                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 11-4164


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

MOHAMAD YOUSSEF   HAMMOUD,   a/k/a   Ali   Abousaleh,   a/k/a   Ali
Albousaleh,

                Defendant – Appellant.



                             No. 11-4346


UNITED STATES OF AMERICA,

                Plaintiff - Appellant,

           v.

MOHAMAD YOUSSEF   HAMMOUD,   a/k/a   Ali   Abousaleh,   a/k/a   Ali
Albousaleh,

                Defendant – Appellee.



Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte.      Graham C. Mullen,
Senior District Judge. (3:00-cr-00147-GCM-DSC-1)


Argued:   May 15, 2012                      Decided:    June 21, 2012
Before DAVIS and KEENAN, Circuit Judges, and JAMES R. SPENCER,
United States District Judge for the Eastern District of
Virginia, sitting by designation.


Affirmed by unpublished opinion. Judge Davis wrote the opinion,
in which Judge Keenan and Judge Spencer joined.


ARGUED: Stanley L. Cohen, STANLEY COHEN & ASSOCIATES, LLC, New
York, New York; James Patrick McLoughlin, Jr., MOORE & VAN
ALLEN, PLLC, Charlotte, North Carolina, for Appellant/Cross-
Appellee.   David Alan Brown, Sr., OFFICE OF THE UNITED STATES
ATTORNEY,   Charlotte,  North   Carolina,  for   Appellee/Cross-
Appellant.   ON BRIEF: Christopher D. Tommlinson, MOORE & VAN
ALLEN, PLLC, Charlotte, North Carolina, for Appellant/Cross-
Appellee.   Anne M. Tompkins, United States Attorney, Craig D.
Randall, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee/Cross-
Appellant.


Unpublished opinions are not binding precedent in this circuit.




                                2
DAVIS, Circuit Judge:

       Mohamad      Youssef       Hammoud     (“Hammoud”)       was     convicted    of

fourteen offenses following a jury trial. 1 He was sentenced under

the        then-mandatory        Sentencing       Guidelines      to     155   years’

imprisonment. After we affirmed the convictions and sentence,

see United States v. Hammoud, 381 F.3d 316 (4th Cir. 2004) (en

banc), the Supreme Court vacated and remanded in light of United

States v. Booker, 543 U.S. 220 (2005), see Hammoud v. United

States,      543   U.S.    1097    (2005).      On    remand,   we    reinstated    the

portions of our prior opinion resolving Hammoud’s challenges to

his convictions and the calculation of the guidelines range and

remanded for resentencing. See United States v. Hammoud, 405

F.3d       1034   (4th    Cir.    2005).    The      district   court    conducted    a


       1
       Hammoud was convicted of the following offenses: marriage
to evade a provision of the immigration laws (Count 1); false
statements to Immigration and Naturalization Services (Count 2);
conspiracy   to   ship,   transport,    receive,   possess,  sell,
distribute and purchase contraband cigarettes (Count 35);
conspiracy to commit money laundering (Count 36); ship,
transport, receive, possess, sell and distribute contraband
cigarettes and evade state taxes, and aiding and abetting the
same (Counts 37 and 41); money laundering (Counts 43 and 49);
conspiracy to use one or more counterfeit access devices and to
use of one or more unauthorized access devices (Count 53);
unlawful use of counterfeit access devices, and aiding and
abetting the same (Count 54); use of unauthorized access
devices,   and  aiding   and   abetting   the   same  (Count  55);
racketeering (Count 71); conspiracy to provide material support
or resources to a designated foreign terrorist organization
(“DFTO”) (Count 72); and providing or attempting to provide
material support or resources to a DFTO (Count 78).


                                            3
resentencing        hearing    and     granted     a    variance      sentence     of    30

years’     imprisonment.        Both    parties        appeal,      challenging     among

other    things      the    reasonableness       of     the    sentence    imposed.      We

affirm.



                                            I.

      In     Hammoud’s      earlier     appeal,       we     laid   out   the    “largely

undisputed”         facts     underlying        this       prosecution,     which       are

unnecessary to repeat in any detail here. See Hammoud, 381 F.3d

at 325-27. In that opinion, we rejected, inter alia, Hammoud’s

challenges to his convictions for providing, and conspiring to

provide, material support to a DFTO and to the district court’s

application of U.S.S.G. § 3A1.4, the terrorism enhancement. We

rejected     Hammoud’s       contention     that       the    preponderance      standard

should not apply to the application of § 3A1.4 because it “is ‘a

tail which wags the dog of the substantive offense.’” Id. at

354-55     (quoting        McMillan    v.   Pennsylvania,           477   U.S.    79,   88

(1986)).

