United States v. Asmar Abdul-Hamid, Also Known as Michael Fields

966 F.2d 1228, 1992 U.S. App. LEXIS 16057, 1992 WL 164047
CourtCourt of Appeals for the Seventh Circuit
DecidedJuly 16, 1992
Docket91-2137
StatusPublished
Cited by13 cases

This text of 966 F.2d 1228 (United States v. Asmar Abdul-Hamid, Also Known as Michael Fields) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Asmar Abdul-Hamid, Also Known as Michael Fields, 966 F.2d 1228, 1992 U.S. App. LEXIS 16057, 1992 WL 164047 (7th Cir. 1992).

Opinion

CUMMINGS, Circuit Judge.

Asmar Abdul-Hamid appeals his sentence after the district court found that he violated the conditions of his probation and imposed on him a term of five years’ imprisonment. Abdul-Hamid argues that the district court erred by refusing to apply the ABA Standards Relating to Probation, Section 5.1 (1970) (“ABA Standards”), which recommend alternatives to incarceration for probation violations.

I.

In 1984, defendant-appellant Asmar Abdul-Hamid entered two guilty pleas: one for inducing an individual to travel in interstate commerce for the purpose of executing a scheme to defraud, 18 U.S.C. § 2314, and one for acquiring a firearm through the use of a false written statement, 18 U.S.C. § 922(a)(6). Abdul-Hamid was sentenced to three and one-half years of imprisonment on the firearm charge and to five years’ probation on the scheme to defraud charge. Abdul-Hamid’s probation was to run consecutive to his imprisonment. Among the conditions of probation, Abdul-Hamid was to make full and complete restitution to the victims of his scheme to defraud. As a general condition of probation, he was to refrain from violating federal law. After serving his term of imprisonment, Abdul-Hamid began serving his five-year period of probation on February 8, 1987.

On February 13, 1990, the government filed a Motion for an Order to Show Cause Why Defendant’s Probation Should Not Be Revoked. At the August 31 hearing on this motion, Abdul-Hamid stipulated to three violations of probation: (1) failure to pay restitution, (2) failure to keep appointments with his probation officer, and (3) failure to follow his probation officer’s in-, structions. The court entered a finding that a violation of probation had occurred and ordered probation revoked.

*1230 Before the August 31 hearing, the government had filed a Supplemental Motion for an Order to Show Cause Why Defendant’s Probation Should Not Be Revoked: Abdul-Hamid had been arrested on July 9 while in possession of two fully loaded handguns and spare ammunition. Such possession violated federal law under 18 U.S.C. § 922, 1 and on December 14, 1990, the district court determined that Abdul-Hamid had violated his probation on this basis as well.

At the sentencing hearing on April 23, 1991, Abdul-Hamid’s attorney argued that the district court should consider the ABA Standards, 2 which recommend that the court consider alternatives to incarceration for probation violations. The district court dismissed this suggestion stating that the ABA Standards apply' to the original sentencing of a defendant, not to the sentencing following a violation of probation. In deciding on a sentence of five years’ imprisonment, the court stated:

Mr. Hamid, I am distressed that having been convicted in this Court in a manner in which you should have known that guns were going to get you in serious trouble if you violated your probation, you went out and were caught in violation of your probation possessing these weapons.
Now, the fact that you like guns is no excuse. There’s only one purpose for guns like that, an arsenal like that, and it is very serious conduct.
I am going to sentence you to the custody of the Attorney General for a period of five years, and I will give you credit for the time that has been served.

II.

We must initially determine under what authority we may review Abdul-Hamid’s sentence. The government maintains that our jurisdiction in this case does not derive from 18 U.S.C. § 3742(a). 3 Section 3742(a) is the provision of the Sentencing Reform Act of 1984 4 (“SRA”) which governs our jurisdiction to hear defendants’ appeals of their sentences.

We agree that our jurisdiction in this case does not derive from § 3742(a). In United States v. Stewart, 865 F.2d 115 (7th Cir.1988), we held that “the [SRA does] not apply to defendants whose offenses were committed prior to November 1,1987.” Id. at 118. Since Abdul-Hamid’s offense (the fraud violation) occurred before 1987, the SRA — including § 3742(a)— does not apply in his case. Cf. United States v. Spilotro, 884 F.2d 1003, 1005 (7th Cir.1989) (§ 3742(b) inapplicable where offense committed before November 1, 1987).

Our conclusion is not altered by the fact that Abdul-Hamid committed the acts which violated the conditions of his probation after November 1, 1987. Such acts are not “offenses” within the meaning of the SRA. See United States v. Sanchez, 907 F.2d 127, 128 (10th Cir.1990) (explaining that “[Revocation of probation does not *1231 carry its own punishment, but merely allows the court to set a new sentence for the original conviction”)- While we have not previously adopted this position explicitly, United States v. Schimmel, 950 F.2d 432, 434 n. 4 (7th Cir.1991), cert. denied, - U.S. -, 112 S.Ct. 1575, 118 L.Ed.2d 218 (1992), we have implicitly relied on this reasoning in prior cases. See United States v. Barnett, 961 F.2d 1327 (7th Cir.1992) (per curiam) (applying pre-SRA law where offense occurred before effective date of SRA but probation violation apparently occurred after effective date); United States v. Thomas, 934 F.2d 840, 842 (7th Cir.1991) (same).

Although § 3742(a) does not give us jurisdiction to review Abdul-Hamid’s sentence, we still have jurisdiction under 28 U.S.C. § 1291, which permits review of final district court decisions. Because the SRA does not apply to Abdul-Hámid’s case, pre-SRA law governs our review of his sentence.

Appellate review of sentences under pre-SRA law was extremely narrow:

A sentence which is within the limits established by statute under which it is imposed will not be vacated upon review unless the sentencing judge relied upon improper considerations or unreliable information in exercising his discretion or failed to exercise any discretion at all in imposing the sentence.

Barnett, 961 F.2d at 1328 (omitting internal quotations).

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966 F.2d 1228, 1992 U.S. App. LEXIS 16057, 1992 WL 164047, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-asmar-abdul-hamid-also-known-as-michael-fields-ca7-1992.