United States of America v. Salim

Filing

OPINION, affirmed, by JMW, GEL, FILED.[701630] [10-3648]

Case: 10-3648

Document: 141-1

Page: 1

08/24/2012

701630

21

10-3648-cr
United States of America v. Mamdouh Mahmud Salim

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2012
(Argued: March 27, 2012

Decided: August 24, 2012)

Docket No. 10-3648-cr
-----------------------------------------------------x
UNITED STATES OF AMERICA,
Appellee,
-- v. -MAMDOUH MAHMUD SALIM,
Defendant-Appellant.
-----------------------------------------------------x
B e f o r e :

WALKER and LYNCH, Circuit Judges.1

24

Appeal from a judgment of the United States District Court

25

for the Southern District of New York (Deborah A. Batts, Judge)

26

resentencing appellant for attacking a correctional officer.

27

Appellant challenges his resentence, which he attended by

28

videoconference, primarily on the ground that his right to be

29

physically present in court was violated.

30

appellant that the government has not satisfied its burden of

31

proving that he waived his right to be present and that the

1
2
3

1

We agree with

Because Judge Straub, originally assigned to this panel, is
recused, the remaining members of the panel decided this appeal
in accordance with Second Circuit Internal Operating Procedure E.
1

Case: 10-3648

Document: 141-1

Page: 2

08/24/2012

701630

21

1

district court erred in finding a valid waiver.

2

is subject to plain error review and, in the circumstances of

3

this case, appellant was not prejudiced.

4

appellant’s arguments that his resentence was unreasonable.

5

therefore AFFIRM the judgment of the district court.

6
7
8
9
10
11
12
13
14
15
16
17
18
19

But this error

We also reject
We

BRUCE R. BRYAN, Syracuse, NY, for
Defendant-Appellant.
ANDREW D. GOLDSTEIN, Assistant U.S.
Attorney (Iris Lan, Assistant U.S.
Attorney, on the brief), for Preet
Bharara, U.S. Attorney for the
Southern District of New York, New
York, NY, for United StatesAppellee.
JOHN M. WALKER, JR., Circuit Judge:
Defendant-Appellant Mamdouh Mahmud Salim appeals from a

20

judgment of the United States District Court for the Southern

21

District of New York (Deborah A. Batts, Judge) resentencing him

22

for attacking a correctional officer while an inmate at the

23

Metropolitan Correctional Center (the “MCC”).

24

argues primarily that his resentencing by videoconference

25

constituted a violation of his right to be physically present.

26

We agree with Salim that the government has not satisfied its

27

burden of proving that he waived his right to be present and that

28

the district court erred in finding a valid waiver.

29

error is subject to plain error review and, in these

30

circumstances, Salim was not prejudiced.

2

On appeal, Salim

But this

We also reject Salim’s

Case: 10-3648

Document: 141-1

Page: 3

08/24/2012

1

arguments that his resentence was unreasonable.

2

701630

21

AFFIRM the judgment of the district court.

3
4
5

We therefore

BACKGROUND
I.

Factual Background
The facts of this case are fully set forth in this Court’s

6

prior opinion in United States v. Salim, 549 F.3d 67 (2d Cir.

7

2008).

For present purposes, they may be summarized as follows:

8

On November 1, 2000, Salim was incarcerated at the MCC

9

awaiting trial upon the indictment in United States v. Usama Bin

10

Laden, et al., S9 98 Cr. 1023 (LBS), in which numerous alleged al

11

Qaeda members were charged with a conspiracy to kill Americans.

12

On that day, Salim and his cellmate (and co-defendant in the

13

terrorism case) Kholfan Khamis Mohamed planned to take a guard’s

14

keys so that Salim could attack his lawyers in an attorney-inmate

15

meeting room.

16

withdraw their representation so that District Judge Sand, who

17

was presiding over the terrorism case and previously had denied

18

Salim’s repeated requests for new lawyers, would have to grant

19

substitute counsel.

