United States v. Worku

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS September 1, 2015
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v. No. 14–1218
KEFELEGNE ALEMU WORKU,
a/k/a Habteab Berhe Temanu, a/k/a
Habteab B. Temanu, a/k/a TUFA,
a/k/a Kefelegn Alemu,
Defendant – Appellant.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:12-CR-00346-JLK-1)
_________________________________
Jessica E. Yates (Bethany A. Gorlin, with her on the briefs) Snell &
Wilmer, L.L.P., Denver, Colorado, for Defendant–Appellant.
J. Bishop Grewell, Assistant U.S. Attorney (John F. Walsh, United States
Attorney, with him on the brief) Office of the United States Attorney,
Denver, Colorado, for Plaintiff–Appellee.
_________________________________
Before MATHESON, BACHARACH, and MORITZ, Circuit Judges.
_________________________________
BACHARACH, Circuit Judge.
_________________________________
Mr. Kefelegne Alemu Worku is an Ethiopian man who entered the
United States after assuming the identity of an Eritrean man, Mr. Habteab
Berhe Temanu. Using Mr. Berhe’s identity, Mr. Worku lived in the Denver
area for years and eventually became a U.S. citizen.
Immigration authorities learned that Mr. Worku was using a false
identity and suspected that he had tortured Ethiopian prisoners in the
1970s. After an investigation and trial, Mr. Worku was convicted of three
crimes:
1. unlawful procurement of citizenship or naturalization,
2. fraud and misuse of visas, permits, and other documents, and
3. aggravated identity theft.
The court sentenced Mr. Worku to 22 years, relying in part on a finding
that he had committed these crimes to conceal violations of human rights
in Ethiopia.
On appeal, Mr. Worku makes four contentions:
1. The immigration-related convictions violated the Double
Jeopardy Clause.
2. The conviction for aggravated identify theft was improper
because Mr. Worku had permission to use the identity of Mr.
Berhe.
3. The sentence was procedurally unreasonable because (1) there
was no evidence that Mr. Worku had come to the United States
to conceal violations of human rights and (2) the witnesses
identifying him as an Ethiopian torturer had done so because of
improperly suggestive photo arrays.
4. The sentence was substantively unreasonable.
We reject these challenges and affirm.
2
I. Challenges to the Conviction
In the first two contentions, Mr. Worku attacks his conviction for the
first time on appeal. Because these contentions were not raised in district
court, we confine our review to the plain-error standard. United States v.
Burns, 775 F.3d 1221, 1223 (10th Cir. 2014). To establish plain error,
Mr. Worku must show an error that is plain, affects his substantial rights,
and seriously affects the fairness, integrity, or public reputation of the
judicial proceedings. Id. Applying this standard of review, we reject
Mr. Worku’s challenges to his conviction.
A. Double Jeopardy
Mr. Worku argues that his conviction under Counts 1 and 3 violated
the Double Jeopardy Clause. Count 1 was based on 18 U.S.C. § 1425(a)
and (b), and Count 3 was based on 18 U.S.C. § 1546(a). These statutes
criminalize the fraudulent use of immigration or naturalization documents.
18 U.S.C. § 1425(a), (b) (2006); 18 U.S.C. § 1546(a) (2006).
We must consider these statutes against the backdrop of the Double
Jeopardy Clause, which protects a defendant from being punished multiple
times for the same offense. United States v. Benoit, 713 F.3d 1, 12 (10th
Cir. 2013). Mr. Worku’s conviction under Counts 1 and 3 would have
violated the Double Jeopardy Clause if
 the conviction under Counts 1 and 3 was based on the same
conduct and
3
 one of the statutes of conviction was a lesser-included offense
of the other.
United States v. Morehead, 959 F.2d 1489, 1506-07 (10th Cir. 1992). For
the sake of argument, we can assume that Mr. Worku has satisfied the first
three prongs of the plain-error test.
But even with these assumptions, we must affirm the conviction on
Counts 1 and 3 because Mr. Worku has not satisfied the fourth prong of the
plain-error standard. Under this prong, we must affirm when evidence of
guilt “on the challenged point is ‘overwhelming’ and ‘essentially
uncontroverted.’” United States v. Edeza, 359 F.3d 1246, 1251 (10th Cir.
