Criminal Practice – Resentencing – Procedural Error

The district court did not commit a significant procedural error in its application of the terrorism enhancement.

Because we found no reversible error, we affirmed the judgment of the district court.

Hysen Sherifi was convicted of five federal offenses arising from his participation in a terrorism conspiracy. The district court sentenced him to 540 months’ imprisonment, and we affirmed. The Supreme Court subsequently held, however, that certain applications of a statute under which Sherifi was twice convicted—18 U.S.C. § 924(c)—were unconstitutional. United States v. Davis, 588 U.S. 445, 470 (2019). The district court found his §924(c) convictions were unconstitutional under Davis and set them aside. The court resentenced Sherifi on the remaining three counts to 516 months’ imprisonment. Sherifi appealed, arguing we should remand the case for another resentencing because, in his view, the district court committed a procedural error at sentencing and impermissibly sentenced him based on facts not found by the jury.

On appeal, Sherifi challenged his revised sentence on three grounds. He first contended the district court erred procedurally by failing to acknowledge his argument that the Guidelines’ terrorism enhancement should not have been applied. He next claimed his Sixth Amendment right to a jury trial was violated because he was sentenced for conspiring to murder or kidnap when the jury found only that he conspired to murder, kidnap, or maim. Finally, he argued that he received a hate-crime enhancement at sentencing despite the jury’s not finding improper motivation.

The terrorism enhancement in U.S.S.G. §3A1.4(a) adds 12 offense levels to a sentence and places a defendant in the highest possible criminal history category of VI. Sherifi claimed at his resentencing hearing that applying the terrorism enhancement would cause the district court to “not consider Sherifi’s actual characteristics in the proper way,” given that it “rachets [up] a defendant’s range . . . regardless of the defendant’s role in the offense, the actual danger to the community or the government, his actual Criminal History Category, or any of the factors usually considered” in determining a sentence. In Sherifi’s view, the district court failed to acknowledge this argument, and thus committed a significant procedural error. Sherifi therefore contended we should reverse for another resentencing. We disagreed. The district court did not commit a significant procedural error on this issue because it adequately explained its sentence, applied the §3553(a) factors, and granted Sherifi’s request for a downward variance based on his individual circumstances. The district court did not commit a significant procedural error in its application of the terrorism enhancement. The court explicitly adopted its findings from the initial sentencing of why the terrorism enhancement applied, observed that the enhancement increased Sherifi’s recommended sentence under the Guidelines, and gave credence to Sherifi’s argument that the terrorism enhancement’s placement of Sherifi in criminal history category VI masked his positive personal characteristics when it sentenced Sherifi to well below the Guidelines recommendation.

Sherifi next contended the court committed an Apprendi error in violation of his Sixth Amendment right to a jury trial because it sentenced him to a greater sentence than allowed by the facts found by the jury beyond a reasonable doubt. Because the trial record amply demonstrated Sherifi conspired to kill, we rejected his claim that the error seriously affected the fairness, integrity, or public reputation of the proceedings.

Sherifi’s last contention was that the district court erred by applying U.S.S.G. § 3A1.1(a)’s hate-crime enhancement. Because Sherifi was not prejudiced by the hate-crime enhancement, his challenge to its application must fail. With or without the hate-crime enhancement, Sherifi’s total 17 offense level was already at the maximum level of 43 due to the terrorism enhancement. And so, since we have concluded that the district court correctly applied the terrorism enhancement to reach the maximum total offense level of 43, application of the hate-crime enhancement did not affect the outcome of the sentencing proceedings. Because the overwhelming and essentially uncontroverted evidence at trial “admits of only one result”—that Sherifi targeted his victims based on their religious beliefs — “there is simply no basis for concluding” that the application of the hate-crime enhancement “seriously affected the fairness, integrity or public reputation of judicial proceedings.” We therefore rejected Sherifi’s request for resentencing.

Affirmed.

United States v. Hysen Sherifi (Lawyers’ Weekly No. 011-060-24, 18 pp.) (J. Harvie Wilkinson III, J.) Appealed from the U.S. District Court for the Eastern District of North Carolina at Raleigh (Louise W. Flanagan, J.) Argued: Cullen Oakes Macbeth, Office of the Federal Public Defender, Greenbelt, Maryland, for appellant; Danielle Tarin, United States Department of Justice, Washington, D.C., for appellee; On Brief: James Wyda, Federal Public Defender, Office of the Federal Public Defender, Baltimore, Maryland, for appellant; Matthew G. Olsen, Assistant Attorney General, National Security Division, United States Department of Justice, Washington, D.C.; Michael Francis Easley, Jr., United States Attorney, David A. Bragdon, Assistant United States Attorney, Office of the United States Attorney, Raleigh, North Carolina, for Appellee. U.S. Court of Appeals for the Fourth Circuit