United States v. Shehadeh, Jamal ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 13, 2006
Decided September 6, 2006
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
No. 06-1722
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of Illinois.
v. No. 4:04-CR-40004-001
JAMAL S. SHEHADEH, G. Patrick Murphy,
Defendant-Appellant. Chief Judge.
ORDER
Jamal Shehadeh was serving a term of supervised release for making a
threatening communication, see 18 U.S.C. 844(e), when Illinois authorities charged
him with intimidation, see 720 Ill. Comp. Stat. 5/12-6, and disorderly conduct, see
720 Ill. Comp. Stat. 5/26-1, both state crimes. The arrests stemmed from
statements that Shehadeh made to several law enforcement agencies after he was
arrested for obstructing peace officers who were about to impound Shehadeh’s
automobile. After the filing of the state charges of intimidation and disorderly
conduct, the district court revoked his supervised release and ordered him returned
to prison for 12 months, the term to run consecutively to any sentence that a state
court would later impose. We affirm the sentence, but remand with instructions to
the court to enter a corrected judgment omitting the directive of a consecutive
federal term.
No. 06-1722 Page 2
I. Background
Shehadeh was convicted in July 2004 of making a threatening
communication, see 18 U.S.C. 844(e), and received the maximum sentence of 97
days’ imprisonment and three years of supervised release. The district court
revoked his supervised release for the first time in December 2004 after Shehadeh
was convicted of committing a state crime of harassment by telephone, see 720 Ill.
Comp. Stat. 135/1-1, while also violating other conditions of his release.1 After
reviewing the violations, the court imposed an additional three months of
imprisonment in the federal prison system to be followed by three years of
supervised release; the new term of supervised release was to commence in January
2005.
In February 2006, a federal probation officer filed a petition to revoke
Shehadeh’s supervised release for the second time. The officer recounted that
Shehadeh had been cited repeatedly for traffic offenses and was currently facing
charges in Illinois for obstructing a peace officer, intimidation, and disorderly
conduct. The officer further alleged that Shehadeh had violated other terms of his
supervised release by leaving the district without permission, failing to report to his
probation officer as directed, and failing to participate in a mental-health program
as ordered. Before the state criminal charges were resolved, the district court
conducted a revocation hearing and determined that Shehadeh was subject to a
range of 6 to 12 months’ reimprisonment under applicable Sentencing Guidelines
policy statements for violating the terms of his supervised release. Shehadeh
admitted the alleged violations except the intimidation and disorderly conduct
charges, and the court accordingly ordered the government to present evidence of
the allegations.
In response, the government called the probation officer, who testified that
Shehadeh had been arrested in the early morning of January 28, 2006, for
obstructing a police officer in Taylorville, Illinois. According to his probation officer,
after his release from custody Shehadeh made approximately 80 telephone calls
within a two-hour span to the county sheriff’s department, the Taylorville police,
the Illinois state police, and the 911 call center; in each of these calls he complained
that he was assaulted while in the custody of the Taylorville police. After the 911
operators instructed Shehadeh to call only if he had a medical emergency or needed
to contact the fire department, he insisted that he would continue to call until a
1
In addition to committing harassment by telephone, Shehadeh failed to
notify his probation officer that he had contact with law enforcement agents. He
also had contact with students at Southern Illinois University at Carbondale, which
the conditions of his supervised release prohibited him from doing.
No. 06-1722 Page 3
police officer was sent to his house to deal with his complaint. During his calls to
the Illinois state police, Shehadeh asked whether it would “take getting a gun
involved to get anything done” and stated that someone “is going to end up getting
shot” unless he received the assistance he requested. Those statements, which were
recorded, underlie the charges for intimidation and disorderly conduct. Based on
this evidence, the district court found by a preponderance of evidence that
Shehadeh had committed the offense of intimidation,2 but not disorderly conduct.
While considering the appropriate penalty on revocation, the court heard
from Shehadeh, who apologized for the telephone calls and asked the court to
consider that he was able to maintain steady employment while he was on release
status during the previous year. Defense counsel then addressed the court,
emphasizing that Shehadeh was an Eagle Scout, and had, and was currently being
treated for, depression and “agitation.” The court went on to briefly comment on
Shehadeh’s criminal history, his history of not abiding by the conditions of his
supervised release, and the pending state charges; it concluded that Shehadeh was
a threat to himself and to others. The court then adopted the recommended
sentencing range of 6 to 12 months’ reimprisonment and imposed a 12-month term
to “run consecutive to whatever he gets on the [state] charge up there.”
II. Analysis
Shehadeh makes two arguments on appeal. First, he contends that the
district court exceeded its authority under 18 U.S.C. § 3584(a) when it ordered the
new term of imprisonment to run consecutively to a state sentence that had not as
of that date been imposed. Second, he argues that the 12-months’ imprisonment is
unreasonably long.
The government concedes that under United States v. Romandine, 206 F.3d
731 (7th Cir. 2000), the district court committed error when running Shehadeh’s
term of reimprisonment consecutively to the unimposed state sentence. We agree,
as section 3584(a) permits a district court to run a term of imprisonment
consecutively to another term only when both are imposed at the same time or the
other term was previously imposed, but not consecutively to an unimposed term of
imprisonment. 18 U.S.C. § 3584(a); Romandine, 206 F.3d at 738.
