United States v. Mohamed ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
No. 05-50253
v.
ZAMEER NOORALLA MOHAMED, aka  D.C. No.
CR-04-00609-PA
Al, aka Samier Hussain, aka
OPINION
Zameer Mohamed,
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted
February 17, 2006—Pasadena, California
Filed August 11, 2006
Before: Betty B. Fletcher, A. Wallace Tashima, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge B. Fletcher
9399
9402 UNITED STATES v. MOHAMED
COUNSEL
Michael Tanaka, Deputy Federal Public Defender, Los Ange-
les, California, for the defendant-appellant.
Erik M. Silber, Assistant United States Attorney, Los Ange-
les, California, for the plaintiff-appellee.
OPINION
B. FLETCHER, Circuit Judge:
On April 23, 2004, Zameer Nooralla Mohamed telephoned
the Department of Homeland Security from a hotel room in
Calgary, Canada, and made a phony bomb threat, claiming
that four of his acquaintances were terrorists involved in a
plot to bomb several shopping malls near a federal building
in Los Angeles, California. After expending considerable
resources to protect against the threat and identify its perpe-
trator, law enforcement officials located and arrested
Mohamed. A district court sentenced him to a prison term of
five years for violating 18 U.S.C. § 844(e), which prohibits
the use of a telephone to “make[ ] any threat” or “maliciously
convey[ ] false information knowing the same to be false”
regarding an attempt to “destroy any building, vehicle, or
other real or personal property by means of fire or an explo-
sive.” Mohamed now appeals his sentence. We have jurisdic-
tion under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we
affirm.
UNITED STATES v. MOHAMED 9403
I
Mohamed is a native and citizen of Tanzania. He entered
the United States on a tourist visa in 1999. He overstayed his
visa and spent four years living and working in Los Angeles,
Houston, and Detroit. During this time, he became the subject
of an FBI investigation as the result of alleged criminal activi-
ties including theft and fraud. This investigation produced
evidence connecting him to the fraudulent use of identifica-
tion cards in Texas and California, the fraudulent use of social
security numbers to open bank accounts, and the theft of
approximately $13,000 from various individuals, including a
former roommate and a former employer. Mohamed eventu-
ally left the United States in January of 2003 and crossed the
border into Canada, where he worked first in Montreal as a
telemarketer and then in Toronto as a customer service agent
for the Royal Bank of Canada.
In April of 2004, Mohamed used a telephone calling card
to place a call to the Department of Homeland Security. He
provided a false name and stated that he was a former mem-
ber of an al Qaeda cell. He reported that a terrorist group with
ties to India and Pakistan was planning an attack on the
United States. He named four purported attackers — all
acquaintances of his — and said they would be traveling to
the United States from Canada on fake passports. He stated
that the targets of the attack were several shopping malls near
the UCLA campus, close to a federal building in the West-
wood area of Los Angeles. Mohamed indicated that the
attacks would take place within one week, on April 29, 2004.
He claimed he was providing this information to improve his
chances of becoming a United States citizen.
In fact, Mohamed knew that the information was false and
that there was no planned attack. He later admitted that the
hoax was an attempt to impose retribution on the four individ-
uals he named, including a colleague at Royal Bank who
owed him money. He explained that he chose Los Angeles as
9404 UNITED STATES v. MOHAMED
a target because he was familiar with that location from time
spent in Los Angeles. He admitted that neither he nor any of
the four individuals he named had ever been a member of a
terrorist organization. He further confessed that he got the
idea for the hoax when, following a confrontation with his
colleague, he spotted a government poster with a terrorist-tip
hotline at a bus station in Calgary. Although he contends that
he had no intention of committing any act of terrorism, he
admits that he wanted the threat to be taken seriously because
he was angry at his acquaintances and wanted them to “go to
jail.”
