In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3605
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
S AMER J. A LJABARI,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 07 CR 50070—Frederick J. Kapala, Judge.
A RGUED S EPTEMBER 8, 2010—D ECIDED N OVEMBER 17, 2010
Before P OSNER, M ANION, and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. Appellant Samer Aljabari
hired two of his friends to burn down a tobacco shop
that competed with his father’s business. A jury con-
victed Aljabari of arson and conspiracy to commit arson.
On appeal, Aljabari argues that the district court should
have suppressed evidence he contends was seized in
a search of his apartment that went beyond the scope
authorized by the search warrant, that the government
2 No. 09-3605
failed to prove that the arson had a sufficient link to
interstate commerce to support a federal prosecution,
and that the district court committed several errors
during sentencing. Finding no error, we affirm in all
respects.
I. Background
In the early hours of October 4, 2007, the Oregon
Smoke Shop, located in the small town of Oregon,
Illinois, burned to the ground. There was no doubt that
the blaze was intentionally set. The fire marshal discov-
ered evidence of accelerant in the building’s remains, and
a surveillance video showed a masked man break into
the shop, pour a flammable liquid on the floor, and set
the building ablaze. As it turned out, the fire was set
by Matt McMeekan and Christopher Taylor, whom
Aljabari had hired to eliminate the primary competitor
to his father’s tobacco store in the same small town.
Unfortunately for Aljabari, a friend of McMeekan and
Taylor told a co-worker about their involvement in the
Smoke Shop’s destruction, and that co-worker con-
tacted the police.
Following an investigation and a search of Aljabari’s
apartment, Aljabari was charged with arson and con-
spiracy to commit arson in violation of 18 U.S.C. § 844(i)
and (n). At trial, Taylor and McMeekan both testified
that they had burned the Smoke Shop at Aljabari’s be-
hest. The jury convicted Aljabari on both counts, and
the district court sentenced him to 110 months in prison.
He now appeals.
No. 09-3605 3
II. The Search Warrant
During the course of their investigation into the Smoke
Shop’s destruction, law enforcement officers obtained a
warrant to search Aljabari’s apartment. There they dis-
covered, among other things, a can of gasoline and a can
of kerosene that Taylor and McMeekan had used to
start the fire at the Smoke Shop. Prior to trial, Aljabari
moved to suppress all evidence seized during the
search, arguing that the warrant suffered from several
flaws. The district court granted the motion in part,
suppressing the evidence it found had been seized
beyond the permitted scope of the search, but the court
did not suppress the gasoline and kerosene cans.
A. Probable Cause
On appeal, Aljabari first argues that the district court
should have found the warrant wholly invalid because
the affidavit submitted in support of the warrant ap-
plication failed to establish probable cause to search
the apartment at all. There clearly was probable cause to
suspect Aljabari’s involvement in the Smoke Shop’s
destruction, but he argues that there was no specific
probable cause to believe that incriminating evidence
related to the fire would likely be found in his apart-
ment. The district court rejected this argument, as do we.
We review the affidavit’s sufficiency de novo to
the extent that it presents purely legal issues of Fourth
Amendment doctrine. See United States v. Olson, 408 F.3d
366, 370 (7th Cir. 2005), quoting United States v. Peck,
4 No. 09-3605
317 F.3d 754, 756 (7th Cir. 2003). In applying those princi-
ples to a given case, however, we “afford great deference
to the decision of the judge issuing the warrant,” United
States v. Bell, 585 F.3d 1045, 1049 (7th Cir. 2009), and we
will uphold a finding of probable cause so long as the
issuing judge had a substantial basis to conclude that
the search was reasonably likely to uncover evidence of
wrongdoing, United States v. Dismuke, 593 F.3d 582, 586
(7th Cir. 2010).
