1

The Honorable Dean Whipple, United States District Court for the Western

District of Missouri. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 09-2894

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri.

Abdul Ahmed Asalati, *

*

Appellant. *

___________

Submitted: April 12, 2010

Filed: August 12, 2010 

___________

Before LOKEN, HANSEN, and MELLOY, Circuit Judges.

___________

MELLOY, Circuit Judge.

The district court1

 found by a preponderance of the evidence that Appellant

Abdul Asalati violated the conditions of his supervised release by, among other things,

committing an assault. The district court revoked Asalati's supervised release and

sentenced him to twenty-four months' imprisonment followed by lifetime supervised

release and curfew. Asalati appeals, and we affirm.
-2-

I.

In 2005, Asalati pleaded guilty to conspiring to distribute a controlled substance

in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846. His Presentence

Investigation Report ("PSR"), to which he lodged no factual objections, indicates that

he sold an undercover officer a total of 443.79 grams of cocaine and 2.5 grams of

ecstacy. The Government stated it had evidence that Asalati conspired to distribute

at least 500 grams of cocaine. The PSR also indicates that Asalati's criminal history

includes burglary, felony and misdemeanor theft, misdemeanor and felony property

damage, and automobile burglary. The district court sentenced Asalati to twenty-four

months' imprisonment. Following his imprisonment, he was to be removed to

Afghanistan. If not removed, he was to serve five years' supervised release. After

Asalati served several months of post-prison custody with Immigration and Customs

Enforcement ("ICE"), Afghanistan failed to provide the necessary paperwork for his

removal. Accordingly, Asalati began serving five years' supervised release.

Subsequently, Asalati was charged with violating the conditions of his

supervised release by: (1) failing to report a prior arrest to his probation officer; (2)

lying to his probation officer; and (3) committing assault. The district court held an

evidentiary hearing in July 2009 to address revocation of Asalati's supervised release.

At the hearing, Asalati admitted the first two violations, but contested the assault

charge. 

The testimony at the hearing showed that the assault occurred outside a

nightclub where Asalati worked. The victim, Chris Milan, and his friend, Kayla

Moore, arrived at the club around 11:30 P.M.; each had a number of drinks throughout

the evening. After the club closed, Milan and Moore went to a loft above the club for

an after-hours party. Milan and Moore first encountered Asalati when Moore showed

Milan to the bathroom. When they knocked on the bathroom door, they found Asalati

with a nearly naked, unconscious woman. Asalati claimed that the woman was his
-3-

friend and he was helping her clean up after she had become sick from drinking.

Nevertheless, Milan and Moore questioned Asalati in an accusatory manner,

suspicious that Asalati may have been taking advantage of the woman. 

At that point, the situation became hostile. Asalati testified that Milan took a

swing at him and that an owner of the club told Milan and Moore to leave. He also

stated that he heard the owners talking about beating Milan and Moore. Moore

testified that she and Milan left the club after someone warned her that they needed

to leave because "something bad's about ready to happen." She testified that after she

and Milan left, they were outside the club when they heard the elevator from the loft

open. She then saw Asalati and five other men exit the elevator and charge toward her

and Milan. During the encounter, Moore was pushed over and "ended up getting hurt

and kicked." She stated, however, that the same man who had warned her and Milan

to leave came and stopped "the guy" from hurting her. When she regained her

composure, she found Milan lying beaten and unconscious on a staircase by the club.

Moore testified that she did not see Asalati assault Milan. It is undisputed, however,

that Milan was assaulted and as a result had eleven staples in his head, bleeding in his

frontal lobe, a swollen jaw, and was hospitalized for two days. 

Asalati's recollection of the assault differs from Moore's testimony. He testified

that although there was a conflict between Milan and Moore and the owners of the

club, he did not touch Milan. He stated that he had in fact tried to help Moore after

she was pushed to the ground. Asalati also elicited testimony from a detective who

claimed to have seen a police report from the night of the assault that indicated Moore

had not seen Asalati charge out of the building, but had left the club after Milan and

simply found him unconscious. Moore denied describing the incident to the police

that night. She testified, however, that she spoke to a detective the day after the

assault and reported the events consistently with her testimony at the evidentiary

hearing. 
-4-

Milan's testimony corroborated Moore's description of the events, but he was

unable to remember the assault and could not identify his assailants. He was,

however, able to identify Asalati in a lineup. 

After hearing counsels' arguments, the district court determined that Asalati's

version of the events was not credible and that the preponderance of the evidence

showed that Asalati participated in the assault. The district court revoked Asalati's

supervised release and sentenced him to twenty-four months' imprisonment. In

addition, the district court ordered Asalati be on supervised release for life or until he

is removed or otherwise leaves the United States. Along with the standard conditions

of supervised release, the district court ordered a curfew of 10:00 P.M., "until further

order of the court." 

