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United States of America v. Mamdouh Mahmud Salim

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2012


August 24, 2012

UNITED STATES OF AMERICA, APPELLEE,
v.
MAMDOUH MAHMUD SALIM, DEFENDANT-APPELLANT.

Appeal from a judgment of the United States District Court for the Southern District of New York (Deborah A. Batts, Judge) resentencing appellant for attacking a correctional officer.

The opinion of the court was delivered by: John M. Walker, Jr., Circuit Judge:

10-3648-cr

United States of America v. Mamdouh Mahmud Salim

Argued: March 27, 2012

Before : WALKER and LYNCH, Circuit Judges.*fn1

Appellant challenges his resentence, which he attended by 28 videoconference, primarily on the ground that his right to be 29 physically present in court was violated. We agree with 30 appellant that the government has not satisfied its burden of 31 proving that he waived his right to be present and that the 1 district court erred in finding a valid waiver. But this error 2 is subject to plain error review and, in the circumstances of 3 this case, appellant was not prejudiced. We also reject 4 appellant's arguments that his resentence was unreasonable. We 5 therefore AFFIRM the judgment of the district court.

19 Defendant-Appellant Mamdouh Mahmud Salim appeals from a 20 judgment of the United States District Court for the Southern 21 District of New York (Deborah A. Batts, Judge) resentencing him 22 for attacking a correctional officer while an inmate at the 23 Metropolitan Correctional Center (the "MCC"). On appeal, Salim 24 argues primarily that his resentencing by videoconference 25 constituted a violation of his right to be physically present. 26 We agree with Salim that the government has not satisfied its 27 burden of proving that he waived his right to be present and that 28 the district court erred in finding a valid waiver. But this 29 error is subject to plain error review and, in these 30 circumstances, Salim was not prejudiced. We also reject Salim's 2 1 arguments that his resentence was unreasonable. We therefore 2 AFFIRM the judgment of the district court.

3 BACKGROUND

4 I. Factual Background

5 The facts of this case are fully set forth in this Court's 6 prior opinion in United States v. Salim, 549 F.3d 67 (2d Cir. 7 2008). For present purposes, they may be summarized as follows: 8 On November 1, 2000, Salim was incarcerated at the MCC 9 awaiting trial upon the indictment in United States v. Usama Bin 10 Laden, et al., S9 98 Cr. 1023 (LBS), in which numerous alleged al 11 Qaeda members were charged with a conspiracy to kill Americans. 12 On that day, Salim and his cellmate (and co-defendant in the 13 terrorism case) Kholfan Khamis Mohamed planned to take a guard's 14 keys so that Salim could attack his lawyers in an attorney-inmate 15 meeting room. Their goal was to force Salim's attorneys to 16 withdraw their representation so that District Judge Sand, who 17 was presiding over the terrorism case and previously had denied 18 Salim's repeated requests for new lawyers, would have to grant 19 substitute counsel.

20 Salim began to put the plan into effect when, while meeting 21 with his lawyers in one of the meeting rooms, he asked to go back 22 to his cell to retrieve certain materials. As Corrections 23 Officer Louis Pepe escorted him to his cell, Salim began singing 24 -- a prearranged signal to Mohamed, who was waiting in the cell.

1 When Salim and Officer Pepe arrived at the cell, Mohamed grabbed 2 Officer Pepe's walkie-talkie and Salim knocked Officer Pepe down, 3 sprayed hot sauce in his eyes, and stabbed him in the left eye 4 with the end of a sharpened plastic comb. Having taken Officer 5 Pepe's keys, Salim and Mohamed locked Officer Pepe in the cell 6 and Salim headed back towards the meeting room where his lawyers 7 waited. He was subdued by other guards en route. 8 Officer Pepe was severely injured. He lost his left eye, 9 incurred reduced vision in his right eye, and suffered brain 10 damage that left his right side partially paralyzed and 11 interfered with other normal functions, including his ability to 12 speak and write.

