USA v. Mohsion Haroon Ahmed, (11th Cir. 2007)

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[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

F O R THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

FEBRUARY 6, 2007

THOMAS K. KAHN

N o . 06-12404

CLERK

N o n - A r g u m e n t Calendar

D . C. Docket No. 05-20937-CR-PCH

U N IT E D STATES OF AMERICA,

Plaintiff-Appellee,

versus

MOHSION HAROON AHMED,

Defendant-Appellant.

A p p e al from the United States District Court

fo r the Southern District of Florida

(F eb ru a ry 6, 2007)

B efo re BIRCH, BLACK and FAY, Circuit Judges.

P E R CURIAM:

M o h s io n Haroon Ahmed pleaded guilty to simple assault in the special aircraft jurisdiction of the United States, in violation of 18U.S.C. § 113(a)(5) and 4 9U.S.C. §46506(1), and interference with flight crew members and attendants, in v io latio n of 49U.S.C. § 46504. He was sentenced to two concurrent three-month term s of imprisonment and three years' supervised release, which included four m o n th s' home confinement and 250 hours of community service in each year of su p erv ised release. Ahmed appeals his sentence, arguing that it is unreasonable.

For the reasons set forth more fully below, we affirm Ahmed's sentence, but vacate an d remand for correction of a clerical error in the judgment.

Ahmed argues that his sentence is unreasonable because the court did not ad eq u ately consider the 18U.S.C. § 3553(a) factors and because it created a d isp arity between his sentence and other similarly situated defendants charged with th e same offense. Ahmed contends that, in contrast to cases where the defendants eith er were not convicted of the felony charge or, if they were, actual incarceration w as minimized through credit for time served, probation, or home detention, he w a s convicted of the felony offense and received incarceration, supervised release, h o m e detention, and community service. Ahmed further argues that the district co u rt should have accorded more weight to mitigating factors, including his rem o rse, the unlikelihood of recidivism, and the need for the sentence to be su fficien t, but not greater than necessary to comply with the goals set forth in the § 3553(a) factors.

We review the final sentence imposed by the district court for reaso n ab len ess. United States v. Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005).

We consider the factors outlined in 18U.S.C. § 3553(a) and the district court's reaso n s for imposing the particular sentence. United States v. Williams, 456 F.3d 1 3 5 3 , 1360-61 (11th Cir. 2006), pet. for cert. filed, (U.S. Oct. 19, 2006) (No. 067 3 5 2 ). The § 3553(a) factors take into account: (1 ) the nature and circumstances of the offense and the history and ch aracteristics of the defendant; (2) the need to reflect the seriousness o f the offense, to promote respect for the law, and to provide just p u n ish m en t for the offense; (3) the need for deterrence; (4) the need to p r o te ct the public; (5) the need to provide the defendant with needed ed u catio n al or vocational training or medical care; (6) the kinds of sen ten ces available; (7) the Sentencing Guidelines range; (8) pertinent p o licy statements of the Sentencing Commission; (9) the need to av o id unwanted sentencing disparities; and (10) the need to provide restitu tio n to victims.

United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005). While the district co u rt must consider the § 3553(a) factors, it is not required to discuss each factor.

Id. "[A]n acknowledgment by the district court that it has considered the d e f en d a n t's arguments and the factors in section 3553(a) is sufficient under B o o k e r ." Id. "[T]here is a range of reasonable sentences from which the district co u rt may choose" and the burden of establishing that the sentence is unreasonable in light of the record and the § 3553(a) factors lies with the party challenging the sen ten ce. Id. at 788. "The weight to be accorded any given § 3553(a) factor is a m atter committed to the sound discretion of the district court[,]" and "[w]e will not su b stitu te our judgment in weighing the relevant factors . . . ." Williams, 456 F.3d at 1363. "When reviewing the length of a sentence for reasonableness, we will rem an d for resentencing if we are left with the definite and firm conviction that the d is tr ic t court committed a clear error of judgment in weighing the § 3553(a) factors b y arriving at a sentence that lies outside the range of reasonable sentences dictated b y the facts of the case." Id.