2004). In our view, the evidence of guilt would have remained
overwhelming and essentially uncontroverted even if the charges in Counts
1 and 3 had been more clearly identified with different acts.
Mr. Worku argues that his conviction under Counts 1 and 3
constituted a double-jeopardy violation in part because the two counts were
based on the same conduct: misrepresentations in his form for
naturalization (N-400 form). But the government contends that Counts 1
and 3 related to different conduct: Count 1 related to misrepresentations in
Mr. Worku’s form for naturalization (N-400 form), and Count 3 related to
misrepresentations in Mr. Worku’s application for permanent residence (I-
485 form).
4
According to Mr. Worku, this distinction was blurred in the jury
instructions. The instruction for Count 1 referred to lies in Mr. Worku’s
form for naturalization (N-400 form). But the jury instruction for Count 3
did not refer to any specific documents. Instead, the instruction referred to
conduct occurring over a time span that covered both Mr. Worku’s form for
naturalization (N-400 form) and his application for permanent residence (I-
485 form).
For the sake of argument, we can assume that the jury relied on Mr.
Worku’s form for naturalization (N-400 form) as the basis for finding Mr.
Worku guilty under both counts (1 and 3). But even then, the government
could easily have cured the alleged error by narrowing the charge in Count
3 to exclude the form for naturalization (N-400 form). See United States v.
Goode, 483 F.3d 676, 682 (10th Cir. 2007) (holding that the fourth prong
was not satisfied because the alleged error “could have been quickly cured
by amending the instruction” if the defendant had raised the issue at trial).
And we can reasonably expect that the government would have
modified the charge to avoid the alleged double-jeopardy violation. In
closing argument, the government linked Count 3 with the form for
permanent residence, indicating an intent to match the counts to different
conduct. See, e.g., R., vol. VI, at 377 (“Count 3 is fraud and misuse of
visa, permits and other documents. So what’s the document? The lawful
5
permanent resident card.”); R. vol. V, at 405-06 (discussing the contents of
the form for permanent residence in connection with Count 3).
If the jury instruction for Count 3 had been narrowed to false
statements in the form for permanent residence, we know that the jury
would have found Mr. Worku guilty of lying in two different documents,
constituting two separate acts. In both forms, the defendant stated under
oath that his name was “Habteab Berhu Temanu.” But the defendant never
denied that he had used a false name on both forms.
Without any dispute on this fact, the jury found that Mr. Worku had
used a false name. This finding is spelled out in the special interrogatories
for Count 1, where the jury found that “the government [had] proved
beyond a reasonable doubt that [Mr. Worku] falsely identified himself as
‘Habteab Berhe Temanu’” in the naturalization form (N-400). R., vol. I, at
327. Mr. Worku made the same representation in his form for permanent
residence (I-485 form). Thus, the jury’s finding of a lie in the
naturalization form (N-400 form) would have required a finding that
Mr. Worku had lied on the form for permanent residence (I-485 form). And
a finding that Mr. Worku had lied on the I-485 form would have required
the jury to find guilt on Count 3. See R., vol. I, at 255 (the district court’s
instruction to the jury that 18 U.S.C. § 1546(a) “prohibits someone from
knowingly possessing or using a visa or other document required as
6
evidence of an authorized stay or employment in the United States that is
falsely made or that was procured by means of a false statement”).
Under these circumstances, we conclude that the evidence of guilt
would have remained overwhelming and essentially uncontroverted even if
the two counts had more clearly identified different acts. Thus, Mr. Worku
has failed to show that the alleged double-jeopardy violation seriously
affected the fairness, integrity, or public reputation of the proceedings,
leading us to affirm based on the fourth prong of the plain-error standard.
See United States v. Sinks, 473 F.3d 1315, 1320-21 (10th Cir. 2007). 1
B. Lawful Authority to Assume Another’s Identity
Mr. Worku was also convicted of aggravated identity theft under
18 U.S.C. § 1028A(a)(1). The subsection provides:
(1) In general.--Whoever, during and in relation to any felony
violation enumerated in subsection (c), knowingly transfers,
possesses, or uses, without lawful authority, a means of
1
Sinks involved an analogous situation. There the defendant was
charged with two counts: (1) possession of stolen explosive materials, and
(2) being a felon in possession of explosives. Sinks, 473 F.3d at 1318. Both
charges required a jury finding that the explosives had traveled in
interstate commerce. Id. at 1321. On the second count, the jury found that
the explosives had traveled in interstate commerce. Id. On the first count,
however, the government did not allege that the explosives had traveled in
interstate commerce and the jury did not make a finding on this element.
