                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-23-2008

USA v. Istrefi
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1166




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http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1147


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                                                  NOT PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT




                         No. 07-1166


              UNITED STATES OF AMERICA

                                v.

                    FAIK MUSA ISTREFI

                                          Appellant




        On Appeal from the United States District Court
            for the Middle District of Pennsylvania
                   (D. C. No. 01-cr-00303-1)
            District Judge: Hon. James M. Munley




          Submitted under Third Circuit LAR 34.1 (a)
                      on March 4, 2008


Before: SCIRICA, Chief Judge, FISHER and ROTH, Circuit Judges

                 (Opinion filed May 23, 2008)




                        OPINION
ROTH, Circuit Judge:

        Faik Musa Istrefi appeals the judgment of sentence imposed on him by the United

States District Court for the Middle District of Pennsylvania. The only issue on appeal is the

reasonableness of the sentence. For the reasons set forth below, we will affirm the judgment

of the District Court.

I. Background and Procedural History

        Because the facts are well known to the parties, we will discuss them only briefly

here.

        Istrefi pled guilty to all but one of the counts in a fifty-six count indictment, charging

him with conspiracy to violate the Racketeer Influenced Corrupt Organizations Act, in

violation of 18 U.S.C. § 1962(d), conspiracy to distribute in excess of five kilograms of

cocaine, in violation of 21 U.S.C. § 826, conspiracy to commit access device fraud, in

violation of 18 U.S.C. § 1029(b)(2), conspiracy to traffic in stolen vehicles and to commit

mail fraud in violation of 18 U.S.C. § 371, mail fraud, in violation of 18 U.S.C. § 1341, and

money laundering conspiracy, in violation of 18 U.S.C. § 1956(h).              The Presentence

Investigation Report indicated an advisory sentencing range of 168 to 210 months in prison.

On January 13, 2004, Istrefi was sentenced to 166 months in prison on each of counts 1, 2,

and 55, and to 60 months in prison on each of the remaining counts, to run concurrently.

Istrefi was also required to pay $5,400 in special assessments and $297,530.08 in restitution

and to serve a five-year period of supervised release.
          Istrefi appealed, and we remanded for re-sentencing consistent with United States v.

Booker, 543 U.S. 220 (2005). Before re-sentencing, the government filed a motion for

downward departure based on Istrefi’s substantial assistance and requested a departure in the

range of twelve to eighteen months. Istrefi also filed a motion for downward departure based

on his assistance to the government, his rehabilitation during his incarceration, the impact

of his incarceration on his family, and the need to pay the court-ordered restitution and

assessments. He requested a sentence of 121 to 151 months.

          At re-sentencing, the District Court stated that it had reviewed Istrefi’s motion and

accompanying sentencing memorandum. Following statements by the government and

Istrefi’s counsel, who again requested a sentence of 121 to 151 months, the District Court

stated:

                 “In passing sentence on you, Mr. Istrefi, I have taken into
                 consideration the entire case, the presentence investigation
                 report, and all of the various filings that were made and the
                 statements by the Government today and statements by your
                 counsel . . . today, and her motion for downward departure and
                 the reasons that she gave, as well as the Government’s motion
                 for downward departure.

                 The sentence that I impose will satisfy the purposes set forth in
                 18 U.S.C. § 3553(a), which includes the necessity of deterrence
                 and just punishment, promotion of respect for the law,
                 protection of the public, and assurance of correctional treatment
                 for the Defendant, and reflects full consideration of all the [§
                 3553] factors, including the nature and seriousness of the
                 offense, the history and characteristics of the Defendant, the
                 kinds of sentences available, and the advisory sentencing range
                 and policies prescribed by the United States Sentencing
                 Commission.”

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The District Court agreed to the government’s motion for downward departure. While

acknowledging that Istrefi had made “great strides” and had a “wonderful family” that had

“suffered” because of Istrefi’s crimes, the District Court noted that Istrefi had committed

“extremely serious” offenses. The District Court then sentenced Istrefi to 150 months in

prison on counts 1, 2, and 55, and to 60 months in prison on each of the remaining counts,

all sentences to be served concurrently. Istrefi was also required to pay $5,400 in special

assessments and $297,699.08 in restitution and to serve a five-year period of supervised

release. Istrefi did not object to either the District Court’s failure to rule explicitly on his

downward departure motion or to the court’s purported failure to consider the § 3553 factors.

