United States v. Saleh

Opinion

21-2953 United States v. Saleh

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 TO 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 16th day of March, two thousand twenty-three.

PRESENT:

RICHARD C. WESLEY, RICHARD J. SULLIVAN, JOSEPH F. BIANCO, Circuit Judges. _____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 21-2953 ALI SALEH,

Defendant-Appellant. __________________________________ For Defendant-Appellant: MICHAEL K. BACHRACH, Law Office of Michael K. Bachrach, New York, NY (Steve Zissou, Steve Zissou & Associates, New York, NY, Anthony L. Ricco, New York, NY, on the brief).

For Appellee: DOUGLAS M. PRAVDA (Jo Ann M. Navickas, on the brief), Assistant United States Attorneys, for Breon Peace, United States Attorney for the Eastern District of New York, New York, NY.

Appeal from a judgment of the United States District Court for the Eastern

District of New York (William F. Kuntz, II, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED.

Ali Saleh appeals from a judgment of conviction following his guilty plea to

assaulting a federal officer, in violation of 18 U.S.C § 111(a)(1), (b), and possession

of contraband while in prison, in violation of 18 U.S.C. § 1791(a)(2), (b)(3). The

district court sentenced Saleh to a total of 100 months’ imprisonment, to run

consecutive to his previously imposed sentence of thirty years for providing

2 material support to a terrorist organization, followed by three years’ supervised

release. On appeal, Saleh contends that his Guidelines sentence was both

procedurally and substantively unreasonable. 1 We assume the parties’ familiarity

with the underlying facts, procedural history, and issues on appeal.

As a general matter, we review the imposition of a sentence for abuse of

discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). In doing so, we first

determine whether the sentence imposed is procedurally reasonable and then

determine whether it is substantively reasonable. Id. Within this structure, we

review a sentencing court’s factual findings for clear error and its interpretation

and application of the Sentencing Guidelines de novo. See United States v. Legros,

529 F.3d 470, 473–74 (2d Cir. 2008).

“A sentence is procedurally unreasonable if the district court fails to

calculate (or improperly calculates) the Sentencing Guidelines range, treats the

Sentencing Guidelines as mandatory, fails to consider the [section-]3553(a) factors,

selects a sentence based on clearly erroneous facts, or fails adequately to explain

the chosen sentence.” United States v. Smith, 949 F.3d 60, 62 (2d Cir. 2020) (internal

1Saleh also argues that, if we vacate his convictions in United States v. Saleh, No. 21-2955 (2d Cir. argued March 10, 2023), we must remand this case to the district court for resentencing. Because we affirm those convictions in a concurrently filed summary order, this argument is moot. See United States v. Burden, 600 F.3d 204, 225–26 (2d Cir. 2010). 3 quotation marks omitted). Saleh purports to identify several procedural errors,

each of which we address in turn.

First, Saleh argues the district court improperly calculated his Guidelines

range by applying a five-level enhancement for causing “serious bodily injury,”

U.S.S.G. § 2A2.2(b)(3)(B), instead of a three-level enhancement for causing merely

“bodily injury,” U.S.S.G. § 2A2.2(b)(3)(A). More specifically, Saleh contends that

the higher enhancement was inappropriate because, after he slashed the officer’s

wrist, the officer did not “appear to be in great pain or to have been seriously

injured.” Saleh Br. at 17. But this argument overlooks the officer’s extensive

medical records, which chart an unbroken history of escalating pain and

impairment until the officer was treated with surgery and months of physical

therapy. See Gov’t App’x at 49 (rating his pain as ten, on a scale of one to ten,

where ten is the worst); id. at 50 (describing an urgent need for surgery); id. at 54

(post-surgery, noting that the officer could not grip with his right hand); see also

Concepcion v. United States, 142 S. Ct. 2389, 2398 (2022) (explaining that sentencing

judges have “broad discretion to consider all relevant information at an initial

sentencing hearing”); United States v. Cheng, 763 F. App’x 85, 88 (2d Cir. 2019)

(affirming the district court’s application of a sentencing enhancement based, in

4 part, on the victim’s medical records). Under the Sentencing Guidelines, “serious

bodily injury” is defined to include injuries that involve “extreme physical pain or

the protracted impairment of a function of a bodily member, organ, or mental

faculty; or requiring medical intervention such as surgery, hospitalization, or

physical rehabilitation.” U.S.S.G. § 1B1.1 Application Note 1(M) (emphasis added).

In light of the extensive medical records, Saleh’s argument that the officer’s

injuries fell short of the “serious bodily injury” threshold is unavailing.

Saleh alternatively argues that the district court should not have applied the

serious-physical-injury enhancement without first holding a hearing pursuant to

United States v. Fatico, 603 F.2d 1053 (2d Cir. 1979). This argument fares no better.

We afford district courts broad discretion in deciding what procedures to employ

to resolve factual disputes at sentencing. See United States v. Prescott, 920 F.2d 139,

144 (2d Cir. 1990). And where the defendant was given an opportunity to respond

to the government’s allegations, a full-blown Fatico hearing is often unnecessary.

