United States v. Ruhbayan , 406 F.3d 292 ( 2005 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
RAJUL RUHBAYAN, a/k/a Creme, a/k/a
Kreem, a/k/a Day-Ja, a/k/a Deja,
a/k/a Amir Ruhbayan, a/k/a Jibra’el  No. 04-4103
Ruh-alamin, a/k/a Jibrael
Ruhalamin, a/k/a James Vernon
Wood, a/k/a James Vernette
Johnson,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Rebecca Beach Smith, District Judge.
(CR-02-29)
Argued: February 4, 2005
Decided: April 21, 2005
Before WILKINS, Chief Judge, and KING and
DUNCAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by published opinion.
Judge King wrote the opinion, in which Chief Judge Wilkins and
Judge Duncan joined.
COUNSEL
ARGUED: Joseph Barry McCracken, Norfolk, Virginia, for Appel-
lant. James Ashford Metcalfe, Assistant United States Attorney,
2 UNITED STATES v. RUHBAYAN
OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Vir-
ginia, for Appellee. ON BRIEF: Paul J. McNulty, United States
Attorney, Michael J. Elston, Assistant United States Attorney, Alex-
andria, Virginia; Karen Lynn Peaden, Third-Year Law Student,
OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Vir-
ginia, for Appellee.
OPINION
KING, Circuit Judge:
Rajul Ruhbayan appeals his multiple convictions and sentences in
the Eastern District of Virginia for offenses arising from an obstruc-
tion of justice scheme in his earlier federal criminal trial. He makes
several contentions on appeal, most notably that the district court
erred in admitting evidence barred by attorney-client and work prod-
uct privileges and the rules of evidence; in ruling that his conspiracy
conviction was not defective under Wharton’s Rule; and in enhancing
his sentences on the basis of judge-found facts under the Sentencing
Guidelines. As explained below, we reject each of Ruhbayan’s chal-
lenges to his convictions. We vacate his sentences, however, and
remand for resentencing pursuant to United States v. Booker, 125
S. Ct. 738 (2005), and its progeny.
I.
The factual scenario underlying the convictions and sentences on
appeal relates to Ruhbayan’s scheme to have his former girlfriend,
Yolanda Goodman, testify falsely during his September 2000 trial in
the Eastern District of Virginia on drug trafficking and firearms
charges (the "First Trial"). Following the First Trial, Goodman coop-
erated with the Government and provided evidence against Ruhbayan.
As a result, Ruhbayan was indicted in February 2002 for five addi-
tional offenses arising from his obstruction of justice scheme. This
indictment resulted in Ruhbayan’s "Second Trial," and the convic-
tions and sentences from which this appeal ensues.
A.
On August 25, 2000, Ruhbayan was indicted for multiple felonies,
including being a felon in possession of a firearm, in contravention
UNITED STATES v. RUHBAYAN 3
of 18 U.S.C. § 922(g)(1), and related criminal offenses. During his
First Trial, the prosecution presented several witnesses to Ruhbayan’s
drug trafficking and firearms activities, including Martinsville and
Suffolk, Virginia, police officers. For example, officers testified that,
incident to Ruhbayan’s arrest on April 14, 2000, they recovered a
loaded nine-millimeter pistol, which had been hidden between cush-
ions in the back seat of Ruhbayan’s van.
In response to the Government’s evidence, Ruhbayan presented the
testimony of three witnesses, including himself and Goodman. In his
defense, Ruhbayan admitted that he was a convicted felon, but denied
that he was a drug dealer and had ever possessed or used firearms,
including the pistol recovered from his van. Goodman testified on
Ruhbayan’s behalf that she was his girlfriend, that she had often been
to his home, and that she had never seen him with either drugs or fire-
arms. Importantly, she admitted that she was a convicted felon and
had placed the pistol in the van without Ruhbayan’s knowledge.
Thereafter, the jury in the First Trial convicted Ruhbayan on two
lesser-included misdemeanor offenses — simple possession and con-
spiracy to possess crack cocaine — but acquitted him on the other
counts, including the § 922(g)(1) firearm possession charge. After
being sentenced to twenty-four months in prison, Ruhbayan appealed,
and we affirmed. See United States v. Ruhbayan, No. 01-4009, 2001
WL 867446 (4th Cir. Aug. 1, 2001) (unpublished).