II. Analysis

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231.              We have

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

       Following Booker, we have held that district courts must follow a three-step

sentencing process. United States v. Gunter, 462 F.3d 237 (3d Cir. 2006). First, the district

court must calculate the defendant’s sentence under the Sentencing Guidelines, just as they

would have before Booker. Gunter, 462 F.3d at 247. The district court must “‘formally

rul[e] on the motions of both parties and state on the record whether they are granting a

departure and how that departure affects the Guidelines calculation, and tak[e] into account

our Circuit’s pre-Booker case law, which continues to have advisory force.’” Id. (quoting

United States v. King, 454 F.3d 187, 196 (3d Cir. 2006)). Finally, the district court must



                                               4
consider the relevant 18 U.S.C. § 3553 factors in setting the sentence. Gunter, 462 F.3d at

247.1 Istrefi argues that the District Court failed to satisfy this process by failing to rule

formally on his downward departure motion and by failing to address and consider

sufficiently several of the § 3553(a) factors.

       The government contends that, because the District Court’s sentence was within the

range that Istrefi requested and apparently considered reasonable, any error in imposing that

sentence is an unreviewable invited error. See United States v. Console, 13 F.3d 641, 660

(3d Cir. 1993). However, even if Istrefi did not invite the errors he assigns to the sentence,

we find no plain error with respect to either of the claims he now raises.2

        “Where a defendant demonstrates plain error affecting his substantial rights, we may

reverse where the fairness, integrity, or public reputation of judicial proceedings were

affected. . . . An error affects substantial rights when it is prejudicial and affects the outcome

of district court proceedings.” King, 454 F.3d at 193 (internal quotation and citation

omitted).


   1
     The factors set forth in 18 U.S.C. § 3553(a) include: (1) the nature and circumstances
of the offense, and the history and characteristics of the defendant; (2) the need for the
sentence imposed to: (A) reflect the seriousness of the offense, promote respect for the law,
and provide just punishment; (B) deter criminal conduct; (C) protect the public; and (D)
provide training and treatment for the defendant; (3) the kinds of sentences available; (4) the
sentencing range under the Guidelines; (5) pertinent policy statements; (6) the need to avoid
unwarranted sentence disparities among similar defendants; and (7) the need to provide
restitution.
   2
    Because Istrefi did not object at sentencing to either of the actions he now claims were
error, we review his claims for plain error. United States v. Parker, 462 F.3d 273, 278 (3d
Cir. 2006).

                                                 5
       We set forth the standard by which we review the reasonableness of a district court’s

sentence in United States v. Cooper, 437 F.3d 324 (3d Cir. 2006):

               “The record must demonstrate the trial court gave meaningful
               consideration to the § 3553(a) factors. The court need not
               discuss every argument made by a litigant if an argument is
               clearly without merit. Nor must a court discuss and make
               findings as to each of the § 3553(a) factors if the record makes
               clear the court took the factors into account in sentencing.”

Id. at 329 (internal citations omitted).

       The record in this case demonstrates that the District Court adequately considered the

§ 3553(a) factors in sentencing. We find no plain error in the District Court’s determination

of Istrefi’s sentence.

       While Istrefi correctly points out that the record reveals no formal ruling on his

departure motion, we have continued to hold post-Booker that we “have no authority to

review discretionary denials of departure motions in calculating sentencing ranges.” United

States v. Jackson, 467 F.3d 834, 839 (3d Cir. 2006). The record of the re-sentencing

indicates that the District Court considered the grounds for departure advocated by Istrefi and

understood that it had the discretion to depart on those grounds but chose not to depart

beyond the Government’s request due to the serious nature of the offense. As such, even if

we had the authority to review the District Court’s decision not to depart on those grounds,

we find no plain error in the lack of an explicit ruling on Istrefi’s motion.3



   3
     Even if we found plain error with respect to either of Istrefi’s claims, we would have
difficulty concluding that he had been prejudiced by such error given that the term of

                                               6
III. Conclusion

      For the reasons set forth above, we will affirm the judgment of the District Court.




imprisonment imposed was within the range that he himself requested.

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