[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 28, 2009
No. 08-16642 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 98-00154-CR-J-20-TEM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RUBEN LEE RUSSELL EL-AMIN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 28, 2009)
Before TJOFLAT, EDMONDSON and FAY, Circuit Judges.
PER CURIAM:
Ruben Lee Russell El-Amin appeals the district court’s 24-month sentence
imposed upon the revocation of his supervised release. For the reasons set forth
below, we affirm.
I.
In 2001, El-Amin pled guilty, pursuant to a written plea agreement, to three
counts of submitting fraudulent W-2 forms to the Internal Revenue Service, in
violation of 18 U.S.C. §§ 287 and 2. On May 30, 2001, the district court entered a
judgment of conviction, sentencing El-Amin to 71 months’ imprisonment and
3 years of supervised release, and ordering him to pay $1,032 in restitution. The
terms of El-Amin’s supervised release required that he, inter alia, refrain from
committing another federal, state, or local offense, report to the probation officer as
directed, work regularly at a lawful occupation, and pay any restitution ordered by
the court. On June 4, 2001, El-Amin filed a pro se motion for appointment of
appellate counsel, but the district court denied the motion, and no direct appeal was
ever taken.
In January 2008, El-Amin began serving his term of supervised release, but,
in August 2008, he was arrested for violating the conditions of his supervision.
The probation officer alleged that El-Amin had violated his supervision by:
1) failing to pay restitution, as ordered by the court; 2) failing to work regularly at
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a lawful occupation; 3) failing to report to the probation office, as directed, on four
separate occasions; and 4) committing new criminal conduct, namely, aggravated
assault by threatening his son with a knife.
At the revocation hearing, the court first reviewed the allegations against
El-Amin, noted that the aggravated-assault allegation was a Grade A violation, and
explained that, if it revoked his supervised release, it could impose the statutory
maximum sentence of 24 months’ imprisonment for each of his three original
underlying offenses, to run consecutively.
The government called Officer P.J. Bouda of the Jacksonville Police
Department, who testified that, on July 14, 2008, he responded to a call from
El-Amin’s 18 year old son, Paul, who stated that El-Amin threatened to stab him
with a knife. When Bouda arrived at the scene, Paul told Bouda that he and El-
Amin had argued, they had each punched each other in the face, and, during the
fight, El-Amin grabbed a knife from the kitchen and came at Paul. At that point,
Paul ran back into his bedroom and locked the door, and El-Amin “started stabbing
at the door trying to get into the door.” Paul then climbed out of his bedroom
window, called the police, and met Bouda outside the gate of the apartment
complex. At the time Paul and Bouda met, Paul told Bouda that he was “afraid” of
El-Amin, and he acted “very afraid” as well. Bouda later spoke with El-Amin and
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his wife, both of whom stated that, although El-Amin had come at Paul with a
knife, El-Amin did so only to scare Paul, not to harm him. After El-Amin admitted
that he intended to scare Paul with the knife, Bouda placed El-Amin under arrest
for aggravated assault with a deadly weapon. During Bouda’s investigation of the
incident, he “observed five knife marks in the bedroom door of Paul El-Amin, one
of them being so strong that it actually went through the door to the other side and
you could see where the knife came out the other side.” When asked if he thought
the knife incident might have been a prank, Bouda responded:
By the way the victim was scared, I do not believe that it was a prank.
You don’t stab at someone’s door for a prank. With the force that he
used to stab through that door, to make it to the other side of the door
with the knife, I do not believe that it was a prank. I believe that he
intentionally meant to scare the victim.
Bouda clarified that, although he did believe that El-Amin meant to scare Paul, he
did not believe that El-Amin actually intended to harm him.
The government called the probation officer, Joseph Pinto, and, although he
testified mostly about the other six alleged supervision violations, Pinto noted that
he had spoken to El-Amin’s wife, who told him that El-Amin “actually went after
his son . . . with a knife, but in her opinion he didn’t want to physically harm him,
he just wanted to scare him . . . .”
El-Amin then called his wife, Lula, who testified in a manner generally
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consistent with the above testimony, emphasizing that El-Amin never intended to
harm Paul with the knife, but rather just wanted to “chastise” or “scare” him for
disciplinary purposes. Although she initially testified that El-Amin merely
“nicked” Paul’s bedroom door with the knife, she ultimately acknowledged that he
drove the knife through the door out of frustration.
