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United States v. Hassan-Saleh-Mohamad

United States Court of Appeals, First Circuit

July 9, 2019

UNITED STATES OF AMERICA, Appellee,
v.
MOHAMAD HASSAN-SALEH-MOHAMAD, Defendant, Appellant.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Carmen Consuelo Cerezo, U.S. District Judge]

          José B. Vélez Goveo and Vélez & Vélez Law Office on brief for appellant.

          Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, Antonio L. Perez-Alonso, Assistant United States Attorney, and Rosa Emilia Rodríguez-Vélez, United States Attorney, on brief for appellee.

          Before Lynch, Thompson, and Kayatta, Circuit Judges.

          LYNCH, CIRCUIT JUDGE.

         Mohamad Hassan-Saleh-Mohamad ("Hassan") pleaded guilty to possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2). He now challenges the procedural and substantive reasonableness of his within-guidelines sentence of eighty-seven months' imprisonment and fifteen years' supervised release. Finding no abuse of discretion, we affirm his sentence.

         I.

         We recount only the central facts in this section, providing more detail as necessary in the analysis. As Hassan's appeal follows a guilty plea, "we draw the relevant facts from the plea agreement, the change-of-plea colloquy, the undisputed portions of the presentence investigation report ('PSR'), and the transcript of the disposition hearing." United States v. O'Brien, 870 F.3d 11, 14 (1st Cir. 2017).

         A. Federal Investigation, Child Pornography Charge, and Plea

         During a Federal Bureau of Investigation (FBI) investigation into the distribution of child pornography on the Ares peer-to-peer file-sharing network in November 2016, an FBI agent identified a computer with a particular Internet Protocol (IP) address as a potential source of child pornography. The agent began investigating this computer and downloaded two video files made available by the targeted computer, both of which contained child pornography.[1]

         An administrative subpoena on the cable company connected to the IP address of that computer returned an address in Puerto Rico. The FBI then executed a search, pursuant to a warrant, of the residence at that address on March 31, 2017, and interviewed all of the residents, including Hassan. In this interview, Hassan stated that he had used his computer to search the Ares peer-to-peer network for child pornography and had downloaded about fifty child pornography videos and images in the past year. A search of Hassan's hard drive found six images and 335 videos of minors engaged in sexual conduct, including some featuring sadomasochistic acts and prepubescent minors.

         On April 25, 2018, a criminal information was filed, charging Hassan with one count of possession of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2). That same day, Hassan pleaded guilty to this count pursuant to a plea agreement. The plea agreement stated a Base Offense Level (BOL) of eighteen and a number of sentencing adjustments, leading to a Total Offense Level (TOL) of twenty-five. The parties did not stipulate to a Criminal History Category (CHC). The plea agreement stated that Hassan could argue for a sentence of fifty-seven months' imprisonment, and the government could argue for seventy-one months. Hassan agreed to waive his right to appeal if the sentence imposed was seventy-one months or less.

         B. Sentencing

         The Probation Office filed an amended PSR which applied a five-level rather than two-level enhancement for the number of images possessed by Hassan, [2] leading to a TOL of twenty-eight.[3] The PSR stated a CHC of I for Hassan. This TOL and CHC led to a guideline sentencing range (GSR) of seventy-eight to ninety-seven months. Hassan filed a sentencing memorandum arguing for a sentence of fifty-seven months; he did not challenge facts in the PSR. Instead, he more generally challenged the sentencing guidelines related to child pornography and sought a downward variance based on the district court's discretion to disagree with specific guidelines, recognized in Kimbrough v. United States, 552 U.S. 85 (2007).

         At the sentencing hearing, Hassan argued again for a sentence of fifty-seven months' imprisonment; pursuant to the plea agreement, the government argued for a sentence of seventy-one months' imprisonment. After discussing, inter alia, the GSR, the sentencing enhancements, certain facts of the offense, and some characteristics of the defendant, the district court imposed a sentence of eighty-seven months' imprisonment and fifteen years' supervised release. Near the end of the sentencing hearing, ...


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