United States v. Brika ( 2007 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 07a0188p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 05-4537
v.
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AHMED BRIKA, -
Defendant-Appellant. -
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Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 01-00126—Algenon L. Marbley, District Judge.
Argued: March 5, 2007
Decided and Filed: May 23, 2007
Before: BOGGS, Chief Judge; and DAUGHTREY and GIBBONS, Circuit Judges.
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COUNSEL
ARGUED: Kevin M. Schad, SCHAD & SCHAD, Lebanon, Ohio, for Appellant. Kevin W. Kelley,
ASSISTANT UNITED STATES ATTORNEY, Columbus, Ohio, for Appellee. ON BRIEF: Kevin
M. Schad, SCHAD & SCHAD, Lebanon, Ohio, for Appellant. Kevin W. Kelley, Salvador A.
Dominguez, Columbus, Ohio, for Appellee.
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OPINION
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BOGGS, Chief Judge. In Columbus, Ohio, Mohammed Bousfiha provided Ahmed Brika,
his brother-in-law, with a livelihood. He funded his job training and sometimes offered him a place
to live when times were tough. After Bousfiha’s marriage to Brika’s sister had ended, Brika
organized and executed a plot to kidnap Bousfiha in Morocco and hold him for ransom over an
allegedly unpaid debt. More than five people were involved in the plot, from the women who
initially orchestrated Bousfiha’s abduction to the strong-men who held him in captivity. The plotters
held Bousfiha for more than seven days. He was physically injured, although he survived the ordeal.
Brika was indicted and prosecuted in the United States District Court for the Southern
District of Ohio for acts committed from Columbus to Morocco. He was convicted of using a
telephone to extort money in exchange for the release of a kidnapped person, in violation of
18 U.S.C. § 875. The jury could not reach a verdict on another count – conspiracy to commit
1
No. 05-4537 United States v. Brika Page 2
hostage-taking, in violation of 18 U.S.C. § 1203 – and a mistrial was declared on that count. The
district court originally sentenced Brika to 240 months of imprisonment.
In a prior appeal, we affirmed Brika’s conviction on the § 875(a) violation but remanded for
resentencing in light of United States v. Booker, 543 U.S. 220 (2005). See United States v. Brika,
416 F.3d 514 (6th Cir. 2005). On remand, the district court sentenced Brika to a lesser term, 156
months of imprisonment. Brika now appeals his lower sentence. We affirm.
I
The following facts primarily are derived from our previous opinion affirming Brika’s
conviction. Mohammed Bousfiha, the kidnapping victim, came to the United States from his native
Morocco in 1988, becoming an American citizen in 1995. He settled in Columbus, Ohio, where he
was joined by his four brothers. Within several years of his arrival, Bousfiha had started his own
business, running first a group of parking lots and later leasing gas stations from BP. Some of his
brothers were also involved in his business ventures.
In the late 1990s, Bousfiha married Brika’s sister. The couple separated in 1999 and
divorced in 2000. During their marriage, however, Brika spent a great deal of time at Bousfiha’s
home and businesses. Brika sometimes lived with the couple for weeks at a time. Bousfiha also
gave Brika money and sent him to “BP School,” a five-day program run by BP for prospective
owners of BP gas stations.
On June 4, 2001, Bousfiha, who was visiting Morocco, was abducted by three women and
held for over a week in a remote location by a group of Moroccan kidnappers. He claims that on
the second day of his captivity, Brika, whom he recognized only by voice because he was
blindfolded, came to where he was being hidden and threatened him. That same day, Brika, who
also had been visiting Morocco, left that country. He arrived in New York on June 6, 2001,
according to his Moroccan passport, which was stamped on that date by American immigration
officials. He then traveled from New York to Milwaukee, by way of Cincinnati.
Beginning on June 7, 2001 and for the duration of Bousfiha’s captivity, Bousfiha’s brothers
received multiple phone calls from both the kidnappers in Morocco and from Brika in Milwaukee.
The kidnappers and Brika demanded $ 312,000 for Bousfiha’s release, representing the sum Brika
claims Bousfiha owed him. Following the advice of the FBI, the Bousfihas told the kidnappers and
Brika that they had raised the money. Brika arranged for one of the Bousfiha brothers to drive to
Indiana to deliver the cash. Immediately after the exchange was made, the FBI captured Brika.
When the kidnappers did not hear from Brika, they grew anxious. The Bousfihas convinced them
that Brika had taken the money and absconded and was not going to pay them. The kidnappers
thereupon negotiated a separate ransom of $35,000 and released Bousfiha on June 13.
A two-count indictment charged Brika with conspiracy to commit hostage-taking, in
violation of 18 U.S.C. § 1203,1 and with using a telephone to extort money in exchange for the
release of a kidnapped person, in violation of 18 U.S.C. § 875(a). At trial, the defense portrayed
Brika as an opportunist who heard about the kidnapping and took advantage of it to try to get the
Bousfihas to pay a debt that he alleged Mohammed Bousfiha owed to him. The strategy may have
been at least partly successful, because the jury hung on the conspiracy charge. Brika was found
guilty on the second count, using a telephone to extort money, and the judge declared a mistrial on
the first count.