13 II. Procedural Background

14 Salim's attack on Officer Pepe resulted in numerous 15 additional charges, which were indicted separately from the 16 terrorism case and assigned to District Judge Batts. On April 3, 17 2002, those charges were resolved when Salim pled guilty to 18 conspiracy to murder, and attempted murder of, a federal 19 official, see 18 U.S.C. §§ 1114, 1117, pursuant to a plea 20 agreement without any Sentencing Guidelines understanding. 21 After a Fatico hearing and briefing, the district court 22 issued an opinion containing findings of fact and legal 23 conclusions. See United States v. Salim, 287 F. Supp. 2d 250 24 (S.D.N.Y. 2003). Among other rulings, the district court 4 1 rejected the government's argument for a terrorism enhancement.

2 The government believed this enhancement was warranted because 3 Salim had attempted to coerce Judge Sand into appointing 4 substitute counsel. The district court, however, concluded that 5 the terrorism enhancement applied only to transnational conduct 6 whereas the prison assault was purely domestic. See id. at 353- 7 54. In a subsequent order, the district court agreed with the 8 government that an obstruction of justice enhancement was 9 warranted based on Salim's repeated denials at the Fatico hearing 10 that the motive for his attack was to force Judge Sand to appoint 11 new counsel.

12 The initial sentencing took place on May 3, 2004. Although 13 the Guidelines range was 262 to 327 months, the district court 14 departed upward and imposed a 384-month sentence due to factors 15 including (1) the "unusually cruel, brutal . . . and . . 16 gratuitous infliction of injury," Appendix ("App.") 480, (2) that 17 the attack was part of a broader scheme to attack Salim's 18 attorneys, and (3) that Salim had secured Mohamed's help through 19 religious and psychological coercion. 20 Salim appealed his sentence. While that appeal was pending, 21 the Supreme Court decided United States v. Booker, 534 U.S. 220 22 (2005), which rendered the Sentencing Guidelines advisory rather 23 than mandatory, and our Court thereafter decided United States v. 24 Crosby, 397 F.3d 103 (2d Cir. 2005), which, in light of Booker, 5 1 provided for remand to "permit[] the sentencing judge to 2 determine whether to resentence, . . . and if so, to resentence," 3 id. at 117 (emphasis omitted). We remanded Salim's case to the 4 district court pursuant to Crosby. On remand, the district court 5 declined to resentence Salim after concluding that it would have 6 imposed the same sentence under an advisory Guidelines regime.

7 Salim again appealed, arguing that the district court had 8 erroneously imposed various enhancements, including the 9 obstruction enhancement. The government cross-appealed from the 10 district court's decision not to impose a terrorism enhancement. 11 We rejected Salim's arguments but agreed with the government that 12 the terrorism enhancement does not require transnational conduct 13 and thus should apply in this case. Salim, 549 F.3d at 73-76, 14 78. We vacated the sentence and again remanded. Id. at 79. 15 On remand, Salim's counsel argued that, for various reasons, 16 Salim's sentence either should be reduced or should stay the 17 same. The government argued for a life sentence, which was the 18 Guidelines-recommended sentence in light of the now-applicable 19 terrorism enhancement. In an opinion issued before resentencing, 20 the district court rejected Salim's arguments and concluded that 21 a life sentence was appropriate. Specifically, the district 22 court stated that its reasons for departing upward in the 23 original sentence -- most prominently, the severity and purpose 24 of the crime -- prevented it from departing below the Guidelines 6 1 on resentencing. It also noted that its prior "determination not 2 to impose a life sentence was based on [its] erroneous legal 3 analysis [regarding the terrorism enhancement] and had nothing to 4 do with the 'nature and circumstances of the offense' or the 5 'history and characteristics of the defendant.'" Special 6 Appendix 239-40 (quoting 18 U.S.C. § 3553(a)(1)).

7 Prior to resentencing, Salim's lawyer sent the district 8 court a letter that stated that he had recently spoken with his 9 client and that Salim did not wish to be present in court for the 10 resentencing. "On [Salim's] behalf, [counsel] request[ed] that 11 [Salim] be permitted to waive his presence at [re]sentencing 12 pursuant to Rule 43(c)(1)(B) of the Federal Rules of Criminal 13 Procedure, or, alternatively, that the [re]sentencing proceed via 14 videoconferencing." App. 1104. The district court endorsed the 15 letter and ordered that Salim's "presence in person [was] waived 16 for re-sentencing in that a video hook up shall be arranged by 17 the Government." Id.

