, 1208-09,
1219 (11th Cir. 2009) (“Because the statutory maximum was less
than the total guidelines punishment of life imprisonment, §
5G1.2(d) of the guidelines called for the sentences for multiple
counts to run consecutively as the advisory guidelines
sentence.”) (emphasis added).
5
After the Supreme Court vacated our decision and remanded
for reconsideration in light of Booker, we reinstated the
portions of our opinion resolving Hammoud’s objections to his
convictions and the calculation of his guidelines range,
including the portion rejecting Hammoud’s challenge to the
terrorism enhancement. See Hammoud, 405 F.3d 1034. We remanded
for resentencing under the advisory guidelines regime.
On remand, the district court declined to revisit its
calculation of the guidelines or to consider any potential
departures; instead, it limited resentencing to consideration of
a potential variance under 18 U.S.C. § 3553(a). During
resentencing, Hammoud introduced new evidence he urges that
discredits the trial evidence on which the district court had
relied when it imposed the original sentence, see Hammoud’s Br.
15, including testimony from Robert Baer, a Hizballah expert and
former CIA agent; Theresa Finocchio, a former business partner
who also had a personal relationship with a witness who
testified against Hammoud at trial; Lara Deeb, Ph.D., a
professor who submitted a sworn statement introduced at the
resentencing hearing with respect to Sayyid Fadlallah; and
Sheikh Abbas Harake, an operational commander for Hizballah who
submitted an affidavit introduced at the resentencing hearing.
Hammoud also submitted a “compilation of approximately 168 cases
involving material support of a DFTO, financial material
6
support, and virtually every other terrorism related case the
Defense could find, including every reported U.S.S.G. §3A1.4
case.” Id. at 27 (citing J.A. 5675-5778).
In response to the district court’s request to provide
evidence to refute Harake’s affidavit, the Government presented
evidence from FBI Special Agent David Yu, who testified under
restriction that “Israeli Intelligence confirms that according
to a reliable source Harake Abbas is a Hezbollah operational
commander.” J.A. 4758. Hammoud was given an opportunity to
cross-examine the agent, but the district court did not require
the agent to reveal “sources and methods” by which the
information was provided. J.A. 4761, 4765. The Government
thereafter submitted an affidavit from another FBI Special Agent
confirming the same.
At the continued resentencing hearing, the district court
heard from counsel as to what they believed to be an appropriate
sentence and gave Hammoud a chance to allocute. The district
court then imposed sentence. The district court explained that
it was bound by the guidelines calculation, that it would
consider the § 3553(a) factors as applied to Hammoud and that it
would justify the chosen sentence to allow for meaningful
appellate review. The district court then recited the facts it
deemed most relevant to its decision, carefully examined the §
7
3553(a) factors and imposed a sentence of 30 years’
imprisonment.
II.
On appeal, Hammoud challenges the district court’s
application of the mandate rule, the admission of certain
evidence at resentencing, and, ultimately, the reasonableness of
the sentence imposed. 2 The Government cross-appeals, challenging
2
We reject, as wholly meritless, Hammoud’s request for
resentencing, made in his reply brief, “due to the Government’s
use of arguments from outside the record.” See Hammoud’s
Response & Reply Br. 30-31. Hammoud urges that “[t]he conduct of
the Government in this case with respect to allegations that
Hammoud attempted to assassinate a prosecutor or to destroy a
federal building in order to destroy evidence infects the
proceedings below with reversible error, and the Government has
tried to repeat the tactic with this Court.” Id. at 30. The
Government sought to supplement the Joint Appendix “to include
Government counsel’s explanation in the district court that it
was not the existence of [threats made by Hammoud] that was in
doubt, but rather, the credibility of the corroborating
witness,” given “the mis-impression left by [Hammoud’s]
statements in his opening brief concerning the Government’s
decision not to call a cooperating informant to corroborate the
evidence of the threats.” Government’s Reply Br. 10 (citing
Hammoud’s Br. 14, 44, 59). Furthermore, the district court
stated, before and during the resentencing hearing, that it
would not consider the evidence concerning the threats against
the prosecutor and to destroy a government building. See J.A.
