from the United States District Court for the Eastern
District of Tennessee of Chattanooga. No.
1:16-cr-00065-1-Curtis L. Collier, Chief District Judge.
E. Davis, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE,
INC., Knoxville, Tennessee, for Appellant.
Woods, UNITED STATES ATTORNEY'S OFFICE, Chattanooga,
Tennessee, for Appellee.
Before: DAUGHTREY, MOORE, and KETHLEDGE, Circuit Judges.
NELSON MOORE, Circuit Judge.
Fahd Saleh Albaadani, who was born in Yemen, was sentenced to
nine months of imprisonment and one year of supervised
release for tampering with a GPS ankle monitor in violation
of 18 U.S.C. § 1361 and 8 U.S.C. § 1253(b). R. 65
(Judgment at 1-3) (Page ID #763-65). Albaadani has appealed,
arguing that his sentence was "based . . . on the
impermissible factors of Mr. Albaadani's gender and
national origin." Appellant's Br. at 20. Although we
agree that some of the district court's comments, taken
out of context, could appear to be influenced by
Albaadani's national origin, the district court's
explicit and complete reliance on several serious threats and
photographs attributed to Albaadani gives us confidence that
the sentence, viewed as a whole, did not create the
appearance of having been based on gender or national origin.
Therefore, we AFFIRM Albaadani's
came to the United States via Saudi Arabia when he was
seventeen years old. R. 53 (PSR ¶¶ 39, 41) (Page ID
#683). On June 26, 2015, an order of removal was
issued against him because his former wife ceased to sponsor
his request to be a citizen. R. 55 (Gov't's
Sentencing Mem. at 1) (Page ID #689); R. 71 (Trial Tr. at
78-82) (Page ID #867-71). In fact, Albaadani wants to return
to his birthplace, but because Yemen was in a state of
"war and political conflict, " no travel documents
have been issued. R. 53 (PSR ¶¶ 5, 41) (Page ID
#679, 684). Unable to return to Yemen, but with an order of
removal issued against him, Albaadani was detained for
"approximately six months, " R. 71 (Trial Tr. at
20, 126) (Page ID #809, 915), after which he was released
subject to monitoring with a GPS ankle monitor, R. 53 (PSR
¶ 5) (Page ID #679). Following a period of time living
in San Francisco, California, Albaadani was approved for
relocation to Chattanooga, Tennessee on March 15, 2016.
Id. ¶ 6 (Page ID #679).
the time when Albaadani relocated, the Immigration and
Naturalization Service received a tamper alert on
Albaadani's ankle monitor. Id. Christopher
Purdy, an enforcement and removal officer ("ERO"),
followed up on this alert by calling Albaadani. Id.
¶ 7 (Page ID #679); R. 71 (Trial Tr. at 24, 95) (Page ID
#813, 884). Purdy instructed Albaadani to report to an
Enforcement and Removal Operations office in Gadsden,
Alabama, R. 71 (Trial Tr. at 24, 96) (Page ID #813, 885),
which is approximately ninety miles south of Chattanooga,
see Google Maps, https://www.google.com/maps/ (last
visited June 28, 2017). Albaadani refused. Purdy claims that
Albaadani "became increasingly verbally aggressive
towards [Purdy], " told Purdy to "fuck off, "
and said that he would "[k]ick [Purdy's] ass."
R. 71 (Trial Tr. at 27-28) (Page ID #816-17). Albaadani
denied that he was frustrated on the call. Id. at 98
(Page ID #887). He also denied making any of the statements
that Purdy attributed to him, claiming that he did not
recognize the caller and made only one statement:
"[N]ext week from now I have to see my deportation
officer . . . and I have to discuss this problem with him. .
. . If he gives me [an] order to go to Nashville, I will go
to Nashville. . . . If I have to go to Nashville every two
weeks, I'm going to have to go back to California."
Id. at 97-98 (Page ID #886-87). On May 9, 2016,
Albaadani was arrested and detained once more. R. 53 (PSR
¶ 7) (Page ID #679).
jury charged Albaadani with threatening a federal official in
violation of 18 U.S.C. § 115 (Count One), willfully
injuring and committing a depredation against federal
government property (i.e., the ankle monitor) in violation of
18 U.S.C. § 1361 (Count Two), failing to comply with the
terms of release under supervision in violation of 8 U.S.C.
