     10-3648-cr
     United States of America v. Mamdouh Mahmud Salim

 1                        UNITED STATES COURT OF APPEALS
 2
 3                            FOR THE SECOND CIRCUIT
 4
 5                                August Term 2012
 6
 7         (Argued: March 27, 2012             Decided: August 24, 2012)
 8
 9                          Docket No. 10-3648-cr
10         -----------------------------------------------------x

11   UNITED STATES OF AMERICA,
12
13               Appellee,
14
15                           -- v. --
16
17   MAMDOUH MAHMUD SALIM,
18
19               Defendant-Appellant.
20
21         -----------------------------------------------------x
22
23   B e f o r e :     WALKER and LYNCH, Circuit Judges.1

24         Appeal from a judgment of the United States District Court

25   for the Southern District of New York (Deborah A. Batts, Judge)

26   resentencing appellant for attacking a correctional officer.

27   Appellant challenges his resentence, which he attended by

28   videoconference, primarily on the ground that his right to be

29   physically present in court was violated.          We agree with

30   appellant that the government has not satisfied its burden of

31   proving that he waived his right to be present and that the


     1
 1        Because Judge Straub, originally assigned to this panel, is
 2   recused, the remaining members of the panel decided this appeal
 3   in accordance with Second Circuit Internal Operating Procedure E.

                                           1
 1   district court erred in finding a valid waiver.   But this error

 2   is subject to plain error review and, in the circumstances of

 3   this case, appellant was not prejudiced.   We also reject

 4   appellant’s arguments that his resentence was unreasonable.    We

 5   therefore AFFIRM the judgment of the district court.

 6                                 BRUCE R. BRYAN, Syracuse, NY, for
 7                                 Defendant-Appellant.
 8
 9                                 ANDREW D. GOLDSTEIN, Assistant U.S.
10                                 Attorney (Iris Lan, Assistant U.S.
11                                 Attorney, on the brief), for Preet
12                                 Bharara, U.S. Attorney for the
13                                 Southern District of New York, New
14                                 York, NY, for United States-
15                                 Appellee.
16
17
18   JOHN M. WALKER, JR., Circuit Judge:

19        Defendant-Appellant Mamdouh Mahmud Salim appeals from a

20   judgment of the United States District Court for the Southern

21   District of New York (Deborah A. Batts, Judge) resentencing him

22   for attacking a correctional officer while an inmate at the

23   Metropolitan Correctional Center (the “MCC”).   On appeal, Salim

24   argues primarily that his resentencing by videoconference

25   constituted a violation of his right to be physically present.

26   We agree with Salim that the government has not satisfied its

27   burden of proving that he waived his right to be present and that

28   the district court erred in finding a valid waiver.    But this

29   error is subject to plain error review and, in these

30   circumstances, Salim was not prejudiced.   We also reject Salim’s


                                     2
 1   arguments that his resentence was unreasonable.   We therefore

 2   AFFIRM the judgment of the district court.

 3                               BACKGROUND

 4   I.   Factual Background

 5        The facts of this case are fully set forth in this Court’s

 6   prior opinion in United States v. Salim, 549 F.3d 67 (2d Cir.

 7   2008).   For present purposes, they may be summarized as follows:

 8        On November 1, 2000, Salim was incarcerated at the MCC

 9   awaiting trial upon the indictment in United States v. Usama Bin

10   Laden, et al., S9 98 Cr. 1023 (LBS), in which numerous alleged al

11   Qaeda members were charged with a conspiracy to kill Americans.

12   On that day, Salim and his cellmate (and co-defendant in the

13   terrorism case) Kholfan Khamis Mohamed planned to take a guard’s

14   keys so that Salim could attack his lawyers in an attorney-inmate

15   meeting room.   Their goal was to force Salim’s attorneys to

16   withdraw their representation so that District Judge Sand, who

17   was presiding over the terrorism case and previously had denied

18   Salim’s repeated requests for new lawyers, would have to grant

19   substitute counsel.

20        Salim began to put the plan into effect when, while meeting

21   with his lawyers in one of the meeting rooms, he asked to go back

22   to his cell to retrieve certain materials.   As Corrections

23   Officer Louis Pepe escorted him to his cell, Salim began singing

24   -- a prearranged signal to Mohamed, who was waiting in the cell.