5251-52 (“In considering this matter, I have already noted that
and would not consider that.”); id. at 5315 (noting that “the
government chose not to pursue the argument that [Hammoud]
threatened a prosecutor and threatened to destroy evidence,
based on the government’s lack of credible evidence,” and
stating that “such arguments put forth in briefing have not been
considered in this court’s final decision”).
8
the district court’s sentence as substantively unreasonable.
Upon our careful review of the entire record, we discern no
error; accordingly, we affirm the judgment of the district
court.
A.
Hammoud first argues that the mandate rule was misapplied
and that this case falls within each of the exceptions to the
mandate rule. Applying de novo review, we easily reject this
contention. See Doe v. Chao, 511 F.3d 461, 464 (4th Cir. 2007)
(“We review de novo whether a post-mandate judgment of the
district court ‘contravenes the mandate rule, or whether the
mandate has been “scrupulously and fully carried out.”’”).
Generally, a lower court is “bound to carry the mandate of
the upper court into execution and may not consider the
questions which the mandate laid at rest.” United States v.
Bell, 5 F.3d 64, 66 (4th Cir. 1993) (internal quotation marks
and brackets omitted). The mandate rule “compels compliance on
remand with the dictates of a superior court and forecloses
relitigation of issues expressly or impliedly decided by the
appellate court” and “litigation of issues decided by the
district court but foregone on appeal or otherwise waived.” Id. 3
3
“[T]o the extent that the mandate of the appellate court
instructs or permits reconsideration of sentencing issues on
remand, the district court may consider the issue de novo,
(Continued)
9
The mandate rule does not apply where (1) there has been a
“showing that controlling legal authority has changed
dramatically”; (2) “significant new evidence, not earlier
obtainable in the exercise of due diligence has come to light”;
or (3) “a blatant error in the prior decision will, if
uncorrected, result in a serious injustice.” Id. at 67 (internal
quotation marks and brackets omitted).
It is clear that when we reinstated the portions of our
prior opinion resolving the calculation of Hammoud’s guidelines
range, most notably rejecting Hammoud’s attacks on the standard
of proof with respect to and application of the terrorism
enhancement, we effectively limited resentencing to
consideration of a variance sentence. See Hammoud, 405 F.3d
1034. Furthermore, none of the exceptions to the mandate rule
apply here.
The Supreme Court decisions cited by Hammoud have not
changed the law regarding the computation of his (now advisory)
guidelines range. Nor, as Hammoud argues, was it impossible for
the district court to address freshly the variance issue given
the change in the law. In other words, the district court could
be bound by our affirmance of the guidelines calculation and
entertaining ‘any relevant evidence on that issue that it could
have heard at the first hearing.’” Bell, 5 F.3d at 67.
10
adequately exercise its discretion to vary downward, if it
thought a variance was warranted, in considering the newly
presented evidence and the arguments of the parties.
Hammoud has likewise failed to demonstrate how the evidence
he introduced at resentencing was originally unavailable in the
exercise of due diligence. We find unavailing, as clarified at
oral argument, that the historical context made certain evidence
that “attacks directly the First PSR’s conclusions,” Hammoud’s
Br. 52, unavailable because it left counsel unable to find an
expert who would testify in favor of Hammoud on the material
support issue. Similarly, we find unavailing Hammoud’s argument
that impeachment evidence relevant to two witnesses who
testified against Hammoud was unavailable because the district
court cut off cross-examination as to one such witness and
because there was no way to know that the other witness told a
witness who testified at resentencing that he was lying.
Finally, we are unpersuaded that, in light of this, the district
court abused its discretion in continuing to rely on
“unattributed statements by prosecutors and law enforcement
agents” in the “First PSR without attribution of sources or
verification permitting a court to evaluate their reliability,”
id.; in no way does this place Hammoud’s case within the
exception to the mandate rule.
11
Finally, we are not convinced that a “blatant error” in our
prior decision will result in a serious injustice. In short, the
district court did not err in adhering to the mandate and
limiting resentencing to consideration of a variance sentence. 4
B.
