United States v. Wael Abdel-Karem

Filing

PER CURIAM OPINION FILED - THE COURT: LAVENSKI R. SMITH, C. ARLEN BEAM and DUANE BENTON (UNPUBLISHED) [3750189] [10-2173]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 10-2173
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United States of America,

*
*
Plaintiff - Appellee,
* On Appeal from the United
* States District Court for the
v.
* District of Minnesota.
*
Wael Abdel-Karem,
* [UNPUBLISHED]
also known as Skrill
*
*
Defendant - Appellant.
*
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Submitted: November 15, 2010
Filed: January 31, 2011
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Before SMITH, BEAM, and BENTON, Circuit Judges.
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PER CURIAM.
Wael Abdel-Karem pled guilty to one count of possession with intent to
distribute more than 50 grams of methampetamine, in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(A). The district court1 sentenced him to 144 months in
prison, below the advisory guideline range. Abdel-Karem appeals. This court
affirms.

The Honorable James M. Rosenbaum, United States District Judge for the
District of Minnesota, now retired.
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On August 17, 2009, officers executed a search warrant at Abdel-Karem’s
residence, finding 612 grams of meth and $12,680 cash in a basement bedroom, a
semi-automatic pistol with a loaded magazine under a pillow in his bedroom, 155
grams of powder cocaine in a kitchen cupboard, and 896 grams of meth in the garage.
Scales, a heat sealer, heat-sealer bags, and magazines for firearms were discovered
throughout the house.
The presentence investigation report (PSR) calculated a total offense level of
35, which included a two-level enhancement under U.S.S.G. § 2D1.1(b)(1) for the
possession of a dangerous weapon, and a three-level reduction for acceptance of
responsibility. Based on a criminal history of category III, the PSR concluded that
Abdel-Karem’s advisory range was 210 to 262 months.
The district court agreed with the PSR and rejected Abdel-Karem’s argument
that the two-level enhancement did not apply. After considering the government’s
motion for downward departure under U.S.S.G. § 5K1.1, the court sentenced him to
144 months.
Abdel-Karem appeals his sentence on the grounds that the district court erred
in applying a two-level enhancement for possession of a dangerous weapon, failing
to consider the nature and circumstances of his offense, and failing to explain
adequately its departure from the guideline range.
To trigger a sentencing enhancement under U.S.S.G. § 2D1.1(b)(1), “[t]he
government must simply show that it is not clearly improbable that the weapon was
connected to the drug offense.” United States v. Peroceski, 520 F.3d 886, 889 (8th
Cir. 2010), cert. denied, ___ U.S. ___, 129 S. Ct. 259 (2008). This court reviews for
clear error the factual finding supporting a sentencing court’s imposition of this
enhancement. See United States v. Brewer, 624 F.3d 900, 907 (8th Cir. 2010).
Abdel-Karem argues that the pistol was not connected to his offense because he used
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it only for personal protection (after a recent assault), and because no drugs were
found in the same room as the pistol. However, his assailants were rivals in the drug
trade, and meth and related paraphernalia were found throughout his home. Given
these facts, the district court did not commit clear error in applying the sentencing
enhancement.
Abdel-Karem also argues that the district court failed to consider the nature and
circumstances of his offense and his personal history as required by 18 U.S.C. §
3553(a). This court reviews for abuse of discretion the substantive reasonableness
of a defendant’s sentence. See United States v. Feemster, 572 F.3d 455, 461 (8th Cir.
2009) (en banc). “The sentencing judge should set forth enough to satisfy the
appellate court that he has considered the parties’ arguments and has a reasoned basis
for exercising his own legal decisionmaking authority.” Rita v. United States, 551
U.S. 338, 356 (2007). The district court heard and discussed aspects of AbdelKarem’s personal history, family life, and the circumstances of his offense –
adequately explaining the basis for its sentence. See United States v. Perkins, 526
F.3d 1107, 1111 (8th Cir. 2008) (“If a district court references some of the
considerations contained in § 3553(a), we are ordinarily satisfied that the district
court was aware of the entire contents of the relevant statute.”) (internal quotation
omitted).
Abdel-Karem challenges the extent of the district court’s downward departure
under U.S.S.G. § 5K1.1. “Absent an allegation that the district court was motivated
by an unconstitutional motive in arriving at its downward departure, we may not
review the extent of [such] a downward departure in the defendant’s favor.” United
States v. Billue, 576 F.3d 898, 905 (8th Cir. 2009), cert. denied, ___ U.S. ___, 130
S. Ct. 765 (2009) (alteration in original) (internal quotation omitted). This court
cannot review Abdel-Karem’s downward departure claim, because he does not allege
an unconstitutional motive.
The judgment of the district court is affirmed.
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