United States v. Busara, Ekabal ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3857
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
E KABAL P AUL B USARA,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 03 CR 52—William C. Griesbach, Judge.
A RGUED O CTOBER 28, 2008—D ECIDED D ECEMBER 30, 2008
Before B AUER, R IPPLE and E VANS, Circuit Judges.
R IPPLE, Circuit Judge. Ekabal “Paul” Busara pleaded
guilty in the United States District Court for the Eastern
District of Wisconsin to kidnaping and conspiracy to
commit kidnaping, in violation of 18 U.S.C. §§ 1201(a) and
1201(c). The district court sentenced Mr. Busara to life in
prison. In an earlier appeal, we vacated that sentence as
unreasonable, United States v. Singh, 483 F.3d 489 (7th Cir.
2007), and remanded the case for resentencing. The dis-
trict court resentenced Mr. Busara to 480 months’ impris-
2 No. 07-3857
onment. Mr. Busara then filed this appeal challenging
his new sentence as unreasonable. Because we conclude
that the new sentence is reasonable, we affirm.
I
BACKGROUND
The chain of events that has brought Ekabal Busara
before us for a second time began in February 2003, when
Mr. Busara’s friend, Malkit Singh, asked Mr. Busara to
accompany him on a trip from their home state of New
Jersey to Francis Creek, Wisconsin. The purpose of the
trip was to confront a man named Waheed Akhtar about
a business deal that had gone bad. Akhtar owned Fun ‘N
Fast, a gas station and convenience store in Francis Creek.
Before moving to Wisconsin, Akhtar had lived in Atlantic
City, New Jersey, where he had worked with Singh at
two local gas stations.
In late 2002, Akhtar had asked Singh to come to Wis-
consin and manage the Fun ‘N Fast while Akhtar traveled
overseas. Singh managed the business from November
2002 until Akhtar’s return in January 2003. During, or
shortly after, this period, Akhtar offered to sell the
business to Singh. Singh paid Akhtar approximately
$200,000, but obtained no receipt. There was no docu-
mentation of any agreement to sell the store. Singh be-
came anxious about the deal when Akhtar refused to
move forward with the sale or return the money.
In late February 2003, Singh decided to travel to Wis-
consin to force the issue with Akhtar. Mr. Busara agreed to
No. 07-3857 3
go with him. On the way, the pair stopped at a Home
Depot and purchased a tarp, a crowbar, gloves and a
rope. Upon their arrival in Francis Creek, they immediately
went to Akhtar’s station, but he was not there. They
returned later that day and discussed the purchase of the
station with Akhtar. When no agreement was reached,
Singh asked if he and Mr. Busara could sleep at Akhtar’s
house that night. Akhtar gave them the keys to his apart-
ment, and Singh and Mr. Busara went there to rest. When
Akhtar returned to the apartment later that evening, he
and Singh once again discussed the sale, but still were
unable to reach an agreement.
There is some dispute between Singh and Mr. Busara as
to what happened next. The district court found that
Akhtar then went to bed. At some point thereafter, con-
tinued the district court, Mr. Busara became agitated, went
into the bedroom and struck Akhtar in the head with a
dumbbell. Singh and Mr. Busara then bound Akhtar’s
hands and feet and turned him over onto his back. Mr.
Busara struck him again with the dumbbell. They then
wrapped Akhtar in a blanket and in the tarp that they
had purchased on the drive from New Jersey. They
carried Akhtar outside and placed him in the back of
their Nissan Pathfinder. Akhtar was still breathing when
they put him in the car. Singh and Mr. Busara then re-
turned to the apartment, where they removed the
bloody sheets from the bed and flipped the mattress to
hide a blood stain.
Leaving Akhtar in the Pathfinder, the men drove
Akhtar’s car some distance away and discarded the
4 No. 07-3857
bloody sheets in a trash bin. They then returned to the
apartment, where Mr. Busara retrieved the Pathfinder.
