United States v. El-Homsi ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
3-21-2008
USA v. El-Homsi
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-5213
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-5213
UNITED STATES OF AMERICA
v.
KAMAL S. EL-HOMSI
Kamal El-Homsi,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal No. 05-cr-00465)
District Judge: Honorable Jerome B. Simandle
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 14, 2008
Before: FUENTES, CHAGARES, and VAN ANTWERPEN, Circuit Judges.
(Filed: March 21, 2008)
OPINION OF THE COURT
VAN ANTWERPEN, Circuit Judge.
Appellant Kamal El-Homsi appeals his December 20, 2006 sentence. He contends
that the District Court erred by improperly allowing the standards for a departure under
the United States Sentencing Guidelines (“Guidelines”) to control its decision whether to
grant a downward variance pursuant to its discretion under 18 U.S.C. § 3553(a)(1). El-
Homsi argues that his sentence is, therefore, unreasonable as a matter of law. For the
reasons set forth below, we will affirm the sentence.
I.
Because we write solely for the parties, we will only address those facts necessary
to our opinion.
On June 8, 2005, the Grand Jury for the District of New Jersey returned a 13-count
indictment against El-Homsi, charging him with twelve counts of structuring financial
transactions to avoid reporting requirements, in violation of 31 U.S.C. § 5324(a)(3), and
one count of credit card fraud, in violation of 18 U.S.C. § 1029(a)(2). On August 3,
2006, pursuant to a plea agreement, El-Homsi pled guilty to one count of each charge.
The Presentence Investigation Report (“PSR”) calculated an advisory Guidelines
range of 37 to 46 months’ imprisonment. During the sentencing hearing, neither El-
Homsi nor the Government argued for a departure from the recommended Guidelines
range. El-Homsi did, however, request a downward variance under 18 U.S.C. § 3553(a).1
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During the sentencing hearing, neither El-Homsi nor the District Court explicitly
stated the specific § 3553(a) factor under which El-Homsi sought a variance based on his
compulsive gambling disorder. However, on appeal, El-Homsi asserts that he requested
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El-Homsi claimed such a variance was appropriate because the crimes at issue were, at
least in part, the result of his compulsive gambling disorder. In support of this argument,
El-Homsi presented testimony by Valerie C. Lorenz, Ph.D., Executive Director of the
Compulsive Gambling Center, who opined that El-Homsi would not have committed the
crimes for which he was being sentenced if not for his pathological gambling disorder.
Although the District Court accepted that El-Homsi has a mild compulsive
gambling disorder, it rejected his request for a downward variance, and sentenced him to
37 months’ imprisonment, plus 3 years of supervised release, a sentence at the bottom of
the recommended Guidelines range. El-Homsi appeals from his sentence.
II.
The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. This
Court has appellate jurisdiction under 28 U.S.C. § 1291 and, for the purposes of
reviewing the sentence imposed, 18 U.S.C. § 3742(a).
We review sentences for reasonableness under an abuse-of-discretion standard.
Gall v. United States, 128 S. Ct. 586, 594 (2007).
III.
the variance under § 3553(a)(1), based on “the nature and circumstances of the offense
and the history and characteristics of the defendant.” Appellant’s Br. at 14. El-Homsi’s
failure to identify at sentencing the specific § 3553(a) grounds for varying from the
advisory Guidelines range is inconsequential for the purposes of our analysis. We do
note, however, that we have repeatedly emphasized the obligation of counsel to “clearly
place the sentencing grounds they are raising on the record at the time of the sentencing
hearing.” United States v. Dragon, 471 F.3d 501, 505 (3d Cir. 2006).
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On appeal, El-Homsi argues that his sentence is unreasonable, and therefore
should be vacated. More specifically, El-Homsi argues that the District Court applied the
Guidelines standards for a downward departure based on reduced mental capacity, instead
of properly exercising its discretion under § 3553(a), to decide whether to grant his
request for a downward variance. We reject this argument and will affirm the District
Court’s judgment of sentence.
Recently, in Gall, the Supreme Court reiterated the process a district court must
follow in sentencing a defendant. 128 S. Ct. at 596-97. Although United States v. Booker,
543 U.S. 220 (2005), held that the Sentencing Guidelines are advisory only, they remain
“the starting point and the initial benchmark” in sentencing decisions. Gall, 128 S. Ct. at
596; see also United States v. Cooper, 437 F.3d 324, 331 (3d Cir. 2006) (the Guidelines
are “a natural starting point for the determination of the appropriate level of punishment
for criminal conduct”). Accordingly, a district court must begin by calculating the
applicable Guidelines range. Gall, 128 S. Ct. at 596. This Court has explained that, as
part of calculating the applicable Guidelines range, the district court must “formally rule
on the motions of both parties and state on the record whether [it is] granting a departure,
and how that departure affects the Guidelines calculation, and take into account our
Circuit’s pre-Booker case law, which continues to have advisory force.” United States v.
