United States v. Nayyir Mahdi ( 2014 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0185n.06
Nos. 13-3250/3264
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Mar 10, 2014
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE NORTHERN DISTRICT OF
NAYYIR MAHDI, aka Willie Jones, ) OHIO
)
Defendant-Appellant. )
)
)
BEFORE: BOGGS and MOORE, Circuit Judges; BARRETT, District Judge.*
PER CURIAM. Nayyir Mahdi, a.k.a. Willie Jones, appeals his sentence.
In two separate cases, Mahdi was charged with numerous offenses, including knowingly
possessing stolen goods, in violation of 18 U.S.C. § 659, cultivating marijuana plants, in
violation of 21 U.S.C. § 841(a)(1), and maintaining a residence for manufacturing and
distributing marijuana, in violation of 21 U.S.C. § 856(a). Mahdi pleaded guilty to those three
charges. The district court determined that, based on his total offense level of 13 and criminal
history category of IV, Mahdi’s guidelines range of imprisonment was 24 to 30 months. The
court sentenced him to concurrent prison terms of 48 months.
Mahdi filed a notice of appeal in each of his cases, and the cases have been consolidated.
On appeal, Mahdi raises the following arguments: (1) the district court failed to follow the
*
The Honorable Michael R. Barrett, United States District Judge for the Southern District
of Ohio, sitting by designation.
Nos. 13-3250/3264
United States v. Mahdi
proper procedure when departing upward from the guidelines under USSG § 4A1.3; (2) the court
failed to give him proper notice of its intent to depart upward from the guidelines; (3) the court
mischaracterized facts related to his prior convictions; and (4) the sentence was substantively
unreasonable because the court selected it arbitrarily and based it on impermissible factors.
We review a sentence for both procedural and substantive reasonableness using an abuse-
of-discretion standard. United States v. Hockenberry, 730 F.3d 645, 671 (6th Cir. 2013). A
sentence is procedurally unreasonable where the district court miscalculates the guidelines range
or selects a sentence based on clearly erroneous facts. United States v. Adkins, 729 F.3d 559,
563 (6th Cir. 2013). A sentence may be substantively unreasonable if the district court selects
the sentence arbitrarily, bases the sentence on impermissible factors, or gives unreasonable
weight to any pertinent factor. Id.Mahdi’s argument that the district court failed to follow the proper procedure when
departing upward under § 4A1.3 lacks merit because the court explicitly stated that it was
varying upward based on the sentencing factors in 18 U.S.C. § 3553(a), not departing upward
under the guidelines. See United States v. Grams, 566 F.3d 683, 686-87 (6th Cir. 2009).
Likewise, Mahdi’s argument that the district court failed to properly notify him of its intent to
impose an above-guidelines sentence lacks merit because the notice requirements in Federal Rule
of Criminal Procedure 32(h) apply only to departures, not variances. See Irizarry v. United
States, 553 U.S. 708, 714 (2008).
In addition, the district court’s factual statements concerning Mahdi’s criminal history
were consistent with the facts set forth in the presentence report, which the court could accept as
true because Mahdi did not object to them. See United States v. Carter, 355 F.3d 920, 925 (6th
Cir. 2004). Finally, the 48-month sentences were substantively reasonable. Before imposing the
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Nos. 13-3250/3264
United States v. Mahdi
sentences, the district court thoroughly discussed the relevant sentencing factors and rationally
concluded that an above-guidelines sentence was warranted based on Mahdi’s extensive and
violent criminal history and the need to deter future criminal activity and protect the public. The
record does not support Mahdi’s argument that the court selected his sentence arbitrarily or based
it on impermissible factors.
Accordingly, we affirm Mahdi’s sentence.
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