                                      3
 1   When Salim and Officer Pepe arrived at the cell, Mohamed grabbed

 2   Officer Pepe’s walkie-talkie and Salim knocked Officer Pepe down,

 3   sprayed hot sauce in his eyes, and stabbed him in the left eye

 4   with the end of a sharpened plastic comb.    Having taken Officer

 5   Pepe’s keys, Salim and Mohamed locked Officer Pepe in the cell

 6   and Salim headed back towards the meeting room where his lawyers

 7   waited.   He was subdued by other guards en route.

 8         Officer Pepe was severely injured.    He lost his left eye,

 9   incurred reduced vision in his right eye, and suffered brain

10   damage that left his right side partially paralyzed and

11   interfered with other normal functions, including his ability to

12   speak and write.

13   II.   Procedural Background

14         Salim’s attack on Officer Pepe resulted in numerous

15   additional charges, which were indicted separately from the

16   terrorism case and assigned to District Judge Batts.    On April 3,

17   2002, those charges were resolved when Salim pled guilty to

18   conspiracy to murder, and attempted murder of, a federal

19   official, see 18 U.S.C. §§ 1114, 1117, pursuant to a plea

20   agreement without any Sentencing Guidelines understanding.

21         After a Fatico hearing and briefing, the district court

22   issued an opinion containing findings of fact and legal

23   conclusions.   See United States v. Salim, 287 F. Supp. 2d 250

24   (S.D.N.Y. 2003).   Among other rulings, the district court


                                      4
 1   rejected the government’s argument for a terrorism enhancement.

 2   The government believed this enhancement was warranted because

 3   Salim had attempted to coerce Judge Sand into appointing

 4   substitute counsel.   The district court, however, concluded that

 5   the terrorism enhancement applied only to transnational conduct

 6   whereas the prison assault was purely domestic.   See id. at 353-

 7   54.   In a subsequent order, the district court agreed with the

 8   government that an obstruction of justice enhancement was

 9   warranted based on Salim’s repeated denials at the Fatico hearing

10   that the motive for his attack was to force Judge Sand to appoint

11   new counsel.

12         The initial sentencing took place on May 3, 2004.    Although

13   the Guidelines range was 262 to 327 months, the district court

14   departed upward and imposed a 384-month sentence due to factors

15   including (1) the “unusually cruel, brutal . . . and . . .

16   gratuitous infliction of injury,” Appendix (“App.”) 480, (2) that

17   the attack was part of a broader scheme to attack Salim’s

18   attorneys, and (3) that Salim had secured Mohamed’s help through

19   religious and psychological coercion.

20         Salim appealed his sentence.   While that appeal was pending,

21   the Supreme Court decided United States v. Booker, 534 U.S. 220

22   (2005), which rendered the Sentencing Guidelines advisory rather

23   than mandatory, and our Court thereafter decided United States v.

24   Crosby, 397 F.3d 103 (2d Cir. 2005), which, in light of Booker,


                                      5
 1   provided for remand to “permit[] the sentencing judge to

 2   determine whether to resentence, . . . and if so, to resentence,”

 3   id. at 117 (emphasis omitted).     We remanded Salim’s case to the

 4   district court pursuant to Crosby.       On remand, the district court

 5   declined to resentence Salim after concluding that it would have

 6   imposed the same sentence under an advisory Guidelines regime.

 7           Salim again appealed, arguing that the district court had

 8   erroneously imposed various enhancements, including the

 9   obstruction enhancement.    The government cross-appealed from the

10   district court’s decision not to impose a terrorism enhancement.

11   We rejected Salim’s arguments but agreed with the government that

12   the terrorism enhancement does not require transnational conduct

13   and thus should apply in this case.      Salim, 549 F.3d at 73-76,

14   78.   We vacated the sentence and again remanded.     Id. at 79.

