UNITED STATES OF AMERICA, Plaintiff - Appellee, v. AMAR KHALID ABED, a/k/a Omar, Defendant - Appellant.
No. 20-4162
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
Argued: March 12, 2021 Decided: June 29, 2021
PUBLISHED
Before NIEMEYER, KEENAN, and HARRIS, Circuit Judges.
Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Michael F. Urbanski, Chief District Judge. (7:97-cr-00024-MFU-3)
Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge Keenan and Judge Harris joined.
ARGUED: Christine Madeleine Lee, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke, Virginia, for Appellant.
NIEMEYER, Circuit Judge:
In 1998, Amar Khalid Abed was sentenced to 570 months’ imprisonment following his conviction on numerous counts of racketeering and related offenses. Over 20 years later, after one count constituting a 360-month component of his sеntence was vacated because of a change in the law, he was resentenced to 360 months’ imprisonment, which was an upward variance from the recommended Sentencing Guidelines range of 188 to 235 months’ imprisonment.
Abed now contends, among other things, that his new sentence violates the Ex Post Facto Clause and the Due Process Clause and that it is in various respects procedurally and substantively unreasonable. For the reasons that follow, we affirm.
I
At a two-month trial that took place in 1998, the government proved the operation of a violent criminal enterprise in and around Roanoke, Virginia, that was headed by Abed‘s uncle, Joseph Abed, and that included two of his younger brothers, his cousin, and at least three others. As shown, Abed played a central role in the enterprise‘s activities.
Frоm 1992 to 1995, Abed and his associates distributed cocaine, cocaine base, marijuana, and other drugs. Moreover, to retaliate against business rivals or otherwise advance the enterprise‘s interests, Abed and others engaged in arson and attempted arson, which, on one occasion, involved the use of a “Molotov cocktail” to burn down a store. The government also attempted to prove that Abed was responsible for an apartment fire that killed two people under very suspicious circumstances, but the jury acquitted Abed on the portion of the count making that charge. Nonetheless, there was extensive evidence that Abed repeatedly used violence and the threat of violence during the course of the enterprise, not only to enlist participation but also to rob members of the public. And members of the enterprise also routinely committed property offenses — such as slashing tires and burglarizing homes and vehicles.
Following the trial, the jury found Abed guilty on eight counts charging him with racketeering, conspiracy to commit racketeering, arson, conspiracy to commit arson, conspiracy to distribute illicit drugs, and the use of a destructive device (i.e., a Molotov cocktail) during a crime of violence (i.e., arson), in violation of
Prior to sentencing, which took place in August 1998, the Probation Office prepared a presentence report calculating a Sentencing Guidelines range of 188 to 235 months’ imprisonment for Abed‘s convictions on seven counts, to be followed by a mandatory 360 months for his conviction under
In view of this ruling, the government requested that the court impose the maximum Guidelines sentence of 595 months’ imprisonment. Abed, on the other hand, requested a sentence below or at least at the low end of the Guidelines range, noting that he had been “a model soldier” in Operation Desert Storm prior to the criminal conduct at issue and requesting, without elaboration, that the court “take note of the effect that his time in the military had upon him.” The court imposed a total sentence of 570 months’ imprisonment, consisting of concurrent terms of 210 months’ imprisonment and the mandatory consecutive 360-month term for the
On direct appeal, we affirmed Abed‘s convictions and sentence. See United States v. Abed, 203 F.3d 822 (4th Cir. 2000) (per curiam).
In 2016, Abed filed a successive motion under
In response, Abed contended that the 360-month sentence for his
The district court granted Abed‘s
In preparation for Abed‘s resentencing in February 2020, the Probation Office prepared a new presentence report and, as was the case at his original sentencing, determined that the Guidelines sentencing range for the seven convictions was 188 to 235 months’ imprisonment. The presentence report also noted that during Abed‘s more than two decades of incarceration, Abed had received only five disciрlinary infractions, the most recent having occurred approximately nine years earlier in January 2011. The report shared that Abed had also completed a large number of different types of courses in prison, including “college level courses in business and computer science,” anger management classes, and a non-residential drug treatment program. Regarding Abed‘s background, the report stated that, before committing the underlying offenses, Abed had been enlisted in the U.S. Marine Corps from December 1989 until his honorable discharge in October 1991, during which time he served in Operation Desert Storm and was “awarded the Navy Achievement Medal for professional achievement in the superior performance of his duties while assigned as [an] Arabic translator.” The report also noted that follоwing his combat experience, Abed was diagnosed with post-traumatic stress disorder (“PTSD“) for which he received 50% disability benefits from 1994 until shortly after his arrest in March 1997. Those disability benefits were subsequently increased to 100%, based on a finding regarding the severity of Abed‘s PTSD.
