United States v. Amar Abed, 3f4th104

Background

In 1998 Amar Khalid Abed was convicted after trial of RICO-related offenses and other crimes; the district court sentenced him to 570 months (210 months on seven counts plus a mandatory consecutive 360-month § 924(c) term).
After Davis (invalidating the § 924(c) residual-clause predicate), the government conceded Abed’s § 924(c) conviction/sentence must be vacated; Abed moved for immediate release or a cap at the original Guidelines top (235 months).
The district court vacated the § 924(c) conviction and conducted a plenary resentencing on the seven remaining counts; the advisory Guidelines range remained 188–235 months.
At resentencing (2020) the court heard mitigation (PTSD from Gulf War service, extensive prison rehabilitation, favorable BOP letters) and aggravation (longstanding, violent racketeering/drug/arson enterprise; Abed as most culpable).
The district court imposed an upward variance to 360 months on the remaining counts (not a Guidelines departure), explaining it had considered the § 3553(a) factors and balanced mitigation against the scope/violence of the offenses.
Abed appealed, arguing (inter alia) ex post facto and due process violations, law-of-the-case error, and that the variance was procedurally and substantively unreasonable. The Fourth Circuit affirmed.

Issues

Issue	Abed's Argument	Government's Argument	Held
Ex Post Facto	Booker‘s change (Guidelines from mandatory to advisory) cannot be applied at resentencing to permit a sentence above the original Guidelines cap (235 months).	Booker‘s remedial holding applies; courts have uniformly rejected ex post facto challenges to Booker.	Rejected — no ex post facto violation; Booker applies on resentencing.
Vindictiveness / Due Process	Increasing the sentence on the remaining counts punished Abed for successfully vacating his § 924(c) conviction (Pearce-style vindictiveness).	Aggregate sentence decreased (570 → 360), so no presumption of vindictiveness; no evidence of actual vindictiveness.	Rejected — aggregate-sentence approach defeats presumption; no vindictiveness shown.
Law of the Case	The original court’s denial of an upward departure binds the resentencing court; cannot revisit to impose an above-Guidelines sentence.	Denial of a Guidelines departure is distinct from imposing a non-Guidelines variance; Pepper allows plenary resentencing and reconfiguration of the sentence.	Rejected — Pepper permits de novo resentencing and the court was not bound by the prior departure ruling.
Procedural & Substantive Reasonableness	Variance created unwarranted disparity, court failed to adequately weigh PTSD/military service and rehabilitation, and gave insufficient reasons for the size of the variance.	The court considered mitigation and rehabilitation but reasonably concluded the scope/violence of the racketeering and Abed’s relative culpability justified an upward variance to 360 months.	Rejected — sentencing court adequately considered § 3553(a) factors, explained its decision, and the 360‑month variance was not substantively unreasonable.

Key Cases Cited

Booker v. United States, 543 U.S. 220 (remedial holding made Guidelines advisory)
Peugh v. United States, 569 U.S. 530 (ex post facto principles for changed Guidelines)
Johnson v. United States, 576 U.S. 591 (invalidated ACCA residual clause)
United States v. Davis, 139 S. Ct. 2319 (invalidated § 924(c) residual clause used as predicate)
Pepper v. United States, 562 U.S. 476 (on de novo resentencing and reconfiguring the sentencing package)
Gall v. United States, 552 U.S. 38 (Guidelines as the starting point; review of variances)
United States v. Ventura, 864 F.3d 301 (4th Cir. on vindictiveness/aggregate-sentence approach)