15           On remand, Salim’s counsel argued that, for various reasons,

16   Salim’s sentence either should be reduced or should stay the

17   same.    The government argued for a life sentence, which was the

18   Guidelines-recommended sentence in light of the now-applicable

19   terrorism enhancement.    In an opinion issued before resentencing,

20   the district court rejected Salim’s arguments and concluded that

21   a life sentence was appropriate.       Specifically, the district

22   court stated that its reasons for departing upward in the

23   original sentence -– most prominently, the severity and purpose

24   of the crime -- prevented it from departing below the Guidelines


                                        6
 1   on resentencing.   It also noted that its prior “determination not

 2   to impose a life sentence was based on [its] erroneous legal

 3   analysis [regarding the terrorism enhancement] and had nothing to

 4   do with the ‘nature and circumstances of the offense’ or the

 5   ‘history and characteristics of the defendant.’”    Special

 6   Appendix 239-40 (quoting 18 U.S.C. § 3553(a)(1)).

 7        Prior to resentencing, Salim’s lawyer sent the district

 8   court a letter that stated that he had recently spoken with his

 9   client and that Salim did not wish to be present in court for the

10   resentencing.   “On [Salim’s] behalf, [counsel] request[ed] that

11   [Salim] be permitted to waive his presence at [re]sentencing

12   pursuant to Rule 43(c)(1)(B) of the Federal Rules of Criminal

13   Procedure, or, alternatively, that the [re]sentencing proceed via

14   videoconferencing.”   App. 1104.   The district court endorsed the

15   letter and ordered that Salim’s “presence in person [was] waived

16   for re-sentencing in that a video hook up shall be arranged by

17   the Government.”   Id.

18        At the resentencing on August 31, 2010, Salim’s counsel was

19   present and Salim attended by videoconference.2    At the outset,

20   the district court had the following colloquy with Salim:

21        THE COURT:       Mr. Salim is not present in person in


     2
 1        On appeal, Salim complains that there were technical
 2   difficulties with the videoconference link. Although there were
 3   some difficulties early on and periodically thereafter, they did
 4   not interfere with the actual proceedings or with Salim’s ability
 5   to communicate with the district court.

                                        7
 1                       the courtroom today.
 2
 3                       Mr. Salim, I wish to confirm that it is
 4                       your wish to waive your appearance in
 5                       this courtroom pursuant to Rule
 6                       43(c)(1)(B) of the Federal Rules of
 7                       Criminal Procedure. Is that correct?
 8
 9        THE DEFENDANT: Your Honor, do you want me to answer
10                       this question?
11
12        THE COURT:     Yes.
13
14        THE DEFENDANT: Your Honor, when they brought me in and
15                       they moved me from one prison to
16                       another, there are guards. And the
17                       officer spit on me and beat me, and
18                       that’s why I refuse to come over.
19
20        THE COURT:     So you do not wish to waive your
21                       presence and you would prefer to be
22                       here?
23
24        THE DEFENDANT: No, your Honor. I don’t want to come to
25                       the Court. So I’m not going to be
26                       subjected to being beaten up and to be
27                       spit on.
28
29        THE COURT:     So then you waive your presence here
30                       this afternoon?
31
32        THE DEFENDANT: Therefore, your Honor, I am waiving my
33                       right to appear before you.
34
35        THE COURT:     Thank you, Mr. Salim.

36   Id. at 1114-15.

37        After hearing statements from Officer Pepe, from Salim and

38   his lawyer, and from the government, the district court imposed a

39   life sentence as recommended by the Guidelines.   Salim appeals.




                                     8
 1                                DISCUSSION

 2   I.   The Right to Be Present at Resentencing

 3        Salim argues, inter alia, that his attendance at

 4   resentencing by videoconference violated his right to be

 5   physically present and that his waiver of physical presence was

 6   not voluntary because it was premised on his fear of abuse by

 7   correctional officers.

 8        A.   Applicable Law

 9        Under both the Constitution and Federal Rule of Criminal

10   Procedure 43(a)(3), a criminal defendant has the right to be

11   present during sentencing.   This right extends to resentencing.

12   United States v. Arrous, 320 F.3d 355, 359 (2d Cir. 2003)

13   (“[W]here the district court re-enters a sentence which has been

14   vacated or set aside by the Court of Appeals . . . , a defendant

15   has a constitutional right to be present, because technically a

16   new sentence is being imposed in place of the vacated

17   sentence.”).

18        Although it is an issue of first impression in this circuit,

19   every federal appellate court to have considered the question has

20   held that a defendant’s right to be present requires physical

21   presence and is not satisfied by participation through

22   videoconference.   See United States v. Williams, 641 F.3d 758,

23   764-65 (6th Cir. 2011); United States v. Torres-Palma, 290 F.3d

24   1244, 1245-48 (10th Cir. 2002); United States v. Lawrence, 248


                                      9
 1   F.3d 300, 301, 303-04 (4th Cir. 2001); United States v. Navarro,

 2   169 F.3d 228, 235-39 (5th Cir. 1999), cert. denied, 528 U.S. 845

 3   (1999).   But see Navarro, 169 F.3d at 239-42 (Politz, J.,

 4   dissenting) (opining that the defendant’s sentencing by

 5   videoconference did not violate his right to be present).

