                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-21-2008

USA v. El-Homsi
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-5213




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                                                           NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT


                                 No. 06-5213


                      UNITED STATES OF AMERICA

                                        v.

                           KAMAL S. EL-HOMSI


                                Kamal El-Homsi,

                                       Appellant


                On Appeal from the United States District Court
                          for the District of New Jersey
                        (D.C. Criminal No. 05-cr-00465)
                 District Judge: Honorable Jerome B. Simandle


                Submitted Pursuant to Third Circuit LAR 34.1(a)
                               March 14, 2008

     Before: FUENTES, CHAGARES, and VAN ANTWERPEN, Circuit Judges.

                           (Filed: March 21, 2008)




                         OPINION OF THE COURT


VAN ANTWERPEN, Circuit Judge.
       Appellant Kamal El-Homsi appeals his December 20, 2006 sentence. He contends

that the District Court erred by improperly allowing the standards for a departure under

the United States Sentencing Guidelines (“Guidelines”) to control its decision whether to

grant a downward variance pursuant to its discretion under 18 U.S.C. § 3553(a)(1). El-

Homsi argues that his sentence is, therefore, unreasonable as a matter of law. For the

reasons set forth below, we will affirm the sentence.

                                             I.

       Because we write solely for the parties, we will only address those facts necessary

to our opinion.

       On June 8, 2005, the Grand Jury for the District of New Jersey returned a 13-count

indictment against El-Homsi, charging him with twelve counts of structuring financial

transactions to avoid reporting requirements, in violation of 31 U.S.C. § 5324(a)(3), and

one count of credit card fraud, in violation of 18 U.S.C. § 1029(a)(2). On August 3,

2006, pursuant to a plea agreement, El-Homsi pled guilty to one count of each charge.

       The Presentence Investigation Report (“PSR”) calculated an advisory Guidelines

range of 37 to 46 months’ imprisonment. During the sentencing hearing, neither El-

Homsi nor the Government argued for a departure from the recommended Guidelines

range. El-Homsi did, however, request a downward variance under 18 U.S.C. § 3553(a).1



       1
         During the sentencing hearing, neither El-Homsi nor the District Court explicitly
stated the specific § 3553(a) factor under which El-Homsi sought a variance based on his
compulsive gambling disorder. However, on appeal, El-Homsi asserts that he requested

                                             1
El-Homsi claimed such a variance was appropriate because the crimes at issue were, at

least in part, the result of his compulsive gambling disorder. In support of this argument,

El-Homsi presented testimony by Valerie C. Lorenz, Ph.D., Executive Director of the

Compulsive Gambling Center, who opined that El-Homsi would not have committed the

crimes for which he was being sentenced if not for his pathological gambling disorder.

       Although the District Court accepted that El-Homsi has a mild compulsive

gambling disorder, it rejected his request for a downward variance, and sentenced him to

37 months’ imprisonment, plus 3 years of supervised release, a sentence at the bottom of

the recommended Guidelines range. El-Homsi appeals from his sentence.

                                            II.

       The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. This

Court has appellate jurisdiction under 28 U.S.C. § 1291 and, for the purposes of

reviewing the sentence imposed, 18 U.S.C. § 3742(a).

       We review sentences for reasonableness under an abuse-of-discretion standard.

Gall v. United States, 128 S. Ct. 586, 594 (2007).

                                            III.



the variance under § 3553(a)(1), based on “the nature and circumstances of the offense
and the history and characteristics of the defendant.” Appellant’s Br. at 14. El-Homsi’s
failure to identify at sentencing the specific § 3553(a) grounds for varying from the
advisory Guidelines range is inconsequential for the purposes of our analysis. We do
note, however, that we have repeatedly emphasized the obligation of counsel to “clearly
place the sentencing grounds they are raising on the record at the time of the sentencing
hearing.” United States v. Dragon, 471 F.3d 501, 505 (3d Cir. 2006).

                                             2
       On appeal, El-Homsi argues that his sentence is unreasonable, and therefore

should be vacated. More specifically, El-Homsi argues that the District Court applied the

Guidelines standards for a downward departure based on reduced mental capacity, instead

of properly exercising its discretion under § 3553(a), to decide whether to grant his

request for a downward variance. We reject this argument and will affirm the District

Court’s judgment of sentence.

       Recently, in Gall, the Supreme Court reiterated the process a district court must

follow in sentencing a defendant. 128 S. Ct. at 596-97. Although United States v. Booker,

543 U.S. 220 (2005), held that the Sentencing Guidelines are advisory only, they remain

“the starting point and the initial benchmark” in sentencing decisions. Gall, 128 S. Ct. at

596; see also United States v. Cooper, 437 F.3d 324, 331 (3d Cir. 2006) (the Guidelines

are “a natural starting point for the determination of the appropriate level of punishment

for criminal conduct”). Accordingly, a district court must begin by calculating the

applicable Guidelines range. Gall, 128 S. Ct. at 596. This Court has explained that, as

part of calculating the applicable Guidelines range, the district court must “formally rule

on the motions of both parties and state on the record whether [it is] granting a departure,

and how that departure affects the Guidelines calculation, and take into account our

Circuit’s pre-Booker case law, which continues to have advisory force.” United States v.

