23-7393-cr United States v. Alboushari

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 16th day of December, two thousand twenty-four.

Present: ROBERT D. SACK, WILLIAM J. NARDINI, EUNICE C. LEE , Circuit Judges, _____________________________________

UNITED STATES OF AMERICA, Appellee,

v. 23-7393-cr

KHALID ALBOUSHARI, AKA Sealed Defendant 1, Defendant-Appellant. _____________________________________

For Defendant-Appellant: ELENA FAST, The Fast Law Firm, P.C., New York, NY.

For Appellee: JAMES G. LIGTENBERG (Olga I. Zverovich, on the brief), Assistant United States Attorneys, for Damian Williams, United States Attorney for the Southern District of New York, New York, NY.

Appeal from a judgment of the United States District Court for the Southern District of

New York (Jesse M. Furman, District Judge).

1 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the October 10, 2023, judgment of the district court is AFFIRMED.

Defendant-Appellant Khalid Alboushari appeals from a judgment of conviction entered on

October 10, 2023, in the United States District Court for the Southern District of New York (Jesse

M. Furman, District Judge) sentencing Alboushari to a 92-month prison term, one year of

supervised release, and a $600 special assessment following his guilty plea on six counts of

international parental kidnapping in violation of

(a). On appeal, Alboushari

challenges his sentence as procedurally unreasonable on the ground that the district court

improperly considered the duration of his offense while also failing to consider certain mitigating

factors. Alboushari also contends that his sentence is substantively unreasonable. We disagree

on all points and, therefore, affirm the judgment. We assume the parties’ familiarity with the

case.

“Our review of criminal sentences includes both procedural and substantive components

and amounts to review for abuse of discretion.” United States v. McIntosh,

, 393–

94 (2d Cir. 2014). 1 “The procedural inquiry focuses primarily on the sentencing court’s

compliance with its statutory obligation to consider the factors detailed in

(a),

while the substantive inquiry assesses the length of the sentence imposed in light of the § 3553(a)

factors.” United States v. Castillo,

(2d Cir. 2018). We may find procedural

error in circumstances “where, for instance, the district court miscalculates the Guidelines; treats

them as mandatory; does not adequately explain the sentence imposed; does not properly consider

the § 3553(a) factors; bases its sentence on clearly erroneous facts; or deviates from the Guidelines

1 Unless otherwise indicated, when quoting cases, all internal quotation marks, alteration marks, emphases, footnotes, and citations are omitted. 2 without explanation.” McIntosh,

. This Court “presumes that the sentencing

judge has considered all relevant § 3553(a) factors and arguments unless the record suggests

otherwise,” United States v Rosa,

, 118 (2d Cir. 2020), and “will not assume a failure

of consideration simply because a district court fails to enumerate or discuss each § 3553(a) factor

individually,” United States v. Verkhoglyad,

(2d Cir. 2008). Moreover, “[t]he

particular weight to be afforded aggravating and mitigating factors is a matter firmly committed

to the discretion of the sentencing judge,” United States v. Broxmeyer,

(2d Cir. 2012), and we find no error when the totality of the circumstances supports a district

court’s decision to place greater weight on a particular factor. United States v. Cavera,

(2d Cir. 2008) (en banc).

Here, Alboushari pled guilty to six counts of international parental kidnapping. This

followed years of Alboushari’s control, isolation, intimidation, and physical abuse of his then-wife

and their seven children. When Alboushari’s wife reported his abuse, he responded by

kidnapping six of their children from New York to Sudan, where he kept the children for 46 months

suffering unsanitary conditions, malnourishment, physical injury, deprivation of educational

resources, and no meaningful contact with their mother—their custodial parent. After the

children were returned to their mother and Alboushari was extradited to the United States, he

entered a written plea agreement that calculated the applicable range of the United States

Sentencing Guidelines under Section 2J1.2. The parties agreed on a Stipulated Guidelines Range

of 21 to 27 months in prison, but they also agreed that “either party may seek a sentence outside

of the Stipulated Guidelines Range based upon the factors to be considered in imposing a sentence”

under

(a). The plea agreement further explained that the aggregate statutory

maximum term of imprisonment was 18 years.