Also before the resentencing, Abed filed a sentencing memorandum in which he requested a within-Guidelines sentence. He emphasized his harrowing experiences during his Gulf War tour of duty and the valuable contributions he had made as an Arabic translator. He also explained that during the period he was regularly committing crimes, he was hospitalized several times at Veterans Affairs facilities to receive treatment for his PTSD. In addition,
The government also filed a memorandum, in which it did not dispute Abed‘s PTSD diagnosis or the extent of his rehabilitation in prison. Rather, it focused on the severity of Abed‘s criminal offenses and argued that the court should use either an upward departure or an upward variance to impose “a sentence at or near the previously-imposed sentence of 570 months.” It noted that “[t]his racketeering case [was] far outside the heartland of typical arson and typical drug cases.” Indeed, the government represented to the court that Abed‘s conduct was “truly among the worst that ha[d] been prosecuted in this district in the last 30 years.” Thus, while the government agreed that it was appropriate for the court to consider both Abed‘s PTSD and his “satisfactory post-conviction conduct,” it maintained that “[a] sentence within the guideline range [i.e., 188 to 235 months’ imprisonment] would be astoundingly low” given “the breadth, scoрe, and violence of his criminal conduct.”
The district court conducted a plenary resentencing hearing on February 13, 2020, at which it received evidence, heard arguments from counsel, and heard directly from Abed himself. At the hearing, Abed presented expert testimony from a psychiatrist who had worked at the Department of Veterans Affairs for 30 years and who testified that Abed had “a severe case of PTSD” that had “substantially contributed to his adopting a criminal lifestyle.” The expert noted that “the most critical symptoms of PTSD involve reliving of the traumatic events,” which in Abed‘s case involved “witnessing dismembered bodies,” enemy combatants being killed in combat, and people dying at the medical aid station where he served as a translator. The expert also noted that other symptoms include disturbances in mоod and cognition, outbursts of anger, insomnia, and difficulty concentrating. In addition, several members of Abed‘s family testified regarding the changes they had witnessed in Abed during his incarceration and their willingness and ability to help him adjust following his release from prison. Also at the hearing, Abed‘s counsel continued to argue that a within-Guidelines sentence was appropriate given the mitigation and rehabilitation evidence. She acknowledged, however, that “Abed . . . ha[d] a greater culpability than his cousin Rayed, who received 300 months [at his resentencing],” and based on this, she argued that if the court decided that it was not constrained to impose a sentence within the Guidelines range, “a sentence of 312 months” — which would essentially amount to a time-served sentence given Abed‘s good-time credits — would be “adequate but not greаter than necessary to meet the objectives of the sentencing statute.”
At the same time, the court stressed that it was also required to consider “the nature and circumstances of the offense,” which it characterized as “a widespread crime spree for a number of years,” involving multiple instances of arson, robberies, drug dealing, and “a whole pattern of violent criminal behavior.” The court further emphasized that “Abed was the most culpable” of the defendants involved in the racketeering enterprise, as made “plain from the sentences” the judge who presided over the trial had imposed in 1998.
“[B]alancing all these factors” and recognizing “the serious nature of the crime” but also Abed‘s “apparent rehabilitation” and the likely impact of his PTSD, the court concluded that “a sentence of 360 months [was] sufficient but not greater than necessary in this case.” “[This] means that Mr. Abed has a little more time to serve, but it also means that within, at least the way I calculate it [with good-time credits], less than three years he is subject to being released.”
From the district court‘s entry of an amended judgment dated February 25, 2020, Abed filed this appeal.
