United States v. Albaadani

• Decision Date: 13 July 2017
• Docket Number: No. 16-6668,16-6668
• Citation: 863 F.3d 496
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Fahd Saleh ALBAADANI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

863 F.3d 496

UNITED STATES of America, Plaintiff-Appellee,

v.Fahd Saleh ALBAADANI, Defendant-Appellant.

No. 16-6668

United States Court of Appeals, Sixth Circuit.

Decided and Filed: July 13, 2017

ON BRIEF: Laura E. Davis, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee, for Appellant. Jay Woods, UNITED STATES ATTORNEY'S OFFICE, Chattanooga, Tennessee, for Appellee.

Before: DAUGHTREY, MOORE, and KETHLEDGE, Circuit Judges.

MOORE, J., delivered the opinion of the court in which DAUGHTREY, J., joined. KETHLEDGE, J. (pp. 506–07), delivered a separate dissenting opinion.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Defendant-Appellant Fahd Saleh Albaadani, who was born in Yemen, was sentenced to nine months of imprisonment and one year of supervised release for tampering with a GPS ankle monitor in violation of 18 U.S.C. § 1361 and 8 U.S.C. § 1253(b). R. 65 (Judgment at 1–3) (Page ID #763–65). Albaadani has appealed, arguing that his sentence was "based ... on the impermissible factors of Mr. Albaadani's gender and national origin." Appellant's Br. at 20. Although we agree that some of the district court's comments, taken out of context, could appear to be influenced by Albaadani's national origin, the district court's explicit and complete reliance on several serious threats and photographs attributed to Albaadani gives us confidence that the sentence, viewed as a whole, did not create the appearance of having been based on gender or national origin. Therefore, we AFFIRM Albaadani's sentence.

I. BACKGROUND

Albaadani came to the United States via Saudi Arabia when he was seventeen years old. R. 53 (PSR ¶¶ 39, 41) (Page ID #683).¹ On June 26, 2015, an order of removal was issued against him because his former wife ceased to sponsor his request to be a citizen. R. 55 (Gov't's Sentencing Mem. at 1) (Page ID #689); R. 71 (Trial Tr. at 78–82) (Page ID #867–71). In fact, Albaadani wants to return to his birthplace, but because Yemen was in a state of "war and political conflict," no travel documents have been issued. R. 53 (PSR ¶¶ 5, 41) (Page ID #679, 684). Unable to return to Yemen, but with an order of removal issued against him, Albaadani was detained for "approximately six months," R. 71 (Trial Tr. at 20, 126) (Page ID #809, 915), after which he was released subject to monitoring with a GPS ankle monitor, R. 53 (PSR ¶ 5) (Page ID #679). Following a period of time living in San Francisco, California, Albaadani was approved for relocation to Chattanooga, Tennessee on March 15, 2016. Id. ¶ 6 (Page ID #679).

Around the time when Albaadani relocated, the Immigration and Naturalization Service received a tamper alert on Albaadani's ankle monitor. Id. Christopher Purdy, an enforcement and removal officer ("ERO"),² followed up on this alert by calling Albaadani. Id. ¶ 7 (Page ID #679); R. 71 (Trial Tr. at 24, 95) (Page ID #813, 884). Purdy instructed Albaadani to report to an Enforcement and Removal Operations office in Gadsden, Alabama, R. 71 (Trial Tr. at 24, 96) (Page ID #813, 885), which is approximately ninety miles south of Chattanooga, see Google Maps, https://www.google.com/maps/ (last visited June 28, 2017). Albaadani refused. Purdy claims that Albaadani "became increasingly verbally aggressive towards [Purdy]," told Purdy to "fuck off," and said that he would "[k]ick [Purdy's] ass." R. 71 (Trial Tr. at 27–28) (Page ID #816–17). Albaadani denied that he was frustrated on the call. Id. at 98 (Page ID #887). He also denied making any of the statements that Purdy attributed to him, claiming that he did not recognize the caller and made only one statement: "[N]ext week from now I have to see my deportation officer ... and I have to discuss this problem with him.... If he gives me [an] order to go to Nashville, I will go to Nashville.... If I have to go to Nashville every two weeks, I'm going to have to go back to California." Id. at 97–98 (Page ID #886–87). On May 9, 2016, Albaadani was arrested and detained once more. R. 53 (PSR ¶ 7) (Page ID #679).

A grand jury charged Albaadani with threatening a federal official in violation of 18 U.S.C. § 115 (Count One), willfully injuring and committing a depredation against federal government property (i.e., the ankle monitor) in violation of 18 U.S.C. § 1361 (Count Two), failing to comply with the terms of release under supervision in violation of 8 U.S.C. § 1253(b) (Count Three), and transmitting a threat in interstate commerce in violation of 18 U.S.C. § 875(c) (Count Four). R. 25 (2d Superseding Indictment) (Page ID #159–63). At trial, Albaadani admitted that he took off the ankle monitor, R. 71 (Trial Tr. at 94–95, 110) (Page ID #883–84, 899), which Purdy estimated would cost under $10 to repair, id. at 11–12 (Page ID #800–01).

