2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit 6-7-2004 

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w . v i l l a no va . e du/thir dc ir c uit_2004/613NOT PRE CEDENT IAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT
No. 03-2204

UNITED S TATES OF AMERI CA

v. MOSTAFA MAHAMOUD, Appellant

On A ppeal from the Un ited States District Co urt

for the Dis tri ct of New Jersey D.C. C riminal No . 95-cr-0041 1-1 (Honorable Dicki nson R. Debevoise)
Submitte d Pursuant to Third Circ uit LAR 34.1(a)

May 25, 2004 Be for e: S CIR ICA , Chief Judge , RE ND EL L a nd A LA RC ÓN *, Circuit Judges (Fil ed: June 7, 2004)

OPINI ON OF THE COURT

*The Honorable Arthur L. Alarcón, United States Circui t Judge for the Ninth J udicia l Circuit , si tti ng by des ignati on.2

SC IRI CA , Chief Judge
. Defendant Mostafa Mahamoud violat ed his term of supervi sed rel ease and was sentence d to an upward departure of 20 months impri sonment. Mahamoud clai ms the sentenci ng court fa iled to arti culat e its reasons f or the s tri cter s entence and t hat the imp ose d se nt enc e i s pl ai nl y unr eas onabl e. We wil l a ffi rm. I. In N ovem ber 1 995 , defe ndan t M ostafa M aham oud pled g uilty to con spirac y to commit counte rfeit

ing offenses in volat

ion of 18 U.S.C. § 371. Mahamoud’s guidel ines range was 18 to 24 months , but t he District Court

granted a

downward departure pur suant to U .S.S.G . § 5K 1.1 du e to his s ubsta ntial assis tance to auth orities an d sen tence d him to 12 months and 28 day s of impri sonment (time served) plus three y ears of s upervis ed relea se. In March 1998, probat

ion offi cial s in New York determined t hat Mahamoud had left the U nited S tates to tra vel to E gypt, and a w arrant f or his a rrest w as sub sequ ently issued i n May 1998. Mahamoud allegedl y r eturned to the Unite d States under an assumed name in 1999, and he did not report to the probation of

fice. On February 4, 200 3, he was arre st ed in th e c omp an y of a k now n f

ugi ti ve durin g a tr af

fi c s to p. On March 24, 2003, Mahamoud was charged with and pl ed guilt y t o violat

ing a condi tion of his sup ervise d relea se, nam ely failing to repo rt to his p roba tion of ficer a nd su bm it a monthlyreport , a Grade C viol ation. Pursuant to U.S.S.G. § 7B1. 4(a), the rec ommended3

sentenci ng range for a GradeC violation was thr ee to ni ne months impri sonment. The statu tory m axim um term of im priso nm ent w as 2 4 m ont hs, p ursu ant to 18 U .S.C . § 3583(e )(3). At the sentencing hearing, de fense counselrequested a sente nce at the bottom of the rec ommended sentencing r ange, noting Mahamoud’s lack of a c riminalhist ory and claim ing tha t his retur n to E gypt w as m otivate d by a de sire to sp end tim e w ith his daughter who was recover ing from heart surge ry . The government , on the other hand, argued that Mahamoud should recei ve an upward departure of twenty months because he took adv antage of the dow nwa rd departure in his original sentenc ing; his illegal re-entry into t he United States under

a false name; his f

ailure to repor

t to pr obation f

or almost

four year s; and hi s being ar

rest ed in the company of a wanted i ndividualwith almost $5,300 on his per son. The Distri ct Court s tate d that i t had consi dered the Present ence Report, the Vio lati on o f Su pe rv is ed Rel ea se Rep or t, ar gum en ts byco uns el , and Ma ha mou d’ s o wn remarks. While the cour t recogni zed Mahamoud’s concern for hi s daughter , it noted that he should have not

ifie d the probat

ion offi ce of his daughter’ s condition and reque sted permissi on to go to Egypt. The court revoked t he previous ly imposed term of supervis ed relea se and sent enced Mahamoud to 20 months impri sonment, f ollowed bysupervi sed relea se of one y ear. Mahamoud fil ed a ti mely not ice of appeal . We have juri sdiction under 28 U.S.C. § 1291.4 II. A district court

sentencing a defendant upon revocation of supervised release under § 3583(e) must consi der the pol icystatements in Chapter 7 of the sentenci ng gui delin es a nd s ente ncin g fa ctor s en um erate d in § 35 53( a). United Stat es v. Blackston, 940 F.2d 877, 893 (3d C ir. 1991). I f an upwa rd departure is i mposed, the court “must simply st ate on the record its gene ral reasons unde r section 3553(a) for rej ecti ng the Chapter 7 pol icystatements and for imposing a more stri ngent sentence.” Id. (emp hasis in ori ginal) . We review the Dis tri ct Court’ s decis ion to exc eed the se ntenci ng range set forth byU.S.S.G. § 7B1. 4 for abuse of di scretion res ulti ng in a “pl ainly unreasonabl e”
sen tenc e. Id. at 894 ; Un ited S tates v. Sc hw ege l, 126 F .3d 551, 55 5 (3d C ir. 1997). Mahamoud claims that

the Dist rict Court fai led to c onsider the Chapter

7 policy statements and fai led to s uffici ently arti culat e its reasons unde r 8 U.S.C. § 3553( a) for imposing a s entence out side t he recommended sente ncing range . We disagr ee. The Dis trict C our t no ted th at the sen tenc e co mp orts w ith A ppl icatio n N ote 4 to U .S.S .G. § 7B1 .4, which p rovides that “[w ]here the original sen tence w as the result of a d own ward depa rture, . . . an u pw ard d epartu re ma y be w arrante d.” In a ddition , the co urt stated its reasons f or the upward departur e, i ncluding: (1) Mahamoud’s failure to report to the probation o ffice (relating to “the n ature and c ircumstanc es of the o ffense” under § 355 3(a)(1 )); (2) the fact th at he w as a fu gitive f or fo ur years u ntil he w as ap preh ende d in the company of another wanted fugitive (relating to “t he nature and circ umstances of t he5

offense” and “hi story

and characteris tics of the offens e,” both under § 3553(a) (1)); and (3) his h aving bene fitted fr om a dow nw ard d epartu re at the origina l senten cing b ut still violatin g his su perv ised re lease (re lating to “histor y and ch aracte ristics of the de fend ant” plus “deterren ce to criminal co nduct” u nder § 3 553(a)(2)(B )). The D istrict Court followed the direc tives in Blackstone and did not abuse it s discretion. Mahamoud also claims t he 20-month sentence imposi tion for a Grade C violation was “p lainly unreasonable.” H e basically contends the court shou ld have b een m ore lenien t in the im pose d sen tence due to the na ture of his da ugh ter’s surg ery and h is sub seq uen t fea r ofrep ortin g to the a uth oritie s up on r etur nin g to the U nited Sta tes. Inde ed, the Distric t Cou rt took h is dau ghter’ s illness in to con sidera tion, as w ell as all other r eleva nt fac tors, as p rescrib ed by § 3 553 (a). It did n ot abu se its disc retion in
we igh ing the o ther fac tors m ore hea vily. III. For the r easons st ated, we will affi rm the judgment of sentenc e imposed bythe Dis trict C our t.