20

Their goal was to force Salim’s attorneys to

Salim began to put the plan into effect when, while meeting

21

with his lawyers in one of the meeting rooms, he asked to go back

22

to his cell to retrieve certain materials.

23

Officer Louis Pepe escorted him to his cell, Salim began singing

24

-- a prearranged signal to Mohamed, who was waiting in the cell.

3

As Corrections

Case: 10-3648

Document: 141-1

Page: 4

08/24/2012

701630

21

1

When Salim and Officer Pepe arrived at the cell, Mohamed grabbed

2

Officer Pepe’s walkie-talkie and Salim knocked Officer Pepe down,

3

sprayed hot sauce in his eyes, and stabbed him in the left eye

4

with the end of a sharpened plastic comb.

5

Pepe’s keys, Salim and Mohamed locked Officer Pepe in the cell

6

and Salim headed back towards the meeting room where his lawyers

7

waited.

8
9

Having taken Officer

He was subdued by other guards en route.

Officer Pepe was severely injured.

He lost his left eye,

incurred reduced vision in his right eye, and suffered brain

10

damage that left his right side partially paralyzed and

11

interfered with other normal functions, including his ability to

12

speak and write.

13

II.

14

Procedural Background
Salim’s attack on Officer Pepe resulted in numerous

15

additional charges, which were indicted separately from the

16

terrorism case and assigned to District Judge Batts.

17

2002, those charges were resolved when Salim pled guilty to

18

conspiracy to murder, and attempted murder of, a federal

19

official, see 18 U.S.C. §§ 1114, 1117, pursuant to a plea

20

agreement without any Sentencing Guidelines understanding.

21

On April 3,

After a Fatico hearing and briefing, the district court

22

issued an opinion containing findings of fact and legal

23

conclusions.

24

(S.D.N.Y. 2003).

See United States v. Salim, 287 F. Supp. 2d 250
Among other rulings, the district court

4

Case: 10-3648

Document: 141-1

Page: 5

08/24/2012

701630

21

1

rejected the government’s argument for a terrorism enhancement.

2

The government believed this enhancement was warranted because

3

Salim had attempted to coerce Judge Sand into appointing

4

substitute counsel.

5

the terrorism enhancement applied only to transnational conduct

6

whereas the prison assault was purely domestic.

7

54.

8

government that an obstruction of justice enhancement was

9

warranted based on Salim’s repeated denials at the Fatico hearing

10

that the motive for his attack was to force Judge Sand to appoint

11

new counsel.

12

The district court, however, concluded that

See id. at 353-

In a subsequent order, the district court agreed with the

The initial sentencing took place on May 3, 2004.

Although

13

the Guidelines range was 262 to 327 months, the district court

14

departed upward and imposed a 384-month sentence due to factors

15

including (1) the “unusually cruel, brutal . . . and . . .

16

gratuitous infliction of injury,” Appendix (“App.”) 480, (2) that

17

the attack was part of a broader scheme to attack Salim’s

18

attorneys, and (3) that Salim had secured Mohamed’s help through

19

religious and psychological coercion.

20

Salim appealed his sentence.

While that appeal was pending,

21

the Supreme Court decided United States v. Booker, 534 U.S. 220

22

(2005), which rendered the Sentencing Guidelines advisory rather

23

than mandatory, and our Court thereafter decided United States v.

24

Crosby, 397 F.3d 103 (2d Cir. 2005), which, in light of Booker,

5

Case: 10-3648

Document: 141-1

Page: 6

08/24/2012

701630

21

1

provided for remand to “permit[] the sentencing judge to

2

determine whether to resentence, . . . and if so, to resentence,”

3

id. at 117 (emphasis omitted).

4

district court pursuant to Crosby.

5

declined to resentence Salim after concluding that it would have

6

imposed the same sentence under an advisory Guidelines regime.

7

Salim again appealed, arguing that the district court had

We remanded Salim’s case to the
On remand, the district court

8

erroneously imposed various enhancements, including the

9

obstruction enhancement.

