United States v. Malek al-Maliki , 787 F.3d 784 ( 2015 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 15a0101p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
│
│ No. 14-3386
v. │
>
│
MALEK M. AL-MALIKI, │
Defendant-Appellant. ┘
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 1:13-cr-00121—Sara E. Lioi, District Judge.
Argued: March 5, 2015
Decided and Filed: May 27, 2015
Before: GIBBONS, SUTTON, and McKEAGUE, Circuit Judges.
_________________
COUNSEL
ARGUED: Travis Alan Rossman, ROSSMAN LAW, PLLC, Barbourville, Kentucky, for
Appellant. Daniel R. Ranke, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for
Appellee. ON BRIEF: Travis Alan Rossman, ROSSMAN LAW, PLLC, Barbourville,
Kentucky, for Appellant. Daniel R. Ranke, UNITED STATES ATTORNEY’S OFFICE,
Cleveland, Ohio, for Appellee.
McKEAGUE, J., delivered the opinion of the court in which SUTTON, J., joined, and
GIBBONS, J., joined except for Part II.B.1. GIBBONS, J. (pg. 15), delivered a separate opinion
concurring in part and in the judgment.
1
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_________________
OPINION
_________________
McKEAGUE, Circuit Judge. A jury of his peers found Malek al-Maliki guilty of a
heinous crime: sexually abusing his own two children, ages twelve and three. Al-Maliki
challenges several aspects of his conviction and sentence. His constitutional challenge to his
conviction is a close call, but it ultimately fails under plain-error review. The rest of his
challenges fail as well. We affirm.
I
Iraq native Malek al-Maliki had his first child, John Doe #1, with Hinda al-Rhannai in
1998. Two years later, the couple had a civil marriage and al-Maliki (but not his wife) became a
United States citizen. Their physical union did not last long. Although they remained legally
married, the couple has been separated since 2000 or 2002. Despite the separation, they had one
more child, John Doe #2, in 2007. Since around 2000, al-Maliki has lived alone on the west side
of Cleveland, Ohio, and al-Rhannai has lived in Morocco and then Syria with the two sons.
Al-Maliki visited his family on a few occasions over the years. The United States claims
that during one trip from August to November 2010, he sexually abused his two children (then
ages twelve and three), violating 18 U.S.C. §§ 2423(c) and (e). A grand jury indicted him under
that statute, which at the time punished any United States citizen “[1] who travels in foreign
commerce, and [2] engages in any illicit sexual conduct,” which includes noncommercial sexual
acts with a minor, or any attempts to do the same.
Al-Maliki denied all of the charges, and a trial began. The jury heard from Mark
Goldrup, a vice consul at the U.S. Embassy in Damascus, Syria. He testified that he put al-
Rhannai and her children in a safe shelter after al-Rhannai came to the embassy seeking
assistance for injuries consistent with domestic abuse. The jury also heard from Department of
Homeland Security Special Agent Gabriel Hagan. She testified that she observed the sons’ open
affection toward their mother, but that al-Maliki insisted his wife abused the sons. She also
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testified about a live interview she saw of John Doe #1, where the boy cried and hid his face
while struggling to recount the sexual abuse (the “sin,” he called it) that he suffered.
Most critically, the jury heard John Doe #1 himself. He told of the horrible things that
his father did to him on several occasions, including during al-Maliki’s August-to-November
2010 trip to Syria. Early in the trip, John Doe #1 woke abruptly to his mother screaming at al-
Maliki for touching the boy’s upper thigh while he slept. Al-Maliki “[did not] care,” exclaiming,
“He is my son. . . . I will touch him. I will do whatever I want.” R. 97 at 70. Several days later,
al-Maliki lifted his son onto his lap and tried to take off his boxers. John Doe #1 resisted and his
mother intervened. Al-Maliki then beat his wife. The abuse only got worse. Later, al-Maliki
pinned John Doe #1’s arms to his sides with one hand, covered his mouth with the other, and
anally raped him. On another occasion, John Doe #1 observed his father masturbating into food
items, which were then given to the boy to eat or drink. Al-Maliki also attempted to trick John
Doe #2—his three-year-old son—into performing oral sex on him.