2
A person commits intimidation when he communicates to another
person a threat to inflict physical harm on the person threatened or any other
person, or to expose any person to hatred, contempt or ridicule. See 720 Ill. Comp.
Stat. 5/12-6.
No. 06-1722 Page 4
We are thus left to determine the appropriate remedy for the district court’s
error. Although Shehadeh and the government agree that the district judge
improperly ordered that Shehadeh’s federal term was to run consecutive to the
imposition an anticipated state sentence, they do little to explain how the judgment
in its present form actually harms Shehadeh. Shehadeh argues that he is harmed
because the district court’s order “effectively limit[s] the state court’s ability to
impose a sentence that will run concurrent with the federal sentence.” If the state
takes custody of Shehadeh before he serves his federal sentence, he argues, the
order will prevent the Bureau of Prisons (“BOP”) from crediting any time spent in
state custody toward his federal sentence. Thus, he asks that his federal prison
term be vacated and the case remanded so the sentencing court can remove the part
of the order that mandates that the sentence run consecutive to any future
anticipated sentence. The government, in contrast, essentially states that
Shehadeh has, to date, suffered no harm, and accordingly suggests a remand for the
limited purpose of amending the judgment to eliminate the objectionable language.
Shehadeh is mistaken in thinking that the judgment in its present form will
limit the state court’s discretion when sentencing him. In instances when a
criminal defendant is sentenced by more than one court, it is the second sentencing
court that has the authority to run its imposed sentence concurrently or
consecutively. See Romandine, 206 F.3d at 738 (“The next judge in line may make
service concurrent in practical effect. For example, the state judge could have given
[the defendant] a discount of 10 months on account of his undischarged federal
sentence.”); see also United States v. Quintero, 157 F.3d 1038, 1041 (6th Cir. 1998)
(explaining policy considerations as to why authority to run sentences concurrent or
consecutive lies with the second sentencing tribunal). In fact, the district court’s
directive that the federal term run consecutively is void; it cannot bind the state
court, and neither can it bind the BOP. See Romandine, 206 F.3d at 738 (explaining
that Attorney General, through the BOP, has discretion to decide whether a later-
imposed sentence should run concurrently or consecutively to federal term, and that
discretion must be exercised “without supposing that the district judge’s
views . . . forbid concurrent sentence”); see also Abdul-Malik v. Hawk-Sawyer, 403
F.3d 72, 76 (2d Cir. 2005) (“Federalism concerns are implicated because the federal
BOP is given the effective authority to enforce (or not) a state court’s determination
that a state sentence should run concurrently.”); Barden v. Keohane, 921 F.2d 476,
482-84 (3d Cir. 1999) (“[T]he Bureau [of Prisons] failed to recognize its own power
because it mistakenly thought that it was solely within the province of the
sentencing court to determine concurrency; however, the sentencing court not only
was unable to order concurrency because it sentenced [defendant] before the state
did but was actually powerless to do so.”).
We believe it proper to remand the case to the district court to allow it to
enter a corrected judgment to ensure that no future question or confusion arises
No. 06-1722 Page 5
from the present judgment. But we refuse to embrace Shehadeh’s suggested
remedy of a full resentencing. In fact, vacating the term of imprisonment and
starting fresh would be pointless—and possibly detrimental—as far as Shehadeh is
concerned. For reasons unexplained, Shehadeh has failed to advise us whether the
state proceedings have been resolved, or if not when they will be resolved, much less
how much time he has to serve on his 12-month prison term (the BOP website gives
his projected release date as “unknown”). In fact, what evidence Shehadeh has
proffered suggests that his federal term will probably expire before any action is
taken by the state. But if the state proceedings have been resolved, then
Shehadeh’s demand for “full resentencing” would open the door for the district court
to do exactly what it tried to do: impose the federal term consecutively to the (now
existing) state sentence under § 3584(a). Thus, reentering the judgment without
the directive to run the terms of confinement consecutively is the more appropriate
remedy.
Shehadeh’s challenge to his 12-month term of imprisonment on
reasonableness grounds likewise fails. He does not dispute that his range of 6 to 12
months was properly calculated, and since the term imposed falls within that range
it is presumptively reasonable. See United States v. Davis, 442 F.3d 1003, 1010 (7th
Cir. 2006) (citing United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005));
United States v. Castro-Juarez, 425 F.3d 430, 433 (7th Cir. 2005) (“[R]eview of a
prison term imposed upon revocation [of supervised release] has always been for
reasonableness . . . .”). Shehadeh argues that the district court misapplied § 3553(a)
by failing to properly weigh such mitigating facts as the nature and circumstances
of his intimidation offense, his history of steady employment, and his history of
depression and “agitation.” He concedes that the district court addressed these
facts. Simply because the court gave different weight to these facts does not make
his sentence unreasonable. See United States v. Baker, 445 F.3d 987, 991-92 (7th
Cir. 2006); United States v. Ortiz, 431 F.3d 1035, 1042-43 (7th Cir. 2005)).
III. Conclusion
We AFFIRM the district court’s imposition of a 12-month term of
reimprisonment, but REMAND with instructions to the original sentencing court to
enter a corrected judgment and omit the directive of a consecutive federal term.