United States v. Hassan-Saleh-Mohamad ( 2019 )

United States Court of Appeals
For the First Circuit
No. 18-1883
UNITED STATES OF AMERICA,
Appellee,
v.
MOHAMAD HASSAN-SALEH-MOHAMAD,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Lynch, Thompson, and Kayatta,
Circuit Judges.
José B. Vélez Goveo and Vélez & Vélez Law Office on brief for
appellant.
Mariana E. Bauzá-Almonte, Assistant United States Attorney,
Chief, Appellate Division, Antonio L. Perez-Alonso, Assistant
United States Attorney, and Rosa Emilia Rodríguez-Vélez, United
States Attorney, on brief for appellee.
July 9, 2019
LYNCH, Circuit Judge. Mohamad Hassan-Saleh-Mohamad
("Hassan") pleaded guilty to possession of child pornography in
violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2). He now
challenges the procedural and substantive reasonableness of his
within-guidelines sentence of eighty-seven months' imprisonment
and fifteen years' supervised release. Finding no abuse of
discretion, we affirm his sentence.
I.
We recount only the central facts in this section,
providing more detail as necessary in the analysis. As Hassan's
appeal follows a guilty plea, "we draw the relevant facts from the
plea agreement, the change-of-plea colloquy, the undisputed
portions of the presentence investigation report ('PSR'), and the
transcript of the disposition hearing." United States v. O'Brien,
870 F.3d 11, 14 (1st Cir. 2017).
A. Federal Investigation, Child Pornography Charge, and Plea
During a Federal Bureau of Investigation (FBI)
investigation into the distribution of child pornography on the
Ares peer-to-peer file-sharing network in November 2016, an FBI
agent identified a computer with a particular Internet Protocol
(IP) address as a potential source of child pornography. The agent
began investigating this computer and downloaded two video files
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made available by the targeted computer, both of which contained
child pornography.1
An administrative subpoena on the cable company
connected to the IP address of that computer returned an address
in Puerto Rico. The FBI then executed a search, pursuant to a
warrant, of the residence at that address on March 31, 2017, and
interviewed all of the residents, including Hassan. In this
interview, Hassan stated that he had used his computer to search
the Ares peer-to-peer network for child pornography and had
downloaded about fifty child pornography videos and images in the
past year. A search of Hassan's hard drive found six images and
335 videos of minors engaged in sexual conduct, including some
featuring sadomasochistic acts and prepubescent minors.
On April 25, 2018, a criminal information was filed,
charging Hassan with one count of possession of child pornography,
in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2). That same
day, Hassan pleaded guilty to this count pursuant to a plea
agreement. The plea agreement stated a Base Offense Level (BOL)
of eighteen and a number of sentencing adjustments, leading to a
Total Offense Level (TOL) of twenty-five. The parties did not
1 The two videos showed: 1) a partially nude female
approximately between the ages of ten and twelve performing oral
sex on a nude adult male; 2) a female approximately between the
ages of fourteen and eighteen masturbating a male between the ages
of five and eight and then performing oral sex on him.
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stipulate to a Criminal History Category (CHC). The plea agreement
stated that Hassan could argue for a sentence of fifty-seven
months' imprisonment, and the government could argue for seventy-
one months. Hassan agreed to waive his right to appeal if the
sentence imposed was seventy-one months or less.
B. Sentencing
The Probation Office filed an amended PSR which applied
a five-level rather than two-level enhancement for the number of
images possessed by Hassan,2 leading to a TOL of twenty-eight.3
The PSR stated a CHC of I for Hassan. This TOL and CHC led to a
guideline sentencing range (GSR) of seventy-eight to ninety-seven
2 The PSR considered the number of images as "more than
600," corresponding to the highest level-enhancement for number of
images under § 2G2.2. See U.S.S.G. § 2G2.2(b)(7). That is
because, corresponding to an Application Note to this guideline,
the 322 child pornography videos were considered to contain 24,150
images in total. See id. § 2G2.2 n.6(B)(ii) ("Each video, video-
clip, movie, or similar visual depiction shall be considered to
have 75 images."). We are not told why the plea agreement listed
335 videos rather than 322; the exact number is not relevant on
appeal.
