UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 09-4326

UNITED STATES OF AMERICA, 

 Plaintiff – Appellee, 

 v. 

MOHAMED AFIF, 

 Defendant – Appellant. 

Appeal from the United States District Court for the District of 

South Carolina, at Charleston. Patrick Michael Duffy, District 

Judge. (2:07-cr-00134-PMD-1) 

Argued: January 29, 2010 Decided: February 18, 2010 

Before MICHAEL, KING, and SHEDD, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

ARGUED: Nicole Nicolette Mace, THE MACE FIRM, Myrtle Beach, 

South Carolina, for Appellant. Robert Frank Daley, Jr., OFFICE 

OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for 

Appellee. ON BRIEF: W. Walter Wilkins, United States Attorney, 

Columbia, South Carolina, Eric J. Klumb, Assistant United States 

Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, 

South Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit. 
PER CURIAM: 

 Mohamed Afif, a native of Yemen and a legal alien in the 

United States, pled guilty to one count of trafficking in 

counterfeit goods. See 18 U.S.C. § 2320(a). At sentencing, the 

district court set Afif’s advisory sentencing range at 18-24 

months and sentenced him to an 18-month term of imprisonment. 

The government subsequently filed a Rule 35(b) “substantial 

assistance” motion, but it informed the court that it was not 

recommending a substantial reduction or a sentence of less than 

12 months. However, Afif urged the court (in writing and at the 

Rule 35 hearing) to sentence him below 12 months in order to 

lessen the immigration consequences that he faced as a result of 

his conviction. The court granted the motion and sentenced Afif 

to 12 months plus one day, a term that allows him to receive 

credit toward the service of his sentence for satisfactory 

behavior. See 18 U.S.C. § 3624(b); United States v. Crecelius, 

751 F. Supp. 1035, 1037 (D.R.I. 1990) (explaining that a 

sentence of 12 months plus one day can actually be “less” than a 

12-month sentence because of service credit). Afif now appeals 

the reduced sentence, arguing that the court improperly based it 

on his status as an alien. Finding no merit to this contention, 

we affirm. 

 Afif did not argue below that the district court erred by 

considering his status as an alien during the Rule 35(b) 

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proceeding; indeed, to the extent that his status was 

considered, Afif asked the court to consider it. On this 

record, the government contends that we should apply the 

“invited error” doctrine. See, e.g., United States v. Herrera, 

23 F.3d 74, 75 (4th Cir. 1994) (noting that “a defendant in a 

criminal case cannot complain of error which he himself has 

invited” (citation and internal punctuation omitted)). Although 

the government’s position arguably is correct, even if we allow 

Afif to maintain this argument on appeal, our review is for 

plain error. See, e.g., United States v. Dawson, 587 F.3d 640, 

648 (4th Cir. 2009) (noting that “criminal defendants have an 

affirmative obligation to raise appropriate objections in the 

district court, lest they be subjected to the rigorous plain 

error standard on direct review”). 

 Plain error review involves four steps: 

First, there must be an error or defect - some sort of 

deviation from a legal rule - that has not been 

intentionally relinquished or abandoned, i.e., 

affirmatively waived, by the appellant. Second, the 

legal error must be clear or obvious, rather than 

subject to reasonable dispute. Third, the error must 

have affected the appellant’s substantial rights, 

which in the ordinary case means he must demonstrate 

that it affected the outcome of the district court 

proceedings. Fourth and finally, if the above three 

prongs are satisfied, the court of appeals has the 

discretion to remedy the error - discretion which 

ought to be exercised only if the error seriously 

affect[s] the fairness, integrity or public reputation 

of judicial proceedings. Meeting all four prongs is 

difficult, as it should be. 

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Puckett v. United States, 129 S.Ct. 1423, 1429 (2009) (citations 

omitted and internal punctuation modified). 

 Our plain error review need not proceed beyond step one 

because we conclude that the district court did not err in 

sentencing Afif. “Although the Guidelines prohibit reliance on 

national origin . . . they do not mention alienage as a 

departure factor; it therefore serves as a potential basis for 

departure.” United States v. DeBeir, 186 F.3d 561, 569 (4th 

Cir. 1999). Aliens are entitled to the same individualized 

sentencing procedure as citizens. United States v. Gomez, 797 

F.2d 417, 419 (7th Cir. 1986). Thus, “the illegal act of an 

alien is entitled to no more deference than some other prior 

illegal act of a citizen also being sentenced for a [comparable] 

violation.” Id. at 420. The record simply does not support 

Afif’s contention that the court’s sentence was based on his 

status as an alien. The court did not sentence Afif to 12 

months plus one day because he is an alien. Instead, the court 

rejected Afif’s request that he receive a sentence below 12 

months, a request that Afif made because of his alien status. 

In other words, the court did not grant Afif special treatment 

because of his alienage. There is certainly nothing improper in 

the court’s handling of this issue. For this reason, Afif is 

not entitled to relief. 

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 Based on the foregoing, we affirm the judgment of the 

district court. 

AFFIRMED