The government cross-appealed from the

10

district court’s decision not to impose a terrorism enhancement.

11

We rejected Salim’s arguments but agreed with the government that

12

the terrorism enhancement does not require transnational conduct

13

and thus should apply in this case.

14

78.

Salim, 549 F.3d at 73-76,

We vacated the sentence and again remanded.

15

Id. at 79.

On remand, Salim’s counsel argued that, for various reasons,

16

Salim’s sentence either should be reduced or should stay the

17

same.

18

Guidelines-recommended sentence in light of the now-applicable

19

terrorism enhancement.

20

the district court rejected Salim’s arguments and concluded that

21

a life sentence was appropriate.

22

court stated that its reasons for departing upward in the

23

original sentence -– most prominently, the severity and purpose

24

of the crime -- prevented it from departing below the Guidelines

The government argued for a life sentence, which was the

In an opinion issued before resentencing,

Specifically, the district

6

Case: 10-3648

Document: 141-1

Page: 7

08/24/2012

701630

21

1

on resentencing.

2

to impose a life sentence was based on [its] erroneous legal

3

analysis [regarding the terrorism enhancement] and had nothing to

4

do with the ‘nature and circumstances of the offense’ or the

5

‘history and characteristics of the defendant.’”

6

Appendix 239-40 (quoting 18 U.S.C. § 3553(a)(1)).

7

It also noted that its prior “determination not

Special

Prior to resentencing, Salim’s lawyer sent the district

8

court a letter that stated that he had recently spoken with his

9

client and that Salim did not wish to be present in court for the

10

resentencing.

11

[Salim] be permitted to waive his presence at [re]sentencing

12

pursuant to Rule 43(c)(1)(B) of the Federal Rules of Criminal

13

Procedure, or, alternatively, that the [re]sentencing proceed via

14

videoconferencing.”

15

letter and ordered that Salim’s “presence in person [was] waived

16

for re-sentencing in that a video hook up shall be arranged by

17

the Government.”

18

“On [Salim’s] behalf, [counsel] request[ed] that

App. 1104.

The district court endorsed the

Id.

At the resentencing on August 31, 2010, Salim’s counsel was

19

present and Salim attended by videoconference.2

20

the district court had the following colloquy with Salim:

21

1
2
3
4
5

THE COURT:

At the outset,

Mr. Salim is not present in person in

2

On appeal, Salim complains that there were technical
difficulties with the videoconference link. Although there were
some difficulties early on and periodically thereafter, they did
not interfere with the actual proceedings or with Salim’s ability
to communicate with the district court.
7

Case: 10-3648

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37

Document: 141-1

Page: 8

08/24/2012

701630

21

the courtroom today.
Mr. Salim, I wish to confirm that it is
your wish to waive your appearance in
this courtroom pursuant to Rule
43(c)(1)(B) of the Federal Rules of
Criminal Procedure. Is that correct?
THE DEFENDANT: Your Honor, do you want me to answer
this question?
THE COURT:

Yes.

THE DEFENDANT: Your Honor, when they brought me in and
they moved me from one prison to
another, there are guards. And the
officer spit on me and beat me, and
that’s why I refuse to come over.
THE COURT:

So you do not wish to waive your
presence and you would prefer to be
here?

THE DEFENDANT: No, your Honor. I don’t want to come to
the Court. So I’m not going to be
subjected to being beaten up and to be
spit on.
THE COURT:

So then you waive your presence here
this afternoon?

THE DEFENDANT: Therefore, your Honor, I am waiving my
right to appear before you.
THE COURT:

Thank you, Mr. Salim.

Id. at 1114-15.
After hearing statements from Officer Pepe, from Salim and

38

his lawyer, and from the government, the district court imposed a

39

life sentence as recommended by the Guidelines.

8

Salim appeals.

Case: 10-3648

Document: 141-1

1
2
3

Page: 9

08/24/2012

701630

21

DISCUSSION
I.