The men then drove both cars to the Fun ‘N Fast and
told Mukaram Iqbal, Akhtar’s nephew, that they had
come to help him close the store. Singh lured Iqbal into
a cooler, where Mr. Busara struck him repeatedly with
glass bottles while Singh punched and choked him. The
men tied up Iqbal, cleaned the store and placed Iqbal in
the back seat of the Pathfinder. The defendants then
drove the Pathfinder, which now held both Akhtar and
Iqbal, to New Jersey. They rented a hotel room, where
Mr. Busara stayed the night with Iqbal while Singh stayed
with his girlfriend. In the morning, Singh returned, and he
and Mr. Busara moved the Pathfinder, which still con-
tained Akhtar’s body, to a gas station parking lot. Singh
tried to take Iqbal for medical attention, but was unsuc-
cessful because Iqbal did not have an American insur-
ance card. Singh also purchased some clothes and food
for Iqbal. Singh rented a new room in another hotel and
left Iqbal there, alone and untied, threatening to harm
Iqbal’s family if he tried to escape. As soon as Singh left,
however, Iqbal ran across the street and called the police.
In the meantime, a clerk at the Fun ‘N Fast had reported
Akhtar missing. Based on information from Iqbal and the
missing-persons report, the police began investigating and
searching for Singh and Mr. Busara. When the men real-
ized that Iqbal had escaped and that the police were
looking for them, they retrieved the Pathfinder and drove
to a nearby storage facility, where they disposed of
Akhtar’s body.
No. 07-3857 5
Singh then fled to New York City. Mr. Busara remained
in Atlantic City and surrendered to the police on March 5,
2003. Singh was arrested in New York six days later. Singh
and Mr. Busara both confessed involvement in the
crimes, but they told conflicting stories about what hap-
pened. Mr. Busara claimed that Singh was the one who
hit Akhtar with the dumbbell, while Singh claimed that
Mr. Busara struck the fatal blow. Mr. Busara led the
authorities to Akhtar’s body.
Singh and Mr. Busara were each charged with two
counts of kidnaping and one count of conspiracy. Singh’s
case went to trial, and he was convicted on all counts. The
court sentenced Singh to 420 months in prison. Mr. Busara,
on the other hand, pleaded guilty to one count of kid-
naping and one count of conspiracy. The court sentenced
him to life in prison. The court concluded that a longer
sentence was justified for Mr. Busara based on its
finding that he was the one who delivered the fatal blow
and its belief that Mr. Busara had not been entirely candid
about his role in the crimes. Mr. Busara appealed his
conviction and sentence to this court. We affirmed his
conviction but vacated his sentence, holding that the
district court erred in applying a two-level obstruction
enhancement because Singh and Mr. Busara had buried
Akhtar’s body. See United States v. Singh, 483 F.3d 489 (7th
Cir. 2007). Accordingly, we remanded for resentencing.
The district court resentenced Mr. Busara on November
9, 2007. On resentencing, the court calculated Mr. Busara’s
sentencing range under the United States Sentencing
Guidelines at 360 months to life, and decided to impose
6 No. 07-3857
a sentence of 480 months, which it described as “five years
more than Singh.” R.387 at 38. In explaining the sen-
tence, the court focused on its finding that Mr. Busara
was the one who delivered the fatal blow and its conclu-
sion that Mr. Busara had not been fully candid as to his
role in the crime.
Mr. Busara now appeals his new sentence, which he
submits is unreasonable.
II
DISCUSSION
Mr. Busara challenges the reasonableness of his sen-
tence on two grounds. First, he contends that the record
does not support the district court’s factual finding that
he struck the blow that killed Akhtar. Second, he submits
that his sentence is unreasonable in light of the sen-
tencing factors set forth in 18 U.S.C. § 3553(a).
