UNITED STATES of America, Plaintiff-Appellee, v. Borhan Y. MUSLEH, a/k/a Burhan Musleh, a/k/a Tony Monstella, a/k/a Tony Musleh, a/k/a Tony Mosleh, a/k/a Burhan Y. Mushel, Defendant-Appellant.
No. 03-4886.
United States Court of Appeals, Fourth Circuit.
Argued June 2, 2004. Decided Aug. 20, 2004.
354 F.3d 850
DISMISSED
ARGUED: Paul Geoffrey Gill, Assistant Federal Public Defender, Office of the Federal Public Defender, Richmond, Virginia, for Appellant. Laura C. Marshall, Assistant United States Attorney, Office of the United States Attorney, Richmond, Virginia, for Appellee. ON BRIEF:
Before WIDENER and WILLIAMS, Circuit Judges, and ROBERT R. BEEZER, Senior Circuit Judge of the United States Court of Appeals for the Ninth Circuit, sitting by designation.
PER CURIAM.
When applying for a social security number (SSN) on May 22, 1998, under a different name, Borhan Musleh falsely informed the Commissioner of Social Security that he had not previously been issued a SSN. In fact, Musleh had obtained a SSN thirteen years earlier. As a result of Musleh‘s misrepresentation, the Commissioner issued Musleh a second SSN. Because the Virginia Division of Child Support Enforcement (DSCE) used Musleh‘s original SSN to track his income, and Musleh had his substantial earnings reported under the second SSN, Musleh was able to avoid an increase in his child support obligation. After Musleh‘s use of multiple SSNs came to the attention of federal authorities, an investigation ensued and a federal grand jury returned a four-count indictment against Musleh. Following a one-day bench trial, the district court found Musleh guilty on all counts. At sentencing, the district court, sua sponte, ordered that restitution be paid to Musleh‘s daughter and ex-wife and, on the Government‘s motion, upwardly departed from the sentencing range prescribed by the U.S. Sentencing Guidelines Manual (2002). Musleh
I.
A.
The evidence adduced at trial showed the following. Musleh came to the United States in 1984 with a Jordanian passport, and on April 23, 1985, he applied for his first SSN. In the application for that SSN, he listed his name as “Borhan Yousuf Mosleh” and his mother‘s name as “Amineh Mosleh.” (J.A. at 42-43.) The Commissioner duly issued SSN xxx-xx-1835 (the 1835 SSN)1 to the defendant as “Borhan Mosleh.” On August 16, 1988, Musleh applied for a replacement social security card, and changed the spelling of his last name to “Musleh.” The application included the questions, “Has a Social Security number card ever been requested for the [applicant]?” and “Was a card received for the [applicant]?” (J.A. at 568.) Musleh answered “Yes” to both questions and received a duplicate card bearing the 1835 SSN. (J.A. at 568.) Musleh later used this SSN to obtain a driver‘s license from the Virginia Department of Motor Vehicles (DMV). This license had an expiration date of July 31, 2001.
On May 22, 1998, Musleh again applied for a SSN. The application included the question, “Has the applicant or anyone acting on his/her behalf ever filed for or received a Social Security Number Card before?” (J.A. at 572.) Musleh responded “No.” (J.A. at 572.) On the application, Musleh also changed the spelling of his first and last names to “Burhan” and “Musleh” respectively, and he changed his mother‘s maiden name from “Mosleh” to “Monstella.” (J.A. at 572.) Because Musleh had altered the spelling of his name and claimed that he never had been issued a SSN, the Commissioner had no reason to deny the application and issued Musleh SSN xxx-xx-2057 (the 2057 SSN).
Musleh then used the 2057 SSN to apply for an original driver‘s license, notwithstanding the fact that his 1835 SSN driver‘s license was still valid. The DMV issued a driver‘s license under the name, “Burhan Musleh,” using the 2057 SSN. Musleh did not surrender his 1835 driver‘s license. When Musleh renewed the 2057 license on June 29, 2001, as the result of a change in address, he returned the original 2057 license issued to him on June 9, 1998.
