United States v. Abdi Mahamud , 322 F. App'x 470 ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-3991
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United States of America, *
*
Plaintiff - Appellee, * Appeal from the United States
* District Court for the
v. * Western District of Missouri.
*
Abdi M. Mahamud, * [UNPUBLISHED]
*
Defendant - Appellant. *
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Submitted: April 15, 2009
Filed: April 20, 2009
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Before MURPHY, BRIGHT, and BYE, Circuit Judges.
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PER CURIAM.
Appellant Abdi M. Mahamud challenges his sentence imposed after the district
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court revoked his supervised release, arguing that the district court abused its
discretion by “imposing an upward sentencing variance with an increase of over
300%” from the Sentencing Guidelines range. We affirm.
1
The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.
I.
In December 2004, Mahamud pleaded guilty to one count of bank fraud and one
count of wire fraud, offenses for which he received a sentence of 20 months’
imprisonment and five years’ supervised release. After being released from prison,
the probation office, in December 2008, moved to revoke Mahamud’s supervised
release based on new allegations of bank and insurance fraud. At the revocation
hearing, Mahamud admitted that he had violated his supervised release by committing
additional criminal offenses. The presentence-investigation report recommended a
sentencing range of 8-14 months’ imprisonment. The district court imposed a
sentence of 36 months on Count 1 of the indictment and 12 months on Count 1 of the
information, to be served consecutively, for a total term of 48 months’ imprisonment.
This appeal follows.
II.
“On appeal, we may consider both the procedural soundness of the district
court’s decision and the substantive reasonableness of the sentence imposed.” United
States v. Merrival, 521 F.3d 889, 890 (8th Cir. 2008). And “[w]e review a revocation
sentence under the same ‘reasonableness’ standard that applies to initial sentencing
proceedings.” Id. (citing United States v. Cotton, 399 F.3d 913, 916 (8th Cir. 2005)).
“[W]e review the substantive reasonableness of the sentence under a deferential
abuse-of-discretion standard.” Id. (citing Gall v. United States, 128 S. Ct. 586, 597
(2007)).
Mahamud argues specifically that the district court provided “no additional
justification [for the upward variance] other than those factors that were already
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adequately considered within the guideline recommendations.”2 After our careful
review of the entire record, we disagree.
We note initially that, although considering factors that have already been taken
into account in the formulation of the guidelines tends to undermine sentencing
uniformity, see United States v. Solis-Bermudez, 501 F.3d 882, 885 (8th Cir. 2007),
a district court may consider such factors in its sentencing decision, see United States
v. White, 506 F.3d 635, 645 (8th Cir. 2007).
Here, the record, including Mahamud’s criminal history and his continuance of
obtaining funds by fraud, justifies a sentence above the applicable guidelines range.
The additional time to be served above the guidelines range is a matter that is largely
commended to the discretion of the district court. See Gall, 128 S. Ct. at 597 (noting
that we defer to the district court’s determination that a variance is justified).
After the parties presented their positions at sentencing, the district court, stated
the following:
I know that’s a tough revocation sentence, but I have taken
these things into account. No. 1, you got a downward
departure the first time in your sentence. You were looking
at 40 months, you only did 20 months. Basically I’m
2
Because Mahamud’s argument, at bottom, challenges the justification for his
sentence (not its procedural soundness), we construe his argument as challenging the
substantive reasonableness of his sentence. Additionally, to the extent that
Mahamud’s brief disputes the district court’s sentence because “there are no
extraordinary circumstances that justify this extraordinary sentencing variance,” we
reject that argument in light of Gall. See, e.g., United States v. Lee, 553 F.3d 598, 602
(8th Cir. 2009) (recognizing that “Gall rejected an appellate rule that requires
extraordinary circumstances to justify a sentence outside the Guidelines range”
(internal quotation marks omitted)).
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pulling back that 20 months here to make sure that, in fact,
that gets done.
Then we have actually additional crimes here. I mean,
these are additional crimes that you stole more money so
that there has to be some punishment for those additional
crimes.
And then there is the idea that you have been absolutely
brazen. There’s no other word to describe it. You have
been absolutely brazen in your conduct. Even though you
were on supervised release for fraud, you were out
committing fraud again, and not once, multiple times.
So I don’t know what else to do to get across to you that if
you do this, there will be serious consequences. And I have
continued you on supervised release for two more years
after you get out, and I want you to understand that if you
continue this conduct, you will go back to jail again.
On this record, we cannot say that the district court abused its discretion by imposing
this heavy sentence.
III.
Based on the foregoing, we affirm.
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