18-3805
United States v. El Bahnasawy

                            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 ASUMMARY ORDER@). A PARTY CITING TO 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 3rd day of June, two thousand twenty.

        PRESENT: RICHARD J. SULLIVAN,
                         MICHAEL H. PARK,
                         WILLIAM J. NARDINI,
                                 Circuit Judges.
        ------------------------------------------------------------------
        UNITED STATES OF AMERICA,

                        Appellee,

                  v.                                                         No. 18-3805

        ABDULRAHMAN EL BAHNASAWY

                         Defendant-Appellant.
        ------------------------------------------------------------------
        FOR APPELLANT:                                    ANDREW J. FRISCH, Schlam Stone &
                                                          Dolan LLP, New York, NY.


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      FOR APPELLEE:                          GEORGE TURNER, Assistant United
                                             States Attorney (Negar Tekeei, Karl
                                             Metzner, Assistant United States
                                             Attorneys, on the brief), for Geoffrey S.
                                             Berman, United States Attorney for
                                             the Southern District of New York,
                                             New York, NY.

      Appeal from a judgment of conviction in the United States District Court for

the Southern District of New York (Richard M. Berman, Judge).

      UPON      DUE     CONSIDERATION,          IT    IS   HEREBY       ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED.

      Defendant-Appellant Abdulrahman El Bahnasawy appeals from a

judgment of conviction entered in the United States District Court for the Southern

District of New York (Berman, J.) following El Bahnasawy’s guilty plea pursuant

to a plea agreement to seven counts including: (1) conspiracy to use weapons of

mass destruction, in violation of 18 U.S.C. § 2332a; (2) conspiracy to commit acts

of terrorism transcending national boundaries, in violation of 18 U.S.C. § 2332b;

(3) conspiracy to bomb a place of public use and public transportation system, in

violation of 18 U.S.C. § 2332f; (4) conspiracy to provide material support and

resources to terrorists, in violation of 18 U.S.C. § 2339A; (5) provision and

attempted provision of material support and resources to terrorists, in violation of
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18 U.S.C. § 2339A; (6) conspiracy to provide material support and resources to a

designated foreign terrorist organization, in violation of 18 U.S.C. § 2339B; and (7)

provision and attempted provision of material support and resources to a

designated foreign terrorist organization, in violation of 18 U.S.C. § 2339B. On

December 19, 2018, the district court sentenced El Bahnasawy to forty years’

imprisonment, to be followed by a lifetime term of supervised release. On appeal,

El Bahnasawy argues that (1) the district court committed reversible error in

declining to relieve the Federal Defenders as co-counsel, and (2) his sentence was

substantively unreasonable.          We assume the parties’ familiarity with the

underlying facts and the record of prior proceedings, to which we refer only as

necessary to explain our decision to affirm.

                                I.      Right to Counsel

      The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the

accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.”

U.S. Const. amend. VI. “While a defendant has a right to counsel of his choice

under the Sixth Amendment, it is not an absolute right.” United States v. Brumer,

528 F.3d 157, 160 (2d Cir. 2008). “The Supreme Court has acknowledged that . . .

a criminal defendant’s qualified right to be represented by the counsel of his



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choice . . . may be overcome when it is outweighed by competing interests in the

fair administration of justice or maintaining orderly trial procedures.” Lainfiesta v.

Artuz, 253 F.3d 151, 154 (2d Cir. 2001) (citing Wheat v. United States, 486 U.S. 153,

159 (1988)). “In determining whether to allow a defendant to retain new counsel,

the court must consider the risks and problems associated with the delay, and

whether substitutions would disrupt the proceedings and the administration of

justice.” Brumer, 528 F.3d at 160 (alteration omitted).

      “The Supreme Court has held that violations of the Sixth Amendment right

to counsel are per se reversible only when they amount to an ‘[a]ctual or

constructive denial of the assistance of counsel altogether,’ or when counsel was

‘prevented from assisting the accused during a critical stage of the proceeding.’”

Lainfiesta, 253 F.3d at 157 (quoting Penson v. Ohio, 488 U.S. 75, 88 (1988) and United

States v. Cronic, 466 U.S. 648, 659 & n.25 (1984)). Otherwise, the Court reviews a

district court’s decision limiting counsel, such as the denial of a motion to

withdraw and substitute counsel, for abuse of discretion. See United States v.

Oberoi, 331 F.3d 44, 47 (2d Cir. 2003). The district court’s decision is granted

“considerable deference,” especially when “the prosecution of the suit is likely to

be disrupted by the withdrawal of counsel.” Id. at 47 (internal quotation marks



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omitted).

      El Bahnasawy contends that the district court committed per se reversible

error, which he describes as “structural,” in denying the Federal Defenders’

motion to withdraw and instead ordering El Bahnasawy’s proposed substitute

counsel (“substitute counsel”) to represent El Bahnasawy along with the Federal

Defenders. But since the district court’s ruling did not result in the “actual or

constructive denial of the assistance of counsel altogether,” we review that

decision only for abuse of discretion. Lainfiesta, 253 F.3d at 157 (internal quotation

marks and alteration omitted). And a review of the record demonstrates that the

district court did not abuse its discretion in declining to relieve the Federal

Defenders in this case.