During the course of sentencing, the district court made a number of references

to Asalati's alien status and expressed frustration over the fact that, due to poor recordkeeping, Asalati had not been removed to Afghanistan. Among other things, the

district court stated, "I find it very telling that you're not a citizen of this country.

Because of the poor record-keeping in the country you came from, this country cannot

send you back to that country, to Afghanistan." The court further stated, "I'm doing

th[is] . . . because you need to be deported, and if you're not going to be deported, I'm

going to keep you under tight reins while you are here in the United States." 

Asalati appeals, arguing that the district court erred in finding by a

preponderance of the evidence that he committed assault and by imposing a lifetime

term of supervised release with the condition of a lifetime curfew. 

II.

"A defendant violates a mandatory condition of supervised release if he

commits a federal, state, or local crime." United States v. Perkins, 526 F.3d 1107,
-5-

1109 (8th Cir. 2008) (citing 18 U.S.C. § 3583(d)). Upon finding a violation by a

preponderance of the evidence, the district court has discretion to revoke a defendant's

supervised release. Id. Here, the district court stated that it did not believe Asalati's

version of the events and found that Asalati committed assault, in violation of

Missouri law. Asalati's challenge concerns the district court's fact and credibility

findings. He argues that the district court clearly erred in crediting Moore's testimony

and in finding that there was sufficient evidence that he committed assault. We

review factual findings for clear error. Id. Credibility findings are "virtually

unreviewable on appeal." United States v. Carothers, 337 F.3d 1017, 1019 (8th Cir.

2003) (quotation omitted).

On the credibility issue, Asalati attempts to call Moore's testimony into

question. He does so by pointing to a detective's testimony regarding a police report

containing a statement by Moore that on the night of the assault, she left the club after

Milan and simply found him unconscious outside the club. Moore, however, denied

making this statement. The record also shows that she had made statements in a

police report the morning after the assault that were consistent with her testimony

during the revocation hearing. Asalati's attack on Moore's credibility is the kind of

"he said, she said" argument that we routinely find insufficient to overcome the high

barrier to reversal of a district court's credibility finding. See United States v. Ralph,

480 F.3d 888, 890 (8th Cir. 2007); Carothers, 337 F.3d at 1019. The district court did

not err in crediting Moore's version of the events.

 Accepting Moore as a credible witness, we affirm the district court's factual

conclusion. Moore testified that soon after she and Milan accused Asalati of sexual

assault and were warned by another man that they better leave to avoid trouble, she

saw Asalati among a group of men charging toward her and Milan. She then awoke

to find her friend beaten and unconscious. Although Moore did not see Asalati strike

Milan, she observed events immediately preceding and following the assault that

strongly suggest he was involved. Further, there is no suggestion in the record that
-6-

the assault stemmed from anything other than the confrontation between Asalati and

Milan and Moore. A preponderance of the evidence means only that the fact finder

believes that the existence of the fact is more probable than its nonexistence. United

States v. DeRosier, 501 F.3d 888, 896 (8th Cir. 2007). The record shows that the

district court did not clearly err in finding that the Government met this standard. 

III.

Asalati also challenges the district court's sentencing determination as to the

term and conditions of his supervised release. He first argues that the district court

improperly considered his alien status, thereby violating his constitutional right to due

process and equal protection. He also argues that the district court's sentence was

unreasonable due to its consideration of his removability and the imposition of a

lifetime term of supervision and curfew. As to Asalati's constitutional claim, our

review is de novo. See United States v. Rodriguez, 581 F.3d 775, 796 (8th Cir. 2009).

We review the reasonableness of Asalati's revocation sentence for abuse of discretion.

United States v. Miller, 557 F.3d 910, 917 (8th Cir. 2009). "A district court abuses

its discretion and imposes an unreasonable sentence when it fails to consider a

relevant and significant factor, gives significant weight to an irrelevant or improper

factor, or considers the appropriate factors but commits a clear error of judgment in

weighing those factors." United States v. Kreitinger, 576 F.3d 500, 503 (8th Cir.

2009) (quotation omitted). 

We first consider Asalati's constitutional claims arising out of the district court's

reference to his alien status. Asalati labels the district court's references

discrimination on the basis of national origin. This was not the case. The record

plainly demonstrates that the district court's references were to Asalati's alien status

and removability, not his national origin. We have previously held that the

Constitution does not prohibit differentiation at sentencing based on a defendant's

alien status. See United States v. Navarro, 218 F.3d 895, 898 (8th Cir. 2000). In
-7-

Navarro, we held that "Congress has . . . the right to determine the conditions upon

which noncitizens are allowed to remain in this country. If a violation of those

conditions causes a prisoner . . . to be held more securely, the result is simply the

permissible consequence of two things: the commission of the crimes and the

defendant's status under the immigration statutes." Id. Here, as in Navarro, any

difference in treatment is due to Asalati's immigration status and his continued

inability to operate within the confines of the law. Our case law precludes relief on

this ground. 

