United States v. Musleh , 106 F. App'x 850 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
BORHAN Y. MUSLEH, a/k/a Burhan  No. 03-4886
Musleh, a/k/a Tony Monstella, a/k/a
Tony Musleh, a/k/a Tony Mosleh,
a/k/a Burhan Y. Mushel,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CR-03-197)
Argued: June 2, 2004
Decided: August 20, 2004
Before WIDENER and WILLIAMS, Circuit Judges,
and Robert R. BEEZER, Senior Circuit Judge of the
United States Court of Appeals for the Ninth Circuit,
sitting by designation.
Affirmed in part, vacated in part, and remanded with instructions by
unpublished per curiam opinion.
COUNSEL
ARGUED: Paul Geoffrey Gill, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Vir-
2 UNITED STATES v. MUSLEH
ginia, for Appellant. Laura C. Marshall, Assistant United States Attor-
ney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond,
Virginia, for Appellee. ON BRIEF: Frank W. Dunham, Jr., Federal
Public Defender, Richmond, Virginia, for Appellant. Paul J. McNulty,
United States Attorney, Michael J. Elston, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alex-
andria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
When applying for a social security number (SSN) on May 22,
1998, under a different name, Borhan Musleh falsely informed the
Commissioner of Social Security that he had not previously been
issued a SSN. In fact, Musleh had obtained a SSN thirteen years ear-
lier. As a result of Musleh’s misrepresentation, the Commissioner
issued Musleh a second SSN. Because the Virginia Division of Child
Support Enforcement (DSCE) used Musleh’s original SSN to track
his income, and Musleh had his substantial earnings reported under
the second SSN, Musleh was able to avoid an increase in his child
support obligation. After Musleh’s use of multiple SSNs came to the
attention of federal authorities, an investigation ensued and a federal
grand jury returned a four-count indictment against Musleh. Follow-
ing a one-day bench trial, the district court found Musleh guilty on all
counts. At sentencing, the district court, sua sponte, ordered that resti-
tution be paid to Musleh’s daughter and ex-wife and, on the Govern-
ment’s motion, upwardly departed from the sentencing range
prescribed by the U.S. Sentencing Guidelines Manual (2002). Musleh
now appeals, challenging the district court’s decisions to admit certain
evidence at trial, to impose restitution, and to depart upwardly. For
the reasons that follow, we affirm Musleh’s conviction and the district
court’s upward departure, but we vacate the district court’s restitution
order and remand the case for further proceedings.
UNITED STATES v. MUSLEH 3
I.
A.
The evidence adduced at trial showed the following. Musleh came
to the United States in 1984 with a Jordanian passport, and on April
23, 1985, he applied for his first SSN. In the application for that SSN,
he listed his name as "Borhan Yousuf Mosleh" and his mother’s name
as "Amineh Mosleh." (J.A. at 42-43.) The Commissioner duly issued
SSN xxx-xx-1835 (the 1835 SSN)1 to the defendant as "Borhan Mos-
leh." On August 16, 1988, Musleh applied for a replacement social
security card, and changed the spelling of his last name to "Musleh."
The application included the questions, "Has a Social Security num-
ber card ever been requested for the [applicant]?" and "Was a card
received for the [applicant]?" (J.A. at 568.) Musleh answered "Yes"
to both questions and received a duplicate card bearing the 1835 SSN.
(J.A. at 568.) Musleh later used this SSN to obtain a driver’s license
from the Virginia Department of Motor Vehicles (DMV). This license
had an expiration date of July 31, 2001.
On May 22, 1998, Musleh again applied for a SSN. The application
included the question, "Has the applicant or anyone acting on his/her
behalf ever filed for or received a Social Security Number Card
before?" (J.A. at 572.) Musleh responded "No." (J.A. at 572.) On the
application, Musleh also changed the spelling of his first and last
names to "Burhan" and "Musleh" respectively, and he changed his
mother’s maiden name from "Mosleh" to "Monstella." (J.A. at 572.)
Because Musleh had altered the spelling of his name and claimed that
he never had been issued a SSN, the Commisioner had no reason to
deny the application and issued Musleh SSN xxx-xx-2057 (the 2057
SSN).
Musleh then used the 2057 SSN to apply for an original driver’s
license, notwithstanding the fact that his 1835 SSN driver’s license
was still valid. The DMV issued a driver’s license under the name,
1
Consistent with the directive to parties in our Notice of Electronic
Availability of Case Information, see http:// www.ca4.uscourts.gov/ pdf/
notice_electroniccaseinfo.pdf, we disclose only the last four numbers of
the SSNs that are relevant to this case.
4 UNITED STATES v. MUSLEH
"Burhan Musleh," using the 2057 SSN. Musleh did not surrender his
1835 driver’s license. When Musleh renewed the 2057 license on
June 29, 2001, as the result of a change in address, he returned the
original 2057 license issued to him on June 9, 1998.
