United States v. Istrefi , 280 F. App'x 217 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
5-23-2008
USA v. Istrefi
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-1166
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-1166
UNITED STATES OF AMERICA
v.
FAIK MUSA ISTREFI
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D. C. No. 01-cr-00303-1)
District Judge: Hon. James M. Munley
Submitted under Third Circuit LAR 34.1 (a)
on March 4, 2008
Before: SCIRICA, Chief Judge, FISHER and ROTH, Circuit Judges
(Opinion filed May 23, 2008)
OPINION
ROTH, Circuit Judge:
Faik Musa Istrefi appeals the judgment of sentence imposed on him by the United
States District Court for the Middle District of Pennsylvania. The only issue on appeal is the
reasonableness of the sentence. For the reasons set forth below, we will affirm the judgment
of the District Court.
I. Background and Procedural History
Because the facts are well known to the parties, we will discuss them only briefly
here.
Istrefi pled guilty to all but one of the counts in a fifty-six count indictment, charging
him with conspiracy to violate the Racketeer Influenced Corrupt Organizations Act, in
violation of 18 U.S.C. § 1962(d), conspiracy to distribute in excess of five kilograms of
cocaine, in violation of 21 U.S.C. § 826, conspiracy to commit access device fraud, in
violation of 18 U.S.C. § 1029(b)(2), conspiracy to traffic in stolen vehicles and to commit
mail fraud in violation of 18 U.S.C. § 371, mail fraud, in violation of 18 U.S.C. § 1341, and
money laundering conspiracy, in violation of 18 U.S.C. § 1956(h). The Presentence
Investigation Report indicated an advisory sentencing range of 168 to 210 months in prison.
On January 13, 2004, Istrefi was sentenced to 166 months in prison on each of counts 1, 2,
and 55, and to 60 months in prison on each of the remaining counts, to run concurrently.
Istrefi was also required to pay $5,400 in special assessments and $297,530.08 in restitution
and to serve a five-year period of supervised release.
Istrefi appealed, and we remanded for re-sentencing consistent with United States v.
Booker, 543 U.S. 220 (2005). Before re-sentencing, the government filed a motion for
downward departure based on Istrefi’s substantial assistance and requested a departure in the
range of twelve to eighteen months. Istrefi also filed a motion for downward departure based
on his assistance to the government, his rehabilitation during his incarceration, the impact
of his incarceration on his family, and the need to pay the court-ordered restitution and
assessments. He requested a sentence of 121 to 151 months.
At re-sentencing, the District Court stated that it had reviewed Istrefi’s motion and
accompanying sentencing memorandum. Following statements by the government and
Istrefi’s counsel, who again requested a sentence of 121 to 151 months, the District Court
stated:
“In passing sentence on you, Mr. Istrefi, I have taken into
consideration the entire case, the presentence investigation
report, and all of the various filings that were made and the
statements by the Government today and statements by your
counsel . . . today, and her motion for downward departure and
the reasons that she gave, as well as the Government’s motion
for downward departure.
The sentence that I impose will satisfy the purposes set forth in
18 U.S.C. § 3553(a), which includes the necessity of deterrence
and just punishment, promotion of respect for the law,
protection of the public, and assurance of correctional treatment
for the Defendant, and reflects full consideration of all the [§
3553] factors, including the nature and seriousness of the
offense, the history and characteristics of the Defendant, the
kinds of sentences available, and the advisory sentencing range
and policies prescribed by the United States Sentencing
Commission.”
3
The District Court agreed to the government’s motion for downward departure. While
acknowledging that Istrefi had made “great strides” and had a “wonderful family” that had
“suffered” because of Istrefi’s crimes, the District Court noted that Istrefi had committed
“extremely serious” offenses. The District Court then sentenced Istrefi to 150 months in
prison on counts 1, 2, and 55, and to 60 months in prison on each of the remaining counts,
all sentences to be served concurrently. Istrefi was also required to pay $5,400 in special
assessments and $297,699.08 in restitution and to serve a five-year period of supervised
release. Istrefi did not object to either the District Court’s failure to rule explicitly on his
downward departure motion or to the court’s purported failure to consider the § 3553 factors.