In addition, the transcript shows that the district court's sentencing

determination was ultimately driven by a concern for public safety and Asalati's

dangerous nature, not his alien status or removability. We note first that while the

district court is required to consider the § 3553(a) factors, it is not required to make

specific findings as to each factor. United States v. Franklin, 397 F.3d 604, 606 (8th

Cir. 2005). Here, the district court stated that it had considered the § 3553(a) factors

and in fact made express findings related to a number of those factors. Specifically,

the court noted that Asalati's repeated infractions demonstrated that he "can't live a

lawful life in the United States." For this reason, the district court saw fit to "keep

[Asalati] under tight reins while [he is] here in the United States." These statements

demonstrate a consideration of Asalati's history and characteristics and a concern for

protecting the public, both proper factors. See 18 U.S.C. § 3553(a). Although the

district court referenced Asalati's alien status and expressed frustration with the

inability to remove him, the district court's sentencing determination, properly viewed,

was not based on Asalati's alien status or removability, but rather was based on proper

sentencing factors. 

To address the reasonableness of Asalati's term of supervised release, we first

note that, given Asalati's underlying drug offense, a life term of supervised release is

statutorily permissible. See United States v. Mora, 22 F.3d 409, 412 (2d Cir. 1994)

("In order to further Congress' intent to enhance drug offense penalties . . . a
-8-

sentencing judge may, where circumstances warrant, impose a supervised release term

. . . up to the life of the defendant, notwithstanding the limits of section 3583(b));

United States v. Staggs, 527 F.3d 680, 681 (8th Cir. 2008) ("The maximum revocation

sentence allowed, including imprisonment and additional supervised release, is equal

to the maximum term of supervised release authorized for the original conviction

offense."). Asalati's PSR from the underlying drug offense indicates the

ineffectiveness of prior efforts at rehabilitation. The district court judge who presided

over Asalati's revocation hearing also presided over the proceedings for his underlying

drug offense, illustrating the district court's full awareness of this history. See

Franklin, 397 F.3d at 607. Further, Asalati's participation in a violent assault

demonstrates a continued and escalating danger to the public. As stated above, the

district court specifically alluded to these concerns during sentencing. Although

harsh, a lifetime term of supervised release is not outside the bounds of reason and is

necessary under the circumstances of this case to provide the continued oversight

appropriate for a repeat offender who has demonstrated himself capable of committing

crimes with such violent force. 

 

As for the district court's imposition of a curfew, such conditions must be

"reasonably related to the sentencing factors set forth in 18 U.S.C. § 3553(a),"

"involve[] no greater deprivation of liberty than is reasonably necessary for the

purposes set forth in § 3553(a)," and be "consistent with any pertinent policy

statements issued by the Sentencing Commission." United States v. Bender, 566 F.3d

748, 751 (8th Cir. 2009) (quotation omitted). A district court normally has wide

discretion when imposing conditions on supervised release. United States v.

Heidebur, 417 F.3d 1002, 1004 (8th Cir. 2005). Here, the nature and extent of

Asalati's prior crimes—theft, burglary, automobile burglary, sale of controlled

substances, and violent assault—demonstrate a continued and escalating inability to

operate within the confines of the law. Further, given that many of Asalati's crimes

occurred while he was on supervised release, it is apparent that less restrictive release

conditions have thus far been ineffective. This, we believe, demonstrates that the
-9-

imposition of a curfew as a special condition is reasonably related to the protection of

the public, Asalati's rehabilitation, effective correctional treatment, and deterring

Asalati from committing future crimes. See 18 U.S.C. § 3553(a); id. § 3583(d)(1).

Additionally, Asalati has not presented us with any reason to believe that the imposed

curfew is greater than reasonably necessary to accomplish the above-articulated goals.

The district court imposed the maximum term of supervised release in this case,

and a judge reasonably could have placed Asalati on supervised release for a shorter

period of time. But our role in the process does not contemplate a substitution of our

judgment for that of the district court; our role is to determine whether the district

court's sentence was unreasonable. Gall v. United States, 552 U.S. 38, 51 (2007).

Although the term of the supervised release portion of Asalati's revocation sentence

was at the statutory maximum, its imposition was not unreasonable given his criminal

history and demonstrated inability to become law abiding. Furthermore, should it

later become prudent to modify the conditions or reduce the term of Asalati's

supervised release, the district court has the discretion to do so. See 18 U.S.C.

§ 3583(e)(2).

We affirm the judgment of the district court.

______________________________