After receiving the 2057 SSN, Musleh used both the 1835 and
2057 SSNs. For example, Musleh applied for United States citizen-
ship in October 1997 using the 1835 SSN. During an interview with
an immigration official on June 9, 2000, Musleh not only failed to
inform the examiner of the 2057 SSN, he also averred to the examiner
and on the application, under penalty of perjury, that the 1835 SSN
was accurate and that he had not knowingly committed a crime for
which he had not been arrested. Musleh also applied for a U.S. pass-
port on January 19, 2001, using the 1835 SSN. (J.A. at 660-62.) Dur-
ing the same time period, Musleh used the 2057 SSN in applications
for credit and financing and when he created a counterfeit academic
transcript from George Mason University.
Relevant to this appeal, Musleh used both SSNs for employment
purposes. Until March 1999, Musleh worked for a company called
Aerotek/Maxim Group and reported his earnings from that company
under the 1835 SSN. By April 1999, Musleh had ceased working for
Aerotek/Maxim and had begun working for a company called Quan-
tum Resources Corp., using his 2057 SSN and earning $42,378.80
from April to December 1999.
During early 1999, Musleh’s ex-wife, Melinda Campos, petitioned
the Virginia state court to increase Musleh’s child-support payment
in support of their daughter, N.M.2 In March 1999, DCSE notified
Musleh that his support obligation would increase to approximately
$600 per month from $199 based on his earnings from
Aerotek/Maxim during 1998 as reported under the 1835 SSN. In con-
testing this proposed increase, Musleh lied to DCSE officials, telling
them he was no longer employed. Later, at a support review hearing
in October 1999, Musleh falsely claimed that he was earning only
2
Consistent with the directive to parties in our Notice of Electronic
Availability of Case Information, see http:// www.ca4.uscourts.gov/ pdf/
notice_electroniccaseinfo.pdf, we truncate the name of Musleh’s minor
child to her initials, N.M.
UNITED STATES v. MUSLEH 5
$1,781.73 per month, much less than the amount he actually earned
each month from Quantum. DCSE verified the claimed assets of a
non-custodial parent by checking the income reported under that par-
ent’s SSN. Thus, because DCSE was using the 1835 SSN to verify
Musleh’s income, DCSE was unaware of Musleh’s income from
Quantum that was reported under the 2057 SSN. Therefore, the court
only increased Musleh’s support obligation, effective as of August
1999, to roughly $228 per month.
B.
In January 2003, federal authorities received information that Mus-
leh was using multiple SSNs and commenced an investigation. As a
result of the investigation, a grand jury sitting in the Eastern District
of Virginia returned a four-count indictment against Musleh charging
him with furnishing false information to the Commissioner of Social
Security with the intent to deceive in violation of 42 U.S.C.A.
§ 408(a)(6) (West 2003) (Count One); knowingly making a false
statement to federal officials in violation of 18 U.S.C.A. § 1001(a)
(West 2000) (Count Two); using a falsely obtained SSN with intent
to deceive on June 8, 1998, to obtain a driver’s license in violation
of 42 U.S.C.A. § 408(a)(7)(A) (West 2003) (Count Three); and using
a falsely obtained SSN with intent to deceive on June 30, 2001, to
obtain a driver’s license in violation of 42 U.S.C.A. § 408(a)(7)(A)
(Count Four). Musleh was found guilty on all counts in a one-day
bench trial held on July 25, 2003. Musleh timely filed motions for
new trial and for judgment of acquittal, both of which the district
court denied.
In the pre-sentence investigation report (PSR) prepared for Mus-
leh’s sentencing, the probation officer applied § 2B1.1 of the U.S.
Sentencing Guidelines, the section governing a broad range of prop-
erty and fraud-related offenses, to determine Musleh’s offense level.
See U.S. Sentencing Guidelines Manual, § 2B1.1 (2002). Under
U.S.S.G. § 2B1.1, Musleh’s base offense level for each offense of
conviction was 6 under subsection (a), and he was subject to no
increases in his offense level due to specific offense characteristics
under subsection (b), or due to victim-related, role, or obstruction
adjustments under Chapter 3 of the Guidelines. All of the offenses
were grouped pursuant to U.S.S.G. § 3D1.2(b), yielding a combined
6 UNITED STATES v. MUSLEH
adjusted offense level of 6, which, when combined with Musleh’s
criminal history category of I, resulted in a guideline sentence range
of 0-6 months. Importantly, the PSR concluded that "[t]here are no
identifiable victims or restitution issues that the Court needs to
address in this case." (J.A. at 354.) The PSR also concluded that,
based on Musleh’s net worth of $44,768 and lack of liquid assets, "he
is capable of paying the minimum fine, but does not appear to be able
to pay an additional fine in an amount sufficient to pay the cost of any
periods of imprisonment or supervision, or any interest on any fine."
