PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RAJUL RUHBAYAN, a/k/a James
Vernette Johnson, a/k/a James
Vernon Wood, a/k/a Jibrael No. 05-5166
Ruhalamin, a/k/a Jibra’el Ruh-
alamin, a/k/a Amir Ruhbayan, a/k/a
Deja, a/k/a Day-Ja, a/k/a Kreem,
a/k/a Creme,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Rebecca Beach Smith, District Judge.
(CR-02-29)
Argued: May 23, 2007
Decided: August 3, 2007
Before KING and DUNCAN, Circuit Judges, and
WILKINS, Senior Circuit Judge.
Affirmed by published opinion. Judge King wrote the opinion, in
which Judge Duncan and Senior Judge Wilkins joined.
COUNSEL
ARGUED: Joseph Barry McCracken, Norfolk, Virginia, for Appel-
lant. James Ashford Metcalfe, Assistant United States Attorney,
2 UNITED STATES v. RUHBAYAN
OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Vir-
ginia, for Appellee. ON BRIEF: Chuck Rosenberg, United States
Attorney, Alexandria, Virginia; Jonathan Tate Mlinarcik, Third-Year
Law Student, OFFICE OF THE UNITED STATES ATTORNEY,
Norfolk, Virginia, for Appellee.
OPINION
KING, Circuit Judge:
Rajul Ruhbayan takes this appeal from his 2005 sentence of life
imprisonment and three concurrent sixty-month prison terms. See
United States v. Ruhbayan, 427 F. Supp. 2d 640 (E.D. Va. 2006). The
sentence resulted from Ruhbayan’s convictions in the Eastern District
of Virginia on four offenses arising from a perjury and obstruction of
justice scheme. On appeal, Ruhbayan contends that the district court
erred in four respects: (1) by enhancing his sentence under 18 U.S.C.
§ 1512(j), thereby increasing his prison exposure from ten years to
life, in violation of the Sixth Amendment; (2) by applying United
States v. Booker in contravention of the Ex Post Facto Clause of the
Fifth Amendment; (3) by miscalculating his sentencing range under
the Sentencing Guidelines (the "guidelines");1 and (4) by failing to
properly consider the 18 U.S.C. § 3553(a) sentencing factors. As
explained below, we reject these contentions and affirm.
I.
Ruhbayan challenges the sentence imposed on him in a resentenc-
ing proceeding conducted in the Eastern District of Virginia in
November 2005. His resentencing followed a complex series of con-
victions and appeals, which we summarize below.
1
In his third appellate contention, Ruhbayan maintains that the sen-
tencing court improperly determined his guidelines sentencing range in
three respects: (1) enhancing his offense conduct based on evidence of
drug quantity and nature for an offense underlying his perjury and
obstruction of justice scheme; (2) upwardly departing to criminal history
category VI; and (3) upwardly departing for circumstances not ade-
quately considered by the guidelines.
UNITED STATES v. RUHBAYAN 3
A.
On April 8, 2000, Ruhbayan was arrested in Martinsville, Virginia.
During this arrest, the authorities recovered crack cocaine, cocaine
residue, and $240 in cash from Ruhbayan. On April 14, 2000, Ruh-
bayan was arrested while driving a van in Suffolk, Virginia, and the
arresting officers recovered a loaded nine-millimeter pistol hidden
between cushions in the back of his van. On August 25, 2000, Ruh-
bayan was indicted in the Eastern District of Virginia on multiple fel-
ony counts, including conspiracy to distribute cocaine base, in
violation of 21 U.S.C. § 846 (the "drug conspiracy offense"), and
using a firearm during a drug trafficking offense, in violation of 18
U.S.C. § 924(c)(1) (the "firearm offense"). See J.A. 38-43.2 During a
jury trial conducted in Norfolk, Virginia, in September 2000 (the
"First Trial"), the prosecution presented evidence of Ruhbayan’s
involvement in drug and firearms activities. In response, Ruhbayan
presented his testimony and that of his then-girlfriend, Yolanda Good-
man. Ruhbayan admitted that he was a convicted felon, but denied
that he was a drug dealer and that he had ever possessed firearms,
including the pistol recovered from his van in April 2000. Goodman
testified in support of Ruhbayan that she had never seen him with
drugs or firearms. She admitted being a convicted felon, and asserted
that she had hidden the pistol in Ruhbayan’s van without his knowl-
edge. The jury credited her testimony and convicted Ruhbayan on two
lesser-included misdemeanor drug offenses, acquitting him of the
drug conspiracy offense and the firearm offense. He was thereafter
sentenced to two consecutive twelve-month terms in prison. Ruh-
bayan appealed one of his convictions, as well as his sentence, and
we affirmed. See United States v. Ruhbayan, 15 F. App’x 116 (4th
Cir. 2001) (unpublished).