After receiving the 2057 SSN, Musleh used both the 1835 and 2057 SSNs. For example, Musleh applied for United States citizenship in October 1997 using the 1835 SSN. During an interview with an immigration official on June 9, 2000, Musleh not only failed to inform the examiner of the 2057 SSN, he also averred to the examiner and on the application, under penalty of perjury, that the 1835 SSN was accurate and that he had not knowingly committed a crime for which he had not been arrested. Musleh also applied for a U.S. passport on January 19, 2001, using the 1835 SSN. (J.A. at 660-62.) During the same time period, Musleh used the 2057 SSN in applications for credit and financing and when he created a counterfeit academic transcript from George Mason University.
During early 1999, Musleh‘s ex-wife, Melinda Campos, petitioned the Virginia state court to increase Musleh‘s child-support payment in support of their daughter, N.M.2 In March 1999, DCSE notified Musleh that his support obligation would increase to approximately $600 per month from $199 based on his earnings from Aerotek/Maxim during 1998 as reported under the 1835 SSN. In contesting this proposed increase, Musleh lied to DCSE officials, telling them he was no longer employed. Later, at a support review hearing in October 1999, Musleh falsely claimed that he was earning only $1,781.73 per month, much less than the amount he actually earned each month from Quantum. DCSE verified the claimed assets of a non-custodial parent by checking the income reported under that parent‘s SSN. Thus, because DCSE was using the 1835 SSN to verify Musleh‘s income, DCSE was unaware of Musleh‘s income from Quantum that was reported under the 2057 SSN. Therefore, the court only increased Musleh‘s support obligation, effective as of August 1999, to roughly $228 per month.
B.
In January 2003, federal authorities received information that Musleh was using multiple SSNs and commenced an investigation. As a result of the investigation, a grand jury sitting in the Eastern District of Virginia returned a four-count indictment against Musleh charging him with furnishing false information to the Commissioner of Social Security with the intent to deceive in violation of
In the pre-sentence investigation report (PSR) prepared for Musleh‘s sentencing, the probation officer applied § 2B1.1 of the U.S. Sentencing Guidelines, the section governing a broad range of property and fraud-related offenses, to determine Musleh‘s offense level. See U.S. Sentencing Guidelines Manual, § 2B1.1 (2002). Under U.S.S.G. § 2B1.1, Musleh‘s base offense level for each offense of conviction was 6 under subsection (a), and he was subject to no increases in his offense level due to specific offense characteristics under subsection (b), or due to victim-related, role, or obstruction adjustments under Chapter 3 of the Guidelines. All of the offenses were grouped pursuant to U.S.S.G. § 3D1.2(b), yielding a combined adjusted offense level of 6, which, when
The United States did not object to the probation officer‘s calculation of Musleh‘s sentence under the Guidelines or to the probation officer‘s finding that restitution was not appropriate, but it did move for a six-level upward departure. The Government‘s upward departure motion was based on two components. First, the Government noted that, although the probation officer correctly found that U.S.S.G. § 2B1.1(b) did not allow for the attribution of any financial loss related to Musleh‘s conduct, the Guidelines did not take into account the fact that Musleh‘s acquisition of the second SSN under false pre-tenses facilitated his evasion of child-support in the amount of roughly $18,000. Thus, argued the Government, a four-level upward departure---i.e., an increase to the level that would have applied had the $18,000 been taken into account under U.S.S.G. § 2B1.1(b)(1)(C)---was appropriate. Second, the Government noted that Musleh had lied to federal officials in applying for U.S. citizenship by failing to disclose that he had acquired a second SSN and that he had committed criminal acts (i.e., his false statements to the Commissioner of Social Security in acquiring the 2057 SSN) for which he had not been arrested, and that this uncharged conduct should be taken into consideration under U.S.S.G. § 1B1.4, which allows sentencing courts to consider the defendant‘s conduct “without limitation” in determining whether departure is appropriate. In order to account for this aspect of Musleh‘s conduct, the Government argued, the district court should increase Musleh‘s offense level by an additional two levels to a total offense level of 12---i.e., the level that would apply under U.S.S.G. § 2J1.3 for crimes of perjury.
