U.S. v. Kassar, 261

• Decision Date: 13 February 1995
• Docket Number: No. 261,D,261
• Citation: 47 F.3d 562
• Parties: UNITED STATES of America, Appellee, v. Hassan KASSAR, a/k/a Hassan Alkassar, Defendant-Appellant. ocket 94-1084.
• Court: U.S. Court of Appeals — Second Circuit

Page 562

47 F.3d 562

UNITED STATES of America, Appellee, v. Hassan KASSAR, a/k/a Hassan Alkassar, Defendant-Appellant.

No. 261, Docket 94-1084.

United States Court of Appeals, Second Circuit.

Argued Oct. 3, 1994.

Decided Feb. 13, 1995.

Marjorie M. Smith, New York City (The Legal Aid Soc., Federal Defender Div., Appeals Bureau, of counsel), for defendant-appellant.

Paul T. Weinstein, Asst. U.S. Atty. for the E.D.N.Y., Brooklyn, N.Y. (Zachary W. Carter, U.S. Atty. for the E.D.N.Y., David C. James, Asst. U.S. Atty. for the E.D.N.Y., of counsel), for appellee.

Before: MESKILL, MAHONEY, and McLAUGHLIN, Circuit Judges.

MAHONEY, Circuit Judge:

Defendant-appellant Hassan Kassar appeals from a judgment entered February 14, 1994 in the United States District Court for the Eastern District of New York, Reena Raggi, Judge, that convicted Kassar, following his guilty plea, of the use of unauthorized access devices in violation of 18 U.S.C. Sec. 1029, and sentenced him to a prison term of sixteen months, three years of supervised release, $34,600 in restitution, a $2,000 fine, and the mandatory special assessment. The court also ordered that at the completion of his sentence, Kassar be delivered to the custody of the Immigration and Naturalization Service (the "INS"), that he be deported, and that he not reenter the country illegally.

On appeal, Kassar challenges: (1) the district court's departure from a Criminal History Category ("CHC") level I to level III on the basis of Kassar's previous conviction for commission of the same crime in the United States District Court for the Eastern District of Tennessee; (2) the imposition of a fine and restitution in spite of a finding of indigence in Kassar's Presentence Investigation Report ("PSR"); and (3) the order that Kassar be deported.

For the reasons that follow, we affirm the judgment of the district court in all respects, except that we vacate and remand regarding the sentencing provision that delegated the determination of installments for the payment of the fine and restitution to the probation department.

Background

Kassar, a citizen of Syria and a nonresident alien, acted as an intermediary to place three-way calls among Israel, the United States, and Arab countries, using stolen credit card numbers. Kassar's customers placed calls to him at his Brooklyn apartment from Israel's Gaza Strip, and he forwarded these calls to their destinations in Arab countries. The value of the calls placed between June 3 and June 18, 1993 totalled $34,600. Kassar pled guilty to the charge of using unauthorized access devices with respect to these calls in violation of 18 U.S.C. Sec. 1029(a)(2).

In March 1993, Kassar had pled guilty to violating the same statutory provision in the United States District Court for the Eastern District of Tennessee. As in New York, Kassar had used stolen credit cards to place long distance telephone calls. Kassar waived his right to have a PSR prepared in the Tennessee case, and the court sentenced him immediately after accepting his guilty plea. Finding that a total offense level of eleven applied (requiring a sentence of eight to twelve months), the court departed downward, sentencing Kassar to thirty-six days time served and restitution in the amount of $66,122.68 (for which he was jointly and severally liable with a codefendant), on the understanding that Kassar would face deportation proceedings immediately. Within two weeks, however, Kassar gained his release from the INS by posting a $25,000 bond, and he has failed to pay the restitution ordered in that case. A deportation hearing has not yet taken place.

In sentencing Kassar in this case, the district court accepted the PSR's calculation of an offense level of ten. The court did not agree, however, with the PSR's recommendation that a CHC of I should apply. The court noted that Kassar's low CHC resulted from the Tennessee court's downward departure, which was granted on the "erroneous assumption" that Kassar would be deported. Calculating Kassar's CHC on the basis of the sentence that he would have received had the Tennessee court not departed downward, and considering that the New York crime was committed during what should have been a term of supervised release, the court determined that Kassar should receive four CHC "points" under USSG Sec. 4A1.1, resulting in a CHC of III. Accordingly, "looking at [Kassar's] real history," the court departed upward to CHC III.