 6   Because both parties argue from this premise, we assume without

 7   deciding that “presence” requires physical presence and is not

 8   satisfied by videoconference.

 9        In a non-capital case, a defendant may waive his right to be

10   present as long as that waiver is knowing and voluntary.     See

11   Fed. R. Crim. P. 43(c)(1)(B); United States v. Mera, 921 F.2d 18,

12   20 (2d Cir. 1990) (per curiam).    “The government bears the burden

13   of demonstrating by a preponderance of the evidence that a

14   defendant waived his constitutional rights.”   United States v.

15   Lynch, 92 F.3d 62, 65 (2d Cir. 1996).    We have held that the

16   erroneous denial of a defendant’s right to be present during

17   resentencing is grounds for reversal only if the defendant

18   suffered prejudice as a result of the deprivation.   See United

19   States v. DeMott, 513 F.3d 55, 58 (2d Cir. 2008); Arrous, 320

20   F.3d at 361-62; United States v. Pagan, 785 F.2d 378, 380-81 (2d

21   Cir. 1986).   But see Torres-Palma, 290 F.3d at 1248 (holding that

22   a violation of the right to be present at sentencing “is per se

23   prejudicial”).

24        We therefore turn to whether the government has proven, as

25   the district court found, that Salim knowingly and voluntarily

                                       10
 1   waived his right to be present for resentencing.

 2        B.      Salim’s Purported Waiver of Presence

 3        Salim contends that his waiver of presence was not voluntary

 4   because it was premised on his fear of physical abuse by

 5   correctional officers.    The government makes two arguments in

 6   response: first, that Salim’s lawyer properly waived Salim’s

 7   presence through counsel’s letter to the district court before

 8   resentencing; and second, that Salim reiterated and confirmed his

 9   waiver directly to the district court at the outset of the

10   resentencing proceedings.

11                1.   Defense Counsel’s Purported Waiver by Letter

12        “Although it is certainly preferable that the waiver [of

13   presence] come from the defendant directly, there is no

14   constitutional requirement to that effect.”    Polizzi v. United

15   States, 926 F.2d 1311, 1322 (2d Cir. 1991).     A defendant’s lawyer

16   may waive presence on the defendant’s behalf.       But a defendant’s

17   waiver through counsel, like all waivers of constitutional

18   rights, still must be knowing and voluntary on the part of the

19   defendant.    See id. at 1313 (describing a procedure wherein the

20   district court inquired of defense counsel whether, inter alia,

21   “the defendant understood his right to be present and whether he

22   was voluntarily and knowingly waiving that right, affirmatively

23   requesting that the trial proceed in his absence and giving up

24   any claim” of prejudice).

25        The government has not satisfied its burden of proving that

26   Salim, through his lawyer’s letter, knowingly and voluntarily

                                       11
 1   waived his right to be present at resentencing.     The letter

 2   stated only that counsel had “recently spoken to” Salim and

 3   requested, on Salim’s behalf, that Salim be allowed “to waive his

 4   presence at [re]sentencing . . . or, alternatively, that the

 5   [re]sentencing proceed via videoconferencing.”     App. 1104.    These

 6   words, without more, do not speak to knowledge or voluntariness,

 7   and the government cannot prove –- and the district court could

 8   not have found -- an adequate waiver by relying on them.

 9                2.   Salim’s Purported Waiver over Videoconference

10        As resentencing commenced, the district court appropriately

11   stated to Salim over the videoconference link that it “wish[ed]

12   to confirm that it [was Salim’s] wish to waive [his] appearance

13   in th[e] courtroom,” id. at 1114.      See United States v. Tureseo,

14   566 F.3d 77, 83 (2d Cir. 2009) (“To establish waiver, the

15   District Court must conduct a record inquiry to determine whether

16   the defendant's absence was ‘knowing and voluntary’ . . . .”).

17   Salim responded that he did indeed waive his presence, but that

18   he did so because at least one correctional officer allegedly had

19   “spit on” and “beat[en]” him the last time Salim had been moved.

20   App. 1114.    He claimed that he did not “want to come to the

21   Court” because he did not want “to be subjected to being beaten

22   up and . . . spit on” again.    Id.    The district court accepted

23   this waiver and proceeded with resentencing.

