United States v. Hassan-Saleh-Mohamad

• Decision Date: 09 July 2019
• Docket Number: No. 18-1883,18-1883
• Citation: 930 F.3d 1
• Parties: UNITED STATES of America, Appellee, v. Mohamad HASSAN-SALEH-MOHAMAD, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

930 F.3d 1

UNITED STATES of America, Appellee,

v.Mohamad HASSAN-SALEH-MOHAMAD, Defendant, Appellant.

No. 18-1883

United States Court of Appeals, First Circuit.

July 9, 2019

José B. Vélez Goveo, Bayamon, PR, and Vélez & Vélez Law Office on brief for appellant.

Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, Antonio L. Perez-Alonso, Assistant United States Attorney, and Rosa Emilia Rodríguez-Vélez, San Juan, PR, United States Attorney, on brief for appellee.

Before Lynch, Thompson, and Kayatta, Circuit Judges.

LYNCH, Circuit Judge.

Mohamad Hassan-Saleh-Mohamad ("Hassan") pleaded guilty to possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2). He now challenges the procedural and substantive reasonableness of his within-guidelines sentence of eighty-seven months' imprisonment and fifteen years' supervised release. Finding no abuse of discretion, we affirm his sentence.

I.

We recount only the central facts in this section, providing more detail as necessary in the analysis. As Hassan's appeal follows a guilty plea, "we draw the relevant facts from the plea agreement, the change-of-plea colloquy, the undisputed portions of the presentence investigation report (‘PSR’), and the transcript of the disposition hearing." United States v. O'Brien, 870 F.3d 11, 14 (1st Cir. 2017).

A. Federal Investigation, Child Pornography Charge, and Plea

During a Federal Bureau of Investigation (FBI) investigation into the distribution of child pornography on the Ares peer-to-peer file-sharing network in November 2016, an FBI agent identified a computer with a particular Internet Protocol (IP) address as a potential source of child pornography. The agent began investigating this computer and downloaded two video files made available by the targeted computer, both of which contained child pornography.¹

An administrative subpoena on the cable company connected to the IP address of that computer returned an address in Puerto Rico. The FBI then executed a search, pursuant to a warrant, of the residence at that address on March 31, 2017, and interviewed all of the residents, including Hassan. In this interview, Hassan stated that he had used his computer to search the Ares peer-to-peer network for child pornography and had downloaded about fifty child pornography videos and images in the past year. A search of Hassan's hard drive found six images and 335 videos of minors engaged in sexual conduct, including some featuring sadomasochistic acts and prepubescent minors.

On April 25, 2018, a criminal information was filed, charging Hassan with one count of possession of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2). That same day, Hassan pleaded guilty to this count pursuant to a plea agreement. The plea agreement stated a Base Offense Level (BOL) of eighteen and a number of sentencing adjustments, leading to a Total Offense Level (TOL) of twenty-five. The parties did not stipulate to a Criminal History Category (CHC). The plea agreement stated that Hassan could argue for a sentence of fifty-seven months' imprisonment, and the government could argue for seventy-one months. Hassan agreed to waive his right to appeal if the sentence imposed was seventy-one months or less.

B. Sentencing

The Probation Office filed an amended PSR which applied a five-level rather than two-level enhancement for the number of images possessed by Hassan,² leading to a TOL of twenty-eight.³ The PSR stated a CHC of I for Hassan. This TOL and CHC led to a guideline sentencing range (GSR) of seventy-eight to ninety-seven months. Hassan filed a sentencing memorandum arguing for a sentence of fifty-seven months; he did not challenge facts in the PSR. Instead, he more generally challenged the sentencing guidelines related to child pornography and sought a downward variance based on the district court's discretion to disagree with specific guidelines, recognized in Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007).

At the sentencing hearing, Hassan argued again for a sentence of fifty-seven months' imprisonment; pursuant to the plea agreement, the government argued for a sentence of seventy-one months' imprisonment. After discussing, inter alia, the GSR, the sentencing enhancements, certain facts of the offense, and some characteristics of the defendant, the district court imposed a sentence of eighty-seven months' imprisonment and fifteen years' supervised release. Near the end of the sentencing hearing, Hassan's counsel stated generally, "we would preserve the record for purposes of an appeal for unreasonableness of the sentence."

II.

Hassan now challenges both the procedural and substantive reasonableness of his sentence.⁴ "In sentencing appeals, appellate review is bifurcated," United States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir. 2015), and so we proceed in two familiar steps: "We first consider whether the sentence is procedurally reasonable, and then consider whether it is substantively reasonable." United States v. Rodríguez-Reyes, 925 F.3d 558, 562–63 (1st Cir. 2019), petition for cert. filed, (U.S. June 18, 2019) (No. 19-9819).