According to the undisputed facts in the presentence investigation report ("P S I"), on December 3, 2005, Ahmed, a passenger on a flight from London to M iam i, had been drinking and became disruptive on the flight. According to the p assen g er seated next to Ahmed, Ahmed said, "If you give me a knife, I'll kill ev eryo n e on the plane." Ahmed attempted to touch and kiss a female flight a tte n d a n t and grabbed her arms several times and continued to try to kiss her b e f o r e the Flight Service Manager told Ahmed to return to his seat. Ahmed then to o k several swings at the Flight Service Manager before the crew was able to get A h m ed to his seat. Before they got Ahmed in his seat, Ahmed placed his hands on an o th er female flight attendant and pushed her head to the side. Before two male flig h t attendants were able to restrain Ahmed, he bit the first flight attendant on the arm .

The PSI also stated that Ahmed was arrested on August 4, 2004, after his first wife filed a report with the Sheriff's Office accusing Ahmed of drinking h e a v ily and becoming physically abusive towards her. The PSI stated that an o f f ic er observed several injuries, consistent with her report, and that Ahmed ad m itted to having a fight after he had been drinking, but denied any violence.

At the sentencing hearing, the district court, citing the incident in the PSI sh o w in g Ahmed's past behavior involving alcohol and violence toward women, an d finding that Ahmed's actions put in jeopardy the crew members, passengers, a n d , potentially, the safety of the flight itself, stated that it did not believe that p ro b atio n was appropriate. The district court concluded that this case went beyond th e "normal" incident on a plane when someone was intoxicated and, stating that it co n sid ered the statements of the parties and their recommendations, the PSI, the ad v iso ry Guideline range, and the 18U.S.C. § 3553 factors, sentenced Ahmed to th ree months' imprisonment.

Ahmed cannot meet his burden of demonstrating that his sentence is u n reaso n ab le. The court's statements that it considered the parties' statements, the P S I , and the § 3553 factors, was sufficient under Booker. See Talley, 431 F.3d at 7 8 6 . Ahmed's three-month term of imprisonment falls in the middle of the 0-6 m o n th advisory Guideline range and well below the 20-year statutory maximum term of imprisonment on the felony interference charge under 49U.S.C. § 46504.1 B ased on evidence of Ahmed's past physically abusive actions when drinking, and h is actions on the airplane, which included physically assaulting, attempting to k is s, and biting a flight attendant on the arm, we cannot conclude that the district c o u r t's sentence is unreasonable.

H o w ev er, "[w]e may sua sponte raise the issue of clerical errors in the ju d g m e n t and remand with instructions that the district court correct the errors." United States v. Massey, 443 F.3d 814, 822 (11th Cir. 2006). We have remanded fo r correction of a clerical error where the statute cited in the judgment and co m m itm en t order was incorrect. United States v. Anderton, 136 F.3d 747, 751 ( 1 1 th Cir. 1998). In this case, the judgment does not correctly list the statutory p r o v is io n s violated in Count 1, the charge of assault in the special aircraft ju risd ictio n of the United States, in violation of 18U.S.C. § 113(a)(5) and 49 U .S .C . §46506(1). The judgment only lists 18U.S.C. § 113(a)(5), which crim in alizes assault within the special maritime and territorial jurisdiction of the U n ited States. 18U.S.C. § 113(a)(5). However, 49U.S.C. §46506(1) criminalizes th e same act if committed on an aircraft in the special aircraft jurisdiction of the U n ited States. See 49U.S.C. §46506(1). Accordingly, the district court's ju d g m en t should also reflect that Ahmed was adjudicated guilty on Count 1 of v io latin g §46506(1).

In light of the foregoing, we affirm Ahmed's sentence, but vacate and rem an d for the limited purpose of correcting a clerical error in the judgment.

A F F IR M E D IN PART; VACATED AND REMANDED IN PART.

1 Pursuant to § 1B1.9, the Guidelines were not applied to the assault charge because it was a class B misdemeanor.

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