With these proofs, the government rested. Al-Maliki moved for a Rule 29 directed
verdict (arguing that the government had not established all of the elements of the offense). But
the district court denied the motion.
The defense called one witness: al-Maliki. He testified about his “very bad” relationship
with his “very disrespect[ful]” and “stubborn” wife. R. 97 at 191. She neglected their children,
he said. As for his oldest son, al-Maliki said that he loved him despite the boy’s “hate in his
heart.” Id. at 192. Al-Maliki denied ever committing the sexual abuse. He thought his son was
“coached by his mom,” who “tried to build . . . some hate” between al-Maliki and the boy. Id. at
195.
The jury didn’t buy al-Maliki’s story. It found him guilty beyond a reasonable doubt of
engaging and/or attempting to engage in illicit sexual conduct in a foreign place with both John
Doe #1 (Count 1) and John Doe #2 (Count 2).
The district court prepared to sentence al-Maliki. It ordered a psychological evaluation,
which deemed al-Maliki “manipulative and dishonest” and assessed his “risk for future sexual
acting out” as “moderate to high.” R. 57 at 10. Over al-Maliki’s objection, the district court
No. 14-3386 United States v. al-Maliki Page 4
applied a four-level increase for use of force to engage in his sexual crimes, U.S.S.G.
§ 2A3.1(b)(1). Considering the nature of the offense, the negative psychological evaluation, and
al-Maliki’s age and limited criminal record, the court sentenced him at the bottom of the
guidelines’ range: 292 months in prison on each count, to be served concurrently.
Al-Maliki appealed, raising issues relating to the constitutionality of the statute, the
admissibility of some of Goldrup’s testimony, the prosecutor’s statements in closing, the
sufficiency of the evidence, and the reasonableness of the sentence. We reject them all.
II
Al-Maliki argues for the first time on appeal that § 2423(c) is unconstitutional because it
exceeds Congress’s authority under the Foreign Commerce Clause. It follows, he argues, that
federal courts lack “jurisdiction” over the case. Before addressing the statute’s constitutionality,
we must clarify what kind of jurisdiction is at issue where, as here, a litigant challenges
Congress’s authority to pass a criminal law.
A
Al-Maliki argues that an unconstitutional criminal statute deprives federal courts of
subject-matter jurisdiction over the criminal case. But he confuses the “many, too many,
meanings” of the term “jurisdiction.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 90
(1998).
Under 18 U.S.C. § 3231, federal courts “plainly ha[ve] authority over” all offenses
against the laws of the United States, United States v. Lucido, 612 F.3d 871, 874 (6th Cir. 2010),
including § 2423(c). In al-Maliki’s parlance, § 3231 gives federal courts subject-matter
jurisdiction over criminal cases. United States v. Cotton, 535 U.S. 625, 630–31 (2002). Other
so-called jurisdictional matters involved in the case—like the statute’s “jurisdictional nexus” to
commerce or Congress’s “jurisdiction” to pass the law—demonstrate courts’ and litigants’
“profligate use of the term [jurisdiction].” Union Pac. R. Co. v. Locomotive Engineers, 558 U.S.
67, 81 (2009). They deal not with our power to hear a case but with Congress’s authority to
regulate certain conduct. When Congress lacks constitutional authority to pass a law, it acts
ultra vires. And when litigants properly challenge laws passed beyond Congress’s power, courts
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have a duty to void those laws as repugnant with the People’s Law: the Constitution. Marbury v.
Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
The distinction between these two types of “jurisdiction”—a court’s subject-matter
jurisdiction and Congress’s authority (jurisdiction, if you must) to pass a law—makes an
enormous practical difference. Challenges to subject-matter jurisdiction cannot be waived or
forfeited. Cotton, 535 U.S. at 630. But challenges to Congress’s authority to pass a law can be
forfeited by litigants, United States v. Suarez, 263 F.3d 468, 476 (6th Cir. 2001), and indeed, can
be outright waived (as when a defendant pleads guilty). United States v. Corp, 668 F.3d 379,
384–85 (6th Cir. 2012) (collecting cases).
