360-month racketeering resentence not unreasonable

Where a defendant convicted on numerous racketeering counts was originally sentenced to 570 months’ in prison, but one count constituting a 360-month component was later vacated, the new 360-month sentence was not unreasonable given his role in the offenses and § 3553(a) factors.

Background

In 1998, Amar Khalid Abed was sentenced to 570 months’ imprisonment following his conviction on numerous counts of racketeering and related offenses. Over 20 years later, after one count constituting a 360-month component of his sentence was vacated because of a change in the law, he was resentenced to 360 months’ imprisonment, which was an upward variance from the recommended sentencing guidelines range of 188 to 235 months’ imprisonment.

Ex Post Facto

When Abed was first sentenced, his guidelines sentencing range of 188 to 235 months’ imprisonment was mandatory, but after he was sentenced, that range became advisory, and the district court, relying on this, imposed a variance sentence above that range at his resentencing. Yet, according to Abed, the Ex Post Facto Clause should have prevented the district court from applying United States v. Booker, 543 U.S. 220 (2005), fully because it required the court to treat 235 months’ imprisonment — the top of his guidelines range — as the upward limit for his resentencing. Abed’s argument against the retroactive application of Booker, however, has been “universally rejected by the federal courts,” including this one. Abed’s ex post facto challenge to his upward variance sentence is rejected.

Due process

Abed next contends that the district court’s imposition of a sentence on his remaining seven convictions that is greater than the sentence he received on those convictions at his original sentencing violated the Due Process Clause because the greater sentence “effectively punish[ed]” him for successfully challenging his § 924(c) conviction. Comparing Abed’s aggregate sentence in 1998 with his aggregate sentence in 2020, however, it is obvious that his term of incarceration did not increase; instead, it substantially decreased from 570 to 360 months’ imprisonment.

Law of the case

Abed notes that at his original sentencing, the district court denied the government’s motion for an upward departure, and, based on this, he argues that “[t]he original sentencing court’s adoption of the PSR’s conclusion that the guidelines do in fact account for all of Mr. Abed’s criminal conduct … is binding and cannot be revisited.” In making this argument, however, Abed conflates the original sentencing court’s denial of the government’s motion for an upward departure with the new sentencing court’s decision to impose an upward variance, which are “two distinct sentencing options.”

Further, that the original sentencing court concluded that a sentence within an effective total guidelines range of 548 to 595 months’ imprisonment was “appropriate” clearly cannot preclude the resentencing court from determining that a sentence within the now-advisory range of 188 to 235 months’ imprisonment would be inadequate. Most decisively, however, Abed’s law of the case argument is at odds with the Supreme Court’s decision in Pepper v. United States, 562 U.S. 476 (2011).

Sentence

Abed contends next that “the sentence imposed in this case was unreasonable …  because it created an unwarranted sentencing disparity between [him] and other similarly situated defendants.” However the district court explained that it was intentionally ensuring that Abed received the highest sentence of those involved in the racketeering enterprise precisely because he “was the most culpable.” As for Abed’s claim that the sentence creates an unwarranted sentencing disparity between himself and similarly situated offenders nationwide, the evidence Abed points to for this argument hardly presents “an apples-to-apples comparison.”

Abed contends also that the district court’s consideration of his military history and diagnosis of severe PTSD was inadequate. The district court ultimately concluded that notwithstanding Abed’s military history and PTSD, the time-served sentence that Abed was requesting would not be sufficient to satisfy the § 3553(a) factors given the “nature and circumstances of the offense” and Abed’s relative culpability as compared to other members of the enterprise. In view of this record, this court cannot conclude that the district court erroneously failed to take Abed’s military service and PTSD into account.

Next, while the court agrees that it would have been improper had the district court used Abed’s original sentence — rather than his advisory sentencing range — as an initial benchmark at his resentencing, from its review of the sentencing proceeding, it is  satisfied that it did not do so. In addition, Abed’s argument that the district court failed to adequately explain why it was imposing a variance sentence is unpersuasive.

Finally, Abed contends that it was substantively unreasonable for the court to have imposed a sentence of 360 months’ imprisonment given the combination of his mitigating evidence regarding his combat service and PTSD and his extensive rehabilitation evidence regarding his transformation during his more than 20 years in custody. While reasonable jurists could perhaps have balanced those competing factors differently and arrived at a different result, this court cannot conclude that this is “one of the rare cases where . . . the sentence imposed by the district court was substantively unreasonable in light of the § 3553(a) factors.”

Affirmed.

United States v. Abed, Case No. 20-4162, June 29, 2021. 4th Cir. (Niemeyer), from WDVA at Roanoke (Urbanski). Christine Madeleine Lee for Appellant. Jonathan Patrick Jones for Appellee. VLW 021-2-246. 26 pp.