(J.A. at 361.)
The United States did not object to the probation officer’s calcula-
tion of Musleh’s sentence under the Guidelines or to the probation
officer’s finding that restitution was not appropriate, but it did move
for a six-level upward departure. The Government’s upward departure
motion was based on two components. First, the Government noted
that, although the probation officer correctly found that U.S.S.G.
§ 2B1.1(b) did not allow for the attribution of any financial loss
related to Musleh’s conduct, the Guidelines did not take into account
the fact that Musleh’s acquisition of the second SSN under false pre-
tenses facilitated his evasion of child-support in the amount of
roughly $18,000. Thus, argued the Government, a four-level upward
departure — i.e., an increase to the level that would have applied had
the $18,000 been taken into account under U.S.S.G. § 2B1.1(b)(1)(C)
— was appropriate. Second, the Government noted that Musleh had
lied to federal officials in applying for U.S. citizenship by failing to
disclose that he had acquired a second SSN and that he had commit-
ted criminal acts (i.e., his false statements to the Commissioner of
Social Security in acquiring the 2057 SSN) for which he had not been
arrested, and that this uncharged conduct should be taken into consid-
eration under U.S.S.G. § 1B1.4, which allows sentencing courts to
consider the defendant’s conduct "without limitation" in determining
whether departure is appropriate. In order to account for this aspect
of Musleh’s conduct, the Government argued, the district court should
increase Musleh’s offense level by an additional two levels to a total
offense level of 12 — i.e., the level that would apply under U.S.S.G.
§ 2J1.3 for crimes of perjury.
At the sentencing hearing, the district court granted the Govern-
ment’s motion for upward departure. After the upward departure,
UNITED STATES v. MUSLEH 7
Musleh’s guideline range was 10-16 months, and the district court
sentenced Musleh to 16 months of imprisonment. (J.A. at 334.) In
addition, the district court, sua sponte and without objection from
Musleh, imposed restitution, explaining as follows:
I have considered his net worth and liquid assets and find
that he is not capable of paying a fine.
Pursuant to section 3663 of Title 18, I find that there are
identifiable victims requiring restitution. The court further
finds that the defendant’s ex-wife and daughter are victims,
as that term is defined in section 3663, and were directly
harmed by the defendant’s criminal conduct in the course of
this scheme.
The court orders restitution to Melinda Campos for [N.M.]
in the amount of $18,326. The restitution is due and payable
immediately and during the period of incarceration. . . .
(J.A. at 336 (emphasis added).) The district court then immediately
recessed.
Musleh filed a timely notice of appeal, challenging the district
court’s admission of certain evidence at trial, the decision to depart
upwardly, and the decision to impose restitution.
II.
A.
Musleh first contends that the district court abused its discretion in
admitting evidence at his trial. For the reasons stated below, we dis-
agree.
According to Musleh, the district court should have excluded evi-
dence that Musleh used a different name with employers and friends
because such evidence was intended to portray Musleh as having a
deceitful character, and thus, was improper character evidence under
Fed. R. Evid. 404(b). The district court erred further, Musleh argues,
8 UNITED STATES v. MUSLEH
in admitting evidence that Musleh used the two different SSNs to
keep his child support obligations artificially low because such evi-
dence was "irrelevant, unduly prejudicial, and otherwise inadmissible.
It was too remote in time and otherwise not so related to the charged
conduct as to justify its admission . . . ." (Appellant’s Br. at 20.) Mus-
leh also argues that the district court committed plain error in admit-
ting evidence of Musleh’s general credit histories under different SSNs.3
Musleh contends that had the erroneously admitted evidence properly
been excluded, there would have been insufficient evidence to support
his conviction on each of the four counts, thus justifying a judgment
of acquittal or the grant of a new trial.
We review a district court’s admission of evidence for abuse of dis-
cretion. United States v. Queen, 132 F.3d 991, 995 (4th Cir. 1997).
As a general matter, all relevant evidence is admissible. Fed. R. Evid.
402. Evidence is relevant if it has "any tendency to make the exis-
tence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the
evidence." Fed. R. Evid. 401. The evidence about which Musleh now
complains satisfies this standard. Intent was an element of each of the
four charges — Counts One, Three and Four required a showing of
"intent to deceive," and Count Two required a showing that Musleh
acted knowingly and willfully — and thus was a "fact that is of conse-
quence" to the resolution of the case. Fed. R. Evid. 401. The evidence
regarding Musleh’s extensive use of the two SSNs (for reporting earn-
ings, in obtaining multiple driver’s licenses, and in obtaining credit)
and multiple identities certainly made it more probable that he acted
with the requisite intent as opposed to making an innocent mistake.
Accordingly, this evidence was relevant.