B.
After the First Trial, Goodman was indicted by the grand jury in
Norfolk for being a convicted felon in possession of the pistol hidden
in Ruhbayan’s van. Following her indictment, Goodman admitted that
she had falsely testified in the First Trial about placing the firearm in
2
Our citations to "J.A. ___" refer to the contents of the Joint Appendix
filed by the parties in this appeal.
4 UNITED STATES v. RUHBAYAN
Ruhbayan’s van. She acknowledged that she had committed perjury
at Ruhbayan’s request and to mislead the jury. As a result, Goodman
pleaded guilty to obstruction of justice and agreed to testify against
Ruhbayan. She also provided the prosecution with more than fifty let-
ters written to her by Ruhbayan while he was awaiting the First Trial.
In those letters, Ruhbayan demanded that Goodman locate and secure
a non-felon to testify falsely to possession of the pistol found in his
van. When Goodman was unable to find someone to so testify, Ruh-
bayan convinced her to lie and testify that it was her pistol.
On February 12, 2002, Ruhbayan was charged by the grand jury in
Norfolk with five offenses arising from his actions in connection with
the First Trial, specifically: (1) conspiracy to commit perjury and
obstruction of justice, in contravention of 18 U.S.C. § 371 (Count
One); (2) corruptly influencing and attempting to influence the testi-
mony of a witness (Goodman) in a criminal trial, in contravention of
18 U.S.C. § 1512 (Count Two); (3) perjury, in contravention of 18
U.S.C. § 1623 (Count Three); (4) subornation of perjury, in contra-
vention of 18 U.S.C. § 1622 (Count Four); and obstruction of justice,
in contravention of 18 U.S.C. § 1503 (Count Five).3 Ruhbayan was
tried on the 2002 indictment in October 2003 (the "Second Trial").
During the Second Trial, Goodman testified about Ruhbayan’s efforts
to secure her false testimony in the First Trial, and several police offi-
cers (and other witnesses) testified about Ruhbayan’s involvement in
the drug business. On October 24, 2003, the jury in the Second Trial
found Ruhbayan guilty on all five counts. The district court thereafter
denied his motions for judgment of acquittal and a new trial.
At a sentencing hearing conducted on February 4, 2004, the district
court sentenced Ruhbayan to life in prison on Count Two and to three
concurrent sixty-month sentences on Counts One, Three, and Four.
The court vacated Ruhbayan’s conviction on Count Five, concluding
that it was multiplicitous with Count Two. Ruhbayan thereafter
appealed to this Court, asserting multiple grounds for relief. In resolv-
3
Ruhbayan initially sought to dismiss the 2002 indictment on the basis
of collateral estoppel, contending that the verdict in the First Trial barred
the charges contained in the indictment. The district court denied the
motion to dismiss, and we affirmed. See United States v. Ruhbayan, 325
F.3d 197 (4th Cir. 2003).
UNITED STATES v. RUHBAYAN 5
ing his appeal, we affirmed his convictions but vacated his sentence,
remanding for resentencing pursuant to United States v. Booker, 543
U.S. 220 (2005). See United States v. Ruhbayan, 406 F.3d 292 (4th
Cir. 2005).
C.
As a result of our Booker remand, the resentencing hearing under-
lying this appeal was conducted on November 8, 2005. On that occa-
sion, the district court reimposed its initial sentence — life in prison
on Count Two and three concurrent sixty-month sentences on Counts
One, Three, and Four. In its memorandum opinion in connection
therewith, the court concluded that Ruhbayan’s statutory maximum
sentence on the Count Two offense — influencing or attempting to
influence the testimony of a witness, in violation of 18 U.S.C. § 1512
— was life in prison. See United States v. Ruhbayan, 427 F. Supp. 2d
640, 653 (E.D. Va. 2006).4
In calculating the applicable guidelines range on the combined four
counts of conviction, the court assigned Ruhbayan a base offense
level of 30, relying on the recommendations of the Presentence Inves-
tigation Report (the "PSR"). The PSR determined that, because Ruh-
bayan had committed and suborned perjury in connection with the
drug conspiracy and firearm offenses in the First Trial, he was subject
to the enlarged (or, maximum) base offense level of 30 under the
applicable guidelines. See U.S.S.G. §§ 2J1.3, 2X3.1.5
4
Section 1512 of Title 18 provides that any person who influences or
attempts to influence testimony in an official proceeding is subject to a
maximum term of ten years in prison. Subsection (j) of § 1512 provides
that if the attempt to influence testimony occurs in connection with a
criminal trial, the maximum term is that which could have been imposed
for any offense charged in such a trial. The district court identified the
firearm offense in the 2000 indictment as the offense in the First Trial
that subjected Ruhbayan to a life sentence under § 1512(j). See Ruh-
bayan, 427 F. Supp. 2d at 653 (citing United States v. Harrison, 272 F.3d
220, 226 (4th Cir. 2001)).