The Right to Be Present at Resentencing
Salim argues, inter alia, that his attendance at

4

resentencing by videoconference violated his right to be

5

physically present and that his waiver of physical presence was

6

not voluntary because it was premised on his fear of abuse by

7

correctional officers.

8

A.

Applicable Law

9

Under both the Constitution and Federal Rule of Criminal

10

Procedure 43(a)(3), a criminal defendant has the right to be

11

present during sentencing.

12

United States v. Arrous, 320 F.3d 355, 359 (2d Cir. 2003)

13

(“[W]here the district court re-enters a sentence which has been

14

vacated or set aside by the Court of Appeals . . . , a defendant

15

has a constitutional right to be present, because technically a

16

new sentence is being imposed in place of the vacated

17

sentence.”).

This right extends to resentencing.

18

Although it is an issue of first impression in this circuit,

19

every federal appellate court to have considered the question has

20

held that a defendant’s right to be present requires physical

21

presence and is not satisfied by participation through

22

videoconference.

23

764-65 (6th Cir. 2011); United States v. Torres-Palma, 290 F.3d

24

1244, 1245-48 (10th Cir. 2002); United States v. Lawrence, 248

See United States v. Williams, 641 F.3d 758,

9

Case: 10-3648

Document: 141-1

Page: 10

08/24/2012

701630

21

1

F.3d 300, 301, 303-04 (4th Cir. 2001); United States v. Navarro,

2

169 F.3d 228, 235-39 (5th Cir. 1999), cert. denied, 528 U.S. 845

3

(1999).

4

dissenting) (opining that the defendant’s sentencing by

5

videoconference did not violate his right to be present).

6

Because both parties argue from this premise, we assume without

7

deciding that “presence” requires physical presence and is not

8

satisfied by videoconference.

9

But see Navarro, 169 F.3d at 239-42 (Politz, J.,

In a non-capital case, a defendant may waive his right to be

10

present as long as that waiver is knowing and voluntary.

11

Fed. R. Crim. P. 43(c)(1)(B); United States v. Mera, 921 F.2d 18,

12

20 (2d Cir. 1990) (per curiam).

13

of demonstrating by a preponderance of the evidence that a

14

defendant waived his constitutional rights.”

15

Lynch, 92 F.3d 62, 65 (2d Cir. 1996).

16

erroneous denial of a defendant’s right to be present during

17

resentencing is grounds for reversal only if the defendant

18

suffered prejudice as a result of the deprivation.

19

States v. DeMott, 513 F.3d 55, 58 (2d Cir. 2008); Arrous, 320

20

F.3d at 361-62; United States v. Pagan, 785 F.2d 378, 380-81 (2d

21

Cir. 1986).

22

a violation of the right to be present at sentencing “is per se

23

prejudicial”).

24
25

See

“The government bears the burden

United States v.

We have held that the

See United

But see Torres-Palma, 290 F.3d at 1248 (holding that

We therefore turn to whether the government has proven, as
the district court found, that Salim knowingly and voluntarily
10

Case: 10-3648

1

Document: 141-1

Page: 11

08/24/2012

701630

21

waived his right to be present for resentencing.

2

B.

Salim’s Purported Waiver of Presence

3

Salim contends that his waiver of presence was not voluntary

4

because it was premised on his fear of physical abuse by

5

correctional officers.

6

response: first, that Salim’s lawyer properly waived Salim’s

7

presence through counsel’s letter to the district court before

8

resentencing; and second, that Salim reiterated and confirmed his

9

waiver directly to the district court at the outset of the

10

resentencing proceedings.

11
12

The government makes two arguments in

1.

Defense Counsel’s Purported Waiver by Letter

“Although it is certainly preferable that the waiver [of

13

presence] come from the defendant directly, there is no

14

constitutional requirement to that effect.”

Polizzi v. United

15

States, 926 F.2d 1311, 1322 (2d Cir. 1991).

A defendant’s lawyer

16

may waive presence on the defendant’s behalf.