Id. at 1320-21. The government conceded that the omission constituted an
obvious error with regard to the first count. Id. at 1321. But our court
rejected the defendant’s challenge based on the fourth prong of the plain-
error standard, reasoning that the jury had already found (in connection
with Count Two) that the explosives had traveled in interstate commerce
and the evidence on that element was essentially uncontroverted. Id.
7
identification of another person shall, in addition to the
punishment provided for such felony, be sentenced to a term of
imprisonment of 2 years.
18 U.S.C. § 1028A(a)(1) (2006) (emphasis added). Mr. Worku obtained
permission to use Mr. Berhe’s identity from his children. As a result,
Mr. Worku argues that he had “lawful authority” to use Mr. Berhe’s
identity. We reject the claim under the plain-error standard because the
alleged error would not have been obvious.
Mr. Berhe’s children approached Mr. Worku, asking him to tell
federal authorities that he was their father. Their actual father had
developed dementia, and the children feared he could not complete the
interview requirements for admission into the United States.
But Mr. Worku has not presented any cases suggesting that the
children could lawfully allow another person to use their father’s identity.
Rather, Mr. Worku has provided cases indicating at most that
§ 1028A(a)(i) is not violated when someone allows use of his or her own
identity. These cases are inapplicable, for Mr. Worku does not allege
consent from the person whose identity was used: Mr. Berhe. Thus, even if
the district court had erred, the error would not have been obvious. 2 In
2
Mr. Worku also challenges precedent supporting the view that a
conviction under § 1028A can be upheld even when the victim gives
consent. According to Mr. Worku, this precedent fails to distinguish
between identity theft (§ 1028A) and identity fraud (§ 1028). Because the
record does not suggest consent by the victim (Mr. Berhe), we need not
address Mr. Worku’s argument.
8
these circumstances, we conclude that Mr. Worku has not established plain
error.
II. Challenges to the Sentence
Mr. Worku raises procedural and substantive challenges to his 22-
year sentence. We reject these challenges.
A. Procedural Reasonableness
At sentencing, the court determined that Mr. Worku had committed
the underlying crimes to avoid punishment for the violation of human
rights in Ethiopia. This determination affected the judge’s decision to
sentence Mr. Worku above the guideline range.
Mr. Worku argues that his sentence is procedurally unreasonable
because the record does not show that he
 immigrated to conceal his involvement in torture or
 was the notorious torturer.
We review challenges to the procedural reasonableness of sentences for an
abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007). Because
the district court did not abuse its discretion in making these findings, we
reject Mr. Worku’s arguments.
1. Immigrating to Conceal Human Rights Violations
Mr. Worku argues that the record does not support the sentencing
court’s finding that he immigrated to the United States to conceal
involvement in torture. The sentence was procedurally unreasonable if the
9
district court had relied on clearly erroneous facts. See United States v.
Haley, 529 F.3d 1308, 1311 (10th Cir. 2008). In applying the clear-error
standard, we can reverse only if the finding was “‘simply not plausible or
permissible in light of the entire record on appeal.’” United States v.
Garcia, 635 F.3d 472, 478 (10th Cir. 2011) (quoting United States v.
McClatchey, 316 F.3d 1122, 1128 (10th Cir. 2003)).
The record includes three facts supporting the district court’s
conclusion:
1. The jury found beyond a reasonable doubt that Mr. Worku had
(1) persecuted others “because of race, religion, national
origin, membership in a particular social group, or political
opinion,” and (2) lied about committing those crimes. R., vol.
I, at 327.
2. Mr. Worku said that he had never been at ease in Kenya
because of “fear that he would be kidnapped and returned to
Ethiopia.” R., vol. II, at 111 (presentence report).
3. The Berhe children hired a broker who stated that Mr. Worku
was to pay part of the broker’s fee. R., vol. V, at 350.
Together, these facts create a plausible inference that Mr. Worku wanted to
come to the United States to avoid punishment for his human rights
violations in Ethiopia. Because this finding is plausible, the district court
did not abuse its discretion in finding that Mr. Worku had committed the
U.S. crimes to conceal his violations of human rights in Ethiopia.
