United States v. Rahib Al-Cholan ( 2010 )


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  •                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                                   Pursuant to Sixth Circuit Rule 206
                                           File Name: 10a0217p.06
    
                     UNITED STATES COURT OF APPEALS
                                       FOR THE SIXTH CIRCUIT
                                         _________________
    
    
                                                     X
                               Plaintiff-Appellee, -
     UNITED STATES OF AMERICA,
                                                      -
                                                      -
                                                      -
                                                          No. 08-2532
              v.
                                                      ,
                                                       >
                                                      -
                                                      -
                            Defendant-Appellant. -
     RAHIB ISMAEL-YASIR AL-CHOLAN,
                                                      -
                                                     N
                       Appeal from the United States District Court
                      for the Eastern District of Michigan at Detroit.
                   No. 07-20562-001—George C. Steeh, District Judge.
                                          Argued: April 23, 2010
                                                                            *
                                    Decided and Filed: May 27, 2010
    
                        Before: GUY, BOGGS, and SUTTON, Circuit Judges.
    
                                            _________________
    
                                                 COUNSEL
    ARGUED: David Herskovic, Farmington Hills, Michigan, for Appellant. Leonid Feller,
    ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee.
    ON BRIEF: David Herskovic, Gerald M. Lorence, Farmington Hills, Michigan, for
    Appellant. Leonid Feller, ASSISTANT UNITED STATES ATTORNEY, Detroit,
    Michigan, for Appellee.
                                            _________________
    
                                                  OPINION
                                            _________________
    
             BOGGS, Circuit Judge. Defendant Rahib Ismael-Yasir Al-Cholan was caught in a
    sting operation attempting to purchase the sexual services of a twelve-year-old girl.
    Al-Cholan was subsequently convicted of traveling in interstate commerce for the purpose
    
    
             *
              This decision was originally issued as an “unpublished decision” filed on May 27, 2010. On July
    19, 2010, the court designated the opinion as one recommended for full-text publication.
    
    
                                                       1
    No. 08-2532           United States v. Al-Cholan                                                Page 2
    
    
    of engaging in illicit sexual conduct, in violation of 18 U.S.C. § 2423(b). He makes three
    arguments on appeal: (1) that he was unlawfully entrapped; (2) that his custodial statements
    to police should have been suppressed because he did not understand the arresting officers’
    English-language Miranda warning; and (3) that the district court improperly imposed a
    sentence enhancement for a pattern of activity involving prohibited sexual conduct. All
    three arguments lack merit, and we therefore affirm.
    
                                             BACKGROUND
    
             Al-Cholan is an Iraqi native and a former tank mechanic in the Iraqi army under
    Saddam Hussein. He immigrated to the United States in 1995 after deserting the army and
    spending a brief period in Saudi Arabia. For the next twelve years, he lived in Dearborn,
    Michigan, where he married, fathered two children, and worked as a self-employed auto
    mechanic. In 2002, he incorporated his own business, Cholan, Inc. The following year, he
    became a United States citizen. By all outward appearances, Al-Cholan was an upstanding
    individual living the American dream.
    
             But the truth was substantially darker. In October 2007, when Al-Cholan was 45
    years old, he befriended Michael Hanna, a 24-year-old Lebanese immigrant, and, according
    to Hanna, admitted to him that he harbored a predilection for sex with underage girls and
    boys. As Hanna testified, Al-Cholan claimed that “Lebanese people . . . know how to get
                                                                                           1
    . . . young children” for sex and asked him several times to procure a child. Concerned,
    Hanna related this request to his guardian, who passed it on to the Department of
    Homeland Security’s Immigration and Customs Enforcement division (“ICE”). ICE
    agents then set up a sting operation using Hanna as a cooperator.
    
             On November 7, 2007, while agents listened in, Hanna told Al-Cholan that he
    knew of a twelve-year-old girl being prostituted by her uncle in Toledo, Ohio for $100
    per session. According to Hanna, Al-Cholan responded that “he [could not] go to
    Toledo because he [was] afraid that the police would catch him on the road if he ha[d]
    a minor” and asked “if [the girl] could come over here.” Hanna said that she could not.
    