3 The level adjustments were:
- a two-level increase for material involving pre-
pubescent minors, U.S.S.G. § 2G2.2(b)(2);
- a four-level increase for material depicting sadistic
or masochistic conduct, id. § 2G2.2(b)(4);
- a two-level increase for the use of a computer in the
offense, id. § 2G2.2(b)(6);
- a five-level increase for the number of images, id.
§ 2G2.2(b)(7); and
- a three-level reduction for acceptance of
responsibility, id. § 3E1.1.
Hassan did not and does not dispute the factual basis of
any of the enhancements.
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months. Hassan filed a sentencing memorandum arguing for a
sentence of fifty-seven months; he did not challenge facts in the
PSR. Instead, he more generally challenged the sentencing
guidelines related to child pornography and sought a downward
variance based on the district court's discretion to disagree with
specific guidelines, recognized in Kimbrough v. United States, 552
U.S. 85 (2007).
At the sentencing hearing, Hassan argued again for a
sentence of fifty-seven months' imprisonment; pursuant to the plea
agreement, the government argued for a sentence of seventy-one
months' imprisonment. After discussing, inter alia, the GSR, the
sentencing enhancements, certain facts of the offense, and some
characteristics of the defendant, the district court imposed a
sentence of eighty-seven months' imprisonment and fifteen years'
supervised release. Near the end of the sentencing hearing,
Hassan's counsel stated generally, "we would preserve the record
for purposes of an appeal for unreasonableness of the sentence."
II.
Hassan now challenges both the procedural and
substantive reasonableness of his sentence.4 "In sentencing
4 The plea agreement contained a waiver of appeal
provision. It is not applicable here because Hassan received a
prison sentence greater than seventy-one months, and the
government does not argue otherwise. See United States v.
Fernández-Cabrera, 625 F.3d 48, 51 (1st Cir. 2010) ("A waiver-of-
appeal provision is enforceable according to its terms.").
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appeals, appellate review is bifurcated," United States v.
Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir. 2015), and so we proceed
in two familiar steps: "We first consider whether the sentence is
procedurally reasonable, and then consider whether it is
substantively reasonable." United States v. Rodríguez-Reyes, 925
F.3d 558, 562–63 (1st Cir. 2019), petition for cert. filed, (U.S.
June 18, 2019) (No. 19-9819).
A. Procedural Reasonableness
Hassan claims he raised a procedural objection at the
sentencing hearing. "To preserve a claim of error for appellate
review, an objection must be sufficiently specific to call the
district court's attention to the asserted error." United States
v. Soto-Soto, 855 F.3d 445, 448 n.1 (1st Cir. 2017). The general
statement at the sentencing hearing, "we would preserve the record
for purposes of an appeal for unreasonableness of the sentence,"
is insufficient to preserve Hassan's specific procedural
reasonableness challenges. "When a defendant does not raise a
procedural objection at sentencing, the review is instead for plain
error." United States v. Sosa-González, 900 F.3d 1, 4 (1st Cir.
2018), cert. denied, 139 S. Ct. 436 (2018). But even assuming in
Hassan's favor that his challenge was preserved and abuse of
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discretion applies,5 see, e.g., United States v. Gierbolini-Rivera,
900 F.3d 7, 13 (1st Cir. 2018), he cannot meet his burden.
As a general matter, a sentencing court is required to
calculate the applicable GSR, address any objections to the PSR,
give both parties the opportunity to argue for a sentence, consider
the 18 U.S.C. § 3553(a) sentencing factors, and explain the
rationale behind its chosen sentence. See, e.g., United States v.
Laureano-Pérez, 797 F.3d 45, 80 (1st Cir. 2015).