Notwithstanding the relevance of the evidence, Musleh contends
that Rules 403 and 404(b) require its exclusion. Under Rule 403 rele-
vant evidence "may be excluded if its probative value is substantially
outweighed by danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence." Fed. R. Evid.
3
Unlike the other categories of challenged evidence, Musleh did not
object to this evidence below.
UNITED STATES v. MUSLEH 9
403. We have held, however, that this rule of exclusion is relaxed sig-
nificantly in the context of a bench trial:
[I]n the context of a bench trial, evidence should not be
excluded under 403 on the ground that it is unfairly prejudi-
cial. . . . Rule 403 was designed to keep evidence not ger-
mane to any issue outside the purview of the jury’s
consideration. For a bench trial, we are confident that the
district court can hear relevant evidence, weigh its probative
value and reject any improper inferences.
Schultz v. Butcher, 24 F.3d 626, 632 (4th Cir. 1994). Thus, whatever
the prejudicial effect of the evidence here, we are confident that the
district rejected any improper inferences and considered the evidence
only to the extent it was properly relevant.
Musleh also contends that the evidence violated the prohibition
against "prior bad act" evidence contained in Rule 404(b). Under Rule
404(b),
[e]vidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show action
in conformity therewith. It may, however, be admissible for
other purposes, such as proof of motive, . . . intent, . . . or
absence of mistake or accident, . . . .
Thus, "[e]vidence of prior bad actions is admissible under Rule
404(b) if the evidence is (1) relevant to an issue other than the general
character of the defendant; (2) necessary to prove an element of the
charged offense; and (3) reliable." United States v. Hodge, 354 F.3d
305, 312 (4th Cir. 2004). As explained above, the evidence here was
relevant to Musleh’s intent, a required element of all of the charged
offenses, and Musleh does not contend that the evidence was anything
less than reliable. Moreover, as with Rule 403, we accord district
courts greater latitude at bench trials in applying Rule 404(b). See
United States v. Hassanzadeh, 271 F.3d 574, 578 (4th Cir. 2001)
(holding that admission of prior conviction evidence in a bench trial
did not violate Rule 404(b) and noting, "Moreover, we have confi-
dence that at the bench trial, the experienced district judge was able
10 UNITED STATES v. MUSLEH
to separate the emotional impact from the probative value of this
potentially prejudicial evidence.").
The evidence about which Musleh complains was thus relevant and
not subject to exclusion under Rule 403 or Rule 404(b). The district
court, therefore, did not abuse its discretion in admitting it.
B.
We next consider Musleh’s challenge to the district court’s grant
of the Government’s motion for a six-level upward departure.4 We
review a district court’s factual determinations made in connection
with sentencing for clear error, and its ultimate decision to depart de
novo. United States v. Stockton, 349 F.3d 755, 764 (4th Cir. 2003).
We review the extent of a district court’s departure for abuse of dis-
cretion. United States v. Gary, 18 F.3d 1123, 1127 (4th Cir. 1994).
A sentencing court may depart from the sentence ranges prescribed
by the Sentencing Guidelines whenever it "finds that there exists an
aggravating or mitigating circumstance of a kind, or to a degree, not
adequately taken into consideration by the Sentencing Commission."
18 U.S.C.A. § 3553(b)(1) (West 2000). In determining whether a
peculiar circumstance in a case is an appropriate basis for departure,
a sentencing court must determine whether that factor is encouraged,
discouraged, unmentioned or forbidden. United States v. Rybicki, 96
F.3d 754, 757 (4th Cir. 1996) (citing Koon v. United States, 518 U.S.
4The Supreme Court issued its decision in Blakely v. Washington, ___
U.S. ___, 124 S.Ct. 2531 (2004), shortly after we heard oral argument
in this case. We then sua sponte ordered the parties to submit supplemen-
tal briefing respecting the effect of Blakely on the Federal Sentencing
Guidelines. Shortly thereafter, our court ordered that a separate case,
United States v. Hammoud, No. 03-4253, be heard en banc to resolve
whether and to what extent Blakely applies to the Guidelines. We heard
argument in Hammoud on August 2, 2004, and issued a summary order
that same day explaining that Blakely "does not operate to invalidate"
sentences imposed under the Guidelines. United States v. Hammoud, No.
03-4253, ___ F.3d ___ (4th Cir. Aug. 2, 2004). In light of our disposition
in Hammoud, Musleh’s sentence is not affected by Blakely and will not
be disturbed on that ground.