5
Ruhbayan was sentenced under the 2002 version of the guidelines.
Section 2J1.3 provides a base offense level of 14 for the offenses of per-
jury or suborning perjury, and cross references to section 2X3.1 (acces-
6 UNITED STATES v. RUHBAYAN
Beginning with the PSR’s recommended base offense level of 30,
the court imposed a two-level enhancement for Ruhbayan’s role as
"an organizer, leader, manager, or supervisor of one or more other
participants" in suborning perjury. See U.S.S.G. § 3B1.1(c). The court
departed from the PSR’s recommendation of criminal history cate-
gory III to category VI, finding that category III substantially underre-
presented the seriousness of Ruhbayan’s criminal record. See id.
§ 4A1.3. The court then determined that an additional departure from
the guidelines range pursuant to section 5K2.0 was warranted because
the guidelines did not adequately account for the aggravating circum-
stances of the underlying drug conspiracy offense, that is, that Ruh-
bayan was a principal in the conspiracy and that he had used a firearm
in connection therewith. Ruhbayan’s offense level on the drug con-
spiracy offense would have been 38, which when paired with criminal
history category VI, subjected him to a guidelines range of 360
months to life. Finally, the court assessed and weighed the factors
established in 18 U.S.C. § 3553(a) and determined that imposition of
a life sentence was sufficient to comply therewith.
Ruhbayan has again appealed, challenging multiple aspects of his
sentence. Specifically, Ruhbayan contends that the district court erred
in four respects when it resentenced him: (1) by improperly enhancing
his sentence under 18 U.S.C. § 1512(j), which increased his exposure
sory after the fact) if the conduct occurs in connection with a criminal
offense. Section 2X3.1 provides that a defendant’s base offense level as
an accessory after the fact is six levels below the offense level for the
underlying offense, up to a maximum level of 30. Applying sec-
tion 2X3.1, the PSR identified the drug conspiracy offense as the offense
underlying Ruhbayan’s perjury and suborning perjury offenses, with the
base offense level for the drug conspiracy offense being premised on the
amount of cocaine base attributed to him. See U.S.S.G. § 2D1.1(c).
Premised on the evidence concerning the crack cocaine and cash
involved in the conspiracy, Ruhbayan was assigned a base offense level
of 36. See id. § 2D1.1(c)(2). A two-level increase for possession of a
dangerous weapon during the drug trafficking offense increased Ruhbay-
an’s offense level to 38. Pursuant to section 2X3.1, six levels were sub-
tracted from the offense level of 38, resulting in an offense level of 32.
Because the maximum base offense level a defendant can receive under
section 2X3.1 is 30, Ruhbayan was then assigned that base offense level.
UNITED STATES v. RUHBAYAN 7
from ten years to life, in violation of the Sixth Amendment; (2) by
applying the remedial portion of United States v. Booker in contra-
vention of the Ex Post Facto Clause of the Fifth Amendment; (3) by
miscalculating his base offense level and criminal history category
under the guidelines; and (4) by failing to properly consider the 18
U.S.C. § 3553(a) sentencing factors.
II.
We review de novo Ruhbayan’s first two contentions of error —
that his sentence contravenes the Sixth Amendment and the Ex Post
Facto Clause of the Fifth Amendment. See United States v. Thomp-
son, 421 F.3d 278, 280-81 (4th Cir. 2005) (reviewing de novo conten-
tion that sentence was unconstitutionally imposed). On Ruhbayan’s
third contention — that the sentencing court erred in determining his
base offense level and criminal history category — we review for
clear error the findings of fact made by the court on its decision to
upwardly depart, and we assess the reasonableness of its departure for
abuse of discretion. See United States v. Davis, 380 F.3d 183, 187-88
(4th Cir. 2004). We review de novo the court’s ultimate decision to
depart. See id.
