12-155-cr
United States v. Alhakk

                  UNITED STATES COURT OF APPEALS
                      FOR THE SECOND CIRCUIT
                               SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY
ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.

          At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 12th day of December, two thousand twelve.

PRESENT:  DENNY CHIN,
          CHRISTOPHER F. DRONEY,
                         Circuit Judges,
     JOHN GLEESON,
                         District Judge.*
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UNITED STATES OF AMERICA,
                    Appellee,

                               -v.-                           12-155-cr

YUSEF ALHAKK, AKA JOSEPH DANIELS,
                    Defendant-Appellant.

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FOR APPELLEE:                         JOSEPH J. KARASZEWSKI, Assistant
                                      United States Attorney, for William
                                      J. Hochul, Jr., United States
                                      Attorney for the Western District
                                      of New York, Buffalo, New York.

FOR DEFENDANT-APPELLANT:              JAYME L. FELDMAN (Marianne Mariano,
                                      on the brief), Federal Public
                                      Defender's Office, Buffalo, New
                                      York.


      *
          The Honorable John Gleeson, of the United States
District Court for the Eastern District of New York, sitting by
designation.
          Appeal from a judgment of the United States District

Court for the Western District of New York (Arcara, J.).
          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

          Defendant-appellant Yusef Alhakk was convicted,

following a plea of guilty, of one count of receipt of child

pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A).    The

district court (Arcara, J.) sentenced him principally to 120
months' imprisonment, a sentence that was substantially below the

Guidelines range of 151 to 188 months, as determined by the

district court.

          On appeal, Alhakk challenges the procedural and

substantive reasonableness of his sentence.   We review the

procedural and substantive reasonableness of a district court's

sentence for abuse of discretion.   United States v. Cavera, 550

F.3d 180, 188 (2d Cir. 2008) (en banc).   We apply de novo review

to the district court's rulings on questions of law, including

Guidelines interpretation, and clear-error review to its rulings

on questions of fact, including those that inform Guidelines

application.   See United States v. Legros, 529 F.3d 470, 474 (2d

Cir. 2008).

          We assume the parties' familiarity with the underlying

facts, the procedural history of the case, and the issues

presented for review.




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1.   Procedural Reasonableness

           Pursuant to U.S. Sentencing Guidelines Manual

("U.S.S.G.") § 3E1.1(a), a defendant may receive a two-level

reduction in his offense level calculation if he "clearly

demonstrates acceptance of responsibility for his offense."

U.S.S.G. § 3E1.1(a).   In addition, a defendant who qualifies for

a reduction under § 3E1.1(a) may receive an additional one-level

reduction under § 3E1.1(b) if his offense level is 16 or greater

and the government makes a motion stating that he "timely

notif[ied] authorities of his intention to enter a plea of

guilty, thereby permitting the government to avoid preparing for

trial and permitting the government and the court to allocate

their resources efficiently."    U.S.S.G. § 3E1.1(b).

           Alhakk argues that the district court committed

procedural error in denying him the additional one-level downward

adjustment pursuant to § 3E1.1(b).       He asserts that he was

entitled to the additional one-point reduction "because [he] did

not force the government to prepare needlessly for trial and has

fully accepted responsibility for his actions since his 2010

arrest."   Br. for Def.-Appellant at 14.     The claim fails.

           "[A] government motion is 'a necessary prerequisite' to

the granting of the third point" under § 3E1.1(b).      United States
v. Lee, 653 F.3d 170, 173 (2d Cir. 2011) (quoting United States

v. Sloley, 464 F.3d 355, 359 (2d Cir. 2006)); see also U.S.S.G.
§ 3E1.1, cmt. n.6.   This requirement may be excused (1) where the

government's refusal to move is based on an unconstitutional

motive; or (2) when the government acts in bad faith in failing


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to so move.   Lee, 653 F.3d at 173 (citing Sloley, 464 F.3d at

360-61).    Ordinarily, a sentencing court's decision not to grant

a defendant a decrease pursuant to § 3E1.1 is "'entitled to great

deference on review.'"   United States v. Taylor, 475 F.3d 65, 68

(2d Cir. 2007) (per curiam) (quoting U.S.S.G. § 3E1.1, cmt. n.5).

            The record in this case contains no evidence to suggest

that the government's refusal to make a § 3E1.1(b) motion was

based on an unconstitutional motive or made in bad faith.    Cf.

