USA v. Eyad Farah

Filing

Opinion issued by court as to Appellant Eyad Farah. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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Date Filed: 10/05/2016

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-15702
Non-Argument Calendar
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D.C. Docket No. 8:14-cr-00382-MSS-TBM-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EYAD FARAH,
Defendant-Appellant.
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Appeals from the United States District Court
for the Middle District of Florida
________________________
(October 5, 2016)
Before TJOFLAT, WILSON, and JILL PRYOR, Circuit Judges.
PER CURIAM:

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Eyad Farah appeals the 37-month sentence he received after pleading guilty
to (1) conspiracy to unlawfully export firearms, in violation of 18 U.S.C. § 371 and
22 U.S.C. § 2778(b)(2) and (c); (2) attempt to unlawfully export firearms without a
license, in violation of 22 U.S.C. § 2778(b)(2) and (c); and (3) aiding and abetting
the fraudulent exportation of firearms, in violation of 18 U.S.C. §§ 554 and 2.
On appeal, Farah argues that his sentence is both procedurally and
substantively unreasonable. He first asserts that his sentence is procedurally
unreasonable because the district court failed to consider the 18 U.S.C. § 3553(a)
factors. Second, Farah argues that his sentence is substantively unreasonable
because, under the totality of the circumstances, a 37-month sentence is excessive
given his history, the character and nature of his offenses, and the fact that he is a
first-time offender who played a minor role in a much larger conspiracy. After
careful review of the record and the parties’ briefs, we affirm.
I. Procedural Reasonableness
We review the reasonableness of a sentence under a deferential abuse-ofdiscretion standard. See Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597
(2007). A sentence is procedurally unreasonable if the sentencing court, inter alia,
fails to consider the factors set forth in 18 U.S.C. § 3553(a) or fails to adequately
explain the sentence. Id. “The party challenging the sentence bears the burden to

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show it is unreasonable in light of the record and the § 3553(a) factors.” United
States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).
The district court is not required to explicitly state or discuss on the record
that it has considered each of the § 3553(a) factors. See United States v. Docampo,
573 F.3d 1091, 1100 (11th Cir. 2009). Rather, it is sufficient for the district court
to simply acknowledge that it has considered the § 3553(a) factors as well as the
defendant’s arguments. United States v. Sarras, 575 F.3d 1191, 1219 (11th Cir.
2009). However, the sentencing court should still “set forth enough to satisfy the
appellate court that [it] has considered the parties’ arguments and has a reasoned
basis for exercising [its] own legal decisionmaking authority.” United States v.
Livesay, 525 F.3d 1081, 1090 (11th Cir. 2008) (internal quotation marks omitted).
A district court commits no reversible error for failing to articulate the applicability
of the § 3553(a) factors so long as the record demonstrates that the court took the
factors into consideration. See United States v. Smith, 568 F.3d 923, 927–28 (11th
Cir. 2009).
Farah’s sentence is procedurally reasonable. Farah asserts that the district
court erred by failing to consider the § 3553(a) factors, namely the factor regarding
the kinds of sentences available. However, the record demonstrates that the district
court did consider the available sentences. Specifically, the district court noted
that it reviewed and considered the presentence investigation report and Farah’s
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sentencing memorandum, which discussed the possibility of house arrest or
probation. Moreover, the district court explicitly rejected house arrest and
probation at the sentencing hearing, finding them inappropriate under the
circumstances. Based on this record, the district court fulfilled its obligation to
take the § 3553(a) factors into account. See id.
Nevertheless, Farah contends that the district court failed to consider the
available-sentences factor because the court stated that a sentence of house arrest
or probation was “out of the question” before Farah had an opportunity to argue for
those types of sentences at the sentencing hearing. That contention is unavailing.
Although the district court made the statement prior to Farah making his arguments
at the hearing, Farah’s sentencing memorandum set forth his argument for house
arrest or probation, and the court considered the memorandum. Thus, the district
court’s statement was simply its indication to counsel that it rejected Farah’s
previously articulated argument for house arrest or probation. Accordingly, the
district court did not commit procedural error because it properly considered the
kinds of sentences available.
II. Substantive Reasonableness
When reviewing the substantive reasonableness of a sentence, we must
consider the “totality of the circumstances.” United States v. Pugh, 515 F.3d 1179,
1190–92 (11th Cir. 2008) (internal quotation marks omitted). “A district court
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abuses its discretion when it (1) fails to afford consideration to relevant factors that
were due significant weight, (2) gives significant weight to an improper or
irrelevant factor, or (3) commits a clear error of judgment in considering the proper
factors,” which can occur when the district court balances the factors unreasonably.
See United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc). We will
vacate a sentence for being substantively unreasonable “only if, we are left with
the definite and firm conviction that the district court committed a clear error of
judgment in weighing the § 3553(a) factors by arriving at a sentence that lies
outside the range of reasonable sentences dictated by the facts of the case.” Id. at
1190 (internal quotation marks omitted). We normally expect a sentence within
the recommended United States Sentencing Guidelines (Guidelines) range to be
reasonable. Docampo, 573 F.3d at 1101.
Here, the district court did not abuse its discretion when it imposed a 37month sentence, which was not only within the recommended guidelines range, but
on the low end of that range. Again, as the challenging party, the burden lies with
the defendant to contest the reasonableness of the sentence in light of the record
and the § 3553(a) factors. Tome, 611 F.3d at 1378. Farah has not met this burden.
To the contrary, the record reflects that the district court considered all relevant
factors carefully and ultimately disagreed with Farah’s position. Farah put forth
mitigating evidence in an effort to convince the district court to ignore the
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Guidelines’s recommendation against house arrest or probation for smuggling guns
to the Middle East, however, the district court, within its discretion, appropriately
found such evidence unpersuasive. See United States v. Clay, 483 F.3d 739, 743
(11th Cir. 2007) (“The weight to be accorded any given § 3553(a) factor,” such as
the nature and circumstances of the offense, “is a matter committed to the sound
discretion of the district court.” (internal quotation marks omitted)). Even so, the
district court imposed a sentence on the low end of the guidelines range. See
United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008) (“[W]e do not
automatically presume [that] a sentence within the [applicable] guidelines range is
reasonable, [but] we ordinarily expect a sentence within [that] range to be
reasonable.” (internal quotation marks omitted)). Accordingly, the district court
did not abuse its discretion in sentencing Farah to a 37-month term of
imprisonment.
AFFIRMED.

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