12-155-cr
United States v. Alhakk
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY
ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 12th day of December, two thousand twelve.
PRESENT: DENNY CHIN,
CHRISTOPHER F. DRONEY,
Circuit Judges,
JOHN GLEESON,
District Judge.*
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UNITED STATES OF AMERICA,
Appellee,
-v.- 12-155-cr
YUSEF ALHAKK, AKA JOSEPH DANIELS,
Defendant-Appellant.
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FOR APPELLEE: JOSEPH J. KARASZEWSKI, Assistant
United States Attorney, for William
J. Hochul, Jr., United States
Attorney for the Western District
of New York, Buffalo, New York.
FOR DEFENDANT-APPELLANT: JAYME L. FELDMAN (Marianne Mariano,
on the brief), Federal Public
Defender's Office, Buffalo, New
York.
*
The Honorable John Gleeson, of the United States
District Court for the Eastern District of New York, sitting by
designation.
Appeal from a judgment of the United States District
Court for the Western District of New York (Arcara, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Defendant-appellant Yusef Alhakk was convicted,
following a plea of guilty, of one count of receipt of child
pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A). The
district court (Arcara, J.) sentenced him principally to 120
months' imprisonment, a sentence that was substantially below the
Guidelines range of 151 to 188 months, as determined by the
district court.
On appeal, Alhakk challenges the procedural and
substantive reasonableness of his sentence. We review the
procedural and substantive reasonableness of a district court's
sentence for abuse of discretion. United States v. Cavera, 550
F.3d 180, 188 (2d Cir. 2008) (en banc). We apply de novo review
to the district court's rulings on questions of law, including
Guidelines interpretation, and clear-error review to its rulings
on questions of fact, including those that inform Guidelines
application. See United States v. Legros, 529 F.3d 470, 474 (2d
Cir. 2008).
We assume the parties' familiarity with the underlying
facts, the procedural history of the case, and the issues
presented for review.
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1. Procedural Reasonableness
Pursuant to U.S. Sentencing Guidelines Manual
("U.S.S.G.") § 3E1.1(a), a defendant may receive a two-level
reduction in his offense level calculation if he "clearly
demonstrates acceptance of responsibility for his offense."
U.S.S.G. § 3E1.1(a). In addition, a defendant who qualifies for
a reduction under § 3E1.1(a) may receive an additional one-level
reduction under § 3E1.1(b) if his offense level is 16 or greater
and the government makes a motion stating that he "timely
notif[ied] authorities of his intention to enter a plea of
guilty, thereby permitting the government to avoid preparing for
trial and permitting the government and the court to allocate
their resources efficiently." U.S.S.G. § 3E1.1(b).
Alhakk argues that the district court committed
procedural error in denying him the additional one-level downward
adjustment pursuant to § 3E1.1(b). He asserts that he was
entitled to the additional one-point reduction "because [he] did
not force the government to prepare needlessly for trial and has
fully accepted responsibility for his actions since his 2010
arrest." Br. for Def.-Appellant at 14. The claim fails.
"[A] government motion is 'a necessary prerequisite' to
the granting of the third point" under § 3E1.1(b). United States
v. Lee, 653 F.3d 170, 173 (2d Cir. 2011) (quoting United States
v. Sloley, 464 F.3d 355, 359 (2d Cir. 2006)); see also U.S.S.G.
§ 3E1.1, cmt. n.6. This requirement may be excused (1) where the
government's refusal to move is based on an unconstitutional
motive; or (2) when the government acts in bad faith in failing
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to so move. Lee, 653 F.3d at 173 (citing Sloley, 464 F.3d at
360-61). Ordinarily, a sentencing court's decision not to grant
a defendant a decrease pursuant to § 3E1.1 is "'entitled to great
deference on review.'" United States v. Taylor, 475 F.3d 65, 68
(2d Cir. 2007) (per curiam) (quoting U.S.S.G. § 3E1.1, cmt. n.5).
The record in this case contains no evidence to suggest
that the government's refusal to make a § 3E1.1(b) motion was
based on an unconstitutional motive or made in bad faith. Cf.
Lee, 653 F.3d at 174 (government may not refuse to move for
additional one-point reduction because defendant invoked his due
process right to contest errors in the PSR). Moreover, Alhakk
violated the terms of his bond by fleeing the United States,
conduct warranting an obstruction of justice enhancement under
U.S.S.G. § 3C1.1. Only in "extraordinary cases" will a defendant
who engages in obstruction of justice be entitled to a reduction
under § 3E1.1, as such conduct "ordinarily indicates that the
defendant has not accepted responsibility for his criminal
conduct." U.S.S.G. § 3E1.1, cmt. n.4. Although the government
agreed in the plea agreement not to oppose Alhakk's request for a
two-level downward adjustment pursuant to § 3E1.1(a), it made no
promise to move for the additional one-point reduction, and
Alhakk has shown no reason why this Court should view his case as
"extraordinary."