At the sentencing hearing, the district court granted the Government‘s motion for upward departure. After the upward departure, Musleh‘s guideline range was 10-16 months, and the district court sentenced Musleh to 16 months of imprisonment. (J.A. at 334.) In addition, the district court, sua sponte and without objection from Musleh, imposed restitution, explaining as follows:
I have considered his net worth and liquid assets and find that he is not capable of paying a fine.
Pursuant to section 3663 of Title 18, I find that there are identifiable victims requiring restitution. The court further finds that the defendant‘s ex-wife and daughter are victims, as that term is defined in section 3663, and were directly harmed by the defendant‘s criminal conduct in the course of this scheme.
The court orders restitution to Melinda Campos for [N.M.] in the amount of $18,326. The restitution is due and payable immediately and during the period of incarceration....
(J.A. at 336 (emphasis added).) The district court then immediately recessed.
Musleh filed a timely notice of appeal, challenging the district court‘s admission of certain evidence at trial, the decision to depart upwardly, and the decision to impose restitution.
A.
Musleh first contends that the district court abused its discretion in admitting evidence at his trial. For the reasons stated below, we disagree.
According to Musleh, the district court should have excluded evidence that Musleh used a different name with employers and friends because such evidence was intended to portray Musleh as having a deceitful character, and thus, was improper character evidence under Fed.R.Evid. 404(b). The district court erred further, Musleh argues, in admitting evidence that Musleh used the two different SSNs to keep his child support obligations artificially low because such evidence was “irrelevant, unduly prejudicial, and otherwise inadmissible. It was too remote in time and otherwise not so related to the charged conduct as to justify its admission....” (Appellant‘s Br. at 20.) Musleh also argues that the district court committed plain error in admitting evidence of Musleh‘s general credit histories under different SSNs.3 Musleh contends that had the erroneously admitted evidence properly been excluded, there would have been insufficient evidence to support his conviction on each of the four counts, thus justifying a judgment of acquittal or the grant of a new trial.
We review a district court‘s admission of evidence for abuse of discretion. United States v. Queen, 132 F.3d 991, 995 (4th Cir.1997). As a general matter, all relevant evidence is admissible. Fed. R.Evid. 402. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed.R.Evid. 401. The evidence about which Musleh now complains satisfies this standard. Intent was an element of each of the four charges---Counts One, Three and Four required a showing of “intent to deceive,” and Count Two required a showing that Musleh acted knowingly and willfully---and thus was a “fact that is of consequence” to the resolution of the case. Fed.R.Evid. 401. The evidence regarding Musleh‘s extensive use of the two SSNs (for reporting earnings, in obtaining multiple driver‘s licenses, and in obtaining credit) and multiple identities certainly made it more probable that he acted with the requisite intent as opposed to making an innocent mistake. Accordingly, this evidence was relevant.
Notwithstanding the relevance of the evidence, Musleh contends that Rules 403 and 404(b) require its exclusion. Under Rule 403 relevant evidence “may be excluded if its probative value is substantially outweighed by danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Fed.R.Evid. 403. We have held, however, that this rule of exclusion is relaxed significantly in the context of a bench trial:
[I]n the context of a bench trial, evidence should not be excluded under 403 on the ground that it is unfairly prejudicial.... Rule 403 was designed to keep evidence not germane to any issue outside the purview of the jury‘s consideration. For a bench trial, we are confident that the district court can hear relevant evidence, weigh its probative value and reject any improper inferences.
Musleh also contends that the evidence violated the prohibition against “prior bad act” evidence contained in Rule 404(b). Under Rule 404(b),
[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, ... intent, ... or absence of mistake or accident,....
