U.S. v. Husein

• Citation: 478 F.3d 318
• Decision Date: 02 March 2007
• Docket Number: No. 05-2548.,05-2548.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Fadya HUSEIN, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

478 F.3d 318

UNITED STATES of America, Plaintiff-Appellant, v. Fadya HUSEIN, Defendant-Appellee.

No. 05-2548.

United States Court of Appeals, Sixth Circuit.

Argued: February 2, 2007.

Decided and Filed: March 2, 2007.

ARGUED: Patricia G. Gaedeke, Assistant United States Attorney, Detroit, Michigan, for Appellant. Carole M. Stanyar, Detroit, Michigan, for Appellee. ON BRIEF: Jennifer Peregord Sinclair, Assistant United States Attorney, Detroit, Michigan, for Appellant. Carole M. Stanyar, Detroit, Michigan, for Appellee.

Before: MARTIN, COLE, and GILMAN, Circuit Judges.

OPINION

RONALD LEE GILMAN, Circuit Judge.

Fadya Husein pled guilty to federal charges relating to her role in the distribution of 763 pills of ecstasy, a controlled substance. A probation officer calculated her advisory Guidelines range to be between 37 and 46 months in prison. Prior to sentencing, Husein moved the district court to grant a downward departure based on extraordinary family circumstances. Husein alleged that her father was totally incapacitated due to the effects of several strokes that he had recently suffered, and that the round-the-clock care that she provided both to him and to her three younger minor siblings was "irreplaceable." A court-ordered home visit by Husein's probation officer subsequently confirmed these allegations.

Acting pursuant to United States Sentencing Guidelines (U.S.S.G.) §§ 5H1.6 and 5K2.0, as well as 18 U.S.C. § 3553(a), the district court concluded that Husein's family circumstances were in fact extraordinary, and therefore granted her motion for a downward departure. The result was a noncustodial sentence of 3 years' supervised release, which included an initial term of 270 days of home confinement. As a formality, the district court also imposed a one-day term of custodial imprisonment, but Husein was given credit for already having served that time.

The government argues on appeal that certain post-sentencing discoveries and developments undermine the basis for Husein's sentence and, in the alternative, that even based on the facts in the record alone, the departure granted by the district court was an abuse of discretion and/or unreasonable in light of Booker. For the reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND

A. Factual background

In August and September of 2004, Fadya Husein participated in two transactions involving the sale of ecstasy near her home in Dearborn, Michigan. She was physically present for both transactions, which took place in or around the cars of the other individuals who were indicted along with her. Husein was neither a buyer nor a seller in either transaction, and she was not the source of the ecstasy pills exchanged. But she did help to arrange the meetings by putting Mohammed Nasser, "the number one Defendant in this case" according to the government, in contact with the other indicted individuals. In her guilty plea, Husein admitted these basic facts.

Husein is 25 years of age and the oldest of five children. She has three brothers and one sister, who were 21, 15, 11, and 17 years of age, respectively, at the time of sentencing. All of the siblings live together in Dearborn, Michigan, with the exception of Husein's eldest brother Fady, who resides in Florida. Husein married Tarek Hussein in 2001, but they separated in 2003 and have had no contact since. She stayed in school through the eleventh grade and is currently pursuing a GED. Husein works as a packager at a factory in Sterling Heights, Michigan. Until her father's death in February of 2006, she and her 46-year-old mother had alternated shifts at the factory to ensure that at all times an adult would be at home to attend to her father.

This appeal principally concerns the healthcare needs of Husein's father, as well as the overall financial condition of the Husein household, at the time of sentencing. The district court provided a thorough summary of the relevant facts during the October 2005 sentencing hearing:

The Defendant's father suffered a stroke seven years ago, after which various organs began to fail. He was placed on dialysis to treat chronic kidney failure. Mr. Husein also suffers from coronary artery disease, diabetes, hypertension and cardiomyopathy. Several weeks ago he suffered another stroke. He was taken to the hospital on September 14th due to complications from renal failure, dementia and fluid on the brain. These conditions, according to Mr. Weidemeyer's [Husein's probation officer] visit to the family on September 15th, 2005 have left Mr. Husein paralyzed on his right side, unable to use the restroom without assistance, unable to walk, barely able to talk. He is to be fed via a feeding tube attached to his stomach. During the home visit, Mr. Weidemeyer observed Mr. Husein's bedroom which contained a hospital bed, a breathing machine and a feeding machine.