B.
1.
On February 2, 2001, Goodman was indicted by the grand jury,
apparently as the result of her testimony in the First Trial. She was
charged with being a felon in possession of a firearm and ammuni-
tion, in violation of 18 U.S.C. § 922(g)(1), having admitted under
oath that she was a convicted felon and that she had possessed the pis-
tol found in Ruhbayan’s van. Goodman then changed her story, advis-
ing the Government that she had testified falsely in the First Trial
regarding Ruhbayan’s drug trafficking and firearms activities. On
May 9, 2001, she entered a plea of guilty to an information charging
her with obstruction of justice, in violation of 18 U.S.C. § 1503. In
her plea agreement, Goodman stipulated that she had:
4 UNITED STATES v. RUHBAYAN
testified falsely [in the First Trial] that she had possessed the
firearm and ammunition and that she had placed them in
Ruhbayan’s vehicle without his knowledge on or about
April 14, 2000, in Suffolk, Virginia, when she knew in fact
that she had never possessed the firearm and ammunition,
had never placed them in Ruhbayan’s vehicle, and was testi-
fying falsely as requested by . . . Ruhbayan in order to assist
him in misleading the jury . . . .
Goodman also agreed to testify against Ruhbayan in any subsequent
trials, and she provided the Government with more than fifty letters
he had written to her while awaiting his First Trial. In the letters, Ruh-
bayan first directed Goodman to find a non-felon to testify falsely for
him by admitting possession of the pistol, and he eventually con-
vinced Goodman to lie on his behalf about placing the pistol in his
van.
On February 12, 2002, the grand jury returned a five-count indict-
ment against Ruhbayan for the events relating to Goodman and the
First Trial, charging him with (1) conspiracy to commit perjury and
obstruct justice, in contravention of 18 U.S.C. § 371; (2) corruptly
influencing and attempting to influence the testimony of a witness, in
violation of 18 U.S.C. § 1512(b)(1); (3) perjury, in contravention of
18 U.S.C. § 1623; (4) subornation of perjury, in violation of 18
U.S.C. § 1622; and (5) obstruction of justice, in contravention of 18
U.S.C. § 1503. On April 10, 2002, the district court denied Ruhbay-
an’s motion to dismiss on the basis of collateral estoppel, premised
on his claim that the verdict in the First Trial barred the charges in
the new indictment. Ruhbayan then appealed the denial of his collat-
eral estoppel claim to this Court, asserting jurisdiction under the col-
lateral order doctrine. We affirmed by published opinion, United
States v. Ruhbayan, 325 F.3d 197, 205 (4th Cir. 2003), holding that
collateral estoppel did not bar the prosecution of Ruhbayan on the
perjury and subornation of perjury charges, notwithstanding his
acquittal on certain of the drug trafficking and firearms-related
charges in the First Trial.1 The district court subsequently denied sev-
1
At oral argument in the collateral order appeal, Ruhbayan abandoned
his collateral estoppel challenge on the other three counts of the new
indictment — conspiracy to commit perjury and obstruct justice, cor-
ruptly influencing and attempting to influence the testimony of a witness,
and obstruction of justice. See Ruhbayan, 325 F.3d at 201 n.1.
UNITED STATES v. RUHBAYAN 5
eral of Ruhbayan’s other pre-trial motions, including motions to
quash the prosecution’s subpoena of James Melton (Ruhbayan’s law-
yer in the First Trial), and any documents from Melton’s files con-
cerning his representation of Ruhbayan, on the basis of the attorney-
client and work product privileges; to bar the introduction of evidence
concerning Ruhbayan’s history of drug trafficking and firearms activ-
ities; and to dismiss the conspiracy count on the basis of Wharton’s
Rule.
2.
In Ruhbayan’s Second Trial, the prosecution introduced the testi-
mony of seven witnesses. As the district court observed, however, the
prosecution’s most important evidence was Goodman’s testimony and
the letters Ruhbayan had written to her prior to his First Trial. See
United States v. Ruhbayan, No. 2:02cr29, slip op. at *4 (E.D. Va. Feb.