Hassan does not contest the GSR or the PSR. Instead, he
argues that the district court "fail[ed] to properly consider the
§ 3553(a) factors," including the factor relating to sentencing
disparity, despite accepting that the district court stated "it
had considered all [these] factors." He also argues cursorily
that the district court committed Kimbrough error by failing to
"recognize its power" to choose a non-guideline sentence. See
Kimbrough, 552 U.S. at 108-10 (recognizing sentencing courts'
discretion to vary based on disagreements with the operation or
basis of particular guidelines).
The district court explicitly stated that it considered
all of the § 3553(a) factors; that statement "is entitled to some
5 Under this standard for procedural challenges, "we
afford de novo review to the sentencing court's interpretation and
application of the sentencing guidelines, assay the court's
factfinding for clear error, and evaluate its judgment calls for
abuse of discretion." Ruiz-Huertas, 792 F.3d at 226.
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weight." United States v. Dávila–González, 595 F.3d 42, 49 (1st
Cir. 2010). And the district court expressly discussed a number
of facts clearly germane to the § 3553(a) factors, such as:
Hassan's education, employment history, mental health, prior
admitted marijuana use, and lack of prior criminal history
("history and characteristics of the defendant," 18 U.S.C.
§ 3553(a)(1)); the particular sexual acts depicted in the child
pornography Hassan possessed ("nature and circumstances of the
offense," id.); and the "re-victimization of [the] children" and
"fuel[ing] demand" in the market for child pornography ("the need
for the sentence imposed . . . to reflect the seriousness of the
offense, to promote respect for the law, and to provide just
punishment for the offense," id. § 3553(a)(2)(A)). The district
court also expressly stated "the specific need to deter [the]
defendant from future criminal behavior of this nature," echoing
§ 3553(a)(2)(B). On this record, there is simply no reason not to
"credit the district court's statement that it considered all of
the relevant sentencing factors." United States v. Clogston, 662
F.3d 588, 592 (1st Cir. 2011). And there is no evidence that the
district court imposed the sentence based on being "completely
offended by the crime," as Hassan argues, rather than based on a
reasoned consideration of the relevant sentencing factors.
Hassan argues, relatedly, that the district court failed
to consider "the need to avoid unwarranted sentence disparities."
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See 18 U.S.C. § 3553(a)(6). Though the district court did not
specifically refer to this factor during the sentencing hearing,
"[a] judge need not mention every § 3553(a) factor nor intone any
particular magic words," United States v. Denson, 689 F.3d 21, 28
(1st Cir. 2012), and it "need not verbalize its evaluation of each
and every [§] 3553(a) factor," United States v. Reyes-Rivera, 812
F.3d 79, 89 (1st Cir. 2016); see United States v. Butler-Acevedo,
656 F.3d 97, 101 (1st Cir. 2011) ("Although the court may not have
specifically referenced this factor directly . . . [t]he court
subsumed sentencing disparity concerns within its overall
decision."). And generally, the district court did not need to
"be precise to the point of pedantry" in explaining its weighing
of the § 3553(a) factors.6 United States v. Turbides-Leonardo,
468 F.3d 34, 40 (1st Cir. 2006); see also id. at 41 ("[S]entences
that fall inside a properly calculated guideline sentencing range
require a lesser degree of explanation than those that fall outside
6 Hassan's discussion in his appellate brief of three
allegedly illustrative First Circuit cases -- United States v.
Dyer, 589 F.3d 520 (1st Cir. 2009); United States v. Rogers, 521
F.3d 5 (1st Cir. 2008); United States v. Hoey, 508 F.3d 687 (1st
Cir. 2007) -- does not help his sentencing disparity argument,
because "a defendant must compare apples to apples" for a well-
founded disparity claim. United States v. Reyes-Santiago, 804
F.3d 453, 467 (1st Cir. 2015). Hassan has not explained how these
cases are sufficiently similar to his own. (One, for example, was
not a challenge to the reasonableness of a sentence but to the
denial of a motion to suppress, featured a substantially different
factual scenario, and involved a longer prison sentence. Rogers,
521 F.3d at 6.)
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the guideline sentencing range . . . ."). Here, as stated, "we
credit the district court's statement that it considered all of
the relevant sentencing factors."7 Clogston, 662 F.3d at 592.
