Criminal – Sentence for ‘unusually heinous’ conduct is affirmed

Where the defendant harassed his former friend and her extended family for more than 16 months, his conduct was “unusually heinous, cruel, brutal, or degrading to the victim[s],” and it caused them to suffer extreme psychological injury, the district court did not clearly err in departing upward under the Guidelines.

Background

For more than 16 months, Joseph Bourabah engaged in a targeted harassment campaign against his former friend, WR, as well as members of her extended family. Bourabah was arrested in March 2023 and assigned a Federal Public Defender at his initial appearance.
On May 2, 2023, Bourabah was arraigned on the indictment. Six days later, his attorney filed a motion to withdraw as counsel. During a hearing on the motion to withdraw, Bourabah assured the magistrate judge that his problem had “nothing to do with . . . any of [the attorney’s] decision-making” but that their relationship was “far beyond repair” because of a “severe communication breakdown.” The court granted the motion but warned that it was extremely unlikely to grant similar relief again.

Anthony Gantous was appointed as Bourabah’s new counsel. Six days before trial was set to begin, Gantous filed a motion to withdraw as counsel. Following a hearing before the district judge, the court found that the problem was not a lack of communication; rather, Bourabah disagreed with Gantous’ trial strategy and recommendations. That was not enough to warrant a second withdrawal of representation.

On the first morning of trial, the court conducted voir dire and impaneled the jury. But over the lunch break, Bourabah decided to enter an *Alford *plea. Following the plea hearing, Bourabah sent letters to the court asking for various forms of relief but also including incriminating statements.

In letters dated April and May 2024, however, Bourabah shifted course, alleging he had entered his *Alford* plea only because of ineffective assistance of counsel and requesting to withdraw that plea. He also asked, yet again, to withdraw Gantous’s representation of him. The court denied Bourabah’s motion.

Counsel

Bourabah’s opening brief solely develops arguments as to the first motion. As such, he has waived any appeal of the court’s decision on the second motion.

This court finds no abuse of discretion in the district court’s denial of the first motion. The trial was set to begin in six days. This court has regularly held that motions to withdraw counsel brought on the eve of trial are untimely. Second, the court’s inquiry into Bourabah’s complaint about counsel was adequate. Third, the record supports the conclusion that Bourabah and his counsel did not experience a total lack of communication preventing an adequate defense.

Sixth Amendment

Bourabah also asserts that the district court’s denial of the motion to withdraw violated his “right to the effective assistance of counsel, pursuant to the Sixth Amendment.” Because the record does not conclusively show that Gantous acted objectively unreasonably in his representation ahead of trial, there was no *Strickland *error.

Alford plea

Bourabah appeals the denial of his motion to withdraw his *Alford *plea. This court considers six factors in determining whether to permit the withdrawal of a guilty plea: (1) whether the defendant has offered credible evidence that his plea was not knowing or not voluntary, (2) whether the defendant has credibly asserted his legal innocence,

(3) whether there has been a delay between the entering of the plea and the filing of the motion, (4) whether [the] defendant has had close assistance of competent counsel, (5) whether withdrawal will cause prejudice to the government and (6) whether it will inconvenience the court and waste judicial resources. All six factors support the district court’s decision to deny Bourabah’s motion.

Sentence

Bourabah argues that the district court committed procedural error in departing upward under the Guidelines. This court disagrees. First, at the time of sentencing, the court could depart upward “[i]f a victim or victims suffered psychological injury much more serious than that normally resulting from commission of the offense.” This court finds no clear error in its finding that Bourabah’s behavior caused the victims extreme psychological injury. The district court also did not clearly err in finding that “the defendant’s conduct was unusually heinous, cruel, brutal, or degrading to the victim[s].”

The court also finds no abuse of discretion in its findings regarding the sentencing factors set forth in 18 U.S.C. § 3553(a), and therefore affirms the substantive reasonableness of Bourabah’s sentence. Finally, while Bourabah challenges the court’s award of $22,489.52 in restitution to the victims, the government put forward evidence to support each of those expenses, and the district court did not abuse its discretion in finding that they were necessary results of the abuse that Bourabah inflicted upon his victims.

Affirmed.

United States v. Bourabah, Case Nos. 24-4331, 24-4577, April 29, 2026. 4th Cir. (Wynn), from EDVA at Norfolk (Gibney Jr.). Patricia A. Rene for Appellant. Erik S. Siebert and Matthew J. Heck for Appellee. VLW 026-2-159. 23 pp.

Full-Text Opinion

VLW 026-2-159