18 At the resentencing on August 31, 2010, Salim's counsel was 19 present and Salim attended by videoconference.*fn2 At the outset, 20 the district court had the following colloquy with Salim:

21 THE COURT: Mr. Salim is not present in person in the courtroom today.

2 3 Mr. Salim, I wish to confirm that it is 4 your wish to waive your appearance in 5 this courtroom pursuant to Rule 6 43(c)(1)(B) of the Federal Rules of 7 Criminal Procedure. Is that correct?

8

9 THE DEFENDANT: Your Honor, do you want me to answer 10 this question?

12 THE COURT: Yes.

14 THE DEFENDANT: Your Honor, when they brought me in and they moved me from one prison to 16 another, there are guards. And the 17 officer spit on me and beat me, and 18 that's why I refuse to come over.

20 THE COURT: So you do not wish to waive your 21 presence and you would prefer to be 22 here?

24 THE DEFENDANT: No, your Honor. I don't want to come to 25 the Court. So I'm not going to be 26 subjected to being beaten up and to be 27 spit on.

29 THE COURT: So then you waive your presence here 30 this afternoon?

32 THE DEFENDANT: Therefore, your Honor, I am waiving my 33 right to appear before you.

35 THE COURT: Thank you, Mr. Salim. 36 Id. at 1114-15.

37 After hearing statements from Officer Pepe, from Salim and 38 his lawyer, and from the government, the district court imposed a 39 life sentence as recommended by the Guidelines. Salim appeals.

1 DISCUSSION

2 I. The Right to Be Present at Resentencing

3 Salim argues, inter alia, that his attendance at 4 resentencing by videoconference violated his right to be 5 physically present and that his waiver of physical presence was 6 not voluntary because it was premised on his fear of abuse by 7 correctional officers.

8 A. Applicable Law

9 Under both the Constitution and Federal Rule of Criminal 10 Procedure 43(a)(3), a criminal defendant has the right to be 11 present during sentencing. This right extends to resentencing. 12 United States v. Arrous, 320 F.3d 355, 359 (2d Cir. 2003)

13 ("[W]here the district court re-enters a sentence which has been 14 vacated or set aside by the Court of Appeals . . . , a defendant 15 has a constitutional right to be present, because technically a 16 new sentence is being imposed in place of the vacated 17 sentence.").

18 Although it is an issue of first impression in this circuit, 19 every federal appellate court to have considered the question has 20 held that a defendant's right to be present requires physical 21 presence and is not satisfied by participation through 22 videoconference. See United States v. Williams, 641 F.3d 758, 23 764-65 (6th Cir. 2011); United States v. Torres-Palma, 290 F.3d 24 1244, 1245-48 (10th Cir. 2002); United States v. Lawrence, 248 9 1 F.3d 300, 301, 303-04 (4th Cir. 2001); United States v. Navarro, 2 169 F.3d 228, 235-39 (5th Cir. 1999), cert. denied, 528 U.S. 845 3 (1999). But see Navarro, 169 F.3d at 239-42 (Politz, J., 4 dissenting) (opining that the defendant's sentencing by 5 videoconference did not violate his right to be present). 6 Because both parties argue from this premise, we assume without 7 deciding that "presence" requires physical presence and is not 8 satisfied by videoconference.