The Defendant resides at home with her parents and three minor siblings. Per Defendant's counsel and per the observation of Mr. Weidemeyer, Mr. Husein is completely incapacitated and relies on the care of others.

Mr. Husein does not receive financial assistance from Social Security. Therefore, Defendant says that she and her mother provide for all of the family's financial and other needs. Defendant and her mother alternate working shifts at a factory to insure that an adult is always home to attend to Mr. Husein and the minor children.

Additionally, Defendant Husein is the only member of the household with a valid driver's license and says that she is responsible for transporting her siblings as necessary and performing all other functions that require an automobile. Defendant also says that she helps the youngest child with homework and assists in cooking, cleaning and shopping. There is an older brother who has lived outside of the state of Michigan and per investigation does not assist the family financially or otherwise.

. . .

The Court wants to place more in the record of Mr. Husein — Mr. Weidemeyer's findings from his September 15th home visit, where it appears that Miss Husein's day begins as early as six a.m. and ends at 11 p.m. each day. At six [a.m.], she and her mother work or depart for work at [Volt] Services in Sterling Heights. At 10 a.m., Miss Husein drives home everyday to administer her father's medicine and feed him through his feeding tube. I believe she returns to work at 2:30 [p.m.], picks up her younger siblings from middle school, drives them home and returns to work again. At 4:30 [p.m.], the Defendant drives her mother home from work and then returns to work until 11 p.m. She reports that she works approximately 65 hours per week and that she's responsible for 50% of the family income; that all of her income is used to pay the home mortgage and the mortgage is in her name. The 50% — she provides 50% of the family income and [t]he income is used to pay the mortgage, utilities, food and supplies for her siblings.

B. Procedural background

A federal grand jury charged Husein in a three-count indictment that also named Nasser, Mamoon Sufyan, Emanuel Bobic, and Ibrahim Abdel. Count One charged Husein with conspiracy to possess and distribute ecstasy, a controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Counts Two and Three charged Husein and the other named defendants with unlawfully aiding and abetting one another in the distribution of ecstasy, in violation of 21 U.S.C. §§ 841(a)(1) and 18 U.S.C. § 2. Husein pled guilty to all three counts. Prior to sentencing, she filed a motion requesting that the district court grant a downward departure in light of Husein's extraordinary family circumstances, specifically the condition of her dying father. The government opposed the motion, arguing, among other things, that Husein and the care that she provided to her father were not "irreplaceable."

A probation officer prepared a Presentence Report (PSR) in which he calculated Husein's advisory Guidelines range to be between 37 and 46 months in prison. This was based on a total offense level of 21, which reflected a 3-level reduction for acceptance of responsibility. Husein was not assessed any criminal-history points. In September of 2005, after having reviewed Husein's motion for a downward departure, the district court requested that the probation officer visit Husein's home for a second time and report on her family's circumstances, especially her father's health. The probation officer reported his findings in a letter that he presented to both parties at the beginning of Husein's sentencing hearing on October 5, 2005. Part I.A. above accurately reflects the relevant portions of the probation officer's findings.

During the hearing, the district court made several rulings both for and against Husein. The court overruled Husein's objection to the PSR's drug-amount calculation and rejected Husein's argument that she was entitled to an additional multi-level adjustment for playing only a minor role in the offenses. But the bulk of the hearing was devoted to Husein's motion for a downward departure based on family circumstances. After meticulously reviewing Husein's family circumstances in light of relevant caselaw, the district court concluded that Husein "has presented sufficient facts to warrant a departure under [U.S.S.G. §] 5H1.6, and the Court will grant the [defendant's] motion." The court based this conclusion in large part on its earlier finding that Husein was irreplaceable to her family:

Assuming that the Defendant's representations here are true, the Court finds that she has established that she is personally responsible to a significant extent for the physical and financial support of her father. She also provides significant financial and other support to her mother and minor siblings. It appears that there is no one else available to fill Defendant's role if she were incarcerated.

(Emphasis added.)

The district court then imposed a...