United States v. Mujahid ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4765
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ABDULLAH ASAD MUJAHID, a/k/a Brian Steven Sweeney,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (7:09-cr-00149-D-1)
Submitted: April 19, 2011 Decided: May 4, 2011
Before WILKINSON and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E.B. Holding, United States Attorney,
Jennifer P. May-Parker, Toby W. Lathan, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Abdullah Asad Mujahid pleaded guilty to possessing a
firearm and ammunition as a convicted felon, in violation of 18
U.S.C. § 922(g)(1) (2006) (Count One), and knowingly possessing
a stolen firearm, in violation of 18 U.S.C. § 922(j) (2006)
(Count Two). He was sentenced to 300 months’ imprisonment for
Count One and a concurrent sentence of 120 months’ imprisonment,
the statutory maximum, on Count Two. Mujahid argues on appeal
that his sentence is unreasonable because the sentencing range
triggered by the Armed Career Criminal Act, 18 U.S.C. § 924(e)
(2006), adequately addressed the grounds for an upward departure
for an underrepresented criminal history. We affirm.
We review a sentence under a deferential abuse-of-
discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007). The standard applies “regardless of whether the
sentence imposed is ‘inside, just outside, or significantly
outside the Guidelines range.’” United States v. Evans,
526 F.3d 155, 161 (4th Cir. 2008) (quoting Gall, 552 U.S. at
41). The first step in this review requires that we inspect for
procedural reasonableness by ensuring that the district court
committed no significant procedural errors. United States v.
Boulware, 604 F.3d 832, 837-38 (4th Cir. 2010). We then
consider the substantive reasonableness of the sentence imposed,
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taking into account the totality of the circumstances. Gall,
552 U.S. at 51.
In reviewing a departure, we consider “whether the
sentencing court acted reasonably both with respect to its
decision to impose such a sentence and with respect to the
extent of the divergence from the sentencing range.” United
States v. Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir.
2007). “[A] major departure should be supported by a more
significant justification than a minor one.” Gall, 552 U.S. at
50.
Pursuant to USSG § 4A1.3, a district court may depart
upward from an applicable Guidelines range if “reliable
information indicates that the defendant’s criminal history
category substantially under-represents the seriousness of the
defendant’s criminal history or the likelihood that the
defendant will commit other crimes.” USSG § 4A1.3(a)(1), p.s.
Upward departures from the highest criminal history category are
appropriate “[i]n the case of an egregious, serious criminal
record in which even the guideline range for Criminal History
Category VI is not adequate to reflect the seriousness of the
defendant’s criminal history.” USSG § 4A1.3 cmt. n.2(b).
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In United States v. McNeill, 598 F.3d 161(4th Cir. 2010), cert. granted, * 131 S. Ct. 856 (2011), we
considered whether a criminal history category of VI and career
offender and armed career criminal enhancements already
encompassed the recidivism and criminal history factors that
might warrant an upward departure pursuant to USSG § 4A1.3. We
found that it did not because “it is clear that the guidelines
anticipated that an upward departure might apply in the case of
an armed career criminal and that an upward departure might
occur where a defendant’s criminal history falls within category
VI.” Id. at 166.
We conclude the district court’s decision to depart
under § 4A1.3 and its three-offense-level departure were
factually supported and that the resulting sentence was
reasonable. The district court explained at length its reasons
for the departure. Emphasizing Mujahid’s extensive criminal
history, encompassing forty-nine felony convictions, seventeen
of which were violent, the court noted that Mujahid had
repeatedly been given the opportunity to abide by the law, but
had declined to do so. Moreover, the district court was
troubled that, despite the fact that Mujahid was not permitted
*
The Supreme Court granted certiorari in McNeill on a
retroactivity issue that does not impact the principle we rely
on here.
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to possess a firearm, he committed the current offense with a
stolen, loaded firearm, and during the course of his crime he
pointed that firearm at a sixteen-year-old. Under the
circumstances, the district court reasonably found that an
offense level of thirty-four yielded the Guidelines range most
appropriate in this case.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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