9 In a non-capital case, a defendant may waive his right to be 10 present as long as that waiver is knowing and voluntary. See 11 Fed. R. Crim. P. 43(c)(1)(B); United States v. Mera, 921 F.2d 18, 12 20 (2d Cir. 1990) (per curiam). "The government bears the burden 13 of demonstrating by a preponderance of the evidence that a 14 defendant waived his constitutional rights." United States v. 15 Lynch, 92 F.3d 62, 65 (2d Cir. 1996). We have held that the 16 erroneous denial of a defendant's right to be present during 17 resentencing is grounds for reversal only if the defendant 18 suffered prejudice as a result of the deprivation. See United 19 States v. DeMott, 513 F.3d 55, 58 (2d Cir. 2008); Arrous, 320 20 F.3d at 361-62; United States v. Pagan, 785 F.2d 378, 380-81 (2d 21 Cir. 1986). But see Torres-Palma, 290 F.3d at 1248 (holding that 22 a violation of the right to be present at sentencing "is per se 23 prejudicial").

24 We therefore turn to whether the government has proven, as 25 the district court found, that Salim knowingly and voluntarily 10 1 waived his right to be present for resentencing.

2 B. Salim's Purported Waiver of Presence

3 Salim contends that his waiver of presence was not voluntary 4 because it was premised on his fear of physical abuse by 5 correctional officers. The government makes two arguments in 6 response: first, that Salim's lawyer properly waived Salim's 7 presence through counsel's letter to the district court before 8 resentencing; and second, that Salim reiterated and confirmed his 9 waiver directly to the district court at the outset of the 10 resentencing proceedings.

11 1. Defense Counsel's Purported Waiver by Letter 12 "Although it is certainly preferable that the waiver [of 13 presence] come from the defendant directly, there is no 14 constitutional requirement to that effect." Polizzi v. United 15 States, 926 F.2d 1311, 1322 (2d Cir. 1991). A defendant's lawyer 16 may waive presence on the defendant's behalf. But a defendant's 17 waiver through counsel, like all waivers of constitutional 18 rights, still must be knowing and voluntary on the part of the 19 defendant. See id. at 1313 (describing a procedure wherein the 20 district court inquired of defense counsel whether, inter alia, 21 "the defendant understood his right to be present and whether he 22 was voluntarily and knowingly waiving that right, affirmatively 23 requesting that the trial proceed in his absence and giving up 24 any claim" of prejudice).

25 The government has not satisfied its burden of proving that 26 Salim, through his lawyer's letter, knowingly and voluntarily 11 1 waived his right to be present at resentencing. The letter 2 stated only that counsel had "recently spoken to" Salim and 3 requested, on Salim's behalf, that Salim be allowed "to waive his 4 presence at [re]sentencing . . . or, alternatively, that the 5 [re]sentencing proceed via videoconferencing." App. 1104. These 6 words, without more, do not speak to knowledge or voluntariness, 7 and the government cannot prove -- and the district court could 8 not have found -- an adequate waiver by relying on them. 9 2. Salim's Purported Waiver over Videoconference 10 As resentencing commenced, the district court appropriately 11 stated to Salim over the videoconference link that it "wish[ed] 12 to confirm that it [was Salim's] wish to waive [his] appearance 13 in th[e] courtroom," id. at 1114. See United States v. Tureseo, 14 566 F.3d 77, 83 (2d Cir. 2009) ("To establish waiver, the 15 District Court must conduct a record inquiry to determine whether 16 the defendant's absence was 'knowing and voluntary' . . . .").

17 Salim responded that he did indeed waive his presence, but that 18 he did so because at least one correctional officer allegedly had 19 "spit on" and "beat[en]" him the last time Salim had been moved. 20 App. 1114. He claimed that he did not "want to come to the 21 Court" because he did not want "to be subjected to being beaten 22 up and . . . spit on" again. Id. The district court accepted 23 this waiver and proceeded with resentencing. 24 Here again, the government has not satisfied its burden of 25 proving that Salim's waiver was voluntary. To be voluntary, a 26 waiver of a constitutional right must be "the product of a free 12 1 and deliberate choice rather than intimidation, coercion, or 2 deception." Berghuis v. Thompkins, 130 S. Ct. 2250, 2260 (2010) 3 (internal quotation marks omitted). Salim's waiver allegedly 4 resulted from fears of intimidation and physical abuse. The 5 government has not established that Salim was lying about the 6 abuse, that the fear he expressed was not reasonably grounded, or 7 that he would not have attended resentencing even if his safety 8 could be reasonably assured.