II. Analysis
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
Following Booker, we have held that district courts must follow a three-step
sentencing process. United States v. Gunter, 462 F.3d 237 (3d Cir. 2006). First, the district
court must calculate the defendant’s sentence under the Sentencing Guidelines, just as they
would have before Booker. Gunter, 462 F.3d at 247. The district court must “‘formally
rul[e] on the motions of both parties and state on the record whether they are granting a
departure and how that departure affects the Guidelines calculation, and tak[e] into account
our Circuit’s pre-Booker case law, which continues to have advisory force.’” Id. (quoting
United States v. King, 454 F.3d 187, 196 (3d Cir. 2006)). Finally, the district court must
4
consider the relevant 18 U.S.C. § 3553 factors in setting the sentence. Gunter, 462 F.3d at
247.1 Istrefi argues that the District Court failed to satisfy this process by failing to rule
formally on his downward departure motion and by failing to address and consider
sufficiently several of the § 3553(a) factors.
The government contends that, because the District Court’s sentence was within the
range that Istrefi requested and apparently considered reasonable, any error in imposing that
sentence is an unreviewable invited error. See United States v. Console, 13 F.3d 641, 660
(3d Cir. 1993). However, even if Istrefi did not invite the errors he assigns to the sentence,
we find no plain error with respect to either of the claims he now raises.2
“Where a defendant demonstrates plain error affecting his substantial rights, we may
reverse where the fairness, integrity, or public reputation of judicial proceedings were
affected. . . . An error affects substantial rights when it is prejudicial and affects the outcome
of district court proceedings.” King, 454 F.3d at 193 (internal quotation and citation
omitted).
1
The factors set forth in 18 U.S.C. § 3553(a) include: (1) the nature and circumstances
of the offense, and the history and characteristics of the defendant; (2) the need for the
sentence imposed to: (A) reflect the seriousness of the offense, promote respect for the law,
and provide just punishment; (B) deter criminal conduct; (C) protect the public; and (D)
provide training and treatment for the defendant; (3) the kinds of sentences available; (4) the
sentencing range under the Guidelines; (5) pertinent policy statements; (6) the need to avoid
unwarranted sentence disparities among similar defendants; and (7) the need to provide
restitution.
2
Because Istrefi did not object at sentencing to either of the actions he now claims were
error, we review his claims for plain error. United States v. Parker, 462 F.3d 273, 278 (3d
Cir. 2006).
5
We set forth the standard by which we review the reasonableness of a district court’s
sentence in United States v. Cooper, 437 F.3d 324 (3d Cir. 2006):
“The record must demonstrate the trial court gave meaningful
consideration to the § 3553(a) factors. The court need not
discuss every argument made by a litigant if an argument is
clearly without merit. Nor must a court discuss and make
findings as to each of the § 3553(a) factors if the record makes
clear the court took the factors into account in sentencing.”
Id. at 329 (internal citations omitted).
The record in this case demonstrates that the District Court adequately considered the
§ 3553(a) factors in sentencing. We find no plain error in the District Court’s determination
of Istrefi’s sentence.
While Istrefi correctly points out that the record reveals no formal ruling on his
departure motion, we have continued to hold post-Booker that we “have no authority to
review discretionary denials of departure motions in calculating sentencing ranges.” United
States v. Jackson, 467 F.3d 834, 839 (3d Cir. 2006). The record of the re-sentencing
indicates that the District Court considered the grounds for departure advocated by Istrefi and
understood that it had the discretion to depart on those grounds but chose not to depart
beyond the Government’s request due to the serious nature of the offense. As such, even if
we had the authority to review the District Court’s decision not to depart on those grounds,
we find no plain error in the lack of an explicit ruling on Istrefi’s motion.3
3
Even if we found plain error with respect to either of Istrefi’s claims, we would have
difficulty concluding that he had been prejudiced by such error given that the term of
6
III. Conclusion
For the reasons set forth above, we will affirm the judgment of the District Court.
imprisonment imposed was within the range that he himself requested.
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