Hammoud next contends that the district court abused its
discretion by admitting the testimony of Matthew Levitt, the
Government’s trial expert, and Special Agent Yu for
4
We reject Hammoud’s requests, scattered throughout his
brief, to chastise the district court for failing to recalculate
the guidelines sentence and relitigate issues laid to rest by
our prior decision. See, e.g., Hammoud’s Br. 53-54 (“The
critical determination--that Hammoud acted with the intent
required by U.S.S.G. §3A1.4--is not supported by the
evidence.”); id. at 60 (“Hammoud renews his argument that on
these facts and in these circumstances, given the impact of
§3A1.4 on the Guideline sentence, it is a violation of his
Sixth, Fifth, and Fourteenth Amendment rights to make findings
of fact in his sentencing by a preponderance of the evidence.”);
id. at 60-61 (“The district court abused its discretion in
finding Hammoud’s criminal history should be a category VI under
U.S.S.G. §3A1.4.”). The district court properly first, following
our instructions, restated Hammoud’s CHC and offense level and
then considered whether a variance sentence was appropriate. The
district court explicitly recognized its discretion to impose a
variance sentence under § 3553(a) if it believed § 3A1.4
overrepresented the seriousness of Hammoud’s past criminal
conduct or likelihood that he would commit other crimes, but
found that, based on the evidence it credited, the resulting
criminal history level and enhancement should not change at the
guidelines calculation stage. See J.A. 5312-13 (“The defendant’s
terrorism enhancement and resulting criminal history level will
not change and should not be changed based on the evidence of
his involvement with Hezbollah, his relative youth and thus time
and ability to become a recidivist, and the fact that he never
accepted responsibility and obstructed justice by testifying
falsely at trial.”).
12
resentencing. Specifically, he argues that the district court
erred in considering Levitt’s trial testimony during
resentencing because new evidence undermined the accuracy of his
testimony, and that the “failure to disclose material
information about [his] bias and lack of expertise even if
inadvertent[] is a second independent ground for exclusion.”
Hammoud’s Br. 62. He also argues that admitting the testimony
with the restriction of cross-examination of Levitt, and Yu
regarding Harake, consisting of hearsay, “without disclosing
sources,” violated the Confrontation Clause and due process. 5 Id.
at 62-63.
Having reviewed the briefs, the record and the applicable
law, we reject Hammoud’s arguments. See United States v. Brooks,
524 F.3d 549, 564 (4th Cir. 2008) (reviewing decision to admit
evidence for sentencing purposes for an abuse of discretion).
The district court was within its discretion to rely on Levitt’s
5
In his reply brief, Hammoud argues that the district court
erred by permitting the Government to introduce
“unsubstantiated,” “inflammatory” and “prejudicial” evidence
“pulled down from the internet,” Hammoud’s Response & Reply Br.
26-27, consisting of attachments to the Government’s Response to
Defendant’s Request for a Variance Sentence. Hammoud takes issue
with the district court’s failure to make a ruling “about an
applicable hearsay or other evidentiary exception” and to make a
finding “that the evidence was reliable.” Id. at 27. Even if not
waived, we reject this argument. We are confident that the
district court did not abuse its discretion; the attachments
were sufficiently reliable to justify the district court's
consideration of them.
13
testimony; we do not believe the new evidence or Levitt’s
alleged bias or lack of expertise has so undermined his trial
testimony as to make it unreliable on due process grounds or
under the guidelines. Furthermore, admitting this testimony
despite restricting cross-examination neither violated the
Confrontation Clause, see United States v. Powell, 650 F.3d 388,
393-94 (4th Cir. 2011) (holding that the “Confrontation Clause
does not apply at sentencing” and affirming district court’s
reliance on hearsay evidence found within presentence report to
support imposition of enhanced sentence), nor due process, see
id. at 394 (holding that hearsay evidence admitted without
cross-examination can be reliable enough for use at sentencing).
In sum, we are confident that the disputed evidence was reliable
and that the district court did not abuse its discretion in
considering it during resentencing.
