United States v. Serar Abdullahi ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-1768
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri
Serar Ahmed Abdullahi, *
*
Appellant. *
*
*
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Submitted: January 15, 2008
Filed: March 28, 2008
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Before LOKEN, Chief Judge, MURPHY, Circuit Judge, and JARVEY, District Judge1
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JARVEY, District Judge.
Appellant Serar Ahmed Abdullahi, a naturalized Somali refugee, sent money
to individuals in his native country through an informal money transfer practice
known as a “hawala.” Abdullahi operated a hawala in Kansas City, Missouri, without
a state or federal license. After pleading guilty to one count of operating an
1
Judge John A. Jarvey, United States District Judge for the Southern District of
Iowa, sitting by designation.
unlicensed money transmitting business, Abdullahi was sentenced to forty-one months
of incarceration followed by a two year term of supervised release. Abdullahi appeals
his sentence. We affirm.
Abdullahi was charged in a twenty-five-count indictment on September 29,
2005. Count Two alleged that Abdullahi operated an unlicensed money transmitting
business between approximately October 26, 2001, and January 14, 2003, in violation
of 18 U.S.C. § 1960(b)(1)(A) and (B), and (b)(2). On August 24, 2006, Abdullahi
pleaded guilty to that charge. All remaining counts of the Indictment were dismissed
at sentencing. The district court denied downward adjustments to his base offense
level for acceptance of responsibility because it found that Abdullahi had not been
truthful about the nature of his business or the income he derived from the business.
The district court sentenced Abdullahi to a term of forty-one months of incarceration
followed by a two year term of supervised release.
Abdullahi appeals his sentence, alleging the district court (1) failed to calculate
an appropriate sentence under 18 U.S.C. § 3553(a); (2) unconstitutionally denied him
a recording of the sentencing proceeding; and (3) violated the Ex Post Facto Clause
of the Constitution by applying the amended version of 18 U.S.C. § 1960 to conduct
that occurred prior to the enactment date of the amendment.
Factual and Procedural Background.2 Abdullahi came with family members
to the United States from Somalia as a political refugee in 1992. Abdullahi and his
family settled in the Kansas City, Missouri, area. Abdullahi’s employment history
2
Unless otherwise noted, the facts contained in this section are based on the
Pre-Sentence Investigation Report (PSR) prepared by the United States Probation
Office for the district court prior to sentencing of Abdullahi on March 28, 2007.
Abdullahi originally made objections to the PSR, but withdrew those objections at the
time of sentencing.
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since 1992 includes jobs as a laborer, an operator of a Somali grocery store, and a taxi
cab driver.
From approximately January 5, 2000, to at least January 14, 2003, Abdullahi
operated a money transmitting business in Kansas City. Abdullahi did not have a state
or federal license to operate a money transmitting business. Abdullahi claimed that
he did not personally use the money that he collected, and that he did not profit from
his money transmitting business. Abdullahi stated that he charged a one-percent fee
for each monetary transaction to cover expenses. Abdullahi’s business was located
inside the Somali grocery store that he had previously operated.
Abdullahi claimed that he collected money from Somalis living in the United
States and sent it to Somalia and other African countries to assist individuals with
basic living expenses. Abdullahi maintained six bank accounts in his name and
address in the Kansas City area for the purpose of operating the money transmitting
business. Abdullahi deposited a total of $1,648,589.87 into the accounts, with
$1,165,639.88 of those deposits being made in cash. Abdullahi transferred
$1,383,545.69 in interstate and foreign commerce to locations outside the state of
Missouri. Abdullahi did not send money directly to Africa. Instead, he transferred
the money to Jubba Financial Services, Inc., a money transmitting business located
in Minneapolis, Minnesota, who then transferred the money to Africa. Abdullahi
transferred $670,707.77 to Jubba Financial Services. In January of 2002, Jubba
Financial Services was renamed Kaah Express, F.S., Inc., and Abdullahi transmitted
another $365,792.58 to Kaah Express. Abdullahi also transmitted $347,045.34 to a
bank account located in Geneva, Switzerland under the name B.P. Shah.
Guilty Plea and Sentencing. The Pre-Sentence Investigation Report (PSR)
established Abdullahi’s base offense level under the Guidelines at 22. The probation
office recommended a two-level reduction in the base offense level for acceptance of
responsibility pursuant to Guideline 3E1.1(a), as well as a one-level reduction for
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timely notification of his intent to plead guilty pursuant to Guideline 3E1.1(b).
Abdullahi’s total offense level, therefore, was 19.