    
             1
              While Hanna testified in English at Al-Cholan’s trial, all of his conversations with Al-Cholan
    were in their native Arabic.
    No. 08-2532        United States v. Al-Cholan                                      Page 3
    
    
    Al-Cholan asked if any other children were available; Hanna said no. With no
    persuasion or pressure from Hanna, Al-Cholan then decided to accept the offer.
    
           Since Al-Cholan’s truck was out of commission, he asked Hanna to drive him
    to Toledo. En route, Al-Cholan boasted to Hanna that he had had over 100 prior sexual
    experiences with minors, both in Iraq and in Michigan. At some point, ICE agents
    realized that the recording device Hanna was wearing had malfunctioned, and directed
    Hanna via cellular telephone to stop at a gas station. There, the agents met Hanna and
    fixed the device as Al-Cholan waited obliviously in the car. While at the station,
    Al-Cholan asked Hanna to purchase Vaseline and condoms, and Hanna did so. After the
    two men resumed driving, Al-Cholan continued to detail his past sexual molestation of
    children and his plans to “spend the night” with the twelve-year-old girl.
    
           At approximately 10:00 p.m., Al-Cholan and Hanna arrived at a motel in Toledo,
    where an ICE agent was posing as the girl’s uncle. Al-Cholan paid the agent and briefly
    conversed with him in English, then attempted to enter the room to which the agent had
    directed him. Shortly thereafter, he was arrested.
    
           While still on the scene, an agent read Al-Cholan his Miranda rights in English,
    and Al-Cholan signed an English-language Miranda waiver form. ICE agents then
    interviewed Al-Cholan for about ten minutes before transporting him to a nearby police
    station for further questioning. During this second stretch of questioning, Al-Cholan told
    several inconsistent stories before admitting that he had come to Toledo to rendezvous
    with a twelve-year-old girl. After he acknowledged this – about five minutes into the
    station-house interview – Al-Cholan began “act[ing] like he didn’t speak English” and,
    for the first time, requested an interpreter. The agents immediately terminated the
    interview.
    
           Al-Cholan was subsequently indicted on one count of traveling in interstate
    commerce for the purpose of engaging in illicit sexual conduct, in violation of 18 U.S.C.
    § 2423(b). He moved to dismiss the indictment on the ground of entrapment, and the
    district court denied his motion. He also moved to suppress his custodial statements,
    No. 08-2532        United States v. Al-Cholan                                       Page 4
    
    
    arguing that his Miranda waiver was invalid because of his allegedly limited
    understanding of English. After an evidentiary hearing, this motion, too, was denied.
    
           Following a jury trial in July 2008, Al-Cholan was found guilty. He did not
    request a jury instruction on entrapment, and none was given. In August 2008,
    Al-Cholan moved for “a new trial or outright dismissal” on entrapment grounds, among
    others. The district court denied the motion. In November 2008, the district court
    sentenced him to 112 months’ imprisonment; the sentence included a five-level
    enhancement under U.S.S.G. § 4B1.5(b) for having demonstrated a pattern of activity
    involving prohibited sexual conduct. This timely appeal followed.
    
                                          ANALYSIS
    
    A. Entrapment and Related Defenses
    
           Using (and at times conflating) three related but distinct legal theories, Al-Cholan
    attacks the fundamental fairness of the sting operation that led to his arrest. These three
    theories are: (1) the traditional entrapment defense recognized by the Supreme Court in
    Sorrells v. United States, 
    287 U.S. 435
     (1932), and its progeny; (2) the
    due-process-based “outrageous government conduct” defense, which the Court hinted
    at in United States v. Russell, 
    411 U.S. 423
     (1973), but has never officially recognized;
    and (3) the “manufactured jurisdiction” defense pioneered in United States v. Archer,
    