Wise, --- F.3d --- (3d Cir. 2008) (quoting United States v. Gunter, 462 F.3d 237, 247 (3d
Cir. 2006)) (internal quotation marks and citations omitted). Finally, after giving each
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party the opportunity to argue for the sentence it deems appropriate, the district court
must exercise its post-Booker discretion in considering all of the § 3553(a) factors to
determine the appropriate sentence. Gall, 128 S. Ct. at 596; see also Gunter, 462 F.3d at
247.
Our appellate review of the reasonableness of a district court’s sentence focuses on
whether the court abused its discretion in imposing the chosen sentence. Gall, 128 S. Ct.
at 597. Our inquiry has two steps. First, we must determine whether the district court
committed any significant procedural error in arriving at its decision, such as “failing to
calculate (or improperly calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen sentence – including an
explanation for any deviation from the Guidelines range.” Id.
Next, if the district court committed no significant procedural error, we review the
sentence for substantive reasonableness. Id. In conducting this review, we take into
account the “totality of the circumstances.” Id. We may not reverse the district court
simply because we would have imposed a different sentence. Id.
Turning to our review of the sentence at hand, we note that El-Homsi claims what
is essentially a procedural error on the part of the District Court. He argues that the
District Court erred in the last step of the sentencing process, by improperly allowing the
Guidelines standard for a departure under U.S.S.G. § 5K2.13 to limit its discretion under
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§ 3553(a)(1) to grant a variance based on his compulsive gambling disorder.2 Under the
Guidelines, a district court may grant a departure pursuant to § 5K2.13 only where: “(1)
the defendant committed the offense while suffering from a significantly reduced mental
capacity; and (2) the significantly reduced mental capacity contributed substantially to the
commission of the offense.” During the sentencing hearing, the District Court stated that
it would require “not only the verified existence of the condition itself, but [also] a causal
nexus that resulted in a significantly diminished capacity of the defendant at the time
when he was committing the crime” to grant the requested variance for compulsive
gambling disorder. App. at 242. El-Homsi contends that the similarity of this statement
to the language of the departure standard for reduced mental capacity indicates that the
District Court considered its discretion under § 3553(a) constrained by the enumerated
grounds for a departure under § 5K2.13. We disagree.
The District Court committed no procedural error. It began the sentencing by
calculating the correct advisory Guidelines range. Neither party requested a departure
under the Guidelines. Accordingly, the Court moved on to evaluate the § 3553(a) factors.
Read as a whole, the Court’s statements at sentencing indicate that it clearly understood
2
This Court draws a distinction between a “variance” from a Guidelines range and
a “departure” from a Guidelines range. United States v. Vampire Nation, 451 F.3d 189,
195 (3d Cir. 2006). A court grants a “departure” from the Guidelines range based on
specific Guidelines provisions that authorize such changes. See Gunter, 462 F.3d at 247
n.10. A court grants a “variance” from the Guidelines range based on Booker and the
sentencing court’s discretionary consideration of the § 3553(a) factors. Id.
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the distinction between a departure pursuant to the Guidelines and a variance based on its
discretion under § 3553(a). In fact, as emphasized by the Government, the District Court
explicitly mentioned the distinction several times during the sentencing hearing. See, e.g.,
App. at 244-45 (“[T]here is no departure sought in this case under the Guidelines. What
is sought is an adjustment for variance under 3553”); App. at 92 (“[W]hat I’m considering
then is the argument for a Booker variance applying other 3553(a) factors”); App. at 240
(“The defendant’s second point for a variance under 3553(a) arises from the defendant’s
compulsive gambling disorder”). We also note that the District Court stated its reasons
for denying El-Homsi’s variance request during its discussion of all of the § 3553(a)
factors.
The fact that the District Court, in considering the § 3553(a) factors, used language
similar to that used in a Guidelines departure standard does not dictate a contrary result.
It merely indicates that the District Court required, before exercising its discretion to
grant a variance under § 3553(a)(1), that El-Homsi prove his compulsive gambling
disorder caused the crimes at issue. To vacate El-Homsi’s sentence based solely on the
similarity of the departure language in the Guidelines and the District Court’s language
would be to elevate form over substance, an approach to sentencing that this Court has
rejected repeatedly. See Dragon, 471 F.3d at 506.
El-Homsi does not challenge the substantive reasonableness of his sentence on
appeal. Because we can discern no procedural or substantive error related to El-Homsi’s
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sentence, we will affirm.
IV.
For the above reasons, we will affirm the District Court’s sentence.
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