3, 2004).2 Goodman testified in the Second Trial that her testimony
2
Approximately thirteen of Ruhbayan’s letters to Goodman were
admitted into evidence at the Second Trial. Those letters, which Ruh-
bayan admitted writing, included the following inculpatory statements:
once the right person is found to claim the gun then the lawer
can really guide us. It’s that simple.
We need to find a person for the gun, Think who would or could
be possibilities, find out who doesn’t have felonies. Its that sim-
ple . . . .
I need a non-felon. I need it now. There are thousands upon
thousands of people in Suffolk without felons.
Baby all I really have aginst me is a gun. Once you claim the
gun; then we go to court. On the court date; they will drop the
charges against me. & may may not pick them up on you.
Tell my lawyer that you are calling for Rajul Ruhbayan. That
you would like to confess to the gun found in my van stuffed
between the rear seat back cushions. That the gun is all black &
that it did have some bullets in it.
As for the gun. Since I had no knowledge of it being in the van
or you having it you are basically free to say what you want on
how you got it.
6 UNITED STATES v. RUHBAYAN
in the First Trial had been false, that she had never possessed the pis-
tol recovered from Ruhbayan’s van, that she had observed Ruhbayan
with firearms on several occasions, and that he had been engaged in
substantial drug trafficking activities. She also testified to Ruhbayan’s
mental and physical abuse, e.g., that Ruhbayan prohibited her from
answering the door of their residence, required her to wear Muslim
headdress and garb, pushed her off the porch, and beat and choked
her. In addition, lawyer Melton testified that Ruhbayan had inquired
before trial into possible sentences, under federal and state law, for
possession of a firearm as a convicted felon, and that Goodman had
contacted Melton about testifying for Ruhbayan in the First Trial,
asserting that the pistol found in his van belonged to her.3 Several
police officers from Martinsville and Suffolk also testified to Ruhbay-
an’s possession of cash and cocaine, their discovery of the pistol in
the van, and their subsequent execution of a search warrant for his
home and the recovery of multiple firearms, drug residue, and drug
paraphernalia.4
Ruhbayan testified in his own defense in his Second Trial, main-
taining, as he did in the First Trial, that the pistol found in the van was
not his. He asserted that, by his letters to Goodman, he only sought
to have her testify truthfully and that much of his language was an
Me doing 5 to 8 years doesn’t help. You doing 18 months shows
your real.
The letters laid out a blueprint for Goodman to follow upon being con-
vinced to testify that she placed the pistol in the van, including instruc-
tions on who to contact and what to say. Ruhbayan also told Goodman
that other witnesses should be contacted to testify to his "none associa-
tion" with guns or "coke."
3
The prosecution introduced three redacted letters from Melton to Ruh-
bayan, evidencing Melton’s response to Ruhbayan’s request for informa-
tion on sentencing and advising that Goodman claimed responsibility for
the pistol found in Ruhbayan’s van.
4
In the Second Trial, the prosecution also called Lanetta Riddick, a for-
mer girlfriend of Ruhbayan, as a witness. Riddick testified that she had
seen Ruhbayan with various firearms and drugs over the course of their
relationship. She was also permitted to describe Ruhbayan’s abusive
behavior towards her.
UNITED STATES v. RUHBAYAN 7
attempt at rap lyrics. On October 24, 2003, the Second Trial jury
returned a guilty verdict on all five counts. Ruhbayan then sought
judgment of acquittal and a new trial, which the district court denied
on February 3, 2004. See United States v. Ruhbayan, No. 2:02cr29
(E.D. Va.).
3.
On February 4, 2004, the court conducted Ruhbayan’s sentencing
hearing. In determining Ruhbayan’s sentencing range, the court
enhanced his offense level by four levels for his leadership role in an
"otherwise extensive" crime under § 3B1.1(a) of the Sentencing
Guidelines, finding, inter alia, that the criminal activity included Ruh-
bayan, Goodman, Melton, Melton’s staff, and the twelve jurors in the
First Trial. See United States v. Ruhbayan, 302 F. Supp. 2d 634, 636
(E.D. Va. 2004). In making its § 3B1.1(a) ruling, the court concluded
that "many other individuals who are not criminally responsible for
the offense unwittingly assisted in its execution," and, under our deci-
sion in United States v. Ellis, 951 F.2d 580 (4th Cir. 1991) (Powell,
J.), the use of the "unknowing services of many outsiders" warranted
the application of the enhancement. Ruhbayan, 302 F. Supp. 2d at
636.
