NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

 Plaintiff - Appellee,

 v.

MUSAB MOHAMMED MASMARI,

 Defendant - Appellant.

No. 14-30155

D.C. No. 2:14-cr-00122-RSM-1

MEMORANDUM*

Appeal from the United States District Court

for the Western District of Washington

Ricardo S. Martinez, District Judge, Presiding

Argued and Submitted July 7, 2015 

Seattle, Washington

Before: NGUYEN and FRIEDLAND, Circuit Judges and CARNEY,** District 

Judge.

Musab Mohammed Masmari pled guilty to a single count of arson, 18 

U.S.C. § 844(i). He appeals his above-Guidelines sentence of 120 months’ 

imprisonment followed by 3 years of supervised release. We have jurisdiction 

 

* This disposition is not appropriate for publication and is not precedent

except as provided by 9th Cir. R. 36-3.

** The Honorable Cormac J. Carney, District Judge for the U.S. District 

Court for the Central District of California, sitting by designation.

FILED

JUL 17 2015

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm. 

Because Masmari failed to object below, we review whether the district 

court complied with Federal Rule of Criminal Procedure 32(h) for plain error. 

United States v. Evans-Martinez, 530 F.3d 1164, 1167 (9th Cir. 2008). Even 

assuming that the district court failed to adhere to the strict letter of Rule 32(h), the 

error did not “affect[] [Masmari’s] substantial rights,” see Evans-Martinez, 530 

F.3d at 1167 (quoting United States v. Ameline, 409 F.3d 1073, 1078 (9th Cir. 

2005) (en banc)), because Masmari has not demonstrated “the probability of a 

different result . . . sufficient to undermine confidence in the outcome” of the 

sentencing. Ameline, 409 F.3d at 1078 (quoting United States v. Dominguez 

Benitez, 542 U.S. 74 (2004)). The plea agreement established that the parties 

would jointly recommend the mandatory minimum of 60 months’ imprisonment. 

Thus, the primary issue at sentencing was whether a longer sentence should be 

imposed. This issue was thoroughly addressed in the PSR, the parties’ sentencing 

memoranda, and at the hearing. As a result, the underlying purpose of Rule 

32(h)—“to ensure that issues with the potential to impact sentencing are fully 

aired,” Evans-Martinez, 530 F.3d at 1168—was served in this case, and Masmari 

failed to show a “probability of a different result” sufficient to justify reversal on 
3

plain error review.1 See Ameline, 409 F.3d at 1078. 

Masmari’s sentence was otherwise procedurally reasonable. See United 

States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010). The district 

court adequately explained the sentence imposed, discussing the factors set forth in 

18 U.S.C. § 3553 as they related to Masmari and the offense conduct. See, e.g., 

Gall v. United States, 552 U.S. 38, 53–56 (2007). Moreover, the district court did 

not cross-reference to the Guideline for attempted murder. See U.S. Sentencing 

Guidelines Manual §§ 2A2.1, 2K1.4(c) (2013). It merely observed in passing that 

the sentence imposed was close to what the sentence would have been if the crossreference had been used. Thus, Masmari was not entitled to an evidentiary 

hearing as to whether he acted with the “inten[t] to cause death or serious bodily 

injury.” Id. § 2K1.4(c). Similarly, the district court did not impose a hate crime 

enhancement pursuant to Guideline § 3A1.1, so no evidentiary hearing was 

required as to a potential hate crime motivation. 

 

1 The government conceded plain error in Evans-Martinez, 530 F.3d at 1167–68, 

so all that remained for the court to consider was whether the error “seriously 

affect[ed] the fairness, integrity, or public reputation of judicial proceedings,” id. at 

1167 (quoting Ameline, 409 F.3d at 1078). Thus, Evans-Martinez does not stand 

for the proposition that a technical violation of Rule 32(h) always requires reversal 

on plain error review. 
4

Finally, reviewing for abuse of discretion, United States v. Autery, 555 F.3d 

864, 868–71 (9th Cir. 2009), we conclude that the sentence was substantively 

reasonable, particularly in light of the large number of lives endangered by 

Masmari’s conduct. See generally 18 U.S.C. § 3553(a); United States v. Carty, 

520 F.3d 984, 993 (9th Cir. 2008) (en banc). 

AFFIRMED.