17

waiver through counsel, like all waivers of constitutional

18

rights, still must be knowing and voluntary on the part of the

19

defendant.

20

district court inquired of defense counsel whether, inter alia,

21

“the defendant understood his right to be present and whether he

22

was voluntarily and knowingly waiving that right, affirmatively

23

requesting that the trial proceed in his absence and giving up

24

any claim” of prejudice).

25
26

But a defendant’s

See id. at 1313 (describing a procedure wherein the

The government has not satisfied its burden of proving that
Salim, through his lawyer’s letter, knowingly and voluntarily
11

Case: 10-3648

Document: 141-1

Page: 12

08/24/2012

701630

21

1

waived his right to be present at resentencing.

2

stated only that counsel had “recently spoken to” Salim and

3

requested, on Salim’s behalf, that Salim be allowed “to waive his

4

presence at [re]sentencing . . . or, alternatively, that the

5

[re]sentencing proceed via videoconferencing.”

6

words, without more, do not speak to knowledge or voluntariness,

7

and the government cannot prove –- and the district court could

8

not have found -- an adequate waiver by relying on them.

9
10

2.

The letter

App. 1104.

These

Salim’s Purported Waiver over Videoconference

As resentencing commenced, the district court appropriately

11

stated to Salim over the videoconference link that it “wish[ed]

12

to confirm that it [was Salim’s] wish to waive [his] appearance

13

in th[e] courtroom,” id. at 1114.

14

566 F.3d 77, 83 (2d Cir. 2009) (“To establish waiver, the

15

District Court must conduct a record inquiry to determine whether

16

the defendant's absence was ‘knowing and voluntary’ . . . .”).

17

Salim responded that he did indeed waive his presence, but that

18

he did so because at least one correctional officer allegedly had

19

“spit on” and “beat[en]” him the last time Salim had been moved.

20

App. 1114.

21

Court” because he did not want “to be subjected to being beaten

22

up and . . . spit on” again.

23

this waiver and proceeded with resentencing.

24

See United States v. Tureseo,

He claimed that he did not “want to come to the

Id.

The district court accepted

Here again, the government has not satisfied its burden of

25

proving that Salim’s waiver was voluntary.

26

waiver of a constitutional right must be “the product of a free
12

To be voluntary, a

Case: 10-3648

Document: 141-1

Page: 13

08/24/2012

701630

21

1

and deliberate choice rather than intimidation, coercion, or

2

deception.”

3

(internal quotation marks omitted).

4

resulted from fears of intimidation and physical abuse.

5

government has not established that Salim was lying about the

6

abuse, that the fear he expressed was not reasonably grounded, or

7

that he would not have attended resentencing even if his safety

8

could be reasonably assured.

Berghuis v. Thompkins, 130 S. Ct. 2250, 2260 (2010)
Salim’s waiver allegedly
The

9

Nor did the district court undertake to assess the

10

reasonableness of Salim’s alleged fears or determine whether

11

assurances could have been made that would assuage those fears.

12

In comparable situations, we and the Supreme Court have held that

13

a careful judicial inquiry is required before a court may accept

14

an in-court waiver of constitutional procedural rights.

15

Faretta v. California, 422 U.S. 806, 814 (1975) (right to counsel

16

and the “correlative right to dispense with a lawyer’s help”

17

(internal quotation marks omitted)); Boykin v. Alabama, 395 U.S.

18

238, 243-44 (1969) (rights against self-incrimination, to trial,

19

and to confront one’s accusers, which may be waived by entering a

20

guilty plea); United States v. Curcio, 680 F.2d 881, 889-90 (2d

21

Cir. 1982) (right to conflict-free counsel).

22

urges that the district court, which observed Salim during this

23

colloquy, implicitly rejected Salim’s claimed fears of abuse as

24

incredible.

25

to assess Salim’s credibility and, if appropriate, reject his

26

explanation for his waiver.

See

The government

It is true that the district court was in a position

But the district court made no
13

Case: 10-3648

Document: 141-1

Page: 14

08/24/2012

701630

21

1

findings to that effect.