1
The charge technically was conspiracy to commit a hostage-taking, rather than conspiracy to kidnap, as stated
in the original panel opinion. 18 U.S.C. § 1203, the charged offense, criminalizes hostage-taking. Brika was not charged
with violating the federal kidnapping statute, 18 U.S.C. § 1201.
No. 05-4537 United States v. Brika Page 3
In Brika’s first appeal, we affirmed his convictions, rejecting various alleged grounds of trial-
court error. Brika, 416 F.3d at 517. However, we remanded the case for resentencing in light of
Booker. Id. at 531. On remand, the district court relied on the same enhancements to Brika’s
sentence that it relied upon when it originally sentenced Brika. Those enhancements gave Brika a
guidelines range of 262 to 327 months.2 After considering that range and mitigating evidence Brika
presented, the district court sentenced Brika to 156 months of imprisonment.
II
We first address Brika’s non-constitutional challenges to various guidelines enhancements.
Brika argues that the district court erred by finding him criminally responsible for a kidnapping
offense; that the district court ignored our court’s prior mandate; and that the district court erred by
relying on unreliable evidence at sentencing. Each of these claims lacks merit.
A
Brika first argues that the district court erred in determining that he was criminally
responsible for a kidnapping offense, such that the higher base offense level for kidnapping would
apply by cross-reference. Because a determination of criminal responsibility is a mixed question
of law and fact, we review it de novo. See United States v. Whited, 473 F.3d 296 (6th Cir. 2006).
Facts employed by the district court to decide criminal responsibility are reviewed for clear error.
United States v. Gates, 461 F.3d 703, 709 (6th Cir. 2006).
Brika was convicted for using a telephone to extort money in exchange for the release of a
kidnapped person, in violation of 18 U.S.C. § 875(a). USSG § 2A4.2 applies to that offense and
carries a base offense level of 23. That provision also contains the following cross-reference
provision: “If the defendant was a participant in the kidnapping offense, apply § 2A4.1
(Kidnapping, Abduction, Unlawful Restraint).” Section 2A4.2’s application note defines a
“participant” as a person “criminally responsible” for the kidnapping offense, even though that
person need not have been convicted of kidnapping. To determine criminal responsibility, we apply
the federal kidnapping statute, 18 U.S.C. § 1201, which provides, inter alia:
§ 1201. Kidnapping
(a) Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or
carries away and holds for ransom or reward or otherwise any person, except in the
case of a minor by the parent thereof, when--
(1) the person is willfully transported in interstate or foreign commerce,
regardless of whether the person was alive when transported across a State
boundary, or the offender travels in interstate or foreign commerce or uses
the mail or any means, facility, or instrumentality of interstate or foreign
commerce in committing or in furtherance of the commission of the offense;
....
2
The district court began with an offense level of 24, by cross-reference to USSG § 2A4.1(a) (2001). The court
then applied a six-level ransom-demand enhancement, a four-level leadership enhancement, a two-level serious-bodily-
harm enhancement, a two-level dangerous-weapon enhancement, and a one-level enhancement for not releasing the
victim within seven days. The base level for the offense was thus 39. Brika’s criminal history was in Category I. His
guidelines range accordingly was 262 to 327 months.
No. 05-4537 United States v. Brika Page 4
shall be punished by imprisonment for any term of years or for life and, if the death
of any person results, shall be punished by death or life imprisonment.
Applying that statute, the facts in this record show, by a preponderance of the evidence, see
Gates, 461 F.3d at 708, that Brika was criminally responsible for the kidnapping. His conduct
satisfies both actus reus elements of the offense. He (1) seized, kidnapped, abducted, or carried
away Bousfiha and (2) held him for ransom or reward. As noted by the district court on
resentencing, there is ample evidence in the record that Brika paid the three women who abducted
Bousfiha; that he otherwise led the group that secured Bousfiha’s detention; that he visited and
confronted Bousfiha in person in Morocco while Bousfiha was being detained; that Bousfiha heard
Brika’s voice while being held; that Brika sought ransom from the victim’s family by telephone; and
that Brika otherwise exercised authority over those who kidnapped and held the victim. The district
court found those facts, and they are not clearly erroneous. They show by a preponderance of the
evidence that Brika’s conduct satisfies the two actus reus elements of § 1201.
Both of the statute’s Commerce-Clause-based jurisdictional elements, see United States v.
Lopez, 514 U.S. 549, 562-63 (1995), are also satisfied here, although only one is required. Bousfiha
was transported in foreign commerce when he was kidnapped and detained in Morocco. Brika
traveled in foreign commerce when he flew to Morocco in furtherance of the offense and then
reentered the United States. He traveled in interstate commerce when he flew from New York to
Cincinnati to Milwaukee, and then again when he drove to Indiana. Brika also, as a necessary
condition of his § 875(a) conviction, used a means or instrumentality of interstate or foreign
commerce (a telephone) in committing the offense for which he was convicted. Brika thus satisfies
each jurisdictional element of § 1201, although he need only have satisfied one to have been
criminally responsible. Brika’s conduct rendered him criminally responsible for kidnapping
according to the elements of that offense under 18 U.S.C. § 1201.