24        Here again, the government has not satisfied its burden of

25   proving that Salim’s waiver was voluntary.     To be voluntary, a

26   waiver of a constitutional right must be “the product of a free

                                       12
 1   and deliberate choice rather than intimidation, coercion, or

 2   deception.”   Berghuis v. Thompkins, 130 S. Ct. 2250, 2260 (2010)

 3   (internal quotation marks omitted).   Salim’s waiver allegedly

 4   resulted from fears of intimidation and physical abuse.   The

 5   government has not established that Salim was lying about the

 6   abuse, that the fear he expressed was not reasonably grounded, or

 7   that he would not have attended resentencing even if his safety

 8   could be reasonably assured.

 9        Nor did the district court undertake to assess the

10   reasonableness of Salim’s alleged fears or determine whether

11   assurances could have been made that would assuage those fears.

12   In comparable situations, we and the Supreme Court have held that

13   a careful judicial inquiry is required before a court may accept

14   an in-court waiver of constitutional procedural rights.   See

15   Faretta v. California, 422 U.S. 806, 814 (1975) (right to counsel

16   and the “correlative right to dispense with a lawyer’s help”

17   (internal quotation marks omitted)); Boykin v. Alabama, 395 U.S.

18   238, 243-44 (1969) (rights against self-incrimination, to trial,

19   and to confront one’s accusers, which may be waived by entering a

20   guilty plea); United States v. Curcio, 680 F.2d 881, 889-90 (2d

21   Cir. 1982) (right to conflict-free counsel).   The government

22   urges that the district court, which observed Salim during this

23   colloquy, implicitly rejected Salim’s claimed fears of abuse as

24   incredible.   It is true that the district court was in a position

25   to assess Salim’s credibility and, if appropriate, reject his

26   explanation for his waiver.    But the district court made no

                                      13
 1   findings to that effect.   The government’s argument therefore is

 2   speculative and we cannot uphold the district court’s acceptance

 3   of Salim’s waiver on this basis.

 4        C.     Prejudice Analysis

 5        Our analysis does not end with our determination that the

 6   government has not met its burden of proving that Salim knowingly

 7   and voluntarily waived his right to be physically present at

 8   resentencing.   The district court’s error in finding a valid

 9   waiver warrants reversal and remand only if Salim suffered

10   prejudice as a result.   See DeMott, 513 F.3d at 58; Arrous, 320

11   F.3d at 361-62; Pagan, 785 F.2d at 380-81.

12        When a criminal defendant does not preserve an issue below

13   by objecting, we apply a plain error standard instead of a

14   harmless error one.   See, e.g., United States v. Garcia, 587 F.3d

15   509, 515 & n.2 (2d Cir. 2009) (Confrontation Clause context);

16   United States v. Vaval, 404 F.3d 144, 151 (2d Cir. 2005) (Rule 11

17   context).   We therefore review the district court’s acceptance of

18   Salim’s waiver of presence at resentencing for plain error.     See,

19   e.g., United States v. Jones, 662 F.3d 1018, 1027 (8th Cir.

20   2011); United States v. Henderson, 626 F.3d 326, 343 (6th Cir.

21   2010); United States v. Holman, 289 F. App’x 680, 681 (5th Cir.

22   2008); United States v. Williams, 241 F. App’x 681, 684 (11th

23   Cir. 2007); United States v. Terrazas, 190 F. App’x 543, 548-49

24   (9th Cir. 2006); United States v. Rhodes, 32 F.3d 867, 874 (4th

25   Cir. 1994).

26        As explained recently by the Supreme Court, when reviewing

                                      14
 1   for plain error,

 2        an appellate court may, in its discretion, correct an
 3        error not raised at trial only where the appellant
 4        demonstrates that (1) there is an error; (2) the error
 5        is clear or obvious, rather than subject to reasonable
 6        dispute; (3) the error affected the appellant’s
 7        substantial rights, which in the ordinary case means it
 8        affected the outcome of the district court proceedings;
 9        and (4) the error seriously affects the fairness,
10        integrity or public reputation of judicial proceedings.

11   United States v. Marcus, ––– U.S. ––––, 130 S. Ct. 2159, 2164

12   (2010) (brackets and internal quotation marks omitted).   The

13   defendant bears “the burden of establishing entitlement to relief

14   for plain error.”   United States v. Dominguez Benitez, 542 U.S.

15   74, 82 (2004).