      Over the course of a year after El Bahnasawy’s arrest, the district court

repeatedly asked El Bahnasawy whether he wanted to replace the Federal

Defenders with the substitute counsel that his parents had chosen, and he

declined. When El Bahnasawy did request to change counsel in April 2017, which

he explicitly told the court he was doing only at the behest of his parents, substitute

counsel declined to represent him. When substitute counsel finally agreed to

represent El Bahnasawy in September 2017, the district court held numerous



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conferences to discuss the matter. In ultimately declining to relieve the Federal

Defenders, the district court highlighted El Bahnasawy’s repeated assurances that

he was satisfied with the Federal Defenders. It also noted that El Bahnasawy’s

sentencing was scheduled for about a month after the final hearing on the matter,

and that substitute counsel had, understandably, yet to demonstrate an

appreciation of the record. The district court additionally expressed its concern

that El Bahnasawy’s substitute counsel also represented his parents, who had a

“diametrically . . . opposite” view of his case. S. App’x 213. On this record, we

cannot say that the district court abused its discretion by ordering the Federal

Defenders to continue representing El Bahnasawy alongside substitute counsel.

      Moreover, El Bahnasawy is unable to point to any prejudice that resulted

from the district court’s decision. See United States v. Griffiths, 750 F.3d 237, 242 (2d

Cir. 2014). He hypothesizes only that “it is a fair inference from [the district

court’s] remarks that the ‘havoc’ that [the court] envisioned could be ‘wreak[ed]’

on ‘the integrity of the proceedings’ . . . was the possibility that new counsel might

seek to vacate El Bahnasawy’s guilty plea,” and that the district court’s

“unprompted concern about the guilty plea perhaps suggested [the court’s] own

concern about the government’s ability to prove El Bahnasawy’s intent beyond a



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reasonable doubt, or perhaps his competence.” El Bahnasawy Br. at 45. But these

musings are wholly speculative, and even El Bahnasawy admits that “Judge

Berman presumably would have considered any [motion to vacate the guilty plea]

on its merits.” Id. at 45–46. Nor is there any evidence in the record to suggest that

El Bahnasawy received subpar or compromised assistance in connection with his

sentencing. Put simply, the district court thoroughly reviewed the record, and

clearly articulated the reasons justifying the Federal Defenders’ continued

representation of El Bahnasawy. Such a decision was not an abuse of discretion.

                         II.    Substantive Reasonableness

      “We review the procedural and substantive reasonableness of a sentence

under a deferential abuse-of-discretion standard.” United States v. Yilmaz, 910 F.3d

686, 688 (2d Cir. 2018). Our review of the substantive reasonableness of a sentence

is “particularly deferential,” and we will set aside a sentence as substantively

unreasonable only if it is “so shockingly high, shockingly low, or otherwise

unsupportable as a matter of law that allowing [it] to stand would damage the

administration of justice.” United States v. Broxmeyer, 699 F.3d 265, 289 (2d Cir.

2012) (internal quotation marks and citation omitted).




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      Although the Guidelines provided for, and the government sought, a life

sentence, El Bahnasawy argues that his below-Guidelines sentence of forty years

was substantively unreasonable because “the District Court gave lip service, but

little more,” to mitigating factors counseling a lower sentence, including El

Bahnasawy’s youth, his history of mental health and addiction issues, his

purported progress with treatment since his arrest, “the dissipation of the

compulsiveness that marked earlier fixations including his foray into online

jihad,” “his evolving sense of self and disavowment of violence,” his family

support, and the treatment that would be available to him if he returned to

Canada. El Bahnasawy Br. at 46–47.

      But the district court’s decision makes clear that it did consider El

Bahnasawy’s youth, mental health, and addiction issues. The district court also

considered the limitations of the Bureau of Prisons’ programs compared to the

treatment El Bahnasawy could receive in Canada, and weighed these concerns

against the need for a lengthy sentence based on El Bahnasawy’s conduct and the

safety of the public. El Bahnasawy’s sentence clearly was not “so shockingly high,

shockingly low, or otherwise unsupportable as a matter of law that allowing [it]

to stand would damage the administration of justice.” Broxmeyer, 699 F.3d at 289



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(internal quotation marks and citation omitted); see also United States v. Messina,

806 F.3d 55, 66 (2d Cir. 2015) (“While we do not presume that a Guidelines

sentence is necessarily substantively reasonable, that conclusion is warranted in

the overwhelming majority of cases, and thus especially when, as here, a

defendant challenges a below-Guidelines sentence.” (internal quotation marks and

citation omitted)).

      We have considered El Bahnasawy’s remaining arguments and conclude

that they are without merit. For the foregoing reasons, the judgment of the district

court is AFFIRMED.

                                      FOR THE COURT:
                                      Catherine O=Hagan Wolfe, Clerk of Court




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