The government’s argument therefore is

2

speculative and we cannot uphold the district court’s acceptance

3

of Salim’s waiver on this basis.

4

C.

Prejudice Analysis

5

Our analysis does not end with our determination that the

6

government has not met its burden of proving that Salim knowingly

7

and voluntarily waived his right to be physically present at

8

resentencing.

9

waiver warrants reversal and remand only if Salim suffered

The district court’s error in finding a valid

10

prejudice as a result.

11

F.3d at 361-62; Pagan, 785 F.2d at 380-81.

12

See DeMott, 513 F.3d at 58; Arrous, 320

When a criminal defendant does not preserve an issue below

13

by objecting, we apply a plain error standard instead of a

14

harmless error one.

15

509, 515 & n.2 (2d Cir. 2009) (Confrontation Clause context);

16

United States v. Vaval, 404 F.3d 144, 151 (2d Cir. 2005) (Rule 11

17

context).

18

Salim’s waiver of presence at resentencing for plain error.

19

e.g., United States v. Jones, 662 F.3d 1018, 1027 (8th Cir.

20

2011); United States v. Henderson, 626 F.3d 326, 343 (6th Cir.

21

2010); United States v. Holman, 289 F. App’x 680, 681 (5th Cir.

22

2008); United States v. Williams, 241 F. App’x 681, 684 (11th

23

Cir. 2007); United States v. Terrazas, 190 F. App’x 543, 548-49

24

(9th Cir. 2006); United States v. Rhodes, 32 F.3d 867, 874 (4th

25

Cir. 1994).

26

See, e.g., United States v. Garcia, 587 F.3d

We therefore review the district court’s acceptance of
See,

As explained recently by the Supreme Court, when reviewing
14

Case: 10-3648

1
2
3
4
5
6
7
8
9
10

Document: 141-1

Page: 15

08/24/2012

701630

21

for plain error,
an appellate court may, in its discretion, correct an
error not raised at trial only where the appellant
demonstrates that (1) there is an error; (2) the error
is clear or obvious, rather than subject to reasonable
dispute; (3) the error affected the appellant’s
substantial rights, which in the ordinary case means it
affected the outcome of the district court proceedings;
and (4) the error seriously affects the fairness,
integrity or public reputation of judicial proceedings.

11

United States v. Marcus, ––– U.S. ––––, 130 S. Ct. 2159, 2164

12

(2010) (brackets and internal quotation marks omitted).

13

defendant bears “the burden of establishing entitlement to relief

14

for plain error.”

15

74, 82 (2004).

16

The

United States v. Dominguez Benitez, 542 U.S.

Even assuming that Salim has satisfied the first two prongs

17

of plain error review –- by showing that there was an error and

18

that it was clear or obvious –- he has not met the third or

19

fourth.

20

affected the outcome of his resentencing.

21

at 58 (in harmless error review of erroneous deprivation of right

22

to be present at resentencing, violation was harmless if, inter

23

alia, the “defendant’s presence would not have affected the

24

outcome” of the resentencing).

25

district court issued an opinion in which it found that the

26

circumstances of Salim’s crime “preclude[d] any finding in favor

27

of the Defendant for a non-guidelines sentence,” App. 1101, i.e.,

28

a sentence of less than life imprisonment.

29

also clarified that its prior “determination not to impose a life

30

sentence was based on [its] erroneous legal analysis and had

Salim has not proven that his presence would have
Cf. DeMott, 513 F.3d

Before the resentencing, the

15

The district court

Case: 10-3648

Document: 141-1

Page: 16

08/24/2012

701630

21

1

nothing to do with the ‘nature and circumstances of the offense’

2

or the ‘history and characteristics of the defendant,’” id. at

3

1100-01 –- the sort of considerations that sometimes weigh in

4

favor of a below-Guidelines sentence under 18 U.S.C.

5

§ 3553(a)(1).

6

live videoconference link, Salim was not prevented from making

7

any statement he chose to the district court.

