United States v. Afif , 365 F. App'x 506 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4326
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MOHAMED AFIF,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, District
Judge. (2:07-cr-00134-PMD-1)
Argued: January 29, 2010 Decided: February 18, 2010
Before MICHAEL, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Nicole Nicolette Mace, THE MACE FIRM, Myrtle Beach,
South Carolina, for Appellant. Robert Frank Daley, Jr., OFFICE
OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee. ON BRIEF: W. Walter Wilkins, United States Attorney,
Columbia, South Carolina, Eric J. Klumb, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mohamed Afif, a native of Yemen and a legal alien in the
United States, pled guilty to one count of trafficking in
counterfeit goods. See 18 U.S.C. § 2320(a). At sentencing, the
district court set Afif’s advisory sentencing range at 18-24
months and sentenced him to an 18-month term of imprisonment.
The government subsequently filed a Rule 35(b) “substantial
assistance” motion, but it informed the court that it was not
recommending a substantial reduction or a sentence of less than
12 months. However, Afif urged the court (in writing and at the
Rule 35 hearing) to sentence him below 12 months in order to
lessen the immigration consequences that he faced as a result of
his conviction. The court granted the motion and sentenced Afif
to 12 months plus one day, a term that allows him to receive
credit toward the service of his sentence for satisfactory
behavior. See 18 U.S.C. § 3624(b); United States v. Crecelius,
751 F. Supp. 1035, 1037 (D.R.I. 1990) (explaining that a
sentence of 12 months plus one day can actually be “less” than a
12-month sentence because of service credit). Afif now appeals
the reduced sentence, arguing that the court improperly based it
on his status as an alien. Finding no merit to this contention,
we affirm.
Afif did not argue below that the district court erred by
considering his status as an alien during the Rule 35(b)
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proceeding; indeed, to the extent that his status was
considered, Afif asked the court to consider it. On this
record, the government contends that we should apply the
“invited error” doctrine. See, e.g., United States v. Herrera,
23 F.3d 74, 75 (4th Cir. 1994) (noting that “a defendant in a
criminal case cannot complain of error which he himself has
invited” (citation and internal punctuation omitted)). Although
the government’s position arguably is correct, even if we allow
Afif to maintain this argument on appeal, our review is for
plain error. See, e.g., United States v. Dawson, 587 F.3d 640,
648 (4th Cir. 2009) (noting that “criminal defendants have an
affirmative obligation to raise appropriate objections in the
district court, lest they be subjected to the rigorous plain
error standard on direct review”).
Plain error review involves four steps:
First, there must be an error or defect - some sort of
deviation from a legal rule - that has not been
intentionally relinquished or abandoned, i.e.,
affirmatively waived, by the appellant. Second, the
legal error must be clear or obvious, rather than
subject to reasonable dispute. Third, the error must
have affected the appellant’s substantial rights,
which in the ordinary case means he must demonstrate
that it affected the outcome of the district court
proceedings. Fourth and finally, if the above three
prongs are satisfied, the court of appeals has the
discretion to remedy the error - discretion which
ought to be exercised only if the error seriously
affect[s] the fairness, integrity or public reputation
of judicial proceedings. Meeting all four prongs is
difficult, as it should be.
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Puckett v. United States, 129 S.Ct. 1423, 1429 (2009) (citations
omitted and internal punctuation modified).
Our plain error review need not proceed beyond step one
because we conclude that the district court did not err in
sentencing Afif. “Although the Guidelines prohibit reliance on
national origin . . . they do not mention alienage as a
departure factor; it therefore serves as a potential basis for
departure.” United States v. DeBeir, 186 F.3d 561, 569 (4th
Cir. 1999). Aliens are entitled to the same individualized
sentencing procedure as citizens. United States v. Gomez, 797
F.2d 417, 419 (7th Cir. 1986). Thus, “the illegal act of an
alien is entitled to no more deference than some other prior
illegal act of a citizen also being sentenced for a [comparable]
violation.” Id. at 420. The record simply does not support
Afif’s contention that the court’s sentence was based on his
status as an alien. The court did not sentence Afif to 12
months plus one day because he is an alien. Instead, the court
rejected Afif’s request that he receive a sentence below 12
months, a request that Afif made because of his alien status.
In other words, the court did not grant Afif special treatment
because of his alienage. There is certainly nothing improper in
the court’s handling of this issue. For this reason, Afif is
not entitled to relief.
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Based on the foregoing, we affirm the judgment of the
district court.
AFFIRMED
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