Law enforcement agencies took the threat seriously,
indeed, and devoted substantial resources to investigating and
preventing the purported attack. The organizations that inves-
tigated the threat and provided additional security on the day
of the threatened attack included: the FBI Joint Terrorism
Task Force, four divisions of the Los Angeles Police Depart-
ment (LAPD), the Los Angeles County Sheriff’s Department,
the Los Angeles City Fire Department, the California High-
way Patrol, the United States Border Patrol, and the Royal
Canadian Mounted Police. Officials detained and questioned
Mohamed’s acquaintances in connection with the threatened
terrorist strike. In addition, the hoax disrupted business in the
targeted areas. Various media outlets broadcast news of the
threat, and the LAPD distributed flyers to warn local busi-
nesses about the purported impending attack. Business owners
at or near the targeted shopping mall reported that the hoax
“completely shut down business,” with some estimating that
the bomb threat reduced sales by as much as sixty-five or
eighty-five percent and that it reduced foot traffic in the
affected shopping mall by thousands of people.
By tracing the origin of the calling card used to place the
threat, as well as records from the hotel from which the call
was made, the government identified Mohamed as the perpe-
trator of the hoax. Border patrol agents ultimately located him
on a farm near Scobey, Montana, where he had just reentered
UNITED STATES v. MOHAMED 9405
the country. The government filed a one-count indictment
against Mohamed, alleging a violation of 18 U.S.C. § 844(e),
and subsequently amended the indictment to include an alle-
gation that “the offense resulted in a substantial disruption of
public, governmental, or business functions or services.”
Mohamed pled guilty.
The presentence investigation report (PSR) recommended
a sentencing range of twelve to eighteen months. First, the
PSR started with a base offense level of twelve for the viola-
tion of 18 U.S.C. § 844(e). See U.S.S.G. § 2A6.1(a). Next, it
added a four-level increase because Mohamed’s hoax resulted
in “a substantial disruption of public, governmental, or busi-
ness functions or services.” Id. § 2A6.1(b)(4). It then sub-
tracted three levels for Mohammed’s acceptance of
responsibility. Id. §§ 3E1.1(a), (b). These calculations pro-
duced a total offense level of thirteen, which, combined with
Mohamed’s Category I criminal history, yielded a sentencing
range under the advisory guidelines of twelve to eighteen
months.
In response to the PSR, the government urged the district
court to award only two points, rather than three, for accep-
tance of responsibility. Further, the government sought an
upward departure of twelve levels because of the unusually
disruptive nature of the hoax. Taking these two calculations
into account, the government recommended a sentence of
seventy-eight months, at the high end of the applicable guide-
lines range. Mohamed argued that the PSR’s suggested range
already included an enhancement for the disruption caused by
the hoax and that any additional enhancement based on that
aspect of the crime would be inappropriate. He requested the
judge to impose a sentence within the PSR’s suggested range.
At sentencing, the district court found that the advisory
guideline range of twelve to eighteen months did not reflect
the seriousness of Mohamed’s crime. The judge stated that an
enhanced sentence was necessary “because of the significant
9406 UNITED STATES v. MOHAMED
disruption of governmental functions caused by the Defen-
dant’s conduct, the seriousness of the conduct in light of the
events of the September 11th [attacks], the importance of
deterring others from such reckless behavior, the harm caused
to, literally, hundreds, if not thousands, of people, innocent
people in this city, and the harm caused . . . to the four indi-
viduals targeted by this Defendant.” Accordingly, the district
court applied an eight-level “upward adjustment.” This adjust-
ment brought the total offense level to twenty-one, which pro-
duced an advisory guidelines range of thirty-seven to forty-six
months.
Even with the eight-level upward adjustment, however, the
district court still felt that “the circumstances of this case war-
rant a period of incarceration greater than that contemplated
by the advisory guidelines.” The district court recited the sen-
tencing considerations set forth in 18 U.S.C. § 3553(a) and
stated that it had considered the application of these sentenc-
ing goals to the facts of Mohamed’s case. In explaining its
decision to impose a sentence beyond the guidelines range,
the district court pointed to the defendant’s personal history
and to the extraordinary impact of the threat. The court noted
the defendant’s past conduct, which included “use of aliases,”
“money that’s turned up missing,” and “a history of engaging
in little penny-ante [criminal] conduct.” The district court
concluded that Mohamed was “nothing more than a small-
time thief and con man” and that it was necessary to impose
a “sufficiently punitive custodial sentence . . . to afford pro-
tection to the public.” The court also stated that the sentence
would have been even higher “but for your lack of criminal
history.” Finally, the court noted “the heightened gravity and
seriousness of this offense in the context of September 11th,
and the importance of deterring others from such reckless
conduct.” Again, it noted that the threat “scared people, dis-
rupted local businesses as well as local and federal law
enforcement . . . [and] targeted four innocent people.” Ulti-
mately, the court decided “that a 60-month sentence reflects
the seriousness of this offense, will promote respect for the
UNITED STATES v. MOHAMED 9407
law, and will protect the public from you and will serve as a
deterrent to others.” Exercising its discretion under United
States v. Booker, 543 U.S. 220 (2005), the district court
imposed a sixty-month sentence.