Next, as to Hassan's "argument" -- really two passing
references8 -- about Kimbrough error, it is true that "after
Kimbrough, a district court makes a procedural error when it fails
to recognize its discretion to vary from the guideline range based
on a categorical policy disagreement with a guideline." United
States v. Stone, 575 F.3d 83, 89 (1st Cir. 2009). But Hassan
cannot point to anything showing that the district court did not
understand its discretion to vary, if it so chose. Because there
is no statement by the district court showing Kimbrough error, we
"review the record as a whole to assess the district court's
sentencing process." Id. (internal quotation marks omitted).
Here, Hassan made a Kimbrough-based argument in his sentencing
memorandum, and the district court "carefully explained why its
7 To the extent that Hassan argues the district court owed
deference to the government's alleged "consideration of the
[§] 3553[a] factors" in the plea negotiations, this is flatly
wrong: "[T]he starting point for a court's sentencing
determination is the guideline range, not the parties'
recommendations. Thus, we have consistently refused to accord any
decretory significance to such non-binding recommendations -- or
even to require a sentencing court to explain why it decided to
eschew those recommendations." United States v. Cortés-Medina,
819 F.3d 566, 573 (1st Cir. 2016).
8 We assume arguendo, and in Hassan's favor, that this
argument is not waived (despite a lack of developed argumentation).
See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
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chosen sentence fit both the offender and the circumstances of the
offense." Clogston, 662 F.3d at 592. In this explanation of the
sentence, the district court expressly stated that the guideline
calculations were "advisory." This understanding is clearly
relevant to a Kimbrough inquiry. See Stone, 575 F.3d at 92. There
was no "struggling against the guidelines in a way that [the
district court] very likely would have if it had believed it could
not categorically depart," id. at 93, and indeed the district court
gave a middle-of-the-guidelines sentence rather than a sentence at
the bottom, indicating that it was not trying to reduce the
sentence but for some mistaken understanding of its own discretion.
On our review of the record, there is no indication of Kimbrough
error, and so this argument fails.
B. Substantive Reasonableness
Hassan also challenges the substantive reasonableness of
his sentence. Assuming arguendo he preserved his challenge and
abuse of discretion applies here, Hassan cannot meet his burden.
"[R]easonableness is a protean concept," United States v. Martin,
520 F.3d 87, 92 (1st Cir. 2008), and "[t]here is no one reasonable
sentence in any given case but, rather, a universe of reasonable
sentencing outcomes," Clogston, 662 F.3d at 592. "As we have
repeatedly emphasized, a challenge to the substantive
reasonableness of a sentence is particularly unpromising when the
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sentence imposed comes within the confines of a properly calculated
GSR," as Hassan accepts happened here. O'Brien, 870 F.3d at 21.
Hassan makes three categories of arguments against the
substantive reasonableness of his sentence. First, he argues that
the district court gave insufficient weight to certain mitigating
factors and that "case law directs the court to give . . . equal
significance to all of the factors." He argues that the district
court's view that his child pornography possession "fuel[ed]
demand and supply of a multimillion-dollar market" is wrong in
this "day and age." Second, he challenges the guidelines
themselves in this area (arguing, in essence, that the district
court should have rejected them out of hand), and relatedly
challenges an alleged sentencing disparity. Third, he argues that
the sentence was greater than necessary, at least for purposes of
deterrence, because of "the string of conditions . . . imposed"
during the fifteen-year supervised release term.
First, Hassan's weight arguments fail. There is
absolutely no "requirement that a district court afford each of
the section 3553(a) factors equal prominence," as "[t]he relative
weight of each factor will vary with the idiosyncratic
circumstances of each case." United States v. Dixon, 449 F.3d
194, 205 (1st Cir. 2006). "A sentencing court is under a mandate
to consider a myriad of relevant factors, but the weighting of
those factors is largely within the court's informed discretion."