With respect to Counts One and Four, the government argued that there were several instances in which Albaadani made threats to federal officers and others. First, there was the aforementioned phone call with Officer Purdy. The government also pointed to another incident, in which Albaadani allegedly said "I don't fuck with guns. I fuck with bombs" at an Intensive Supervision Appearance Program ("ISAP") office in San Francisco. Id. at 101–02 (Page ID #890–91). Albaadani denied making this statement. Id. at 102 (Page ID #891). In another instance, Albaadani left a voicemail with an employee at a car dealership, in which Albaadani said, "I will kill somebody" and "mother fucker." Id. at 129–35 (Page ID #918–24). Albaadani acknowledged that he left the voicemail, id. at 135 (Page ID #924), but he explained that he left it out of frustration because he believed that the FBI hacked into his car, causing him to lose control and nearly crash into an 18-wheeler. Id. at 134 (Page ID #923).

The jury ultimately convicted Albaadani of Counts Two and Three. R. 49 (Verdict Form) (Page ID #643). He was acquitted of Counts One and Four, regarding threatening a federal officer.

Albaadani's guideline imprisonment range was zero to six months. R. 53 (PSR ¶ 49) (Page ID #684). Prior to sentencing, the government filed a motion for upward departure, pointing to Albaadani's history of making threats and his inability to make "himself ... amenable to supervision." R. 55 (Gov't's Sentencing Mem. at 7) (Page ID #695). It requested that the district court sentence Albaadani to the statutory maximum of twenty-four months of imprisonment. Id. at 7, 9 (Page ID #695, 697). In support, the government elaborated on the incident between Albaadani and ERO personnel in San Francisco using "[t]he defendant's statements to ERO personnel [that] were captured in a database." Id. at 2 (Page ID #690). According to the database entry, Albaadani told an officer that "[h]e doesn't f* *k with guns, but he f* *ks with bombs." Id. The entry also stated that "[n]o significant security concern has been identified at this time." Id. at 2–3 (Page ID #690–91).

The government noted another incident at the same office several months later. The database entry for that incident states that Albaadani "reported to the ISAP office to follow up on a tracker strap tamper alert that occurred on 2/19/16." Id. at 3 (Page ID #691). The entry continued, "The participant was overly rude to all Case Specialist[s] when he arrived, complaining ... that he had been waiting 20 minutes to be seen." Id. The entry indicated that Albaadani ultimately "stormed out of the office," stating along the way, "I do not care no more, I know what you guys do, you think you are ICE, but me and my friend are ISIS." Id.

In addition to the reported confrontations between Albaadani and law enforcement, the government elaborated on the incident with the car dealership. The government claimed that after leaving the aforementioned voicemail, Albaadani "returned to the car dealership and confronted the employee directly [,] stat[ing] that the employee had ‘made [him] late for a $120,000.00 drug deal’ and that the defendant was going to make sure someone came to kill the employee." Id. at 4 (Page ID #692).

Finally, the government pointed to several photos on Albaadani's Facebook page depicting Albaadani holding various firearms. Id. at 5–6 (Page ID #693–94). Two photos include the caption, "Just to keep the game going." R. 55 (Gov't's Sentencing Mem. at 6–7) (Page ID #694–95). One photo of Albaadani without a gun includes the caption, "This is the new word. Find them kill em All. Only bitches hiding behind doors." Id. The government claimed that it "does not know the location where the pictures were taken" and that they "were captured from an FBI report of investigation." Id. at 6 (Page ID #694). The government provided no further information about this investigation.

At Albaadani's sentencing hearing, the district court engaged in a colloquy with government counsel regarding Albaadani's threat to the public. In response to the government's motion for an upward departure, the district court asked, "We should just keep [Albaadani] in jail forever, shouldn't we?" R. 72 (Sentencing Tr. at 8) (Page ID #960). The court elaborated: "[Albaadani] is not a citizen of the United States. He is a citizen of another country, so there is no allegiance to this country." Id. Counsel for the government pointed out that "[t]he Supreme Court has ruled that we cannot ... detain him forever," to which the district court responded, "So the only way to be sure probably would be to detain him. Since we can't do that, we're going to have an imperfect solution." Id.

Determining that it could not detain Albaadani indefinitely, the district court concluded, "And that means that at some point [Albaadani] is going to subject the rest of the American public to danger." Id. at 8–9 (Page ID #960–61). Government counsel agreed: "One of my favorite punch lines is that I'll run off that bridge when I get to it. I have no other option but to seek a statutory maximum sentence in this case." Id. at 9 (Page ID #961).

Defense counsel was then given an opportunity to speak. She...