II
Abed contends first that the district court lacked authority to impose a variance sentence above the Guidelines’ maximum of 235 months’ imprisonment on the seven counts of conviction that remained following the vacatur of his
A
Abed argues first that the district court — in treating the sentencing range provided by the Guidelines as advisory and imposing an upward variance sentence of
Through two Ex Post Facto Clauses, “[t]he Constitution prohibits both federal and state governments from enacting any ‘ex post facto Law.‘” Peugh v. United States, 569 U.S. 530, 538 (2013) (emphasis added);
When Abed was first sentenced, his Guidelines sentencing range of 188 to 235 months’ imprisonment was mandatory, but after he was sentenced, that range became advisory, and the district court, relying on this, imposed a variance sentence above that range at his resentencing. The change from mandatory to advisory Guidelines resulted from the Supreme Court‘s decision in Booker, where the Court held that under a sentencing scheme in which the Sentencing Guidelines were mandatory, it violated the Sixth Amendment for a sentencing judge to find facts that raised the defendant‘s Guidelines range above “the maximum authorized by the facts established by a plea of guilty or a jury verdict.” 543 U.S. at 244. To remedy this Sixth Amendment problem, the Court “severed and excised”
Abed‘s argument against the retroactive application of Booker, however, has been “universally rejected by the federal courts,” including our own. United States v. Davenport, 445 F.3d 366, 369–70 (4th Cir. 2006), abrogated on other grounds by Irizarry v. United States, 553 U.S. 708 (2008). “As the text of the [Ex Post Facto] Clause makes clear, it ‘is a limitation upon the powers of the Legislature, and does not of its own force apply to the Judicial Branch of government.‘” Rogers v. Tennessee, 532 U.S. 451, 456 (2001) (quoting Marks v. United States, 430 U.S. 188, 191 (1977)). While the Supreme Court has observed that some “limitations on ex post facto judicial decisionmaking are inherent in the notion of due process,” id., there is no plausible argument that any such limitations were violated here, given that the Booker Court itself concluded that it was necessary to apply its “remedial interpretation of the Sentencing Act . . . to аll cases on direct review,” even though those crimes, like Abed‘s, had necessarily been committed when the Guidelines were mandatory, 543 U.S. at 268; see also United States v. Vaughn, 430 F.3d 518, 525 (2d Cir. 2005) (Sotomayor, J.) (joining other circuits “in rejecting an ex post facto claim based on the remedial holding in Booker“). Accordingly, we reject Abed‘s ex post facto challenge to his upward variance sentence.
B
Abed next contends that the district court‘s imposition of a sentence on his remaining seven convictions that is greater than the sentence he received on those convictions at his original sentencing violated the Due Process Clause because the greater sentence “effectively punish[ed]” him for successfully challenging his
Pearce and its progeny establish that “[i]f a sentencing court increases a sentence on remand, the reasons for the court doing so must affirmatively appear.” Ventura, 864 F.3d at 310 (cleaned up). Otherwise, a presumption may arise that a greater sentence has been impermissibly imposed for a vindictive purpose. See id. (citing Alabama v. Smith, 490 U.S. 794, 798–99 (1989)). Thus, the first step in determining “whether a sentence violates Pearce and its progeny” is determining “whether the new sentence is actually harsher than that imposed prior to [the] successful appeal.” Id. (quoting United States v. Kincaid, 964 F.2d 325, 328 (4th Cir. 1992)). And if we so conclude, “we will then consider whether the defendant has demonstrated actual vindictiveness or a reasonable likelihood of actual vindictiveness.” Id.
In determining whether the defendant‘s sentence has actually been increased, we use the “aggregate package approach,” rather than a “so-called count-by-count approach.” Ventura, 864 F.3d at 310. And under the aggregate approach, “a sentence is not problematic so long as ‘the ultimate sentence for one or more counts does not exceed that given for all counts sentenced at the conclusion of the first trial.‘” Id. at 311 (quoting United States v. Gray, 852 F.2d 136, 138 (4th Cir. 1988)).
Comparing Abed‘s aggregate sentence in 1998 with his aggregate sentence in 2020, it is obvious that his term of incarceration did not increase; instead, it substantially decreased from 570 to 360 months’ imprisonment. Thus, just as in Ventura — where the defendant was also resentenced following the vacatur of his
Finally, Abed contends that the district court lacked authority to impose an above-Guidelines sentence at his resentencing because of the law of the case doctrine. Specifically, he notes that at his original 1998 sentencing, the district court denied the government‘s motion for an upward departure, and, based on this, he argues that “[t]he original sentencing court‘s adoption of the PSR‘s conclusion that the guidelines do in fact account for all of Mr. Abed‘s criminal conduct . . . is binding and cannot be rеvisited.”