      We also rejected his contentions that the district court

should have applied U.S.S.G. § 2M5.3, the guideline applicable

to violations of 18 U.S.C. § 2339B, and should not have applied

§   3A1.4.    Id.    at     355-56.    We   stated,        “Even    assuming     that   the

district court should have applied § 2M5.3, there was no error.”

Id. at 355 (footnote omitted). We held that “a defendant who has

                                            4
been convicted of providing material support to [a DFTO] may be

subject to the enhancement if the evidence establishes that he

provided such support with the intent to influence or coerce

government conduct,” that the application of § 3A1.4 did not

result in impermissible “double counting,” and that the evidence

presented at trial was sufficient to support application of the

enhancement.   Id.   at   355-56.   We   affirmed   the   judgment   of   the

district court in its entirety. Id. at 357.

     Hammoud’s base offense level was 46 (treated as 43, see

U.S.S.G. Ch.5, Pt.A, cmt. n.2) and his criminal history category

(“CHC”) was VI. Id. at 327. “Because none of the offenses of

conviction carried a statutory maximum of life imprisonment,”

for which the guidelines provided, “the district court imposed

the maximum sentence on each count and ordered all sentences to

be served consecutively.” Id. (citing U.S.S.G. § 5G1.2(d)). We

thus consider 155 years’ imprisonment to be Hammoud’s “advisory

Guidelines range” for purposes of considering the extent of the

variance. See United States v. Sarras, 575 F.3d 1191, 1208-09,

1219 (11th Cir. 2009) (“Because the statutory maximum was less

than the total guidelines punishment of life imprisonment, §

5G1.2(d) of the guidelines called for the sentences for multiple

counts   to    run   consecutively       as   the   advisory    guidelines

sentence.”) (emphasis added).



                                     5
       After the Supreme Court vacated our decision and remanded

for    reconsideration            in   light        of       Booker,      we     reinstated          the

portions of our opinion resolving Hammoud’s objections to his

convictions       and       the     calculation              of     his       guidelines       range,

including     the      portion         rejecting          Hammoud’s           challenge       to     the

terrorism enhancement. See Hammoud, 405 F.3d 1034. We remanded

for resentencing under the advisory guidelines regime.

       On   remand,         the    district      court            declined      to     revisit       its

calculation       of    the       guidelines         or      to    consider          any    potential

departures; instead, it limited resentencing to consideration of

a     potential     variance           under     18          U.S.C.       §     3553(a).       During

resentencing,       Hammoud         introduced            new      evidence      he        urges    that

discredits the trial evidence on which the district court had

relied when it imposed the original sentence, see Hammoud’s Br.

15, including testimony from Robert Baer, a Hizballah expert and

former CIA agent; Theresa Finocchio, a former business partner

who    also   had       a    personal       relationship              with       a    witness        who

testified     against         Hammoud       at       trial;         Lara        Deeb,       Ph.D.,     a

professor     who      submitted        a   sworn         statement           introduced       at    the

resentencing        hearing        with     respect           to    Sayyid       Fadlallah;          and

Sheikh Abbas Harake, an operational commander for Hizballah who

submitted an affidavit introduced at the resentencing hearing.

Hammoud also submitted a “compilation of approximately 168 cases

involving     material            support      of        a    DFTO,       financial          material

                                                 6
support, and virtually every other terrorism related case the

Defense      could    find,      including       every   reported     U.S.S.G.     §3A1.4

case.” Id. at 27 (citing J.A. 5675-5778).

       In    response      to    the    district    court’s      request     to   provide

evidence to refute Harake’s affidavit, the Government presented

evidence from FBI Special Agent David Yu, who testified under

restriction that “Israeli Intelligence confirms that according

to a reliable source Harake Abbas is a Hezbollah operational

commander.”      J.A.      4758.       Hammoud    was    given   an   opportunity      to

cross-examine the agent, but the district court did not require

the     agent    to     reveal     “sources        and    methods”     by    which    the

information       was      provided.      J.A.     4761,      4765.   The    Government

thereafter submitted an affidavit from another FBI Special Agent

confirming the same.

       At the continued resentencing hearing, the district court

heard from counsel as to what they believed to be an appropriate

sentence and gave Hammoud a chance to allocute. The district

court then imposed sentence. The district court explained that

it    was    bound    by    the    guidelines       calculation,      that    it     would

consider the § 3553(a) factors as applied to Hammoud and that it

would       justify   the       chosen    sentence       to   allow   for    meaningful

appellate review. The district court then recited the facts it

deemed most relevant to its decision, carefully examined the §



                                             7
3553(a)   factors      and    imposed        a   sentence      of   30    years’

imprisonment.



