U.S. v. Hamdi

• Citation: 432 F.3d 115
• Decision Date: 12 December 2005
• Docket Number: No. 03-1307-CR.,03-1307-CR.
• Parties: UNITED STATES of America, Appellee, v. Ali HAMDI, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

432 F.3d 115

UNITED STATES of America, Appellee, v. Ali HAMDI, Defendant-Appellant.

No. 03-1307-CR.

United States Court of Appeals, Second Circuit.

Argued: January 3, 2005.

Decided: December 12, 2005.

Donna R. Newman, Law Office of Donna R. Newman, New York, N.Y. for Defendant-Appellant.

Tracy Lee Dayton, Assistant United States Attorney (Roslynn R. Mauskopf, United States Attorney, Eastern District of New York, on the brief; Emily Berger, Assistant United States Attorney, of counsel), Brooklyn, N.Y. for Appellee.

Before: FEINBERG, WINTER, and SOTOMAYOR, Circuit Judges.

SOTOMAYOR, Circuit Judge.

Defendant-appellant Ali Hamdi appeals from an April 9, 2003 judgment of sentence imposed by the United States District Court for the Eastern District of New York (Trager, J.), following his plea of guilty pursuant to a plea agreement to one count of knowingly producing without lawful authority false identification documents in violation of 18 U.S.C. §§ 1028(a)(1) and 1028(c)(3)(A). We hold that Hamdi's completion of his sentence and subsequent removal from the United States do not render his appeal moot. We also hold that a statement in Hamdi's plea agreement that "[t]he defendant's sentence is governed by the United States Sentencing Guidelines" did not constitute a waiver of Hamdi's right to seek a remand under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and United States v. Crosby, 397 F.3d 103 (2d Cir.2005).

BACKGROUND

In June of 2002, the Federal Bureau of Investigation (FBI) investigated the production of fraudulent visas and identification documents at Hamdi's Brooklyn, New York, translation bureau and an associated travel agency. In connection with that investigation, Hamdi produced two fake Yemeni birth certificates for a confidential informant. After the FBI arrested Hamdi, it searched his place of business and discovered 106 purported Yemeni birth certificates that were blank. Following his indictment on multiple counts, Hamdi entered into a plea agreement with the office of the United States Attorney for the Eastern District of New York (the "Eastern District") in which he agreed to plead guilty to one count of knowingly producing without lawful authority false identification documents in violation of 18 U.S.C. §§ 1028(a)(1) and 1028(c)(3)(A), exposing himself to a statutory sentencing range of zero to fifteen years' imprisonment under § 1028(b)(1).

The plea agreement that Hamdi signed recited, inter alia, that "[t]he defendant's sentence is governed by the United States Sentencing Guidelines." In the same paragraph, the agreement stated that "[b]ased on the information known to the [government] at this time, the [government] estimates the likely adjusted offense level under the Sentencing Guidelines to be level 14." That calculation was based on the government's estimate, which is not explained in the record, that the offense involved between 25 and 99 false identification documents, yielding a six-level enhancement above the base offense level pursuant to U.S.S.G. § 2L2.1(b)(2)(B).¹ The government's estimated offense level resulted in a sentencing range of 15 to 21 months' imprisonment for a defendant, such as Hamdi, in criminal history category I. See U.S.S.G. Sentencing Table, Ch. 5, pt. A. The plea agreement warned that "[t]he Guidelines estimate set forth [above] is not binding on [the United States Attorney], the Probation Department or the Court." Hamdi's plea agreement also contained an appeal waiver providing that Hamdi would not appeal or otherwise challenge his conviction or sentence "in the event that the Court imposes a term of imprisonment of 21 months or below . . . . even if the Court employs a Guidelines analysis different than set forth" in the plea agreement.

On January 14, 2003, Hamdi pled guilty. On April 9, 2003, the district court sentenced Hamdi under the Guidelines principally to twenty-four months' imprisonment and two years' supervised release. The district court based this sentence on the Guidelines calculation set forth in the presentence report ("PSR"). The PSR concluded that the offense involved 108 false identification documents: the two that Hamdi prepared for the confidential informant and the 106 blanks recovered by the FBI. In place of the government's estimated six-level enhancement under U.S.S.G. § 2L2.1(b)(2)(B), the district court imposed a nine-level enhancement for an offense involving 100 documents or more pursuant to § 2L2.1(b)(2)(C).²

While serving his sentence, Hamdi, a native and citizen of Tunisia, was placed in removal proceedings and ordered removed from the United States on the ground that he failed to comply with the terms of his nonimmigrant visa status. See 8 U.S.C. § 1227(a)(1)(C)(i). Hamdi has completed his criminal sentence and is now outside the United States.