Now back to al-Maliki’s challenge. He argues that Congress exceeded its Foreign
Commerce Clause authority when passing § 2423(c). That goes not to our power but to
Congress’s, so it is not a challenge to subject-matter jurisdiction. Al-Maliki can and did forfeit
the challenge by failing to raise it below, but he did not waive it because he did not intentionally
relinquish it. See United States v. Olano, 507 U.S. 725, 732–33 (1993). We accordingly review
this constitutional challenge for plain error under Rule 52(b).
Under plain-error review, al-Maliki must show “(1) error (2) that was obvious or clear,
(3) that affected [his] substantial rights[,] and (4) that affected the fairness, integrity, or public
reputation of the judicial proceedings.” United States v. Vonner, 516 F.3d 382, 386 (6th Cir.
2008) (en banc). Assuming al-Maliki can show an obvious error (a too-generous assumption, we
shall see), we “should correct [it]” because it would affect a substantial right (liberty) and would
“seriously affect[] the fairness, integrity or public reputation of judicial proceedings” (enforcing
an “obvious[ly]” unconstitutional statute). Olano, 507 U.S. at 736. So the key questions are
whether there was any error (is the statute unconstitutional?), and if so, whether that error was
plain (is the statute “obvious[ly] or clear[ly]” unconstitutional?).
B
The Constitution authorizes Congress “[t]o regulate Commerce with foreign Nations.”
U.S. Const. art. I, § 8, cl. 3. Does that include the power to punish a citizen’s noncommercial
No. 14-3386 United States v. al-Maliki Page 6
conduct while the citizen resides in a foreign nation? We doubt it, but because of plain-error
review, we need not finally decide today. Any error was not plain, so we must affirm.
1
We lean toward finding “error” in enforcing § 2423(c) against al-Maliki for his
noncommercial conduct while residing in Syria, but we need not—and do not—decide the issue
today.
Under the original meaning of the Constitution, the Foreign Commerce Clause did not
give Congress the power to punish the conduct at issue here. “Commerce” originally meant
trade or “[i]ntercour[s]e,” 1 S. Johnson, A Dictionary of the English Language 361 (4th ed.
1773)—i.e., “selling, buying, and bartering, [and] transporting for these purposes.” United
States v. Lopez, 514 U.S. 549, 585–86 (1995) (Thomas, J., dissenting); see Randy Barnett, The
Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101, 112–125 (2001). So the
Foreign Commerce Clause as originally understood gave Congress the power to regulate trade or
intercourse with foreign countries. Simple enough. And it simply does not include the power to
criminalize a citizen’s noncommercial activity in a foreign country, for that is not “Commerce”
as originally understood. Nor, for that matter, is it commerce “with” a foreign Nation, which is
also required by the textualist reading.
But, alas in the interstate context, we have long since moved away from the original
meaning of “regulate Commerce,” so we turn to the case law’s modern definition of the term.
The Constitution as now interpreted gives Congress the power to regulate (1) “the use of the
channels of” commerce; (2) “the instrumentalities of . . . or persons or things in” commerce; and
(3) economic activities that “substantially affect” commerce. Lopez, 514 U.S. at 558–59.
Part of § 2423 tracks the first two Lopez categories. Subpart (b), for example,
criminalizes traveling in the channels of commerce for the purpose of engaging in illicit sexual
conduct with a minor. Cf. Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 256
(1964). And subpart (a) criminalizes moving a minor in or through commerce for an illicit
sexual purpose. Cf. United States v. Turner, 77 F.3d 887, 889 (6th Cir. 1996). But the United
States neither charged nor proved that al-Maliki used the channels of commerce for an illegal
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purpose or was “in [foreign] commerce” when he committed his crime. Lopez, 514 U.S. at 559.
It charged only under subpart (c).
And subpart (c) is different. The government need only prove that a citizen at one point
“travel[ed] in foreign commerce”—with no unlawful intent whatsoever—and then committed the
regulated, noncommercial act. Indeed, since 2013, the government can just prove that the citizen
“resides, either temporarily or permanently, in a foreign country” before committing the act.
