United States v. Mahamoud , 99 F. App'x 439 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
6-7-2004
USA v. Mahamoud
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-2204
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"USA v. Mahamoud" (2004). 2004 Decisions. Paper 613.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-2204
UNITED STATES OF AMERICA
v.
MOSTAFA MAHAMOUD,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
D.C. Criminal No. 95-cr-00411-1
(Honorable Dickinson R. Debevoise)
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 25, 2004
Before: SCIRICA, Chief Judge, RENDELL and ALARCÓN*, Circuit Judges
(Filed: June 7, 2004)
OPINION OF THE COURT
*The Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Judicial
Circuit, sitting by designation.
SCIRICA, Chief Judge.
Defendant Mostafa Mahamoud violated his term of supervised release and was
sentenced to an upward departure of 20 months imprisonment. Mahamoud claims the
sentencing court failed to articulate its reasons for the stricter sentence and that the
imposed sentence is plainly unreasonable. We will affirm.
I.
In November 1995, defendant Mostafa Mahamoud pled guilty to conspiracy to
commit counterfeiting offenses in volation of 18 U.S.C. § 371. Mahamoud’s guidelines
range was 18 to 24 months, but the District Court granted a downward departure pursuant
to U.S.S.G. § 5K1.1 due to his substantial assistance to authorities and sentenced him to
12 months and 28 days of imprisonment (time served) plus three years of supervised
release.
In March 1998, probation officials in New York determined that Mahamoud had
left the United States to travel to Egypt, and a warrant for his arrest was subsequently
issued in May 1998. Mahamoud allegedly returned to the United States under an
assumed name in 1999, and he did not report to the probation office. On February 4,
2003, he was arrested in the company of a known fugitive during a traffic stop. On
March 24, 2003, Mahamoud was charged with and pled guilty to violating a condition of
his supervised release, namely failing to report to his probation officer and submit a
monthly report, a Grade C violation. Pursuant to U.S.S.G. § 7B1.4(a), the recommended
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sentencing range for a Grade C violation was three to nine months imprisonment. The
statutory maximum term of imprisonment was 24 months, pursuant to 18 U.S.C. §
3583(e)(3).
At the sentencing hearing, defense counsel requested a sentence at the bottom of
the recommended sentencing range, noting Mahamoud’s lack of a criminal history and
claiming that his return to Egypt was motivated by a desire to spend time with his
daughter who was recovering from heart surgery. The government, on the other hand,
argued that Mahamoud should receive an upward departure of twenty months because he
took advantage of the downward departure in his original sentencing; his illegal re-entry
into the United States under a false name; his failure to report to probation for almost four
years; and his being arrested in the company of a wanted individual with almost $5,300
on his person.
The District Court stated that it had considered the Presentence Report, the
Violation of Supervised Release Report, arguments by counsel, and Mahamoud’s own
remarks. While the court recognized Mahamoud’s concern for his daughter, it noted that
he should have notified the probation office of his daughter’s condition and requested
permission to go to Egypt. The court revoked the previously imposed term of supervised
release and sentenced Mahamoud to 20 months imprisonment, followed by supervised
release of one year. Mahamoud filed a timely notice of appeal. We have jurisdiction
under 28 U.S.C. § 1291.
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II.
A district court sentencing a defendant upon revocation of supervised release
under § 3583(e) must consider the policy statements in Chapter 7 of the sentencing
guidelines and sentencing factors enumerated in § 3553(a). United States v. Blackston,
940 F.2d 877, 893 (3d Cir. 1991). If an upward departure is imposed, the court “must
simply state on the record its general reasons under section 3553(a) for rejecting the
Chapter 7 policy statements and for imposing a more stringent sentence.” Id. (emphasis
in original). We review the District Court’s decision to exceed the sentencing range set
forth by U.S.S.G. § 7B1.4 for abuse of discretion resulting in a “plainly unreasonable”
sentence. Id. at 894; United States v. Schwegel, 126 F.3d 551, 555 (3d Cir. 1997).
Mahamoud claims that the District Court failed to consider the Chapter 7 policy
statements and failed to sufficiently articulate its reasons under 8 U.S.C. § 3553(a) for
imposing a sentence outside the recommended sentencing range. We disagree. The
District Court noted that the sentence comports with Application Note 4 to U.S.S.G. §
7B1.4, which provides that “[w]here the original sentence was the result of a downward
departure, . . . an upward departure may be warranted.” In addition, the court stated its
reasons for the upward departure, including: (1) Mahamoud’s failure to report to the
probation office (relating to “the nature and circumstances of the offense” under §
3553(a)(1)); (2) the fact that he was a fugitive for four years until he was apprehended in
the company of another wanted fugitive (relating to “the nature and circumstances of the
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offense” and “history and characteristics of the offense,” both under § 3553(a)(1)); and
(3) his having benefitted from a downward departure at the original sentencing but still
violating his supervised release (relating to “history and characteristics of the defendant”
plus “deterrence to criminal conduct” under § 3553(a)(2)(B)). The District Court
followed the directives in Blackstone and did not abuse its discretion.
Mahamoud also claims the 20-month sentence imposition for a Grade C violation
was “plainly unreasonable.” He basically contends the court should have been more
lenient in the imposed sentence due to the nature of his daughter’s surgery and his
subsequent fear of reporting to the authorities upon returning to the United States.
Indeed, the District Court took his daughter’s illness into consideration, as well as all
other relevant factors, as prescribed by § 3553(a). It did not abuse its discretion in
weighing the other factors more heavily.
III.
For the reasons stated, we will affirm the judgment of sentence imposed by the
District Court.
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