                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-7-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2204




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 03-2204




                           UNITED STATES OF AMERICA

                                           v.

                              MOSTAFA MAHAMOUD,
                                            Appellant




                    On Appeal from the United States District Court
                           for the District of New Jersey
                          D.C. Criminal No. 95-cr-00411-1
                        (Honorable Dickinson R. Debevoise)


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    May 25, 2004

     Before: SCIRICA, Chief Judge, RENDELL and ALARCÓN*, Circuit Judges

                                  (Filed: June 7, 2004)




                              OPINION OF THE COURT




   *The Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Judicial
Circuit, sitting by designation.
SCIRICA, Chief Judge.

       Defendant Mostafa Mahamoud violated his term of supervised release and was

sentenced to an upward departure of 20 months imprisonment. Mahamoud claims the

sentencing court failed to articulate its reasons for the stricter sentence and that the

imposed sentence is plainly unreasonable. We will affirm.

                                               I.

       In November 1995, defendant Mostafa Mahamoud pled guilty to conspiracy to

commit counterfeiting offenses in volation of 18 U.S.C. § 371. Mahamoud’s guidelines

range was 18 to 24 months, but the District Court granted a downward departure pursuant

to U.S.S.G. § 5K1.1 due to his substantial assistance to authorities and sentenced him to

12 months and 28 days of imprisonment (time served) plus three years of supervised

release.

       In March 1998, probation officials in New York determined that Mahamoud had

left the United States to travel to Egypt, and a warrant for his arrest was subsequently

issued in May 1998. Mahamoud allegedly returned to the United States under an

assumed name in 1999, and he did not report to the probation office. On February 4,

2003, he was arrested in the company of a known fugitive during a traffic stop. On

March 24, 2003, Mahamoud was charged with and pled guilty to violating a condition of

his supervised release, namely failing to report to his probation officer and submit a

monthly report, a Grade C violation. Pursuant to U.S.S.G. § 7B1.4(a), the recommended



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sentencing range for a Grade C violation was three to nine months imprisonment. The

statutory maximum term of imprisonment was 24 months, pursuant to 18 U.S.C. §

3583(e)(3).

       At the sentencing hearing, defense counsel requested a sentence at the bottom of

the recommended sentencing range, noting Mahamoud’s lack of a criminal history and

claiming that his return to Egypt was motivated by a desire to spend time with his

daughter who was recovering from heart surgery. The government, on the other hand,

argued that Mahamoud should receive an upward departure of twenty months because he

took advantage of the downward departure in his original sentencing; his illegal re-entry

into the United States under a false name; his failure to report to probation for almost four

years; and his being arrested in the company of a wanted individual with almost $5,300

on his person.

       The District Court stated that it had considered the Presentence Report, the

Violation of Supervised Release Report, arguments by counsel, and Mahamoud’s own

remarks. While the court recognized Mahamoud’s concern for his daughter, it noted that

he should have notified the probation office of his daughter’s condition and requested

permission to go to Egypt. The court revoked the previously imposed term of supervised

release and sentenced Mahamoud to 20 months imprisonment, followed by supervised

release of one year. Mahamoud filed a timely notice of appeal. We have jurisdiction

under 28 U.S.C. § 1291.



                                              3
                                             II.

       A district court sentencing a defendant upon revocation of supervised release

under § 3583(e) must consider the policy statements in Chapter 7 of the sentencing

guidelines and sentencing factors enumerated in § 3553(a). United States v. Blackston,

940 F.2d 877, 893 (3d Cir. 1991). If an upward departure is imposed, the court “must

simply state on the record its general reasons under section 3553(a) for rejecting the

Chapter 7 policy statements and for imposing a more stringent sentence.” Id. (emphasis

in original). We review the District Court’s decision to exceed the sentencing range set

forth by U.S.S.G. § 7B1.4 for abuse of discretion resulting in a “plainly unreasonable”

sentence. Id. at 894; United States v. Schwegel, 126 F.3d 551, 555 (3d Cir. 1997).

       Mahamoud claims that the District Court failed to consider the Chapter 7 policy

statements and failed to sufficiently articulate its reasons under 8 U.S.C. § 3553(a) for

imposing a sentence outside the recommended sentencing range. We disagree. The

District Court noted that the sentence comports with Application Note 4 to U.S.S.G. §

7B1.4, which provides that “[w]here the original sentence was the result of a downward

departure, . . . an upward departure may be warranted.” In addition, the court stated its

reasons for the upward departure, including: (1) Mahamoud’s failure to report to the

probation office (relating to “the nature and circumstances of the offense” under §

3553(a)(1)); (2) the fact that he was a fugitive for four years until he was apprehended in

the company of another wanted fugitive (relating to “the nature and circumstances of the



                                              4
offense” and “history and characteristics of the offense,” both under § 3553(a)(1)); and

(3) his having benefitted from a downward departure at the original sentencing but still

violating his supervised release (relating to “history and characteristics of the defendant”

plus “deterrence to criminal conduct” under § 3553(a)(2)(B)). The District Court

followed the directives in Blackstone and did not abuse its discretion.

       Mahamoud also claims the 20-month sentence imposition for a Grade C violation

was “plainly unreasonable.” He basically contends the court should have been more

lenient in the imposed sentence due to the nature of his daughter’s surgery and his

subsequent fear of reporting to the authorities upon returning to the United States.

Indeed, the District Court took his daughter’s illness into consideration, as well as all

other relevant factors, as prescribed by § 3553(a). It did not abuse its discretion in

weighing the other factors more heavily.

                                             III.

       For the reasons stated, we will affirm the judgment of sentence imposed by the

District Court.




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