We pause to dispense with another of Brika’s arguments with respect to this claim. Brika
argues that the district court applied a per se rule that any individual convicted under § 875(a) is
necessarily subject to the kidnapping cross-reference. If Brika’s characterization of the district
court’s ruling were accurate, his argument might have merit. There must be cases in which a
defendant could be convicted under 18 U.S.C. § 875(a) without being criminally responsible for the
kidnapping offense itself. Concluding otherwise would allow the cross-reference to swallow the
normally applicable guidelines provision. We obviously are not inclined to render guidelines
provisions superfluous by interpretation. United States v. Sanders, 162 F.3d 396 (6th Cir. 1998);
United States v. Bazel, 80 F.3d 1140, 1144-45 (6th Cir. 1996).
However, Brika’s characterization of the district court’s ruling is inaccurate. The district
court entertained the possibility that a conviction under § 875(a) would always implicate the cross-
reference, but eventually settled on a fact-pattern in which a person could be convicted under
18 U.S.C. § 875(a) without being “criminally responsible” for the kidnapping itself. In that
situation, an opportunist, knowing of a kidnapping victim, would solicit ransom from the victim’s
close friends or relatives. In such a case, according to the district court, the defendant would not be
“criminally responsible” for the kidnapping. JA 190-200.
Although we need not decide whether an “opportunist” is the only § 875(a) defendant who
would not be subject to the cross-reference, we pause to note one other point. The statute’s plain
text requires that, for one to be guilty of kidnapping, he must (1) seize, confine, inveigle, decoy,
kidnap, abduct, or carry away his victim and (2) hold him for ransom or reward or otherwise. Each
actus reus – some manner of seizure and of holding – is a required element of the offense. A
defendant might be responsible for the holding, but not the seizure, of a kidnapping victim. A
defendant might also hired by kidnappers after a seizure in order to secure ransom. In these cases,
No. 05-4537 United States v. Brika Page 5
and perhaps in others, a defendant convicted of violating § 875(a) might not be held criminally
responsible for a kidnapping.
For this case, however, we need only say that the district court did not rest on any per se rule
requiring the application of the cross-reference. Instead, after discussing how an individual could
avoid the application of the cross-reference, the district court evaluated the facts of this case and
held, by a preponderance of the evidence, that Brika was criminally responsible for the kidnapping.
Reviewing that determination de novo, we agree.
B
Brika next argues that the district court violated this court’s prior mandate by relying on
conduct at sentencing that a jury could not agree on. We review the scope of our own mandates de
novo, United States v. Orlando, 363 F.3d 596, 600 (6th Cir. 2004), taking into account the letter and
spirit of the mandate, United States v. Twp. of Brighton, 282 F.3d 915, 919 (6th Cir. 2002). When
we last considered Brika’s case, we issued an opinion ending with the following:
At sentencing, Brika objected to the various enhancements, but he did not
specifically make a Sixth Amendment claim. Nonetheless, we review sentencing
enhancements in violation of the Sixth Amendment under plain error review. United
States v. Oliver, 397 F.3d 369, 380-81 (6th Cir. 2005). In light of the district court’s
clear use of facts not found by the jury to increase Brika’s sentence by a substantial
amount, we vacate the sentence and remand this case to the district court for
resentencing in a manner consistent with United States v. Booker, 543 U.S. 220, 160
L. Ed. 2d 621, 125 S. Ct. 738 (2005).
Brika, 416 F.3d at 531.
This issue is not a difficult one. It is clear that our prior mandate was a garden-variety
Booker remand. Surely, if we had held that the cross-reference itself had violated the Sixth
Amendment because the jury had hung on the hostage-taking count, the district court would have
been bound by that holding. However, on the previous appeal, we simply vacated and remanded in
light of Booker because the district court’s sentencing of Brika under a mandatory guidelines regime
violated the Sixth Amendment.
The scope of the remand was to reconsider Brika’s sentence in light of Booker and in light
of developing circuit case law in that case’s wake. In other words, we did not direct the district
court to make any particular Sixth Amendment ruling one way or the other on the question of how
to employ conduct on which the jury could not agree. Instead, we merely vacated and remanded the
case with instructions to follow Booker faithfully. The district court did so and thus complied with
our mandate.
C
Brika next argues that the district court erred by relying on unreliable evidence when it
applied an enhancement for leading or organizing a group of five or more people in the commission
of the kidnapping offense. Specifically, Brika contends:
The court relied on statements made by women in Morocco in which they claimed
they were paid to participate in the offense. The women were never in court, and
never testified. Neither was the alleged officer who took said statements. There was
no evidence as to how those statements were obtained, or who provided the
translation of those statements. The defense had no ability to cross-examine these
No. 05-4537 United States v. Brika Page 6
women or otherwise impugn their credibility. The court should not have relied on
such evidence in determining the Guidelines range.
Br. of Appellant, at 17.
