United States v. Musab Masmari , 609 F. App'x 939 ( 2015 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 17 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-30155
Plaintiff - Appellee, D.C. No. 2:14-cr-00122-RSM-1
v.
MEMORANDUM*
MUSAB MOHAMMED MASMARI,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding
Argued and Submitted July 7, 2015
Seattle, Washington
Before: NGUYEN and FRIEDLAND, Circuit Judges and CARNEY,** District
Judge.
Musab Mohammed Masmari pled guilty to a single count of arson, 18
U.S.C. § 844(i). He appeals his above-Guidelines sentence of 120 months’
imprisonment followed by 3 years of supervised release. We have jurisdiction
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Cormac J. Carney, District Judge for the U.S. District
Court for the Central District of California, sitting by designation.
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.
Because Masmari failed to object below, we review whether the district
court complied with Federal Rule of Criminal Procedure 32(h) for plain error.
United States v. Evans-Martinez, 530 F.3d 1164, 1167 (9th Cir. 2008). Even
assuming that the district court failed to adhere to the strict letter of Rule 32(h), the
error did not “affect[] [Masmari’s] substantial rights,” see Evans-Martinez, 530
F.3d at 1167 (quoting United States v. Ameline, 409 F.3d 1073, 1078 (9th Cir.
2005) (en banc)), because Masmari has not demonstrated “the probability of a
different result . . . sufficient to undermine confidence in the outcome” of the
sentencing. Ameline, 409 F.3d at 1078 (quoting United States v. Dominguez
Benitez, 542 U.S. 74 (2004)). The plea agreement established that the parties
would jointly recommend the mandatory minimum of 60 months’ imprisonment.
Thus, the primary issue at sentencing was whether a longer sentence should be
imposed. This issue was thoroughly addressed in the PSR, the parties’ sentencing
memoranda, and at the hearing. As a result, the underlying purpose of Rule
32(h)—“to ensure that issues with the potential to impact sentencing are fully
aired,” Evans-Martinez, 530 F.3d at 1168—was served in this case, and Masmari
failed to show a “probability of a different result” sufficient to justify reversal on
2
plain error review.1 See Ameline, 409 F.3d at 1078.
Masmari’s sentence was otherwise procedurally reasonable. See United
States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010). The district
court adequately explained the sentence imposed, discussing the factors set forth in
18 U.S.C. § 3553 as they related to Masmari and the offense conduct. See, e.g.,
Gall v. United States, 552 U.S. 38, 53–56 (2007). Moreover, the district court did
not cross-reference to the Guideline for attempted murder. See U.S. Sentencing
Guidelines Manual §§ 2A2.1, 2K1.4(c) (2013). It merely observed in passing that
the sentence imposed was close to what the sentence would have been if the cross-
reference had been used. Thus, Masmari was not entitled to an evidentiary
hearing as to whether he acted with the “inten[t] to cause death or serious bodily
injury.” Id. § 2K1.4(c). Similarly, the district court did not impose a hate crime
enhancement pursuant to Guideline § 3A1.1, so no evidentiary hearing was
required as to a potential hate crime motivation.
1
The government conceded plain error in Evans-Martinez, 530 F.3d at 1167–68,
so all that remained for the court to consider was whether the error “seriously
affect[ed] the fairness, integrity, or public reputation of judicial proceedings,” id. at
1167 (quoting Ameline, 409 F.3d at 1078). Thus, Evans-Martinez does not stand
for the proposition that a technical violation of Rule 32(h) always requires reversal
on plain error review.
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Finally, reviewing for abuse of discretion, United States v. Autery, 555 F.3d
864, 868–71 (9th Cir. 2009), we conclude that the sentence was substantively
reasonable, particularly in light of the large number of lives endangered by
Masmari’s conduct. See generally 18 U.S.C. § 3553(a); United States v. Carty,
520 F.3d 984, 993 (9th Cir. 2008) (en banc).
AFFIRMED.
4