The court ultimately found that El-Amin had committed all of the alleged
violations of his supervision, with the exception of one count of failing to report to
the probation officer. With respect to the aggravated-assault allegation, the court
rejected defense counsel’s argument that El-Amin was merely attempting to
discipline Paul through corporal punishment and found that:
the defendant got into an argument with his son, Paul El-Amin, and
that the defendant Ruben El-Amin went into the kitchen, after an
exchange of words, grabbed a knife and started towards Paul El-Amin
with the knife. Obviously Mr. Paul El-Amin was concerned and felt
threatened by this knife, because he retreated through the apartment
into a bedroom, locked the bedroom door. And after the door to the
bedroom was locked, Mr. El-Amin took the knife and thrust it into the
door at least five times, at one point actually driving the knife through
the door. And it appears to me that placing somebody in fear of being
stabbed with a knife is exactly what took place, and that’s the crime
that was proscribed by the Florida Statutes in this instance. It was
enough to scare him, it was enough for him to be worried about the
knife, and the knife marks in the door show that the defendant actually
would have, if he possibly could, used the knife against his son.
. . . . If [the] son wasn’t scared, he didn’t have to lock the door and go
out the window and call the police. He could have said, mom, tell him
to put the knife down and let me know when he does and I’ll come
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out, but that’s not what happened.
After the court heard argument from the parties, and El-Amin requested leniency,
the court revoked El-Amin’s supervised release and sentenced him to 24 months’
imprisonment for each of his three original underlying offenses, to run
concurrently. The court explained its sentence as follows:
I believe the actual guideline range as to each count is . . . 33 to 41
months, but the statutory maximum is the 24 months. . . .
So that is the sentence that I’ll impose in the case.[1]
After he’s completed the service of that sentence he’ll be discharged
from any jurisdiction of the Court. I don’t believe that the defendant
is supervisable, taking into consideration not only the underlying
violations, but what’s happened during the period of his
supervision. . . . .
Now, in imposing the sentence, I’ve considered the factors set forth in
Title 18 of the United States Code, Section 3553(a), and the advisory
guidelines and policy statements that have been issued by the United
States Sentencing Commission. . . .
[T]he problem with you is you blame it on everybody else other than
yourself. I mean, how do you pick up a knife in a kitchen? There are
so many ways to discipline an 18-year-old that lives in the house with
you. The biggest thing is, hey, you’re 18 and you’re graduated from
high school, move out next week, you’re on your own. . . .
Rather than pick up a knife and go running after him. You got to
learn to control that.
1
See U.S.S.G. § 7B1.4(b)(1) (“Where the statutorily authorized maximum term of
imprisonment that is imposable upon revocation is less than the minimum of the applicable range,
the statutorily authorized maximum term shall be substituted for the applicable range.”).
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During the course of the supervised release proceedings, El-Amin, through
counsel, filed a motion to reopen the time for filing a direct appeal, arguing that his
June 4, 2001 pro se motion for appointment of appellate counsel should have been
liberally construed as a timely notice of appeal. The district court denied the
motion.
II.
On appeal, El-Amin first argues that the court erred by not authorizing him
to file a belated direct appeal of his original sentence, repeating his argument that
his pro se motion for appellate counsel should have been construed as a timely
notice of appeal. However, El-Amin does not identify the source of the district
court’s authority to do so, and it is well-established under our case law that a
supervised release revocation proceeding is not the proper forum in which to attack
the underlying conviction, United States v. Francischine, 512 F.2d 827, 828 (5th
Cir. 1975),2 or the underlying sentence, United States v. White, 416 F.3d 1313,
1316 (11th Cir. 2005). Instead, the underlying conviction and sentence are
presumed valid until vacated in a separate proceeding under 28 U.S.C. § 2255.3
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted
as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.
3
In this respect, we also note that, since El-Amin has previously filed a 28 U.S.C. § 2255
motion that was denied on the merits, allowing him to raise his claim in the revocation context
would allow him to circumvent the statutory restrictions on filing a successive § 2255 motion. See
28 U.S.C. § 2255(h).
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United States v. Almand, 992 F.2d 316, 317 (11th Cir. 1993); Francischine, 512
F.2d at 828. Accordingly, we do not address the merits of El-Amin’s argument.
III.
El-Amin next argues that the district court erred by finding that he
committed aggravated assault, a Grade A violation of supervision. “We review the
district court’s conclusion that appellant violated the terms of his supervised
release for abuse of discretion.” United States v. Copeland, 20 F.3d 412, 413 (11th
Cir. 1994). The district court may revoke a defendant’s term of supervised release
if the court “finds by a preponderance of the evidence that the defendant violated a
condition of supervised release . . . .” 18 U.S.C. § 3583(e)(3).
