United States v. Osama Moustaffa Soliman and Feisa El Sayed Elbroul

Citations: 889 F.2d 441; 1989 U.S. App. LEXIS 17345Docket: 330

Court: Court of Appeals for the Second Circuit; November 12, 1989; Federal Appellate Court

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The United States Court of Appeals for the Second Circuit reviewed the cases of defendants Osama Moustaffa Soliman and Feisa El Sayed Elbroul, who pleaded guilty to possession with intent to distribute heroin. They were sentenced under the United States Sentencing Guidelines, which were established to create uniform sentencing standards. The court examined the appellate review scope concerning the Sentencing Reform Act of 1984, affirming that sentences within a correctly applied Guidelines range cannot be appealed unless there is a legal violation.

The appellants were arrested for selling heroin and were informed of the potential 5 to 40-year prison sentence. Judge Edelstein sentenced Soliman to 121 months and Elbroul to 108 months, based on a base offense level of 30 derived from the quantity of heroin involved. Both received a two-level increase for obstruction of justice due to dishonesty in a suppression hearing but were granted a two-level reduction for acceptance of responsibility. Their adjusted offense levels placed them within a Guidelines range of 97 to 121 months.

Judge Edelstein's decision to impose the maximum sentence on Soliman was influenced by factors indicating ongoing drug trafficking activity, including possession of multiple passports and unverifiable bank accounts, alongside a prior drug trafficking conviction in Italy. Elbroul's sentence of 108 months reflected the quantity of heroin involved, aligned with the midpoint of the guideline range.

Soliman argues that Judge Edelstein wrongly declined to reduce his sentence due to alleged cooperation with the government and improperly considered a foreign drug trafficking conviction deemed constitutionally unsound. Elbroul contests the reliance on erroneous information in a presentencing report and the court's failure to inform him of the potential sentence under the Guidelines. Before addressing their claims, the appealability of a sentence within a correctly calculated Guidelines range must be determined. The Sentencing Reform Act of 1984 allows both defendants and the government to appeal sentences under specific conditions, including violations of law and incorrect application of the Guidelines. However, Congress did not clarify the appealability of sentences within a Guidelines range. In United States v. Colon, the court ruled that a district judge's refusal to depart downward from an appropriately applied Guidelines sentence is nonappealable unless there is an illegal sentence or misapplication of Guidelines. Consequently, Soliman's challenge regarding the refusal to lower his sentence is not reviewable as it does not assert an appealable violation of law or misapplication of the Guidelines, but rather questions the trial court's discretion, which Congress intended to remain intact. The prosecution's decision not to certify Soliman's cooperation further supports the district court's discretion in sentencing.

Soliman's claim regarding the consideration of a foreign conviction as a legal violation is appealable under Sec. 3742(a)(1). Elbroul's assertions that the district court relied on erroneous information and failed to inform him about potential Guidelines sentences are also subject to appellate review. Although foreign convictions do not factor into a defendant's criminal history category, the Guidelines permit district courts to consider them when deciding on departures from the established sentencing range. Specifically, the Guidelines allow for the consideration of prior sentences not included in the criminal history category, such as those from foreign convictions, under Sec. 4A1.3. A departure is justified when the criminal history category does not adequately reflect the seriousness of the defendant's past or the likelihood of future offenses. Invalid convictions cannot be counted in the criminal history score but may still be considered if they provide reliable evidence of prior criminal conduct. 

Soliman cites United States v. Tucker, which mandates that a sentencing judge cannot rely on constitutionally defective convictions without being aware of their status, necessitating resentencing in such cases. The Tucker decision emphasizes that informed discretion is essential for sentencing courts. The court can consider foreign convictions in light of any constitutional issues once it is aware of them and may use this information to decide on departures from the Guidelines range. In determining a sentence, the court can consider any relevant background, character, and conduct of the defendant unless restricted by law, as stipulated in 18 U.S.C. Sec. 3661.

Interpreting Tucker in a restrictive manner would lead to an illogical outcome where facts related to a crime are only considered if they did not result in a conviction. Guidelines Sec. 4A1.3(e) permits consideration of prior unconvicted misdeeds, supported by established circuit law. Judge Edelstein's awareness of potential constitutional issues regarding Soliman's Italian conviction justifies his decision to impose the maximum sentence within the calculated Guidelines range. 

Elbroul's claim of an erroneous two-point penalty for obstruction of justice is dismissed since he did not contest the presentence report, which confused him with Soliman, at sentencing. His failure to challenge the report precludes relief. Additionally, Elbroul's assertion that he did not plead "knowingly" because he was unaware that the Guidelines allowed consideration of both admitted drug possession and additional narcotics from a shared apartment has been previously rejected by the Circuit. 

The sentences and convictions are affirmed. Soliman, convicted in Italy for possession with intent to distribute hashish, received a life supervised release, a $10,000 fine, and a $50 special assessment, while Elbroul was sentenced to a six-year supervised release, a $35,000 fine, and a $50 special assessment. The cited case of Colon emphasizes that sentences within an applicable range are not typically appealable unless there is a misapplication of the Guidelines or an illegal sentence. Soliman’s reliance on Stubbs v. Mancusi is deemed misplaced as his foreign conviction was considered among various factors in sentencing rather than affecting his criminal history category directly.