DISCUSSION

Hamdi raises only one issue on this appeal.³ In his initial brief and at oral argument, which took place prior to the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), he argued, relying on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), that the district court violated his Sixth Amendment right to a jury trial by enhancing his offense level under U.S.S.G. § 2L2.1(b)(2)(C) based on the number of documents involved in his criminal conduct without the fact of the document quantity having been admitted by him or proved to a jury beyond a reasonable doubt. After Booker was decided but before our decision in United States v. Crosby, 397 F.3d 103 (2d Cir.2005), Hamdi amended his position by submitting an additional brief arguing that he is also entitled to remand and resentencing because the district court sentenced him under Guidelines it regarded as mandatory. We have since categorized this kind of claim under Booker as one of "procedural error." See Crosby, 397 F.3d at 114-15. Hamdi acknowledges that his appeal is subject to plain error analysis because he did not object to his sentence on Sixth Amendment grounds below. See Fed.R.Crim.P. 52(b); Crosby, 397 F.3d at 117-18.

I.

Because Hamdi has completed his sentence, we first consider whether his appeal presents a live case or controversy within the meaning of Article III of the Constitution. See U.S. Const. Art. III, § 2, cl. 1. In order to satisfy the case or controversy requirement, Hamdi "must have suffered, or be threatened with, an actual injury traceable to the [respondent] and likely to be redressed by a favorable judicial decision." Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (citation and internal quotation marks omitted). Hamdi does not seek to withdraw his guilty plea, but challenges only the length of his sentence, which he has already served. His challenge to the length of his completed sentence will not satisfy the justiciability requirement of Article III unless prevailing on appeal would relieve him of some concrete and identifiable collateral effect of that sentence. See id. at 7, 118 S.Ct. 978; United States v. Suleiman, 208 F.3d 32, 36 (2d Cir.2000); United States v. Mercurris, 192 F.3d 290, 293 (2d Cir.1999).

Hamdi argues that his appeal is not moot because a reduction in his sentence would have a substantial impact on his ability to obtain a discretionary waiver of inadmissibility under § 212(d)(3) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(d)(3). That provision grants the Attorney General discretion to admit certain otherwise inadmissible aliens as temporary, nonimmigrant visitors. See id. The parties agree that if Hamdi were to seek to return to the United States as a nonimmigrant visitor, the instant conviction qualifies as a "crime involving moral turpitude" that would bar his admission under INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I). This ground of inadmissibility, however, may be waived under § 212(d)(3). See 8 U.S.C. § 1182(d)(3)(A). In In re Hranka, 16 I. & N. Dec. 491 (BIA 1978), the Board of Immigration Appeals ("BIA") held that the exercise of the Attorney General's discretion under § 212(d)(3) is informed by

essentially three factors . . . weigh[ed] together[:] The first is the risk of harm to society if the applicant is admitted. The second is the seriousness of the applicant's prior immigration law, or criminal law, violations, if any. The third factor is the nature of the applicant's reasons for wishing to enter the United States.

Id. at 492. Hamdi correctly notes that the length of his sentence is material to the Attorney General's assessment of both the seriousness of his criminal conviction and the risk of harm to society posed by his admission,⁴ and he argues that prevailing on this appeal and receiving the potential to secure a reduced sentence will therefore substantially increase his chances of obtaining admission to the United States in the future.⁵

While it is true that a material reduction in sentence may not always reflect a judgment about the seriousness of the underlying criminal conduct and the risk that a defendant will re-offend, that is at least a primary goal of post-Booker sentencing. See 18 U.S.C. § 3553(a)(2)(A), (C) (stating that sentences should "reflect the seriousness of the offense" and "protect the public from further crimes of the defendant"). Prevailing on this appeal would therefore give Hamdi a chance to persuade the district court that his conduct and character did not merit a sentence of twenty-four months. In light of the BIA's practice in prior cases, see supra note 4, a non-trivially lower sentence would bear on two of the three relevant criteria under Hranka for a § 212(d)(3) waiver and would likely be interpreted by the Attorney General as indicative of less serious conduct, and of a lower risk of harm to society were Hamdi to be readmitted, than Hamdi's criminal record currently...