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- c r United States v. Kamali
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

R ULINGS BY SUMMARY ORDER D O NOT HAVE PRECEDENTIAL EFFECT
. C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ' S L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE ( WITH THE NOTATION " SUMMARY ORDER " ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON A NY PARTY NOT REPRESENTED BY COUNSEL
. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 4 th day of December, two thousand twenty

.
PRESENT: DENNY CHIN, RAYMOND J. LOHIER, JR., MICHAEL H. PARK, Circuit Judges

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UNITED STATES OF AMERICA , Appel lee ,

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MOHAMMADREZA KAMALI, AKA REZA , Defendant

- Appell ant

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FOR APPELLEE : LAUREN C. CLARK , Assistant Unite d States Attorney ( Sandra S. Glover , Assistant United States Attorney, on the brief ), for John H. Durham, United States Attorney for the2 District of Connecticut , New Haven, Connecticut.

FOR DEFENDANT

- APPELL ANT : TRACY HAYES, Assistant Federal Defender, for Terence S. Ward, Federal Defender , New Haven , Connecticut

. Appeal from the United States District Court for the District of

Connecticut ( Hall , J .).

UP ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the d istrict c ourt is AFFIRMED

.
Defendant

- Appellant Mohammadreza Kamal i appeals from the district court's judgment, entered October 9, 2019, convicting him of one count of d ealing in

f irearms w ithout a l icense and sentencing him principally to eighteen months' imprisonment and a term of three yea rs of supervised release. On appeal, Kamali argues that the district court 's sentence was procedurally and substantively

unreasonable

. We assume the parties ' familiarity with the underlying facts, procedural history of the case, and issues on appeal.
On October 18 and 25, 2018, Kamali , who was not licensed to deal or
manufacture firearms, sold to an uncover officer a Glock receiver and three firearms

without serial numbers that Kamali had assembled from parts that he purchased over

the internet. 1 During the October 25 transaction, the undercover stated that he was a

1 These facts are taken from the parties' stipulation of offense and relevant conduct a nd the presentence report (the "PSR").3 felon who had been convicted following a fight with his girlfriend, and thus he could

not leg ally buy a gun. During the same conversation, Kamali explained to the officer

that he test ed the guns by shooting them in the woods behind his house, and although

the woods were within a "town zone" where shooting was prohibited, he still fired guns

there "all the time." On November 2, 2018, Kamali sold to the undercover officer a .300 Blackout caliber firearm (the "Blackout") along with six firearms magazines and a vertical forward grip. That same day, Kamali was arrested, and officers executed a

search warrant at Kamali 's house , where they found another firearm as well as numerous other gun parts.

Prior to his arrest, Kamali had no criminal history, but from eighth grade through his senior year of high school , he received at least seventy

- eight disciplinary

actions in school , resulting in several suspensions. The record reveals other efforts by
Kamali to sell firearms, inclu ding through social media. "We review sentencing decisions for procedural and substantive

reasonableness." United States v. Eaglin , 913 F.3d 88, 94 (2d Cir. 2019). We apply a

"deferential abuse

- of

- discretion standard" to both procedural and substantive review.

United States v. Cavera , 550 F.3d 180, 189 (2d Cir. 2008) ( en banc ) (quoting Gall v. United

States , 552 U.S. 38, 41 (2007)). "A district court commits procedural error where it fails to calculate (or improperly calculates) the Sentencing Guidelin es range, treats the . . . Guidelines as mandatory, fails to consider the [18 U.S.C.] § 3553(a) factors, selects a4 sentence based on clearly erroneous facts, or fails adequately to explain the chosen

sentence." United States v. Robinson , 702 F.3d 22, 38 ( 2d Cir. 2012). In analyzing the substantive reasonableness of a sentence, this Court "will identify as substantively unreasonable only those sentences that are so shockingly high, shockingly low, or otherwise unsupportable as a matter of law that allowing them to stand would damage the administration of justice." United States v. Singh , 877 F.3d 107, 115 (2d Cir. 2017) (citation and internal quotation marks omitted). The parties primarily dispute whether the district court erred in calculating Kamali 's base offense level to be 18, with a Guidelines r ange of 24 to 30

months of imprisonment , after determining that the Blackout was a rifle under the