Ruhbayan’s Presentence Report (the "PSR") recommended a total
Offense Level of 34 and a Criminal History Category of III, resulting
in an applicable sentencing range of 188-235 months. Both Ruhbayan
and the Government filed objections to the PSR: Ruhbayan con-
tended, inter alia, that he should not receive a two-level enhancement
under § 3B1.1(c) for a leadership role in the criminal activity, while
the Government contended, inter alia, that Ruhbayan’s conduct war-
ranted a four-level enhancement under § 3B1.1(a). At sentencing, the
court enhanced Ruhbayan’s Offense Level by four levels under
§ 3B1.1(a), resulting in a total Offense Level of 36. It also adjusted
his Criminal History Category from III to VI pursuant to § 4A1.3(a),
finding that Category III substantially underrepresented his criminal
history. Finally, the court found that the Guidelines did not adequately
consider Ruhbayan’s responsibility for the underlying offenses, and
it departed upward from the applicable sentencing range for Criminal
History Category VI and Offense Level 36 (324-405 months) pursu-
ant to § 5K2.0. As a result, the court sentenced Ruhbayan to life in
8 UNITED STATES v. RUHBAYAN
prison on the witness tampering count and to sixty months on each
of the remaining counts, all to run concurrently.5
Ruhbayan has filed a timely notice of appeal, and we possess juris-
diction under the provisions of 28 U.S.C. § 1291. We assess his con-
tentions of error in turn.6
II.
On appeal, Ruhbayan raises multiple contentions of error as to his
convictions and sentences. First, he maintains that the trial court erred
in admitting the testimony and work product of his former lawyer,
and in its admission against him of prior bad acts evidence.7 He next
contends that the court erred in failing to dismiss the conspiracy
charge under the doctrine known as Wharton’s Rule, as explained by
the Supreme Court in Iannelli v. United States, 420 U.S. 770 (1975)
(discussing history and application of Rule). In challenging his sen-
tences, Ruhbayan maintains that they should be vacated pursuant to
United States v. Booker, 125 S. Ct. 738 (2005). Alternatively, he
asserts multiple sentencing errors, most significantly challenging the
court’s application to him of the leadership role enhancement under
§ 3B1.1(a) of the Sentencing Guidelines.
5
At the sentencing hearing, the trial court vacated Ruhbayan’s convic-
tion on the obstruction of justice count, concluding that it was multipli-
citous with the witness tampering count. He was therefore sentenced on
a total of four convictions.
6
On August 20, 2004, following the Supreme Court’s June 2004 deci-
sion in Blakely v. Washington, 124 S. Ct. 2531, Ruhbayan directed this
Court’s attention to Blakely’s potential implications in this appeal. Supp.
Br. of Appellant at 4 ("The sentence imposed by the district court pursu-
ant to the U.S. Sentencing Guidelines violated [Ruhbayan’s] Sixth
Amendment right to trial by jury.").
7
Ruhbayan also contends that the district court erred in admitting evi-
dence precluded by the doctrine of collateral estoppel. We addressed his
collateral estoppel issues in Ruhbayan’s most recent appeal, and this
claim warrants no further discussion. See generally United States v. Ruh-
bayan, 325 F.3d 197 (4th Cir. 2003) (addressing Ruhbayan’s collateral
estoppel contentions regarding Second Trial).
UNITED STATES v. RUHBAYAN 9
A.
1.
In challenging the evidence admitted against him in the Second
Trial, Ruhbayan makes, inter alia, two separate contentions. First, he
contends that the court erred in concluding that the testimony of his
former lawyer and the admission of letters written by Melton to Ruh-
bayan, see supra note 3, fell within the crime-fraud exception to the
attorney-client and work product privileges. See United States v. Ruh-
bayan, 201 F. Supp. 2d 682 (E.D. Va. 2002); see also United States
v. Ruhbayan No. 2:02cr29, slip op. at *14-15 (E.D. Va. Feb. 3, 2004).
In assessing such a contention, we review a trial court’s factual find-
ings for clear error, and we review its application of the legal princi-
ples de novo. In re Grand Jury Subpoena, 341 F.3d 331, 334 (4th Cir.