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Clogston, 662 F.3d at 593. So, as to Hassan's argument that the
district court should have given more weight to certain factors,
at least including his first-time offender status,9 "[t]hat the
sentencing court chose not to attach to certain of the mitigating
factors the significance that the appellant thinks they deserved
does not make the sentence unreasonable." Id.; see also United
States v. Majeroni, 784 F.3d 72, 78 (1st Cir. 2015) (same).
Further, Hassan's claim that the district court erred in
weighing the impact on the market for child pornography is
unavailing. The Supreme Court has stated in general that it is
"surely reasonable for the State to conclude that it will decrease
the production of child pornography if it penalizes those who
possess and view the product, thereby decreasing demand." Osborne
v. Ohio, 495 U.S. 103, 109–10 (1990). We have stated specifically
that "[b]y accessing child pornography with intent to view it, [a]
defendant contribute[s] to the continued viability of this highly
exploitative market." United States v. Blodgett, 872 F.3d 66, 71
(1st Cir. 2017); see United States v. Gall, 829 F.3d 64, 75 (1st
Cir. 2016) (accepting the district court's determination that a
defendant's "possession of child pornography fueled the market for
9 Hassan was, indeed, a first-time federal offender;
however, he admitted to searching and downloading numerous child
pornography videos and images in the year before the FBI interview
here, and so this case involves the first time Hassan has been
caught rather than the first time he viewed and possessed child
pornography.
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child pornography, and thus indirectly harmed children"). There
is nothing erroneous about the district court's statement about
fueling demand and supply, and this was a reasonable factor for
the court to weigh (especially here, where Hassan not only
possessed child pornography but also made available at least two
videos on a file-sharing network).
Second, Hassan's challenge to the guideline itself --
that his case "should be seen as less serious" than the relevant
guideline provides -- plainly fails. "While district courts may
certainly conclude that the guidelines sentencing range in child
pornography cases is harsher than necessary in many cases, there
is no requirement that a district court must categorically reject
the child pornography guidelines based on their provenance."
United States v. Aquino-Florenciani, 894 F.3d 4, 8 (1st Cir. 2018),
cert. denied, 139 S. Ct. 443 (2018). "[T]he district court's broad
discretion obviously includes the power to agree with the
guidelines."10 Stone, 575 F.3d at 90. We reiterate our respect
for that discretion.
10 Hassan seems to argue that United States v. Dorvee, 616
F.3d 174 (2d Cir. 2010), should control here. There, the Second
Circuit criticized aspects of the child pornography guidelines for
their "irrationality" in, inter alia, creating little distinction
between "the most dangerous offenders" and "ordinary first-time
offender[s]." Id. at 186-87. That case is, of course, not binding
here, and Aquino-Florenciani forecloses the argument that a
district court cannot follow the child pornography guidelines in
imposing a substantively reasonable sentence.
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Third, Hassan's argument that his sentence is
substantively unreasonable because "the string of conditions
. . . imposed" during the fifteen-year supervised release term
would be "sufficient to protect society from any future crimes"
fails. This argument asks us to exchange the district court's
reasoned determination regarding a § 3553(a) factor, see 18 U.S.C.
§ 3553(a)(2)(C), for Hassan's own self-serving view on that
factor, which we certainly will not do. Further, we have rejected
similar arguments about the role of supervised release. See, e.g.,
Gall, 829 F.3d at 75.
On the whole, the district court "provided a plausible
explanation [for the sentence], and the overall result is
defensible." United States v. Crespo-Ríos, 787 F.3d 34, 37 (1st
Cir. 2015) (quoting United States v. Torres–Landrúa, 783 F.3d 58,
68 (1st Cir. 2015)). That suffices for substantive reasonableness.
* * *
Affirmed.
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