                                       II.

     On   appeal,      Hammoud       challenges        the   district    court’s

application     of   the   mandate    rule,      the    admission   of   certain

evidence at resentencing, and, ultimately, the reasonableness of

the sentence imposed. 2 The Government cross-appeals, challenging


     2
       We reject, as wholly meritless, Hammoud’s request for
resentencing, made in his reply brief, “due to the Government’s
use of arguments from outside the record.” See Hammoud’s
Response & Reply Br. 30-31. Hammoud urges that “[t]he conduct of
the Government in this case with respect to allegations that
Hammoud attempted to assassinate a prosecutor or to destroy a
federal building in order to destroy evidence infects the
proceedings below with reversible error, and the Government has
tried to repeat the tactic with this Court.” Id. at 30. The
Government sought to supplement the Joint Appendix “to include
Government counsel’s explanation in the district court that it
was not the existence of [threats made by Hammoud] that was in
doubt, but rather, the credibility of the corroborating
witness,”   given  “the   mis-impression   left  by  [Hammoud’s]
statements in his opening brief concerning the Government’s
decision not to call a cooperating informant to corroborate the
evidence of the threats.” Government’s Reply Br. 10 (citing
Hammoud’s Br. 14, 44, 59). Furthermore, the district court
stated, before and during the resentencing hearing, that it
would not consider the evidence concerning the threats against
the prosecutor and to destroy a government building. See J.A.
5251-52 (“In considering this matter, I have already noted that
and would not consider that.”); id. at 5315 (noting that “the
government chose not to pursue the argument that [Hammoud]
threatened a prosecutor and threatened to destroy evidence,
based on the government’s lack of credible evidence,” and
stating that “such arguments put forth in briefing have not been
considered in this court’s final decision”).



                                        8
the    district       court’s        sentence         as    substantively         unreasonable.

Upon our careful review of the entire record, we discern no

error;       accordingly,          we    affirm       the       judgment    of    the    district

court.

                                                A.

       Hammoud first argues that the mandate rule was misapplied

and that this case falls within each of the exceptions to the

mandate rule. Applying de novo review, we easily reject this

contention. See Doe v. Chao, 511 F.3d 461, 464 (4th Cir. 2007)

(“We       review    de     novo    whether       a    post-mandate         judgment      of     the

district court ‘contravenes the mandate rule, or whether the

mandate has been “scrupulously and fully carried out.”’”).

       Generally, a lower court is “bound to carry the mandate of

the    upper        court     into       execution          and    may     not    consider       the

questions      which        the    mandate      laid       at     rest.”   United       States    v.

Bell, 5 F.3d 64, 66 (4th Cir. 1993) (internal quotation marks

and brackets omitted). The mandate rule “compels compliance on

remand      with     the    dictates       of   a     superior       court       and   forecloses

relitigation of issues expressly or impliedly decided by the

appellate       court”       and        “litigation         of    issues     decided      by     the

district court but foregone on appeal or otherwise waived.” Id. 3


       3
        “[T]o the extent that the mandate of the appellate court
instructs or permits reconsideration of sentencing issues on
remand, the district court may consider the issue de novo,
(Continued)
                                                  9
The mandate rule does not apply where (1) there has been a

“showing      that        controlling         legal        authority     has      changed

dramatically”;       (2)      “significant           new    evidence,     not     earlier

obtainable in the exercise of due diligence has come to light”;

or   (3)     “a   blatant      error     in        the   prior     decision     will,    if

uncorrected, result in a serious injustice.” Id. at 67 (internal

quotation marks and brackets omitted).

      It is clear that when we reinstated the portions of our

prior opinion resolving the calculation of Hammoud’s guidelines

range, most notably rejecting Hammoud’s attacks on the standard

of   proof    with   respect      to     and       application      of   the    terrorism

enhancement,         we       effectively            limited        resentencing         to

consideration      of     a   variance    sentence.          See   Hammoud,     405     F.3d

1034. Furthermore, none of the exceptions to the mandate rule

apply here.

      The    Supreme      Court   decisions          cited    by    Hammoud     have    not

changed the law regarding the computation of his (now advisory)

guidelines range. Nor, as Hammoud argues, was it impossible for

the district court to address freshly the variance issue given

the change in the law. In other words, the district court could

be bound by our affirmance of the guidelines calculation and



entertaining ‘any relevant evidence on that issue that it could
have heard at the first hearing.’” Bell, 5 F.3d at 67.



                                              10
adequately         exercise     its    discretion         to    vary       downward,         if    it

thought      a   variance       was    warranted,         in    considering            the   newly

presented evidence and the arguments of the parties.