3 Prior to sentencing, Alboushari raised numerous objections to the Probation Department’s

Presentence Report and its description of his offense conduct. After conducting a hearing to

resolve the disputed issues of fact, the district court found that Alboushari: (1) engaged in passport

fraud based on “substantial, if not overwhelming” evidence, J. App’x 314–15; (2) lied in an

affidavit submitted to the district court,

at 315–16; and (3) “was extraordinarily controlling, . . .

neglectful and abusive, both physically and psychological[ly], before and during the offense, that

is, before he kidnapped the children and during the 46 months that he held them outside of the

country,”

. Thereafter, the district court adopted the Presentence Report’s factual

statements regarding the offense conduct, calculated Alboushari’s Guidelines range to be 21 to 27

months of imprisonment, the same as the Stipulated Guidelines Range, and heard final arguments

from both parties—including statements from Alboushari and his wife—concerning the proper

sentence.

Alboushari’s challenges on appeal are limited to what happened next during his sentencing.

First is his contention that, in determining the appropriate sentence, the district court improperly

considered the approximately four-year duration of Alboushari’s kidnapping offense. Alboushari

relies on

(b)(1) for the proposition that the duration of the time he kept the

children outside of the United States is not a factor to be considered under Section 2J1.2 of the

Sentencing Guidelines, and that the district court was consequently not permitted to rely on that

fact to impose a sentence above the applicable Guidelines range. But Alboushari’s argument

overlooks the fact that “the Supreme Court in United States v. Booker invalidated

(b)(1), which commanded imposition of a sentence within the range dictated by the

Guidelines unless the sentencing court found that a departure was warranted by circumstances not

adequately taken into account by the Guidelines.” United States v. Gilmore,

, 163

4 (2d Cir. 2010). Following Booker, a sentencing court is free to impose a sentence outside the

applicable Guidelines range as appropriate in light of the factors laid out in Section 3553(a). That

is precisely what the district court did here: in evaluating the Section 3553(a) factors, the court

considered the duration of the kidnapping, a factor relevant to the nature and circumstances of the

crime of conviction, before ultimately determining that a sentence longer than the advisory

Guidelines range was warranted. See

(a)(1) (requiring the court to consider “the

nature and circumstances of the offense” when “determining the sentence to be imposed”).

Second, Alboushari submits that the sentencing judge failed to consider various mitigating

factors before imposing his sentence. Because Alboushari did not raise this procedural issue

before the district court, he must show plain error. See United States v. Alvarado,

(2d Cir. 2013). Alboushari cannot establish plain error, as the record demonstrates that the

district court carefully considered his mitigating arguments before deciding his sentence. During

the sentencing hearing, the district court explained that it had read and considered the Presentence

Report and the parties’ sentencing papers, including all four of Alboushari’s submissions, which

included an extensive presentation of the mitigating factors at issue. The district court expressly

discussed some of those mitigating factors at the time it imposed sentence, including Alboushari’s

lack of criminal history and the prison conditions into which he would be placed. The district

court also made clear that it had considered each of the Section 3553(a) factors. See United States

v. Fernandez,

(2d Cir. 2006), abrogated on other grounds by Rita v. United States,

(2007) (explaining the presumption that a sentencing judge considered the parties’

arguments “is especially forceful when . . . the sentencing judge makes abundantly clear that [he]

has read the relevant submissions and that [he] has considered the § 3553(a) factors”).

5 Accordingly, we find Alboushari’s challenge to the procedural reasonableness of his sentence to

be unpersuasive.

Third, Alboushari challenges the substantive reasonableness of his 92-month sentence.

This Court will “set aside a district court’s substantive determination only in exceptional cases

where the trial court’s decision cannot be located within the range of permissible decisions.”

United States v. Perez-Frias,

(2d Cir. 2011). That a sentencing court does not

weigh a given Section 3553(a) factor as heavily in a defendant’s favor as he would have liked does

not make a sentence substantively unreasonable; the “particular weight to be afforded aggravating

and mitigating factors is a matter firmly committed to the discretion of the sentencing judge.”

Broxmeyer,

. Here, in imposing the sentence, the district court found as a factual

matter that: Alboushari abused his wife and their children for many years; committed passport

fraud and then kidnapped six of his children from their mother, keeping them separated for nearly

four years; neglected and traumatized the kidnapped children during that time by depriving them

of food, clothing, and education; harassed and threatened to kill his wife on numerous occasions;

attempted to flee from Saudia Arabia into Yemen to avoid extradition; lied to the district court in

a sworn affidavit; and would continue to pose a significant danger to his wife and their children

following his release. In light of these circumstances, we are not persuaded by Alboushari’s

contention that a 92-month term of imprisonment represents an unreasonable sentence simply

because it is over three times the higher end of the Guidelines range. See Gall v. United States,

(2007).

6 We have considered Alboushari’s remaining arguments and find them to be unpersuasive.

Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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