A. Procedural Reasonableness

Hassan claims he raised a procedural objection at the sentencing hearing. "To preserve a claim of error for appellate review, an objection must be sufficiently specific to call the district court's attention to the asserted error." United States v. Soto-Soto, 855 F.3d 445, 448 n.1 (1st Cir. 2017). The general statement at the sentencing hearing, "we would preserve the record for purposes of an appeal for unreasonableness of the sentence," is insufficient to preserve Hassan's specific procedural reasonableness challenges. "When a defendant does not raise a procedural objection at sentencing, the review is instead for plain error." United States v. Sosa-González, 900 F.3d 1, 4 (1st Cir. 2018), cert. denied, ––– U.S. ––––, 139 S. Ct. 436, 202 L.Ed.2d 332 (2018). But even assuming in Hassan's favor that his challenge was preserved and abuse of discretion applies,⁵ see, e.g., United States v. Gierbolini-Rivera, 900 F.3d 7, 13 (1st Cir. 2018), he cannot meet his burden.

As a general matter, a sentencing court is required to calculate the applicable GSR, address any objections to the PSR, give both parties the opportunity to argue for a sentence, consider the 18 U.S.C. § 3553(a) sentencing factors, and explain the rationale behind its chosen sentence. See, e.g., United States v. Laureano-Pérez, 797 F.3d 45, 80 (1st Cir. 2015).

Hassan does not contest the GSR or the PSR. Instead, he argues that the district court "fail[ed] to properly consider the § 3553(a) factors," including the factor relating to sentencing disparity, despite accepting that the district court stated "it had considered all [these] factors." He also argues cursorily that the district court committed Kimbrough error by failing to "recognize its power" to choose a non-guideline sentence. See Kimbrough, 552 U.S. at 108-10, 128 S.Ct. 558 (recognizing sentencing courts' discretion to vary based on disagreements with the operation or basis of particular guidelines).

The district court explicitly stated that it considered all of the § 3553(a) factors; that statement "is entitled to some weight." United States v. Dávila–González, 595 F.3d 42, 49 (1st Cir. 2010). And the district court expressly discussed a number of facts clearly germane to the § 3553(a) factors, such as: Hassan's education, employment history, mental health, prior admitted marijuana use, and lack of prior criminal history ("history and characteristics of the defendant," 18 U.S.C. § 3553(a)(1) ); the particular sexual acts depicted in the child pornography Hassan possessed ("nature and circumstances of the offense," id. ); and the "re-victimization of [the] children" and "fuel[ing] demand" in the market for child pornography ("the need for the sentence imposed ... to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense," id. § 3553(a)(2)(A) ). The district court also expressly stated "the specific need to deter [the] defendant from future criminal behavior of this nature," echoing § 3553(a)(2)(B). On this record, there is simply no reason not to "credit the district court's statement that it considered all of the relevant sentencing factors." United States v. Clogston, 662 F.3d 588, 592 (1st Cir. 2011). And there is no evidence that the district court imposed the sentence based on being "completely offended by the crime," as Hassan argues, rather than based on a reasoned consideration of the relevant sentencing factors.

Hassan argues, relatedly, that the district court failed to consider "the need to avoid unwarranted sentence disparities." See 18 U.S.C. § 3553(a)(6). Though the district court did not specifically refer to this factor during the sentencing hearing, "[a] judge need not mention every § 3553(a) factor nor intone any particular magic words," United States v. Denson, 689 F.3d 21, 28 (1st Cir. 2012), and it "need not verbalize its evaluation of each and every [§] 3553(a) factor," United States v. Reyes-Rivera, 812 F.3d 79, 89 (1st Cir. 2016) ; see United States v. Butler-Acevedo, 656 F.3d 97, 101 (1st Cir. 2011) ("Although the court may not have specifically referenced this factor directly ... [t]he court subsumed sentencing disparity concerns within its overall decision."). And generally, the district court did not need to "be precise to the point of pedantry" in explaining its weighing of the § 3553(a) factors.⁶

United States v. Turbides-Leonardo, 468 F.3d 34, 40 (1st Cir. 2006) ; see also id. at 41 ("[S]entences that fall inside a properly calculated guideline sentencing range require a lesser degree of explanation than those that fall outside the guideline sentencing range ...."). Here, as stated, "we credit the district court's statement that it considered all of the relevant sentencing...