    486 F.2d 670
     (2d Cir. 1973) (Friendly, J.), but scarcely applied since.
    
           This constellation of related claims is technically governed by two different
    standards of review. “Outrageous government conduct” was not specifically argued
    below, so we review this claim only for plain error. See United States v. Dedman, 
    527 F.3d 577
    , 591 (6th Cir. 2008). Nor did Al-Cholan request an entrapment jury instruction
    below, so to the extent that he challenges the district court’s failure to issue such an
    instruction sua sponte, we review only for plain error. See United States v. Presley, 349
    F. App’x 22, 29 (6th Cir. 2009). Meanwhile, we review de novo the district court’s
    denial of Al-Cholan’s pre-trial and post-trial motions based on the purely legal issues of
    entrapment as a matter of law and manufactured jurisdiction. See United States v.
    No. 08-2532         United States v. Al-Cholan                                       Page 5
    
    
    Utesch, 
    596 F.3d 302
    , 306 (6th Cir. 2010); United States v. Budd, 
    496 F.3d 517
    , 530 (6th
    Cir. 2007).
    
    1. Traditional Entrapment
    
            In United States v. Sorrells, the Court first recognized an entrapment defense
    under federal criminal law – not as a constitutional imperative, but as a matter of
    statutory interpretation – reasoning that it “was [not] the intention of the Congress in
    enacting [the Prohibition Act]” that the statute be used to prosecute otherwise innocent
    persons “lure[d]” into violating it by law-enforcement agents. 287 U.S. at 448. In
    subsequent decisions, the Court has recognized that the Sorrells entrapment defense is
    generally available under other provisions of the federal criminal code, while noting that
    the defense is “not of a constitutional dimension.” Russell, 411 U.S. at 433; see also
    Jacobson v. United States, 
    503 U.S. 540
     (1992); Mathews v. United States, 
    485 U.S. 58
    (1988); Sherman v. United States, 
    356 U.S. 369
     (1958).
    
            As we have construed the entrapment defense, “[t]he central inquiry . . . is
    whether law enforcement officials implanted a criminal design in the mind of an
    otherwise law-abiding citizen or whether the government merely provided an
    opportunity to commit a crime to one who was already predisposed to do so.” United
    States v. Pennell, 
    737 F.2d 521
    , 534 (6th Cir. 1984). Thus, “[a] valid entrapment
    defense requires proof of two elements: (1) government inducement of the crime, and
    (2) lack of predisposition on the part of the defendant to engage in the criminal activity.”
    United States v. Khalil, 
    279 F.3d 358
    , 364 (6th Cir. 2002). In determining whether a
    defendant was predisposed to commit the offense, the following factors are relevant:
    
            [t]he character or reputation of the defendant, including any prior
            criminal record; whether the suggestion of the criminal activity was
            initially made by the Government; whether the defendant was engaged
            in criminal activity for profit; whether the defendant evidenced
            reluctance to commit the offense, overcome only by repeated
            Government inducements or persuasion; and the nature of the
            inducement or persuasion supplied by the Government.
    No. 08-2532        United States v. Al-Cholan                                      Page 6
    
    
    United States v. Moore, 
    916 F.2d 1131
    , 1137 (6th Cir. 1990) (quoting United States v.
    McLernon, 
    746 F.2d 1098
    , 1112 (6th Cir. 1984)).
    
           Setting aside the question of inducement, Al-Cholan’s entrapment defense fails
    because the evidence incontrovertibly establishes that he was predisposed to commit the
    offense. Al-Cholan approached Hanna unprompted and asked him several times to
    procure a child. According to Hanna’s testimony and Al-Cholan’s own recorded
    statements, Al-Cholan had molested numerous children in the past.             And while
    Al-Cholan momentarily hesitated about driving to Toledo, he evidenced no reluctance
    about having sex with the proffered child, and overcame any initial hesitation about the
    interstate travel with no “Government inducements or persuasion” whatsoever.
    
           In the face of this evidence, Al-Cholan argues that, while he may have been
    predisposed to molest children, he was not “predisposed to travel[] across state lines”
    in order to do so, since all of the alleged prior instances of molestation occurred within
    the state of Michigan or overseas, the out-of-state situs for the rendezvous was suggested
    by the government, and Al-Cholan initially demurred at the proposed location. In other
    words, he argues that “predisposition” cannot be shown under Sorrells and its progeny
    without specific evidence of inclination to commit every element of the precise crime
    of conviction, including any federal jurisdictional predicate.
    