16        Even assuming that Salim has satisfied the first two prongs

17   of plain error review –- by showing that there was an error and

18   that it was clear or obvious –- he has not met the third or

19   fourth.   Salim has not proven that his presence would have

20   affected the outcome of his resentencing.    Cf. DeMott, 513 F.3d

21   at 58 (in harmless error review of erroneous deprivation of right

22   to be present at resentencing, violation was harmless if, inter

23   alia, the “defendant’s presence would not have affected the

24   outcome” of the resentencing).   Before the resentencing, the

25   district court issued an opinion in which it found that the

26   circumstances of Salim’s crime “preclude[d] any finding in favor

27   of the Defendant for a non-guidelines sentence,” App. 1101, i.e.,

28   a sentence of less than life imprisonment.   The district court

29   also clarified that its prior “determination not to impose a life

30   sentence was based on [its] erroneous legal analysis and had

                                      15
 1   nothing to do with the ‘nature and circumstances of the offense’

 2   or the ‘history and characteristics of the defendant,’” id. at

 3   1100-01 –- the sort of considerations that sometimes weigh in

 4   favor of a below-Guidelines sentence under 18 U.S.C.

 5   § 3553(a)(1).    And, during the resentencing, by virtue of the

 6   live videoconference link, Salim was not prevented from making

 7   any statement he chose to the district court.     Against these

 8   considerations, Salim has offered no explanation for why his

 9   physical presence might have led to a resentence of less than

10   life imprisonment.

11           Salim protests that the district court did not allow him to

12   read on the record a ten-page “motion” (alternatively called a

13   “statement”), App. 1123-24, that he had faxed to the district

14   court on the day of resentencing.      Defendants have the right to

15   speak before the imposition of sentence.     Fed. R. Crim. P.

16   32(i)(4)(A).    Even on the dubious assumption that the district

17   court’s decision not to hear Salim’s motion was tied to his lack

18   of physical presence, Salim’s right to speak was not violated

19   here.    The district court did not err in stating that motions

20   were to be made by counsel and that, in any case, it would not

21   rule on any motions made at this late date.     The district court

22   asked Salim what he “ha[d] to say in relation to sentencing,”

23   App. 1124, and Salim spoke, as was his right.     Later, the

24   district court offered Salim’s counsel a break to consider

25   whether he wished to raise in his attorney statement any of the

26   points from Salim’s motion.    Counsel declined the break and made

                                       16
 1   a statement that “incorporate[d]” the motion, id. at 1128.     In

 2   these circumstances, Salim’s right to speak before the imposition

 3   of resentence was not violated.

 4         Nor has Salim proven the fourth plain error factor -- that

 5   the district court’s acceptance of his waiver of presence

 6   seriously affected the fairness, integrity or public reputation

 7   of judicial proceedings.   An error that does not affect the

 8   outcome of proceedings typically does not meet this prong.

 9   Marcus, 130 S. Ct. at 2166.   This is because “the plain-error

10   exception to the contemporaneous-objection rule is to be used

11   sparingly,” “to correct only particularly egregious errors” when

12   “a miscarriage of justice would otherwise result.”   United States

13   v. Young, 470 U.S. 1, 15 (1985) (internal quotation marks

14   omitted).   As discussed earlier, Salim has not explained why his

15   absence might have altered his resentence, nor has he

16   demonstrated that any error in his resentencing was so egregious

17   as to warrant relief on plain error review.

18         In sum, we see no basis for concluding that the acceptance

19   of Salim’s waiver of presence, while erroneous on this record,

20   warrants reversal under a plain error standard.

21   II.   The Reasonableness of Salim’s Resentence

22         Salim makes several challenges to the reasonableness of his

23   resentence.   “We are constrained to review sentences for

24   reasonableness, and we do so under a deferential abuse-of-

25   discretion standard.   We examine sentences for both substantive



                                       17
 1   and procedural reasonableness, setting aside a sentence as

 2   substantively unreasonable only in those special cases where the

 3   range of permissible decisions does not encompass the [d]istrict

 4   [c]ourt’s determination.”   United States v. Diamreyan, 684 F.3d

 5   305, 308 (2d Cir. 2012) (internal quotation marks and citations

 6   omitted).   “A sentence is procedurally unreasonable when[] the

 7   district court (1) fails to calculate the Guidelines range; (2)

 8   is mistaken in the Guidelines calculation; (3) treats the

 9   Guidelines as mandatory; (4) does not give proper consideration

10   to the § 3553(a) factors; (5) makes clearly erroneous factual

11   findings; (6) does not adequately explain the sentence imposed;

12   or (7) deviates from the Guidelines range without explanation.”