Law enforcement officials have probable cause to
search a particular place where “the known facts and
circumstances are sufficient to warrant a man of rea-
sonable prudence in the belief that contraband or
evidence of a crime will be found.” Ornelas v. United
States, 517 U.S. 690, 696 (1996); see Illinois v. Gates, 462
U.S. 213, 238 (1983) (requiring a “fair probability that
contraband or evidence of a crime will be found in a
particular place”). This common-sense, non-technical
determination is based not on individual facts in isola-
tion but on the totality of the circumstances known at the
time a warrant is requested. See United States v. Brack, 188
F.3d 748, 755 (7th Cir. 1999), citing Gates, 462 U.S. at 238.
Those circumstances need only indicate a reasonable
probability that evidence of crime will be found in a
particular location; neither an absolute certainty nor
even a preponderance of the evidence is necessary. See
Gates, 462 U.S. at 235 (“Finely-tuned standards such as
proof beyond a reasonable doubt or by a preponderance
of the evidence . . . have no place in the magistrate’s
decision.”).
No. 09-3605 5
Drawing on these general principles, we have made
clear that direct evidence linking a crime to a particular
place, while certainly helpful, is not essential to estab-
lish probable cause to search that place. United States v.
Watzman, 486 F.3d 1004, 1008 (7th Cir. 2007) (affirming
denial of motion to suppress; issuing court could reason-
ably conclude recipient of child pornography was likely
to store it in his home); United States v. Anderson, 450 F.3d
294, 303 (7th Cir. 2006) (affirming denial of motion to
suppress; issuing court could reasonably infer that
known drug dealer was likely, though not certain, to
keep contraband in his home); United States v. Lamon, 930
F.2d 1183, 1188 (7th Cir. 1991). The necessity of this rule
is obvious; often, nothing will directly indicate that evi-
dence of a crime will be found in a particular place.
For that reason, an affidavit need only contain facts that,
given the nature of the evidence sought and the crime
alleged, allow for a reasonable inference that there is a
fair probability that evidence will be found in a par-
ticular place. See Anderson, 450 F.3d at 303, quoting
Gates, 462 U.S. at 238; United States v. Reddrick, 90 F.3d
1276, 1281 (7th Cir. 1996).
Applying these principles, the affidavit contained
sufficient information to show a fair probability that
evidence would be found in Aljabari’s apartment. The
affidavit provided ample reason to believe that Aljabari
had participated in the arson. Aljabari had already
asked three people to burn down the Smoke Shop, and
he was in regular contact with McMeekan (who was
believed at the time to be the masked man setting the
fire in the surveillance video) around the time of the
6 No. 09-3605
fire. The evidence sought in the application included gas
cans, flammable liquids, lighters, burnt clothing, surgical
masks, dark clothing, and shoes. It was particularly
reasonable to expect to find surgical masks in Aljabari’s
apartment. A witness claimed to have taken Aljabari to
purchase surgical masks about a month before the fire.
Nothing in the affidavit made it unreasonable to think
that the remaining evidence sought would be found in
Aljabari’s apartment.
Simple common sense supports the inference that one
likely place to find evidence of a crime is the suspect’s
home, at least absent any information indicating to the
contrary. See United States v. Hendrix, 752 F.2d 1226, 1231
(7th Cir. 1985) (observing that it is reasonable to infer
that a criminal will conceal cash in his home rather than
“some less secure and accessible place”); United States v.
Jones, 994 F.2d 1051, 1055-56 (3d Cir. 1993) (“If there is
probable cause to believe that someone committed a
crime, then the likelihood that that person’s residence
contains evidence of the crime increases.”); United States
v. Jackson, 756 F.2d 703, 705 (9th Cir. 1985) (noting
that “normal inferences about where a criminal might
hide [evidence]” are relevant to the probable cause deter-
mination). No such contrary facts are present here—none
of the evidence sought would have been physically im-
possible to store in an apartment, cf. Platteville Area Apart-
ment Ass’n v. City of Platteville, 179 F.3d 574, 579 (7th
Cir. 1999) (“If you are looking for an adult elephant,
searching for it in a chest of drawers is not reasonable.”),
and nothing in the affidavit indicated that Aljabari had
not had an opportunity to place any incriminating evi-
No. 09-3605 7
dence in his apartment. See Jackson, 756 F.2d at 705 (noting
that a suspect’s opportunity to conceal evidence may be
taken into account in determining probable cause to
search).