Wise, --- F.3d --- (3d Cir. 2008) (quoting United States v. Gunter, 462 F.3d 237, 247 (3d

Cir. 2006)) (internal quotation marks and citations omitted). Finally, after giving each



                                             3
party the opportunity to argue for the sentence it deems appropriate, the district court

must exercise its post-Booker discretion in considering all of the § 3553(a) factors to

determine the appropriate sentence. Gall, 128 S. Ct. at 596; see also Gunter, 462 F.3d at

247.

       Our appellate review of the reasonableness of a district court’s sentence focuses on

whether the court abused its discretion in imposing the chosen sentence. Gall, 128 S. Ct.

at 597. Our inquiry has two steps. First, we must determine whether the district court

committed any significant procedural error in arriving at its decision, such as “failing to

calculate (or improperly calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen sentence – including an

explanation for any deviation from the Guidelines range.” Id.

       Next, if the district court committed no significant procedural error, we review the

sentence for substantive reasonableness. Id. In conducting this review, we take into

account the “totality of the circumstances.” Id. We may not reverse the district court

simply because we would have imposed a different sentence. Id.

       Turning to our review of the sentence at hand, we note that El-Homsi claims what

is essentially a procedural error on the part of the District Court. He argues that the

District Court erred in the last step of the sentencing process, by improperly allowing the

Guidelines standard for a departure under U.S.S.G. § 5K2.13 to limit its discretion under



                                              4
§ 3553(a)(1) to grant a variance based on his compulsive gambling disorder.2 Under the

Guidelines, a district court may grant a departure pursuant to § 5K2.13 only where: “(1)

the defendant committed the offense while suffering from a significantly reduced mental

capacity; and (2) the significantly reduced mental capacity contributed substantially to the

commission of the offense.” During the sentencing hearing, the District Court stated that

it would require “not only the verified existence of the condition itself, but [also] a causal

nexus that resulted in a significantly diminished capacity of the defendant at the time

when he was committing the crime” to grant the requested variance for compulsive

gambling disorder. App. at 242. El-Homsi contends that the similarity of this statement

to the language of the departure standard for reduced mental capacity indicates that the

District Court considered its discretion under § 3553(a) constrained by the enumerated

grounds for a departure under § 5K2.13. We disagree.

       The District Court committed no procedural error. It began the sentencing by

calculating the correct advisory Guidelines range. Neither party requested a departure

under the Guidelines. Accordingly, the Court moved on to evaluate the § 3553(a) factors.

Read as a whole, the Court’s statements at sentencing indicate that it clearly understood




       2
         This Court draws a distinction between a “variance” from a Guidelines range and
a “departure” from a Guidelines range. United States v. Vampire Nation, 451 F.3d 189,
195 (3d Cir. 2006). A court grants a “departure” from the Guidelines range based on
specific Guidelines provisions that authorize such changes. See Gunter, 462 F.3d at 247
n.10. A court grants a “variance” from the Guidelines range based on Booker and the
sentencing court’s discretionary consideration of the § 3553(a) factors. Id.

                                              5
the distinction between a departure pursuant to the Guidelines and a variance based on its

discretion under § 3553(a). In fact, as emphasized by the Government, the District Court

explicitly mentioned the distinction several times during the sentencing hearing. See, e.g.,

App. at 244-45 (“[T]here is no departure sought in this case under the Guidelines. What

is sought is an adjustment for variance under 3553”); App. at 92 (“[W]hat I’m considering

then is the argument for a Booker variance applying other 3553(a) factors”); App. at 240

(“The defendant’s second point for a variance under 3553(a) arises from the defendant’s

compulsive gambling disorder”). We also note that the District Court stated its reasons

for denying El-Homsi’s variance request during its discussion of all of the § 3553(a)

factors.

       The fact that the District Court, in considering the § 3553(a) factors, used language

similar to that used in a Guidelines departure standard does not dictate a contrary result.

It merely indicates that the District Court required, before exercising its discretion to

grant a variance under § 3553(a)(1), that El-Homsi prove his compulsive gambling

disorder caused the crimes at issue. To vacate El-Homsi’s sentence based solely on the

similarity of the departure language in the Guidelines and the District Court’s language

would be to elevate form over substance, an approach to sentencing that this Court has

rejected repeatedly. See Dragon, 471 F.3d at 506.

       El-Homsi does not challenge the substantive reasonableness of his sentence on

appeal. Because we can discern no procedural or substantive error related to El-Homsi’s



                                              6
sentence, we will affirm.

                                            IV.

       For the above reasons, we will affirm the District Court’s sentence.




                                             7
