Filed: Oct. 28, 2010
Latest Update: Feb. 21, 2020
Summary: DLD-009 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 10-2929 _ UNITED STATES OF AMERICA, v. AKTHAM ABUHOURAN, a/k/a TONY HOURAN, Appellant. _ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Crim. No. 95-cr-00560-004) District Judge: Louis H. Pollak _ Submitted on a Motion for Summary Affirmance Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 October 15, 2010 Before: BARRY, FISHER AND STAPLETON, Circuit Judges (Opini
Summary: DLD-009 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 10-2929 _ UNITED STATES OF AMERICA, v. AKTHAM ABUHOURAN, a/k/a TONY HOURAN, Appellant. _ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Crim. No. 95-cr-00560-004) District Judge: Louis H. Pollak _ Submitted on a Motion for Summary Affirmance Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 October 15, 2010 Before: BARRY, FISHER AND STAPLETON, Circuit Judges (Opinio..
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DLD-009 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 10-2929
____________
UNITED STATES OF AMERICA,
v.
AKTHAM ABUHOURAN,
a/k/a TONY HOURAN,
Appellant.
__________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No. 95-cr-00560-004)
District Judge: Louis H. Pollak
__________________________________
Submitted on a Motion for Summary Affirmance
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
October 15, 2010
Before: BARRY, FISHER AND STAPLETON, Circuit Judges
(Opinion filed October 28, 2010)
____________
OPINION
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PER CURIAM
Appellant Aktham Abuhouran (a/k/a Tony Houran) was convicted on
October 29, 1996, on four counts of bank fraud, two counts of conspiracy, and one count
of money laundering, for his participation in a scheme that caused the 1992 failure of the
Bank of Brandywine Valley of West Chester, Pennsylvania. On August 20, 1997,
Abuhouran was sentenced in the Eastern District of Pennsylvania to a term of
imprisonment of 109 months, to be followed by 5 years of supervised release.
Abuhouran was ordered to pay restitution in the amount of $1,860,477.44. We affirmed
the judgment of conviction and sentence in United States v. Abuhouran, 162 F.3d 230 (3d
Cir. 1998).
Additional frauds led to a second prosecution at D.C. Crim. No. 01-00629-
03. Abuhouran pleaded guilty to these additional charges. He ultimately was sentenced
to an additional, consecutive term of imprisonment of 24 months. The court also
imposed a term of supervised release of three years, and ordered payment of restitution of
$319,201.29. Abuhouran filed an appeal following this second conviction, which we
dismissed on the basis of an appellate waiver in his plea agreement. See United States v.
Abuhouran, 119 Fed. Appx. 402 (3d Cir. 2005).
In January, 2000, Abuhouran filed a motion to vacate his sentence pursuant
to 28 U.S.C. § 2255, in which he challenged the money laundering conviction on the
ground that the transaction alleged to constitute money laundering was also cited in a
separate count as part of the bank fraud scheme. That motion was denied on July 13,
2001. Meanwhile, in August, 2000, Abuhouran filed a motion to dismiss the indictment
and/or supplement the section 2255 motion, arguing that the indictment failed to allege an
essential element of money laundering, namely, “conducting a transaction.” The District
Court rejected the claim and denied the motion. Abuhouran appealed both orders at C.A.
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Nos. 01-3516 & 02-3344, and we denied a certificate of appealability in one and
dismissed the other as moot on January 6, 2003.
Abuhouran was released from prison on April 24, 2007 and began serving
his term of supervised release. He immediately moved to terminate supervised release
and restitution, a request the District Court denied. At issue in the instant appeal, on
April 14, 2010, Abuhouran again moved to terminate supervised release and restitution
pursuant to 18 U.S.C. § 3583(e). Abuhouran argued that he has been in full compliance
with the conditions of his supervised release for 3 years, and his 5-year term violated 18
U.S.C. § 3583(b) which authorizes only a 3-year term for his felony. He noted that he
was partially disabled and he referred to emergency neurosurgery he underwent while in
the custody of the Bureau of Prison. He alleged that the BOP had given him inadequate
care during his incarceration and he complained that he did not receive adequate time in a
halfway house. He also complained that supervised release was hurting his chances of
being employed.
In the Government’s opposition to the request, it noted that, on August 14,
1997, a week before sentencing, Abuhouran cut his monitoring bracelet and attempted to
flee the United States. He was captured at Kennedy Airport in New York, as he
attempted to board a flight to Jordan. See Abuhouran, 162 F.3d at 234 (appellant’s
cutting of monitoring bracelet and his “brazen” trip to airport after he had been released
on bail to home confinement warranted enhancement for obstruction of justice). The
Government also asserted that it did not in fact appear that Abuhouran’s supervised
release had been uneventful; he was currently being investigated for a theft in August,
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2009 from a plumbing business in North Bergen, New Jersey, which had terminated his
employment upon learning of unauthorized purchases. Moreover, Abuhouran had made
no effort to make restitution to any of his victims despite his claim that he was employed.
