PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

RAJUL RUHBAYAN, a/k/a Creme, a/k/a

Kreem, a/k/a Day-Ja, a/k/a Deja,  No. 04-4103 a/k/a Amir Ruhbayan, a/k/a Jibra’el

Ruh-alamin, a/k/a Jibrael

Ruhalamin, a/k/a James Vernon

Wood, a/k/a James Vernette

Johnson,

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: February 4, 2005

Decided: April 21, 2005

Before WILKINS, Chief Judge, and KING and

DUNCAN, Circuit Judges.

Affirmed in part, vacated in part, and remanded by published opinion.

Judge King wrote the opinion, in which Chief Judge Wilkins and

Judge Duncan joined. 

COUNSEL

ARGUED: Joseph Barry McCracken, Norfolk, Virginia, for Appellant. James Ashford Metcalfe, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee. ON BRIEF: Paul J. McNulty, United States

Attorney, Michael J. Elston, Assistant United States Attorney, Alexandria, Virginia; Karen Lynn Peaden, Third-Year Law Student,

OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee. 

OPINION

KING, Circuit Judge: 

Rajul Ruhbayan appeals his multiple convictions and sentences in

the Eastern District of Virginia for offenses arising from an obstruction of justice scheme in his earlier federal criminal trial. He makes

several contentions on appeal, most notably that the district court

erred in admitting evidence barred by attorney-client and work product privileges and the rules of evidence; in ruling that his conspiracy

conviction was not defective under Wharton’s Rule; and in enhancing

his sentences on the basis of judge-found facts under the Sentencing

Guidelines. As explained below, we reject each of Ruhbayan’s challenges to his convictions. We vacate his sentences, however, and

remand for resentencing pursuant to United States v. Booker, 125

S. Ct. 738 (2005), and its progeny. 

I.

The factual scenario underlying the convictions and sentences on

appeal relates to Ruhbayan’s scheme to have his former girlfriend,

Yolanda Goodman, testify falsely during his September 2000 trial in

the Eastern District of Virginia on drug trafficking and firearms

charges (the "First Trial"). Following the First Trial, Goodman cooperated with the Government and provided evidence against Ruhbayan.

As a result, Ruhbayan was indicted in February 2002 for five additional offenses arising from his obstruction of justice scheme. This

indictment resulted in Ruhbayan’s "Second Trial," and the convictions and sentences from which this appeal ensues.

A.

On August 25, 2000, Ruhbayan was indicted for multiple felonies,

including being a felon in possession of a firearm, in contravention

2 UNITED STATES v. RUHBAYAN
of 18 U.S.C. § 922(g)(1), and related criminal offenses. During his

First Trial, the prosecution presented several witnesses to Ruhbayan’s

drug trafficking and firearms activities, including Martinsville and

Suffolk, Virginia, police officers. For example, officers testified that,

incident to Ruhbayan’s arrest on April 14, 2000, they recovered a

loaded nine-millimeter pistol, which had been hidden between cushions in the back seat of Ruhbayan’s van. 

In response to the Government’s evidence, Ruhbayan presented the

testimony of three witnesses, including himself and Goodman. In his

defense, Ruhbayan admitted that he was a convicted felon, but denied

that he was a drug dealer and had ever possessed or used firearms,

including the pistol recovered from his van. Goodman testified on

Ruhbayan’s behalf that she was his girlfriend, that she had often been

to his home, and that she had never seen him with either drugs or firearms. Importantly, she admitted that she was a convicted felon and

had placed the pistol in the van without Ruhbayan’s knowledge.

Thereafter, the jury in the First Trial convicted Ruhbayan on two

lesser-included misdemeanor offenses — simple possession and conspiracy to possess crack cocaine — but acquitted him on the other

counts, including the § 922(g)(1) firearm possession charge. After

being sentenced to twenty-four months in prison, Ruhbayan appealed,

and we affirmed. See United States v. Ruhbayan, No. 01-4009, 2001

WL 867446 (4th Cir. Aug. 1, 2001) (unpublished). 

B.

1.