Brika acknowledges that neither the rules of evidence nor the right to confront witnesses
applies at sentencing. See United States v. Katzopoulos, 437 F.3d 569 (6th Cir. 2006); United States
v. Wisdom, 175 F. App’x 702, 708 (6th Cir. 2006). However, he is correct that the district court is
obligated to rely on reliable evidence at sentencing. As we have noted, in “challenges to [hearsay]
evidence considered by the sentencing judge, the defendant must establish that the challenged
evidence is materially false or unreliable, and that such false or unreliable information actually
served as the basis for the sentence.” United States v. Silverman, 976 F.2d 1502, 1512 (6th Cir.
1992) (en banc). See also USSG § 6A1.3 (“In resolving any dispute concerning a factor important
to the sentencing determination, the court may consider relevant information without regard to its
admissibility under the rules of evidence applicable at trial, provided that the information has
sufficient indicia of reliability to support its probable accuracy.”).
Brika’s challenge thus raises two questions. First, what evidence did the district court rely
on when enhancing Brika’s sentence based on a leadership role? Second, has Brika shown that
evidence to be unreliable under the Silverman standard? At resentencing, the district court said:
It appeared that all of the activities surrounded Mr. Brika, at least that was the
testimony. He coordinated with the kidnappers in Morocco, he coordinated with the
women who were the first to abduct Mr. Bousfiha, and he was the person who
seemed primarily involved with coordinating with the family, and indeed he was the
individual who went to pick up the money.
And if you just do the math, there were three or four women involved with the
initial abduction, there were either three or four men who originally captured Mr.
Bousfiha, who took him up the mountain to the house, and then there were two
others who replaced those individuals when those individuals were considering
entering into a side deal with Mr. Bousfiha I think for $20,000, then that would
mean five or more persons. So the probation officer properly concluded that an
additional 4 levels should be used to increase the total offense level.
First, we note that the women’s statements were confessions and hence against their penal
interests. The women were in fact prosecuted in Morocco for their crimes. Under our law of
evidence, the statements’ reliability is bolstered by being given under such circumstances. Cf. Fed.
R. Evid. 804(b)(3); United States v. Luciano, 414 F.3d 174, 180-81 (1st Cir. 2005) (noting that out-
of-court statements employed at sentencing had indicia of reliability of excited utterances under Fed.
R. Evid. 803(2)).
Moreover, given the other evidence in this case, the statements of the three women are
corroborated and bear adequate indicia of reliability. Cf. Luciano, 414 F.3d at 180. Bousfiha
himself testified that he was abducted by three women, one of whom was named Amal. He also
testified that the men who held him in custody discussed the whereabouts of the three women after
the kidnapping. Bousfiha also testified that at least two men kept him in custody in Morocco
initially and that new people guarded him after he tried to bribe the first two. Bousfiha also testified
that Brika threatened him while he was in the kidnappers’ custody in Morocco – “I was blindfolded,
I did have my hand tied, my feet tied, I was on the ground, on the floor. And he came and kicked
me and talked to me in English. And he said, I got you now. You’re mine. Who do you think you
are? And he said, I’m going to order the guys don’t give you no water, no food for three days. You
will die, cut you in pieces, and throw you in the sea for the fish.”
No. 05-4537 United States v. Brika Page 7
As we have noted, Brika must show both that the three women’s statements were materially
false or unreliable, and that those false statements “actually served as the basis” for the district
court’s sentencing decision. See Silverman, 976 F.2d at 1512. He has made neither showing. On
the contrary, the evidence in this case indicates that the statements bear substantial indicia of
reliability. In light of the evidence taken as a whole, the district court did not rely on unreliable
evidence at sentencing. Accordingly, its factual determination that Brika led a group of five or more
people to kidnap Bousfiha was not clearly erroneous, see Gates, 461 F.3d at 709, and the
enhancement was proper.
III
We now address Brika’s constitutional and Booker challenges to his sentence, each of which
attacks from a different angle the district court’s consideration of conduct on which a jury could not
agree. First, he argues that the court’s consideration of that conduct at sentencing violated the Sixth
Amendment. Second, he contends that the district court’s application of various guidelines
enhancements under a preponderance-of-the-evidence standard denied him due process. Third, he
argues that his sentence was both substantively and procedurally unreasonable. Each challenge
lacks merit.
A
Brika first alleges that the district court’s consideration at sentencing of conduct on which
a jury could not agree violated the Sixth Amendment. We believe that this argument is foreclosed
by Watts v. United States, 519 U.S. 148, 157 (1997). The Supreme Court held in Watts that conduct
on which a jury rendered a judgment of acquittal may be considered by a sentencing judge, so long
as the conduct was proven by a preponderance of the evidence. 519 U.S. 148, 157 (1997) (“We
therefore hold that a jury’s verdict of acquittal does not prevent the sentencing court from
considering conduct underlying the acquitted charge, so long as that conduct has been proved by a
preponderance of the evidence.”). If district courts at sentencing may employ conduct on which a
jury rendered a judgment of acquittal using only a preponderance-of-the-evidence standard, then
surely they may employ conduct on which a jury could not agree using the same standard.