C.
Finally, we consider and reject the parties’ arguments
challenging the reasonableness of the sentence. See United
States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010)
(“[A]ppellate courts examine sentencing determinations under an
14
abuse-of-discretion standard, which translates to review for
‘reasonableness.’”). 6
Hammoud raises three primary challenges to his sentence.
He attacks the 30 year sentence as unreasonable because it is
disproportionately high by comparison to any comparable § 2339B
or terrorism cases, to the statutory penalty for material
support and to the policies underlying U.S.S.G. §§ 2M5.3 and
3A1.4, and because it is constitutionally disproportionate. He
also contends that consideration of the factors in § 3553(a)(1)
through (a)(4) establishes that the 30 year sentence is an abuse
of discretion, particularly because the nature and circumstances
of the offense do not justify a 30 year sentence and the
“alleged Hezbollah connection” is not a ground upon which to
impose a 30 year sentence. Hammoud’s Br. 57. Finally, Hammoud
contends that the district court erred by finding that his
criminal history category was VI under § 3A1.4, pointing to §
3553(a)(1).
The Government cross-appeals and argues that the district
court abused its discretion “by granting a major downward
variance without providing a legitimate and ‘sufficiently
6
We are mindful that when considering the reasonableness of
a sentence, a district court’s legal conclusions are reviewed de
novo and its factual findings are reviewed for clear error.
United States v. Abu Ali, 528 F.3d 210, 261 (4th Cir. 2008).
15
compelling’ justification for doing so.” Government’s Br. 27.
Specifically, the Government argues that the district court
arbitrarily imposed a sentence without giving meaningful
consideration to § 3553(a), that the district court erred in its
application of § 3553(a)(6) by relying on a comparison of
defendants not similarly situated, and that none of the
“purported” variance justifications “are sufficiently compelling
to overcome the court’s misapplication of § 3553(a)(6).” Id. at
28.
We understand these challenges primarily to sound in
substantive reasonableness because they attack the length of the
sentence under the § 3553(a) factors rather than the methods
used in reaching the sentence. In any event, the district court
clearly did not procedurally err. The district court followed
the sentencing methodology we have previously laid out. The
district court used the guidelines calculation we affirmed as a
starting point, gave the parties an opportunity to argue for
what they believed was an appropriate sentence, carefully and
thoughtfully considered the § 3553(a) factors, made an
individualized assessment based on the facts, and adequately
explained the sentence.
Having found no significant procedural error, we must
consider the substantive reasonableness of the sentence,
“examin[ing] the totality of the circumstances to see whether
16
the sentencing court abused its discretion in concluding that
the sentence it chose satisfied the standards set forth in §
3553(a).” Mendoza-Mendoza, 597 F.3d at 216. We “may consider the
extent of the deviation” from the guidelines range but “must
give due deference to the district court’s decision that the §
3553(a) factors, on a whole, justify the extent of the
variance.” United States v. Diosdado-Star, 630 F.3d 359, 366
(4th Cir. 2011) (quoting Gall v. United States,
552 U.S. 38, 51
(2007)). “Although the district court’s justification for the
sentence must support the degree of the variance, and a major
departure should be supported by a more significant
justification than a minor one, . . . a district court need not
justify a sentence outside the Guidelines range with a finding
of extraordinary circumstances.” Id. (internal quotation marks
and brackets omitted) (quoting United States v. Evans,
526 F.3d
155, 161 (4th Cir. 2008)); see also Abu Ali, 528 F.3d at 261
(“As the Supreme Court observed in Gall, when determining
whether the district court’s proffered justification for
imposing a non-guidelines sentence ‘is sufficiently compelling
to support the degree of the variance,’ common sense dictates
that ‘a major departure should be supported by a more
significant justification than a minor one.’”).