Thus, “[e]vidence of prior bad actions is admissible under Rule 404(b) if the evidence is (1) relevant to an issue other than the general character of the defendant; (2) necessary to prove an element of the charged offense; and (3) reliable.” United States v. Hodge, 354 F.3d 305, 312 (4th Cir.2004). As explained above, the evidence here was relevant to Musleh‘s intent, a required element of all of the charged offenses, and Musleh does not contend that the evidence was anything less than reliable. Moreover, as with Rule 403, we accord district courts greater latitude at bench trials in applying Rule 404(b). See United States v. Hassanzadeh, 271 F.3d 574, 578 (4th Cir.2001) (holding that admission of prior conviction evidence in a bench trial did not violate Rule 404(b) and noting, “Moreover, we have confidence that at the bench trial, the experienced district judge was able to separate the emotional impact from the probative value of this potentially prejudicial evidence.“).
The evidence about which Musleh complains was thus relevant and not subject to exclusion under Rule 403 or Rule 404(b). The district court, therefore, did not abuse its discretion in admitting it.
B.
We next consider Musleh‘s challenge to the district court‘s grant of the Government‘s motion for a six-level upward departure.4 We review a district court‘s factual determinations made in connection with sentencing for clear error, and its ultimate decision to depart de novo. United States v. Stockton, 349 F.3d 755, 764 (4th Cir.2003). We review the extent of a district court‘s departure for abuse of discretion. United States v. Gary, 18 F.3d 1123, 1127 (4th Cir.1994).
A sentencing court may depart from the sentence ranges prescribed by the Sentencing Guidelines whenever it “finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission.”
Once a sentencing court determines that departure is appropriate, it can depart only to an extent that is both reasonable under the circumstances,
Here, the district court‘s upward departure consisted of two components-a four-level increase to account for evaded child support payments, and a two-level increase to account for false statements that Musleh made in connection with his application for citizenship-uncharged conduct that was a violation of
Section 5K2.9 of the Guidelines encourages departure to account for Musleh‘s evasion of child support. Section
In determining the extent of the upward departure, the district court performed a rough calculation of the arrearage in child-support payments, determining that it was $18,324, and then increased the offense level in accordance with U.S.S.G. § 2B1.1(b)(1)(C), the guideline that applies for offenses involving the willful failure to pay child support. See U.S.S.G. § 2J1.1, comment. (n.2). Under U.S.S.G. § 2B1.1(b)(1)(C), a loss amount between $10,000 and $30,000 yields an increase of four levels. On appeal, Musleh argues that the $18,324 figure is erroneous because it did not take into account factors that Virginia courts consider when calculating child-support arrearages, such as the income of the custodial parent during the relevant time period or the defendant‘s other child support obligations. See
As to the second component of the upward departure, we have held that, in accordance with U.S.S.G. § 1B1.4, uncharged conduct, although an “unmentioned” factor, may be considered in determining whether to depart. United States v. Barber, 119 F.3d 276, 279-82 (4th Cir.1997). Such departures are appropriate where the heartland of the offense of conviction does not encompass the uncharged conduct. Id. at 282. Here, Musleh‘s false statements to the INS in connection with
In determining the extent of its departure, the district court analogized the uncharged violation of
We find no abuse of discretion in the method by which the district court determined the extent of departure. As a preliminary matter, we note that, by analogizing Musleh‘s uncharged criminal conduct to perjury and referencing the offense level applicable under the perjury guideline, the district court provided a sufficiently principled explanation for its decision to depart an additional two levels. See Terry, 142 F.3d at 707 (instructing that a sentencing court “must set forth some form of principled justification for its departure determination.“) That is, the district court did not determine the extent of the departure in a manner that was wholly untethered from the Guidelines and thus facially unacceptable. See, e.g., Gary, 18 F.3d at 1131 (reversing upward departure where it appeared that “the district court simply decided to double [the defendant]‘s base offense level for the sake of doubling it“); Terry, 142 F.3d at 707 n. 6 (rejecting as a method of departure based on the defendant‘s reckless driving the district court‘s decision to increase the offense level by one for each mile the defendant traveled while driving recklessly).