8

considerations, Salim has offered no explanation for why his

9

physical presence might have led to a resentence of less than

10

And, during the resentencing, by virtue of the

Against these

life imprisonment.

11

Salim protests that the district court did not allow him to

12

read on the record a ten-page “motion” (alternatively called a

13

“statement”), App. 1123-24, that he had faxed to the district

14

court on the day of resentencing.

15

speak before the imposition of sentence.

16

32(i)(4)(A).

17

court’s decision not to hear Salim’s motion was tied to his lack

18

of physical presence, Salim’s right to speak was not violated

19

here.

20

were to be made by counsel and that, in any case, it would not

21

rule on any motions made at this late date.

22

asked Salim what he “ha[d] to say in relation to sentencing,”

23

App. 1124, and Salim spoke, as was his right.

24

district court offered Salim’s counsel a break to consider

25

whether he wished to raise in his attorney statement any of the

26

points from Salim’s motion.

Defendants have the right to
Fed. R. Crim. P.

Even on the dubious assumption that the district

The district court did not err in stating that motions

The district court

Later, the

Counsel declined the break and made
16

Case: 10-3648

Document: 141-1

Page: 17

08/24/2012

701630

21

1

a statement that “incorporate[d]” the motion, id. at 1128.

2

these circumstances, Salim’s right to speak before the imposition

3

of resentence was not violated.

4

In

Nor has Salim proven the fourth plain error factor -- that

5

the district court’s acceptance of his waiver of presence

6

seriously affected the fairness, integrity or public reputation

7

of judicial proceedings.

8

outcome of proceedings typically does not meet this prong.

9

Marcus, 130 S. Ct. at 2166.

An error that does not affect the

This is because “the plain-error

10

exception to the contemporaneous-objection rule is to be used

11

sparingly,” “to correct only particularly egregious errors” when

12

“a miscarriage of justice would otherwise result.”

13

v. Young, 470 U.S. 1, 15 (1985) (internal quotation marks

14

omitted).

15

absence might have altered his resentence, nor has he

16

demonstrated that any error in his resentencing was so egregious

17

as to warrant relief on plain error review.

18

United States

As discussed earlier, Salim has not explained why his

In sum, we see no basis for concluding that the acceptance

19

of Salim’s waiver of presence, while erroneous on this record,

20

warrants reversal under a plain error standard.

21

II.

22

The Reasonableness of Salim’s Resentence
Salim makes several challenges to the reasonableness of his

23

resentence.

“We are constrained to review sentences for

24

reasonableness, and we do so under a deferential abuse-of-

25

discretion standard.

We examine sentences for both substantive

17

Case: 10-3648

Document: 141-1

Page: 18

08/24/2012

701630

21

1

and procedural reasonableness, setting aside a sentence as

2

substantively unreasonable only in those special cases where the

3

range of permissible decisions does not encompass the [d]istrict

4

[c]ourt’s determination.”

5

305, 308 (2d Cir. 2012) (internal quotation marks and citations

6

omitted).

7

district court (1) fails to calculate the Guidelines range; (2)

8

is mistaken in the Guidelines calculation; (3) treats the

9

Guidelines as mandatory; (4) does not give proper consideration

United States v. Diamreyan, 684 F.3d

“A sentence is procedurally unreasonable when[] the

10

to the § 3553(a) factors; (5) makes clearly erroneous factual

11

findings; (6) does not adequately explain the sentence imposed;

12

or (7) deviates from the Guidelines range without explanation.”

13

Id.

14

Salim argues that his resentence was procedurally

15

unreasonable because the district court imposed a longer sentence

16

at resentencing than it had imposed originally.

17

court originally imposed a sentence of 32 years’ imprisonment.

18

At that point, in Salim’s view, the district court knew

19

everything about his case that it knew at the resentencing.

20

Furthermore, the district court did not give the original 32-year

21

sentence because of adherence to then-mandatory Guidelines; it

22

departed upward from those Guidelines, so the original sentence

23

must have been what the district court thought was right under

24

the circumstances.

