United States v. Makki

47 F. Supp. 2d 25, 1999 U.S. Dist. LEXIS 6982, 1999 WL 228750
CourtDistrict Court, District of Columbia
DecidedApril 20, 1999
DocketCriminal No. 98-0334(PLF)
StatusPublished

This text of 47 F. Supp. 2d 25 (United States v. Makki) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Makki, 47 F. Supp. 2d 25, 1999 U.S. Dist. LEXIS 6982, 1999 WL 228750 (D.D.C. 1999).

Opinion

OPINION

FRIEDMAN, District Judge.

Defendant, Bassam Gharib Makki, pleaded guilty on December 16, 1998 to two counts of misuse of a passport in violation of 18 U.S.C. § 1544 and one count of possession of a false document in violation of 18 U.S.C. § 1546(a). The Court now considers three matters that relate to sentencing: (1) the government’s request that the Court add two offense levels to the base offense level because defendant obstructed justice; (2) defendant’s request that the Court reduce his base offense level by two levels in light of his acceptance of responsibility; and (3) the government’s request that the Court depart upward to change defendant’s Criminal History Category from I to IV on the basis of his 1989 German conviction for “attempting to participate in a felony causing an explosion,” his 1993 U.S. visa application violations for which he -was not prosecuted, and his alleged status and activities as a senior lieutenant in the terrorist organization Hizballah.

Upon consideration of the presentence investigation report prepared by the Probation Office, the parties’ memoranda in [28]*28aid of sentencing, defendant’s response to the government’s memorandum in aid of sentencing, and defendant’s filing in aid of sentencing, and having heard the arguments and proffers of counsel in open court, the Court will adjust defendant’s offense level upward for obstruction of justice, will not adjust it downward for acceptance of responsibility and will consider his foreign conviction and his prior unprose-cuted violations of the immigration laws but not his alleged Hizballah status or activities. The Court therefore finds that defendant’s offense level is ten rather than six and that it is appropriate to depart upward from Criminal History Category I to Criminal History Category III.

I. BACKGROUND

Defendant was arrested on September 18, 1998 outside the Brazilian Consulate in Ciudad del Este, Paraguay after he tried for the second time in two days to obtain a tourist visa to Brazil using an altered U.S. passport. The passport defendant was using bore the name of his brother, Moha-mad Gharib Makki, but had defendant’s picture on it. On both occasions he presented his brother’s passport and claimed to be his brother and, on the second occasion, he filled out an application in Moha-mad’s name. Authorities from the United States arrested defendant because they believed him to be his brother Mohamad, who is a fugitive from the United States wanted in New York City for mail fraud and wire fraud.

After his arrest, defendant told representatives of the U.S. State Department in Paraguay that he was Mohamad Gharib Makki. When officials from the FBI Joint Terrorism Task Force arrived, they had a photograph of Mohamad Gharib Makki and immediately recognized that defendant was not Mohamad. Defendant then claimed to be Hassan Mohamad Makki, a Lebanese citizen and Mohamad Gharib Makki’s cousin, and said that he had stolen Mohamad Gharib Makki’s passport to travel to Paraguay to start a business. After defendant was transported to Miami, Florida for prosecution in the United States, he continued to maintain that he was Hassan Mohamad Makki during his initial appearance under oath before U.S. Magistrate Judge Robert L. Dube, in his interview with the U.S. Pretrial Services Agency in Miami and during removal proceedings before U.S. Magistrate Judge Peter R. Palermo. He provided Hassan Makki’s birth date, wife’s name, children’s names and ages and other information consistent with Hassan’s identity, not his own. Even after the government learned of defendant’s true identity through a confidential informant, and after the government confirmed this fact through fingerprints obtained from Germany, defendant contested the truth of these facts. It was not until the presentence investigation report was being prepared by the Probation Office of this Court that defendant finally admitted his true identity as Bassam Gharib Makki.1

