United States v. Rami Saba , 526 F. App'x 489 ( 2013 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0449n.06
No. 11-2350
FILED
UNITED STATES COURT OF APPEALS May 06, 2013
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR THE
) WESTERN DISTRICT OF MICHIGAN
RAMI I. SABA, )
)
Defendant-Appellee. )
Before: NORRIS, COOK, and McKEAGUE, Circuit Judges.
COOK, Circuit Judge. A jury convicted Rami Ikbal Saba of kidnapping and other crimes.
The victim, Donald Dietz, has not been found and at trial was presumed to be dead. During
sentencing, the government urged the district court to apply the felony-murder guideline, see
U.S.S.G. § 2A1.1, by cross-referencing the kidnapping guideline. The district court, pointing to the
absence of evidence regarding how or when Dietz died, refused and sentenced Saba to 389 months’
imprisonment. The government now appeals, challenging the procedural reasonableness of Saba’s
sentence and seeking resentencing with application of the felony-murder guideline to specify a life
sentence.
The kidnapping guideline directs courts to apply the felony-murder guideline “[i]f the victim
was killed under circumstances that would constitute murder under 18 U.S.C. § 1111.” U.S.S.G.
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§ 2A4.1(c)(1). And § 1111, which codifies the common law doctrine of felony murder, provides,
“Every murder [committed] . . . in the perpetration of . . . kidnapping . . . is murder in the first
degree.” 18 U.S.C. § 1111(a). The government argues that the evidence showed by a preponderance
of the evidence that Saba’s kidnapping resulted in Dietz’s death. See United States v. White, 551
F.3d 381, 383 (6th Cir. 2008) (explaining that sentencing factors need be proven only by a
preponderance of the evidence). The district court found, however, that the evidence failed even
under the preponderance standard.
As the government recognizes, we review this factual finding for clear error and review
Saba’s sentence for reasonableness under the abuse-of-discretion standard of review. Gall v. United
States, 552 U.S. 38, 46 (2007); United States v. Fore, 507 F.3d 412, 414–15 (6th Cir. 2007).
Procedural unreasonableness results when a district court selects a sentence based on clearly
erroneous facts. Gall, 522 U.S. at 51. We discern clear error only when we are “left with the
definite and firm conviction that a mistake has been committed.” United States v. Orlando, 363 F.3d
596, 603 (6th Cir. 2004) (internal quotation mark omitted). Whether the district court properly
interpreted the applicability of the felony-murder guideline is a factor we consider in our
reasonableness calculus. See United States v. Shor, 549 F.3d 1075, 1077 n.1 (6th Cir. 2008).
The government argues that it need not show Saba intended to kill Dietz. No quarrel there;
the intent to kidnap alone satisfies the mens rea needed to apply the felony-murder doctrine. See
United States v. Pearson, 159 F.3d 480, 485 (10th Cir. 1998) (“In the typical case of felony murder,
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there is no malice in ‘fact’ with respect to the homicide; the malice is supplied by the ‘law.’ There
is an intended felony and an unintended homicide. The malice which plays a part in the commission
of the felony is transferred by the law to the homicide.” (quoting 2 Charles E. Torcia, Wharton’s
Criminal Law § 147 (15th ed. 1994))). Yet to trigger a life sentence, the government needed to show
that Saba murdered Dietz “in the perpetration of” the kidnapping. 18 U.S.C. § 1111(a). In other
words, the government needed to show that Saba’s act in furtherance of kidnapping caused Dietz’s
death. See United States v. Martinez, 16 F.3d 202, 208 (7th Cir. 1994) (“The application of felony
murder principles does not require . . . a finding that the death was in furtherance of the felony, but
only that the act that caused the death was in furtherance of the felony.”). Thus, the government
needed to show, by a preponderance of the evidence, at least one act on Saba’s part that both
furthered the kidnapping and caused Dietz’s death.
The government lists the following as support for applying the felony-murder guideline: (1)
Dietz was presumed dead; (2) the district court itself noted that “there was no dispute that Dietz was
dead”; (3) the district court chose to apply a two-level enhancement to Saba’s sentence for his failure
to release Dietz within 30 days, see U.S.S.G. § 2A4.1(b)(4)(A); (4) Saba purchased pepper spray and
a stun gun before kidnapping Dietz; (5) Saba assumed Dietz’s identity in an effort to seize Dietz’s
life savings; (6) Saba impersonated Dietz in an attempt to convince Dietz’s brother that Dietz was
leaving the country; (7) Saba contacted Dietz’s power and telephone companies to terminate Dietz’s
accounts; (8) Saba contacted the post office to have Dietz’s mail forwarded; (9) Saba had an
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emotional breakdown during a religious counseling session in jail; and (10) Saba told his fellow
inmates that “[t]hings moved faster than what they were supposed to.”
Like the district court, we note the absence of factual support tying the death to the
kidnapping. First, Dietz’s death alone does not establish an act by Saba that caused it. At best, the
government’s evidence only supports the conclusion that Dietz was kidnapped and died. And no
evidence establishes that Dietz was released, so the district court could apply the kidnapping
guideline that punishes a failure to release within 30 days. Saba’s identity theft and impersonation
might establish Saba’s knowledge of Dietz’s death, but not its cause. Last, Saba’s conversations
with jail inmates offer no confirmation that Saba killed Dietz. There being no evidence of the cause
of death, the possibility that something other than Saba’s act in furtherance of kidnapping caused
Dietz’s death requires us to affirm the district court’s judgment. Cf. United States v. Wheaton, 517
F.3d 350, 369 (6th Cir. 2008) (holding that, even when the district court incorrectly describes the
evidence, “the fact that there is evidence in the record to support [its] finding is sufficient to preclude
us from second guessing the court’s determination”). Because the district court committed no clear
error in evaluating the applicability of the felony-murder guideline, we cannot find Saba’s sentence
to be procedurally unreasonable or an abuse of discretion.
We affirm the judgment of the district court.
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