Under Florida law, “[a]n ‘assault’ is an intentional, unlawful threat by word
or act to do violence to the person of another, coupled with an apparent ability to
do so, and doing some act which creates a well-founded fear in such other person
that such violence is imminent.” Fla. Stat. § 784.011. Thus, “[t]he statute requires
proof of three elements: (1) an intentional, unlawful threat; (2) an apparent ability
to carry it out; and (3) creation of a well-founded fear that the violence is
imminent.” Benitez v. State, 901 So.2d 935, 937 (Fla. Dist. Ct. App. 2005). The
assault is “aggravated” if, inter alia, it is committed “[w]ith a deadly weapon
without intent to kill . . . .” Fla. Stat. § 784.021(1)(a). Aggravated assault is a
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third-degree felony, punishable by up to five years’ imprisonment. Fla. Stat.
§§ 784.021(2), 775.082(3)(d).
In this case, it is beyond dispute that El-Amin intended to threaten Paul with
a knife. Although El-Amin emphasizes on appeal that he did not actually intend to
harm Paul, the statute only requires that the aggressor intentionally commit a
threatening act; it does not require that the aggressor actually intend to carry out
the threat. With respect to the second element, it is clear that, in coming at Paul
with the knife during a heated argument, El-Amin had the apparent ability to carry
out his threat. Finally, in coming at Paul with the knife – and ultimately driving it
through Paul’s bedroom door – El-Amin created a well-founded fear in Paul of
imminent violence, as evidenced by the fact that Paul retreated into his bedroom
and locked the door, climbed out of his bedroom window, and called the police.
Indeed, Officer Bouda testified that, upon meeting Paul at the apartment complex,
Paul told him that he was afraid of El-Amin and acted accordingly. El-Amin’s
assertion that he was merely attempting to discipline his son in a reasonable
manner is legally irrelevant, since his actions constituted aggravated assault under
the law. Thus, El-Amin has not shown that the district court abused its discretion
in this regard.
IV.
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Finally, El-Amin argues that the court’s sentence was substantively
unreasonable. After United States v. Booker, 543 U.S. 220, 264, 125 S.Ct. 738,
767, 160 L.Ed.2d 621 (2005), we review a sentence imposed upon revocation of
supervised release for reasonableness. United States v. Sweeting, 437 F.3d 1105,
1106-07 (11th Cir. 2006). The Supreme Court has since clarified that we review a
sentence for reasonableness under an abuse of discretion standard. Gall v. United
States, 552 U.S. 38, __, 128 S.Ct. 586, 591, 594, 597, 169 L.Ed.2d 445 (2007).
The party challenging the sentence bears the burden of establishing that the
sentence was unreasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir.
2005).
Upon revoking a defendant’s supervised release, the court may “impose a
term of imprisonment after considering certain factors set forth in 18 U.S.C.
§ 3553(a).” Sweeting, 437 F.3d at 1107; see 18 U.S.C. § 3583(e)(3). Under
§ 3583(e), the relevant § 3553(a) factors that the court must consider are: 1) the
nature and circumstances of the offense and the history and characteristics of the
defendant; (2) the need to afford adequate deterrence; (3) the need to protect the
public; (4) the need to provide the defendant with educational or vocational
training or medical care; (5) the Sentencing Guidelines range and pertinent policy
statements of the Sentencing Commission; (6) the need to avoid unwanted
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sentencing disparities; and (7) the need to provide restitution to victims. See 18
U.S.C. § 3583(e), cross referencing 18 U.S.C. § 3553(a)(1), (a)(2)(B)-(D),
(a)(4)-(7). In Chapter Seven of the Guidelines, the Sentencing Commission
promulgated non-binding policy statements governing supervised release. See
United States v. Hofierka, 83 F.3d 357, 361 (11th Cir. 1996) (holding that the
policy statements in Chapter Seven are non-binding). We have held that because
the Chapter Seven Guidelines are advisory, it is “enough that there is some
indication the district court was aware of and considered them.” United States v.
Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000).
El-Amin has not met his burden on appeal to show that his sentence was
substantively unreasonable. First, he states that the district court weighed the
§ 3553(a) factors unfairly, but he does not explain how. Similarly, El-Amin also
asserts that the district court did not take into account his individual history or the
nature of the charge against him, but, again, he does not offer any explanation.
In any event, the district court expressly stated that it considered “not only
the underlying violations, but what’s happened during the period of his
supervision,” which, notably, consisted of six separate supervised release
violations in a period of less than eight months. In this respect, the court
specifically discussed the aggravated-assault incident, emphasizing that there were
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a number of ways to discipline an 18 year child other than threatening him with a
knife. Moreover, the court expressly stated that it had considered the statutory
factors, the advisory guidelines, and the policy statements issued by the Sentencing
Commission. Accordingly, El-Amin has not met his burden, and we therefore
affirm his sentence.
AFFIRMED.
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