On February 2, 2001, Goodman was indicted by the grand jury,

apparently as the result of her testimony in the First Trial. She was

charged with being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1), having admitted under

oath that she was a convicted felon and that she had possessed the pistol found in Ruhbayan’s van. Goodman then changed her story, advising the Government that she had testified falsely in the First Trial

regarding Ruhbayan’s drug trafficking and firearms activities. On

May 9, 2001, she entered a plea of guilty to an information charging

her with obstruction of justice, in violation of 18 U.S.C. § 1503. In

her plea agreement, Goodman stipulated that she had: 

UNITED STATES v. RUHBAYAN 3
testified falsely [in the First Trial] that she had possessed the

firearm and ammunition and that she had placed them in

Ruhbayan’s vehicle without his knowledge on or about

April 14, 2000, in Suffolk, Virginia, when she knew in fact

that she had never possessed the firearm and ammunition,

had never placed them in Ruhbayan’s vehicle, and was testifying falsely as requested by . . . Ruhbayan in order to assist

him in misleading the jury . . . . 

Goodman also agreed to testify against Ruhbayan in any subsequent

trials, and she provided the Government with more than fifty letters

he had written to her while awaiting his First Trial. In the letters, Ruhbayan first directed Goodman to find a non-felon to testify falsely for

him by admitting possession of the pistol, and he eventually convinced Goodman to lie on his behalf about placing the pistol in his

van. 

On February 12, 2002, the grand jury returned a five-count indictment against Ruhbayan for the events relating to Goodman and the

First Trial, charging him with (1) conspiracy to commit perjury and

obstruct justice, in contravention of 18 U.S.C. § 371; (2) corruptly

influencing and attempting to influence the testimony of a witness, in

violation of 18 U.S.C. § 1512(b)(1); (3) perjury, in contravention of

18 U.S.C. § 1623; (4) subornation of perjury, in violation of 18

U.S.C. § 1622; and (5) obstruction of justice, in contravention of 18

U.S.C. § 1503. On April 10, 2002, the district court denied Ruhbayan’s motion to dismiss on the basis of collateral estoppel, premised

on his claim that the verdict in the First Trial barred the charges in

the new indictment. Ruhbayan then appealed the denial of his collateral estoppel claim to this Court, asserting jurisdiction under the collateral order doctrine. We affirmed by published opinion, United

States v. Ruhbayan, 325 F.3d 197, 205 (4th Cir. 2003), holding that

collateral estoppel did not bar the prosecution of Ruhbayan on the

perjury and subornation of perjury charges, notwithstanding his

acquittal on certain of the drug trafficking and firearms-related

charges in the First Trial.1 The district court subsequently denied sev1At oral argument in the collateral order appeal, Ruhbayan abandoned

his collateral estoppel challenge on the other three counts of the new

indictment — conspiracy to commit perjury and obstruct justice, corruptly influencing and attempting to influence the testimony of a witness,

and obstruction of justice. See Ruhbayan, 325 F.3d at 201 n.1. 

4 UNITED STATES v. RUHBAYAN
eral of Ruhbayan’s other pre-trial motions, including motions to

quash the prosecution’s subpoena of James Melton (Ruhbayan’s lawyer in the First Trial), and any documents from Melton’s files concerning his representation of Ruhbayan, on the basis of the attorneyclient and work product privileges; to bar the introduction of evidence

concerning Ruhbayan’s history of drug trafficking and firearms activities; and to dismiss the conspiracy count on the basis of Wharton’s

Rule.

2.

In Ruhbayan’s Second Trial, the prosecution introduced the testimony of seven witnesses. As the district court observed, however, the

prosecution’s most important evidence was Goodman’s testimony and

the letters Ruhbayan had written to her prior to his First Trial. See

United States v. Ruhbayan, No. 2:02cr29, slip op. at *4 (E.D. Va. Feb.

3, 2004).2 Goodman testified in the Second Trial that her testimony

2Approximately thirteen of Ruhbayan’s letters to Goodman were

admitted into evidence at the Second Trial. Those letters, which Ruhbayan admitted writing, included the following inculpatory statements: 

once the right person is found to claim the gun then the lawer

can really guide us. It’s that simple. 

We need to find a person for the gun, Think who would or could

be possibilities, find out who doesn’t have felonies. Its that simple . . . . 

I need a non-felon. I need it now. There are thousands upon

thousands of people in Suffolk without felons. 

Baby all I really have aginst me is a gun. Once you claim the

gun; then we go to court. On the court date; they will drop the

charges against me. & may may not pick them up on you. 

Tell my lawyer that you are calling for Rajul Ruhbayan. That

you would like to confess to the gun found in my van stuffed

between the rear seat back cushions. That the gun is all black &

that it did have some bullets in it. 