The court also stated:

Separate and apart from that, there would be grounds for upward departure because of the similarity of the two crimes. That is something not taken into account with the single point, just as the guideline commentary indicates that it is appropriate sometimes when the same kind of crime is committed over and over again, for the court to consider propensity.

I would find that an independent grounds for upward departure. As I said, I might even consider it grounds for further departure.

But I want the record to be clear that on either basis, either the more accurate view of the simple felony history in Tennessee, or the fact that the two crimes are so similar, I would depart up to level three.

The court then sentenced Kassar to sixteen months imprisonment, the high end of the applicable ten to sixteen month range, and a three year term of supervised release.

Turning to whether a fine and order of restitution should be imposed, the court disregarded the PSR's determination that Kassar was indigent and accordingly unable to pay a fine, observing that:

I have no idea where your assets are. But I have every reason to think from the scheme that you conducted that you profited from it.

....

... I imposed the fine and the order of restitution--because I simply don't believe your statements that you don't have any money. You may not have any money in this country. But I do not believe that you were engaged in these schemes without profiting from them.

The court imposed a fine of $2,000 and restitution to AT & T in the amount of $34,600, both payable pursuant to a schedule "to be set by the probation department."

Finally, the judgment provided that following his sentence, Kassar "is to be delivered to the [INS] for deportation, is to be deported by the [INS], and ... may not re-enter the United States illegally."

This appeal followed. After oral argument at this appeal, we were advised by the government by letter dated October 11, 1994 that Kassar had completed his term of imprisonment on September 28, 1994, had been released to the custody of the INS for deportation proceedings, and had thereafter been released on a $15,000 bond posted by a surety.

Discussion

A. The Upward Departure in Criminal History Category.

Counsel have raised the issue whether Kassar's challenge to his term of imprisonment may be moot in light of his recent completion of that sentence. Kassar contends that his challenge is not moot, because his CHC calculation would be affected if he is ever convicted of another crime. See USSG Sec. 4A1.1(a) & (b) (imposing three CHC points for a prior sentence of more than thirteen months and two CHC points for a prior sentence of thirteen months or less but at least sixty days). We agree with Kassar that because of this collateral consequence, his challenge is not moot. See United States v. Chavez-Palacios, 30 F.3d 1290, 1293 (10th Cir.1994); United States v. Fadayini, 28 F.3d 1236, 1241 (D.C.Cir.1994); United States v. Dickey, 924 F.2d 836, 838 (9th Cir.), cert. denied, 502 U.S. 943, 112 S.Ct. 383, 116 L.Ed.2d 334 (1991). ¹

USSG Sec. 4A1.3 permits departure from a CHC if "reliable information indicates that the [CHC] does not adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood that the defendant will commit other crimes." In support of his contention that the district court erroneously departed upward from CHC I to III, Kassar first argues that had the Tennessee court not departed from a base offense level of eleven on the basis of his impending deportation, it might have done so by concluding that Kassar played a minor or minimal role in the Tennessee offense. Accordingly, he contends, Judge Raggi improperly used a base offense level of eleven in ascertaining what the Tennessee sentence should have been. The government responds that there is no basis to conclude that the Tennessee court deemed Kassar to be a minor or minimal participant in the Tennessee violation, ² and notes that the parties agreed at the Tennessee sentencing hearing that a base offense level of eleven applied.

Because the Tennessee sentencing hearing transcript is so brief, it is reasonable to conclude that the court's sentencing decision had been discussed with the parties off the record prior to the actual sentencing. Given that Kassar knew that the court would depart downward and sentence him to time served, he presumably had no reason to object to a finding that the appropriate base offense level was eleven, or to raise the issue whether he might qualify for relief as a minor or minimal participant. On the other hand, the offense conduct in both New York and Tennessee resulted from an identical modus operandi, on the basis of which the PSR in this case accorded Kassar a two-level enhancement for more than minimal planning, an enhancement that Kassar has conceded to be applicable to his Tennessee offense. See supra note 2. It is difficult to square this finding and concession with a claim of a minor or minimal role in the Tennessee offense.

In any event, Judge Raggi provided a sound alternative rationale in support of the upward departure. We review a district court's finding that a CHC does not adequately reflect the seriousness of a defendant's criminal history for clear error, see United States v. Sturgis, 869 F.2d 54, 57 (2d Cir.1989), and the scope of the upward departure for reasonableness. See United States v. Thomas, 6 F.3d 960, 967 (2d Cir.1993). Given that...