       Hammoud has likewise failed to demonstrate how the evidence

he introduced at resentencing was originally unavailable in the

exercise of due diligence. We find unavailing, as clarified at

oral argument, that the historical context made certain evidence

that “attacks directly the First PSR’s conclusions,” Hammoud’s

Br. 52, unavailable because it left counsel unable to find an

expert who would testify in favor of Hammoud on the material

support issue. Similarly, we find unavailing Hammoud’s argument

that    impeachment            evidence      relevant          to    two     witnesses            who

testified against Hammoud was unavailable because the district

court   cut      off     cross-examination          as    to    one       such    witness         and

because there was no way to know that the other witness told a

witness      who     testified        at     resentencing           that    he        was    lying.

Finally, we are unpersuaded that, in light of this, the district

court     abused         its     discretion         in    continuing             to     rely      on

“unattributed          statements       by    prosecutors           and    law        enforcement

agents” in         the    “First      PSR    without     attribution         of       sources      or

verification permitting a court to evaluate their reliability,”

id.;    in    no    way    does    this       place      Hammoud’s         case       within      the

exception to the mandate rule.



                                               11
     Finally, we are not convinced that a “blatant error” in our

prior decision will result in a serious injustice. In short, the

district   court    did    not   err   in    adhering   to   the   mandate   and

limiting resentencing to consideration of a variance sentence. 4

                                       B.

     Hammoud next contends that the district court abused its

discretion by admitting the testimony of Matthew Levitt, the

Government’s       trial    expert,         and   Special    Agent    Yu     for

     4
       We reject Hammoud’s requests, scattered throughout his
brief, to chastise the district court for failing to recalculate
the guidelines sentence and relitigate issues laid to rest by
our prior decision. See, e.g., Hammoud’s Br. 53-54 (“The
critical determination--that Hammoud acted with the intent
required   by   U.S.S.G.  §3A1.4--is   not   supported  by   the
evidence.”); id. at 60 (“Hammoud renews his argument that on
these facts and in these circumstances, given the impact of
§3A1.4 on the Guideline sentence, it is a violation of his
Sixth, Fifth, and Fourteenth Amendment rights to make findings
of fact in his sentencing by a preponderance of the evidence.”);
id. at 60-61 (“The district court abused its discretion in
finding Hammoud’s criminal history should be a category VI under
U.S.S.G. §3A1.4.”). The district court properly first, following
our instructions, restated Hammoud’s CHC and offense level and
then considered whether a variance sentence was appropriate. The
district court explicitly recognized its discretion to impose a
variance sentence under § 3553(a) if it believed § 3A1.4
overrepresented the seriousness of Hammoud’s past criminal
conduct or likelihood that he would commit other crimes, but
found that, based on the evidence it credited, the resulting
criminal history level and enhancement should not change at the
guidelines calculation stage. See J.A. 5312-13 (“The defendant’s
terrorism enhancement and resulting criminal history level will
not change and should not be changed based on the evidence of
his involvement with Hezbollah, his relative youth and thus time
and ability to become a recidivist, and the fact that he never
accepted responsibility and obstructed justice by testifying
falsely at trial.”).



                                       12
resentencing. Specifically, he argues that the district court

erred        in     considering           Levitt’s        trial       testimony      during

resentencing because new evidence undermined the accuracy of his

testimony,          and     that        the     “failure       to     disclose      material

information         about       [his]    bias    and    lack    of    expertise     even   if

inadvertent[]         is    a    second       independent      ground     for   exclusion.”

Hammoud’s Br. 62. He also argues that admitting the testimony

with       the    restriction      of    cross-examination           of   Levitt,    and   Yu

regarding         Harake,       consisting      of     hearsay,      “without    disclosing

sources,” violated the Confrontation Clause and due process. 5 Id.

at 62-63.

       Having reviewed the briefs, the record and the applicable

law, we reject Hammoud’s arguments. See United States v. Brooks,

524 F.3d 549, 564 (4th Cir. 2008) (reviewing decision to admit

evidence for sentencing purposes for an abuse of discretion).

The district court was within its discretion to rely on Levitt’s

       5
       In his reply brief, Hammoud argues that the district court
erred    by    permitting    the    Government    to    introduce
“unsubstantiated,” “inflammatory” and “prejudicial” evidence
“pulled down from the internet,” Hammoud’s Response & Reply Br.
26-27, consisting of attachments to the Government’s Response to
Defendant’s Request for a Variance Sentence. Hammoud takes issue
with the district court’s failure to make a ruling “about an
applicable hearsay or other evidentiary exception” and to make a
finding “that the evidence was reliable.” Id. at 27. Even if not
waived, we reject this argument. We are confident that the
district court did not abuse its discretion; the attachments
were sufficiently reliable to justify the district court's
consideration of them.