9 Nor did the district court undertake to assess the 10 reasonableness of Salim's alleged fears or determine whether 11 assurances could have been made that would assuage those fears. 12 In comparable situations, we and the Supreme Court have held that 13 a careful judicial inquiry is required before a court may accept 14 an in-court waiver of constitutional procedural rights. See 15 Faretta v. California, 422 U.S. 806, 814 (1975) (right to counsel 16 and the "correlative right to dispense with a lawyer's help" 17 (internal quotation marks omitted)); Boykin v. Alabama, 395 U.S. 18 238, 243-44 (1969) (rights against self-incrimination, to trial, 19 and to confront one's accusers, which may be waived by entering a 20 guilty plea); United States v. Curcio, 680 F.2d 881, 889-90 (2d 21 Cir. 1982) (right to conflict-free counsel). The government 22 urges that the district court, which observed Salim during this 23 colloquy, implicitly rejected Salim's claimed fears of abuse as 24 incredible. It is true that the district court was in a position 25 to assess Salim's credibility and, if appropriate, reject his 26 explanation for his waiver. But the district court made no 13 1 findings to that effect. The government's argument therefore is 2 speculative and we cannot uphold the district court's acceptance 3 of Salim's waiver on this basis.

4 C. Prejudice Analysis

5 Our analysis does not end with our determination that the 6 government has not met its burden of proving that Salim knowingly 7 and voluntarily waived his right to be physically present at 8 resentencing. The district court's error in finding a valid 9 waiver warrants reversal and remand only if Salim suffered 10 prejudice as a result. See DeMott, 513 F.3d at 58; Arrous, 320 11 F.3d at 361-62; Pagan, 785 F.2d at 380-81.

12 When a criminal defendant does not preserve an issue below 13 by objecting, we apply a plain error standard instead of a 14 harmless error one. See, e.g., United States v. Garcia, 587 F.3d 15 509, 515 & n.2 (2d Cir. 2009) (Confrontation Clause context);

16 United States v. Vaval, 404 F.3d 144, 151 (2d Cir. 2005) (Rule 11 17 context). We therefore review the district court's acceptance of 18 Salim's waiver of presence at resentencing for plain error. See, 19 e.g., United States v. Jones, 662 F.3d 1018, 1027 (8th Cir. 20 2011); United States v. Henderson, 626 F.3d 326, 343 (6th Cir. 21 2010); United States v. Holman, 289 F. App'x 680, 681 (5th Cir. 22 2008); United States v. Williams, 241 F. App'x 681, 684 (11th 23 Cir. 2007); United States v. Terrazas, 190 F. App'x 543, 548-49 24 (9th Cir. 2006); United States v. Rhodes, 32 F.3d 867, 874 (4th 25 Cir. 1994).

26 As explained recently by the Supreme Court, when reviewing 14 1 for plain error, 2 an appellate court may, in its discretion, correct an 3 error not raised at trial only where the appellant 4 demonstrates that (1) there is an error; (2) the error 5 is clear or obvious, rather than subject to reasonable 6 dispute; (3) the error affected the appellant's 7 substantial rights, which in the ordinary case means it 8 affected the outcome of the district court proceedings; 9 and (4) the error seriously affects the fairness, 10 integrity or public reputation of judicial proceedings. 11 United States v. Marcus, --- U.S. ----, 130 S. Ct. 2159, 2164 12 (2010) (brackets and internal quotation marks omitted). The 13 defendant bears "the burden of establishing entitlement to relief 14 for plain error." United States v. Dominguez Benitez, 542 U.S. 15 74, 82 (2004).