Mohamed now appeals. He argues that his sentence vio-
lates due process and is unreasonable under Booker.
II
Mohamed contends that his sentence runs afoul of ex post
facto principles. He notes that he committed his crime when
the sentencing guidelines were mandatory, that the Supreme
Court subsequently rendered the guidelines advisory in its
decision in United States v. Booker, see 543 U.S. at 245, and
that the district court exercised its new-found discretion under
Booker to impose a harsher sentence than the madatory guide-
lines had allowed. Thus, the effect of Booker was to allow a
lengthier sentence than the law would have permitted at the
time Mohamed committed the crime, a result that he argues
is constitutionally impermissible.
[1] Mohamed’s argument, however, is foreclosed by United
States v. Dupas, 417 F.3d 1064 (9th Cir. 2005), amended by,
419 F.3d 916. In that case, we explained that, in the Ninth
Circuit, due process limitations on the retroactive application
of judicial decisions apply “only to after-the-fact increases in
the scope of criminal liability and not to retroactive sentence
enhancements.” Id. at 920 (quoting Holgerson v. Knowles,
309 F.3d 1200, 1202 (9th Cir. 2002) (citing United States v.
Newman, 203 F.3d 700, 703 (9th Cir. 2000))). We therefore
rejected the defendant’s argument that his post-Booker sen-
tence was unconstitutional, even though it allowed the district
court to impose punishment under a different sentencing
regime than would have been used at the time of the crime’s
commission. Dupas squarely controls the outcome here, and
we are bound by that decision. Even though the retroactive
application of Booker may have resulted in a harsher sentence
9408 UNITED STATES v. MOHAMED
than would have been imposed under the governing law at the
time Mohamed made his bomb threat, Dupas compels us to
hold that this result does not violate the Due Process Clause.
See also United States v. Mix, 2006 WL 1549737, at *6-7 (9th
Cir. June 8, 2006); United States v. Staten, 2006 WL
1542835, at *4 (9th Cir. June 7, 2006).
III
Mohamed also asserts that his sentence is unreasonable
under Booker. He notes that the sixty-month sentence
imposed by the district court was several times longer than
any sentence he could have received under the applicable
guidelines range, and he argues that district court’s justifica-
tions for imposing this longer sentence — his past “penny-
ante” criminal conduct, the need to protect the public from
him, the need to provide both general and specific deterrence
for crimes as reckless as his bomb threat, the comparatively
serious and harmful nature of the threat in an age of terrorism,
and the substantial disruption caused by the hoax — were
insufficient to sustain the sentence and improperly duplicative
of factors that were already taken into account by the advisory
guidelines.
A.
[2] We pause here to discuss our approach to reviewing
post-Booker sentences. As is well known by now, the
Supreme Court’s decision in Booker marked a major transfor-
mation in the law of federal criminal sentencing. A five-
Justice majority concluded in Booker that the system of man-
datory guidelines was unconstitutional because it violated the
Sixth Amendment’s requirement that “[o]ther than the fact of
a prior conviction, any fact that increases the [maximum pen-
alty to which a defendant may be subjected] must be submit-
ted to a jury, and proved beyond a reasonable doubt.” 543
U.S. at 231 (quoting Apprendi v. New Jersey, 530 U.S. 466,
490 (2000)). A different five-Justice majority, however, con-
UNITED STATES v. MOHAMED 9409
cluded that the appropriate remedy for this constitutional
defect was not to eliminate judicial factfinding nor to require
a standard of reasonable doubt in sentencing proceedings, but
to make the sentencing guidelines “effectively advisory.” Id.