Insisting that the affidavit needed to contain more
specific information about his apartment to establish
probable cause for the search, Aljabari relies primarily
on the Tenth Circuit’s decision in Poolaw v. Marcantel,
565 F.3d 721, 725-26 (10th Cir. 2009). In that case, the
Poolaws’ residence was searched (unsuccessfully) in
the course of a manhunt for their son-in-law, who was
suspected of murdering a deputy sheriff. The Poolaws
brought a federal civil rights suit alleging that the war-
rant authorizing the search was based on a deficient
affidavit. The Tenth Circuit noted that neither the
suspect nor his wife lived even part-time with the
Poolaws, and nothing in the affidavit suggested that the
suspect “had any contact with the Poolaws’ property
during which time [he] could have hidden evidence” of
his crime. Id. at 731. Because the affidavit relied on
little more than speculation and the Poolaws’ family ties
to the suspect, the Tenth Circuit concluded that the
search warrant was issued without probable cause. Id.
at 732.
Poolaw shows that, the less readily apparent the con-
nection between a criminal suspect and a particular
place, the greater the factual support necessary to estab-
lish probable cause to search that place. To understand
this principle, consider two hypothetical warrant ap-
plications. Both contain sufficient facts to show probable
8 No. 09-3605
cause that Aljabari helped burn the Smoke Shop, and
both request permission to search for burnt clothing as
proof of his involvement in the crime. One application
seeks, as was actually the case here, a warrant to search
Aljabari’s apartment. The other seeks a warrant to search
the home of an acquaintance. Few, if any, additional
facts would be needed to support the warrant to search
Aljabari’s home. After all, what more likely place to find
a suspect’s clothes than his own home? See Hendrix, 752
F.2d at 1231; Jones, 994 F.2d at 1055-56; Jackson, 756 F.2d
at 705. More facts would certainly be needed to explain
why one might expect to find Aljabari’s clothing some-
where else, however. Poolaw dealt with the latter sort of
case, which is why it required a greater showing of fact
than is necessary in circumstances such as those now
before us.1
1
We decline Aljabari’s invitation to follow the Sixth Circuit’s
divided and non-precedential decision in United States v.
Bethal, 245 Fed. Appx. 460 (6th Cir. 2007). In that case, the
court held that, although law enforcement officials had prob-
able cause to arrest the defendant for his involvement in two
drive-by shootings, a state court did not have probable cause
to issue a warrant to search the defendant’s home for guns.
That was because “the affidavit only contained information
connecting the appellant to two shootings; it did not include
any facts connecting him to drugs or to weapons at his home.”
Id. at 468. The panel majority based its conclusion in part on
its belief that, while “drug dealers routinely keep drugs at
home,” individuals accused of murder “often dispose of the
guns utilized in the crime soon afterward.” Id. This reasoning
(continued...)
No. 09-3605 9
When probable cause exists to believe an individual
has committed a crime involving physical evidence, and
when there is no articulable, non-speculative reason to
believe that evidence of that crime was not or could
not have been hidden in that individual’s home, a mag-
istrate will generally be justified in finding probable
cause to search that individual’s home. Cf. United States
v. Ressler, 536 F.2d 208, 213 (7th Cir. 1976) (holding that
affidavit indicating that resident of premises was
engaged in criminal activity was sufficient to establish
probable cause to search those premises). We do not
mean to adopt a broad, per se rule allowing a search of
an individual’s home whenever that individual is sus-
pected of a crime. Nevertheless, our reasoning reflects
both the common-sense realization that evidence of
crime will often be found in a suspect’s home, as well
as the substantial deference we must give to a mag-
istrate’s finding of probable cause to issue a search war-
rant.