In making this argument, however, Abed conflates the original sentencing court‘s denial of the government‘s motion for an upward departure with the new sentencing court‘s decision to impose an upward variance, which are “two distinct sentencing options.” United States v. Rivera-Santana, 668 F.3d 95, 100 n.6 (4th Cir. 2012) (explaining that “[a] departure is a sentence imposed under the framework set out in the Guidelines,” whereas a variance is “a non-Guidelines sentence” that is “justified under the sentencing factors set forth in
Beyond the attempt to compare distinct sentencing options that raise distinct legal questions, it is also clear that the original sentencing court‘s denial of the government‘s motion rested on its assessment that the “Guideline range of 188 to 235 months,” when combined with a mandatory 360-month consecutive sentence for the
Most decisively, however, Abed‘s law of the case argument is at odds with the Supreme Court‘s decision in Pepper v. United States, 562 U.S. 476 (2011). In Pepper, “the original sentencing judge . . . granted Pepper a 40-percent downward departure . . . based on [his] substantial assistance.” Id. at 505. But after the sentence was vacated on appeal and the case remanded for resentencing, a different district judge “instead granted only a 20-percent downward departure.” Id. at 506. While Pepper argued “that the law of the case doctrine required [the second judge] to apply the same 40-percent departure granted by the original sentencing judge,” the Supreme Court “disagree[d].” Id. at 506. It explained that because “[a] criminal sentence is a package of sanctions that the district court utilizes to effectuate its sentencing intent,” a court of appeals that is “reversing one part of a defendant‘s sentence may vacate the entire sentence so that, on remand, the trial court can reconfigure the sentencing plan to satisfy the sentencing factors in
In this case, after the district court vacated Abed‘s
In sum, we conclude that neither the Ex Post Facto Clause nor the Due Process Clause nor the law of the case doctrine denied the district court authority to resentence Abed to a term of imprisonment above his advisory Guidelines range.
III
Abed also contends that, for numerous reasons, his new sentence of 360 months’ imprisonment is procedurally and substantively unreasonable. We address each point in turn.
A
First and briefly, Abed contends in his opening brief that “the court erroneously adopted the government‘s view of what constitutes a ‘heartland’ case and thus erred in granting an upward departure on that basis.” (Emphasis added). In his reply brief, however, Abed “concedes that the government appears to be correct” that the district court imposed the sentence as an upward variance based on its consideration of the
B
Abed contends next that “the sentence imposed in this cаse was unreasonable . . . because it created an unwarranted sentencing disparity between [him] and other similarly situated defendants.” He notes that at the resentencing hearing, he “presented testimony and visual charts that showed that [his] sentence was not only longer than any other defendant in this case, even though his guidelines were similar, but also that his sentence was longer than those of other federal defendants nationally who had committed the same or more serious crimes, including murder.” He also contends that the district court failed to “adequately explain” why he “deserved a higher sentence than other defendants in his case or other defendants nationally who committed similar offenses.”
The record makes quite plain, however, that the district court did explain that it was intentionally ensuring that Abed received the highest sentence of those involved in the racketeering enterprise
As for Abed‘s claim that the imposed sentence creates an unwarranted sentencing disparity between himself and similarly situated offenders nationwide, we agree with the government that the evidence Abed points to for this argument hardly presents “an apples-to-apples comparison . . . [as] those statistics do not encompass a defendant who engaged in racketeering and robbery and multiple arsons and physical assaults and drug dealing and burglary and larceny and firearms offenses.” Indeed, it is for just this reason that we have cautioned that relying on these types of sentencing statistics “may be treacherous because each sentencing proceeding is inescapably individualized.” Rivera-Santana, 668 F.3d at 105. We see no ground for reversal based on Abed‘s claim of unwarranted sentencing disparities.
C
Abed contends also that the district court‘s consideration of his military history and diagnosis of severe PTSD was inadequate. In particular, he states that “the court failed adequately to explain why it was denying [him] a downward departure based on his exceptional military history or his documented mental disability deriving from those military sacrifices.” He argues that the court merely “made a passing reference to [his] military history and resulting disability” and maintains that the court “never address[ed] why those two considerations did not warrant a downward departure to a below-guideline sentence under the very provisions in
An obvious flaw with this argument is that Abed did not seek a downward departure under
To be sure, Abed did emphasize his combat service and associated PTSD in arguing that the court should impose a sentence that amounted to time served. But the district court explained that it was considering Abed‘s military service and PTSD in choosing its selected sentence. The court stated that it was “pretty compelling” that “at the time that some of these crimes were going on, [Abed] was also seeking treatment at the [Veterans Affairs] Medical Center for PTSD.” The court also acknowledged that at the time of Abed‘s original sentencing in 1998 there was not the same “recognition . . . as to what a serious problem” PTSD was for veterans. The court ultimately concluded, however, that notwithstanding Abed‘s military history and PTSD, the time-served sentence that Abed was requesting would not be sufficient to satisfy the
nonfrivolous mitigating arguments, fulfilling its obligation to provide a rationale tailored to the particular case at hand and adequate to permit meaningful appellate review, we will not require more” (cleaned up)).