UNITED STATES v. MUSLEH 11
81 (1996)). When the factor in question is "encouraged," departure is
"usually appropriate" unless "already adequately taken into account
by the applicable guideline." Id. at 757-58. When the factor is "un-
mentioned" in the Guidelines, departure is appropriate where the
"‘structure and theory of both relevant individual guidelines and the
Guidelines taken as a whole’ indicate that [the factor] take[s] a case
out of the applicable guideline’s heartland." Id. at 758 (quoting Koon,
518 U.S. at 96).
Once a sentencing court determines that departure is appropriate,
it can depart only to an extent that is both reasonable under the cir-
cumstances, 18 U.S.C.A. § 3742(e)(3)(C), (f)(2) (West Supp. 2004),
and derived through principled methods. Gary, 18 F.3d at 1131. As
we explained in Gary, "[w]hile the extent of [a] departure may be per-
missible, it is not permissible without any analytical reasoning behind
the decision." Id. Accordingly, the sentencing court must take into
consideration "the rationale and methodology of the Sentencing
Guidelines" in determining the extent of any departure. United States
v. Terry, 142 F.3d 702, 707 (4th Cir. 1998). To this end, we have
explained that "it is often helpful to look to the treatment of analogous
conduct in other sections of the Sentencing Guidelines." Id. Relatedly,
we have noted that "the reasonableness of a departure may be evalu-
ated by ‘treat[ing] the aggravating factor as a separate crime and ask[-
ing] how the defendant would be treated if convicted of it.’ " Id. at
709 (quoting United States v. Ferra, 900 F.2d 1057, 1062 (7th Cir.
1990)) (emphasis added) (alterations in original). Importantly, how-
ever, "an upward departure should ‘not exceed the sentence that
would result under the Guidelines if [the defendant] actually had been
convicted of [the conduct underlying the departure].’ " Id. (quoting
United States v. Melton, 970 F.2d 1328, 1334 (4th Cir. 1992)) (alter-
ations in original).
Here, the district court’s upward departure consisted of two compo-
nents — a four-level increase to account for evaded child support
payments, and a two-level increase to account for false statements
that Musleh made in connection with his application for citizenship
— uncharged conduct that was a violation of 18 U.S.C.A. § 1015(West Supp. 2004).5 We consider each component in turn.
5
Section 1015 states in relevant part as follows:
(a) Whoever knowingly makes any false statement under oath, in
12 UNITED STATES v. MUSLEH
Section 5K2.9 of the Guidelines encourages departure to account
for Musleh’s evasion of child support. Section 5K2.9 states, "If the
defendant committed the offense in order to facilitate or conceal the
commission of another offense, the court may increase the sentence
above the guideline range to reflect the actual seriousness of the
defendant’s conduct." Here, the evidence adduced at trial showed
that, through his use of the fraudulently obtained 2057 SSN, Musleh
was able to avoid approximately $374 per month in child support pay-
ments. Specifically, by reporting his earnings under the 2057 SSN, he
was able to conceal those earnings from the DCSE, which used Mus-
leh’s 1835 SSN to verify his income. His offenses of conviction facil-
itated and concealed the evasion of his child-support obligation, and
the Guidelines did not take this conduct into account. Accordingly,
departure was appropriate under § 5K2.9.6
any case, proceeding, or matter relating to, or under, or by virtue
of any law of the United States relating to naturalization, citizen-
ship, or registry of aliens; or . . .
(d) Whoever knowingly makes any false certificate, acknowledg-
ment or statement concerning the appearance before him or the
taking of an oath or affirmation or the signature, attestation or
execution by any person with respect to any application, declara-
tion, petition, affidavit, deposition, certificate of naturalization,
certificate of citizenship or other paper or writing required or
authorized by the laws relating to immigration, naturalization,
citizenship, or registry of aliens; . . .
Shall be fined under this title or imprisoned not more than five
years, or both.
18 U.S.C.A. § 1015 (West Supp. 2004). Neither the Government nor the
district court specified whether Musleh violated subsection (a), subsec-
tion (d), or both, when making false statements to immigration officials.
Nevertheless, the evidence in the record supports the district court’s ulti-
mate conclusion that one of these provisions was violated.
6
The district court appears to have relied upon application note 15 to
§ 2B1.1 in addition to § 5K2.9 in deciding that departure was appropriate
in this case. (J.A. at 327-28.) In that application note, the Sentencing
Commission recognized that "[t]here may be cases in which the offense
level determined under this guideline substantially understates the seri-
ousness of the offense[,]" and advised that "[i]n such cases, upward
UNITED STATES v. MUSLEH 13
In determining the extent of the upward departure, the district court
performed a rough calculation of the arrearage in child-support pay-
ments, determining that it was $18,324, and then increased the
offense level in accordance with U.S.S.G. § 2B1.1(b)(1)(C), the
guideline that applies for offenses involving the willful failure to pay
child support. See U.S.S.G. § 2J1.1, comment. (n.2). Under U.S.S.G.