at 245. After excising those portions of the Sentencing
Reform Act that had made the guidelines mandatory, the
Booker Court inferred from the provisions that remained “a
practical standard of review already familiar to appellate
courts: review for ‘unreasonable[ness]’ ” Id. at 261 (citing 18
U.S.C. § 3742(e)(3) (1994 ed.)). The Court thus instructed
that district courts “must consult” the now-advisory guide-
lines, even though they are not bound by them, id. at 264, and
it held that sentences are subject to review to determine
“whether a sentence is unreasonable” in light of the “numer-
ous factors” set forth in 18 U.S.C. § 3553(a), including the
applicable advisory guidelines range. Id.
Consistent with the Supreme Court’s remedial holding, we
review post-Booker criminal sentences in two steps. First, we
determine whether the district court properly calculated the
applicable range under the advisory guidelines.1 United States
v. Cantrell, 433 F.3d 1269, 1279 (9th Cir. 2006); see also
United States v. Kimbrew, 406 F.3d 1149, 1151-52 (9th Cir.
2005). In evaluating the district court’s application of the
advisory guidelines, we review its construction of the guide-
lines de novo and we review any factual findings made by the
district court for clear error. Cantrell, 433 F.3d at 1279. We
review the district court’s application of the guidelines to the
facts of the case for abuse of discretion. Id. If the district court
improperly applied the advisory guidelines and the error in
application was not harmless, we will remand for resentenc-
ing. Id.; see also 18 U.S.C. § 3742(f)(1) (requiring remand
1
We have reserved judgment on the question of whether there are
instances in which a precise calculation under the guidelines might be
unnecessary to satisfy Booker’s requirement that the district courts “must
consider” the advisory scheme, and we do not address that issue here. See
Cantrell, 433 F.3d at 1279 n.3.
9410 UNITED STATES v. MOHAMED
“for further sentencing proceedings” upon a finding that the
district court applied the guidelines incorrectly).
Second, whether the district court imposed a sentence
inside or outside the applicable advisory range, we determine
whether the sentence is reasonable. Cantrell, 433 F.3d at
1279; see also United States v. Plouffe, 436 F.3d 1062, 1063
(9th Cir. 2006), as amended, 445 F.3d 1126 (establishing
jurisdiction to review sentences within the advisory guide-
lines). We have previously explained that district courts must
provide specific reasons for their sentencing decisions, such
that the record on appeal demonstrates explicit or implicit
consideration of the sentencing factors set forth in § 3553(a).
See 18 U.S.C. § 3553(c); United States v. Miqbel, 444 F.3d
1173, 1181-82 (9th Cir. 2006); United States v. Menyweather,
431 F.3d 692, 701 (9th Cir. 2005), as amended, 447 F.3d 625;
see also United States v. Working, 224 F.3d 1093, 1102 (9th
Cir. 2000) (en banc).
[3] We have not yet had occasion to consider, however,
how to review post-Booker sentences, such as the one
involved in this case, in which a district court purports to “de-
part” under the guidelines. Here, we distinguish a departure,
by which we mean the authority of district courts under the
pre-Booker sentencing regime to issue a sentence outside of
the applicable mandatory guidelines range, from an exercise
of discretion, by which we mean the authority of district
courts, post-Booker, to impose sentences outside of the advi-
sory guidelines range. An exercise of discretion to sentence
outside of the advisory guidelines is reviewed, just like a deci-
sion to sentence inside of the applicable range, for reasonable-
ness. See, e.g., United States v. Williamson, 439 F.3d 1125,
1140-41 (9th Cir. 2006). It is still an open question of law,
however, how this court reviews so-called post-Booker “depar-
tures.”2
2
In United States v. Menyweather, this court reviewed a sentence
imposed prior to Booker that involved a downward departure. We con-
UNITED STATES v. MOHAMED 9411
We note that other circuits have different approaches to
whether “departures” still apply following the Supreme
Court’s decision in Booker and, if so, how they should be
reviewed. The Seventh Circuit, for example, has declared that
“the concept of ‘departures’ has been rendered obsolete in the
post-Booker world.” United States v. Arnaout, 431 F.3d 994,
1003 (7th Cir. 2005). Because departures were designed to
define narrowly the limits within which the district courts
could impose sentences outside the formerly mandatory
guidelines, the Seventh Circuit has held that departures are no
longer relevant in a post-Booker regime where district courts
enjoy authority, within the bounds of reason, to impose sen-
tences that fall inside or outside the now-advisory guidelines.
