United States v. Basim Hamad

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4821
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BASIM ALBERT HAMAD,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever, III,
Chief District Judge. (5:10-cr-00121-D-1)
Submitted: May 31, 2012 Decided: June 8, 2012
Before MOTZ, KING, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Eric J. Brignac, Research and
Writing Specialist, Raleigh, North Carolina, for Appellant.
Thomas G. Walker, United States Attorney, Jennifer P. May-
Parker, Kristine L. Fritz, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Basim Albert Hamad appeals his sentence of 210 months
of imprisonment following his guilty plea to one count of armed
bank robbery, in violation of 18 U.S.C. § 2113(a), (d) (2006),
and one count of being a convicted felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1) (2006). Hamad
contends that the district court erred during sentencing in
relying on an unsworn proffer and its own recollections from
related proceedings to find that an employee of the credit union
robbed by Hamad and his coconspirators was not a party to the
crime. We affirm.
Generally, a district court must find facts relevant
to sentencing by a preponderance of the evidence, and we review
such findings for clear error. See United States v. Alvarado
Perez, 609 F.3d 609, 612, 614 (4th Cir. 2010); United States v.
Grubbs, 585 F.3d 793, 803 (4th Cir. 2009). When, as here, a
defendant fails to object to factual findings in his presentence
report (“PSR”), the district court may consider the evidentiary
burden satisfied and rely on those findings in sentencing the
defendant without further inquiry. See United States v. Revels,
455 F.3d 448, 451 n.2 (4th Cir. 2006).
Here, Hamad’s PSR reported law enforcement’s
conclusion that the credit union employee in question was
abducted by Hamad and did not willingly aid in the robbery.
2
Hamad’s counsel did not object to the PSR. Accordingly, we find
the PSR alone sufficient to support the district court’s
conclusion that the employee was a victim and not a
coconspirator. The evidence cited by Hamad at sentencing,
including the employee’s failed polygraph exam and her initial
omission of a significant detail of the robbery, does not
invalidate this conclusion.
We also find no error in the district court’s reliance
on its familiarity with the crime from the prior sentencings of
Hamad’s coconspirators, or its consideration of the unsworn
statement of a government agent present at Hamad’s sentencing,
made in response to an inquiry from the court. Because Hamad
did not object, our review is for plain error. United States v.
Olano, 507 U.S. 725, 732 (1993).
A district court is largely unencumbered with respect
to the sources of information it may consider when making
factual determinations at sentencing. See United States v.
Nichols, 438 F.3d 437, 439-40 (4th Cir. 2006). We have
consistently approved a sentencing court’s reliance on unsworn
and out of court statements so long as such statements exhibit
an adequate indicia of reliability. See United States v.
Powell, 650 F.3d 388, 392 (4th Cir. 2011); Nichols, 438 F.3d at
440. Considering this lenient evidentiary standard and the fact
that Hamad is unable to point to inaccuracy or unfair surprise,
3
we are unable to find plain error. See United States v.
Morales, 994 F.2d 386, 389-90 (7th Cir. 1993); United States v.
Notrangelo, 909 F.2d 363, 364-66 (9th Cir. 1990).
Accordingly, we affirm the judgment below. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
4