                                                13
testimony;        we   do    not    believe     the   new    evidence    or     Levitt’s

alleged bias or lack of expertise has so undermined his trial

testimony as to make it unreliable on due process grounds or

under      the    guidelines.        Furthermore,      admitting      this    testimony

despite      restricting           cross-examination        neither     violated    the

Confrontation Clause, see United States v. Powell, 650 F.3d 388,

393-94 (4th Cir. 2011) (holding that the “Confrontation Clause

does not apply at sentencing” and affirming district court’s

reliance on hearsay evidence found within presentence report to

support imposition of enhanced sentence), nor due process, see

id.   at    394    (holding        that   hearsay     evidence     admitted     without

cross-examination can be reliable enough for use at sentencing).

In sum, we are confident that the disputed evidence was reliable

and that the district court did not abuse its discretion in

considering it during resentencing.

                                            C.

      Finally,         we   consider      and   reject      the   parties’    arguments

challenging        the      reasonableness       of   the    sentence.    See     United

States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010)

(“[A]ppellate courts examine sentencing determinations under an




                                            14
abuse-of-discretion           standard,     which     translates        to   review    for

‘reasonableness.’”). 6

          Hammoud raises three primary challenges to his sentence.

He attacks the 30 year sentence as unreasonable because it is

disproportionately high by comparison to any comparable § 2339B

or   terrorism      cases,      to   the    statutory        penalty     for    material

support and to the policies underlying U.S.S.G. §§ 2M5.3 and

3A1.4, and because it is constitutionally disproportionate. He

also contends that consideration of the factors in § 3553(a)(1)

through (a)(4) establishes that the 30 year sentence is an abuse

of discretion, particularly because the nature and circumstances

of   the    offense     do    not    justify     a   30   year    sentence      and    the

“alleged Hezbollah connection” is not a ground upon which to

impose a 30 year sentence. Hammoud’s Br. 57. Finally, Hammoud

contends     that   the      district      court     erred   by   finding       that   his

criminal history category was VI under § 3A1.4, pointing to §

3553(a)(1).

      The Government cross-appeals and argues that the district

court      abused   its      discretion        “by   granting     a     major   downward

variance      without        providing     a     legitimate       and    ‘sufficiently


      6
       We are mindful that when considering the reasonableness of
a sentence, a district court’s legal conclusions are reviewed de
novo and its factual findings are reviewed for clear error.
United States v. Abu Ali, 528 F.3d 210, 261 (4th Cir. 2008).



                                            15
compelling’ justification for doing so.” Government’s Br. 27.

Specifically,      the    Government         argues       that   the       district      court

arbitrarily     imposed        a     sentence          without        giving      meaningful

consideration to § 3553(a), that the district court erred in its

application    of     §   3553(a)(6)         by    relying       on    a   comparison       of

defendants     not    similarly        situated,          and    that       none    of     the

“purported” variance justifications “are sufficiently compelling

to overcome the court’s misapplication of § 3553(a)(6).” Id. at

28.

      We   understand      these       challenges          primarily        to     sound     in

substantive reasonableness because they attack the length of the

sentence under the § 3553(a) factors rather than the methods

used in reaching the sentence. In any event, the district court

clearly did not procedurally err. The district court followed

the   sentencing     methodology        we    have       previously        laid    out.    The

district court used the guidelines calculation we affirmed as a

starting point, gave the parties an opportunity to argue for

what they believed was an appropriate sentence, carefully and

thoughtfully       considered         the     §        3553(a)    factors,         made     an

individualized       assessment       based       on    the   facts,       and    adequately

explained the sentence.

      Having    found     no       significant         procedural       error,      we     must

consider     the     substantive        reasonableness            of       the     sentence,

“examin[ing] the totality of the circumstances to see whether

                                             16
the sentencing court abused its discretion in concluding that

the sentence it chose satisfied the standards set forth in §

3553(a).” Mendoza-Mendoza, 597 F.3d at 216. We “may consider the

extent of the deviation” from the guidelines range but “must

give due deference to the district court’s decision that the §

3553(a)      factors,    on     a    whole,     justify       the    extent     of    the

variance.” United States v. Diosdado-Star, 630 F.3d 359, 366

(4th Cir. 2011) (quoting Gall v. United States, 552 U.S. 38, 51

(2007)). “Although the district court’s justification for the

sentence must support the degree of the variance, and a major

departure      should      be       supported      by     a     more       significant

justification than a minor one, . . . a district court need not

justify a sentence outside the Guidelines range with a finding

of extraordinary circumstances.” Id. (internal quotation marks

and brackets omitted) (quoting United States v. Evans, 526 F.3d

155, 161 (4th Cir. 2008)); see also Abu Ali, 528 F.3d at 261

(“As   the    Supreme     Court      observed    in     Gall,       when   determining

whether      the   district         court’s     proffered       justification         for

imposing a non-guidelines sentence ‘is sufficiently compelling

to support the degree of the variance,’ common sense dictates

that    ‘a    major     departure      should     be     supported         by   a    more

significant justification than a minor one.’”).