           We decline to endorse this narrow and hyper-technical view of predisposition.
    As the Second Circuit has explained, “[p]redisposition evidence . . . [must be based on]
    conduct . . . ‘near enough in kind to support an inference that [the defendant’s] purpose
    included offenses of the sort charged,’ although it is not necessary that the past conduct
    be precisely the same as that for which the defendant is being prosecuted.” United States
    v. Brand, 
    467 F.3d 179
    , 200 (2d Cir. 2006) (quoting United States v. Harvey, 
    991 F.2d 981
    , 994 (2d Cir. 1993) (in turn quoting United States v. Sherman, 
    200 F.2d 880
    , 882-83
    (2d Cir. 1952) (Hand, J.))). In fact, Brand involved the very offense at issue here –
    traveling across state lines for the purpose of engaging in illegal sexual activity with a
    minor. Id. at 182. There, the Second Circuit, applying the aforementioned standard,
    found that the defendant’s mere possession of images of child pornography was conduct
    No. 08-2532            United States v. Al-Cholan                                                 Page 7
    
    
    “near enough in kind to support” a predisposition to travel across state lines to have sex
    with children. Id. at 200 (internal quotation marks omitted). Here, of course, the
    predisposition evidence is still closer in fit to the crime of conviction – more than close
    enough, we hold, to defeat Al-Cholan’s entrapment defense. See also United States v.
    Nelson, 
    847 F.2d 285
    , 287 (6th Cir. 1988) (holding that defendant’s possession of
    several books describing explicit underage sex indicated a “predisposition to purchase
    pedophilic materials” via the mails).
    
             What is more, even under Al-Cholan’s strained interpretation of “predisposition,”
    he must lose. While Al-Cholan briefly hesitated to drive to Toledo, he explicitly voiced
    his preference that the girl be brought to Michigan instead; this preferred course of
    conduct was itself a violation of the same statute Al-Cholan was ultimately convicted of
    violating. See 18 U.S.C. § 2423(a) (stating that it is a federal offense to “knowingly
    transport[ a minor] in interstate or foreign commerce . . . with intent that the individual
    engage in prostitution, or in any sexual activity for which any person can be charged
    with a criminal offense”); 18 U.S.C. § 2423(e) (“conspir[acy] to violate subsection (a)
    . . . shall be punishable in the same manner as a completed violation”).
    
             Accordingly, under either de novo or plain-error review, Al-Cholan’s entrapment
    defense fails.2
    
    2. Outrageous Government Conduct
    
             In addition to the Sorrells theory of entrapment, Al-Cholan argues that the
    government’s conduct was “so outrageous that due process considerations would bar a
    conviction” whether or not he was predisposed to commit the crime. The Supreme
    Court has never applied this constitutional variant of entrapment, but has suggested in
    dictum that it may be available in extreme situations where “[t]he law enforcement
    conduct . . . [is] shocking to the universal sense of justice. . . .” Russell, 411 U.S. at
    
    
             2
               Al-Cholan’s unsupported assertion that he “did not know that . . . Toledo was not in Michigan”
    is of absolutely no consequence to the predisposition inquiry, whatever the level of specificity required.
    The violation of 18 U.S.C. § 2423 does not necessitate knowledge that the predicate act of travel involves
    crossing a state boundary, see United States v. Feola, 
    420 U.S. 671
    , 676-77 (1975); rather, the interstate
    element is merely “jurisdictional,” United States v. Chambers, 
    441 F.3d 438
    , 450 (6th Cir. 2006).
    No. 08-2532         United States v. Al-Cholan                                      Page 8
    
    
    431-32 (citing Rochin v. California, 
    342 U.S. 165
     (1952)); but see Hampton v. United
    States, 
    425 U.S. 484
    , 489-90 (1976) (Rehnquist, J., writing for a three-Justice plurality)
    (stating that “[t]he remedy of the criminal defendant with respect to the acts of
    Government agents, which, far from being resisted, are encouraged by him, lies solely
    in the [traditional] defense of entrapment,” not in due-process principles).
    