A. The District Court’s Finding of Fact
Mr. Busara submits that the district court erred in finding
that he, rather than Singh, struck the fatal blow. He
contends that the only support for this finding comes from
Singh’s self-serving statement to police that Mr. Busara
was the one who hit Akhtar. He submits that Singh’s
statement is “presumptively unreliable” because it “not
only attempts to shift blame to reduce Mr. Singh’s own
criminal liability but also (1) was given with government
involvement; (2) describes past events; and (3) has not been
No. 07-3857 7
subjected to adversarial testing.” Appellant’s Br. 21 (citing
United States v. Jones, 371 F.3d 363, 369 (7th Cir. 2004)).
Mr. Busara contends that, because Mr. Singh’s statement
was unreliable, any factual determinations the court
made based on it are invalid—including the determina-
tion that Mr. Busara struck the fatal blow. Mr. Busara
submits that the sentence is unreasonable because the
court’s sentencing decision was based primarily on this
determination.
In imposing a sentence, a district court may rely upon
facts that have been proven by a preponderance of the
evidence. United States v. Shannon, 518 F.3d 494, 496 (7th
Cir. 2008). We review a district court’s findings of fact for
clear error. United States v. Choiniere, 517 F.3d 967, 973 (7th
Cir. 2008).
Mr. Busara is correct that we have looked with skepti-
cism on the use of untested self-serving statements by co-
defendants. See United States v. Santiago, 495 F.3d 820, 825
(7th Cir. 2007); United States v. Jones, 371 F.3d 363, 369 (7th
Cir. 2004). The district court acknowledged that Singh’s
statement was presumptively unreliable because it was
self-serving and had not been subjected to cross-examina-
tion. The court also noted, however, that Mr. Busara’s
statement was unreliable for the same reasons. The court
decided to credit Singh’s statement over Mr. Busara’s
because it determined that Singh’s statement “fit the
facts and evidence” while Mr. Busara’s statement did not.
R.387 at 15. More precisely, the district court determined
that Singh’s statement bore “sufficient indicia of reliability
to support [its] probable accuracy,” which overrode the
presumption of unreliability. Santiago, 495 F.3d at 824. The
8 No. 07-3857
record establishes that this determination was reason-
able. As the court noted, Singh’s story was that Mr. Busara
struck Akhtar while he was lying in bed asleep. The
physical evidence supports this description. Akhtar was
clothed only in his underwear when his body was recov-
ered, and Akhtar’s mattress and sheets were covered
with his blood. Mr. Busara, on the other hand, claimed
that Singh attacked Akhtar while Akhtar was eating
dinner and discussing the business deal with Singh. This
version of events is much harder to reconcile with the
physical evidence.
The court also made other findings that support Singh’s
account. It is undisputed that Mr. Busara was the one
who initially struck Iqbal when he and Singh abducted
him. Moreover, it was Mr. Busara who stayed with Iqbal
in the hotel to prevent his escape while Singh left with
his girlfriend. The court found that these facts sup-
ported the notion that Mr. Busara’s role was to serve as
“the muscle” of the group, which in turn made it more
likely that he was the one who attacked Akhtar. This
conclusion was a reasonable inference.
Finally, the court found that Mr. Busara had made
dubious and inconsistent statements in “an attempt to
distance himself, to minimize his involvement, even after
he supposedly has come clean.” R.364 at 83. Mr. Busara
contends that this is an invalid reason for the court to
credit Singh’s version of events, because “the issue here
is not credibility, it is evidence.” Reply Br. 6. We cannot
accept this argument. Either Singh’s statement about who
struck Akhtar is true, and Mr. Busara’s statement is
false; or, conversely, Singh’s statement is false, and Mr.
No. 07-3857 9
Busara’s statement is true. There are no other possibilities.
Hence, in this case anything that makes it less likely that
Mr. Busara’s statement is true necessarily makes it more
likely that Singh’s statement is true. Mr. Busara’s lack of
credibility therefore makes it more likely that Singh’s
account of events is true, and the district court did not
err in considering it.