That’s not regulating the channels of, or people in, commerce; it’s regulating purely intracountry
conduct—after the lawful traveling in commerce has ended. It thus seems to us doubtful that
Lopez categories 1 and 2 suffice to uphold § 2423(c) against al-Maliki.
But what of category 3: a substantial effect on foreign commerce? It doesn’t do the trick
either: Congress “may not regulate noneconomic activity, such as sex crimes, based on the effect
it might have on . . . commerce.” United States v. Kebodeaux, 133 S. Ct. 2496, 2512 (2013)
(Thomas, J., dissenting); see United States v. Morrison, 529 U.S. 598, 617–18 (2000).
Congress’s failure to even try to show the aggregate effect of noncommercial sexual activity on
foreign commerce highlights its lack of power here. See H.R. Rep. No. 108–66 (2003). Indeed,
Congress included neither a jurisdictional statement nor a constitutional authority statement in
passing this subpart. Id.; see Jessica E. Notebaert, The Search for A Constitutional Justification
for the Noncommercial Prong of 18 U.S.C. § 2423(c), 103 J. Crim. L. & Criminology 949, 955
(2013). Lopez category 3 fares no better than the first two categories.
Congress, it therefore appears, lacked the power under the Foreign Commerce Clause to
pass § 2423(c) as applied to noncommercial conduct. It makes sense, then, that the government
conceded at oral argument that it couldn’t criminalize the same conduct occurring wholly
intrastate. There isn’t—and can’t be—a generalized federal crime for traveling in interstate
commerce with no illicit purpose and then, after a few months, committing illicit sexual conduct
with a minor. It likewise makes sense that the government couldn’t articulate a limiting principle
to prevent Congress from criminalizing jaywalking by a United States tourist in Canada. These
are crimes in the States, e.g., Ohio Rev. Code Ann. § 2907.04 (illicit sexual conduct with a minor
in Ohio), or crimes in foreign countries, e.g., Highway Traffic Act, R.S.O. 1990, c. H.8,
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§ 144(22) (Can.) (jaywalking in Ontario), because those governments have a general police
power. But the federal government does not. Morrison, 529 U.S. at 618–19.
So the government argues, as it must, that Congress has greater commerce power over
conduct occurring in foreign countries than conduct occurring in the States. It has some support
for that argument. The Supreme Court, for example, has said (albeit in a dormant commerce
clause case), “[T]he Founders intended the scope of the foreign commerce power to be . . .
greater” than the interstate commerce power. Japan Line, Ltd. v. Cnty. of Los Angeles, 441 U.S.
434, 448 (1979). And the Court reads the Indian Commerce Clause broader than the Interstate
Commerce Clause. E.g., Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192 (1989); see
Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 561 (1832). Some lower courts do the same for the
Foreign Commerce Clause. E.g., United States v. Clark, 435 F.3d 1100, 1114 (9th Cir. 2006).
But see United States v. Bredimus, 352 F.3d 200, 204–05 (5th Cir. 2003).
We are skeptical. One reason offered for this broader interpretation is the lack of
federalism concerns when Congress regulates activities occurring in foreign countries rather than
in the States. Appellee Br. 23. But an unbounded reading of the Foreign Commerce Clause
allows the federal government to intrude on the sovereignty of other nations—just as a broad
reading of the Interstate Commerce Clause allows it to intrude on the sovereignty of the States.
More importantly, an overbroad interpretation of the Foreign Commerce Clause allows the
government to intrude on the liberty of individual citizens. And that seems as least as wrong as a
reading of the Commerce Clause that allows the government to intrude on the States. See U.S.
Const. amend. X (reserving power to the States “or to the people.”).