            In this circuit, we have never applied the “outrageous government conduct”
    defense, and have stated that “there are . . . strong reasons for concluding that such a
    defense simply does not exist . . . .” United States v. Tucker, 
    28 F.3d 1420
    , 1427 (6th
    Cir. 1994). Even if this defense is still available in theory, “in practice, courts have
    rejected its application with almost monotonous regularity.” United States v. Santana,
    
    6 F.3d 1
    , 4 (1st Cir. 1993). In light of the “moribund” state of this defense, ibid., the
    district court did not commit plain error in failing to raise it sua sponte.
    
    3. Manufactured Jurisdiction
    
            Al-Cholan also invokes the doctrine of “manufactured jurisdiction,” which was
    recognized by the Second Circuit in United States v. Archer. In that case, the defendants
    were being prosecuted under the Travel Act for a corrupt scheme that occurred entirely
    within the state of New York, other than the fact that, on one occasion, an undercover
    agent posing as a participant in the scheme went to New Jersey “for the sole purpose of
    [engaging one of the defendants] in an interstate telephone call” to satisfy the Travel
    Act’s jurisdictional predicate. 486 F.2d at 674.
    
            Writing for the Second Circuit, Judge Friendly concluded that the Sorrells
    entrapment defense was unavailable because the defendants were predisposed to commit
    the offense. Id. at 682. He briefly considered the due-process-based defense adverted
    to in Russell, but found its applicability inconclusive. Id. at 676. In the end, he
    concluded that reversal was required on a third ground:
    
            Whatever Congress may have meant by [“uses any facility in interstate
            or foreign commerce”], it certainly did not intend to include a telephone
            call manufactured by the Government for the precise purpose of
            transforming a local bribery offense into a federal crime. . . . [W]hen
    No. 08-2532        United States v. Al-Cholan                                        Page 9
    
    
            Congress [passed the Travel Act] . . . , it did not mean to include cases
            where the federal officers themselves supplied the interstate element and
            acted to ensure that an interstate element would be present.
    
    Id. at 681-82.
    
            However, Archer’s rule against “manufacturing jurisdiction” can fairly be
    described as an aberration. Even the Second Circuit itself has effectively limited Archer
    to its facts. See United States v. Burdette, 86 F. App’x 121, 127 (6th Cir. 2004)
    (“[C]ourts that have construed Archer have taken pains to limit its applicability and to
    explain that ‘manufactured jurisdiction’ as an independent doctrine is a dubious
    concept.” (quoting United States v. Wallace, 
    85 F.3d 1063
    , 1065-66 (2d Cir. 1996))); see
    also United States v. Podolsky, 
    798 F.2d 177
    , 181 (7th Cir. 1986) (Posner, J.) (“The
    course of decisions casts doubt . . . on the vitality of the independent principle
    announced [in Archer] that forbids the ‘manufacture’ of federal jurisdiction . . . .”).
    
            The case law distinguishing Archer – and, with vanishingly few exceptions,
    “Archer has been cited only to be distinguished,” Podolsky, 798 F.2d at 180 – has made
    clear that
    
            the “manufactured jurisdiction” concept is properly understood not as an
            independent defense, but as a subset of three possible defense theories:
            (i) the defendant was entrapped into committing a federal crime, since he
            was not predisposed to commit the crime in the way necessary for the
            crime to qualify as a federal offense; (ii) the defendant’s due process
            rights were violated because the government’s actions in inducing the
            defendant to commit the federal crime were outrageous; or (iii) an
            element of the federal statute has not been proved, so federal courts have
            no jurisdiction over the crime.
    
    Wallace, 85 F.3d at 1065-66 (internal citations omitted).
    