On March 28, 2007, Abdullahi appeared before the district court3 for
sentencing. Although he speaks English, a Somali interpreter was provided for him
during the proceeding. Abdullahi used the Somali interpreter when he testified and
for allocution prior to the imposition of sentence. Abdullahi made no objections to
the quality of the interpreter or the translation during the proceeding. Because the
district court found that Abdullahi had not been truthful about the nature of his
business or the income he derived from his business, the district court denied the
recommended adjustments to his base offense level for acceptance of responsibility.
Accordingly, the district court established Abdullahi’s total offense level at 22, which
yielded an advisory sentencing range from forty-one to fifty-one months of
incarceration.
Abdullahi later filed a motion to produce a recording of the sentencing
proceeding. Abdullahi contended that the Somali interpreter made errors in
translation that affected the accuracy and responsiveness of Abdullahi’s testimony
before the district court. The district court denied Abdullahi’s motion to produce.
Abdullahi filed a motion for reconsideration of that decision. In support of his motion
for reconsideration, Abdullahi included sworn affidavits from two observers of the
sentencing proceeding. The two affiants, both American citizens originally from
Somalia, alleged that the Somali interpreter made errors in translation during
Abdullahi’s sentencing proceeding. The district court denied Abdullahi’s motion for
reconsideration.
3
The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri, Western Division.
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Reasonableness of Sentence. Abdullahi argues that his sentence resulted from
an unreasonable application of the factors contained in 18 U.S.C § 3553(a), and is
unreasonably disparate when compared to the sentence of probation that another
defendant received in 2006 in the Western District of Missouri.4 The government
argues that the district court properly considered the factors contained in Section
3553(a), and that Abdullahi’s sentence is reasonable. The government argues that
Abdullahi’s sentence is not unreasonably disparate when compared to the sentence of
probation imposed on another defendant because of distinct factual differences
between the two cases.
“If the sentence is within the Guidelines range, the appellate court may, but is
not required to, apply a presumption of reasonableness.” Gall v. United States, 128
S.Ct. 586, 597 (2007) (internal citation omitted); See also United States v. Garcia, 512
F.3d 1004, 1006 (8th Cir. 2008) (internal citation omitted). In reviewing a sentence,
the appellate court “must first ensure that the district court committed no significant
procedural error . . . ” Gall, 128 S.Ct. at 597. “[T]he appellate court should then
consider the substantive reasonableness of the sentence imposed under an abuse-of-
discretion standard.” Id. As a part of this review, the appellate court must take into
account the “totality of the circumstances.” Id. “A court abuses its discretion and
imposes an unreasonable sentence when it ‘fails to consider a relevant factor that
should have received significant weight; ... gives significant weight to an improper or
irrelevant factor; or ... considers only the appropriate factors but in weighing those
factors commits a clear error of judgment.’” United States v. Mousseau, No. 07-1332,
2008 WL 539235, at *3 (8th Cir. February 29, 2008) (internal quotations omitted).
The district court did not abuse its discretion in considering the factors
contained in Section 3553(a). Because Abdullahi’s sentence of forty-one months is
4
United States v. Nur, Case No. 04-00370-01-CR-W-ODS (unpublished). The
Honorable Ortrie D. Smith, United States District Judge, Western District of Missouri
served as the presiding judge in Nur.
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within the Guideline range, it carries a presumption of reasonableness on appeal.
Garcia, 512 F.3d at 1006. The transcript of the sentencing proceeding reflects that the
district court considered the factors contained in Section 3553(a). At sentencing, the
district court stated:
Even though the defendant does not have a criminal history
he certainly does have a history of defrauding the
government in relation to non-payment of taxable income,
food stamp violations, his subsidized housing arrangement
that he was receiving, payment of rent and the
circumstances in relation to his obtaining a commercial
drivers license.
At any rate, I believe that a sentence within the range
recommended by the guidelines is reasonable and
appropriate. In that case, it does reflect the seriousness of
defendant’s conduct, that it would serve to promote respect
for the law and provide just punishment for the offense as
well as deter future criminal conduct. And given the
defendant’s history of defrauding the government, it would
additionally serve to protect the public from future criminal
conduct of the defendant.
For that reason and taking into consideration the defendant
does not have a previous criminal history, I believe that a
sentence at the low end of the guidelines ranges is a
reasonable and appropriate sentence and I am going to
sentence the defendant to a term of 41 months in the
custody of the Bureau of Prisons on Count Two of the
Indictment.
Although the district court did not explicitly mention the factor of unwarranted
sentencing disparities between defendants with similar records guilty of similar
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conduct, we find that the district court properly considered it.5 The district court took
judicial notice of a pending sentencing order in United States v. Nur, No. 04-00370-
01-CR-W-ODS at Abdullahi’s request. “The relevant inquiry is not whether the
district court quoted or cited § 3553(a); it is whether the district court actually
considered the § 3553(a) factors and whether ‘our review of these statutory factors
leads us to conclude that they support the reasonableness of the district court’s
sentencing decision.’” United States v. Long Soldier, 431 F.3d 1120, 1123 (8th Cir.