In any event, Congress’s power over regulating foreign commerce is “exclusive,” yes, but
only when Congress acts “within its compass.” Henderson v. Mayor of City of New York,
92 U.S. 259, 272–73 (1875). That means the States can’t regulate foreign commerce in place of
the federal government. See id. at 274. But Congress must still regulate commerce, and it does
not have exclusive or plenary power unless it does so. The power to regulate commerce with
foreign countries may be exclusive, which is all Japan Line establishes. But that says nothing
about what commerce means. Giving the word “the same meaning throughout” the Clause so it
“remain[s] a unit,” Gibbons v. Ogden, 22 U.S. 1, 194 (1824); see Saikrishna Prakash, Our Three
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Commerce Clauses and the Presumption of Intrasentence Uniformity, 55 Ark. L. Rev. 1149,
1173 (2003), we doubt that Congress has regulated commerce here, much less commerce with a
foreign country.
But we need not finally decide today. As explained in more detail below, because we
conclude only that the statute is not obviously unconstitutional, al-Maliki’s challenge flunks
plain-error review.
2
An error is “plain” when, at a minimum, it “is clear under current law.” Olano, 507 U.S.
at 734. A “circuit split precludes a finding of plain error,” United States v. Williams, 53 F.3d
769, 772 (6th Cir. 1995), for the split is good evidence that the issue is “subject to reasonable
dispute.” Puckett v. United States, 556 U.S. 129, 135 (2009). A lack of binding case law that
answers the question presented will also preclude our finding of plain error. United States v.
Woodruff, 735 F.3d 445, 450 (6th Cir. 2013).
Section 2423(c)’s possible defects are not plain under current law. No circuit court has
declared § 2423(c) unconstitutional. Two have upheld it against constitutional challenges, one
even as applied to noncommercial conduct. United States v. Pendleton, 658 F.3d 299, 311 (3d
Cir. 2011) (noncommercial conduct); Clark, 435 F.3d at 1116. Only one has called it into doubt
(and even then resolved the issue on statutory-interpretation grounds). United States v.
Weingarten, 632 F.3d 60, 71 (2d Cir. 2011). The circuits thus have, at most, split on the general
issue, which precludes a finding of plain error. Williams, 53 F.3d at 772. No binding law exists
in our circuit either—if anything, we hinted that the statute is constitutional (albeit in dictum in a
footnote). Phillips v. United States, 734 F.3d 573, 576 n.2 (6th Cir. 2013). And no intervening
change in law has made this error plain on appellate review. See Henderson v. United States,
133 S. Ct. 1121, 1130 (2013). Plain error did not occur.
We take care to keep the “plain” in “plain error” so as to maintain “the careful balance
[Rule 52(b)] strikes between judicial efficiency and the redress of injustice.” Puckett, 556 U.S.
at 135. And so we reject al-Maliki’s forfeited challenge under plain-error review.
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III
Al-Maliki next challenges the admissibility of Goldrup’s testimony on two grounds: that
his testimony included an improper hearsay statement, and that it included prejudicial statements
about domestic violence. Nothing improper occurred.
Hearsay. Goldrup’s challenged testimony included this out-of-court statement: “[Al-
Rhannai] stated that she had been abused by [al-]Maliki.” R. 97 at 15. But that statement was
not offered to prove the truth of the matter asserted (that al-Maliki had in fact abused his wife); it
was offered “for the limited purpose of explaining why [Goldrup’s] government[al]
investigation” began. United States v. Martin, 897 F.2d 1368, 1371 (6th Cir. 1990) (collecting
cases). Two conclusions follow: It is not hearsay, Fed. R. Evid. 801(c), and the government did
not violate the Confrontation Clause, Crawford v. Washington, 541 U.S. 36, 59–60 n.9 (2004).
Middle Eastern stereotype. Goldrup’s testimony also included this statement: “You
wouldn’t expect a law enforcement response” for spousal abuse in Syria because “it’s culturally
understood [there] that a man has a right to beat his wife.” R. 97 at 53. That statement, taken in
context, was both relevant and not unduly prejudicial. It was relevant because it rebutted al-
Maliki’s attack on Goldrup’s credibility for not reporting the spousal abuse to Syrian authorities.