Finding the parties’ arguments lacking in merit, we affirm
the district court’s variance sentence of 30 years’
17
imprisonment. While certainly substantial, the variance
incorporated into the district court’s sentence does not
constitute an abuse of discretion. The district court carefully
considered how the § 3553(a) factors applied to Hammoud (not
merely reciting the statutory language) and adequately explained
its decision, as evidenced by its nine-page sentencing
memorandum. Considering the totality of the circumstances, the
district court’s several justifications provided in its analysis
of § 3553(a) are sufficiently compelling to support the variance
in this case. 7
The district court carefully considered the § 3553(a)
factors in justifying its variance sentence. Under § 3553(a)(1),
7
We reject both parties’ contentions that the district
court erred by imposing an arbitrary sentence, as evidenced by
its “predetermination of the sentence,” Government’s Br. 27, and
its statement that it intended to rely on the statutory maximum
of only two counts of conviction. By drafting the sentencing
memorandum before the sentencing hearing, the district court
permissibly considered the parties’ briefing in advance of the
hearing and undertook to adequately prepare itself for a
difficult resentencing. Good judges routinely follow such a
practice. Moreover, the district court made clerical errors when
it issued the sentencing memorandum dated the day before the
last day of the hearing that we do not find fatal to an
otherwise thorough analysis. Furthermore, while we certainly do
not endorse any approach to the variance determination that
“substitut[es] statutory maximums” for an analysis of § 3553(a),
Hammoud’s Br. 55, the district court’s well-reasoned analysis
demonstrates that it did not use such a shortcut here. The
court’s statements instead reflect the court’s quite
understandable struggle to reach a sentence “sufficient, but not
greater than necessary,” to comply with the sentencing purposes,
see 18 U.S.C. § 3553(a), in a particularly challenging case.
18
the district court appropriately weighed in favor of Hammoud
that he had “no prior criminal convictions,” that “[t]he crimes
of which he was convicted were not crimes of violence or
conspiracies to commit violence” and that the “crimes had no
identifiable victim.” J.A. 5312. Indeed, the district court
recognized its discretion to depart or vary downward if it
believed § 3A1.4 “overrepresent[ed] the seriousness of
[Hammoud’s] past criminal conduct or the likelihood that
[Hammoud] will commit other crimes,” but the district court
found that the terrorism enhancement and resulting criminal
history level “will not change and should not be changed based
on the evidence of his involvement with Hezbollah, his relative
youth and thus time and ability to become a recidivist, and the
fact that he never accepted responsibility and obstructed
justice by testifying falsely at trial.” 8 J.A. 5312-13. In other
words, the district court, thoroughly familiar with Hammoud’s
8
We reject Hammoud’s argument that the district court erred
by ignoring Hammoud’s allocution. In making the above finding,
the district court was presumably referring to Hammoud’s
guidelines calculations--i.e., he received an adjustment for
obstruction of justice and did not receive an adjustment for
acceptance of responsibility. Furthermore, Hammoud has not
demonstrated that the district court abused its discretion by
“ignoring” Hammoud’s allocution here. See Hammoud’s Br. 32-33;
Hammoud’s Response & Reply Br. 20-21 (citing United States v.
Muhammad, 478 F.3d 247 (4th Cir. 2007), in which we recognized
plain error where defendant was not given the opportunity to
allocute at his resentencing hearing).
19
case, recognized its discretion but apparently (albeit
implicitly) considered and credited the trial evidence over the
sentencing evidence as it was entitled to do in reaching this
conclusion. 9
The district court also thoroughly considered other §
3553(a) factors: (1) “the need for the sentence imposed to
reflect the seriousness of the offense and to provide just
punishment,” balancing “the seriousness of any terrorism
offense” with “the lack of violence here,” J.A. 5313-14; see 18
U.S.C. § 3553(a)(2)(A); (2) “the need for the sentence imposed
to afford adequate deterrence to criminal conduct,” balancing
Hammoud’s age, his potential risk of recidivism in light of his
“almost certain[]” deportation upon release from prison, and
“legislative intent” reflected in the terrorism enhancement,
9
For the same reasons, we reject Hammoud’s arguments that
the district court abused its discretion in not crediting
certain resentencing evidence. See, e.g., Hammoud’s Br. 44 (“The
court did not address the evidence presented by the Defense that
a number of other statements in the First PSR not based on the
jury verdict or evidence presented and rebutted at sentencing
were inaccurate.”); id. at 57 (“There is insufficient evidence
to support a finding that Hammoud intended to promote any ‘crime
of terrorism’ or that he intended any donation to coerce or
intimidate or influence a Government, populace, or an
organization.”); id. at 57 (“The alleged Hezbollah connection is
not a ground upon which to impose a 30 year sentence under
Section 3553.”). The district court was entitled to credit
evidence introduced at trial rather than that introduced at
resentencing in reaching its conclusion.