1
(...continued)
seems to us misguided. It is always possible that criminals will
dispose of incriminating evidence prior to a search, but that
possibility does not defeat probable cause. The Fourth Amend-
ment does not require certainty that a search will uncover the
sought-after evidence; a fair probability is enough. See, e.g.,
Gates, 462 U.S. at 238. It is no surprise, then, that the Bethal
majority struggled to distinguish many cases, including some
from this court, upholding warrants to search homes based
on probable cause to believe a resident was a drug dealer
engaged in continuing criminal activity.
10 No. 09-3605
B. The Scope of the Search
Aljabari argues next that the district court should
nevertheless have suppressed the gasoline and kerosene
cans because they were found in a place outside the
scope of the search authorized by the warrant. Aljabari’s
“apartment” was actually a converted space in the rear
storage area of his father’s tobacco shop. The warrant
authorized only a search of the apartment itself,
however, not the entire building. The cans were found
in the tobacco shop’s loading dock, and Aljabari
contends that the loading dock was not part of his apart-
ment. After an evidentiary hearing, the district court
denied the request to suppress the gasoline and kerosene
cans, concluding that the loading dock was actually
part of Aljabari’s apartment.
The Fourth Amendment requires that all warrants
“particularly describ[e] the place to be searched, and the
persons or things to be seized.” This requirement helps
enforce the probable cause requirement by limiting
law enforcement officers’ discretion to determine for
themselves the scope of their search. United States v.
Sims, 553 F.3d 580, 582 (7th Cir. 2009). That is not to
say that an officer executing a search warrant has no
discretion, however. The execution of a warrant will
often require some interpretation of the warrant’s terms.
A warrant that seems unambiguous to a magistrate in
the confines of the courthouse may not be so clear
during the execution of the search, as officers encounter
new information not available when they applied for
the warrant. As a result, an executing officer must
No. 09-3605 11
interpret a warrant’s terms reasonably, but the officer
need not give them the narrowest possible reasonable
interpretation. See Hessel v. O’Hearn, 977 F.2d 299, 302
(7th Cir. 1992). If evidence is discovered in an area later
determined to be outside the warrant’s scope, then,
suppression of that evidence is appropriate unless, in
light of the circumstances presented at the time of the
search and the limitations in the warrant, the execution
of the search in that area was reasonable. See Maryland
v. Garrison, 480 U.S. 79, 88 (1987) (upholding search
because officers’ failure to realize that they had
searched an apartment not described in the warrant
was “objectively understandable and reasonable”); United
States v. Mann, 592 F.3d 779, 782 (7th Cir. 2010); United
States v. Funderwhite, 148 F.3d 794, 797 (7th Cir. 1998)
(upholding search of van because law enforcement
officers “had an objectively reasonable, good-faith belief
that the judge had . . . authoriz[ed] such a search”);
Hessel, 977 F.2d at 302 (finding no Fourth Amendment
violation because a reasonable construction of the war-
rant covered all the items seized). Aljabari’s argument
for suppression therefore fails if (1) the loading dock was
in fact part of his apartment; or (2) if the officers could
reasonably (though erroneously) believe it was part of
his apartment. The district court concluded that the
loading dock area actually appeared to be part of the
apartment, and we accept that factual conclusion unless
it was clearly erroneous. See United States v. Bass,
325 F.3d 847, 850 (7th Cir. 2003), citing United States v.
Jackson, 189 F.3d 502, 507 (7th Cir. 1999).
Turning to the record of the suppression hearing, we
find no error. As noted above, Aljabari’s makeshift apart-
12 No. 09-3605
ment was actually a converted storage space, with no
obvious boundaries between his living space and any
space used exclusively by the tobacco shop. In fact, it
seems that little separated the two spaces—one could
access the apartment via the storage area, and vice-
versa, and personal items were found scattered about
a number of the rooms searched. Nothing indicated
that Aljabari had exclusive access to certain rooms,
which might have indicated that only those rooms, but
not others, were part of his personal space. And
although the gasoline and kerosene cans were found in
a part of the building sometimes used as a loading dock
(at the time of the search, the loading dock door was
blocked), that area was apparently also used as a pantry
of sorts. When law enforcement searched the dock, they
discovered a discarded pizza box and a refrigerator
containing food. There was no refrigerator or kitchen
elsewhere in the building, and testimony indicated that
Aljabari used the refrigerator, though infrequently. The
district court did not clearly err in finding that the
loading dock was also being used as part of Aljabari’s
apartment and that the warrant authorized the search of
that area. See Bass, 325 F.3d at 850, quoting United States v.
