United States v. Hassan-Saleh-Mohamad
Opinion
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
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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
,
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
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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
,
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
,
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
,
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
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
,
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
,
Hassan argues, relatedly, that the district court failed to consider "the need to avoid unwarranted sentence disparities."
See
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United States
v.
Turbides-Leonardo
,
Next, as to Hassan's "argument" -- really two passing references
8
-- about
Kimbrough
error, it is true that "after
Kimbrough
, a district court makes a procedural error when it fails to recognize its discretion to vary from the guideline range based on a categorical policy disagreement with a guideline."
United States
v.
Stone
,
B. Substantive Reasonableness
Hassan also challenges the substantive reasonableness of his sentence. Assuming arguendo he preserved his challenge and abuse of discretion applies here, Hassan cannot meet his burden. "[R]easonableness is a protean concept,"
United States
v.
Martin
,
Hassan makes three categories of arguments against the substantive reasonableness of his sentence. First, he argues that the district court gave insufficient weight to certain mitigating factors and that "case law directs the court to give ... equal significance to all of the factors." He argues that the district court's view that his child pornography possession "fuel[ed] demand and supply of a multimillion-dollar market" is wrong in this "day and age." Second, he challenges the guidelines themselves in this area (arguing, in essence, that the district court should have rejected them out of hand), and relatedly challenges an alleged sentencing disparity. Third, he argues that the sentence was greater than necessary, at least for purposes of deterrence, because of "the string of conditions ... imposed" during the fifteen-year supervised release term.
First, Hassan's weight arguments fail. There is absolutely no "requirement that a district court afford each of the section 3553(a) factors equal prominence," as "[t]he relative weight of each factor will vary with the idiosyncratic circumstances of each case."
United States
v.
Dixon
,
Further, Hassan's claim that the district court erred in weighing the impact on the market for child pornography is unavailing. The Supreme Court has stated in general that it is "surely reasonable for the State to conclude that it will decrease the production of child pornography if it penalizes those who possess and view the product, thereby decreasing demand."
Osborne
v.
Ohio
,
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Second, Hassan's challenge to the guideline itself -- that his case "should be seen as less serious" than the relevant guideline provides -- plainly fails. "While district courts may certainly conclude that the guidelines sentencing range in child pornography cases is harsher than necessary in many cases, there is no requirement that a district court must categorically reject the child pornography guidelines based on their provenance."
United States
v.
Aquino-Florenciani
,
Third, Hassan's argument that his sentence is substantively unreasonable because "the string of conditions ... imposed" during the fifteen-year supervised release term would be "sufficient to protect society from any future crimes" fails. This argument asks us to exchange the district court's reasoned determination regarding a § 3553(a) factor,
see
On the whole, the district court "provided a plausible explanation [for the sentence], and the overall result is defensible."
United States
v.
Crespo-Ríos
,
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Affirmed .
The two videos showed: 1) a partially nude female approximately between the ages of ten and twelve performing oral sex on a nude adult male; 2) a female approximately between the ages of fourteen and eighteen masturbating a male between the ages of five and eight and then performing oral sex on him.
The PSR considered the number of images as "more than 600," corresponding to the highest level-enhancement for number of images under § 2G2.2.
See
U.S.S.G. § 2G2.2(b)(7). That is because, corresponding to an Application Note to this guideline, the 322 child pornography videos were considered to contain 24,150 images in total.
See
The level adjustments were:
- a two-level increase for material involving pre-pubescent minors, U.S.S.G. § 2G2.2(b)(2) ;
- a four-level increase for material depicting sadistic or masochistic conduct,id. § 2G2.2(b)(4) ;
- a two-level increase for the use of a computer in the offense,id. § 2G2.2(b)(6) ;
- a five-level increase for the number of images,id. § 2G2.2(b)(7); and
- a three-level reduction for acceptance of responsibility,id. § 3E1.1.
Hassan did not and does not dispute the factual basis of any of the enhancements.
The plea agreement contained a waiver of appeal provision. It is not applicable here because Hassan received a prison sentence greater than seventy-one months, and the government does not argue otherwise.
See
United States
v.
Fernández-Cabrera
,
Under this standard for procedural challenges, "we afford de novo review to the sentencing court's interpretation and application of the sentencing guidelines, assay the court's factfinding for clear error, and evaluate its judgment calls for abuse of discretion." Ruiz-Huertas,
Hassan's discussion in his appellate brief of three allegedly illustrative First Circuit cases --
United States
v.
Dyer
,
To the extent that Hassan argues the district court owed deference to the government's alleged "consideration of the [§] 3553[a] factors" in the plea negotiations, this is flatly wrong: "[T]he starting point for a court's sentencing determination is the guideline range, not the parties' recommendations. Thus, we have consistently refused to accord any decretory significance to such non-binding recommendations -- or even to require a sentencing court to explain why it decided to eschew those recommendations."
United States
v.
Cortés-Medina
,
We assume arguendo, and in Hassan's favor, that this argument is not waived (despite a lack of developed argumentation).
See
United States
v.
Zannino
,
Hassan was, indeed, a first-time federal offender; however, he admitted to searching and downloading numerous child pornography videos and images in the year before the FBI interview here, and so this case involves the first time Hassan has been caught rather than the first time he viewed and possessed child pornography.
Hassan seems to argue that
United States
v.
Dorvee
,
Reference
- Full Case Name
- UNITED STATES of America, Appellee, v. Mohamad HASSAN-SALEH-MOHAMAD, Defendant, Appellant.
- Cited By
- 21 cases
- Status
- Published