As for the gun. Since I had no knowledge of it being in the van

or you having it you are basically free to say what you want on

how you got it. 

UNITED STATES v. RUHBAYAN 5
in the First Trial had been false, that she had never possessed the pistol recovered from Ruhbayan’s van, that she had observed Ruhbayan

with firearms on several occasions, and that he had been engaged in

substantial drug trafficking activities. She also testified to Ruhbayan’s

mental and physical abuse, e.g., that Ruhbayan prohibited her from

answering the door of their residence, required her to wear Muslim

headdress and garb, pushed her off the porch, and beat and choked

her. In addition, lawyer Melton testified that Ruhbayan had inquired

before trial into possible sentences, under federal and state law, for

possession of a firearm as a convicted felon, and that Goodman had

contacted Melton about testifying for Ruhbayan in the First Trial,

asserting that the pistol found in his van belonged to her.3 Several

police officers from Martinsville and Suffolk also testified to Ruhbayan’s possession of cash and cocaine, their discovery of the pistol in

the van, and their subsequent execution of a search warrant for his

home and the recovery of multiple firearms, drug residue, and drug

paraphernalia.4

Ruhbayan testified in his own defense in his Second Trial, maintaining, as he did in the First Trial, that the pistol found in the van was

not his. He asserted that, by his letters to Goodman, he only sought

to have her testify truthfully and that much of his language was an

Me doing 5 to 8 years doesn’t help. You doing 18 months shows

your real. 

The letters laid out a blueprint for Goodman to follow upon being convinced to testify that she placed the pistol in the van, including instructions on who to contact and what to say. Ruhbayan also told Goodman

that other witnesses should be contacted to testify to his "none association" with guns or "coke." 

3The prosecution introduced three redacted letters from Melton to Ruhbayan, evidencing Melton’s response to Ruhbayan’s request for information on sentencing and advising that Goodman claimed responsibility for

the pistol found in Ruhbayan’s van. 

4

In the Second Trial, the prosecution also called Lanetta Riddick, a former girlfriend of Ruhbayan, as a witness. Riddick testified that she had

seen Ruhbayan with various firearms and drugs over the course of their

relationship. She was also permitted to describe Ruhbayan’s abusive

behavior towards her. 

6 UNITED STATES v. RUHBAYAN
attempt at rap lyrics. On October 24, 2003, the Second Trial jury

returned a guilty verdict on all five counts. Ruhbayan then sought

judgment of acquittal and a new trial, which the district court denied

on February 3, 2004. See United States v. Ruhbayan, No. 2:02cr29

(E.D. Va.). 

3.

On February 4, 2004, the court conducted Ruhbayan’s sentencing

hearing. In determining Ruhbayan’s sentencing range, the court

enhanced his offense level by four levels for his leadership role in an

"otherwise extensive" crime under § 3B1.1(a) of the Sentencing

Guidelines, finding, inter alia, that the criminal activity included Ruhbayan, Goodman, Melton, Melton’s staff, and the twelve jurors in the

First Trial. See United States v. Ruhbayan, 302 F. Supp. 2d 634, 636

(E.D. Va. 2004). In making its § 3B1.1(a) ruling, the court concluded

that "many other individuals who are not criminally responsible for

the offense unwittingly assisted in its execution," and, under our decision in United States v. Ellis, 951 F.2d 580 (4th Cir. 1991) (Powell,

J.), the use of the "unknowing services of many outsiders" warranted

the application of the enhancement. Ruhbayan, 302 F. Supp. 2d at

636. 

Ruhbayan’s Presentence Report (the "PSR") recommended a total

Offense Level of 34 and a Criminal History Category of III, resulting

in an applicable sentencing range of 188-235 months. Both Ruhbayan

and the Government filed objections to the PSR: Ruhbayan contended, inter alia, that he should not receive a two-level enhancement

under § 3B1.1(c) for a leadership role in the criminal activity, while

the Government contended, inter alia, that Ruhbayan’s conduct warranted a four-level enhancement under § 3B1.1(a). At sentencing, the

court enhanced Ruhbayan’s Offense Level by four levels under

§ 3B1.1(a), resulting in a total Offense Level of 36. It also adjusted

his Criminal History Category from III to VI pursuant to § 4A1.3(a),

finding that Category III substantially underrepresented his criminal

history. Finally, the court found that the Guidelines did not adequately

consider Ruhbayan’s responsibility for the underlying offenses, and

it departed upward from the applicable sentencing range for Criminal

History Category VI and Offense Level 36 (324-405 months) pursuant to § 5K2.0. As a result, the court sentenced Ruhbayan to life in

UNITED STATES v. RUHBAYAN 7
prison on the witness tampering count and to sixty months on each

of the remaining counts, all to run concurrently.5

Ruhbayan has filed a timely notice of appeal, and we possess jurisdiction under the provisions of 28 U.S.C. § 1291. We assess his contentions of error in turn.6

II.