20
J.A. 5314; see 18 U.S.C. § 3553(a)(2)(B); 10 (3) “the need for the
sentence imposed to protect the public from further crimes of
the defendant,” considering that Hizballah is a DFTO and that
Hammoud “had ties to the organization, even if his [individual,
actual] activities were nonviolent,” J.A. 5314; see 18 U.S.C. §
3553(a)(2)(C); (4) “the kinds of sentence and the range
established for the applicable category of offense committed by
the applicable category of the defendant,” recognizing that the
10
The district court did not, as Hammoud argues, clearly
err in reaching its recidivism conclusions. The district court
in two places considered Hammoud’s youth in light of the
“reasoning” and “legislative intent” reflected in the terrorism
enhancement. See J.A. 5312-13 (“[T]he likelihood of a terrorist
being a repeat offender is the reasoning behind an increased
criminal history level, not the prior offenses. . . . The
defendant’s terrorism enhancement and resulting criminal history
level will not change and should not be changed based on the
evidence of his involvement with Hezbollah, his relative youth
and thus time and ability to become a recidivist, and the fact
that he never accepted responsibility and obstructed justice by
testifying falsely at trial.” (citing United States v. Meskini,
319 F.3d 88, 92 (2d Cir. 2003), which stated, “Congress and the
Sentencing Commission had a rational basis for creating a
uniform criminal history category for all terrorists under §
3A1.4(b), because even terrorists with no prior criminal
behavior are unique among criminals in the likelihood of
recidivism, the difficulty of rehabilitation, and the need for
incapacitation.”)); id. at 5314 (“Hammoud is young enough to
continue to pose a threat. Congress has indicated a legislative
intent, through the terrorism enhancement, to treat terrorism as
more difficult to deter, hence the higher criminal history.”).
The district court noted, specifically with respect to §
3553(a)(2)(B), that Hammoud’s “almost certain[]” deportation
following his release from prison lowered his risk of recidivism
although he might continue to be a threat from abroad. J.A.
5314.
21
guidelines calculation is only “a starting point” to be
considered in the variance analysis and that Hammoud had
obstructed justice by testifying falsely at trial, J.A. 5315;
see 18 U.S.C. § 3553(a)(4); 11 (5) “pertinent policy statements”
from the Sentencing Commission, i.e., Congress’s “policy choice
in giving a terrorism enhancement for a greater criminal history
even when the specific defendant has no criminal history,” J.A.
5316; see 18 U.S.C. § 3553(a)(5); and (6) the “need to provide
restitution” to any victims, J.A. 5317; see 18 U.S.C. §
3553(a)(7). Neither party has demonstrated that the district
court clearly erred in making its findings under each of these
factors.
Though it raises the most concern for the parties here, we
discern no error in the district court’s consideration of §
3553(a)(6). Explicitly recognizing that the need to avoid
unwarranted sentencing disparities among defendants with similar
records should not be given “extraordinary weight,” the district
court considered this factor along with its consideration of the
11
Indeed, demonstrating that the district court understood
the sensitive line between recalculating the guidelines sentence
and considering new evidence, specifically, and in considering a
variance sentence, in general, the district court appropriately
noted that it was not considering the Government’s prior
arguments that Hammoud “threatened a prosecutor and threatened
to destroy evidence” but did find itself bound by the
obstruction enhancement because Hammoud testified falsely at
trial. J.A. 5315.