2003). However, we will not, "absent a clear showing of abuse of dis-
cretion," vacate the trial counsel’s determination that the prosecution
made a prima facie showing of the defendant’s crime or fraud. In re
Grand Jury Subpoena, 884 F.2d 124, 127 (1989). In light of the evi-
dence on the crime-fraud point, particularly Ruhbayan’s letters to
Goodman and her testimony about contacting his lawyer, the court’s
finding that Ruhbayan had used his attorney to dupe the court and
jury at the First Trial was not clearly erroneous. As a result, the court
did not err in authorizing the prosecution to present Melton’s testi-
mony and three of his letters to Ruhbayan in the Second Trial.
Second, Ruhbayan maintains that the trial court also erred in per-
mitting the prosecution to introduce evidence of his prior bad acts,
including allegations of physical abuse against his former girlfriends.
See United States v. Ruhbayan No. 2:02cr29, slip op. at *13, 15-16
(E.D. Va. Feb. 3, 2004). We review such evidentiary rulings for abuse
of discretion. See United States v. Godwin, 272 F.3d 659, 670 (4th
Cir. 2001). In so doing with respect to these contentions, we perceive
no error in the court’s admission of evidence relating to Ruhbayan’s
prior drug trafficking and firearms activities, which were relevant to
show that Ruhbayan and Goodman had falsely testified at the First
Trial. The evidence of Ruhbayan’s physical abuse of women was
deemed relevant by the trial court to Goodman’s motive for being
willing to testify falsely at the First Trial, and the court properly
instructed the jury on the limited purpose for which such evidence
10 UNITED STATES v. RUHBAYAN
8
could be considered. As a result, Ruhbayan’s contentions of evidenti-
ary error at the Second Trial must also be rejected.
2.
Ruhbayan next contends that the conspiracy charge lodged against
him should have been dismissed, and that his conspiracy conviction
should be vacated, because that charge is barred by Wharton’s Rule.
We review this contention de novo. See United States v. Castro, 887
F.2d 988, 996 (9th Cir. 1989). Generally, a conspiracy to commit an
offense and the actual commission of the offense constituting the
object of the conspiracy do not merge into a single punishable act,
and a defendant — or multiple defendants — can be prosecuted both
for the conspiracy and for the substantive offense which was the con-
spiracy’s object. United States v. Walker, 796 F.2d 43, 46 (4th Cir.
1986). By Wharton’s Rule, however, the courts have created a judi-
cial exception to this proposition. Id. Under that Rule, "‘[a]n agree-
ment by two persons to commit a particular crime cannot be
prosecuted as a conspiracy when the crime is of such a nature as to
necessarily require the participation of two persons for its commis-
sion.’" Iannelli v. United States, 420 U.S. 770, 774 n.5 (1975) (quot-
ing 1 R. Anderson, Wharton’s Criminal Law and Procedure § 89, p.
191 (1957)). Thus, a person cannot, under Wharton’s Rule, be prose-
cuted for conspiracy to commit such offenses as adultery, incest, big-
amy, or dueling — the classic Wharton’s Rule offenses — "since the
substantive offense necessarily requires concerted criminal activity."
Walker, 796 F.2d at 46 (citing Iannelli, 420 U.S. at 782).
Ruhbayan contends that his convictions for witness tampering and
subornation of perjury required the participation of at least two per-
sons, thus precluding an additional conviction for conspiracy. Specifi-
cally, he asserts that the conduct punished by the subornation of
perjury and witness tampering charges, and the conduct sought to be
8
Ruhbayan also contends that the court erred in admitting evidence
regarding the nature of an earlier conviction for involuntary manslaugh-
ter, because he had offered to stipulate to being a convicted felon. How-
ever, the only evidence of his prior felony was a single reference to his
"previous violent felony" in Ruhbayan’s letters to Goodman, to which he
failed to object.
UNITED STATES v. RUHBAYAN 11
reached by the conspiracy charge, was sufficiently congruent to be
barred by Wharton’s Rule.