Tilmon, 19 F.3d 1221, 1224 (7th Cir. 1994).
III. Sufficiency of the Evidence
Aljabari next contends that the evidence presented at
trial was insufficient to show beyond a reasonable doubt
that the Oregon Smoke Shop was used in any activity
affecting interstate commerce, as required for a convic-
No. 09-3605 13
tion under 18 U.S.C. § 844(i) and (n).2 The district court
rejected this argument, noting that the main purpose
of the Smoke Shop was to sell tobacco and tobacco prod-
ucts, and concluding that a reasonable jury could find
the requisite nexus between the building and interstate
commerce. When analyzing a claim of insufficiency of
the evidence, we view the facts in the light most
favorable to the government, making all reasonable
inferences in favor of the jury’s verdict. We will affirm so
long as a reasonable jury could have voted to convict on
the evidence presented. See, e.g., United States v. Jaderany,
221 F.3d 989, 992 (7th Cir. 2000); see also Jackson v. Virginia,
443 U.S. 307, 324 (1979).
The question, then, is what was the government
required to prove? The Supreme Court has construed the
federal arson statute to protect buildings actively used
for a commercial purpose, but not buildings having
“merely a passive, passing, or past connection to com-
merce.” Jones v. United States, 529 U.S. 848, 855 (2000).
Accordingly, we have recognized that all buildings
actively used for a commercial purpose, such as restau-
rants, bars, rental properties, and home offices, “ ‘possess
the requisite nexus with interstate commerce under
§ 844(i).’ ” United States v. Soy, 413 F.3d 594, 603 (7th Cir.
2005), quoting Martin v. United States, 333 F.3d 819, 821
(7th Cir. 2003); see also United States v. Joyner, 201 F.3d 61,
2
The arson statute also applies to buildings actually used in
interstate commerce, but the indictment did not charge that
the Smoke Shop was itself used in interstate commerce.
14 No. 09-3605
79 (2d Cir. 2000) (adopting per se rule that rental proper-
ties, bars, and restaurants have a sufficient nexus to
interstate commerce for purposes of the arson statute).
The building housing the Smoke Shop was actively
used for a commercial purpose. The Smoke Shop was,
after all, engaged in the sale of tobacco products at the
time it was destroyed. It was located in a retail space
rented from that space’s owner. See Russell v. United
States, 471 U.S. 858, 862 (1985) (“[T]he statute only
applies to property that is ‘used’ in an ‘activity’ that
affects commerce. The rental of real estate is unques-
tionably such an activity.”). The government therefore
had no obligation to introduce any additional evidence
to establish the Smoke Shop’s connection to interstate
commerce. See Joyner, 201 F.3d at 79 (“[A]lthough the
government concedes that it failed to introduce any
direct evidence at trial to show that [the restaurant]
obtained food or beverage from out-of-state sources or
catered to interstate patrons, the jury properly con-
cluded that [it] was part of a broader restaurant
market connected to interstate commerce.”). The govern-
ment nevertheless introduced evidence that the Smoke
Shop sold tobacco products and accessories purchased
from out-of-state providers. Under Soy, that was more
than enough evidence to allow a jury to conclude rea-
sonably that the Smoke Shop was used in activity
affecting interstate commerce.3
3
We have little doubt that the vast majority, if not all, of the
tobacco sold in the Smoke Shop was grown outside of Illi-
(continued...)
No. 09-3605 15
Aljabari correctly notes that we have also said, albeit
without citing our opinion in Soy, that “where a property
is actively employed for commercial purposes, the inter-
state commerce element may be met if the connection to
interstate commerce is both continuing and substantial.”