We acknowledge that Watts was decided before United States v. Booker, 543 U.S. 220
(2005), which held that the Guidelines are advisory rather than mandatory. Nevertheless, other
circuits have seen no reason to disturb Watts’s holding in Booker’s wake. United States v. Duncan,
400 F.3d 1297, 1304 (11th Cir. 2005); United States v. Price, 418 F.3d 771, 788 (7th Cir. 2005).
See also United States v. Fruchter, 137 F. App’x 390, 394 (2d Cir. 2005) (“[U]nder the Guidelines,
the district court was entitled to consider acquitted conduct as relevant conduct.”). Cf. United States
v. Green, 181 F. App’x 506, 508 (6th Cir. 2006) (citing Watts with approval).
We see no logical contradiction between Watts and Booker. It is clear after Booker that
district courts may still find facts at sentencing by a preponderance of3 the evidence. Gates, 461 F.3d
at 708; United States v. Stone, 432 F.3d 651, 654-55 (6th Cir. 2005). Congress has made clear that,
in making those factual determinations, “[n]o limitation shall be placed on the information
concerning the background, character, and conduct of a person convicted of an offense which a court
of the United States may receive and consider for the purpose of imposing an appropriate sentence.”
18 U.S.C. § 3661.
3
As we recently noted, Booker did nothing to affect the standards of proof relevant at sentencing: “Before
Booker, the Supreme Court had held on a number of occasions ‘that application of the preponderance standard at
sentencing generally satisfies due process.’ Booker did nothing to change this standard.” United States v. Green, 181
F. App’x 506, 508 (6th Cir. 2006) (citing Watts, 519 U.S. at 156; Nichols v. United States, 511 U.S. 738, 748 (1994);
and McMillan v. Pennsylvania, 477 U.S. 79, 91 (1986))
No. 05-4537 United States v. Brika Page 8
Given those conditions, we see no reason to exclude from the court’s consideration conduct
on which a jury either deadlocked or rendered a judgment of acquittal. It goes without saying that
district courts hear first-hand evidence pertaining to such conduct and that defense counsel has the
opportunity to test the reliability of evidence pertaining to that conduct at trial. The reliability of
evidence is also assured, to some extent, by the rules of evidence.
Booker does not suggest otherwise. That case and its predecessors deal with whether the
sentencing guidelines are mandatory and whether a court may sentence a defendant above an
offense’s statutory maximum by finding facts not authorized by the jury’s verdict. Booker permits
district courts to find facts at sentencing. Watts discusses only the standard of proof that applies
when that fact-finding takes place. There is no contradiction between them. Accordingly, Watts
controls here. Until the Supreme Court holds differently, a jury’s inability to reach a verdict on a
particular count under a reasonable-doubt standard does not require district courts to employ
anything other than a preponderance standard at sentencing.
Brika does point us to two district-court decisions that hold that the Sixth Amendment
requires that a district court apply a reasonable-doubt standard, rather than a preponderance
standard, when considering conduct on which the jury rendered a judgment of acquittal. United
States v. Coleman, 370 F. Supp. 2d 661, 668-69 (S.D. Ohio 2005); United States v. Pimenthal, 367
F. Supp. 2d 143, 152-53 (D. Mass. 2005). In both cases, the district courts held themselves to a
reasonable-doubt standard at sentencing when dealing with facts on which a jury had rendered a
judgment of acquittal. In the first, Coleman, 370 F. Supp. 2d at 668-69, the district court wrote that,
when considering conduct for which a defendant was acquitted, sentencing judges should employ
a reasonable-doubt standard in finding facts, because, “otherwise, a defendant’s Sixth Amendment
right to a jury trial is eviscerated.”4 In the second, Pimenthal, the district reached the same holding
as the Coleman court reached with respect to acquitted conduct, writing that “[e]ven if . . . a judge
may consider all facts, including acquitted conduct, the standard of proof to be applied should be
beyond a reasonable doubt.” 367 F. Supp. 2d at 152-53.
While we disagree with the substantive outcomes of those two cases in light of Watts, they
have no impact here because they deal only with acquitted conduct, rather than conduct on which
the jury could not agree. Moreover, they say nothing about a district court’s power to consider5
either type of conduct. Instead, they only seek to alter the standard a district court should apply.
Two other circuits have held that, even in Booker’s wake, acquitted conduct may be considered by
the sentencing judge under a preponderance standard. Duncan, 400 F.3d at 1304; Price, 418 F.3d
at 788. If acquitted conduct may be considered under that standard, certainly no higher standard
should apply to conduct on which a jury could not agree. We hold, therefore, that the preponderance
standard, supplied by Watts and unchanged by Booker, applies regardless of whether the jury hung
on a particular count.
4
Coleman also produces the following difficulty. A jury convicts a defendant of one out of two charged
offenses. A sentencing court could, when sentencing on the convicted count, flatly disagree with the jury’s determination
on the acquitted count and find guilt beyond a reasonable doubt. The rule proposed by Coleman thus could lead to
conflicting determinations by judges and juries, while the Watts rule avoids that problem, respects the jury’s reasonable-
doubt determination, and simply applies the congressionally mandated standard.
5
We note that, in this case, the district court said that, even considering the evidence in this case under a
reasonable-doubt standard, it would have found Brika “criminally responsible” for the kidnapping. While we agree, that
conclusion is unnecessary to the outcome of this case because district courts need only apply a preponderance standard
at sentencing.