       Finding the parties’ arguments lacking in merit, we affirm

the    district       court’s        variance      sentence          of    30       years’

                                          17
imprisonment.      While       certainly        substantial,     the       variance

incorporated      into   the     district       court’s    sentence    does    not

constitute an abuse of discretion. The district court carefully

considered how the § 3553(a) factors applied to Hammoud (not

merely reciting the statutory language) and adequately explained

its   decision,     as     evidenced       by    its      nine-page    sentencing

memorandum. Considering the totality of the circumstances, the

district court’s several justifications provided in its analysis

of § 3553(a) are sufficiently compelling to support the variance

in this case. 7

      The   district     court    carefully      considered     the    §   3553(a)

factors in justifying its variance sentence. Under § 3553(a)(1),

      7
        We reject both parties’ contentions that the district
court erred by imposing an arbitrary sentence, as evidenced by
its “predetermination of the sentence,” Government’s Br. 27, and
its statement that it intended to rely on the statutory maximum
of only two counts of conviction. By drafting the sentencing
memorandum before the sentencing hearing, the district court
permissibly considered the parties’ briefing in advance of the
hearing and undertook to adequately prepare itself for a
difficult resentencing. Good judges routinely follow such a
practice. Moreover, the district court made clerical errors when
it issued the sentencing memorandum dated the day before the
last day of the hearing that we do not find fatal to an
otherwise thorough analysis. Furthermore, while we certainly do
not endorse any approach to the variance determination that
“substitut[es] statutory maximums” for an analysis of § 3553(a),
Hammoud’s Br. 55, the district court’s well-reasoned analysis
demonstrates that it did not use such a shortcut here. The
court’s    statements  instead    reflect   the   court’s    quite
understandable struggle to reach a sentence “sufficient, but not
greater than necessary,” to comply with the sentencing purposes,
see 18 U.S.C. § 3553(a), in a particularly challenging case.



                                       18
the district court appropriately weighed in favor of Hammoud

that he had “no prior criminal convictions,” that “[t]he crimes

of   which        he       was   convicted        were    not     crimes      of     violence   or

conspiracies to commit violence” and that the “crimes had no

identifiable           victim.”       J.A.    5312.       Indeed,       the    district    court

recognized         its      discretion       to    depart       or   vary     downward     if   it

believed          §        3A1.4     “overrepresent[ed]              the      seriousness       of

[Hammoud’s]            past      criminal     conduct        or      the      likelihood    that

[Hammoud]         will      commit    other       crimes,”      but     the    district    court

found      that       the     terrorism      enhancement          and   resulting       criminal

history level “will not change and should not be changed based

on the evidence of his involvement with Hezbollah, his relative

youth and thus time and ability to become a recidivist, and the

fact       that       he    never     accepted          responsibility         and    obstructed

justice by testifying falsely at trial.” 8 J.A. 5312-13. In other

words, the district court, thoroughly familiar with Hammoud’s


       8
       We reject Hammoud’s argument that the district court erred
by ignoring Hammoud’s allocution. In making the above finding,
the district court was presumably referring to Hammoud’s
guidelines calculations--i.e., he received an adjustment for
obstruction of justice and did not receive an adjustment for
acceptance of responsibility. Furthermore, Hammoud has not
demonstrated that the district court abused its discretion by
“ignoring” Hammoud’s allocution here. See Hammoud’s Br. 32-33;
Hammoud’s Response & Reply Br. 20-21 (citing United States v.
Muhammad, 478 F.3d 247 (4th Cir. 2007), in which we recognized
plain error where defendant was not given the opportunity to
allocute at his resentencing hearing).