§ 1253(b) (Count Three), and transmitting a threat in
interstate commerce in violation of 18 U.S.C. § 875(c)
(Count Four). R. 25 (2d Superseding Indictment) (Page ID
#159-63). At trial, Albaadani admitted that he took off the
ankle monitor, R. 71 (Trial Tr. at 94-95, 110) (Page ID
#883-84, 899), which Purdy estimated would cost under $10 to
repair, id. at 11-12 (Page ID #800-01).
respect to Counts One and Four, the government argued that
there were several instances in which Albaadani made threats
to federal officers and others. First, there was the
aforementioned phone call with Officer Purdy. The government
also pointed to another incident, in which Albaadani
allegedly said "I don't fuck with guns. I fuck with
bombs" at an Intensive Supervision Appearance Program
("ISAP") office in San Francisco. Id. at
101-02 (Page ID #890-91). Albaadani denied making this
statement. Id. at 102 (Page ID #891). In another
instance, Albaadani left a voicemail with an employee at a
car dealership, in which Albaadani said, "I will kill
somebody" and "mother fucker." Id. at
129-35 (Page ID #918-24). Albaadani acknowledged that he left
the voicemail, id. at 135 (Page ID #924), but he
explained that he left it out of frustration because he
believed that the FBI hacked into his car, causing him to
lose control and nearly crash into an 18-wheeler.
Id. at 134 (Page ID #923).
jury ultimately convicted Albaadani of Counts Two and Three.
R. 49 (Verdict Form) (Page ID #643). He was acquitted of
Counts One and Four, regarding threatening a federal officer.
guideline imprisonment range was zero to six months. R. 53
(PSR ¶ 49) (Page ID #684). Prior to sentencing, the
government filed a motion for upward departure, pointing to
Albaadani's history of making threats and his inability
to make "himself . . . amenable to supervision." R.
55 (Gov't's Sentencing Mem. at 7) (Page ID #695). It
requested that the district court sentence Albaadani to the
statutory maximum of twenty-four months of imprisonment.
Id. at 7, 9 (Page ID #695, 697). In support, the
government elaborated on the incident between Albaadani and
ERO personnel in San Francisco using "[t]he
defendant's statements to ERO personnel [that] were
captured in a database." Id. at 2 (Page ID
#690). According to the database entry, Albaadani told an
officer that "[h]e doesn't f**k with guns, but he
f**ks with bombs." Id. The entry also stated
that "[n]o significant security concern has been
identified at this time." Id. at 2-3 (Page ID
government noted another incident at the same office several
months later. The database entry for that incident states
that Albaadani "reported to the ISAP office to follow up
on a tracker strap tamper alert that occurred on
2/19/16." Id. at 3 (Page ID #691). The entry
continued, "The participant was overly rude to all Case
Specialist[s] when he arrived, complaining . . . that he had
been waiting 20 minutes to be seen." Id. The
entry indicated that Albaadani ultimately "stormed out
of the office, " stating along the way, "I do not
care no more, I know what you guys do, you think you are ICE,
but me and my friend are ISIS." Id.
addition to the reported confrontations between Albaadani and
law enforcement, the government elaborated on the incident
with the car dealership. The government claimed that after
leaving the aforementioned voicemail, Albaadani
"returned to the car dealership and confronted the
employee directly[, ] stat[ing] that the employee had
'made [him] late for a $120, 000.00 drug deal' and
that the defendant was going to make sure someone came to
kill the employee." Id. at 4 (Page ID #692).
the government pointed to several photos on Albaadani's
Facebook page depicting Albaadani holding various firearms.
Id. at 5-6 (Page ID #693-94). Two photos include the
caption, "Just to keep the game going." R. 55
(Gov't's Sentencing Mem. at 6-7) (Page ID #694-95).
One photo of Albaadani without a gun includes the caption,
"This is the new word. Find them kill em All. Only
bitches hiding behind doors." Id. The
government claimed that it "does not know the location
where the pictures were taken" and that they "were
captured from an FBI report of investigation."
Id. at 6 (Page ID #694). The government provided no
further information about this investigation.
Albaadani's sentencing hearing, the district court
engaged in a colloquy with government counsel regarding
Albaadani's threat to the public. In response to the
government's motion for an upward departure, the district
court asked, "We should just keep [Albaadani] in jail
forever, shouldn't we?" R. 72 (Sentencing Tr. at 8)
(Page ID #960). The court elaborated: "[Albaadani] is
not a citizen of the United States. He is a citizen of
another country, so there is no allegiance to this
country." Id. Counsel for the government
pointed out that "[t]he Supreme Court has ruled that we
cannot . . . detain him forever, " to which the district