See United States v. Phillips, 431 F.3d 86, 93 (2d Cir. 2005). Here, Saleh requested a

Fatico hearing only to the extent the district court had questions “regarding the

level of risk or the severity of the injury.” Dist. Ct. Doc. No. 65 at 6 n.2. After the

government responded by providing Saleh with medical evidence establishing the

5 severity of the officer’s injury, Saleh failed to renew his request and never

challenged the government’s evidence at the sentencing proceeding. We thus

discern no abuse of discretion in the district court’s decision to not hold a hearing

on the subject. See United States v. Ghailani, 733 F.3d 29, 54–55 (2d Cir. 2013)

(finding no abuse of discretion where, as here, “the defendant [was] afforded some

opportunity to rebut the government’s allegations” (internal quotation marks and

alterations omitted)).

Saleh next argues that the district court erred by applying the section 3A1.2

“Official Victim” enhancement. According to Saleh, he did not know or have

reasonable cause to believe that his swinging a five-inch knife through the food

tray of his cell door created a substantial risk of serious bodily injury. But even if

we were to accept this theory, it offers no aid to Saleh. The Official Victim

enhancement applies when “in a manner creating a substantial risk of serious

bodily injury, the defendant . . . knowing or having reasonable cause to believe that a

person was a prison official, assaulted such official while the defendant . . . was in the

custody or control of a prison or other correctional facility.” U.S.S.G. § 3A1.2(c)(2)

(emphasis added). The knowledge-element of the enhancement thus turns on

whether the defendant knew (or had reasonable cause to believe) that the victim

6 was a prison official, not on whether the defendant knew (or had reasonable cause

to believe) that his conduct created a substantial risk of serious bodily injury. See

United States v. Young, 910 F.3d 665, 673 (2d Cir. 2018) (explaining that the Official

Victim enhancement requires the defendant to know or have reasonable cause to

believe “that the individuals involved were law enforcement officials”). And here,

there can be no dispute that Saleh knew exactly whom he was attacking. Indeed,

Saleh concedes that he began swinging the knife only after handing the corrections

officer – whom he had attacked once before – his food tray. Nor can there be any

dispute that Saleh’s attack created a substantial risk of serious bodily injury. See

U.S.S.G. § 3A1.2 Application Note 4(B) (defining “substantial risk of serious bodily

injury” as including any “actual serious bodily injury (or more serious injury) if it

occurs”). On this record, it was not clear error for the district court to apply a six-

level enhancement based on Saleh’s attack of a person he knew to be a prison

official.

Saleh also contends that his sentence was substantively unreasonable

because the judge failed to adequately consider Saleh’s mental health condition

during the sentencing hearing. We will set aside a district court’s sentence as

substantively unreasonable “only in exceptional cases where its decision cannot

7 be located within the range of permissible decisions.” United States v. Aumais, 656

F.3d 147, 151 (2d Cir. 2011) (internal quotation marks and alterations omitted). In

other words, a substantively unreasonable sentence is one “so shockingly high,

shockingly low, or otherwise unsupportable as a matter of law that allowing [it]

to stand would damage the administration of justice.” United States v. Broxmeyer,

699 F.3d 265, 289 (2d Cir. 2012) (internal quotation marks omitted).

Far from being “shockingly high,” Saleh’s 100-month consecutive sentence

is well within – and, in fact, at the bottom end of – the Guidelines range of 97 to

121 months’ imprisonment. “Although we do not presume that a Guidelines

sentence is reasonable, we have recognized that in the overwhelming majority of

cases, a Guidelines sentence will fall comfortably within the broad range of

sentences that would be reasonable in the particular circumstances.” United States

v. Eberhard, 525 F.3d 175, 179 (2d Cir. 2008) (internal quotation marks omitted).

Saleh’s only argument to the contrary is that the district court, when considering

these factors, did not adequately consider the state of Saleh’s mental health. But

the district court specifically tailored Saleh’s sentence to address his mental health

concerns, and there is nothing in the record to suggest that the district court

overlooked or misunderstood the nature of Saleh’s mental health condition. The

8 district court also considered the fact that Saleh had been cited for at least one

hundred “disciplinary infractions, many of which involved acts of violence.”

Gov’t App’x at 153. In the end, Saleh simply disagrees with the district court’s

assessment of the weight to be given to the section-3553(a) factors, but “the

particular weight to be afforded aggravating and mitigating factors is a matter

firmly committed to the discretion of the sentencing judge, with appellate courts

seeking to ensure only that a factor can bear the weight assigned it under the

totality of circumstances in the case.” United States v. Solis, 18 F.4th 395, 405 (2d

Cir. 2021) (internal quotation marks omitted). In light of the evidence before us,

we conclude that the district court’s sentence was not substantively unreasonable.

We have considered Saleh’s remaining arguments and found them to be

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court