No. 05-4537 United States v. Brika Page 9
B
Brika next argues that the district court’s reliance on conduct on which the jury could not
reach a verdict violated due process in his particular case because it drastically increased his
guidelines range from 46 to 57 months to 262 to 327 months. Brika ultimately was sentenced to 156
months.
Brika’s due-process claim rests on United States v. Kikumura, 918 F.2d 1084, 1089 (3d Cir.
1990). In that case, the Third Circuit held as a matter of statutory interpretation that clear-and-
convincing-evidence should be the applicable standard in cases where “the magnitude of a
contemplated departure is sufficiently great that the sentencing hearing can fairly be characterized
as ‘a tail which wags the dog of the substantive offense.’” Id. at 1101 (citing McMillan v.
Pennsylvania, 477 U.S. 79, 88 (1986)). The factor at issue in Kikumura was a single, almost twelve-6
fold departure of 327 months from the top of the applicable guidelines range of 27 to 33 months.
Prior to Booker, we declined to follow Kikumura and squarely rejected all claims along the
lines of the one Brika advances here. United States v. Mayle, 334 F.3d 552, 556-57 (6th Cir. 2003)
(“Although the case before us undeniably presents one of those exceptional situations where the
sentencing factor has a disproportionate effect on the sentence relative to the offense of conviction,
this Circuit has previously rejected the invitation to adopt a higher standard of proof simply because
the enhancement would significantly increase the defendant’s sentence.”); United States v. Graham,
275 F.3d 490, 517 (6th Cir. 2001).
Today, while we reaffirm those precedents, we reformulate them in Booker terms.
Kikumura’s reasoning might have had some basis in due-process principles under the mandatory
guidelines regime. That is so because a defendant had an entitlement to be sentenced within his
guidelines range absent circumstances justifying upward departure. United States v. Guarin, 898
F.2d 1120 (6th Cir. 1990). However, after Booker, the only constraints on sentencing judges are the
statutory maximum and minimum for the offense at issue and the sentencing statutes, particularly
18 U.S.C. § 3553(a). Booker, 543 U.S. at 232-33; Apprendi v. New Jersey, 530 U.S. 466, 490
(2000).
Viewed in this light, Brika could not have had a reasonable expectation that he would have
received a sentence within his guidelines range absent the application of the various enhancements.
Instead, he had only an entitlement to be sentenced to a reasonable sentence within the statutory
range. Brika’s argument–that the district court violated his due-process rights when it calculated
his guidelines range as 262 to 327 months by applying various enhancements under a preponderance
standard–thus misses the mark.7
6
In Watts, the Supreme Court, citing Kikumura, expressly left unanswered the question of whether such extreme
departures required higher than a preponderance standard. 519 U.S. at 156-57 (“We acknowledge a divergence of
opinion among the Circuits as to whether, in extreme circumstances, relevant conduct that would dramatically increase
the sentence must be based on clear and convincing evidence. The cases before us today do not present such exceptional
circumstances, and we therefore do not address that issue.”).
7
We note one other important point. Even if we applied Kikumura, it would be of no aid to Brika. Kikumura
dealt with a single and substantial sentencing departure rather than small, individual enhancements authorized by the
guidelines. In this case, the district court applied the cross-reference to kidnapping under § 2A4.1. The court then
applied a six-level ransom-demand enhancement, a four-level leadership enhancement, a two-level serious-bodily-harm
enhancement, a two-level dangerous weapon enhancement, and a one-level enhancement for not releasing the victim
within seven days. The offense level was thus 39.
Brika’s position would require that the government prove each of those enhancements by a standard of proof
higher than preponderance-of-the-evidence. At the time Brika was sentenced, the cross-reference provision, by itself,
increased Brika’s sentence by only one level. Due process certainly would not have required a higher standard of proof
for a one-level enhancement by itself. Silverman, 976 F.2d at 1518.
No. 05-4537 United States v. Brika Page 10
After Booker, we believe Brika’s due-process challenge is cognizable more properly as a
challenge to the reasonableness of his sentence. Judge Bye’s concurrence in United States v. Bah,
which Brika cites in his brief, makes this point clear. 439 F.3d 423, 432-33 (8th Cir. 2006). Judge
Bye noted that an upward departure of 180 to 300 percent would have been unreasonable and
justifiable only in “extraordinary circumstances.” Id. at 432-33 (citing United States v. Saenz,
428 F.3d 1159, 1162 (8th Cir. 2005)).
We agree with Judge Bye on the proper analytical framework. As a defendant’s sentence
increases further and further above his properly calculated guidelines range, it becomes more and
more likely that his sentence is substantively unreasonable. See, e.g., United States v. Davis, 458
F.3d 491 (6th Cir. 2006). Thus, while we reaffirm our earlier holding that due process does not
require sentencing courts to employ a standard higher than preponderance-of-the-evidence, even in
cases dealing with large enhancements, see Mayle, 334 F.3d at 556-57, we also hold such challenges
should be viewed through the lens of Booker reasonableness rather than that of due process.
C
We now proceed to address Brika’s Booker reasonableness challenges. Under Booker, we
review sentences for reasonableness. United States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005).
