United States v. Abdimanan Habib ( 2023 )


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  •                  United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 23-1594
    ___________________________
    United States of America
    Plaintiff - Appellee
    v.
    Abdimanan Bana Habib
    Defendant - Appellant
    ____________
    Appeal from United States District Court
    for the District of North Dakota - Eastern
    ____________
    Submitted: November 17, 2023
    Filed: December 27, 2023
    [Unpublished]
    ____________
    Before COLLOTON, BENTON, and SHEPHERD, Circuit Judges.
    ____________
    PER CURIAM.
    Abdimanan Bana Habib pled guilty to civil disorder in violation of 
    18 U.S.C. § 231
    (a)(3). The district court sentenced him to time served and three years of
    supervised release. Later that year, he violated the conditions of his release. The
    district court revoked his release, sentencing him to 9 months in prison and 24
    months of supervised release. The next year, he violated his second term of
    supervised release. The district court 1 revoked his release, sentencing him within
    the guidelines to 24 months in prison and 2 months of supervised release. He appeals
    his sentence. Having jurisdiction under 
    28 U.S.C. § 1291
    , this court affirms.
    I.
    Habib argues the court considered “the improper or irrelevant factor of
    ‘respect for the law’ when sentencing” him. Typically, this court reviews revocation
    sentences for abuse of discretion. United States v. Hall, 
    931 F.3d 694
    , 696 (8th Cir.
    2019). Where the defendant fails to object to the consideration of the improper factor
    at sentencing, review is for plain error. See, e.g., United States v. O’Connor, 
    567 F.3d 395
    , 397 (8th Cir. 2009). The parties disagree about what standard of review
    applies here. See United States v. Baeten, 
    691 Fed. Appx. 295
    , 296 (8th Cir. 2017)
    (“There has been some confusion in this circuit regarding the proper standard of
    review to apply in cases where, as here, the defendant failed to contemporaneously
    object to the court’s consideration of a purportedly improper or irrelevant factor.”).
    This court need not decide because his claim fails under either standard.
    Imposing a revocation sentence, courts may consider certain factors outlined
    in “section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6) and
    (a)(7).” 
    18 U.S.C. § 3583
    (e). These include, as relevant here, the nature and
    circumstances of the offense, the history and characteristics of the defendant, the
    need to afford adequate deterrence, and the need to protect the public from further
    crimes. These factors do not include those listed in 
    18 U.S.C. § 3553
    (a)(2)(A)—
    seriousness of the offense, need to promote respect for the law, and need to provide
    just punishment for the offense. See 
    18 U.S.C. § 3553
    (a)(2)(A).
    At sentencing, the district court said it must consider whether the sentence
    promotes respect for the law. It twice asked Habib what he had done “to demonstrate
    1
    The Honorable Peter D. Welte, Chief Judge, United States District Court for
    the District of North Dakota.
    -2-
    respect for the law.” Habib argues the court based its revocation sentence on an
    improper factor. But a district court’s mention of an 
    18 U.S.C. § 3553
    (a)(2)(A)
    factor is not error where the court focused primarily on the defendant’s history and
    characteristics. See Hall, 
    931 F.3d at 697
     (holding no error “where the district
    court’s use of the excluded factors was ‘immaterial’” and where the court “focused
    primarily” on the defendant’s “history and characteristics”); United States v. Dull,
    
    641 Fed. Appx. 669
    , 671 (8th Cir. 2016) (“Although § 3583(e) omits [the factors in
    
    18 U.S.C. § 3553
    (a)(2)(A)], consideration of the factors is not explicitly
    prohibited.”).
    Here, the district court focused primarily on Habib’s history and
    characteristics along with the other factors included under 
    18 U.S.C. § 3583
    (e). See
    Hall, 
    931 F.3d at 697
    . The district court focused on his persistent failure to comply
    with the terms of supervision—both in the instant proceeding and throughout his
    life—his serious, violent criminal history, and his ongoing criminal conduct. The
    district court’s reference to his ability to promote respect for the law was in the
    context of his criminal history, and the court’s mention of it was inconsequential.
    See Dull, 641 Fed. Appx. at 671 (“Furthermore, the district court’s reference to these
    factors is inconsequential because the district court imposed Dull’s sentence after
    evaluating her conduct under several § 3553(a) factors that § 3583(e) specifically
    enumerates.”). The court did not err in mentioning it. See United States v. Porter,
    
    974 F.3d 905
    , 908 (8th Cir. 2020) (noting that the district court’s “disrespect for the
    law” comment “accurately described his breach of trust” in failing to comply with
    the terms of supervised release); United States v. Mitchell, 
    798 Fed. Appx. 968
    , 970
    (8th Cir. 2020) (holding no abuse of discretion where court considered proper
    revocation factors and “also mentioned promoting respect for the law”).
    II.
    Habib argues the court erred in weighing the sentencing factors. A district
    court has “wide latitude to weigh the § 3553(a) factors in each case and assign some
    factors greater weight than others in determining an appropriate sentence.” United
    -3-
    States v. Campbell, 
    986 F.3d 782
    , 800 (8th Cir. 2021). A “defendant’s disagreement
    with the district court’s balancing of relevant considerations does not show that the
    court abused its discretion.” 
    Id.
    Habib contends the district court did “not afford adequate weight” to his
    history and characteristics. This argument is “nothing more than a disagreement
    with how the district court chose to weigh the § 3553(a) factors.” United States v.
    Brown, 
    992 F.3d 665
    , 673 (8th Cir. 2021). The district court was aware of Habib’s
    health concerns and educational aspirations, as those mitigating factors were
    discussed during the revocation hearing. See United States v. Chandler, 
    2023 WL 142444
    , at *2 (8th Cir. Jan. 10, 2023) (unpublished) (finding district court did not
    fail to consider mitigating factors when those factors were discussed at a revocation
    hearing). But it chose to assign more weight to other factors, including his refusal
    to comply with supervised release terms, lies to his probation officer, and history of
    serious, violent crimes. The court did not abuse its discretion.
    ********
    The judgment is affirmed.
    ______________________________
    -4-
    

Document Info

Docket Number: 23-1594

Filed Date: 12/27/2023

Precedential Status: Non-Precedential

Modified Date: 12/27/2023