United States v. Mohammad Chowdhury, 438 F. App'x 472

Chowdhury, a Bangladeshi citizen on a student visa, pled guilty to fraudulent use of unauthorized access devices (18 U.S.C. § 1029(a)(2)) on August 25, 2008.
The district court sentenced him on March 24, 2009 to 2 months' incarceration, 2 years of supervised release, and restitution of $3,230.73.
On December 13, 2010, the district court imposed 12 months’ incarceration followed by 2 years of supervised release, an upward variance of 3 months from the Guidelines range.
At sentencing, the court considered candor and non-disclosure concerns, postponed to allow Chowdhury to speak to his father and future fiancée, and learned he had been suspended from BGSU (which the Government later learned was true).
The initial Guidelines range was 6–12 months; the court varied downward to 2 months based in part on potential immigration consequences.
After release, a supervised release violation report was filed for failures to report, pay restitution, and new fraudulent conduct; a warrant issued when Chowdhury failed to appear for the revocation hearing, leading to a December 13, 2010 revocation and resentencing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the sentence relied on an impermissible factor	Chowdhury argues the timing of the removal hearing influenced the sentence.	Chowdhury contends the factor was impermissible and improperly used to justify punishment.	The district court’s consideration of the removal timing was within its discretion and the sentence was reasonable.
Whether the upward variance was substantively unreasonable	Two months and later 12 months with a 3-month upward variance were argued to be too lenient.	Chowdhury contends a longer sentence was warranted by violations and risk of noncompliance.	The 12-month sentence with a 3-month upward variance was not substantively unreasonable given the totality of circumstances.

United States v. Bolds, 511 F.3d 568 (6th Cir. 2007) (abuse-of-discretion review of post-Booker revocation sentences)
Gall v. United States, 552 U.S. 38 (Supreme Court 2007) (reasonableness review for sentencing; deference to district court's reasoning)
United States v. Recla, 560 F.3d 539 (6th Cir. 2009) (immigration status as a permissible consideration in sentencing)
United States v. Petrus, 588 F.3d 347 (6th Cir. 2009) (immigration status can justify upward variance in context)
United States v. Booker, 543 U.S. 220 (Supreme Court 2005) (secondary guidance post-Booker; advisory guidelines)
United States v. Brown, 501 F.3d 722 (6th Cir. 2007) (upward variance affirmed upon revocation of supervised release)
United States v. Vonner, 516 F.3d 382 (6th Cir. 2008) (plain-error review of procedural reasonableness near sentencing)
United States v. Bostic, 371 F.3d 865 (6th Cir. 2004) (sentencing procedure and factor consideration)