United States v. Abed, No. 20-4162 (4th Cir. 2021)Annotate this Case
In 1998, defendant was sentenced to 570 months' imprisonment following his conviction on numerous counts of racketeering and related offenses. Over 20 years later, one count constituting a 360-month component of his sentence was vacated because of a change in the law. Defendant was resentenced to 360 months' imprisonment, which was an upward variance from the recommended Sentencing Guidelines range of 188 to 235 months' imprisonment. Defendant appealed, contending that his new sentence violates the Ex Post Facto Clause and the Due Process Clause and that it is procedurally and substantively unreasonable.
The Fourth Circuit rejected defendant's ex post facto challenge and concluded that defendant's argument against the retroactive application of United States v. Booker, 543 U.S. 220 (2005), has been universally rejected. The court also rejected defendant's contention that the district court's imposition of a sentence on his remaining seven convictions that is greater than the sentence he received on those convictions at his original sentencing violated the Due Process Clause, and concluded that defendant did not receive an increased aggregate sentence and his attempt to establish a presumption of vindictiveness failed. Finally, the court concluded that defendant's law of the case argument is at odds with the Supreme Court’s decision in Pepper v. United States, 562 U.S. 476 (2011).
The court also concluded that the record demonstrates that the district court imposed the above-Guidelines sentence at issue here as a variance, not a departure; there was no ground for reversal based on defendant's claim of unwarranted sentencing disparities; the district court did not erroneously fail to take defendant's military service and PTSD into account; the district court adequately articulated its reasons for imposing the upward variance; and the record reflects that the district court considered both the mitigation and rehabilitation evidence presented and weighed it against the seriousness of the offense. Accordingly, the court affirmed defendant's sentence.