Once before this Court, defendant moved to dismiss the indictment on the grounds that the United States lacked jurisdiction over his conduct in Paraguay with the intention of traveling to Brazil. After hearing argument, the Court denied the motion because international law recognizes the right of the United States to punish conduct that undermines the integrity of the official documents of the United States. See Order of December 9, 1998. Defendant then pleaded guilty to the entire indictment with no plea agreement, and the matter was scheduled for sentencing. Under the Sentencing Guidelines, the base offense level for violations of both misuse of a passport under 18 U.S.C. § 1544 and possession of a false document under 18 U.S.C. § 1546(a) is a level eight, see U.S.S.G. § 2L2.2, and the defendant normally would be entitled to a two level downward adjustment for pleading guilty and accepting responsibility. U.S.S.G. [29]*29§ 3E1.1. There is no indication that defendant has any prior convictions in the United States and he therefore has zero criminal history points. At an offense level of six and Criminal History Category of I, the Guideline sentencing range would be zero to six months.

The government has submitted voluminous materials pertaining to defendant’s alleged past criminal conduct. It provided the judgment and corresponding documents from defendant’s criminal trial in Germany, at which defendant was convicted and sentenced to two years in prison for attempted participation in bringing about an explosion. See December 22, 1989 Judgment of the First Criminal Chamber of the Munich Landgericht, Gov’t Memorandum, Exh. 20 (“German Judgment”). The government also filed the statement of a State Department official and supporting documentation alleging that defendant had misrepresented his marital status, employment, residence and criminal history on immigrant visa applications he submitted to the United States Consulate in Syria in September of 1993 and again in October of 1993. . See Statement of Gary R. Hobin. Gov’t Memorandum, Exh. 25 (“Hobin Statement”).2 Finally, the government has provided a wealth of material regarding defendant’s purported terrorist activities, including affidavits from two government agents that describe the allegations of confidential informants that defendant is a senior lieutenant in the Hizballah. See Affidavit of Michael J. Hudspeth, Gov’t Memorandum, Exh. 13 (“Hudspeth Aff.”); Affidavit of Hector Rodriguez, Gov’t Memorandum, Exh. 23 (“Rodriguez Aff.”).

II. DISCUSSION

A. Obstruction of Justice

Section 3C1.1 requires a two-level increase in a defendant’s offense level if he or she willfully obstructed or attempted to obstruct justice during the investigation or prosecution of the offense for which he or she was convicted. U.S.S.G. § 3C1.1; see United States v. Dozier, 162 F.3d 120, 123 (D.C.Cir.1998).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Hill, William D.
131 F.3d 1056 (D.C. Circuit, 1997)
United States v. Robinson, Dennis D.
158 F.3d 1291 (D.C. Circuit, 1998)
United States v. Dozier, Romulus
162 F.3d 120 (D.C. Circuit, 1998)
United States v. Restrepo
53 F.3d 396 (First Circuit, 1995)
United States v. Carmine Fatico, and Daniel Fatico
579 F.2d 707 (Second Circuit, 1978)
United States v. Thomas H. Allen
898 F.2d 203 (D.C. Circuit, 1990)
United States v. Richard Frank Gardner
905 F.2d 1432 (Tenth Circuit, 1990)
United States v. Kikumura, Yu
918 F.2d 1084 (Third Circuit, 1990)
United States v. David Lambert
984 F.2d 658 (Fifth Circuit, 1993)
United States v. Monica Monroe
990 F.2d 1370 (D.C. Circuit, 1993)
United States v. Alberto Ortiz
993 F.2d 204 (Tenth Circuit, 1993)
United States v. Sheila K. Smaw
993 F.2d 902 (D.C. Circuit, 1993)
United States v. Abel Mafanya
24 F.3d 412 (Second Circuit, 1994)
United States v. Vernon A. Montague
40 F.3d 1251 (D.C. Circuit, 1994)
United States v. Pedro Fernando Chunza-Plazas
45 F.3d 51 (Second Circuit, 1995)
United States v. Daniel Michael Tropiano
50 F.3d 157 (Second Circuit, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
47 F. Supp. 2d 25, 1999 U.S. Dist. LEXIS 6982, 1999 WL 228750, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-makki-dcd-1999.