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United States of America v. Mamdouh Mahmud Salim

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 ...


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