16 Even assuming that Salim has satisfied the first two prongs 17 of plain error review -- by showing that there was an error and 18 that it was clear or obvious -- he has not met the third or 19 fourth. Salim has not proven that his presence would have 20 affected the outcome of his resentencing. Cf. DeMott, 513 F.3d 21 at 58 (in harmless error review of erroneous deprivation of right 22 to be present at resentencing, violation was harmless if, inter 23 alia, the "defendant's presence would not have affected the 24 outcome" of the resentencing). Before the resentencing, the 25 district court issued an opinion in which it found that the 26 circumstances of Salim's crime "preclude[d] any finding in favor 27 of the Defendant for a non-guidelines sentence," App. 1101, i.e., 28 a sentence of less than life imprisonment. The district court 29 also clarified that its prior "determination not to impose a life 30 sentence was based on [its] erroneous legal analysis and had 15 1 nothing to do with the 'nature and circumstances of the offense' 2 or the 'history and characteristics of the defendant,'" id. at 3 1100-01 -- the sort of considerations that sometimes weigh in 4 favor of a below-Guidelines sentence under 18 U.S.C. 5 § 3553(a)(1). And, during the resentencing, by virtue of the 6 live videoconference link, Salim was not prevented from making 7 any statement he chose to the district court. Against these 8 considerations, Salim has offered no explanation for why his 9 physical presence might have led to a resentence of less than 10 life imprisonment.

11 Salim protests that the district court did not allow him to 12 read on the record a ten-page "motion" (alternatively called a 13 "statement"), App. 1123-24, that he had faxed to the district 14 court on the day of resentencing. Defendants have the right to 15 speak before the imposition of sentence. Fed. R. Crim. P. 16 32(i)(4)(A). Even on the dubious assumption that the district 17 court's decision not to hear Salim's motion was tied to his lack 18 of physical presence, Salim's right to speak was not violated 19 here. The district court did not err in stating that motions 20 were to be made by counsel and that, in any case, it would not 21 rule on any motions made at this late date. The district court 22 asked Salim what he "ha[d] to say in relation to sentencing," 23 App. 1124, and Salim spoke, as was his right. Later, the 24 district court offered Salim's counsel a break to consider 25 whether he wished to raise in his attorney statement any of the 26 points from Salim's motion. Counsel declined the break and made 16 1 a statement that "incorporate[d]" the motion, id. at 1128. In 2 these circumstances, Salim's right to speak before the imposition 3 of resentence was not violated.

4 Nor has Salim proven the fourth plain error factor -- that 5 the district court's acceptance of his waiver of presence 6 seriously affected the fairness, integrity or public reputation 7 of judicial proceedings. An error that does not affect the 8 outcome of proceedings typically does not meet this prong. 9 Marcus, 130 S. Ct. at 2166. This is because "the plain-error 10 exception to the contemporaneous-objection rule is to be used 11 sparingly," "to correct only particularly egregious errors" when 12 "a miscarriage of justice would otherwise result." United States 13 v. Young, 470 U.S. 1, 15 (1985) (internal quotation marks 14 omitted). As discussed earlier, Salim has not explained why his 15 absence might have altered his resentence, nor has he 16 demonstrated that any error in his resentencing was so egregious 17 as to warrant relief on plain error review. 18 In sum, we see no basis for concluding that the acceptance 19 of Salim's waiver of presence, while erroneous on this record, 20 warrants reversal under a plain error standard.

21 II. The Reasonableness of Salim's Resentence

22 Salim makes several challenges to the reasonableness of his 23 resentence. "We are constrained to review sentences for 24 reasonableness, and we do so under a deferential abuse-of- 25 discretion standard. We examine sentences for both substantive 17 1 and procedural reasonableness, setting aside a sentence as 2 substantively unreasonable only in those special cases where the 3 range of permissible decisions does not encompass the [d]istrict 4 [c]court's determination." United States v. Diamreyan, 684 F.3d 5 305, 308 (2d Cir. 2012) (internal quotation marks and citations 6 omitted). "A sentence is procedurally unreasonable when[] the 7 district court (1) fails to calculate the Guidelines range; (2) 8 is mistaken in the Guidelines calculation; (3) treats the 9 Guidelines as mandatory; (4) does not give proper consideration 10 to the § 3553(a) factors; (5) makes clearly erroneous factual 11 findings; (6) does not adequately explain the sentence imposed; 12 or (7) deviates from the Guidelines range without explanation." 13 Id.