United States v. Chance, 306 F.3d 356, 385 (6th Cir. 2002); see United States v. Segines, 17 F.3d
847, 856 (6th Cir. 1994). And it was not unduly prejudicial because the government did not use
it in any way to prove the defendant’s guilt. United States v. Placensia, 352 F.3d 1157, 1164
(8th Cir. 2003); see Barnes v. City of Cincinnati, 401 F.3d 729, 742 (6th Cir. 2005). This case is
thus not like those where the government first elicits and then relies on stereotypes to prove the
offense, see Appellant Br. 42–44; Reply Br. 17–18. The district court did not abuse its discretion
in admitting this evidence.
IV
Al-Maliki persists. He next challenges the district court’s failure to sua sponte strike
some of the prosecutor’s statements in closing, ranging from purported violations of the Golden
Rule to improper comments about al-Maliki’s credibility and race. Our plain-error review
(because al-Maliki didn’t object below) is doubly deferential, for we give a prosecutor “wide
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latitude” during closing argument. United States v. Henry, 545 F.3d 367, 377 (6th Cir. 2008).
Despite this latitude, however, the prosecutor may not make comments that “so infect[] the trial
with unfairness as to make the resulting conviction a denial of due process.” Donnelly v.
DeChristoforo, 416 U.S. 637 (1974); see United States v. Wells, 623 F.3d 332, 337–38 (6th Cir.
2010) (on plain-error review, the improper statements must also be “flagrant”). Nothing of the
sort happened here.
To start, the prosecutor did not violate the Golden Rule. Such a violation occurs when
the prosecutor “urges jurors to identify individually with the victims with comments like ‘it
could have been you’ the defendant [harmed] or ‘it could have been your children.’” Bedford v.
Collins, 567 F.3d 225, 234 (6th Cir. 2009) (internal brackets omitted). Al-Maliki claims
violations occurred when the prosecutor asked the jury (1) whether they would expect a child to
rehearse his testimony and (2) whether they would have reported the abuse if they were in Syria.
The first doesn’t implicate the Golden Rule at all; it merely asks the jury to draw reasonable
inferences from John Doe #1’s testimony. And the second included a reference to the actual
testimony (“knowing what you heard from Mr. Goldrup,” R. 89 at 61), which prevented the
impermissible statement (if it was one) from being flagrant. Neither violated the Golden Rule.
Nor did the prosecutor flagrantly “comment on the credibility of a witness or [] express a
personal belief that a particular witness is lying.” Hodge v. Hurley, 426 F.3d 368, 378 (6th Cir.
2005); see United States v. Young, 470 U.S. 1, 11–12 (1985). At most, the prosecutor said that he
thought al-Maliki was being “inconsistent” because of the discrepancies in his testimony, R. 89
at 38—which our precedent allows, see Wogenstahl v. Mitchell, 668 F.3d 307, 331 (6th Cir.
2012). But he did not even reach the outer limits of our precedent because he also stressed that
“your recollection of any testimony”—not his—“is the one that controls.” R. 89 at 38.
Nor, finally, did the prosecutor flagrantly ask the jury “to infer guilt based on a
stereotype.” Appellant Br. 55. The prosecutor may not use stereotypes like the one mentioned
above—viz., that Middle Eastern culture is more accepting of spousal abuse—as evidence
probative of the defendant’s guilt. But the prosecutor did not do so here. The remarks were
isolated and the jury had ample evidence of guilt, with no need to resort to stereotypes. See
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Henry, 545 F.3d at 376, 382. And the trial was one for child abuse, not spousal abuse, so the
stereotype is off base in any event. If there was any error, it certainly was not plain.
V
Al-Maliki’s weakest argument comes next: sufficiency of the evidence. We review this
challenge under the “manifest miscarriage of justice” standard because al-Maliki forfeited it by
failing to renew his Rule 29 motion. United States v. Kuehne, 547 F.3d 667, 697 (6th Cir. 2008);
see Appellant Br. 57 (conceding that this standard applies). A manifest miscarriage of justice
occurs only when “the record is devoid of evidence pointing to guilt.” United States v. Carnes,
309 F.3d 950, 956 (6th Cir. 2002) (emphasis added).
This record contains ample evidence of guilt. Al-Maliki disputes only whether he
engaged in illicit sexual conduct, arguing that John Doe #1 was coached to testify against his
father. But we leave these credibility determinations to the jury. United States v. Graham,
622 F.3d 445, 448 (6th Cir. 2010). And a rational juror could have believed John Doe #1’s first-
hand account of the despicable sexual abuse. Sufficient evidence existed.