2005) (internal quotation omitted). After reviewing the statutory factors, we find that
they support the reasonableness of the district court’s sentencing decision.
Accordingly, we find that the district court did not abuse its discretion.
Denial of Motion for a Recording of the Sentencing Proceeding. Abdullahi
next contends that the district court violated his right to be meaningfully present at
his own trial by refusing to provide him with a recording of the Somali interpreter
used at sentencing. In support of this argument, Abdullahi submits affidavits from
Abdikarim Hassan Kassim and Mohammed Abdullahi, two American citizens
originally from Somalia, who claim to have attended Abdullahi’s sentencing. These
affidavits indicate that the interpreter improperly translated four questions and
answers.
First, the affiants contend that the following question and answer were given
at sentencing:
5
Abdullahi argues that his sentence is unreasonable because in 2006, another
judge of the same district court sentenced defendant Ahmed Abdi Nur to probation
after he pleaded guilty to one count of operating an unlawful money transmitting
business in connection with another hawalah. While the cases of Nur and Abdullahi
share some factual similarities, Nur qualified for application of U.S.S.G. §
2S1.3(b)(3), which capped his total offense level at 6. After additional adjustments,
the district court established Nur’s total offense level at 4. The difference between the
total offense levels for Nur and Abdullahi adequately accounts for the disparity
between their sentences.
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Q. What percentage of the money were you receiving?
A. I'm getting paid.
The court has examined the transcript of the defendant's testimony and cannot find
this question or this answer. The affiants claim that the correct translation would
have been, "I'm not getting paid." However, the transcript reveals that on no fewer
than five occasions Abdullahi denied getting paid for his services or implied the same
by indicating that he was only reimbursed for his expenses. (Tr. 44, 49, 50, 53, 54).
Second, the affiants claim the following question and answer were given:
Q. Did you charge a fee?
A. Yes, I charged rent.
They claim that the proper translation of the answer would have been, "Yes, I
charged a fee." Again, this question and answer do not appear in the sentencing
transcript. That transcript reveals that the prosecutor inquired as to whether
Abdullahi was using his subsidized housing to operate the unlawful business or claim
the subsidy as one of the expenses for which he was reimbursed. Abdullahi denied
charging rent as an expense and stated, "I paid rent." Although the affiants claim that
the Abdullahi's answer should have been translated as, "Yes, I charged a fee," such
an answer would be inconsistent with the five or more occasions noted above where
the Abdullahi denied charging a fee.
The affiants further claim that the following question and answer were given:
Q. Do you know what is going on in south Somalia – Do you have
any contacts there?
A. Yes, I have contacts there.
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The affiants claim that a proper translation should have been as follows, "A: I am
aware of what is going on there, but only through what I have seen on TV." Again,
the court cannot find that question or that answer in the defendant's testimony. The
transcript reveals that Abdullahi was examined about his knowledge of United States
warships that had launched attacks into southern Somalia, Al Qaeda's presence in
Somalia, and Al Qaeda's receipt of shelter and cover from the Union of Islamic
Courts in Somalia. Abdullahi generally denied any knowledge of any of these
activities.
Finally, the affiants claim that the following question and answer were given:
Q. Who are the people who used your services?
A. The people who used my services are everywhere.
The affiants do not actually contend that there was a mistranslation here. Rather, one
of them claims that he could "see" that Abdullahi misunderstood the question. As
with the other alleged questions and answers, these cannot be found in the transcript
of the sentencing. Rather, Abdullahi testified that he knew the majority of his
customers and was impeached with his prior inconsistent statement in which he told
the FBI that he only knew five percent of them.
For the reasons set forth above, this court finds that the factual premise for this
portion of the appeal does not exist as claimed. The affiants are simply wrong about
questions and answers that they claim to have observed. Abdullahi is entitled to no
relief in this regard.
D. Ex Post Facto Application of 18 U.S.C. § 1960. Abdullahi argues that the
district court violated the Ex Post Facto Clause by applying the amended version of
18 U.S.C. § 1960 to conduct he committed prior to the enactment date of the
amended statute. On October 26, 2001, 18 U.S.C. § 1960 was amended when the
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President signed into law the USA PATRIOT ACT of 2001, Pub.L. 107-56, Title III,
§ 373(a), 115 Stat. 339 (codified as amended at 18 U.S.C. § 1960 (2001)). The
amended version of the statute went into effect on October 26, 2001.6 See President’s
Remarks on Signing of the USA PATRIOT ACT of 2001, 37 WEEKLY COMP. PRES.
