United States v. Moge

11-1029 (L)
United States v. Moge
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 22nd day of February, two thousand twelve.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 GUIDO CALABRESI,
9 ROSEMARY S. POOLER,
10 Circuit Judges.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 UNITED STATES OF AMERICA,
14
15 Appellee,
16
17
18 -v.- 11-1029(L)
19 11-1072(CON)
20 11-1627(CON)
21 ABDI EMIL MOGE, AKA Abdi Ilmoge, ALI
22 AWAD, AKA Alex, AKA Ali Osman,
23
24 Defendants-Appellants,
25
26 BASHI MUSE, OSMAN OSMAN, ABDINUR AHMED
27 DAHIR, AKA Abdiqadir Husserin, ALI
1
1 DUALEH, AKA Xidig, OMER ALI ABDIRIZAK,
2 AKA Abdulrazak, AKA Antenno, MOHAMED
3 AHMED, AKA Mohammad Sharif, AKA
4 Haloween, SAEED BAJUUN, AKA Saeed
5 Ahmed, YASIR MOHAMED, AKA Nadif, SOFIA
6 ROBLES, AKA Marcus, ISSE ALI SALAD,
7 DAHIR ABDULLE SHIRE, AKA Harato,
8 MOHAMED ABDILLAHI MOHAMED, AKA Garad,
9 ABDULKADIR SHIRE, AKA Fanah, ISMAIL ALI
10 MOHAMED, MOHAMED JAMA, AKA Ali Bidar,
11 AKA Mohamed, HASSAN SADIQ MOHAMED, AKA
12 Cacal, MUHIDIN MOHAMED, LIBAN HASHI,
13 BASHIR AHMED, MOHAMED ALI, AKA Will
14 Isse, AHMED ISMAIL, AKA Bistollo,
15 ABDULAHI HUSSEIN, HASHIM SHERIF HASHIM,
16 MAXAMED ABSHAR, HUSSEIN AHMED MOHAMED,
17 ABSHIR AHMED, AKA Liban, LIBAN ABDULLE,
18 ISMACIIL GEELE, AHMED MOHAMOUD EGAL,
19 AKA Arabey, MOHAMED SHIREH, DEKO HERSI,
20 AKA Deqa, AKA Deko Ohersi, ABDUL HERSI,
21 AKA Hurwa, WELI MOHAMED ABDI, AKA C.O.
22 Shine, WARFA ABDI DIRIE, AKA Jeri
23 Hassan Yusef, MAHAMUD AFDHUB, WARSAME
24 GULED, ISSE ABDIWAAB, AKA Numberka,
25 YOUNAS HAJI, MOHAMED MOHAMED, TEGRO,
26 ABDIAZIS SALAH MOHAMED, AKA Alcohol,
27 OMAR OSMAN MOHAMED,
28
29 Defendants.
30
31
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33
34 FOR APPELLANT MOGE: Robert J. Boyle,
35 Law Office of Robert J. Boyle,
36 New York, NY
37
38 FOR APPELLANT AWAD: Michael O. Hueston,
39 Law Office of Michael O.
40 Hueston,
41 New York, NY
42
2
1 FOR APPELLEE: Rahul Mukhi, Justin S. Weddle,
2 Assistant United States
3 Attorneys, for Preet Bharara,
4 United States Attorney,
5 Southern District of New York,
6 New York, NY
7
8 Appeal from judgments of the United States District
9 Court for the Southern District of New York (Cote, J.).
10
11 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
12 AND DECREED that the district court’s judgments are
13 AFFIRMED.
14
15 Abdi Emil Moge and Ali Awad appeal from judgments
16 entered in the United States District Court for the Southern
17 District of New York resentencing each of them, following
18 this Court’s remand in United States v. Awad, 369 Fed. App’x
19 242 (2d Cir. 2010) (summary order) (“Awad I”), to a term of
20 imprisonment of 84 months for conspiracy to distribute and
21 to possess with intent to distribute a controlled substance.
22 We assume the parties’ familiarity with the underlying
23 facts, the procedural history, and the issues presented for
24 review.
25
26 The defendants argue that the district court erred in
27 concluding that its mandate was limited to resentencing them
28 on the conspiracy to distribute count (“Count One”), and
29 that it should have resentenced them de novo on all counts
30 for which they were convicted. Whether the district court
31 misinterpreted its sentencing authority is a question of law
32 which we review de novo. See United States v. Hurtado, 47
33 F.3d 577, 585 (2d Cir. 1995).
34
35 The district court was correct to resentence the
36 defendants only on Count One. When an appellate court
37 remands based on a sentencing error as opposed to a
38 conviction error, the default rule is that the district
39 court should engage in limited resentencing confined to
40 addressing the particular error identified by the appellate
41 court. See United States v. Rigas, 583 F.3d 108, 115 (2d
42 Cir. 2009); United States v. Quintieri, 306 F.3d 1217, 1228
43 (2d Cir. 2002). In Awad I, we remanded this case for
44 resentencing because the district court had misinterpreted
3
1 the maximum statutory sentence permissible on Count One. We
2 remanded expressly “so that the district court can sentence
3 defendants . . . for their convictions pursuant to Count One
4 of the Indictment in a manner consistent with this order.”
5 Awad I, 369 Fed. App’x at 247. The mandate was thus plainly
6 limited to resentencing the defendants on Count One alone.
7
8 None of the exceptions to the default rule of limited
9 resentencing to correct sentencing errors apply in this
10 case. The remand in Awad I did not “undo[] the entire knot
11 of calculation” underlying the defendants’ sentences so as
12 to require de novo resentencing on all counts. Quintieri,
13 306 F.3d at 1228 (internal quotation marks omitted). The
14 applicable Guidelines ranges were unaffected, and the
15 defendants’ sentences on the other counts were entirely
16 independent of their sentences on Count One. Nor is this a
17 case in which a sentencing issue “had no practical effect on
18 a defendant’s sentence at the original sentencing but
19 becomes relevant only after appellate review.” Id. at 1229.
20 The sentencing issue which the defendants now seek to
21 raise--the disparity between their sentences and those of
22 other similarly situated defendants--was specifically argued
23 at their original sentencing and rejected by the district
24 court. It was also argued on appeal and rejected in Awad I.
25 Finally, there are no “cogent and compelling reasons,” such
26 as “an intervening change of controlling law, the
27 availability of new evidence, or the need to correct a clear
28 error or prevent manifest injustice” that would require de
29 novo resentencing in this case. Id. at 1230 (internal
30 quotation marks omitted).
31
32 We have considered the defendants’ remaining arguments
33 and find them to be without merit. For the foregoing
34 reasons, the judgments of the district court are hereby
35 AFFIRMED.
36
37
38
39 FOR THE COURT:
40 CATHERINE O’HAGAN WOLFE, CLERK
41
4