As to Abuhouran’s claim that his 5-year term of supervised release was not authorized by
statute, the Government explained that Abuhouran had been convicted of a class B
felony, bank fraud, 18 U.S.C. § 1344, and the maximum term of supervised release for a
class B felony is five years.
Abuhouran filed a reply, to which he attached certain items from his civil
action in the United States District Court for the Northern District of New York,
Abuhouran v. Marini, et al., D.C. Civ. No. 04-cv-01023, detailing his medical complaints
and medical treatment at FCI-Ray Brook.
In an order entered on June 13, 2010, the District Court denied the motion
to terminate supervised release and restitution. The court concluded that the statutory
factors strongly weighed against early release. Abuhouran had paid little if any
restitution to his victims, and his attempt to flee the United States just prior to sentencing
warranted continued supervision as a way to protect the public. The District Court would
not consider the legal challenge to the length of the term of supervised release,
concluding that it could only be raised in a section 2255 motion.
Abuhouran appeals. The Government has filed a motion for summary
affirmance, which Abuhouran has opposed in writing. The Government contends that the
District Court correctly weighed the statutory factors.
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We will summarily affirm the order of the District Court because no
substantial question is presented by this appeal, Third Circuit LAR 27.4 and I.O.P. 10.6.
We have jurisdiction under 28 U.S.C. § 1291. The sentencing court’s decision whether to
grant or deny a motion for early termination of supervised release is reviewed for an
abuse of discretion. See United States v. Smith, 445 F.3d 713, 716 (3d Cir. 2006). We
will not overturn a discretionary decision unless it was arbitrary, irrational or contrary to
law, see, e.g., Sevoian v. Ashcroft,
290 F.3d 166, 174 (3d Cir. 2002). The sentencing
court is in the best position to weigh the statutory factors, cf. Gall v. United States,
552
U.S. 38, 51-52 (2007) (addressing 18 U.S.C. § 3553(a)).
Section 3583(e) of title 18 authorizes the sentencing court to terminate a
term of supervised release prior to its expiration. See Burkey v. Marberry, 556 F.3d 142,
146 n.3 (3d Cir.), cert. denied,
130 S. Ct. 458 (U.S. 2009) (citing United States v. Lussier,
104 F.3d 32, 34-35 (2d Cir. 1997)). The defendant must have served one year of
supervised release and the sentencing court must determine that “such action is warranted
by the conduct of the defendant released and the interest of justice.” 18 U.S.C. §
3583(e)(1). Section 3583(e)(1) directs the sentencing court to consider the factors set
forth in 18 U.S.C. § 3553(a).
The District Court considered the following factors in exercising its
discretion not to terminate Abuhouran’s supervised release prior to the expiration of five
years: (1) the nature and circumstances of the offense and Abuhouran’s history and
characteristics; (2) the need to afford adequate deterrence to criminal conduct, protect
the public from further crimes of Abuhouran, and provide him with needed educational or
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vocational training, medical care, or other correctional treatment in the most effective
manner; (3) the kinds of sentence and sentencing range established for Abuhouran’s
crimes; (4) pertinent policy statements issued by the United States Sentencing
Commission; (5) the need to avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar conduct; and (6) the need to
provide restitution to any victims of the offense. 18 U.S.C. § 3553(a)(1), (2)(B)-(D) &
(4)-(7).
We conclude that no substantial question is presented by the District
Court’s decision not to terminate Abuhouran’s supervised release. Abuhouran does not
dispute that he has made little if any restitution to the victims of his crimes despite being
employed. A continuation of supervised release is appropriate to aid in the payment of
restitution. See id. In addition, Abuhouran’s history includes attempts to commit further
fraud and flee from the United States in order to avoid punishment. Continued
supervised release is thus warranted as a way of protecting the public from him. See
id.
And having reviewed Abuhouran’s submissions carefully, we agree with the District
Court that the statutory factors are not counterbalanced by his arguments in favor of early
termination. Abuhouran has not presented any evidence that he has been unable to secure
adequate medical care while on supervised release, and his allegations of negligence on
the part of BOP medical staff while he was incarcerated are irrelevant to the section
3553(e) inquiry. Moreover, the District Court did not abuse its discretion in determining
that Abuhouran’s conduct while on supervised release does not warrant early termination.
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There has been nothing exceptional about Abuhouran’s conduct while on supervised
release.
As to the legality of Abuhouran’s 5-year term of supervised release, the
District Court properly concluded that the argument concerned the validity of
Abuhouran’s sentence and it was without jurisdiction to entertain an unauthorized second
or successive section 2255 motion. 28 U.S.C. § 2255(h) (second or successive section
2255 motion must be authorized to contain newly discovered evidence or new rule of
constitutional law made retroactive to cases on collateral review).
Last, in his objection to summary affirmance, Abuhouran alleges that the
Government has engaged in 15 years of racial animosity against him on the basis of his
Jordanian nationality and Arab ethnicity. The record does not support this allegation and
we thus reject it as unpersuasive.
For the foregoing reasons, we will grant the Government’s motion and
summarily affirm the order of the District Court denying Abuhouran’s motion to
terminate supervised release and restitution.
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