            As we have already held, the first two of these possibilities have no application
    in the instant case. And with respect to the third (jurisdictional) possibility, as the
    Second Circuit has observed, “[c]ourts have refused to follow Archer when there is any
    link between the federal [jurisdictional] element and a voluntary, affirmative act of the
    defendant,” as there clearly was here – even where the government “introduce[d the]
    No. 08-2532        United States v. Al-Cholan                                    Page 10
    
    
    federal element into a[n otherwise] non-federal crime . . . .” Id. at 1066. We have
    employed this same reasoning in rejecting a claim of manufactured jurisdiction. See
    United States v. Hudson, No. 93-2601, 
    1995 WL 234680
    , at *3 (6th Cir. Apr. 20, 1995)
    (“Although [the government] agent suggested that opening a Canadian account would
    be an effective way to launder money, defendant readily agreed to the scheme. . . . [T]he
    manufactured jurisdiction defense fails where ‘[t]he government merely afforded the
    opportunity, and the defendant chose to seize it.’” (quoting United States v. Peters, 
    952 F.2d 960
    , 963 (7th Cir. 1992))). Accordingly, the district court did not err by rejecting
    this defense.
    
    B. Adequacy of Miranda Waiver
    
           Al-Cholan argues that the district court erred by refusing to suppress his
    post-arrest statements, since his allegedly “minimal understanding” of English
    undermined the validity of his Miranda waiver. We review the district court’s findings
    of fact with respect to Al-Cholan’s suppression motion for clear error, and its ultimate
    legal conclusion as to the waiver’s sufficiency de novo. United States v. See, 
    574 F.3d 309
    , 313 (6th Cir. 2009). Because Al-Cholan’s motion was denied below, we “review[]
    the evidence in the light most likely to support the district court’s decision.” United
    States v. Adams, 
    583 F.3d 457
    , 463 (6th Cir. 2009).
    
           Statements made in response to custodial police interrogation must be suppressed
    unless the suspect first waived his Miranda rights “voluntarily, knowingly and
    intelligently.” Colorado v. Spring, 
    479 U.S. 564
    , 572 (1987) (quoting Miranda v.
    Arizona, 
    384 U.S. 436
    , 444 (1966)). Both the voluntariness and comprehension aspects
    of the waiver inquiry should be examined “primarily from the perspective of the police,”
    such that where “[the] police had no reason to believe that [the defendant] misunderstood
    the warnings, . . . there is no basis for invalidating [the] Miranda waiver.” Garner v.
    Mitchell, 
    557 F.3d 257
    , 263 (6th Cir. 2009) (en banc).
    
           While it is true that “language difficulties may impair the ability of a person in
    custody to waive [his Miranda] rights in a free and aware manner,” United States v.
    No. 08-2532            United States v. Al-Cholan                                                Page 11
    
    
    Heredia-Fernandez, 
    756 F.2d 1412
    , 1415 (9th Cir. 1985), the district court’s factual
    finding that Al-Cholan understood English sufficiently well to render his Miranda
    waiver voluntary, knowing, and intelligent is not clearly erroneous. At the time of these
    events, Al-Cholan had resided in the United States for twelve years, and the agents knew
    as much. As part of the naturalization process, he had passed an English proficiency test
    and sworn under penalty of perjury that he could speak and understand English; the
    agents knew this as well.3 The agent posing as the girl’s uncle had a brief conversation
    in English with Al-Cholan, which was captured on tape; during that conversation, the
    agent specifically asked if Al-Cholan spoke English, and Al-Cholan answered “yes.”
    Al-Cholan signed a written English-language Miranda waiver and, according to the
    agents’ testimony, did not indicate any lack of comprehension at the time. Upon arriving
    at the station-house, Al-Cholan completed an English-language medical questionnaire
    with no difficulties. He conversed naturally with the agents in English during the
    interviews. The first sign of any language barrier (whether feigned or genuine) arose
    only after the damaging statements were elicited.
    
             Accordingly, whether or not Al-Cholan truly understood the Miranda warnings,
    the agents certainly had no contemporaneous reason to doubt that he did. Our inquiry
    necessarily ends there. See Garner, 557 F.3d at 263.
    
    C. Propriety of Sentence Enhancement
    
             Finally, Al-Cholan takes issue with the district court’s imposition of a sentence
    enhancement under U.S.S.G. § 4B1.5(b) on the basis of “a pattern of activity involving
    prohibited sexual conduct.”4 He styles his argument as a claim under Blakely v.
    