22
other factors. J.A. 5316; cf. Abu Ali, 528 F.3d at 262-67
(holding that the district court erred when its consideration of
§ 3553(a)(6) “served as the driving force behind its ultimate
determination”); United States v. Khan, 461 F.3d 477, 500-01
(4th Cir. 2006) (holding that the district court erred when it
placed “‘excessive weight’” on § 3553(a)(6)). The district court
appropriately considered cases “in which the defendant
[likewise] went to trial” and “was convicted by a jury of a
terrorism . . . offense, particularly under Section 2339,” and
then concluded that “in examining cases that fall within those
parameters,” Hammoud’s [original] sentence “appear[ed] grossly
disproportionate.” J.A. 5316-17; cf. Abu Ali, 528 F.3d at 262-67
(holding that the district court erred when it compared Abu Ali
to defendant who pled guilty and whose conduct underlying crimes
of conviction was different in “substance and scope” and
improperly compared Abu Ali with others, “overlook[ing]”
“unrealized harm” and differences in the “serious[ness] and
significan[ce of] steps” taken and in the “infliction of harm”);
Khan, 461 F.3d at 500-01 (holding that the district court erred
when it considered defendant who pled guilty similarly situated
to defendant who went to trial). In its sentencing memorandum,
the district court cited to nine cases with brief explanations
of the defendants’ convictions and sentences that it considered
within these parameters. See J.A. 6499, 6501-02. The district
23
court then concluded that, in the cases cited by the parties, no
defendant “received a sentence in excess of 1800 months,” “life
imprisonment was ordered [in] cases of violence,” and lighter
sentences compared to Hammoud’s [original] sentence were imposed
in cases “in which violence or mass physical carnage was
possible.” J.A. 5316-17.
Consideration of a “vast summary of cases,” J.A. 5317,
allowed the district court to reach these few broad conclusions
en route to imposing a sentence sufficient but not greater than
necessary to comport with the purposes of sentencing. The
district court, focused on individually assessing the facts of
Hammoud’s case, had no obligation to, as Hammoud argues,
“explain why [his] sentence is 2.2 times greater than the
average for all terrorism cases and four times the average for
all financing cases.” Hammoud’s Br. 38. Rather, the district
court appropriately used a certain subset of cases to conclude
that a 155 year sentence was “grossly disproportionate” and
“reviewed the vast majority of cases and applicable sentences”
to reach certain other summary conclusions. J.A. 5317. In this
way, the district court, considering § 3553(a)(6) among the
other factors, balanced an individual assessment in the case
before it with a broad review of cited cases to ensure that
Hammoud’s sentence would not result in “unwarranted sentence
24
disparities among defendants with similar records who have been
found guilty of similar conduct.” 12 18 U.S.C. § 3553(a)(6).
Given the justifications provided by the district court, we
are loath to find fault with the result reached. We agree with
the observation made by the First Circuit that there is “a range
of reasonable sentences,” and that an appellate court should
only reverse if the “sentencing court’s ultimate determination
falls outside the expansive boundaries of that universe.” United
States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008). The district
court’s determination has not so fallen here. In short,
considering the totality of the circumstances, the district
court, in a superior position, particularly given the history of
this challenging case, explained the variance with sufficiently
compelling justifications under the § 3553(a) factors.
12
We are likewise unpersuaded by Hammoud’s other
disproportionality arguments, including his specific attack
under § 3553(a)(6), largely because he implicitly urges us to
disregard the totality of his convictions beyond his violation
of § 2339B. See, e.g., Hammoud’s Br. 45-46 (“Donation of a few
thousand dollars cannot justify three times the applicable
statutory maximum for Section 2339B, and it distorts the
statutory scheme.”). Furthermore, we “ha[ve] held that
‘proportionality review [under the Eighth Amendment’s cruel and
unusual punishment clause] is not available for any sentence
less than life imprisonment without the possibility of parole.’”
United States v. Malloy, 568 F.3d 166, 180 (4th Cir. 2009)
(quoting United States v. Ming Hong,
242 F.3d 528, 532 (4th Cir.
2001)).
25
III.
Having found no reversible error, we affirm the judgment of
the district court.
AFFIRMED
26