§ 2B1.1(b)(1)(C), a loss amount between $10,000 and $30,000 yields
an increase of four levels. On appeal, Musleh argues that the $18,324
figure is erroneous because it did not take into account factors that
Virginia courts consider when calculating child-support arrearages,
such as the income of the custodial parent during the relevant time
period or the defendant’s other child support obligations. See Va.
Code Ann. § 20-108.2 (Michie 2000 & Supp. 2003). Furthermore,
Musleh notes, the district court calculated avoided child support from
March 1999, when it should have calculated from August 1999, the
time when the court order modifying child support became effective.
Even crediting Musleh’s contentions, the district court’s use of a loss
figure between $10,000 and $30,000 in applying U.S.S.G.
§ 2B1.1(b)(1) by analogy was adequately supported by the evidence
in the case. The preponderance of the evidence suggested that, what-
ever the precise amount, Musleh avoided at least $10,000 in pay-
ments. Moreover, Musleh has not identified any mitigating factor that
would have applied in his case to reduce the amount of evaded child
support obligations below $10,000. Under these circumstances, we
cannot conclude that the district court abused its discretion by using
the four-level increase under U.S.S.G. § 2B1.1(b)(1) by analogy as its
principled method of departure.
As to the second component of the upward departure, we have held
that, in accordance with U.S.S.G. § 1B1.4, uncharged conduct,
although an "unmentioned" factor, may be considered in determining
whether to depart. United States v. Barber, 119 F.3d 276, 279-82 (4th
Cir. 1997). Such departures are appropriate where the heartland of the
departure may be warranted." U.S. Sentencing Guidelines Manual
§ 2B1.1, comment. (n.15(A)) (2002). Because, in conducting our de novo
review, we find that § 5K2.9 independently supports departure, we need
not consider whether the guidance in the commentary to § 2B1.1 also
supports departure under the circumstances presented here.
14 UNITED STATES v. MUSLEH
offense of conviction does not encompass the uncharged conduct. Id.
at 282. Here, Musleh’s false statements to the INS in connection with
his application for citizenship, a violation of 18 U.S.C.A. § 1015(a),
were not accounted for by his offenses of conviction. Although
loosely related to his dual SSN scheme, his false statements to the
INS constituted a distinct harm that was not taken into consideration
by the Guidelines. Accordingly, departure on this basis was appropri-
ate.
In determining the extent of its departure, the district court analo-
gized the uncharged violation of 18 U.S.C.A. § 1015(a) to the crime
of perjury, and then referenced U.S.S.G. § 2J1.3, the perjury guide-
line, which dictates a base offense level of 12. The district court then
increased Musleh’s offense level from 10 (the level that applied after
the four-level increase to account for Musleh’s evasion of child sup-
port) to 12, a net increase of two levels. Musleh contends that the ref-
erence to the perjury guideline was inappropriate because his false
statements were not material and therefore did not amount to perjury,
and because § 2J1.3 would not have applied had Musleh actually been
convicted of violating 18 U.S.C.A. § 1015(a). Implicit in Musleh’s
argument is the contention that the extent of the district court’s depar-
ture was unreasonable because it was in excess of the sentence that
Musleh would have received had he actually been convicted of violat-
ing § 1015(a).
We find no abuse of discretion in the method by which the district
court determined the extent of departure. As a preliminary matter, we
note that, by analogizing Musleh’s uncharged criminal conduct to per-
jury and referencing the offense level applicable under the perjury
guideline, the district court provided a sufficiently principled explana-
tion for its decision to depart an additional two levels. See Terry, 142
F.3d at 707 (instructing that a sentencing court "must set forth some
form of principled justification for its departure determination.") That
is, the district court did not determine the extent of the departure in
a manner that was wholly untethered from the Guidelines and thus
facially unacceptable. See, e.g., Gary, 18 F.3d at 1131 (reversing
upward departure where it appeared that "the district court simply
decided to double [the defendant]’s base offense level for the sake of
doubling it"); Terry, 142 F.3d at 707 n.6 (rejecting as a method of
departure based on the defendant’s reckless driving the district court’s
UNITED STATES v. MUSLEH 15
decision to increase the offense level by one for each mile the defen-
dant traveled while driving recklessly).
Nor was the extent of the departure unreasonable. Assuming, with-
out deciding, that Musleh is correct in his contention that U.S.S.G.