On appeal, Ruhbayan raises multiple contentions of error as to his

convictions and sentences. First, he maintains that the trial court erred

in admitting the testimony and work product of his former lawyer,

and in its admission against him of prior bad acts evidence.7 He next

contends that the court erred in failing to dismiss the conspiracy

charge under the doctrine known as Wharton’s Rule, as explained by

the Supreme Court in Iannelli v. United States, 420 U.S. 770 (1975)

(discussing history and application of Rule). In challenging his sentences, Ruhbayan maintains that they should be vacated pursuant to

United States v. Booker, 125 S. Ct. 738 (2005). Alternatively, he

asserts multiple sentencing errors, most significantly challenging the

court’s application to him of the leadership role enhancement under

§ 3B1.1(a) of the Sentencing Guidelines. 

5At the sentencing hearing, the trial court vacated Ruhbayan’s conviction on the obstruction of justice count, concluding that it was multiplicitous with the witness tampering count. He was therefore sentenced on

a total of four convictions. 

6On August 20, 2004, following the Supreme Court’s June 2004 decision in Blakely v. Washington, 124 S. Ct. 2531, Ruhbayan directed this

Court’s attention to Blakely’s potential implications in this appeal. Supp.

Br. of Appellant at 4 ("The sentence imposed by the district court pursuant to the U.S. Sentencing Guidelines violated [Ruhbayan’s] Sixth

Amendment right to trial by jury."). 

7Ruhbayan also contends that the district court erred in admitting evidence precluded by the doctrine of collateral estoppel. We addressed his

collateral estoppel issues in Ruhbayan’s most recent appeal, and this

claim warrants no further discussion. See generally United States v. Ruhbayan, 325 F.3d 197 (4th Cir. 2003) (addressing Ruhbayan’s collateral

estoppel contentions regarding Second Trial). 

8 UNITED STATES v. RUHBAYAN
A.

1.

In challenging the evidence admitted against him in the Second

Trial, Ruhbayan makes, inter alia, two separate contentions. First, he

contends that the court erred in concluding that the testimony of his

former lawyer and the admission of letters written by Melton to Ruhbayan, see supra note 3, fell within the crime-fraud exception to the

attorney-client and work product privileges. See United States v. Ruhbayan, 201 F. Supp. 2d 682 (E.D. Va. 2002); see also United States

v. Ruhbayan No. 2:02cr29, slip op. at *14-15 (E.D. Va. Feb. 3, 2004).

In assessing such a contention, we review a trial court’s factual findings for clear error, and we review its application of the legal principles de novo. In re Grand Jury Subpoena, 341 F.3d 331, 334 (4th Cir.

2003). However, we will not, "absent a clear showing of abuse of discretion," vacate the trial counsel’s determination that the prosecution

made a prima facie showing of the defendant’s crime or fraud. In re

Grand Jury Subpoena, 884 F.2d 124, 127 (1989). In light of the evidence on the crime-fraud point, particularly Ruhbayan’s letters to

Goodman and her testimony about contacting his lawyer, the court’s

finding that Ruhbayan had used his attorney to dupe the court and

jury at the First Trial was not clearly erroneous. As a result, the court

did not err in authorizing the prosecution to present Melton’s testimony and three of his letters to Ruhbayan in the Second Trial. 

Second, Ruhbayan maintains that the trial court also erred in permitting the prosecution to introduce evidence of his prior bad acts,

including allegations of physical abuse against his former girlfriends.

See United States v. Ruhbayan No. 2:02cr29, slip op. at *13, 15-16

(E.D. Va. Feb. 3, 2004). We review such evidentiary rulings for abuse

of discretion. See United States v. Godwin, 272 F.3d 659, 670 (4th

Cir. 2001). In so doing with respect to these contentions, we perceive

no error in the court’s admission of evidence relating to Ruhbayan’s

prior drug trafficking and firearms activities, which were relevant to

show that Ruhbayan and Goodman had falsely testified at the First

Trial. The evidence of Ruhbayan’s physical abuse of women was

deemed relevant by the trial court to Goodman’s motive for being

willing to testify falsely at the First Trial, and the court properly

instructed the jury on the limited purpose for which such evidence

UNITED STATES v. RUHBAYAN 9
could be considered.8

 As a result, Ruhbayan’s contentions of evidentiary error at the Second Trial must also be rejected.