United States v. Craft, 484 F.3d 922, 928 (7th Cir. 2007)
(emphasis added). Craft concerned the arson of a Hells
Angels clubhouse that was used for little more than
monthly meetings and parties. Id. at 929. While club
dues were “used to reimburse club members for trips
across state lines,” id., that was not treated as a use
of the building itself. Cf. Jones, 529 U.S. at 856 (“It
surely is not the common perception that a private,
owner-occupied residence is ‘used’ in the ‘activity’ of
receiving natural gas, a mortgage, or an insurance pol-
icy.”). There was simply no evidence from which
to conclude that the clubhouse itself was actively
employed for commercial purposes. Craft, 484 F.3d at
929. Thus, the facts in Craft presented no opportunity
to depart from the rule adopted in Soy. The observation
3
(...continued)
nois. Illinois may be known for its agriculture, but certainly not
for vast tobacco fields. In 2007, Illinois had only 13 tobacco
farms, occupying all of 827 acres. See U.S. Dep’t of Agricul-
ture, 2007 Census of Agriculture, at 467 (2009), available at http://
www.agcensus.usda.gov/Publications/2007/Full_Report/usv1.
pdf (last visited Nov. 15, 2010). To put these numbers in
perspective, that same year, the United States had more
than 16,000 tobacco farms covering more than 300,000 acres. Id.
at 465.
16 No. 09-3605
in Craft that a “continuing and substantial” connection
to interstate commerce may satisfy the arson statute
simply did not amount to a new requirement to that effect.4
Aljabari’s unduly expansive reading of Craft—under
which even a commercial structure would be protected
by the arson statute only if it had a further “continuing
and substantial” connection to interstate commerce—
would conflict with the Supreme Court’s decisions in
Russell and Jones. In Russell, the Court held that the
arson statute applied to an apartment building consisting
of just two units. 471 U.S. at 862. It would be difficult to say
that the rental of two apartments has a “substantial”
connection to interstate commerce, at least without strip-
ping that word of virtually all meaning. Reading the
statute to cover only commercial buildings having a
“continuing and substantial” connection to interstate
commerce might mean that massive retailers such as Wal-
Mart or Sears would certainly be protected, while a great
many small businesses might fall outside the statute’s
scope. Congress clearly has the power to fill such a sub-
stantial gap in the statute’s coverage. See Russell, 471 U.S.
at 862 (“[T]he local rental of an apartment unit is merely an
element of a much broader commercial market in rental
properties. The congressional power to regulate the class of
activities that constitute the rental market for real estate
4
It is unlikely that panel in Craft intended to reject Soy. The
opinion did not mention Soy and was not circulated to the full
court under Circuit Rule 40(e), as would be appropriate
when overruling circuit precedent.
No. 09-3605 17
includes the power to regulate individual activity within
that class.”). We see nothing in the statutory language
indicating that this gap was meant to be left unfilled.
This conclusion is not undermined by the Supreme
Court’s post-Russell Commerce Clause decisions, as
shown by the Court’s decision in Jones. In that case, the
Court expressly considered the effect of United States v.
Lopez, 514 U.S. 549 (1995), on its previous interpretation
of the arson statute. 529 U.S. at 852. “Yet Jones did not
disturb the Court’s holding in Russell . . . . In fact, the
Court in Jones explicitly affirmed its earlier decision . . . .”
Martin, 333 F.3d at 821.5
IV. Sentencing Issues
Aljabari challenges the district court’s imposition of a
sentence above the applicable Sentencing Guidelines
range. When reviewing a sentence, we first consider
de novo whether the district court committed any proce-
dural error (except, of course, when the alleged error
implicates a factual finding). United States v. Gibbs, 578
F.3d 694, 695 (7th Cir. 2009), citing United States v. Mendoza,
510 F.3d 749, 754 (7th Cir. 2007). Procedural errors
include failing to calculate the proper advisory guide-
lines range, treating the Guidelines as mandatory,
selecting a sentence based on clearly erroneous facts,
5
We need not address here the scope of Jones or the extent of
the required connection to interstate commerce for a non-
commercial building.
