USA v. Fahed Hamad

Filing

Per Curiam OPINION filed : The district court properly found Hamad to be a career offender. We AFFIRM. Decision not for publication. Jeffrey S. Sutton and Raymond M. Kethledge, Circuit Judges and Lee H. Rosenthal, U.S. District Judge for the Southern District of TX, sitting by designation.

Case: 13-2406

Document: 33-2

Filed: 09/11/2014

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0717n.06
No. 13-2406

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FAHED IDAN HAMAD,
Defendant-Appellant.

)
)
)
)
)
)
)
)
)
)

Sep 11, 2014
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF MICHIGAN

BEFORE: SUTTON and KETHLEDGE, Circuit Judges; ROSENTHAL, District Judge.*

PER CURIAM. Fahed Idan Hamad was convicted in 2013 of conspiring to rob a pharmacy
at gunpoint to get prescription drugs to sell. The district court sentenced him as a career offender,
imposing a 210-month prison term. He appeals his sentence on one ground: that one of the two
predicate convictions could not be counted toward career-offender status. We review a district
court’s decision that a prior conviction is a predicate offense for career-offender status de novo, see
United States v. Baker, 559 F.3d 443, 450 (6th Cir. 2009), and we affirm.
Hamad was 16 in 2008 when he shot a rifle 17 times at two individuals and was indicted for
felony assault. He was classified as an adult under Michigan law but allowed to plead guilty under

*

The Honorable Lee H. Rosenthal, United States District Judge for the Southern District
of Texas, sitting by designation.

Case: 13-2406

No. 13-2406

Document: 33-2

United States v. Hamad

Filed: 09/11/2014

Page: 2

Page 2

a Michigan judicial diversionary program known as the Holmes Youthful Trainee Act (HYTA).
M.C.L. 762.11. That program permits young offenders to plead guilty but avoid having judgment
entered on their convictions unless their youthful-trainee status is terminated or revoked before they
are released from the program.
Hamad pleaded guilty to assault in 2009. Judgment was deferred under the HYTA,
conditioned on his compliance with the terms of the youthful-trainee program. Hamad’s youthfultrainee status was revoked when he was convicted of a home invasion — another felony crime of
violence — in 2010, and judgment was entered on his 2009 guilty plea and conviction for assault.
In 2013, a jury found Hamad guilty of robbing the pharmacy at gunpoint and convicted him
of conspiracy to interfere with commerce by robbery and conspiracy to possess controlled substances
with the intent to distribute them, in violation of 18 U.S.C. § 1951 and 21 U.S.C. § 841. The federal
district court considered the 2009 and 2010 state felony convictions in sentencing Hamad as a career
offender under § 4B1.1 of the Sentencing Guidelines. Hamad argues that the 2009 assault conviction
is not a predicate conviction because he was statutorily ineligible for the deferred adjudication he
received under the HYTA after he pleaded guilty.
Hamad is correct that when he pleaded guilty in 2009, he was ineligible for the HYTA
diversionary program. The HYTA statute covers individuals who plead guilty to a “criminal offense
committed on or after the individual’s seventeenth birthday but before his or her twenty-first
birthday. . . .” M.C.L. 762.11. Hamad was 16 when he committed the assault. But while he is right
about being statutorily ineligible for the diversionary program, he is wrong that this prevented the
federal court from using his 2009 conviction as one of the two predicate offenses to establish federal
career-offender status.

Case: 13-2406

No. 13-2406

Document: 33-2

United States v. Hamad

Filed: 09/11/2014

Page: 3

Page 3

Federal law determines whether a state criminal offense is a prior conviction that can serve
as a qualifying offense for a sentencing enhancement under federal sentencing statutes. See United
States v. Pritchett, 749 F.3d 417, 424 (6th Cir. 2014). Federal law is clear that “a guilty plea alone
is enough.” Id. at 425 (quoting Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 112 (1983)). The
Sentencing Guidelines state that while diversion without a finding of guilt is not counted as an
offense for a Sentencing Guidelines enhancement, a guilty plea or other finding of guilt is counted,
even if a conviction is not formally entered. U.S.S.G. § 4A1.2(f). A juvenile adjudication may also
serve as a prior conviction under the Guidelines. U.S.S.G. § 4A1.2(d) and comment (n.7). In
Pritchett, this court joined other circuits in holding that a deferred, expunged, or dismissed state
conviction resulting from a state judicial diversionary program counts as a prior conviction for
enhancement under 21 U.S.C. § 841(b)(1)(A). 749 F.3d at 427. A diversionary disposition resulting
from a guilty plea is counted as a conviction that can enhance a sentence, even if judgment is never
entered. Id., 749 F.3d at 424–25; see also United States v. Graham, 622 F.3d 445, 460 n.15 (6th Cir.
2010) (noting that this circuit has “rejected the argument that a first-offender status adjudication
resulting in a sentence of probation is not a ‘prior conviction for a felony drug offense [that] has
become final’ for § 841 purposes” (quoting United States v. Miller, 434 F.3d 820 (6th Cir. 2006)).
In Pritchett, the court noted that a “prior conviction” is treated the same under § 4B1.1 of the
Sentencing Guidelines and 21 U.S.C. § 841(b)(1)(A). 749 F.3d at 426. This case is even easier than
the guilty plea without judgment discussed in Pritchett because the state court did enter judgment
on Hamad’s guilty plea and conviction.
Hamad’s argument that the state court lacked jurisdiction to enter the judgment because he
was not eligible for the diversionary disposition is without merit. To the extent this argument is a

Case: 13-2406

No. 13-2406

Document: 33-2

United States v. Hamad

Filed: 09/11/2014

Page: 4

Page 4

collateral attack on the state-court conviction, it is barred because he has not identified a statute
allowing such an attack, claimed a denial of his right to counsel, or shown that the state court vacated
the conviction. See Custis v. United States, 511 U.S. 485 (1994). And Hamad’s jurisdictional
argument ignores the fact that while state law made him ineligible for the youthful-trainee program,
he was charged as an adult. There is no basis to conclude that the state court lacked jurisdiction to
accept his guilty plea or, after he committed another violent felony, to enter the deferred judgment
of conviction.
The district court properly found Hamad to be a career offender. We affirm.