VI
Al-Maliki’s sentencing challenges fare no better.
Procedural Reasonableness. Al-Maliki objected below and here to the district court’s
application of Sentencing Guideline § 2A3.1(b)(1). But the district court did not err. That
guideline instructs courts to increase the sentence by four levels “[i]f the offense involved
conduct described in 18 U.S.C. § 2241(a) or (b).” U.S.S.G. § 2A3.1(b)(1). Section 2241
includes the conduct of “using force against [] [an]other person.” 18 U.S.C. § 2241(a)(1)
(emphasis added). The enhancement thus applies because, as the district court succinctly stated,
al-Maliki “did, in fact, use force against the victim.” R. 98 at 16.
Al-Maliki distorts this plain reading by injecting a geographic component into the word
“conduct.” Because the offenses described in §§ 2241(a) and (b) must occur in specific locations
(e.g., “the special maritime and territorial jurisdiction of the United States”), al-Maliki argues
that the enhancement should carry with it the same geographic component. But the “conduct
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described in 18 U.S.C. § 2241” is narrower than the offense described in § 2241. Punching
someone in the arm is the same conduct whether the punch occurs in Syria, Cleveland, or
Timbuktu. Application Note 2(A) to the guideline confirms this plain reading by listing the
conduct—including but not limited to using force—that qualifies for the enhancement. The
district court correctly interpreted this guideline and applied a procedurally reasonable sentence.
Substantive Reasonableness. We apply a “presumption of reasonableness” to sentences
that, like this one, are within the guidelines. Rita v. United States, 551 U.S. 338, 347 (2007); see
Vonner, 516 F.3d at 389. And we review only for abuse of discretion.
Al-Maliki has far from rebutted the presumption. He makes one argument: The district
court imposed a substantively unreasonable sentence because it did not credit the positive
conclusions in the psychology report. Appellant Br. 64–65. But the report contains only one
conclusion, and it is negative: “[B]ased on the overall results of this evaluation,” the report reads,
“[al-]Maliki’s risk for future sexual acting out is considered to be moderate to high.” R. 57 at 10
(emphasis added). To reach that conclusion, the report considered a four-factor test (which
estimated him as “low risk”) in addition to his personality disorder and antisocial traits, history
of instability, lack of insight and poor judgment, and unwillingness to accept responsibility for
his action. The district court did not need to explain its decision to accept the report’s overall
conclusion—backed up by its personal observation—in any more detail than it did: Because of
the report’s overall conclusion, “[al-]Maliki is at significant risk to victimize others.” R. 98 at
35–36. The bottom-of-the-guidelines sentence is substantively reasonable.
VII
Our circuit’s case law says that the cumulative effect of harmless errors can be so
prejudicial that it violates the Due Process Clause. United States v. Adams, 722 F.3d 788, 832
(6th Cir. 2013). Al-Maliki says that is the case here. Yet the only possible “error” is the
constitutionality of 18 U.S.C. §§ 2423(c) and (e)—and even that is a close call. No due process
violation has occurred.
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VIII
For these reasons, we affirm.
No. 14-3386 United States v. al-Maliki Page 15
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CONCURRING IN PART AND IN THE JUDGMENT
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JULIA SMITH GIBBONS, Circuit Judge, concurring in part and concurring in the
judgment. I join the majority’s opinion except for Part II.B.1, which suggests that § 2423(c)
might be unconstitutional. We need not reach that difficult question. Plain error review applies
to Maliki’s constitutional challenge, and any error here cannot have been plain, given that some
circuits have upheld § 2423(c) against constitutional challenges and no circuit has declared it
unconstitutional.