                                                   19
case,     recognized     its    discretion           but     apparently           (albeit

implicitly) considered and credited the trial evidence over the

sentencing evidence as it was entitled to do in reaching this

conclusion. 9

     The    district    court    also    thoroughly          considered          other    §

3553(a)    factors:    (1)   “the    need     for     the   sentence           imposed   to

reflect    the   seriousness    of     the    offense       and     to    provide    just

punishment,”     balancing      “the     seriousness           of        any    terrorism

offense” with “the lack of violence here,” J.A. 5313-14; see 18

U.S.C. § 3553(a)(2)(A); (2) “the need for the sentence imposed

to afford adequate deterrence to criminal conduct,” balancing

Hammoud’s age, his potential risk of recidivism in light of his

“almost    certain[]”   deportation          upon    release      from     prison,       and

“legislative     intent”     reflected       in     the   terrorism        enhancement,




     9
       For the same reasons, we reject Hammoud’s arguments that
the district court abused its discretion in not crediting
certain resentencing evidence. See, e.g., Hammoud’s Br. 44 (“The
court did not address the evidence presented by the Defense that
a number of other statements in the First PSR not based on the
jury verdict or evidence presented and rebutted at sentencing
were inaccurate.”); id. at 57 (“There is insufficient evidence
to support a finding that Hammoud intended to promote any ‘crime
of terrorism’ or that he intended any donation to coerce or
intimidate   or  influence   a   Government,  populace,  or   an
organization.”); id. at 57 (“The alleged Hezbollah connection is
not a ground upon which to impose a 30 year sentence under
Section 3553.”). The district court was entitled to credit
evidence introduced at trial rather than that introduced at
resentencing in reaching its conclusion.



                                        20
J.A. 5314; see 18 U.S.C. § 3553(a)(2)(B); 10 (3) “the need for the

sentence imposed to protect the public from further crimes of

the defendant,” considering that Hizballah is a DFTO and that

Hammoud “had ties to the organization, even if his [individual,

actual] activities were nonviolent,” J.A. 5314; see 18 U.S.C. §

3553(a)(2)(C);   (4)   “the   kinds   of   sentence   and   the   range

established for the applicable category of offense committed by

the applicable category of the defendant,” recognizing that the


     10
        The district court did not, as Hammoud argues, clearly
err in reaching its recidivism conclusions. The district court
in two places considered Hammoud’s youth in light of the
“reasoning” and “legislative intent” reflected in the terrorism
enhancement. See J.A. 5312-13 (“[T]he likelihood of a terrorist
being a repeat offender is the reasoning behind an increased
criminal history level, not the prior offenses. . . . The
defendant’s terrorism enhancement and resulting criminal history
level will not change and should not be changed based on the
evidence of his involvement with Hezbollah, his relative youth
and thus time and ability to become a recidivist, and the fact
that he never accepted responsibility and obstructed justice by
testifying falsely at trial.” (citing United States v. Meskini,
319 F.3d 88, 92 (2d Cir. 2003), which stated, “Congress and the
Sentencing Commission had a rational basis for creating a
uniform criminal history category for all terrorists under §
3A1.4(b), because even terrorists with no prior criminal
behavior are unique among criminals in the likelihood of
recidivism, the difficulty of rehabilitation, and the need for
incapacitation.”)); id. at 5314 (“Hammoud is young enough to
continue to pose a threat. Congress has indicated a legislative
intent, through the terrorism enhancement, to treat terrorism as
more difficult to deter, hence the higher criminal history.”).
The district court noted, specifically with respect to §
3553(a)(2)(B), that Hammoud’s “almost certain[]” deportation
following his release from prison lowered his risk of recidivism
although he might continue to be a threat from abroad. J.A.
5314.



                                 21
guidelines      calculation       is     only     “a    starting        point”       to    be

considered      in     the    variance       analysis     and     that     Hammoud        had

obstructed justice by testifying falsely at trial, J.A. 5315;

see 18 U.S.C. § 3553(a)(4); 11 (5) “pertinent policy statements”

from the Sentencing Commission, i.e., Congress’s “policy choice

in giving a terrorism enhancement for a greater criminal history

even when the specific defendant has no criminal history,” J.A.

5316; see 18 U.S.C. § 3553(a)(5); and (6) the “need to provide

restitution”      to    any    victims,       J.A.      5317;     see     18    U.S.C.      §

3553(a)(7).     Neither       party    has    demonstrated       that     the    district

court clearly erred in making its findings under each of these

factors.

     Though it raises the most concern for the parties here, we

discern    no   error    in    the    district     court’s       consideration        of    §

3553(a)(6).      Explicitly      recognizing           that     the     need    to    avoid

unwarranted sentencing disparities among defendants with similar

records should not be given “extraordinary weight,” the district

court considered this factor along with its consideration of the

     11
        Indeed, demonstrating that the district court understood
the sensitive line between recalculating the guidelines sentence
and considering new evidence, specifically, and in considering a
variance sentence, in general, the district court appropriately
noted that it was not considering the Government’s prior
arguments that Hammoud “threatened a prosecutor and threatened
to destroy evidence” but did find itself bound by the
obstruction enhancement because Hammoud testified falsely at
trial. J.A. 5315.