National Firearms Act ( the "NFA"), 26 U.S.C. § 5845(a)(3)

. Kamali argues that his base offense level should have been 12, with a Guidelines range of 10 to 16 months of
imprisonment , because the Blackout was not a rifle as defined under the NFA. W e need

not reach that issue , because even assuming the district court erred in calculating

Kamali 's base offense level, any such error was harmless. "Preserved errors in calculating the Guidelines are subject to harmless

error review

. " United States v. Brown , 945 F.3d 72, 75 ( 2d Cir. 2019) . On this issue, the
Supreme Court has held: There may be instances when, despite application of an erroneous Guidelines range, a reasonable probability of prejudice does not exist. The sentencing process is particular to each defendant, of course, and a reviewing court must5 consider the facts and circumstances of the case before it. The record in a case may show, for example, that the district court thought the sentence it chose was appropriate irrespective of the Guidelines range. Judges may find that some cases merit a detailed explanation of the reasons the selected sentence is appropriate. And that explanation could make it clear that the judge based the sentence he or she selected on factors independent of the Guidelines. The Govern ment remains free to point to parts of the record

-- including relevant statements by the judge

-- to counter any ostensible showing of prejudice the defendant may make.
Molina

- Martinez v. United States , 136 S. Ct. 1338, 1346

- 47 (2016) (citations, internal quotation marks, and alteration omitted). As noted above, we assume without deciding

that t his case presents one of those inst ances
.
The district court explained on the record that it thought "a lot" about

what Kamali 's sentence would be had his base off ense level been 12 , as he argued it

should have been

. The district court engaged in this analysis because it was aware that

the law in this C ircuit is unsettled regarding what the Government was required to prove to establish that the Blackout was "intended to be fired from the shoulder

. " The

district court concluded that even if Kamali 's base offense level was 12, it would still

sentence him to eighteen months' imprisonment. The district court acknowledged that the sentence would have been an upw ard departure, but it also observed that such a departure would have been appropriate considering "the circumstances under which
[ Kamali ] made and sold [firearms and] the number that he sold." We agree.6 Those circumstances included the sale of multiple "g host" guns to an

individual who Kamali believed to be a convicted felon who could not legally buy a gun. Further, Kamali boasted to the undercover officer, to friends, and on social media about his ability and willingness to break the law by, among other things, building guns
without serial numbers and recklessly firing guns in a town zone. Finally, while Kamali

did not have a criminal record and was only eighteen years old at the time , he had a lengthy school

- disciplinary record, and at least seventy

- eig ht disciplinary actions taken against him between eight h and twelfth grade

. The district court's imposition of an eighteen

- month term of imprisonment, amounting to only a two

- month upward departure even if Kamali's suggested Guidelines calculations were u sed, is reasonable. Accordingly, even if the district court erred in its Guidelines calculation, that error would be harmless and would not be ground for reversal. See United States v.
Jass , 569 F.3d 47, 68 (2d Cir. 2009) ( w here a district court recognizes that the applicability of an enhancement is "by no means clear, and invit[es] appellate review and action on an unsettled question of law," and also "unequivocally state[s] that it would impose the same . . . sentence on [d efendant] however the issue of . . . enhancement ultimately works out on appeal . . . we can confidently conclude that the district court's application of [the enhancement] constitutes harmless sentencing error"
(alterations omitted) )

.
* * *7 We h ave considered Kamali 's remaining arguments and conclude they are

without merit. Accordingly, we AFFIRM the judgment of the district court

. FOR THE COURT: Catherine O ' Hagan Wolfe, Clerk