Mr. Worku argues that the evidence more readily supports an
inference that he came to the United States to escape political turmoil.
10
That inference is possible. But under the clear-error standard, we must
affirm when the evidence would support an inference that is either culpable
or innocent. See United States v. Garcia, 635 F.3d 472, 479–80 (10th Cir.
2011) (rejecting the defendant’s inference of innocence on the basis of
ample circumstantial evidence from which the district court could have
inferred guilt).
Urging an innocent inference, Mr. Worku likens his circumstances to
those of the Berhe children. They wanted to come to the United States for a
better way of life. If we would not suspect the Berhe children of trying to
conceal their past, Mr. Worku argues that we should not suspect him of
trying to conceal his past.
But a jury could reasonably have found that Mr. Worku’s
circumstances had differed from those of the Berhe children. If Mr. Worku
had been the notorious torturer in the 1970s, he would have been facing a
death sentence in Ethiopia for genocide. Regardless of whether Mr. Worku
was aware of his Ethiopian death sentence, he admitted that he had never
been “‘at ease’” in Kenya, fearing that he would be kidnapped and returned
to Ethiopia. R., vol. II, at 111 (presentence report). The Berhe children had
neither expressed similar fears nor been convicted of genocide. Thus, the
jury could have distinguished Mr. Worku’s circumstances from those of the
Berhe children.
11
Considering Mr. Worku’s genocide conviction and his kidnapping
fears, the court could reasonably find that Mr. Worku had lied about his
identity on the immigration-related documents to conceal the atrocities
committed in Ethiopia.
2. Identification as the Notorious Torturer: Suggestive Photo
Arrays
Federal agents showed photo arrays to at least six former inmates at
an Ethiopian prison camp, and five identified Mr. Worku as a supervisor
who had tortured inmates. 3 Mr. Worku argues that the photo arrays were
unduly suggestive, resulting in a deprivation of due process. 4
3
The government also presented testimony from Mr. Kinfe Wolday,
who had met Mr. Worku in the 1980s during an interrogation in Ethiopia.
Mr. Worku allegedly bragged to Mr. Wolday about his role at the prison
camp and how he had killed, arrested, and tortured people. Mr. Wolday
could not identify Mr. Worku from the photo array, but identified him at
trial. In imposing the sentence, the district court mentioned Mr. Wolday’s
identification, but relied more heavily on the testimony of the other eye-
witnesses. In this appeal, Mr. Worku does not mention Mr. Wolday’s
testimony.
4
The government contends that this argument is forfeited. Mr. Worku
raised his objections to the use of the photo arrays through a pretrial
motion in limine. The district court denied the motion, concluding that the
identifications did not violate due process. But when the district court
relied on the witness identifications at sentencing, Mr. Worku did not
object. Because Mr. Worku did not challenge use of the identifications at
sentencing, the government argues that Mr. Worku has forfeited his
challenge. We need not resolve this issue because Mr. Worku’s challenge
would fail even if the issue had been preserved.
12
a. Standard of Review
Because the ultimate issue involves the procedural reasonableness of
a sentence, we apply an overarching standard of abuse-of-discretion. 5
Within this overarching standard, we confine our review of the district
court’s factual findings under the clear-error standard and engage in de
novo review of legal determinations. United States v. Ruby, 706 F.3d 1221,
1225 (10th Cir. 2013). We conclude that the district court did not clearly
err by concluding that the photo arrays had not been impermissibly
suggestive. And in conducting de novo review, we conclude that use of the
photo arrays did not violate Mr. Worku’s right to due process.
b. The Due-Process Test
For a due process violation, the photo array must be “so
unnecessarily suggestive that it is ‘conducive to irreparable mistaken
identification.’” Grubbs v. Hannigan, 982 F.2d 1483, 1489–90 (10th Cir.
1993) (quoting Kirby v. Illinois, 406 U.S. 682, 691 (1972)). The use of a
photo array is evaluated under a two-step inquiry:
5
Mr. Worku argues that the overarching standard of review is de novo,
relying on a case involving reversal of a conviction. But here, the
challenge involves the sentence, not the conviction. As a result, we
consider the argument involving the photo arrays as a challenge to the
procedural reasonableness of the sentence. See United States v. Ruby, 706
F.3d 1221, 1225 (10th Cir. 2013) (“Because unreliable hearsay evidence
can result in a sentence based on erroneous facts, we construe Ruby’s
argument as an objection that his sentence was procedurally
unreasonable.”). This type of challenge is reviewable under the abuse-of-
discretion standard. Id.