Finally, on Ruhbayan’s fourth contention — that the court failed to
properly consider the § 3553(a) factors — we review his sentence for
reasonableness. See United States v. Green, 436 F.3d 449, 457 (4th
Cir. 2006). As the Supreme Court has recently recognized, "a court
of appeals may apply a presumption of reasonableness to a district
court sentence that reflects a proper application of the Sentencing
Guidelines." Rita v. United States, ___ S. Ct. ___, No. 06-5754, 2007
WL 1772146, at *6 (June 21, 2007). And in this Circuit, a sentence
imposed within a properly calculated guidelines range is deemed pre-
sumptively reasonable. See Green, 436 F.3d at 457.
III.
A.
Ruhbayan’s first contention in this appeal is that the district court
erroneously applied the sentencing enhancement mandate of 18
8 UNITED STATES v. RUHBAYAN
U.S.C. § 1512(j), in violation of the Sixth Amendment, because the
factual predicate for that provision was neither alleged in the indict-
ment nor submitted to the jury for determination. Pursuant to
§ 1512(b)(1), any person who influences or attempts to influence tes-
timony in an official proceeding is subject to a maximum term of ten
years in prison. Subsection (j) of § 1512 provides that if the attempt
to influence testimony occurs in connection with a criminal trial, the
maximum term is that which could have been imposed for any offense
charged in such trial.
In this appeal, Ruhbayan maintains that the indictment failed to
allege anything to trigger the application of subsection (j) of § 1512,
and that the sentencing court improperly relied on extra-indictment
facts in imposing sentence, in contravention of Apprendi v. New Jer-
sey, 530 U.S. 466, 490 (2000) (holding that Sixth Amendment man-
dates that "[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory max-
imum must be submitted to a jury, and proved beyond a reasonable
doubt"). As explained below, this contention is without merit.
First, because Count Two of the 2002 indictment alleged the ele-
ments of the § 1512 offense and fairly informed Ruhbayan of the
charge, it was sufficient to enable him to plead double jeopardy in any
subsequent prosecution. See United States v. Williams, 152 F.3d 294,
299 (4th Cir. 1998) ("To pass constitutional muster, an indictment
must (1) indicate the elements of the offense and fairly inform the
defendant of the exact charges and (2) enable the defendant to plead
double jeopardy in subsequent prosecutions for the same offense.").
Second, Count Two specified that Ruhbayan’s conduct occurred in
connection with the First Trial. Indeed, the jury in the Second Trial
was instructed on Count Two as follows:
Count 2 of the indictment charges that in or about May
through August of 2000, . . . Ruhbayan[ ] did knowingly and
corruptly persuade . . . Goodman[ ] to testify falsely in an
official proceeding, namely his pending criminal trial in the
United States District Court for the Eastern District of Vir-
ginia at Norfolk, entitled United States v. Ruhbayan, Crimi-
nal Number 2:00cr86, with intent to influence the testimony
of that person in an official proceeding, namely his criminal
UNITED STATES v. RUHBAYAN 9
trial, in violation of Title 18 of United Sates Code, Section
1512(b)(1).
J.A. 591-92 (emphasis added).6 Clearly, the issue of whether the con-
duct charged in Count Two occurred in connection with a criminal
trial was a fact that would increase the penalty for that offense beyond
the maximum Ruhbayan otherwise faced under § 1512(b). For that
reason, that factual issue was appropriately submitted to the jury. The
indictment and the instructions each identified the Count Two offense
as related to the First Trial, and the jury could not have returned a
guilty verdict thereon without so finding. Ruhbayan was thus subject
to a maximum of life imprisonment under § 1512(j), because an
offense charged in the First Trial involved use of a firearm in connec-
tion with a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1). See United States v. Harrison, 272 F.3d 220, 225-26 (4th
Cir. 2001) ("[Section 924(c)] no longer provides for a determinate
statutory sentence. . . . [I]t sets forth no determinate sentence or even
any upper limit on sentencing . . . . [T]he maximum penalty is life
imprisonment."). Because the trial court properly submitted to the
jury the factual issue of whether the Count Two offense occurred in
connection with the First Trial, no Apprendi error occurred. The sen-
tencing court thus properly determined that the statutory maximum
penalty on Count Two was life in prison.7
B.