As the district court ruled in denying judgment of acquittal on Ruh-
bayan’s conspiracy conviction, however, Wharton’s Rule is inapplica-
ble in the circumstances of this case. See United States v. Ruhbayan,
No. 2:02cr29, slip op. at *8-9 (E.D. Va. Feb. 3, 2004). In Iannelli, the
Court observed that Wharton’s Rule is aimed at activities where "the
immediate consequences of the crime rest on the parties themselves
rather than on society at large." 420 U.S. at 782-83. Here, as the trial
court aptly observed, the immediate consequences of Ruhbayan’s wit-
ness tampering and subornation of perjury crimes fell on society at
large and on the criminal justice system itself, rather than on Ruh-
bayan and Goodman only. See Ruhbayan, No. 2:02cr29, slip op. at
*9; see also, e.g., United States v. Markiewicz, 978 F.2d 786, 802 (2d
Cir. 1992) (observing that purpose of federal statute barring perjury
is to punish wrong to judicial system); United States v. Manfredonia,
414 F.2d 760, 764 (2d Cir. 1969) (observing that perjury statute pro-
tects judicial system itself). In these circumstances, Ruhbayan’s con-
spiracy conviction is not barred by Wharton’s Rule.
B.
Turning next to Ruhbayan’s sentencing contentions, we first exam-
ine, in light of the Supreme Court’s recent decision in United States
v. Booker, 125 S. Ct. 738 (2005), his assertion that his sentences vio-
lated the Sixth Amendment. Next, we assess the propriety of the con-
tested sentencing enhancements. As explained below, Ruhbayan is
entitled to resentencing under Booker and, in these circumstances, the
four-level enhancement for his leadership role in the obstruction of
justice scheme was improperly applied.
1.
Ruhbayan raised a Sixth Amendment challenge to his sentences for
the first time on appeal. We are thus obliged to review that contention
for plain error only, applying the principles of United States v. Olano,
507 U.S. 725, 732 (1993). See United States v. Hughes, No. 03-4172,
2005 WL 628224, at *5 (4th Cir. Mar. 16, 2005). The plain error
mandate of Olano is satisfied if: (1) there was error; (2) it was plain;
12 UNITED STATES v. RUHBAYAN
and (3) it affected the defendant’s substantial rights. 507 U.S. at 732.
If these conditions are met, we may then exercise our discretion to
notice the error, but only if it "seriously affect[s] the fairness, integrity
or public reputation of judicial proceedings." Id. (citation and internal
quotation marks omitted).
First, the sentencing court’s imposition of a life sentence on Ruh-
bayan for witness tampering, plus three sixty-month concurrent sen-
tences for conspiracy, perjury, and suborning perjury constitutes
constitutional error under Booker. See 125 S. Ct. at 746 (holding that
Sixth Amendment contravened when sentencing court, acting pursu-
ant to Guidelines, imposes sentence greater than maximum authorized
by facts found by jury alone). At sentencing, the court, inter alia,
increased Ruhbayan’s offense level by four levels, applying the
§ 3B1.1(a) enhancement for leadership of otherwise extensive crimi-
nal activity. See Findings Of Fact, United States v. Ruhbayan, No.
2:02cr29 (E.D. Va. Feb. 25, 2004). As such, it made factual determi-
nations about the scope of Ruhbayan’s criminal activity, and his role
within it, by a preponderance of the evidence. The court committed
Sixth Amendment error by relying on its own fact-finding to impose
sentences greater than what was authorized by the jury verdict. See
Hughes, 2005 WL 628224, at *5 (recognizing that imposition of sen-
tence, "in part based on facts found by the judge, . . . constituted error").9
Second, the court’s sentencing error was plain, because "‘the law
at the time of trial was settled and clearly contrary to the law at the
time of appeal.’" Id. (quoting Johnson v. United States, 520 U.S. 461,
468 (1997)). Third, the error affected Ruhbayan’s substantial rights,
in that it "‘actually affected the outcome of the proceedings.’" Id. at
*5-6 (quoting United States v. Hastings, 134 F.3d 235, 240 (4th Cir.
1998)). Because the court’s calculation of the other enhancements and
departures rested in part on its application of the § 3B1.1(a) enhance-
ment, its reliance on facts beyond those authorized by the jury verdict
permeated Ruhbayan’s sentencing. And because the sentences
9
Assuming, without deciding, that the trial court correctly calculated
Ruhbayan’s Criminal History Category at VI and his Offense Level at
32, application of the § 3B1.1(a) four-level enhancement (resulting in an
Offense Level of 36) increased the applicable sentencing range by 62
months, from 210-262 months to 324-405 months.