Nor was the extent of the departure unreasonable. Assuming, without deciding, that Musleh is correct in his contention that U.S.S.G. § 2J1.3 would not apply to a violation of
In sum, the district court‘s decision to depart upwardly was justified by the peculiar facts of this case, and the extent of the departure was reasonable and consistent with the rationale and methodology of the Guidelines.
C.
We next consider Musleh‘s argument that the district court‘s restitution order was improper. Before turning to the legal analysis on this issue, we must determine the appropriate standard of review. Normally, when a criminal defendant fails to preserve an issue through a timely objection, we review the issue only for plain error. Fed.R.Crim.P. 52(b). To establish plain error, an appellant must demonstrate that an error occurred, that the error was plain, and that the error affected his substantial rights. Even if [the appellant] can satis-fy these requirements, correction of the error remains within our discretion, which we should not exercise unless the error seriously affects the fairness, integrity or public reputation of judicial proceedings. United States v. Promise, 255 F.3d 150, 154 (4th Cir.2001) (en banc) (citation, alterations, and internal quotation marks omitted). The Government argues that we should review the district court‘s restitution order for plain error because Musleh did not object to restitution, either at the sentencing hearing or through a timely post-hearing motion under Fed.R.Crim.P. 35(a).9 As Musleh notes, however, the Government‘s position fails to account for the fact that the first notice Musleh received that restitution might be imposed came as the district court sua sponte imposed restitution---the Government did not request restitution, the PSR specifically stated that there were no restitution issues, and the district court did not inform the parties that it independently was considering restitution. Under such circumstances, Musleh argues, the issue should be reviewed under the abuse of discretion standard that normally governs restitution questions. See United States v. Vinyard, 266 F.3d 320, 333 (4th Cir.2001) (applying abuse of discretion standard to restitution question). Whether a post-hearing motion under Rule 35(a) is necessary to preserve an issue for appeal under these circumstances is an issue we need not resolve, however, because the district court‘s imposition of restitution without providing no-
The district court committed two serious procedural errors in imposing restitution. First, the district court‘s no-notice imposition of restitution contravened the requirements of
Second, and perhaps as a result of its failure to notify the parties that it was considering discretionary restitution under
This court has repeatedly held that in order to ensure effective appellate re-
United States v. Blake, 81 F.3d 498, 505 (4th Cir.1996) (citations omitted). The district court made none of these findings with respect to the question of restitution, and because the probation officer did not consider restitution an option, no such findings are contained in the PSR. On remand, the district court must make these required findings.
In light of these considerations, we vacate Musleh‘s sentence insofar as it orders restitution be paid to Melinda Campos and N.M. and remand the case to allow the district court to consider the restitution question after hearing argument from the parties and making the necessary factual findings.11
III.
For the foregoing reasons, we affirm Musleh‘s conviction and the district court‘s upward departure decision. We vacate the judgment insofar as it orders Musleh to pay restitution to Melinda Campos and N.M. and remand that issue for further proceedings consistent with this opinion.12
AFFIRMED IN PART, VACATED IN PART, AND REMANDED WITH INSTRUCTIONS
Notes
(a) Whoever knowingly makes any false statement under oath, in any case, proceeding, or matter relating to, or under, or by virtue of any law of the United States relating to naturalization, citizenship, or registry of aliens; or
(d) Whoever knowingly makes any false certificate, acknowledgment or statement concerning the appearance before him or the taking of an oath or affirmation or the signature, attestation or execution by any person with respect to any application, declaration, petition, affidavit, deposition, certificate of naturalization, certificate of citizenship or other paper or writing required or authorized by the laws relating to immigration, naturalization, citizenship, or registry of aliens; ...
Shall be fined under this title or imprisoned not more than five years, or both.