2.

Ruhbayan next contends that the conspiracy charge lodged against

him should have been dismissed, and that his conspiracy conviction

should be vacated, because that charge is barred by Wharton’s Rule.

We review this contention de novo. See United States v. Castro, 887

F.2d 988, 996 (9th Cir. 1989). Generally, a conspiracy to commit an

offense and the actual commission of the offense constituting the

object of the conspiracy do not merge into a single punishable act,

and a defendant — or multiple defendants — can be prosecuted both

for the conspiracy and for the substantive offense which was the conspiracy’s object. United States v. Walker, 796 F.2d 43, 46 (4th Cir.

1986). By Wharton’s Rule, however, the courts have created a judicial exception to this proposition. Id. Under that Rule, "‘[a]n agreement by two persons to commit a particular crime cannot be

prosecuted as a conspiracy when the crime is of such a nature as to

necessarily require the participation of two persons for its commission.’" Iannelli v. United States, 420 U.S. 770, 774 n.5 (1975) (quoting 1 R. Anderson, Wharton’s Criminal Law and Procedure § 89, p.

191 (1957)). Thus, a person cannot, under Wharton’s Rule, be prosecuted for conspiracy to commit such offenses as adultery, incest, bigamy, or dueling — the classic Wharton’s Rule offenses — "since the

substantive offense necessarily requires concerted criminal activity."

Walker, 796 F.2d at 46 (citing Iannelli, 420 U.S. at 782). 

Ruhbayan contends that his convictions for witness tampering and

subornation of perjury required the participation of at least two persons, thus precluding an additional conviction for conspiracy. Specifically, he asserts that the conduct punished by the subornation of

perjury and witness tampering charges, and the conduct sought to be

8Ruhbayan also contends that the court erred in admitting evidence

regarding the nature of an earlier conviction for involuntary manslaughter, because he had offered to stipulate to being a convicted felon. However, the only evidence of his prior felony was a single reference to his

"previous violent felony" in Ruhbayan’s letters to Goodman, to which he

failed to object. 

10 UNITED STATES v. RUHBAYAN
reached by the conspiracy charge, was sufficiently congruent to be

barred by Wharton’s Rule. 

As the district court ruled in denying judgment of acquittal on Ruhbayan’s conspiracy conviction, however, Wharton’s Rule is inapplicable in the circumstances of this case. See United States v. Ruhbayan,

No. 2:02cr29, slip op. at *8-9 (E.D. Va. Feb. 3, 2004). In Iannelli, the

Court observed that Wharton’s Rule is aimed at activities where "the

immediate consequences of the crime rest on the parties themselves

rather than on society at large." 420 U.S. at 782-83. Here, as the trial

court aptly observed, the immediate consequences of Ruhbayan’s witness tampering and subornation of perjury crimes fell on society at

large and on the criminal justice system itself, rather than on Ruhbayan and Goodman only. See Ruhbayan, No. 2:02cr29, slip op. at

*9; see also, e.g., United States v. Markiewicz, 978 F.2d 786, 802 (2d

Cir. 1992) (observing that purpose of federal statute barring perjury

is to punish wrong to judicial system); United States v. Manfredonia,

414 F.2d 760, 764 (2d Cir. 1969) (observing that perjury statute protects judicial system itself). In these circumstances, Ruhbayan’s conspiracy conviction is not barred by Wharton’s Rule. 

B.

Turning next to Ruhbayan’s sentencing contentions, we first examine, in light of the Supreme Court’s recent decision in United States

v. Booker, 125 S. Ct. 738 (2005), his assertion that his sentences violated the Sixth Amendment. Next, we assess the propriety of the contested sentencing enhancements. As explained below, Ruhbayan is

entitled to resentencing under Booker and, in these circumstances, the

four-level enhancement for his leadership role in the obstruction of

justice scheme was improperly applied. 

1.