13   Id.

14         Salim argues that his resentence was procedurally

15   unreasonable because the district court imposed a longer sentence

16   at resentencing than it had imposed originally.   The district

17   court originally imposed a sentence of 32 years’ imprisonment.

18   At that point, in Salim’s view, the district court knew

19   everything about his case that it knew at the resentencing.

20   Furthermore, the district court did not give the original 32-year

21   sentence because of adherence to then-mandatory Guidelines; it

22   departed upward from those Guidelines, so the original sentence

23   must have been what the district court thought was right under

24   the circumstances.   Therefore, Salim argues, the district court

25   could not have imposed a heavier sentence on remand, when the

26   Guidelines were no longer mandatory, and when all that had

                                     18
 1   changed was the Guidelines recommendation, unless the district

 2   court took the Guidelines to be mandatory or at least

 3   presumptively correct.   Either of those presumptions would

 4   constitute an abuse of discretion.   See United States v. Dorvee,

 5   616 F.3d 174, 182-83 (2d Cir. 2010).   Furthermore, Salim argues,

 6   the fact that our Court had instructed the district court that

 7   the terrorism enhancement applied cannot explain the increased

 8   sentence on remand, as that determination was based simply on the

 9   meaning of the Guidelines, and not on any disagreement with the

10   district court’s findings of fact; we did not, for example,

11   reject the district court’s fact-finding and conclude that Salim

12   was actually engaged in a larger hostage-taking plot, rather than

13   in an attempt to scare his attorneys into resigning and to force

14   Judge Sand to appoint new counsel.

15        Salim’s argument is unavailing, as the sentencing factors

16   were different at the time of resentencing: the Guidelines

17   recommendation, which is a factor that 18 U.S.C. § 3553(a)

18   requires a judge to consider, had changed.   If the Guidelines are

19   a factor, then it must follow that in some cases they are the

20   factor that tips the balance.   After all, if a factor never makes

21   a difference, it is a non-factor.    Accordingly, we conclude that

22   the district court’s imposition of a life sentence at

23   resentencing was not procedurally unreasonable.

24        Salim’s challenge to the validity of the terrorism

25   enhancement Guideline itself is similarly unavailing.   He argues

26   that the terrorism enhancement, like the child pornography

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 1   Guidelines, is not entitled to the respect or deference of a

 2   sentencing judge because the enhancement was not the product of

 3   empirical “research.”   See Dorvee, 616 F.3d at 184-85 (noting,

 4   inter alia, that “the [Sentencing] Commission did not use [its

 5   typical] empirical approach in formulating the Guidelines for

 6   child pornography,” but “[i]nstead, at the direction of Congress,

 7   . . . amended the Guidelines . . . several times since their

 8   introduction in 1987, each time recommending harsher penalties”).

 9   In Dorvee, we analogized to the Supreme Court’s instruction, in

10   the context of crack-cocaine sentencing, that a judge is free to

11   disagree with the substance of a Guidelines recommendation, and

12   we held that it is not an abuse of discretion for a judge to

13   disagree with the child pornography Guidelines, given their

14   “irrationality” and questionable origins.   See id. at 187-88.    We

15   have never held that a district court is required to reject an

16   applicable Guideline.   At most, the judge may give a non-

17   Guidelines sentence where she disagrees with the weight the

18   Guidelines assign to a factor.

19        Here, there is no indication that the district court

20   disagreed with the terrorism enhancement, or thought it compelled

21   (or established a presumption in favor of) a sentence that was

22   greater than necessary to accomplish the purposes of sentencing

23   set out in section 3553(a).   Rather, the district court

24   recognized expressly, in writing, that the Guidelines are

25   advisory, stated the correct standard, and discussed at length,

26   in terms of the statutory factors, why a life sentence was

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 1   appropriate.   While the district court did not directly reject

 2   Salim’s argument that it ought to ignore the terrorism

 3   enhancement, we have never required judges to address every point

 4   raised, where, as here, the district court made clear its reasons

 5   for imposing a life sentence.   Accordingly, the district court

 6   did not abuse its discretion in considering the terrorism

 7   enhancement.

 8                               CONCLUSION

 9        We have considered Salim’s remaining arguments and find them

10   to be without merit.   We therefore AFFIRM the judgment of the

11   district court.




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