DAVIS, Circuit Judge
Mohamad Youssef Hammoud ("Hammoud") was convicted of fourteen offenses following a jury trial.
In Hammoud's earlier appeal, we laid out the "largely undisputed" facts underlying this prosecution, which are unnecessary to repeat in any detail here.
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.
Hammoud's base offense level was 46 (treated as 43,
After the Supreme Court vacated our decision and remanded for reconsideration in light of
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,
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 § 3553(a) factors and imposed a sentence of 30 years' imprisonment.
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.
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.
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."
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.
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 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,"
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.
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 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.
Having reviewed the briefs, the record and the applicable law, we reject Hammoud's arguments.
Finally, we consider and reject the parties' arguments challenging the reasonableness of the sentence.
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 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)."
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 the sentencing court abused its discretion in concluding that the sentence it chose satisfied the standards set forth in § 3553(a)."
Finding the parties' arguments lacking in merit, we affirm the district court's variance sentence of 30 years' 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.
The district court carefully considered the § 3553(a) factors in justifying its variance sentence. Under § 3553(a)(1), 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."
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;
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 other factors. J.A. 5316;
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 disparities among defendants with similar records who have been found guilty of similar conduct."
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."
Having found no reversible error, we affirm the judgment of the district court.