Id. By contrast, other circuits have held that departures are
still an important part of the post-Booker sentencing system
and that district courts must still assess their authority to
depart under the advisory guidelines. See United States v.
Selioutsky, 409 F.3d 114, 118-19 (2d Cir. 2005); United
States v. Jackson, 408 F.3d 301, 304 (6th Cir. 2005); United
States v. Hawk Wing, 433 F.3d 622, 631 (8th Cir. 2006);
United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir.
2005). These circuits have concluded that the provisions of
the guidelines relating to departures, non-binding as they are,
remain “a relevant consideration for determining the appropri-
ate Guideline sentence.” United States v. McBride, 434 F.3d
470, 476-77 (6th Cir. 2005). They have not, however, agreed
upon a uniform standard for evaluating such post-Booker
cluded that the pre-Booker departure should be reviewed, post-Booker, for
abuse of discretion. 447 F.3d at 630-31. The Menyweather panel went on
to conclude, however, that any abuse of discretion in the district court’s
decision to depart downward was harmless. Id. at 632-34. It noted that the
district court had demonstrated its determination to impose a sentence of
probation, concluded that the sentencing judge would have exercised his
newfound discretion under Booker to impose the same sentence on
remand, and held that the sentence was reasonable under Booker. Id. at
635-36. Menyweather clearly stated, however, that it did not purport to
address the question of whether and how to review post-Booker depar-
tures. Id. at 630 n.1.
9412 UNITED STATES v. MOHAMED
departures. Compare Selioutsky, 409 F.3d at 119 (reviewing
for abuse of discretion), with Jackson, 408 F.3d at 304
(reviewing for reasonableness), and Crawford, 407 F.3d at
1178 (reviewing de novo).
We think the better view is to treat the scheme of down-
ward and upward “departures” as essentially replaced by the
requirement that judges impose a “reasonable” sentence. The
discretion that the district court judge employs in determining
a reasonable sentence will necessarily take into consideration
many of the factors enumerated in Section 5K of the Sentenc-
ing Guidelines, but to require two exercises — one to calcu-
late what departure would be allowable under the old
mandatory scheme and then to go through much the same
exercise to arrive at a reasonable sentence — is redundant. In
addition, the use and review of post-Booker departures would
result in wasted time and resources in the courts of appeal,
with little or no effect on sentencing decisions. After all, if a
district court were to employ a post-Booker “departure”
improperly, the sentencing judge still would be free on
remand to impose exactly the same sentence by exercising his
discretion under the now-advisory guidelines. Such a sentence
would then be reviewed for reasonableness, in which case it
is the review for reasonableness, and not the validity of the
so-called departure, that determines whether the sentence
stands. See Hawk Wing, 433 F.3d at 633 (Loken, C.J., concur-
ring) (arguing that the task of reviewing post-Booker depar-
tures “unduly complicates our appellate task and may compel
a significant number of essentially meaningless remands”).
Further, even if a district court judge were to misapply a
departure, this error would still be subject to harmless error
review. See Menyweather, 447 F.3d at 632-34; Cantrell, 433
F.3d at 1279. Presumably, this court would then review the
sentence for reasonableness to determine whether the
improper departure was harmless. If we were to declare the
sentence reasonable, then the erroneous departure would be
harmless. See, e.g., Menyweather, 447 F.3d at 634. If we were
to declare the sentence unreasonable, then the sentence would
UNITED STATES v. MOHAMED 9413
be invalid both because of the erroneous departure and
because it is unreasonable. In any case, our review of the so-
called departure would have little or no independent value.