However, a district court’s role is not to impose a “reasonable sentence.” Instead, a district court’s
mandate is to impose “a sentence sufficient, but not greater than necessary, to comply with the
purposes” of 18 U.S.C. § 3553(a)(2). See 18 U.S.C. § 3553(a). “Reasonableness is the appellate
standard of review in judging whether a district court” has fulfilled that mandate. United States v.
Collington, 461 F.3d 805, 807-08 (6th Cir. 2006) (citing United States v. Foreman, 436 F.3d 638,
644 n.1 (6th Cir. 2006)).
The Sixth Circuit’s reasonableness test has substantive and procedural components. “A
sentence may be considered substantively unreasonable when the district court select[s] the sentence
arbitrarily, bas[es] the sentence on impermissible factors, fail[s] to consider pertinent § 3553(a)
factors or giv[es] an unreasonable amount of weight to any pertinent factor.” Ibid. (citing Webb, 403
F.3d at 383) (internal quotation marks omitted). “A sentence may be procedurally unreasonable if
the district judge fails to consider the applicable Guidelines range or neglects to consider the other
factors listed in 18 U.S.C. § 3553(a), and instead simply selects what the judge deems an appropriate
sentence without such required consideration.” Ibid.
In arguing that his sentence was unreasonable, Brika raises two claims. First, he contends
that the district court sentenced him outside of his guidelines range because the district court
misapplied the Guidelines by relying on conduct on which the jury could not agree. Br. of
Appellant, at 19-20. This is a procedural-reasonableness challenge because it attacks the process
by which the district court applied the Guidelines. We already have rejected Brika’s challenge to
the district court’s employment of conduct on which the jury could not agree and to the court’s
application of various guidelines enhancements at sentencing. Brika’s guidelines range was
calculated correctly. His procedural-reasonableness challenge thus lacks merit.
The same reasoning applies to the other enhancements. None of the individual enhancements in this case was
very large. If we were to adopt Brika’s position, district courts could not predict when due process would require
heightened standards of proof. After a three-level enhancement? An eight-level enhancement? How would the
defendant’s pre-enhancement offense level factor into such an analysis? We decline to invite more uncertainty into
criminal sentencing. Even if we applied Kikumura to some cases, we would apply it only to departures (or perhaps single
enhancements) large enough to “wag the dog” of the substantive offense. 918 F.2d at 1089. None of the enhancements
here does that.
No. 05-4537 United States v. Brika Page 11
Brika’s other Booker claim is a substantive-reasonableness challenge. According to Brika,
if the district court had not considered conduct on which the jury could not agree, his sentence would
have been approximately five years. That fact, combined with “the lack of a prior criminal history
for the Appellant, his good acts, his family and friend support, and his good works while
incarcerated,” leads to the conclusion that “the reasonable sentence to impose would have been the
five year term.” Br. of Appellant, at 21.
Brika’s claim amounts to an assertion that the district court failed to accord proper weight
to his mitigating evidence. Collington, 461 F.3d at 807-08 (noting that a substantive-reasonableness
challenge is one that alleges that the district court failed to accord proper weight to a sentencing
factor under 18 U.S.C. § 3553(a)); 18 U.S.C. § 3553(a)(1) (requiring the district court to consider
the history and characteristics of the defendant). It is true that the defendant had little criminal
history. It is also true that his family and friends extended warm support for him. And, it is true that
the defendant has done several good things while incarcerated, including working as a Draftsman
Helper in prison. Indeed, his supervisor in that job wrote him a letter of recommendation at re-
sentencing, which his supervisor alleges was a rare thing for him to have done. In other words, there
appears to be some justification for a downward variance from Brika’s guidelines range.
That is precisely what happened here. The district court knew that the defendant’s guidelines
range was 262 to 327 months and that the statutory maximum was 240 months. Nevertheless, the
court on resentencing, after hearing Brika’s mitigating evidence, sentenced him only to 156 months.
Surely, the district court did not note explicitly on the record how much weight it accorded to each
particular piece of mitigating evidence. Nevertheless, the record in this case indicates that the
district court considered each piece of evidence offered. Witnesses, including Brika’s friend
Courtney Warren and his sister Latifa Brika, testified on his behalf. The district court posed its own
questions to Ms. Warren. The district court imposed a sentence that was more than 80 months below
the statutory maximum and even further below the bottom of the applicable guidelines range. We
have no doubt that the district court adequately considered Brika’s mitigating evidence. We also
note that the district court honored the defendant’s request to be placed in a facility close to his
family. In light of these factors, we believe the district court chose a substantively reasonable
sentence.
IV
We lastly consider two claims raised by Brika in a pro se supplemental brief before this
court. Brika first argues that his indictment was defective because the prosecutor failed to plead and
prove an essential element of the indictment. Next, he argues that the jury instructions departed
from the indictment, such that there was a “constructive amendment” of the indictment which
rendered it defective. Neither claim has merit.