13
1. Was the photo array impermissibly suggestive?
2. If the array was impermissibly suggestive, was identification
reliable under the totality of the circumstances?
Id.
c. Impermissibly Suggestive
Courts consider three factors to determine whether an array was
impermissibly suggestive:
1. the number of photographs,
2. the details of the photographs, and
3. the manner of presentation by the officers.
United States v. Sanchez, 24 F.3d 1259, 1262 (10th Cir. 1994). We apply
the clear-error standard to findings involving suggestiveness of a photo
array. See United States v. Kamahele, 748 F.3d 984, 1018 (10th Cir. 2014)
(concluding that the district court did not clearly err by discounting facial
irregularities or concluding that the array had been presented in a neutral
manner); United States v. Wiseman, 172 F.3d 1196, 1209–10 (10th Cir.
1999) (characterizing as factual a district court’s conclusion that a photo
array was not overly suggestive).
The number of photographs affects how the other two factors are
evaluated. Id. In this case, four photographic arrays were used, three
containing six photographs and one containing twelve. See Supp. R., vol. I,
at 3, 16–19.
14
i. Six-Photograph Arrays
Mr. Worku alleges the six-photograph arrays suffer from three
problems:
1. There are irregularities between the photographs.
2. The photographs were presented as a composite.
3. The witnesses were not properly admonished.
In six-photograph arrays, significant weight is given to irregularities.
United States v. Wiseman, 172 F.3d 1196, 1209 (10th Cir. 1999), abrogated
on other grounds, Rosemond v. United States, __ U.S. __, 134 S. Ct. 1240
(2014); Sanchez, 24 F.3d at 1262. Mr. Worku identifies three irregularities
in the six-photograph arrays:
 Lighting: Mr. Worku’s picture is the brightest and clearest (the
newest looking) in two of the arrays. And in the third array, his
photo is heavily shadowed and dark compared to the other
photos.
 Facial Hair: There were only two individuals without facial
hair, and only one had hair on his head.
 Clothing: Mr. Worku is the only member of the array wearing
a large hooded winter jacket.
In our view, however, the district court did not clearly err by discounting
these irregularities.
Mr. Worku complains that the lighting in his photograph is different
from the lighting in the other photographs. We agree that in the arrays, the
lighting is slightly different for Mr. Worku’s photograph and some of the
15
other photographs. But all are color photographs and depict Ethiopian men
of similar ages. With these similarities among the men depicted, the court
 had the discretion to conclude that the differences in lighting
would not have suggested which photograph to pick and
 did not clearly err by concluding that no particular individual
stuck out within the array.
See United States v. Bautista, 23 F.3d 726, 731 (2d Cir. 1994) (holding
that the photo array was not overly suggestive even though the defendant’s
photograph was brighter and more close-up than the five other photos).
The same is true of the differences in facial hair and clothing. In
other cases, we have held that differences in facial hair do not render photo
arrays overly suggestive. See United States v. Kamahele, 748 F.3d 984,
1020 (10th Cir. 2014) (“[W]e have held that a difference in facial
hair―even when the suspect was the only one with a beard and one with a
beard and braided hair―did not render the photo array unduly
suggestive.”). And other circuits have held that differences in clothing do
not render a photo array unduly suggestive. Briscoe v. Cnty. of St. Louis,
690 F.3d 1004, 1013 (8th Cir. 2012); United States v. Brennick, 405 F.3d
96, 99 (1st Cir. 2005).
The differences in facial hair and clothing could be downplayed
because of the passage of over 30 years from the sightings to the photo
arrays. Over this period of time, the suspect’s facial hair and clothing
would likely have changed. Thus, in viewing the photos, the victims likely
16
would have focused on the individuals’ faces rather than their facial hair or
clothing. See Harker v. Maryland, 800 F.2d 437, 444 (4th Cir. 1986)
(rejecting a challenge to an identification based on differences in clothing
because “facial features, rather than clothing, appear to have been more
important to the identification in this case”). In these circumstances, the
district court did not clearly err by concluding that Mr. Worku had not
stood out in the photo array.