[4] For these reasons, we side with the Seventh Circuit and
we elect to review the district court’s application of the advi-
sory sentencing guidelines only insofar as they do not involve
departures. To the extent that a district court has framed its
analysis in terms of a downward or upward departure, we will
treat such so-called departures as an exercise of post-Booker
discretion to sentence a defendant outside of the applicable
guidelines range. In other words, any post-Booker decision to
sentence outside of the applicable guidelines range is subject
to a unitary review for reasonableness, no matter how the dis-
trict court styles its sentencing decision.
[5] We do not mean to suggest, however, that the pre-
Booker system of departures should be ignored. That system
reflected the Sentencing Commission’s judgment about what
types of considerations should or should not take a case out
of the “heartland of typical cases” such that an extra-
guidelines sentence would be justified. Koon v. United States,
518 U.S. 81, 94 (1996). If a district court’s reasons for exer-
cising its post-Booker discretion coincide with the factors
allowed or encouraged under the pre-Booker system of depar-
tures, such overlap may suggest that the sentencing decision
was reasonable. See Hawk Wing, 433 F.3d at 633 (Loken,
C.J., concurring) (“The district court must give reasons for
sentencing outside a properly determined guidelines range.
Explaining whether those reasons are consistent with prior
limitations on the court’s departure authority under the man-
datory guidelines will obviously assist this court in determin-
ing on appeal whether the sentence is reasonable . . . .”). Our
holding today does not preclude consultation of the system of
departures that existed under the mandatory regime, either by
the district court or by this court. Rather, out of a recognition
that the concept of formal departures has become anachronis-
tic, we hold that any deviation from the applicable advisory
9414 UNITED STATES v. MOHAMED
guidelines range will be viewed as an exercise of the district
court’s post-Booker discretion and reviewed only for reason-
ableness.
B.
[6] Applying these principles to the facts of Mohamed’s
case, we find that the district court properly calculated the
applicable range under the advisory guidelines. The court cor-
rectly identified Mohamed’s base offense level for the bomb
threat, U.S.S.G. § 2A6.1(a), there was ample evidence to sup-
port the four-level enhancement for “a substantial disruption
of public, governmental, or business functions or services,”
id. § 2A6.1(b)(4), and the district court was well within its
discretion to award a reduction of three points for Moham-
med’s acceptance of responsibility, id. §§ 3E1.1(a), (b).
[7] The more difficult question in this case is whether the
sentencing court’s decision to impose a sixty-month sentence,
which far exceeded the advisory guidelines range of twelve to
eighteen months, was reasonable. We hold that it was.
Although the sentence imposed is substantially higher than
what the advisory guidelines had recommended, we are satis-
fied that the district court acted reasonably when it decided to
go outside those guidelines and impose a five-year sentence.
[8] We note initially that the sentencing guidelines antici-
pate their own inadequacy in the context of bomb threats.
“The [Sentencing] Commission [has] recognize[d] that this
offense includes a particularly wide range of conduct and that
it is not possible to include all of the relevant circumstances
in the offense level.” UNITED STATES SENTENCING GUIDELINES
MANUAL § 2A6.1 cmt. 3(A). Thus, the very nature of the
crime in this case suggests the limitations of the advisory
guidelines and recommends a careful assessment of the facts.
Here, the sentencing court’s decision reflects careful applica-
tion of the sentencing factors set forth in 18 U.S.C. § 3553(a)
to the facts of Mohamed’s case, as the Supreme Court’s deci-
UNITED STATES v. MOHAMED 9415
sion in Booker requires. For example, the district court explic-
itly noted that it had “examined and considered the nature and
circumstances of the offense” and found that the advisory
guidelines did not accurately reflect the seriousness of
Mohamed’s crime. See 18 U.S.C. § 3553(a)(2)(A). It noted
both the extraordinary callousness and costliness of the threat.
The court observed that Mohamed had exploited the nation’s
fear of al Qaeda in light of the terrorist attacks of September
11, jeopardized the welfare of four innocent individuals, and
frightened and affected thousands of people in southern Cali-
fornia, all in an effort to harass acquaintances with whom
Mohamed was displeased. The court further described how, as
a result of Mohamed’s threat, “multiple law enforcement
agencies were mobilized” and local businesses shut down.