    
             3
              Al-Cholan argues, based on his expert witness’s testimony, that the citizenship test requires an
    elementary-school knowledge of English, while the Miranda warnings are written at an eighth-grade
    reading level. Even assuming that this is true, and that the officers should have known as much,
    Al-Cholan’s passing a test requiring at least an elementary-school knowledge of English by no means
    forecloses the possibility that he had a higher level of fluency.
             4
               Under the Guidelines, “[a] defendant [has] engaged in a pattern of activity involving prohibited
    sexual conduct if on at least two separate occasions, the defendant engaged in prohibited sexual conduct
    with a minor.” U.S.S.G. § 4B1.5, comment. (n.4(B)(i)). These two separate occasions may include “the
    instant offense,” and prior occasions need not have resulted in a conviction to qualify. Id. (n.4(B)(ii)).
    “Prohibited sexual conduct” includes federal offenses involving the abuse of children and state-law
    analogues. Id. (n.4(A)).
    No. 08-2532        United States v. Al-Cholan                                     Page 12
    
    
    Washington, 
    542 U.S. 296
     (2004), since his sentence was enhanced “based on evidence
    [not] presented to a jury.” Such a claim patently lacks merit, as there is no longer any
    Sixth Amendment issue with judicial fact-finding under the now-advisory Guidelines.
    See United States v. Rita, 
    551 U.S. 338
    , 352 (2007) (“In many cases, the sentencing
    judge, not the jury, will determine the existence of [sentence-enhancing] facts.”); United
    States v. Bah, 
    439 F.3d 423
    , 426 n.1 (8th Cir. 2006) (“[J]udicial fact-finding . . . is
    permitted provided that the guidelines are applied in an advisory manner.”) (cited with
    approval in United States v. Ferguson, 
    456 F.3d 660
    , 665 (6th Cir. 2006)).
    
           Although Al-Cholan’s brief makes a nod toward Blakely, the actual gravamen
    of his argument is that there was insufficient evidence for the district court to have
    concluded that such a pattern existed. District-court factual findings underlying the
    imposition of a sentence are reviewed for clear error, United States v. Ward, 
    506 F.3d 468
    , 472 (6th Cir. 2007), and must be supported by the preponderance of the evidence,
    Ferguson, 456 F.3d at 665.
    
           There is more than enough evidence in the record to support the district court’s
    determination. Primarily, Hanna testified that Al-Cholan had admitted to over 100
    sexual experiences with minors in Iraq and in Michigan. Restricting our discussion to
    conduct within the United States, these minors included a high school girl in Taylor,
    Michigan; another girl he picked up on Telegraph Road in Detroit; and a Kuwaiti youth
    who came to Al-Cholan’s garage to have his car fixed.
    
           Al-Cholan objects to the hearsay nature of Hanna’s testimony, but hearsay
    evidence is permissible in sentencing proceedings, provided the statements “have some
    minimal indicium of reliability.” United States v. Manis, 344 F. App’x 160, 165 (6th
    Cir. 2009) (stating that “this standard presents a relatively low hurdle” (internal
    quotation marks omitted)). “[C]orroborating evidence can provide [hearsay] statements
    with . . . sufficient indicia of reliability,” id. at 166, and Hanna’s testimony was amply
    corroborated. Several of Al-Cholan’s statements about past sexual molestation were
    caught on audio tape – including his statement that he “d[idn’t] go looking for [boys] as
    much as girls,” but that he would take advantage of the opportunity if a boy “fall[s] into
    No. 08-2532        United States v. Al-Cholan                                   Page 13
    
    
    the net,” and his story about receiving fellatio from a Kuwaiti youth. Additionally, the
    government proffered as corroborative evidence a Dearborn police report which
    described “a man matching Al-Cholan’s description, driving a green minivan also
    matching Al-Cholan’s” having made advances on a seven-year-old girl near the same
    Dearborn Walgreens where, according to Hanna, Al-Cholan trolled for children. Thus,
    we conclude that the district court did not err in imposing the sentence enhancement.
    
                                       CONCLUSION
    
           For the foregoing reasons, Al-Cholan’s conviction and sentence are
    AFFIRMED.