United States v. Fahd Albaadani

863 F.3d 496, 2017 FED App. 0149P, 2017 WL 2979163, 2017 U.S. App. LEXIS 12499
CourtCourt of Appeals for the Sixth Circuit
DecidedJuly 13, 2017
Docket16-6668
StatusPublished
Cited by21 cases

This text of 863 F.3d 496 (United States v. Fahd Albaadani) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Fahd Albaadani, 863 F.3d 496, 2017 FED App. 0149P, 2017 WL 2979163, 2017 U.S. App. LEXIS 12499 (6th Cir. 2017).

Opinions

[498]*498MOORE, J., delivered the opinion of the court in which DAUGHTREY, J., joined. KETHLEDGE, J. (pp. 506-07), delivered a separate dissenting opinion.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Defendant-Appellant Fahd Saleh Albaa-dani, who was born in Yemen, was sentenced to nine months of imprisonment and one year of supervised release for tampering with a GPS ankle monitor in violation of 18 U.S.C. § 1361 and 8 U.S.C. § 1253(b). R. 65 (Judgment at 1-3) (Page ID #763-65). Albaadani has appealed, arguing that his sentence was “based ... on the impermissible factors of Mr. Albaada-ni’s gender and national origin.” Appellant’s Br. at 20. Although we agree that some of the district court’s comments, taken out of context, could appear to be influenced by Albaadani’s national origin, the district court’s explicit and complete reliance on several serious threats and photographs attributed to Albaadani gives us confidence that the sentence, viewed as a whole, did not create the appearance of having been based on gender or national origin. Therefore, we AFFIRM Albaada-ni’s sentence.

I. BACKGROUND

Albaadani came to the United States via Saudi Arabia when he was seventeen years old. R. 53 (PSR ¶¶ 39, 41) (Page ID #683).1 On June 26, 2015, an order of removal was issued against him because his former wife ceased to sponsor his request to be a citizen. R. 55 (Gov’t’s Sentencing Mem. at 1) (Page ID #689); R. 71 (Trial Tr. at 78-82) (Page ID #867-71). In fact, Albaadani wants to return to his birthplace, but because Yemen was in a state of “war and political conflict,” no travel documents have been issued. R. 53 (PSR ¶¶ 5, 41) (Page ID #679, 684). Unable to return to Yemen, but with an order of removal issued against him, Albaadani was detained for “approximately six months,” R. 71 (Trial Tr. at 20, 126) (Page ID #809, 915), after which he was released subject to monitoring with a GPS ankle monitor, R. 53 (PSR ¶ 5) (Page ID #679). Following a period of time living in San Francisco, California, Albaadani was approved for relocation to Chattanooga, Tennessee on March 15, 2016. Id. ¶ 6 (Page ID #679).

Around the time when Albaadani relocated, the Immigration and Naturalization Service received a tamper alert on Albaa-dani’s ankle monitor. Id. Christopher Pur-dy, an enforcement and removal officer (“ERO”),2 followed up on this alert by calling Albaadani. Id. ¶ 7 (Page ID #679); R. 71 (Trial Tr. at 24, 95) (Page ID #813, 884). Purdy instructed Albaadani to report to an Enforcement and Removal Operations office in Gadsden, Alabama, R. 71 (Trial Tr. at 24, 96) (Page ID #813, 885), [499]*499which is approximately ninety miles south of Chattanooga, see Google Maps, https:// www.google.com/maps/ (last visited June 28, 2017). Albaadani refused. Purdy claims that Albaadani “became increasingly verbally aggressive towards [Purdy],” told Purdy to “fuck off,” and said that he would “[k]ick [Purdy’s] ass.” R. 71 (Trial Tr. at 27-28) (Page ID #816-17). Albaadani denied that he was frustrated on the call. Id. at 98 (Page ID #887). He also denied making any of the statements that Purdy attributed to him, claiming that he did not recognize the caller and made only one statement: “[N]ext week from now I have to see my deportation officer ... and I have to discuss this problem with him.... If he gives me [an] order to go to Nashville, I will go to Nashville.... If I have to go to Nashville every two weeks, I’m going to have to go back to California.” Id. at 97-98 (Page ID #886-87). On May 9, 2016, Albaadani was arrested and detained once more. R. 53 (PSR ¶ 7) (Page ID #679).

A grand jury charged Albaadani with threatening a federal official in violation of 18 U.S.C. § 115 (Count One), willfully injuring and committing a depredation against federal government property (i.e., the ankle monitor) in violation of 18 U.S.C. § 1361 (Count Two), failing to comply with the terms of release under supervision in violation of 8 U.S.C. § 1253(b) (Count Three), and transmitting a threat in interstate commerce in violation of 18 U.S.C. § 875(c) (Count Four). R. 25 (2d Superseding Indictment) (Page ID #159-63). At trial, Albaadani admitted that he took off the ankle monitor, R. 71 (Trial Tr. at 94-95, 110) (Page ID #883-84, 899), which Purdy estimated would cost under $10 to repair, id. at 11-12 (Page ID #800-01).

With respect to Counts One and Four, the government argued that there were several instances in'which Albaadani made threats to federal officers and others. First, there was the aforementioned phone call with Officer Purdy. The government also pointed to another incident, in which Albaadani allegedly said “I don’t fuck with guns. I fuck with bombs” at an Intensive Supervision Appearance Program (“ISAP”) office in San Francisco. Id. at 101-02 (Page ID #890-91). Albaadani denied making this statement. Id. at 102 (Page ID #891). In another instance, Al-baadani left a voicemail with an employee at a car dealership, in which Albaadani said, “I will kill somebody” and “mother fucker.” Id. at 129-35 (Page ID #918-24). Albaadani acknowledged that he left the voicemail, id. at 135 (Page ID #924), but he explained that he left it out of frustration because he believed that the FBI hacked into his car, causing him to lose control and nearly crash into an 18-wheel-er. Id. at 134 (Page ID #923).

The jury ultimately convicted Albaadani of Counts Two and Three. R. 49 (Verdict Form) (Page ID #643). He was acquitted of Counts One and Four, regarding threatening a federal officer.

Albaadani’s guideline imprisonment range was zero to six months. R. 53 (PSR ¶ 49) (Page ID #684). Prior to sentencing, the government filed a motion for upward departure, pointing to Albaadani’s history of making threats and his inability to make “himself ... amenable to supervision.” R. 55 (Gov’t’s Sentencing Mem. at 7) (Page ID #695). It requested that the district court sentence Albaadani to the statutory maximum of twenty-four months of imprisonment. Id. at 7, 9 (Page ID #695, 697). In support, the government elaborated on the incident between Albaadani and ERO personnel in San Francisco using “[t]he defendant’s statements to ERO personnel [that] were captured in a database.” Id. at 2 (Page ID #690). According to the database entry, Albaadani told an officer that “[h]e doesn’t f* *k with guns, but he f* *ks with [500]*500bombs.” Id. The entry also stated that “[n]o significant security concern has been identified at this time.” Id. at 2-3 (Page ID #690-91).

The government noted "another incident at the same office several months later. The database entry for that incident states that Albaadani “reported to the ISAP office to follow up on a tracker strap tamper alert that occurred on 2/19/16.” Id. at 3 (Page ID #691).

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Bluebook (online)
863 F.3d 496, 2017 FED App. 0149P, 2017 WL 2979163, 2017 U.S. App. LEXIS 12499, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-fahd-albaadani-ca6-2017.