In addition, Mr. Worku argues the arrays were overly suggestive
because they had been presented as a composite. In rejecting this
argument, the district court determined that there had been “no evidence”
about the greater reliability of sequential presentations. R., vol. V, at 121.
Although the judge recognized that some studies suggest that sequential
presentation enhances reliability, these studies had not been presented.
Thus, the district court’s rejection of this argument did not constitute clear
error.
Mr. Worku also alleges that the officers failed to provide the
witnesses with department-policy admonitions before the witnesses viewed
the arrays. The court reviewed the manner of presentation to the witnesses,
concluding that it was “neither suggestive nor intrusive nor intimidating.”
R., vol. V., at 122. Mr. Worku has not shown a clear error.
In sum, the district court did not clearly err in evaluating the
suggestiveness of the six-photograph arrays.
17
ii. Twelve-Photograph Array
Mr. Worku argues that the same problems plague the twelve-photo
array: irregularities in the photographs, composite presentation, and lack of
admonitions. The alleged problems in the twelve-photograph array are no
more acute than they were in the six-photograph arrays, and we have
already concluded that the alleged problems in the six-photograph arrays
did not create a due process violation. Because there were twice as many
pictures in the twelve-photograph array, this array is even less
problematic. See United States v. Sanchez, 24 F.3d 1259, 1262 (10th Cir.
1994) (reasoning that irregularities have greater impact when there is a
smaller group of photos). Therefore, the district court did not clearly err by
concluding that the twelve-photograph array had not been impermissibly
suggestive.
d. Totality of the Circumstances
Even if the arrays were overly suggestive, the identifications could
violate due process only if the suggestiveness rendered the identifications
unreliable in light of the totality of the circumstances. Neil v. Biggers, 409
U.S. 188, 199–200 (1972). In assessing reliability, courts generally
consider five factors:
1. witnesses’ opportunity to view the suspect when the wrongful
action was committed,
2. witnesses’ degree of attention,
18
3. accuracy of witnesses’ prior description of the suspect,
4. level of certainty demonstrated by the witnesses, and
5. length of time between the wrongful action and the photo array.
Id. Weighing these factors, we apply de novo review on the ultimate issue
(whether a due process violation took place). United States v. Sanchez, 24
F.3d 1259, 1262 (10th Cir. 1994); see Cikora v. Dugger, 840 F.2d 893, 895
(11th Cir. 1988) (“The district court’s ultimate conclusion, taking into
consideration the five factors of the Neil v. Biggers test, that [the
defendant] was not deprived of due process by the admission of the out-of-
court identification, is subject to plenary review as a mixed question of
fact and law.”). But we review the district court’s underlying findings of
fact for clear error. See Sumner v. Mata, 455 U.S. 591, 597–98 (1982)
(evaluating a habeas claim and explaining that the federal appellate court
was required to defer to the factual findings underpinning the state court’s
decision on reliability of the photo array).
The issue involves identification of Mr. Worku by five individuals:
Assayehgen Feleke, Kiflu Ketema, Nesibu Sibhat, Berhan Dargie, and
Abebech Demissie. Four of them recalled seeing Mr. Worku regularly over
lengthy time spans. 6 Mr. Ketema stated that he had seen Mr. Worku 4–5
6
Mr. Worku argues that none of the witnesses had meaningful
opportunities to view the torturer in the Ethiopian prison because of poor
lighting, the witnesses’ physical position, and their physical condition.
Appellant’s Opening Br. at 40 (citing R., vol. V, at 190–91, 203–05, 531–
19
times almost every day for 7–8 months. Mr. Berhan Dargie saw Mr. Worku
nearly every day for 10 months. Mr. Assayehgen Feleke saw Mr. Worku
nearly every day for 6–7 months. Mr. Sibhat saw Mr. Worku practically
every day for 2 months.
Each described seeing Mr. Worku in circumstances that would have
heightened their attention. For example, 4 of the victims testified that they
had been tortured by Mr. Worku.
Ms. Demissie said she had been beaten by Mr. Worku, sometimes
with his rifle, and had seen him
 order others to burn a boy, then shoot him,
 shoot another boy in the stomach as he begged for mercy, and
 make a boy drink the blood of two teenagers Mr. Worku had
killed.