§ 2J1.3 would not apply to a violation of 18 U.S.C.A. § 1015(a), he
does not identify the guideline that would govern a hypothetical con-
viction under § 1015(a) and thus fails to offer any theory as to why
a two-level increase in offense level is unreasonable. Indeed, applica-
tion of the other two guidelines that plausibly could govern such a
conviction, U.S.S.G. §§ 2B1.1 and 2L2.2,7 would yield a net increase
of two levels — the same result the district court reached. Were
U.S.S.G. § 2B1.1 to apply, the base offense level for the § 1015(a)
violation would be 6, but because the associated distinct harm would
render grouping inappropriate, application of U.S.S.G. § 3D1.4 would
dictate an increase of two levels.8 Likewise, were U.S.S.G. § 2L2.2 to
apply, the base offense level would be 8 — a two-level increase over
the base offense level of 6. Accordingly, a two-level increase in his
offense level to account for the culpability associated with the false
statements to immigration officials was reasonable and not in excess
7
Appendix A to the Guidelines lists four guidelines that could govern
a violation of 18 U.S.C.A. § 1015 — § 2B1.1, § 2J1.3, § 2L2.1, and
§ 2L2.2. U.S.S.G. app. A. There are no reported cases from any Court of
Appeals or from the Supreme Court that state which guideline should
apply to a violation of 18 U.S.C.A. § 1015(a). A district court in this cir-
cuit has published a decision wherein it concluded that § 2L2.2 was the
appropriate guideline for such a violation. See United States v. Biheiri,
299 F. Supp. 2d 590, 603-04 (E.D. Va. 2004). Although the opinion in
Biheiri is well-reasoned, we need not decide which guideline is the most
appropriate, because even if § 2B1.1, the guideline generating the lowest
offense level, were to apply, the end result would be the same for reasons
discussed in the text above.
8
Section 3D1.4 provides a formula under which the combined offense
level for multiple groups of offenses is determined. Assuming that
U.S.S.G. § 2B1.1 would govern a conviction under § 1015, that formula
would require assigning one "unit" for the four grouped offenses (i.e., the
actual offenses of conviction), and one additional unit for the distinct
violation of § 1015. Section 3D1.4 dictates that, with a total of two units,
an increase of 2 levels is appropriate.
16 UNITED STATES v. MUSLEH
of that which would have applied had Musleh actually been convicted
of a § 1015(a) violation.
In sum, the district court’s decision to depart upwardly was justi-
fied by the peculiar facts of this case, and the extent of the departure
was reasonable and consistent with the rationale and methodology of
the Guidelines.
C.
We next consider Musleh’s argument that the district court’s resti-
tution order was improper. Before turning to the legal analysis on this
issue, we must determine the appropriate standard of review. Nor-
mally, when a criminal defendant fails to preserve an issue through
a timely objection, we review the issue only for plain error. Fed. R.
Crim. P. 52(b). To establish plain error, an appellant
must demonstrate that an error occurred, that the error was
plain, and that the error affected his substantial rights. Even
if [the appellant] can satisfy these requirements, correction
of the error remains within our discretion, which we should
not exercise unless the error seriously affects the fairness,
integrity or public reputation of judicial proceedings.
United States v. Promise, 255 F.3d 150, 154 (4th Cir. 2001) (en banc)
(citation, alterations, and internal quotation marks omitted). The Gov-
ernment argues that we should review the district court’s restitution
order for plain error because Musleh did not object to restitution,
either at the sentencing hearing or through a timely post-hearing
motion under Fed. R. Crim. P. 35(a).9 As Musleh notes, however, the
Government’s position fails to account for the fact that the first notice
Musleh received that restitution might be imposed came as the district
court sua sponte imposed restitution — the Government did not
request restitution, the PSR specifically stated that there were no resti-
tution issues, and the district court did not inform the parties that it
independently was considering restitution. Under such circumstances,
9
Rule 35(a) states, "Within 7 days after sentencing, the court may cor-
rect a sentence that resulted from arithmetical, technical, or other clear
error."
UNITED STATES v. MUSLEH 17
Musleh argues, the issue should be reviewed under the abuse of dis-
cretion standard that normally governs restitution questions. See
United States v. Vinyard, 266 F.3d 320, 333 (4th Cir. 2001) (applying
abuse of discretion standard to restitution question). Whether a post-
hearing motion under Rule 35(a) is necessary to preserve an issue for
appeal under these circumstances is an issue we need not resolve,
however, because the district court’s imposition of restitution without
providing notice to Musleh that it was considering restitution was
plain error.
The district court committed two serious procedural errors in
imposing restitution. First, the district court’s no-notice imposition of
restitution contravened the requirements of Federal Rule of Criminal
Procedure 32(i)(1)(C), which states that "the court . . . must allow the
parties’ attorneys to comment on the probation officer’s determina-
tions and other matters relating to an appropriate sentence." In Burns
v. United States, 501 U.S. 129, 135-36 (1991), the Supreme Court
explained that implicit in the right to comment on "matters relating
to [an] appropriate sentence" — in that case, a sua sponte upward
departure — is "the right to be notified that the court is contemplating
such a ruling." A sua sponte order of restitution is no less a "matter
relating to an appropriate sentence" than is a sua sponte upward
departure, see United States v. Bruchey, 810 F.2d 456, 461 (4th Cir.