Lee, 653 F.3d at 174 (government may not refuse to move for
additional one-point reduction because defendant invoked his due

process right to contest errors in the PSR).   Moreover, Alhakk

violated the terms of his bond by fleeing the United States,

conduct warranting an obstruction of justice enhancement under

U.S.S.G. § 3C1.1.   Only in "extraordinary cases" will a defendant

who engages in obstruction of justice be entitled to a reduction

under § 3E1.1, as such conduct "ordinarily indicates that the

defendant has not accepted responsibility for his criminal

conduct."   U.S.S.G. § 3E1.1, cmt. n.4.   Although the government

agreed in the plea agreement not to oppose Alhakk's request for a

two-level downward adjustment pursuant to § 3E1.1(a), it made no

promise to move for the additional one-point reduction, and

Alhakk has shown no reason why this Court should view his case as

"extraordinary."

            To the extent Alhakk argues that it unfairly compounds

his punishment to use his conduct in fleeing the country both to

apply an obstruction enhancement and to deny an acceptance-of-
responsibility reduction, the claim lacks merit.   "The Guidelines


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explicitly permit the same act to be counted both for an

obstruction enhancement under section 3C1.1 and for denial of an

acceptance of responsibility decrease under section 3E1.1."

United States v. Castellanos, 355 F.3d 56, 60 (2d Cir. 2003)

(citing U.S.S.G. § 3E1.1, cmt. n.4).    Accordingly, the district

court did not commit procedural error.
2.   Substantive Reasonableness

            Alhakk contends that his 120-month sentence was

substantively unreasonable because (1) the district court applied

a four-level enhancement pursuant to U.S.S.G. § 2G2.2(b)(4) for

sexual exploitation of a minor involving sadistic or masochistic

conduct; and (2) the district court did not properly consider the

concerns articulated in United States v. Dorvee, 616 F.3d 174 (2d
Cir. 2010), and the factors set forth in 18 U.S.C. § 3553(a).      We

reject both challenges.

            First, pursuant to U.S.S.G. § 2G2.2(b)(4), "[i]f the

offense involved material that portrays sadistic or masochistic

conduct or other depictions of violence," a defendant's offense
level will be increased by four levels.   U.S.S.G. § 2G2.2(b)(4).

Alhakk admits that two of the images discovered on his computer

qualified procedurally for the enhancement under § 2G2.2(b)(4),

but he argues that the district court committed substantive error

by applying the four-level enhancement on the basis of only two

images out of the 436 still images and 314 videos found on his

computer.    We have upheld the application of a § 2G2.2(b)(4)

enhancement, however, where the offense involved only one image

depicting sadistic or masochistic conduct.   See, e.g., United

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States v. Hotaling, 634 F.3d 725, 731 (2d Cir. 2011); United

States v. Delmarle, 99 F.3d 80, 83 (2d Cir. 1996).    The district

court concluded that the fact that only two sadistic or

masochistic images were found "does not sufficiently mitigate the

harm caused by those images."    Sentencing Tr. at 16:3-4, United

States v. Alhakk, No. 06-cr-165 (W.D.N.Y. Dec. 21, 2011), ECF No.

42.   We find no abuse of discretion in this conclusion.

             Second, Alhakk's assertion that the district court

failed to justify the reasonableness of the imposed sentence is

misplaced.    At sentencing, defense counsel emphasized Alhakk's

serious health problems, his troubled childhood, and his efforts

to reconnect with his family.    In response, the government noted

that Alhakk's case was unusual in that, unlike many defendants

charged with child pornography crimes, Alhakk had an extensive

criminal history.    The government also noted that Alhakk had been

"difficult throughout [the] case," and remarked that Alhakk had

fled for five years to Thailand, "a country that is known for a

prevalent sex trade among children."     Sentencing Tr. at 9:21,

10:10-11.

             The record reflects that the district court considered

the parties' arguments, the advisory Guidelines range, and the

factors set forth in 18 U.S.C. § 3553(a).    The court specifically

addressed and acknowledged, inter alia, Alhakk's difficult
childhood, his age, his poor health, his extensive history of

substance abuse, and the absence of any evidence that he had

engaged in sexual contact with a minor.    Against these factors,

the court balanced the seriousness of Alhakk's conduct, the risk

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he would offend again, and the need for specific and general

deterrence.   Further, the court noted that it had given "special

consideration" to the concerns expressed in Dorvee.    Sentencing

Tr. at 18:6-7.   Based on all of these considerations, the court

concluded that a below-Guidelines sentence of 120 months'

imprisonment was sufficient but not greater than necessary to

fulfill the requirements of § 3553(a).    Nothing in the record

demonstrates that the court failed adequately to balance the

§ 3553(a) factors, or that its sentence was "shockingly high,

shockingly low, or otherwise unsupportable as a matter of law."

United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009).
          We have considered Alhakk’s remaining arguments and
find them to be without merit.    Accordingly, we AFFIRM the

judgment of the district court.

                                 FOR THE COURT:
                                 CATHERINE O'HAGAN WOLFE, CLERK




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