United States v. Paresh Khokhani

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 16, 2009
No. 09-12231 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-00029-CR-6
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PARESH KHOKHANI,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(October 16, 2009)
Before CARNES, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Peresh Khokhani appeals his 12-month sentence and $5,000 fine for making
a false statement in a passport application, in violation of 18 U.S.C. § 1542,
arguing that (1) his above-range sentence is unreasonable, and (2) the district court
erred by fining him $5,000 without assessing his ability to pay.
I.
We review a sentence imposed by a district court for reasonableness, using
an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 128 S. Ct. 586,
597 (2007). Under reasonableness review, we “must first ensure that the district
court committed no significant procedural error.” Id. at __, 128 S. Ct. at 597. A
procedural error is committed if the district court improperly calculates the
guideline range, treats the guidelines as mandatory, fails to consider the § 3553(a)
factors, selects a sentence based on clearly erroneous facts, or fails to adequately
explain its sentence. Id. Although the district court must provide some
explanation for its sentence, the district court is not required to explicitly discuss
its consideration of each of the § 3553(a) factors on the record. United States v.
Scott, 426 F.3d 1324, 1329 (11th Cir. 2005). Instead we ask whether the district
court “considered the parties’ arguments and ha[d] a reasoned basis for exercising
[its] own legal decisionmaking authority.” United States v. Rita, 551 U.S. 338,
356, 127 S. Ct. 2456, 2468 (2007).
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If the district court’s sentencing decision is procedurally sound, we then
consider the substantive reasonableness of the sentence imposed, taking into
account the totality of the circumstances, including the extent of any variance from
the guideline range. Gall, 552 U.S. at __, 128 S. Ct. at 597. While we ordinarily
expect a sentence within the guideline range to be reasonable, we do not presume
that a sentence outside the guideline range is unreasonable. United States v.
Talley, 431 F.3d 784, 788 (11th Cir. 2005); Gall, 552 U.S. at ___, 128 S. Ct. at
597. “[An appellate court] may consider the extent of the deviation, but must give
due deference to the district court’s decision that the § 3553(a) factors, on a whole,
justify the extent of the variance. The fact that the appellate court might
reasonably have concluded that a different sentence was appropriate is insufficient
to justify reversal of the district court.” Gall, 552 U.S. at ___, 128 S. Ct. at 597. A
sentence will be remanded only when the district court commits “a clear error of
judgment in weighing the § 3553(a) factors by arriving at a sentence outside the
range of reasonable sentences dictated by the facts of the case.” United States v.
Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008). The burden of establishing that the
sentence is unreasonable in light of the record and the § 3553(a) factors lies with
the party challenging the sentence. Talley, 431 F.3d at 788.
The district court’s sentence was procedurally reasonable. No one disputes
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that the district court properly calculated Khokhani’s guideline range at 0-6 months,
and the district court did not treat the guidelines as mandatory. Although Khokhani
contends that the district court failed to hear his mitigation arguments, the record
makes clear that the district court gave Khokhani an opportunity to address the
court, which he declined, and that the court heard mitigation arguments from his
counsel before imposing his sentence. The district court also expressly stated that it
had considered the § 3553(a) factors and explained at length its decision to impose
a sentence above the advisory guidelines range.
The district court’s sentence was also substantively reasonable. Although
Khokhani’s 12-month sentence was twice the high-end of the advisory guidelines
range, we cannot conclude that the upward variance was unreasonable. Khokhani
devised a sophisticated scheme to purchase identification documents from a third
party for the purpose of obtaining a passport for his wife, an illegal alien. At the
time of sentencing, Khokhani had been living illegally in the United States for more
than 12 years and had pending charges for reckless endangerment, disorderly
conduct, and risking a catastrophe. Given the nature and circumstances of the
offense and Khokhani’s history and characteristics, we do not find that a sentence 6
months above the high-end of the guideline range and 108 months below the
statutory maximum to be outside the range of reasonable sentences.
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II.
When a defendant fails to object to the imposition of a fine at the sentencing
hearing, “we review the court’s decision for plain error, and will upset the decision
only if disregarding the error would result in manifest injustice.” United States v.
Hernandez, 160 F.3d 661, 665 (11th Cir. 1998) (citation and internal quotation
marks omitted).
Pursuant to U.S.S.G. § 5E1.2(a), “the court shall impose a fine in all cases,
except where the defendant establishes that he is unable to pay and is not likely to
become able to pay any fine.” In determining the amount of the fine, U.S.S.G. §
5E1.2(d) lists several factors the court should consider. The court is not required to
make specific findings of fact with respect to the § 5E1.2(d) factors, but the record
should reflect that the court considered the factors prior to imposing the fine.
Hernandez, 160 F.3d at 665-66.
Khokhani contends that the district court erred by failing to consider the §
5E1.2(d) factors before imposing a $5,000 fine. As an initial matter, in his plea
agreement Khokhani waived his right to appeal his sentence unless it was “higher
than the advisory sentencing guideline range as found by the sentencing court.”
Khokhani’s 12-month sentence was above the guideline range, but his $5,000 fine
was within the guideline range. Because we conclude that imposing the fine would
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not result in manifest injustice, we need not decide whether Khokhani’s limited
appeal waiver precludes him from asserting this appeal. While it is not clear from
the record whether the district court considered the § 5E1.2(d) factors, disregarding
the court’s alleged error would not result in manifest injustice because Khokhani is
not required to pay the fine unless he is not deported or unless he illegally reenters
the country. Therefore, we will not upset the district court’s decision.
Because Khokhani has failed to establish that his sentence was unreasonable
or that upholding the $5,000 fine would result in manifest injustice, we affirm the
district court’s judgment.
AFFIRMED.
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