In his second contention in this appeal, Ruhbayan maintains that
the sentencing court’s application of the remedial provisions of
6
The instructions advised the jury that the government was obliged,
with respect to Count Two, to prove two essential elements beyond a rea-
sonable doubt: (1) that Ruhbayan "corruptly persuaded or attempted to
persuade [Goodman] as a witness"; and (2) that he did so "intending to
influence the testimony of [Goodman] in an official proceeding." J.A.
592. The term "official proceeding" was explained to the jury as "a pro-
ceeding before a judge or court of the United States." Id. at 593.
7
The prosecution maintains that Ruhbayan waived his Apprendi con-
tention by failing to contest, in his 2005 appeal, the applicability of a
possible life sentence on Count Two under 18 U.S.C. § 1512(j). Because
no Apprendi error occurred, we need not reach the waiver issue.
10 UNITED STATES v. RUHBAYAN
United States v. Booker, 543 U.S. 220 (2005), is precluded by the Ex
Post Facto Clause of the Fifth Amendment. More specifically, he
asserts that the maximum prison term to which he was exposed, as
determined by the facts decided by the jury, was twenty-one months.
At oral argument, however, Ruhbayan conceded that this claim is
foreclosed by our recent decision in United States v. Davenport, 445
F.3d 366 (4th Cir. 2006), which was rendered after this appeal was
initiated. In Davenport, we joined four of our sister circuits in holding
that retroactive application of Booker’s remedial scheme does not
contravene the Ex Post Facto Clause. See 445 F.3d at 369-70; see also
United States v. Austin, 432 F.3d 598, 599-600 (5th Cir. 2005) (per
curiam); United States v. Vaughn, 430 F.3d 518, 524-25 (2d Cir.
2005); United States v. Perez-Ruiz, 421 F.3d 11, 15 (1st Cir. 2005);
United States v. Dupas, 419 F.3d 916, 919-21 (9th Cir. 2005); United
States v. Jamison, 416 F.3d 538, 539 (7th Cir. 2005). Consistent with
Davenport, we reject Ruhbayan’s contention in this regard.
C.
Ruhbayan next maintains that the district court erred in calculating
his guidelines sentencing range in three respects: (1) by concluding
that the drug conspiracy offense underlying his perjury and suborning
perjury offenses involved 905.36 grams of cocaine base; (2) by
upwardly departing, pursuant to section 4A1.3, from criminal history
category III to category VI; and (3) by upwardly departing, pursuant
to section 5K2.0, on the premise that the guidelines failed to ade-
quately take into account his underlying behavior. We assess these
three points in turn.
1.
Ruhbayan maintains that the sentencing court erred in concluding
that he was subject to the maximum base offense level of 30 under
section 2X3.1 of the guidelines, premised on the PSR’s conclusions
on the amount (905.36 grams) and nature (cocaine base) of the drugs
involved in the drug conspiracy offense underlying his perjury and
suborning perjury offenses. See supra note 5 (explaining how base
offense level of 30 was determined). In support of this contention,
Ruhbayan asserts that the evidence was insufficient to establish the
quantity of the drugs attributed to him, and also insufficient to prove
UNITED STATES v. RUHBAYAN 11
that the drugs were in fact crack cocaine (cocaine base), as opposed
to some other form of cocaine.8 As explained below, we are unable
to identify any error concerning the drugs attributed to Ruhbayan by
the sentencing court.
Put simply, the prosecution presented sufficient evidence to prove
both the quantity and nature of the drugs attributed to Ruhbayan. First
of all, the quantity and nature of drugs attributable to a defendant may
be established by a preponderance of the evidence, and sentencing
findings in that regard are only to be disturbed if they are clearly erro-
neous. See United States v. Carter, 300 F.3d 415, 425 (4th Cir. 2002);
United States v. Cook, 76 F.3d 596, 604 (4th Cir. 1996). Second, a
sentencing court has broad discretion concerning its determination of
the nature and quantity of such drugs. See Cook, 76 F.3d at 604 (cit-
ing United States v. Falesbork, 5 F.3d 715, 722 (4th Cir. 1993)).
Third, the evidence relied on by a sentencing court in assessing such
drug issues need not be corroborated or precise. See United States v.
Love, 134 F.3d 595, 607 (4th Cir. 1998); United States v. Uwaeme,
975 F.2d 1016, 1019 (4th Cir. 1992). Finally, a sentencing court is
entitled to rely on the drug-related facts spelled out in the PSR, unless
the defendant shows that they are unreliable. See Love, 134 F.3d at
606.