25

could not have imposed a heavier sentence on remand, when the

26

Guidelines were no longer mandatory, and when all that had

The district

Therefore, Salim argues, the district court

18

Case: 10-3648

Document: 141-1

Page: 19

08/24/2012

701630

21

1

changed was the Guidelines recommendation, unless the district

2

court took the Guidelines to be mandatory or at least

3

presumptively correct.

4

constitute an abuse of discretion.

5

616 F.3d 174, 182-83 (2d Cir. 2010).

6

the fact that our Court had instructed the district court that

7

the terrorism enhancement applied cannot explain the increased

8

sentence on remand, as that determination was based simply on the

9

meaning of the Guidelines, and not on any disagreement with the

Either of those presumptions would
See United States v. Dorvee,
Furthermore, Salim argues,

10

district court’s findings of fact; we did not, for example,

11

reject the district court’s fact-finding and conclude that Salim

12

was actually engaged in a larger hostage-taking plot, rather than

13

in an attempt to scare his attorneys into resigning and to force

14

Judge Sand to appoint new counsel.

15

Salim’s argument is unavailing, as the sentencing factors

16

were different at the time of resentencing: the Guidelines

17

recommendation, which is a factor that 18 U.S.C. § 3553(a)

18

requires a judge to consider, had changed.

19

a factor, then it must follow that in some cases they are the

20

factor that tips the balance.

21

a difference, it is a non-factor.

22

the district court’s imposition of a life sentence at

23

resentencing was not procedurally unreasonable.

24

If the Guidelines are

After all, if a factor never makes
Accordingly, we conclude that

Salim’s challenge to the validity of the terrorism

25

enhancement Guideline itself is similarly unavailing.

26

that the terrorism enhancement, like the child pornography
19

He argues

Case: 10-3648

Document: 141-1

Page: 20

08/24/2012

701630

21

1

Guidelines, is not entitled to the respect or deference of a

2

sentencing judge because the enhancement was not the product of

3

empirical “research.”

4

inter alia, that “the [Sentencing] Commission did not use [its

5

typical] empirical approach in formulating the Guidelines for

6

child pornography,” but “[i]nstead, at the direction of Congress,

7

. . . amended the Guidelines . . . several times since their

8

introduction in 1987, each time recommending harsher penalties”).

9

In Dorvee, we analogized to the Supreme Court’s instruction, in

10

the context of crack-cocaine sentencing, that a judge is free to

11

disagree with the substance of a Guidelines recommendation, and

12

we held that it is not an abuse of discretion for a judge to

13

disagree with the child pornography Guidelines, given their

14

“irrationality” and questionable origins.

15

have never held that a district court is required to reject an

16

applicable Guideline.

17

Guidelines sentence where she disagrees with the weight the

18

Guidelines assign to a factor.

19

See Dorvee, 616 F.3d at 184-85 (noting,

See id. at 187-88.

We

At most, the judge may give a non-

Here, there is no indication that the district court

20

disagreed with the terrorism enhancement, or thought it compelled

21

(or established a presumption in favor of) a sentence that was

22

greater than necessary to accomplish the purposes of sentencing

23

set out in section 3553(a).

24

recognized expressly, in writing, that the Guidelines are

25

advisory, stated the correct standard, and discussed at length,

26

in terms of the statutory factors, why a life sentence was

Rather, the district court

20

Case: 10-3648

Document: 141-1

Page: 21

08/24/2012

701630

21

1

appropriate.

While the district court did not directly reject

2

Salim’s argument that it ought to ignore the terrorism

3

enhancement, we have never required judges to address every point

4

raised, where, as here, the district court made clear its reasons

5

for imposing a life sentence.

6

did not abuse its discretion in considering the terrorism

7

enhancement.

8
9

Accordingly, the district court

CONCLUSION
We have considered Salim’s remaining arguments and find them

10

to be without merit.

11

We therefore AFFIRM the judgment of the

district court.

21