The PSR details some of the costs of law enforcement and
lost business as a result of the threat, noting that the targeted
mall spent $24,000 for additional security on the day of the
attack, that an officer from the LAPD estimated that the
department expended more than $50,000 in resources to pre-
vent the bombing, and that businesses in the affected areas
typically had their revenues and their customer traffic reduced
that day by approximately forty percent.
[9] Also, Mohamed’s criminal history was not in the
“heartland” of Category I. The district court noted that the
guidelines failed to take into account “the history and charac-
teristics of the defendant” and the need to provide the public
with adequate protection from him. See 18 U.S.C.
§§ 3553(a)(1), (2)(C). While the PSR rated Mohamed as hav-
ing a minimal criminal history, the record suggests that he has
engaged in a more extensive pattern of misconduct. A federal
investigation had linked him to the fraudulent use of driver’s
licenses in Texas and in California, to the theft of $13,000
from a restaurant in Houston where he was briefly employed,
to the fraudulent use of a social security number to open an
account at the Bank of America, and to a failure to report for
an interview with the FBI regarding other suspicious activi-
ties. On top of this, the defendant had been living illegally in
9416 UNITED STATES v. MOHAMED
the country for several years and had reentered the country
illegally just prior to his arrest. On this record, we find that
it was reasonable for the district court to conclude that the
advisory guidelines did not adequately take into account
Mohamed’s significant history of increasingly serious crimi-
nal activity.
[10] The degree of the district court’s deviation from the
advisory guidelines, though considerable, was also reasonable
on the facts of this case. We note that the five-year sentence
imposed was only half of the ten-year statutory maximum for
a conviction under 18 U.S.C. § 844. Finally, we note that
other courts have approved substantial departures for serious
bomb threats, even under the mandatory regime in place prior
to Booker. See, e.g., United States v. Barresi, 361 F.3d 666,
674 (2d Cir. 2004) (finding that an eight-level departure was
not unreasonable where the defendant had falsely accused an
acquaintance of involvement in the September 11 attacks);
United States v. Leung, 360 F.3d 62, 71-72 (1st Cir. 2004)
(approving a six-level departure and a forty-eight-month sen-
tence for a defendant who had exploited the victims of the
September 11 attacks to commit identity fraud). But see
United States v. Horton, 98 F.3d 313, 319 (7th Cir. 1996)
(holding that an eight-level increase in the offense level was
unreasonable where the defendant had made a threat on a fed-
eral building immediately after the bombing in Oklahoma
City, resulting in a substantial disruption of governmental
functions).
[11] In sum, we consider Mohamed’s sixty-month sentence
reasonable. As the Seventh Circuit concisely explained, “rea-
sonableness is a range, not a point.” United States v. Cunning-
ham, 429 F.3d 673, 679 (7th Cir. 2005). “If the judge could,
without abusing his discretion, have ruled in the defendant’s
favor, the defendant is entitled to insist that the judge exercise
discretion, though he cannot complain if the exercise goes
against him.” Id. Discretion is a double-edged sword, and a
district court may exercise its discretion as much to the detri-
UNITED STATES v. MOHAMED 9417
ment of a defendant as to the benefit. See Menyweather, 447
F.3d at 634-36 (approving a sentence of probation where the
applicable guidelines had recommended a range of twenty-
one to twenty-seven months). Where, as here, the district
court has thoroughly explained its decision to deviate from
the advisory guidelines and the sentence it has imposed is jus-
tified by the unique facts of the case, we will uphold the sen-
tence.
IV
Mohamed’s two objections to his sentence are without
merit. The retroactive application of Booker does not violate
the constitutional guarantee of due process, see Dupas, 419
F.3d at 920, and the sixty-month sentence imposed by the dis-
trict court was reasonable given that the advisory guidelines
did not adequately account for the extremely serious nature of
Mohamed’s hoax and his history of criminal activity. The
judgment of the district court is AFFIRMED.