Measured under these standards, the supporting drug evidence in
this case was entirely sufficient. Daniel Miller testified in both trials
that he had sold Ruhbayan crack cocaine in amounts ranging from a
quarter ounce to an ounce, approximately twice a week, from 1998
through September 1999. The PSR held Ruhbayan accountable for
purchasing 481.95 grams from Miller, attributing to Ruhbayan the
most conservative amount of crack cocaine (a quarter ounce) twice a
week for thirty-four weeks. Terance Goodman testified during the
Second Trial that, from August or September 1999 through December
of that year, he sold Ruhbayan 28 grams of crack cocaine each Thurs-
day or Friday, and between 7 and 14 grams each Monday or Tuesday.
He also testified that Ruhbayan’s purchases averaged approximately
8
According to the guidelines, cocaine base "means ‘crack.’ ‘Crack’ is
the street name for a form of cocaine base, usually prepared by process-
ing cocaine hydrochloride and sodium bicarbonate, and usually appear-
ing in a lumpy, rocklike form." U.S.S.G. § 2D1.1(c) cmt. n.D.
12 UNITED STATES v. RUHBAYAN
two ounces a week. The PSR held Ruhbayan accountable for purchas-
ing 420 grams of crack cocaine from Terance Goodman, attributing
to Ruhbayan the most conservative amount of crack cocaine (35
grams) per week for twelve weeks. The Martinsville police officer
who arrested Ruhbayan in April 2000 testified that, during that arrest,
he found crack cocaine and $240 in Ruhbayan’s left pocket. A labora-
tory analysis determined that the substance so found was crack
cocaine weighing 1.01 grams. The PSR held Ruhbayan accountable
for possessing 3.41 grams of crack cocaine on that occasion, premised
upon the 1.01 grams, plus an additional 2.4 grams based on the $240
in cash (calculated at $100 per gram) seized from his pocket. As a
result, the quantity of crack cocaine attributed to Ruhbayan in the
PSR totalled 905.36 grams.
As outlined above, Miller and Terance Goodman each testified that
Ruhbayan was dealing in crack cocaine. The Martinsville officer testi-
fied that the substance found in Ruhbayan’s pocket was rock-like, and
identified it as crack cocaine. According to the evidence of Yolanda
Goodman and Lanetta Riddick in the Second Trial, each had observed
Ruhbayan selling crack cocaine. As a result, the court’s findings
regarding drug quantity and the nature thereof were supported by the
evidence, they are not clearly erroneous, and Ruhbayan’s contention
on this point must fail.
2.
Ruhbayan next contends that the sentencing court erred in ruling
that his criminal history was substantially underrepresented and
upwardly departing pursuant to section 4A1.3 of the guidelines. In its
memorandum opinion explaining this departure, the court observed
that (1) Ruhbayan had engaged in nearly continuous criminal activity
since becoming an adult, ceasing only during periods of incarceration;
(2) he had not received criminal history points for his juvenile sen-
tences; (3) he had not received criminal history points for the sen-
tences imposed in his First Trial; (4) the present offenses were
committed while the First Trial was pending and ongoing; and (5) he
was "one of the worst criminals" ever to appear before it. See United
States v. Ruhbayan, 427 F. Supp. 2d 640, 647 (E.D. Va. 2006). The
sentencing court also recognized that this Court had already sanc-
tioned an increase in Ruhbayan’s criminal history category from III
UNITED STATES v. RUHBAYAN 13
to V, when we affirmed his sentence after the First Trial. See id. at
655 (citing United States v. Ruhbayan, 15 F. App’x 116, 118-19 (4th
Cir. 2001)).9 The sentencing court then identified two of its five stated
grounds for departure that could not have contributed to Ruhbayan’s
earlier criminal history category of V, and that, in its view, warranted
a further increase from category V to VI: (1) that Ruhbayan had not
received criminal history points for the sentences imposed in his First
Trial, and (2) that his present offenses were committed while the First
Trial was pending. See id.
In challenging this departure, Ruhbayan maintains that the court
erred in three respects: (1) in considering his juvenile sentences, for
which he had received no criminal history points; (2) in apparently
(though not expressly) taking into account that he had received only
three criminal history points for a 1994 manslaughter conviction; and
(3) in considering that his present offenses occurred while the First
Trial was pending. We readily reject the first two aspects of this con-
tention, in that the juvenile sentences and the manslaughter conviction
could have attributed only to the assignment of criminal history cate-
gory V, and we have already affirmed Ruhbayan’s assignment to that
category. See Ruhbayan, 15 F. App’x at 118-19. Moreover, we need
not reach the third aspect of this contention because the sentencing
court cited an additional factor which, standing alone, warrants its
departure from criminal history category V to VI: that Ruhbayan had
not received any criminal history points for the sentences imposed in
his First Trial. As related earlier, Ruhbayan received two consecutive
twelve-month sentences for his two convictions in the First Trial (for
possession of cocaine base and conspiracy to possess cocaine base).