1987) ("Criminal restitution . . . is part of the sentencing process [and
thus] is fundamentally ‘penal’ in nature."); see also United States v.
Burger, 964 F.2d 1065, 1072-73 (10th Cir. 1992) (vacating sentence
as a result of non-compliance with Rule 32 where defendant was not
given notice or an opportunity to comment respecting a restitution
question), and there is no credible argument that Musleh was on
notice that restitution would be considered. Cf. United States v. Bel-
lamy, 264 F.3d 448, 455 (4th Cir. 2001) (finding no Burns error
where the probation officer informed defendant in the PSR that
upward departure may be appropriate based on a certain guideline
provision, and the district court, although relying on a different guide-
line provision, departed upward citing the same factual basis identi-
fied by the probation officer). Accordingly, by imposing restitution
without providing notice to the parties, the district court violated the
rule in Burns, that error was "plain," because the failure to provide
notice was in "clear [and] obvious" contravention of settled law,
Promise, 255 F.3d at 160, and that error affected Musleh’s rights
18 UNITED STATES v. MUSLEH
because it resulted in a sentence that was significantly more serious,
United States v. Spring, 305 F.3d 276, 282 (4th Cir. 2002). Further-
more, by imposing its restitution order without giving Musleh a
meaningful opportunity to be heard on the question, the district court
erred in a manner that "seriously affects the fairness, integrity [and]
public reputation of judicial proceedings," Promise, 255 F.3d at 154,
and we accordingly exercise our discretion to notice and correct the
error. See Spring, 305 F.3d at 282-83 (noticing plain error where dis-
trict court upwardly departed sua sponte without providing notice to
the defendant in violation of Fed. R. Crim. P. 32).
Second, and perhaps as a result of its failure to notify the parties
that it was considering discretionary restitution under 18 U.S.C.A.
§ 3663 (West 2000), the district court failed to make necessary factual
findings as required by 18 U.S.C.A. § 3663(a)(1)(B)(i)(II), which
requires the district court, when determining whether to impose resti-
tution, to consider "the financial resources of the defendant, the finan-
cial needs and earning ability of the defendant and the defendant’s
dependents, and such other factors as the court deems appropriate."10
This court has repeatedly held that in order to ensure effec-
tive appellate review of restitution orders, sentencing courts
must make explicit findings of fact on each of the factors set
forth in [§ 3663(a)(1)(B)(i)(II)]. Such findings must tie the
amount and type of restitution ordered to the financial
resources, financial needs, and earning ability of the defen-
dant. Moreover the court must make a specific finding that
the defendant feasibly can comply with the order without
undue hardship to himself or his dependents. The district
court may satisfy this requirement by announcing its find-
ings on the record or by adopting adequate proposed find-
ings contained within a presentence report. . . .
10
The district court did not impose restitution under 18 U.S.C.A.
§ 3663A (West 2000 & Supp. 2004), a provision added by amendment
in 1996 that makes restitution mandatory for certain offenses. Musleh’s
offenses of conviction are not offenses for which mandatory restitution
is required under § 3663A.
UNITED STATES v. MUSLEH 19
United States v. Blake, 81 F.3d 498, 505 (4th Cir. 1996) (citations
omitted). The district court made none of these findings with respect
to the question of restitution, and because the probation officer did not
consider restitution an option, no such findings are contained in the
PSR. On remand, the district court must make these required findings.
In light of these considerations, we vacate Musleh’s sentence inso-
far as it orders restitution be paid to Melinda Campos and N.M. and
remand the case to allow the district court to consider the restitution
question after hearing argument from the parties and making the nec-
essary factual findings.11
III.
For the foregoing reasons, we affirm Musleh’s conviction and the
district court’s upward departure decision. We vacate the judgment
insofar as it orders Musleh to pay restitution to Melinda Campos and
N.M. and remand that issue for further proceedings consistent with
this opinion.12
AFFIRMED IN PART, VACATED IN PART, AND REMANDED
WITH INSTRUCTIONS
11
We note that Musleh also argues that Melinda Campos and N.M. are
not proper "victims" under 18 U.S.C.A. § 3663 (West 2000). We leave
the proper resolution of this issue to the district court in further proceed-
ings on remand.
12
We note that, notwithstanding our holding here that, except for the
restitution order, the sentence as imposed was lawful, the district court
may choose on remand to impose an alternative sentence pursuant to 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2004), treating the Guidelines
as advisory only, as discussed in this court’s summary order in Ham-
moud. See ___ F.3d ___, No. 03-4253 (August 2, 2004) ("In the interest
of judicial economy, however, and pending a definitive ruling by the
Supreme Court, we recommend that district courts within the Fourth Cir-
cuit also announce, at the time of sentencing, a sentence pursuant to 18
U.S.C.A. § 3553(a) (West & Supp. 2004), treating the guidelines as advi-
sory only.").