Mr. Dargie testified that he was facing execution at the hands of
Mr. Worku as the two men stood face-to-face, before another guard
intervened.
Mr. Sibhat testified that at the age of fourteen, he had been
victimized by Mr. Worku’s
 beatings with a whip, an electrical wire, and a piece of wood,
and
 almost daily threats of death over a two-month period.
32, 573, 615, 619, 657–58, 754). But a reasonable fact-finder could
conclude that the witnesses had an adequate opportunity to observe the
torturer at the Ethiopian prison.
20
According to Mr. Feleke, he had been ordered by Mr. Worku to strip,
hang upside down, take a beating, and undergo torture by having hot water
poured over his wounds.
The fifth former prisoner, Mr. Ketema, stated that he was able to
avoid physical torture because of the intervention of a guard. But
Mr. Ketema saw Mr. Worku beat other inmates with whips and sticks and
direct guards to sit on the inmates’ feet.
All were certain that Mr. Worku had been the torturer. And multiple
victims added that they were able to identify Mr. Worku with “100%”
certainty, one based on his voice.
Finally, Mr. Worku admitted to the probation officer that in the late
1970s, he had worked in the Ethiopian city where the five individuals were
imprisoned. With this admission, the district court could reasonably infer
that the witness identifications were reliable.
Mr. Worku points to (1) a gap of over 30 years between the prior
sightings and the pretrial identifications and (2) the possible sharing of
information between the witnesses. These arguments do not suggest an
abuse of discretion.
The time gap is extraordinary. Neither our court nor the Supreme
Court has confronted the reliability of identification 30+ years after the
witness’s last viewing of the suspect. But the circumstances supporting
reliability are also extraordinary: The five witnesses saw the torturer
21
virtually every day for many months, and four of the witnesses were
victims of his horrific acts. The district court determined that this
combination of extraordinary circumstances rendered the identifications
reliable. We agree.
According to Mr. Worku, the identifications were unreliable because
the witnesses had likely shared information about Mr. Worku’s current
appearance before viewing the photo arrays. Mr. Worku speculates that
Mr. Ketema likely reported his identification to Mr. Sibhat and that
Mr. Sibhat likely shared information with Mr. Dargie. But there was no
evidence to support this speculation.
Mr. Worku also complains that Mr. Ketema’s identification had been
tainted before he viewed the photo array. The alleged taint involved a
discussion between Mr. Ketema and his brother. The brother did not know
what the torturer looked like, but heard that he had been in a Denver café
called “The Cozy Bar.” Mr. Ketema went there and saw Mr. Worku,
confirming he was the man who had tortured prisoners in Ethiopia over 30
years earlier.
The district court could legitimately have questioned Mr. Ketema’s
identification based on his conversation with his brother. But the district
court could also find the identification reliable based on other factors.
Mr. Ketema testified that he was 100% certain when he saw Mr. Worku’s
photograph. Though decades had passed, Mr. Ketema explained that Mr.
22
Worku was unforgettable because he was “the most feared person” in the
prison camp, causing everyone to shake whenever he entered. R., vol. V, at
215.
But even if Mr. Ketema’s identification were disregarded, we would
still be left with the identifications of Mr. Worku by four other individuals,
all of whom picked Mr. Worku from photo arrays without evidence of any
prior conversations with one another.
In these circumstances, the identifications were reliable
notwithstanding the passage of over 30 years and Mr. Ketema’s prior
conversation with his brother.
B. Substantive Unreasonableness
Mr. Worku argues his sentence is substantively unreasonable because
the duration of the sentence cannot be reconciled with the sentencing
guidelines. We review the sentence for an abuse of discretion. United
States v. Smart, 518 F.3d 800, 805–06 (10th Cir. 2008).
Because Mr. Worku’s last criminal acts took place in 2010, the 2010
version of the guidelines applies. See Peugh v. United States, __ U.S. __,
133 S. Ct. 2072, 2088 (2013). This version did not include any factors for
crimes perpetrated in connection with human rights violations. Under these
guidelines, Mr. Worku’s base-offense level was 8, which resulted in
guideline ranges capped at 3 years (assuming the sentences would run
consecutively).