See Ruhbayan, 15 F. App’x at 117. Significantly, he does not contest
in this appeal the propriety of the sentencing court’s use of these two
uncounted sentences to increase his criminal history category to VI.
Under these circumstances, the court’s departure to category VI was
permissible, and we reject Ruhbayan’s contention to the contrary.
9
In affirming Ruhbayan’s sentence after the First Trial, we concluded
that "the district court considered criminal history categories III, IV, and
V, [and] provided a clear, well-reasoned explanation for its modification
of Ruhbayan’s criminal history category . . . to V, based upon reliable
information contained in the presentence investigation report." Ruh-
bayan, 15 F. App’x at 118-19.
14 UNITED STATES v. RUHBAYAN
3.
Ruhbayan next maintains that the district court erred in determin-
ing that it was appropriate to upwardly depart pursuant to sec-
tion 5K2.0 of the guidelines, a provision that permits a sentencing
court to depart from the applicable guidelines range if "there exists an
aggravating . . . circumstance . . . of a kind, or to a degree, not ade-
quately taken into consideration by the Sentencing Commission in
formulating the guidelines that should result in a sentence different
from that described." U.S.S.G. § 5K2.0 (2002). In support of this con-
tention, Ruhbayan maintains that the court failed to perform the anal-
ysis we mandated in United States v. Rybicki, 96 F.3d 754 (4th Cir.
1996). Rybicki spelled out a five-step analysis for use by a sentencing
court on whether to depart from the guidelines. See 96 F.3d at 757-58.
First, the court should determine the circumstances and consequences
of the offense, an assessment we review for clear error only. Id. at
757. Next, the court must assess whether those circumstances and
consequences appear to be sufficiently "atypical" to potentially take
the case out of the heartland of the applicable guidelines. Id. And, as
Rybicki explained on this point, "a district court’s identification of
factors for potential consideration is purely analytical and, therefore,
is never subject to appellate review." Id. Third, the court should clas-
sify each factor that could potentially remove the case from the guide-
lines as either a forbidden, encouraged, discouraged, or unmentioned
basis for departure. Id. Fourth, the court should assess whether the
guidelines have already accounted for these factors, a determination
that we review de novo. Id. at 758. Finally, the court must assess
whether a departure is reasonable under the circumstances. Id. We
review a departure decision for abuse of discretion, and we assess a
sentencing court’s related factual determinations for clear error. Id.
In applying these principles, the sentencing court determined that
a departure under section 5K2.0 was warranted, because the guide-
lines failed to adequately account for the aggravating circumstances
of Ruhbayan’s underlying drug conspiracy offense, that is, he was a
principal in the conspiracy and had used a firearm in connection
therewith. Ruhbayan’s offense level on the drug conspiracy offense
would have been 38, which, paired with his criminal history category
of VI, would have subjected him to a sentencing range of 360 months
to life. Ruhbayan contends that, in finding the departure appropriate,
UNITED STATES v. RUHBAYAN 15
the court failed to engage in steps two and four of the Rybicki analy-
sis. That is, according to Ruhbayan, the court failed to decide whether
his circumstances were sufficiently atypical to take his case out of the
heartland of the guidelines, and the court failed to assess whether
those factors had already been accounted for.
Contrary to Ruhbayan’s contention in this regard, the district court
specifically identified two factors — Ruhbayan’s use of a firearm and
that he was a principal in the underlying drug conspiracy offense —
that render his case atypical. See Ruhbayan, 427 F. Supp. 2d at 648
n.16; J.A. 958-59. Thus, the court sufficiently complied with step two
of the Rybicki analysis and we are unable to disturb its determination
that Ruhbayan’s circumstances were atypical. See Rybicki, 96 F.3d at
757 ("Unlike the other steps in this analysis, a district court’s identifi-
cation of factors for potential consideration is purely analytical and,
therefore, is never subject to appellate review.").