                                             22
other   factors.   J.A.    5316;     cf.        Abu    Ali,      528   F.3d    at   262-67

(holding that the district court erred when its consideration of

§ 3553(a)(6) “served as the driving force behind its ultimate

determination”); United States v. Khan, 461 F.3d 477, 500-01

(4th Cir. 2006) (holding that the district court erred when it

placed “‘excessive weight’” on § 3553(a)(6)). The district court

appropriately      considered        cases        “in       which       the     defendant

[likewise] went to trial” and “was convicted by a jury of a

terrorism . . . offense, particularly under Section 2339,” and

then concluded that “in examining cases that fall within those

parameters,” Hammoud’s [original] sentence “appear[ed] grossly

disproportionate.” J.A. 5316-17; cf. Abu Ali, 528 F.3d at 262-67

(holding that the district court erred when it compared Abu Ali

to defendant who pled guilty and whose conduct underlying crimes

of   conviction    was    different        in     “substance           and    scope”   and

improperly    compared         Abu   Ali        with       others,      “overlook[ing]”

“unrealized   harm”      and    differences           in   the    “serious[ness]       and

significan[ce of] steps” taken and in the “infliction of harm”);

Khan, 461 F.3d at 500-01 (holding that the district court erred

when it considered defendant who pled guilty similarly situated

to defendant who went to trial). In its sentencing memorandum,

the district court cited to nine cases with brief explanations

of the defendants’ convictions and sentences that it considered

within these parameters. See J.A. 6499, 6501-02. The district

                                           23
court then concluded that, in the cases cited by the parties, no

defendant “received a sentence in excess of 1800 months,” “life

imprisonment was ordered [in] cases of violence,” and lighter

sentences compared to Hammoud’s [original] sentence were imposed

in   cases    “in    which       violence       or    mass       physical      carnage      was

possible.” J.A. 5316-17.

       Consideration       of    a    “vast     summary         of   cases,”        J.A.   5317,

allowed the district court to reach these few broad conclusions

en route to imposing a sentence sufficient but not greater than

necessary     to    comport       with     the       purposes        of    sentencing.      The

district court, focused on individually assessing the facts of

Hammoud’s     case,       had    no    obligation          to,       as    Hammoud     argues,

“explain     why    [his]       sentence      is     2.2   times          greater    than   the

average for all terrorism cases and four times the average for

all financing cases.” Hammoud’s Br. 38. Rather, the district

court appropriately used a certain subset of cases to conclude

that   a   155     year   sentence       was     “grossly        disproportionate”          and

“reviewed the vast majority of cases and applicable sentences”

to reach certain other summary conclusions. J.A. 5317. In this

way,   the   district       court,     considering          §    3553(a)(6)         among   the

other factors, balanced an individual assessment in the case

before it with a broad review of cited cases to ensure that

Hammoud’s    sentence       would     not      result      in    “unwarranted         sentence



                                              24
disparities among defendants with similar records who have been

found guilty of similar conduct.” 12 18 U.S.C. § 3553(a)(6).

     Given the justifications provided by the district court, we

are loath to find fault with the result reached. We agree with

the observation made by the First Circuit that there is “a range

of reasonable sentences,” and that an appellate court should

only reverse if the “sentencing court’s ultimate determination

falls outside the expansive boundaries of that universe.” United

States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008). The district

court’s   determination   has        not    so   fallen   here.   In    short,

considering   the   totality    of    the    circumstances,   the      district

court, in a superior position, particularly given the history of

this challenging case, explained the variance with sufficiently

compelling justifications under the § 3553(a) factors.




     12
          We   are   likewise  unpersuaded  by   Hammoud’s  other
disproportionality arguments, including his specific attack
under § 3553(a)(6), largely because he implicitly urges us to
disregard the totality of his convictions beyond his violation
of § 2339B. See, e.g., Hammoud’s Br. 45-46 (“Donation of a few
thousand dollars cannot justify three times the applicable
statutory maximum for Section 2339B, and it distorts the
statutory    scheme.”).   Furthermore,   we  “ha[ve]   held  that
‘proportionality review [under the Eighth Amendment’s cruel and
unusual punishment clause] is not available for any sentence
less than life imprisonment without the possibility of parole.’”
United States v. Malloy, 568 F.3d 166, 180 (4th Cir. 2009)
(quoting United States v. Ming Hong, 242 F.3d 528, 532 (4th Cir.
2001)).



                                      25
                              III.

     Having found no reversible error, we affirm the judgment of

the district court.

                                                        AFFIRMED




                               26