DOC. 1550-52 (Oct. 26, 2001) (“The changes, effective today, will help counter a
threat like no other our Nation has ever faced.”). Abdullahi pleaded guilty to
violating 18 U.S.C. § 1960(b)(1)(A) and (B), and (b)(2), between approximately
October 26, 2001, and January 14, 2003. At sentencing, the district court found that
Abdullahi’s offense conduct spanned from approximately January 5, 2000, to January
14, 2003.
Abdullahi argues that prior to the amendment, the statute required the
government to prove that the defendant knew that the operation of an unlicensed
money transmitting business was illegal. The amendment, Abdullahi argues,
removed from the statute the knowledge of illegality requirement. Thus, Abdullahi
argues that 1) his guilty plea should be set aside as unknowing and involuntary
because Count Two of the Indictment did not allege that Abdullahi knew the
operation of unlicensed money transmitting business was illegal; and 2) the district
court erred when it included in its sentencing calculations monetary amounts from
transactions that Abdullahi made prior to the amendment of the statute. The
government argues that the conduct to which Abdullahi pled guilty in Count Two of
the Indictment occurred on and after the effective date of the amendment. Thus, the
6
In his brief, Abdullahi makes several erroneous assertions regarding the date
that 18 U.S.C. § 1960 was amended. On page 44 of his brief, Abdullahi asserts that
18 U.S.C. § 1960 was amended on November 20, 2001. On pages 45 and 46 of his
brief, Abdullahi asserts three times that 18 U.S.C. § 1960 was amended on November
1, 2001. These erroneous assertions appear to provide the basis for Abdullahi’s
argument that the district court unconstitutionally applied the amended version of the
statute to Abdullahi’s conduct between the dates of October 26, 2001, and November
1, 2001 or November 20, 2001.
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government argues, the district court did not apply the amended 18 U.S.C. § 1960 in
violation of the Ex Post Facto Clause.
Abdullahi did not raise this issue in the district court. This Court reviews
issues that are not raised in the district court for plain error. FED. R. CRIM. P. 52(b).
While this Court has discretion to correct a forfeited error, the Court should not
exercise such discretion unless the error “seriously affect[s] the fairness, integrity, or
public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 732
(1993) (internal quotations omitted). “To show that he is entitled to plain error relief,
[the defendant] bears the burden of showing prejudice - that is, he must show ‘a
reasonable probability that the outcome would have been different absent the alleged
error.’” United States v. Smith, 508 F.3d 861, 865 (8th Cir. 2007) (internal quotations
omitted).
Abdullahi’s guilty plea to Count Two of the Indictment does not violate the Ex
Post Facto Clause of the Constitution. The Ex Post Facto clause is violated when a
law defining a crime or increasing punishment for a crime 1) is applied to events that
occurred before its enactment, and 2) disadvantages the affected offender. United
States v. Carter, 490 F.3d 641, 643 (8th Cir. 2007). Count Two of the indictment
alleged a violation of the statute after the effective date of its amendment. Amounts
transmitted prior to that amendment were appropriately considered as relevant
conduct under the Guidelines. No Ex Post Facto Clause violation occurred.
Abdullahi also failed to meet his burden to show that he was prejudiced by the
district court’s inclusion in sentencing calculations of monetary amounts from
transmissions that Abdullahi made prior to October 26, 2001. The district court
adopted the PSR’s uncontradicted allegation that $1,648,589.87 was illegally
transferred by the defendant and used it to determine Abdullahi’s sentencing range
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pursuant to Guideline 2S1.3(a)(2).7 Abdullahi does not attempt to identify the
amount of money that was transmitted prior to October 21, 2006. He does not claim
or provide proof that his sentencing range would have been different if the district
court excluded transmissions of money prior to October 26, 2001. When reviewed
for plain error, the Court of Appeals will not disturb the decision of a district court
unless the defendant shows that the alleged error is prejudicial. See, e.g., United
States v. Bailey, 206 Fed Appx. 650, 652-53 (8th Cir. 2006) (upholding sentence on
plain error review when defendant failed to show that district court’s error affected
the Guidelines range).
Abdullahi’s sentence is affirmed.
7
Guideline 2S1.3(a)(2) contains a formula for determining the base offense
level of a defendant convicted of violating 18 U.S.C. 1960. Under Guideline
2S1.3(a)(2) a defendant’s base offense level is 6 plus the number of offense levels set
out in a table in Guideline § 2B1.1. The offense levels set out in the Guideline 2B1.1
table are based on the amount of funds involved in the offense. The district court
determined that between approximately January 5, 2000 to January 14, 2003,
Abdullahi transferred $1.648,589.87 through his unlicensed money transmitting
business. Because Abdullahi’s offense involved more than $1 million but less than
$2.5 million, 16 offense levels were added pursuant to Guideline 2B1.1(b)(1)(I).
Thus, Abdullahi’s base offense level was 22.
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