14 Salim argues that his resentence was procedurally 15 unreasonable because the district court imposed a longer sentence 16 at resentencing than it had imposed originally. The district 17 court originally imposed a sentence of 32 years' imprisonment. 18 At that point, in Salim's view, the district court knew 19 everything about his case that it knew at the resentencing. 20 Furthermore, the district court did not give the original 32-year 21 sentence because of adherence to then-mandatory Guidelines; it 22 departed upward from those Guidelines, so the original sentence 23 must have been what the district court thought was right under 24 the circumstances. Therefore, Salim argues, the district court 25 could not have imposed a heavier sentence on remand, when the 26 Guidelines were no longer mandatory, and when all that had 18 1 changed was the Guidelines recommendation, unless the district 2 court took the Guidelines to be mandatory or at least 3 presumptively correct. Either of those presumptions would 4 constitute an abuse of discretion. See United States v. Dorvee, 5 616 F.3d 174, 182-83 (2d Cir. 2010). Furthermore, Salim argues, 6 the fact that our Court had instructed the district court that 7 the terrorism enhancement applied cannot explain the increased 8 sentence on remand, as that determination was based simply on the 9 meaning of the Guidelines, and not on any disagreement with the 10 district court's findings of fact; we did not, for example, 11 reject the district court's fact-finding and conclude that Salim 12 was actually engaged in a larger hostage-taking plot, rather than 13 in an attempt to scare his attorneys into resigning and to force 14 Judge Sand to appoint new counsel.

15 Salim's argument is unavailing, as the sentencing factors 16 were different at the time of resentencing: the Guidelines 17 recommendation, which is a factor that 18 U.S.C. § 3553(a) 18 requires a judge to consider, had changed. If the Guidelines are 19 a factor, then it must follow that in some cases they are the 20 factor that tips the balance. After all, if a factor never makes 21 a difference, it is a non-factor. Accordingly, we conclude that 22 the district court's imposition of a life sentence at 23 resentencing was not procedurally unreasonable. 24 Salim's challenge to the validity of the terrorism 25 enhancement Guideline itself is similarly unavailing. He argues 26 that the terrorism enhancement, like the child pornography 19 1 Guidelines, is not entitled to the respect or deference of a 2 sentencing judge because the enhancement was not the product of 3 empirical "research." See Dorvee, 616 F.3d at 184-85 (noting, 4 inter alia, that "the [Sentencing] Commission did not use [its 5 typical] empirical approach in formulating the Guidelines for 6 child pornography," but "[i]nstead, at the direction of Congress, 7 . . . amended the Guidelines . . . several times since their 8 introduction in 1987, each time recommending harsher penalties").

9 In Dorvee, we analogized to the Supreme Court's instruction, in 10 the context of crack-cocaine sentencing, that a judge is free to 11 disagree with the substance of a Guidelines recommendation, and 12 we held that it is not an abuse of discretion for a judge to 13 disagree with the child pornography Guidelines, given their 14 "irrationality" and questionable origins. See id. at 187-88. We 15 have never held that a district court is required to reject an 16 applicable Guideline. At most, the judge may give a non- 17 Guidelines sentence where she disagrees with the weight the 18 Guidelines assign to a factor.

19 Here, there is no indication that the district court 20 disagreed with the terrorism enhancement, or thought it compelled 21 (or established a presumption in favor of) a sentence that was 22 greater than necessary to accomplish the purposes of sentencing 23 set out in section 3553(a). Rather, the district court 24 recognized expressly, in writing, that the Guidelines are 25 advisory, stated the correct standard, and discussed at length, 26 in terms of the statutory factors, why a life sentence was 20 1 appropriate. While the district court did not directly reject 2 Salim's argument that it ought to ignore the terrorism 3 enhancement, we have never required judges to address every point 4 raised, where, as here, the district court made clear its reasons 5 for imposing a life sentence. Accordingly, the district court 6 did not abuse its discretion in considering the terrorism 7 enhancement.

8 CONCLUSION

9 We have considered Salim's remaining arguments and find them 10 to be without merit. We therefore AFFIRM the judgment of the 11 district court.


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