A
The first claim raised in Brika’s pro se brief amounts to a claim that the indictment failed to
specify “that the alleged victim was a kidnapped person.” Brika claims this error is a defect in the
indictment that may be raised at any point during the case. See Fed. R. Crim. P 12(b)(3) (“[A]t any
time while the case is pending, the court may hear a claim that the indictment or information fails
to invoke the court’s jurisdiction or to state an offense.”).
To the extent that Brika challenges the prosecutor’s failure to prove an element of the
offense, we cannot now consider his arguments. Brika’s convictions already have been affirmed by
an earlier panel. Questions of proof of guilt are not properly before us on this appeal from
resentencing. United States v. Procter, No. 06-5586, 2007 U.S. App. LEXIS 2076, at *5 (6th Cir.
Jan 26, 2007) (“Defendant’s third argument could have been brought in his first appeal and is
No. 05-4537 United States v. Brika Page 12
therefore waived. Defendant may not reassert issues that he raised or should have raised in his
earlier appeal.”) (citing United States v. McKinley, 227 F.3d 716, 718 (6th Cir. 2000)).
To the extent that Brika claims the indictment itself is defective because it fails to invoke the
court’s jurisdiction or to state an offense, a claim that we could review at any time, see Fed. R. Crim.
P. 12(b)(3), his assertion is without merit. He claims that his indictment for crimes under 18 U.S.C.
§ 875(a) (using the phones to extort ransom) and 18 U.S.C. § 1203 (hostage-taking) failed to state
an offense because the government did not plead the “kidnapped person” element. Brika’s claim
is erroneous. He was convicted only under § 875(a). The indictment on that count clearly refers to
the “ransom and reward for the release of Mohammed Bousfiha who had been kidnapped and was
then being held for ransom and reward.” (emphasis added). The government did not fail to specify
a kidnapped person.
We note that there are two alternative ways to construe Brika’s argument. First, Brika may
be arguing that the jury’s two verdicts were inconsistent because they resulted (1) in a conviction
under a statute (§ 875(a)) that required that a person be kidnapped and (2) in an acquittal on the
hostage-taking offense. See Pro Se Supp. Br. of Appellant, at 8 (“the Appellant states with equal
simplicity that there cannot be a kidnapped person . . . without a kidnapping.”). We cannot review
this claim in this appeal. However, even if the verdicts were inconsistent, that would not be a
ground for reversal. See United States v. Powell, 469 U.S. 57, 64-65 (1984) (citing Dunn v. United
States, 284 U.S. 390, 393 (1932) (Holmes, J.))
Brika also may be arguing that, because the government did not indict him for kidnapping
under 18 U.S.C. § 1201, the government failed to state an offense under § 875(a). Pro Se Supp. Br.
of Appellant, at 10. Brika refers this court to no authority indicating than an indictment under
§ 875(a) must accompany one under § 1201. They are separate statutes with separate sentencing
guidelines; no authority suggests than an indictment for the former must accompany one for the
latter. We note also that Brika’s arguments relating to the kidnapping cross-reference depend on a
defendant’s being able to violate § 875(a) without being responsible for kidnapping. Brika cannot
have it both ways. Brika has not shown that the indictment failed to state an offense, such that we
could reverse his conviction on this appeal.
B
Brika’s second pro se claim is that the district court delivered “an erroneous instruction upon
a jury note wherein it instructed the jury with the essential elements of 18 U.S.C. 875(b) and 875(c),
wherein the defendant, Brika, had only been indicted by the Grand Jury on 18 U.S.C. 875(a) . . . .
This constructive amendment of the indictment is a jurisdictional defect which also can be raised
at any time.” Pro Se Supp. Br. of Appellant, at 2-3. Because it relates to the propriety of jury
instructions, rather than to whether the indictment invoked the district court’s jurisdiction or stated
an offense, this issue is clearly one which should have been raised in Brika’s first appeal. It has
No. 05-4537 United States v. Brika Page 13
thus been waived.8 Procter, No. 06-5586, 2007 U.S. App. LEXIS 2076, at *5 (citing McKinley, 227
F.3d at 718).
V
Having rejected all of Brika’s challenges to his sentence, we affirm.
8
Were we to consider this issue, we would review it for plain error. United States v. Swafford, 385 F.3d 1026,
1028 (6th Cir. 2004). Under any standard, however, Brika’s contention would lack merit. The district court relied on
two cases when it issued jury instructions: United States v. Cooper, 523 F.2d 8-10 (6th Cir. 1976), and United States
v. Holder, 302 F. Supp. 296, 297 (D. Mont. 1969). Brika is correct that those two cases applied different subsections
of 18 U.S.C. § 875 than that which is at issue here. He claims that, as a result, we now should reverse his conviction.
Although we need not consider this claim, we note that there was no error on this score, let alone a plain one.
Cooper makes clear that convictions under § 875(c) do not require ultimate power to release the victim. There is no
textual feature materially distinguishing § 875(a) from § 875(c) on that front. As we have held, it is only natural that
the similarly worded subsections of § 875 be read together. United States v. Heller, 579 F.2d 990, 997-99 (6th Cir. 1978)
(holding that different subsections of § 875 should be given similar interpretations). As a result, Brika’s contention that
the district court “constructively amended” his indictment by referring to cases dealing with analogous statutes lacks
merit.