NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 18, 2009
Decided December 15, 2009
Before
DIANE P. WOOD, Circuit Judge
TERENCE T. EVANS, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 09‐2342
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 08‐CR‐916
SAID AYESH,
Defendant‐Appellant. Samuel Der‐Yeghiayan, Judge.
O R D E R
Said Ayesh pleaded guilty to attempted international parental kidnaping. See 18
U.S.C. § 1204(a). He was sentenced to a term of 35 months, which was 5 months more than
the upper end of his guideline range (24‐30 months) and 1 month short of the statutory
maximum. Ayesh challenges his sentence on this appeal. Here are the facts.
Ayesh lived for several years in Illinois with Munah Bamieh before the pair went
back to Jordan, where both are citizens. When Bamieh became pregnant, she returned alone
to the United States. The couple had agreed that their child should be born here to gain
citizenship, but after the birth Bamieh refused to rejoin Ayesh in Jordan and even denied
No. 09‐2342 Page 2
that he was the father of her child. Ayesh, in turn, entered the United States illegally, and
eventually confirmed his paternity and won visitation in the Circuit Court of Cook County.
Threats from Ayesh and members of his family did not persuade Bamieh to go back
to Jordan with the child, so Ayesh plotted to kidnap her. He acquired a Jordanian passport
for the child, forged Illinois identity documents with aliases for the two of them, and stole
his own passport from the office of a lawyer who apparently was holding it under a court
order. He made financial arrangements to pay for two one‐way plane tickets to Jordan that
he planned to acquire in New York. Then, during a routine visitation, Ayesh took the child
out of the geographical boundaries prescribed by the Illinois state court and traveled with
her to Indiana, where he paid two accomplices for a ride to New York. They made it as far
as Toledo, Ohio, before they were stopped.
The district court adopted the factual findings in the presentence investigation
report, which detailed a conviction for battering a woman whose air conditioner Ayesh had
been hired to fix, as well as reports underlying arrests for threatening Bamieh and battering
a former domestic partner and another female customer. The district court calculated a
guidelines imprisonment range of 24 to 30 months, which Ayesh concedes is correct. In
going above that range, the district court explained that a longer term was necessary to
deter Ayesh from committing more crimes. The court further observed that Ayesh’s plan
required extensive premeditation and, if successful, would likely have deprived Bamieh of
access to her child. The court highlighted the need to promote respect for federal and state
law, given Ayesh’s disregard for both.
On appeal, Ayesh first argues that the district court improperly inflated the need for
deterrence by considering not only his conviction, but also the conduct underlying his
arrests that did not result in conviction. Yet even under the old regime of mandatory
guidelines, U.S.S.G. § 4A1.3 allowed a sentencing court to consider reliable evidence of
adult criminal conduct not resulting in conviction. See United States v. Johnson, 427 F.3d 423,
428 (7th Cir. 2005); United States v. Terry, 930 F.2d 542, 545 (7th Cir. 1991). Ayesh did not
contest the reliability of the information incorporated into the presentence report, except to
contend at oral argument that evidence of an offense is never reliable until it results in
conviction. But that is not the law.
Ayesh next argues that the district court grounded its sentencing decision not in the
factors set out in 18 U.S.C. § 3553(a), but instead in its bias against a man whose actions it
deemed “reprehensible,” and in naked speculation that Bamieh’s chances of regaining
custody would have been slim if the kidnaping had succeeded. But kidnaping attempts are
reprehensible, and saying so doesn’t make a judge biased. And the accusation of
No. 09‐2342 Page 3
“speculation” is unfounded; the court had before it the government’s undisputed evidence
that the United States lacks a legal mechanism for enforcing state court custody
determinations in Jordan. Plus, securing the return of kidnaping victims from a country like
Jordan, which is not a party to the Hague Convention on the Civil Aspects of International
Child Abduction, seems highly unlikely at best.
Ayesh is on better footing when he argues that major variances from the guidelines
range need stronger justifications than minor ones. See Gall v. United States, 128 S. Ct. 586,
596‐97 (2007); United States v. Presbitero, 569 F.3d 691, 707 (7th Cir. 2009). But see United
States v. Bartlett, 567 F.3d 901, 909 (7th Cir. 2009) (clarifying that district courts need not
explain their decisions “from the Guidelines’ perspective”). Yet a variance of 5 months
above a range ending at 30 isn’t very large, and the district court here gave adequate
reasons for the sentence it imposed, consistent with the § 3553(a) sentencing factors. See
United States v. McIntyre, 531 F.3d 481, 483 (7th Cir. 2008).
Finally, Ayesh argues, based on § 3553(a)(6), that he must be resentenced to avoid
causing a nationwide sentencing disparity. But the perceived disparity is illusory; his
sentence is actually lower than the sentences imposed in half of the cases cited by the parties.
In any event, § 3553(a)(6) addresses only unwarranted disparities, see United States v. Statham,
581 F.3d 548, 556 (7th Cir. 2009); Bartlett, 567 F.3d at 908, 909, and the district court here
sufficiently justified a sentence 5 months above the guidelines range.
Accordingly, the judgment of the district court is AFFIRMED.