D
Abed contends next that although his was purportedly a plenary resentencing, the district court erroneously treated his “original sentence as a starting benchmark.” In a similar vein, he argues that the court failed to explain adequately the extent of the upward variance it imposed, arguing that “[t]he brevity of the court‘s statеment of reasons . . . is sufficient reason alone to reverse an upward [variance] of this magnitude.”
In “all sentencing proceedings,” including a resentencing hearing like the one conducted here, district courts are required to use the Guidelines’ advisory range as “the starting point and the initial benchmark.” Gall v. United States, 552 U.S. 38, 49 (2007). And when a “court decides that a sentence outside the Guidelines’ advisory range is appropriate, it must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.” United States v. Zuk, 874 F.3d 398, 409 (4th Cir. 2017) (cleaned up). “The Guidelines are not the only consideration, however.” Gall, 552 U.S. at 49. District courts must also “giv[e] both parties an opportunity to argue for whatever sentence they deem appropriate” and then must “consider all of the [factors undеr
Thus, we agree that it would have been improper had the district court used Abed‘s original sentence — rather than his advisory sentencing range — as an initial benchmark at his resentencing. But based on our review of the sentencing proceeding, we are satisfied that it did not do so. The court said that it was “start[ing]” its determination of Abed‘s sentence “with consideration of the advisory sentencing Guidelines,” which, it noted, produced a range of “188 to 235 months.” Indeed, the court recognized that it was “required” to “start[]” with the Guidelines “under current law.” While the court did also reference Abed‘s original 570-month sentence, it generally did so to make the point that Abed‘s receipt of a sentence longer than that received by “any other person in this case” was reflective of his greater culpability according to the judge who conducted the lengthy trial, a factor that was entirely appropriate for the court to consider. The court also referenced Abed‘s original sentence in stating that it did “not believe that a sentence in the range of 570 months . . . or anywhere near that [range] me[t] the statutory obligations” that governed “this plenary resentencing” and in stating that there were a number of reasons “to lower the sentence down below the range that he was originally sentenced to.” But these references are best understood as part of the court‘s explanation for why it was rejecting the government‘s argument for “a sеntence at or near the previously-imposed sentence of 570 months.”
E
Finally, Abed contends that it was substantively unreasonable for the court to have imposed a sentence of 360 months’ imprisonment given the combination of his mitigating evidence regarding his combat service and PTSD and his extensive rehabilitation evidence regarding his transformation during his more than 20 years in custody.
In reviewing the substantive reasonableness of a sentence, we “examine[] the totality of the circumstances to see whether the sentencing court abused its discretion in concluding that the sentence it chose satisfied the standards set forth in
In maintaining that his 360-month sentence was substantively unreasonаble, Abed emphasizes his evidence regarding his military service and the severe PTSD that resulted from it, as well as his abundant rehabilitation evidence. Nonetheless, as noted, the record reflects that the district court considered both the mitigation and rehabilitation evidence presented and weighed it against the serious “nature and circumstances of [an] offense” that involved “a widespread crime spree for a number of years.” While reasonable jurists could perhaps have balanced those competing factors differently and arrived at a different result, we cannot conclude that this is “one of the rare cases where . . . the sentence imposed by the district court was substantively unreasonable in light of the
*
*
During the extensive resentencing hearing, the district court repeatedly recognized how Abed had turned his life around in prison. The court said that “he is a
While we reject Abed‘s challenges to his 360-month sentence and affirm the district court‘s balanced approach, we too want to recognize the great strides that Abed has taken toward his rehabilitation. Based on the record, we are optimistic that Abed can look forward relatively soon to reentering society, reuniting with his family, and leading a constructive and indeed joyful life.
The judgment of the district court is
AFFIRMED.