To the extent Alhakk argues that it unfairly compounds
his punishment to use his conduct in fleeing the country both to
apply an obstruction enhancement and to deny an acceptance-of-
responsibility reduction, the claim lacks merit. "The Guidelines
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explicitly permit the same act to be counted both for an
obstruction enhancement under section 3C1.1 and for denial of an
acceptance of responsibility decrease under section 3E1.1."
United States v. Castellanos, 355 F.3d 56, 60 (2d Cir. 2003)
(citing U.S.S.G. § 3E1.1, cmt. n.4). Accordingly, the district
court did not commit procedural error.
2. Substantive Reasonableness
Alhakk contends that his 120-month sentence was
substantively unreasonable because (1) the district court applied
a four-level enhancement pursuant to U.S.S.G. § 2G2.2(b)(4) for
sexual exploitation of a minor involving sadistic or masochistic
conduct; and (2) the district court did not properly consider the
concerns articulated in United States v. Dorvee, 616 F.3d 174 (2d
Cir. 2010), and the factors set forth in 18 U.S.C. § 3553(a). We
reject both challenges.
First, pursuant to U.S.S.G. § 2G2.2(b)(4), "[i]f the
offense involved material that portrays sadistic or masochistic
conduct or other depictions of violence," a defendant's offense
level will be increased by four levels. U.S.S.G. § 2G2.2(b)(4).
Alhakk admits that two of the images discovered on his computer
qualified procedurally for the enhancement under § 2G2.2(b)(4),
but he argues that the district court committed substantive error
by applying the four-level enhancement on the basis of only two
images out of the 436 still images and 314 videos found on his
computer. We have upheld the application of a § 2G2.2(b)(4)
enhancement, however, where the offense involved only one image
depicting sadistic or masochistic conduct. See, e.g., United
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States v. Hotaling, 634 F.3d 725, 731 (2d Cir. 2011); United
States v. Delmarle, 99 F.3d 80, 83 (2d Cir. 1996). The district
court concluded that the fact that only two sadistic or
masochistic images were found "does not sufficiently mitigate the
harm caused by those images." Sentencing Tr. at 16:3-4, United
States v. Alhakk, No. 06-cr-165 (W.D.N.Y. Dec. 21, 2011), ECF No.
42. We find no abuse of discretion in this conclusion.
Second, Alhakk's assertion that the district court
failed to justify the reasonableness of the imposed sentence is
misplaced. At sentencing, defense counsel emphasized Alhakk's
serious health problems, his troubled childhood, and his efforts
to reconnect with his family. In response, the government noted
that Alhakk's case was unusual in that, unlike many defendants
charged with child pornography crimes, Alhakk had an extensive
criminal history. The government also noted that Alhakk had been
"difficult throughout [the] case," and remarked that Alhakk had
fled for five years to Thailand, "a country that is known for a
prevalent sex trade among children." Sentencing Tr. at 9:21,
10:10-11.
The record reflects that the district court considered
the parties' arguments, the advisory Guidelines range, and the
factors set forth in 18 U.S.C. § 3553(a). The court specifically
addressed and acknowledged, inter alia, Alhakk's difficult
childhood, his age, his poor health, his extensive history of
substance abuse, and the absence of any evidence that he had
engaged in sexual contact with a minor. Against these factors,
the court balanced the seriousness of Alhakk's conduct, the risk
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he would offend again, and the need for specific and general
deterrence. Further, the court noted that it had given "special
consideration" to the concerns expressed in Dorvee. Sentencing
Tr. at 18:6-7. Based on all of these considerations, the court
concluded that a below-Guidelines sentence of 120 months'
imprisonment was sufficient but not greater than necessary to
fulfill the requirements of § 3553(a). Nothing in the record
demonstrates that the court failed adequately to balance the
§ 3553(a) factors, or that its sentence was "shockingly high,
shockingly low, or otherwise unsupportable as a matter of law."
United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009).
We have considered Alhakk’s remaining arguments and
find them to be without merit. Accordingly, we AFFIRM the
judgment of the district court.
FOR THE COURT:
CATHERINE O'HAGAN WOLFE, CLERK
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