Our review of the sentencing court’s assessment of step four of the
Rybicki analysis — whether the factors identified by the sentencing
court have otherwise been taken into account — likewise reveals no
error. See Rybicki, 96 F.3d at 758. First, Ruhbayan’s contention that
the guidelines already accounted for his possession and use of a fire-
arm in the underlying drug conspiracy offense is without merit. Sec-
tion 5K2.0 provides, as an example of a permissible ground for
departure, that
the use of a weapon has been listed as a specific offense
characteristic under many guidelines, but not under other
guidelines. Therefore, if a weapon is a relevant factor to sen-
tencing under one of these other guidelines, the court may
depart for this reason.
In Ruhbayan’s situation, his use of a firearm in the underlying drug
conspiracy offense was not factored into his base offense level under
section 2X3.1, because that provision capped his base offense level at
30, and it did not account even for possession of the firearm, which
would have moved his base offense level to 32. Thus, the aggravating
factor of firearm use was not adequately taken into consideration by
the guidelines. Second, Ruhbayan’s contention that the guidelines
already accounted for his role as a principal in the underlying drug
16 UNITED STATES v. RUHBAYAN
conspiracy offense is also without merit. The base offense level of 30
did not account for Ruhbayan’s role as a principal in the underlying
drug conspiracy offense; rather, his base offense level was calculated,
pursuant to section 2X3.1, at the accessory level of that offense. See
supra note 5. The court’s enhancement for Ruhbayan’s role as a prin-
cipal thus did not result in double-counting, and it was appropriate.
As a result, we reject Ruhbayan’s challenge to the court’s decision to
upwardly depart pursuant to section 5K2.0.
D.
In his final appellate contention, Ruhbayan maintains that the sen-
tencing court failed to give adequate mitigation consideration to cer-
tain of the factors specified in 18 U.S.C. § 3553(a), while conversely
assigning too much weight to other factors, resulting in an unreason-
able sentence. On appeal, we review a sentence for reasonableness,
which requires us to ask whether "the sentence was selected pursuant
to a reasoned process in accordance with law, in which the court did
not give excessive weight to any relevant factor, and which effected
a fair and just result in light of the relevant facts and law." United
States v. Green, 436 F.3d 449, 457 (4th Cir. 2006). And, as the
Supreme Court has recently recognized, a sentence that falls within
the properly calculated guidelines range may be deemed presump-
tively reasonable. See Rita v. United States, __ S. Ct. __, No. 06-
5754, 2007 WL 1772146, at *6 (June 21, 2007) (holding that "a court
of appeals may apply a presumption of reasonableness to a district
court sentence that reflects a proper application of the Sentencing
Guidelines"). As we have recognized, "[t]o establish the reasonable-
ness of a sentence, . . . the record must reflect that the court ade-
quately and properly considered the § 3553(a) sentencing factors."
United States v. Eura, 440 F.3d 625, 632 (4th Cir. 2006).
Ruhbayan’s sentence fell within the properly calculated guidelines
range and, under our precedent, is entitled to a presumption of reason-
ableness. See Green, 436 F.3d at 457. The sentencing court carefully
articulated its consideration of the § 3553(a) factors in its memoran-
dum opinion, as well as during the resentencing hearing, and it ade-
quately and properly considered those factors. By way of example,
the court recognized that the nature and circumstances of Ruhbayan’s
offenses did not weigh in his favor, in that he had "organized and
UNITED STATES v. RUHBAYAN 17
directed a false testimony scheme" in order "to deceive the jury,
flaunt the guarantees of due process, and undermine the judicial sys-
tem." Ruhbayan, 427 F. Supp. 2d at 656. The court observed that
Ruhbayan was able to complete his scheme by exploiting Yolanda
Goodman’s "feelings of love and loyalty," and thus subjected her to
a perjury charge, if the scheme was discovered, or a firearms charge,
if it was not. Id. The court acknowledged that Ruhbayan’s childhood
had been a difficult one, but observed that crimes of violence commit-
ted in his adolescence and adulthood (including burglary, use of a
firearm in commission of a felony, and voluntary manslaughter) dem-
onstrated his disrespect for the law and for others. Id. As a result, the
court found that a sentence of significant duration was "needed to
reflect the seriousness of his offenses, to promote respect for the law,
to provide [Ruhbayan] just punishment for his offenses, to protect the
public from future crimes by [him], and to deter [him] from commit-
ting future crimes." Id. at 657. In light of the foregoing, we are unable
to conclude that Ruhbayan’s sentence was unreasonable, and this final
contention is also rejected.
IV.
Pursuant to the foregoing, we affirm the sentence imposed by the
district court.
AFFIRMED