UNITED STATES v. RUHBAYAN 13
imposed on Ruhbayan were greater than those authorized by the facts
found by the jury alone (as in Hughes), and were increased on the
basis of the judge-found facts, the sentencing error was prejudicial.
Id. at *6.
Finally, we are obliged to exercise our discretion to notice the error
with respect to Ruhbayan’s sentences. As a result of the error, Ruh-
bayan was sentenced to a total term of imprisonment greater than that
authorized by the jury verdict, seriously affecting "the fairness, integ-
rity or public reputation of [the] judicial proceedings." Olano, 507
U.S. at 732 (internal quotation marks omitted); see also Hughes, 2005
WL 628224, at *13. Furthermore, we have no indication as to what
sentences the court would have imposed absent its impermissible fact-
finding, in that its successive calculations, including the upward
departure under § 5K2.0, were premised upon the application of
§ 3B1.1(a). We are thus obliged to vacate Ruhbayan’s sentences and
remand for resentencing consistent with Booker and its progeny. See
125 S. Ct. at 768-69.
2.
Under the first step of the Booker remedial scheme, a sentencing
court must determine the range prescribed by the Guidelines after
making any necessary findings of fact. See Hughes, 2005 WL
628224, at *14. As a result, the calculation issues raised in this appeal
are likely to arise in the district court on remand. See id. We therefore
briefly address Ruhbayan’s most significant sentencing contention,
that the sentencing court improperly applied a § 3B1.1(a) enhance-
ment to his sentences.
Section 3B1.1(a) of the Guidelines provides that, "[i]f the defen-
dant was an organizer or leader of a criminal activity that involved
five or more participants or was otherwise extensive," the sentencing
court shall increase the offense level by four. USSG § 3B1.1(a). Ruh-
bayan does not challenge the sentencing court’s determination that he
was an organizer or leader within the meaning of § 3B1.1, but he
asserts that the court erred in finding that his criminal activity was
"otherwise extensive." In making such a determination, a sentencing
court may consider "all persons involved during the course of the
entire offense." USSG § 3B1.1, comment. (n. 3). For example, "a
14 UNITED STATES v. RUHBAYAN
fraud that involved only three participants but used the unknowing
services of many outsiders could be considered extensive." Id. Here,
the sentencing court found that, although Ruhbayan’s scheme
involved just two participants (Goodman and Ruhbayan), it was "oth-
erwise extensive" because it included the unknowing services of Mel-
ton, his staff, and, "most importantly, the twelve jurors who returned
verdicts based upon the perjured testimony presented at the [First
Trial]." United States v. Ruhbayan, 302 F. Supp. 2d 634, 636 (E.D.
Va. 2004).
In this situation, however, the jurors in the First Trial were the
objects of Ruhbayan’s criminal scheme to obstruct justice, and they
could hardly have been involved in the commission of the offenses.
For that reason, this situation is readily distinguishable from that
underlying United States v. Ellis, 951 F.2d 580 (4th Cir. 1991) (Pow-
ell, J.), upon which the sentencing court relied. Ellis involved a
scheme to corruptly secure the passage of legislation in West Vir-
ginia. Although the corrupt scheme involved only four participants,
we upheld the application of the § 3B1.1(a) enhancement because the
unknowing services of lobbyists, legislators, and their staffs advanced
the criminal activity. Ellis, 951 F.2d at 585. In this case, the jurors in
the First Trial did nothing to advance Ruhbayan’s scheme. Ruhbay-
an’s scheme was simply to obstruct justice by lying to the court and
the jury and having his girlfriend do likewise, and it was not "other-
wise extensive" under § 3B1.1(a). As a result, enhancing Ruhbayan’s
offense level under § 3B1.1(a) for exercising a leadership role in "oth-
erwise extensive" criminal activity is not appropriate.
III.
Pursuant to the foregoing, we affirm Ruhbayan’s various convic-
tions, but we vacate his sentences and remand for such resentencing
proceedings as may be appropriate.
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED