United States v. Mostafa
Opinion of the Court
SUMMARY ORDER
Defendant Golam Mostafa appeals from an April 11, 2007 judgment of the District Court, convicting him, after a jury trial, of five counts of tax evasion, in violation of 26 U.S.C. § 7201, and one count of filing a false corporate tax return in violation of 26 U.S.C. § 7206(1). The District Court sentenced Mostafa to a term of 63 months’ imprisonment, as well as three years of supervised released on the tax evasion counts, to run concurrently with one year of supervised release on the false tax return count.
We have held that plain error review applies to procedural sentencing challenges not raised in district court. See United States v. Villafuerte, 502 F.3d 204, 208-11 (2d Cir. 2007). Because Mostafa contends that the imposition of the three-year term of supervised release was procedurally unreasonable for the first time on appeal, the “rigorous plain error analysis is appropriate.” Id. at 208. Plain error is (i) error, that is (ii) plain, and (iii) affects substantial rights. See United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). We detect no error — much less plain error — in the District Court’s imposition of a three-year term of supervised release.
First, “we presume, in the absence of record evidence suggesting otherwise, that a sentencing judge has faithfully discharged her duty to consider the statutory factors.” United States v. Fernandez, 443 F.3d 19, 30 (2d Cir. 2006). As the record shows, before pronouncing Mostafa’s sentence in its entirety, Judge Gershon specifically stated that she had “considered all of the 3553 factors.” ROA doc 71, at 13. There is nothing in the record to suggest that the District Court’s consideration of these factors did not extend to the imposition of the supervised release term.
Second, we have never held that a sentencing judge must make a separate “state[ment] in open court [of] the reasons for [the] imposition of the particular sentence” when also imposing a term of supervised release. 18 U.S.C. § 3553(c). In the absence of authority to the contrary, we cannot conclude that the District Court’s imposition of a term of supervised release without a separate statement in open court constituted an error of any kind that affected substantial rights. Nor have we held that the sentencing judge, postjBooker, must acknowledge specifically what 18 U.S.C. § 3583(a) makes clear by its language — that, except when otherwise required by statute, a court “may,” but is not required to, impose a term of supervised release; and the absence of such a statement does not yield the conclusion that the sentencing court thought itself bound to impose a term of supervised release.
CONCLUSION
For the foregoing reasons, the judgment of the District Court is AFFIRMED.
. We note that the under Sections 5D1.1 (a) and 5D 1.2(a)(2) of the advisory Sentencing Guidelines, a term of supervised release of at least two but not more than three years is "required” on the tax evasion counts, and under Sections 5dl.l(a) and 5D1.2(a)(3) a term of supervised release of one year is "required” on the false tax return count.
Reference
- Full Case Name
- United States v. Golam MOSTAFA
- Cited By
- 4 cases
- Status
- Published