18 No. 09-3605
failing to consider the factors set forth in 18 U.S.C.
§ 3553(a), or failing to explain adequately a sentence not
within the guidelines range. United States v. Abbas, 560
F.3d 660, 666 (7th Cir. 2009), quoting Gall v. United States,
552 U.S. 38, 51 (2007). If no procedural errors occurred, we
review the substantive reasonableness of the sentence only
for an abuse of discretion. Id.
The district court sentenced Aljabari to 110 months
of imprisonment. The sentence was 13 months above the
high end of the advisory guidelines range of 78 to 97
months. In explaining its decision to impose an above-
guidelines sentence, the district court noted that the
motive for the arson was to “drive away a competing
business . . . as opposed to something more mundane
as trying to collect insurance proceeds.” The court was
also troubled that the arson “had a direct financial and
psychological impact on [the Smoke Shop’s owner,]
who did not have insurance and had to replace the dam-
aged inventory out of his own pocket.” Of particular
concern to the court was the “significant planning and
scheming” involved in the commission of the offense,
as evidenced by the use of a diversion to draw the
small local police force away from the Smoke Shop at
the time of the fire.6 The district court also indicated that
6
The night of the fire, Aljabari called his friend Brett Barnes to
inform him that an individual was hiding in the bushes near
his home, in the hope that Barnes would call the police and
draw them away from the Smoke Shop while Taylor and
McMeekan set the fire. The first time Aljabari called, however,
(continued...)
No. 09-3605 19
it believed that an increased sentence was necessary
because of Aljabari’s “violent tendencies” and his contin-
ued refusal to accept responsibility for his offense. The
court concluded that the need for “general deterrence”
was strong and that the sentence should “deter people
from going to the extreme measure of trying to burn
down someone else’s business in order to eliminate
competition.”
On appeal, Aljabari first argues three specific, related
procedural errors. First, he asserts that the district court
could not take into account the fact that the Smoke
Shop’s owner had no insurance. Aljabari claims that this
was improper because Section 3A1.1 of the Guidelines
takes a victim’s vulnerability to an offense into account
only if, as he claims was not the case here, the victim
was unusually vulnerable and the defendant knew or
should have known of that vulnerability. See United
States v. Paneras, 222 F.3d 406, 413 (7th Cir. 2000). Next,
Aljabari argues that the court should not have con-
sidered his alleged violent tendencies. Those tendencies
could not be taken into account, Aljabari says, because
the Guidelines already treat arson as a crime of violence.
He also insists that the district court erred by con-
sidering his refusal to admit guilt among the reasons to
6
(...continued)
Barnes saw nobody outside and did not call the police. Aljabari
called again some time later, however, and this time Barnes’
friend Lamar Rains—who was playing video games with
Barnes and had agreed to help provide a distraction—called
the police.
20 No. 09-3605
impose an increased sentence. According to Aljabari, this
was improper because his refusal to admit his guilt had
already been taken into account when he was denied
a downward sentencing adjustment for acceptance of
responsibility.
A common thread runs through each of these
arguments: the belief that, if a certain fact was taken
into account (or could not be taken into account) when
identifying a defendant’s advisory guideline range, a
district court may not give further or additional con-
sideration to that particular fact when determining the
sentence itself. But that is just a roundabout way of
arguing that the Guidelines are mandatory or that a
district court lacks any discretion to disagree with them.
As should be amply clear to all by now, that is not the
law. See United States v. Booker, 543 U.S. 220 (2005) (ex-
cising provision rendering Guidelines mandatory); Kim-
brough v. United States, 552 U.S. 85, 101 (2007) (noting
that courts may vary from Guidelines on the basis of
policy disagreements with the Guidelines themselves);
United States v. Corner, 598 F.3d 411, 415 (7th Cir. 2010)
(en banc) (“So long as a district judge acts reasonably . . .
the Sentencing Commission’s policies are not binding.”). If
a district court believes that the Guidelines’ downward
adjustment for acceptance of responsibility is insufficient
(for a particular defendant or all defendants in general), it
may express this belief by imposing a lower sentence.