B. The Reasonableness of the Sentence
Mr. Busara also submits that his sentence is unrea-
sonable in light of 18 U.S.C. § 3553(a), which directs
courts to impose sentences that are “no longer than neces-
sary” to achieve the sentencing objectives enumerated
in the statute.1 Mr. Busara contends that the district
court’s “clearly erroneous factual findings”—particularly
1
The Section 3553(a) factors include:
(1) the nature and circumstances of the offense and the
history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for
the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the
defendant; and
(D) to provide the defendant with needed educational
or vocational training, medical care, or other correc-
tional treatment in the most effective manner.
18 U.S.C. § 3553(a).
10 No. 07-3857
its finding that Mr. Busara was the one who struck
Akhtar—led the court to impose a sentence that was
longer than necessary in light of the nature and circum-
stances of the offense, the seriousness of the offense, and
“his personal background and characteristics.” Appellant’s
Br. 29; see also id. at 29-30 (describing Mr. Busara’s lack of
criminal history, his low risk of recidivism, and other
potential mitigating factors). Mr. Busara also challenges
the court’s decision to “place[] primary weight on the
severity of the offense” to the “near-exclusion” of the
other factors. Appellant’s Br. 28. Finally, he argues that
it was unreasonable for the court to give him a longer
sentence than Singh because his culpability was less
than, or at least no greater than, Singh’s.
Sentences that fall within the Guideline range are
presumptively reasonable. Shannon, 518 F.3d at 496. The
district court imposed a sentence within the Guideline
range; accordingly, we shall reverse only if Mr. Busara can
prove that the district court’s sentencing decision
amounted to an abuse of discretion. Id. Mr. Busara has
not met this burden. The record establishes that the
district court carefully and explicitly weighed the facts
in this case in light of the statutory sentencing factors. It
considered a number of factors that potentially could
counsel a lower sentence for Mr. Busara, including the
facts that he did not intend to kill Akhtar, had no prior
criminal record and had been a model prisoner in the
time he was incarcerated. Indeed, the court relied on these
facts in determining that Mr. Busara deserved a sentence
that was lower than the Guideline maximum of life in
prison. Ultimately, however, the court decided that the
No. 07-3857 11
offense and Mr. Busara’s role in it were sufficiently serious
to make a 40-year sentence appropriate in light of the
Section 3553(a) factors.
Ever since the Supreme Court announced, in United
States v. Booker, 543 U.S. 220 (2005), that the Sentencing
Guidelines are merely advisory to the district courts, our
review of whether a particular sentence is reasonable
has focused primarily on whether the court adequately
considered the Section 3553(a) factors and articulated
reasons for the sentence that are grounded in those factors.
See, e.g., Shannon, 518 F.3d at 496 (evaluating whether the
district court provided “an adequate statement of reasons,
consistent with § 3553(a), for thinking the sentence it
selects is appropriate” (citing United States v. Harris, 490
F.3d 589, 597 (7th Cir. 2007))). Here, the court clearly did
so. Although Mr. Busara argues that the court placed
inordinate weight on the fact that he struck the fatal blow,
“to the near-exclusion of the other[] [factors],” Appellant’s
Br. 28, it is clear from the record that the court did con-
sider other factors and in fact reduced Mr. Busara’s
sentence because of some of them. In any event, it is
perfectly acceptable for courts to assign varying weights
to the factors as they deem appropriate in the context of
each case. As we have noted before: “The statute does not
weight the factors. That is left to the sentencing judge,
within the bounds of reason, which are wide.” United
States v. Johnson, 471 F.3d 764, 766 (7th Cir. 2006). The
district court’s weighing of the Section 3553(a) factors
in this case did not exceed those bounds.
Mr. Busara’s final argument is that his sentence is
presumptively unreasonable because he received a longer
12 No. 07-3857
sentence than Singh, despite being less culpable. As we
noted earlier, however, the district court reasonably
found that Mr. Busara was the one who actually caused
Akhtar’s death. In light of this fact and the court’s observa-
tion that Mr. Busara continued to lie about his role in
the crime, we do not believe that the district court
abused its discretion in deciding that Mr. Busara deserved
a longer sentence than Singh.
Conclusion
For the foregoing reasons, Mr. Busara’s sentence is
affirmed.
A FFIRMED
12-30-08