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The court thought a guideline sentence would have been too short:
[The recommended sentence] is the product of a matrix
established for all violations of the statutes forming the charges
in the Indictment. There are not enough cases involving
convictions of human rights violators entering the United
States with false documents and false statements to form the
basis for a statistically valid array. The Sentencing Commission
has failed to provide a justification or empirical data to support
its recommendation. The incongruity of a Guideline sentence of
zero to six months, followed by a two year mandatory sentence
for a lesser offense, is enough to reject it.
R., vol. I, at 512–13.
Sentencing courts have the discretion to “impose a non-Guidelines
sentence based on a disagreement with the Commission’s views.” Pepper v.
United States, 562 U.S. 476, 501 (2011). But a sentencing court cannot
reject the guidelines for arbitrary and capricious reasons. United States v.
Pinson, 542 F.3d 822, 836 (10th Cir. 2008). In applying this standard of
review to a sentence above the guideline range, we “may consider the
extent of the deviation, but must give due deference to the district court’s
decision that the [18 U.S.C.] § 3553(a) factors, on a whole, justify the
extent of the variance.” Gall v. United States, 552 U.S. 38, 51 (2007).
The district court considered the § 3553(a) factors and reached three
conclusions:
1. Mr. Worku concealed his identity to avoid prosecution for the
violations of human rights in Ethiopia. With this conduct, “the
very integrity of the United States [was] challenged and its
claim to decency in the world community [was] besmirched.”
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2. Mr. Worku was capable of torture and had no neurological or
psychotic disorders, though he had clinical depression.
3. The crime was serious because it corrupted the established
processes of immigration and limited the prospects of truly
deserving immigrants. Deterrence was necessary for the United
States to avoid “becoming a haven for fugitives from justice in
their own countries.”
R., vol. I, at 502–11. Based on these conclusions, the district court
imposed the maximum statutory sentence for each count, explaining:
“Congress has provided maximum sentences for the most egregious
violations of these statutes. If this case is not egregious, I cannot imagine
what case would be.” Id. at 514.
This rationale fell within the district court’s discretion. The court
carefully evaluated the § 3553(a) factors and the policies behind the
Sentencing Commission’s recommendation. Doing so, the court varied
significantly from the guidelines. But a district court can vary from the
guidelines so long as it does not do so arbitrarily and capriciously. See
Pepper v. United States, 562 U.S. 476, 501 (2011). The district court’s
variance was not arbitrary or capricious.
Mr. Worku refers to recent guideline amendments to highlight the
degree of the variance. In 2012, the Sentencing Guidelines were amended
to increase the guideline range for offenders violating immigration laws to
conceal the violation of human rights. U.S. Sentencing Guidelines Manual
25
§ 2L2.2(b)(4) (U.S. Sentencing Comm’n 2012). Under the newly enacted
section, the district court is to apply the greater of two choices:
1. If the defendant committed the offense to conceal “membership
in, or authority over, a military, paramilitary, or police
organization that was involved in a serious human rights
offense during the period in which the defendant was such a
member or had such authority,” the offense level is increased
by 2 levels or to level 13, whichever is greater.
2. If the defendant committed the offense “to conceal the
defendant’s participation in (i) the offense of incitement to
genocide, increase by 6 levels; or (ii) any other serious human
rights offense, increase by 10 levels” or to level 25, whichever
is greater.
U.S. Sentencing Guidelines Manual § 2L2.2(b)(4)(A)–(B) (U.S. Sentencing
Comm’n 2012). Had these amendments been applied, Mr. Worku’s
recommended offense level could have been as high as 25. But Mr.
Worku’s actual sentence corresponded to an even higher offense level (39).
But whether the variance was 14 levels above the range under the
2012 guidelines or 31 levels above the range under the 2010 guidelines, the
district court acted within its discretion. The district court analyzed the
sentence and concluded that the guideline range was too low because of
(1) the horrific nature of Mr. Worku’s violations of human rights in
Ethiopia and (2) his lying about his identity to avoid punishment in
Ethiopia. This conclusion did not entail an abuse of discretion.
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III. Conclusion
Mr. Worku has failed to establish (1) an effect on his substantial
rights from the alleged double-jeopardy violation or (2) a legal flaw in the
conviction for aggravated identity theft. And under our deferential
standards of review, we conclude that the sentence was procedurally and
substantively reasonable. For these reasons, we affirm the conviction and
sentence.
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