By the same logic, if a court believes the downward
adjustment is too generous, the sentence imposed may
reflect that belief instead. Similarly, if the court believes
an upward adjustment under the Guidelines is too
No. 09-3605 21
severe or not severe enough, it may exercise its sound
discretion accordingly. The most that could be said here
is that the district court disagreed with the manner in
which the Guidelines took into account Aljabari’s con-
tinued denial of guilt, the harm suffered by Aljabari’s
victim, and Aljabari’s past violent tendencies. Such dis-
agreement with the Guidelines, reflecting the district
court’s focus on an individual defendant rather than on
the Guidelines’ broad, generic classifications, is not a
procedural error.
Aljabari also argues that the district court abused its
discretion when it imposed a 110-month sentence. He
notes that in 2008 the median sentence imposed in
federal arson cases was 60 months. The median sentence
imposed for a particular crime sheds no light on whether
the district court abused its discretion in this case. After
all, we know next to nothing about the circumstances in
which that median sentence was imposed, and a median
tells us nothing about the full range of reasonable sen-
tences, both more severe and more lenient.
Aljabari also cites our decision in United States v. Willey,
985 F.2d 1342 (7th Cir. 1993), as an example of a similar
case in which a substantially lesser sentence was im-
posed. In that case, Willey pled guilty to hiring three men
to burn down a competitor’s restaurant, and we affirmed
the district court’s decision to sentence him to 42 months
in prison. Id. at 1344-45. Although Aljabari’s and Willey’s
actual crimes may have been similar, the similarities
between their cases end there. Aljabari testified in his
own defense, perjured himself while doing so, and ac-
22 No. 09-3605
cordingly received an upward enhancement for obstruc-
tion of justice. Willey never perjured himself and chose
instead to plead guilty to his crime. Nor did Willey
show signs of violent tendencies or devise a diversion
to draw law enforcement away from the scene of his
crime. The fact that two different district judges drew
different conclusions from different facts over seven-
teen years apart does not indicate an abuse of discre-
tion by either judge. Reasonable judges are entitled to
disagree on the exact sentence appropriate when similar
crimes are committed under different circumstances.
That’s why we apply an abuse of discretion standard, to
weed out only those sentences that cannot be explained
by reasonable disagreements among principled jurists.
Finally, Aljabari offers a cursory argument that the
district court failed to offer “particularized reasoning for
its departure.” It is not entirely clear whether Aljabari
means to allege procedural error or to challenge the
reasonableness of his sentence. Procedurally, a district
court must adequately explain the sentence imposed
and the reason for any sentence outside the advisory
Guidelines range. Nelson v. United States, 129 S. Ct. 890,
891-92 (2009); United States v. Jackson, 547 F.3d 786, 792 (7th
Cir. 2008), quoting Gall, 552 U.S. at 51. But we have also
observed that an above-guidelines sentence “is more likely
to be reasonable if it is based on factors sufficiently particu-
larized to the individual circumstances of the case rather
than factors common to offenders with like crimes.”
Jackson, 547 F.3d at 792-93 (internal quotation marks
omitted); accord, Gall, 552 U.S. at 50 (“If [a district court]
decides that an outside-Guidelines sentence is warranted,
No. 09-3605 23
[it] must consider the extent of the deviation and ensure
that the justification is sufficiently compelling to sup-
port the degree of the variance.”). Regardless, either
possible assignment of error is belied by the transcript of
the sentencing hearing. The district court gave a detailed
explanation of its reasoning, pointing to a number of
specific facts indicating that Aljabari’s crime was par-
ticularly egregious. The district court gave a sufficient
explanation for its reasonable sentence.
A FFIRMED.
11-17-10