Ruhbayan raised a Sixth Amendment challenge to his sentences for

the first time on appeal. We are thus obliged to review that contention

for plain error only, applying the principles of United States v. Olano,

507 U.S. 725, 732 (1993). See United States v. Hughes, No. 03-4172,

2005 WL 628224, at *5 (4th Cir. Mar. 16, 2005). The plain error

mandate of Olano is satisfied if: (1) there was error; (2) it was plain;

UNITED STATES v. RUHBAYAN 11
and (3) it affected the defendant’s substantial rights. 507 U.S. at 732.

If these conditions are met, we may then exercise our discretion to

notice the error, but only if it "seriously affect[s] the fairness, integrity

or public reputation of judicial proceedings." Id. (citation and internal

quotation marks omitted). 

First, the sentencing court’s imposition of a life sentence on Ruhbayan for witness tampering, plus three sixty-month concurrent sentences for conspiracy, perjury, and suborning perjury constitutes

constitutional error under Booker. See 125 S. Ct. at 746 (holding that

Sixth Amendment contravened when sentencing court, acting pursuant to Guidelines, imposes sentence greater than maximum authorized

by facts found by jury alone). At sentencing, the court, inter alia,

increased Ruhbayan’s offense level by four levels, applying the

§ 3B1.1(a) enhancement for leadership of otherwise extensive criminal activity. See Findings Of Fact, United States v. Ruhbayan, No.

2:02cr29 (E.D. Va. Feb. 25, 2004). As such, it made factual determinations about the scope of Ruhbayan’s criminal activity, and his role

within it, by a preponderance of the evidence. The court committed

Sixth Amendment error by relying on its own fact-finding to impose

sentences greater than what was authorized by the jury verdict. See

Hughes, 2005 WL 628224, at *5 (recognizing that imposition of sentence, "in part based on facts found by the judge, . . . constituted error").9

Second, the court’s sentencing error was plain, because "‘the law

at the time of trial was settled and clearly contrary to the law at the

time of appeal.’" Id. (quoting Johnson v. United States, 520 U.S. 461,

468 (1997)). Third, the error affected Ruhbayan’s substantial rights,

in that it "‘actually affected the outcome of the proceedings.’" Id. at

*5-6 (quoting United States v. Hastings, 134 F.3d 235, 240 (4th Cir.

1998)). Because the court’s calculation of the other enhancements and

departures rested in part on its application of the § 3B1.1(a) enhancement, its reliance on facts beyond those authorized by the jury verdict

permeated Ruhbayan’s sentencing. And because the sentences

9Assuming, without deciding, that the trial court correctly calculated

Ruhbayan’s Criminal History Category at VI and his Offense Level at

32, application of the § 3B1.1(a) four-level enhancement (resulting in an

Offense Level of 36) increased the applicable sentencing range by 62

months, from 210-262 months to 324-405 months. 

12 UNITED STATES v. RUHBAYAN
imposed on Ruhbayan were greater than those authorized by the facts

found by the jury alone (as in Hughes), and were increased on the

basis of the judge-found facts, the sentencing error was prejudicial.

Id. at *6. 

Finally, we are obliged to exercise our discretion to notice the error

with respect to Ruhbayan’s sentences. As a result of the error, Ruhbayan was sentenced to a total term of imprisonment greater than that

authorized by the jury verdict, seriously affecting "the fairness, integrity or public reputation of [the] judicial proceedings." Olano, 507

U.S. at 732 (internal quotation marks omitted); see also Hughes, 2005

WL 628224, at *13. Furthermore, we have no indication as to what

sentences the court would have imposed absent its impermissible factfinding, in that its successive calculations, including the upward

departure under § 5K2.0, were premised upon the application of

§ 3B1.1(a). We are thus obliged to vacate Ruhbayan’s sentences and

remand for resentencing consistent with Booker and its progeny. See

125 S. Ct. at 768-69.

2.

Under the first step of the Booker remedial scheme, a sentencing

court must determine the range prescribed by the Guidelines after

making any necessary findings of fact. See Hughes, 2005 WL

628224, at *14. As a result, the calculation issues raised in this appeal

are likely to arise in the district court on remand. See id. We therefore

briefly address Ruhbayan’s most significant sentencing contention,

that the sentencing court improperly applied a § 3B1.1(a) enhancement to his sentences. 

Section 3B1.1(a) of the Guidelines provides that, "[i]f the defendant was an organizer or leader of a criminal activity that involved

five or more participants or was otherwise extensive," the sentencing

court shall increase the offense level by four. USSG § 3B1.1(a). Ruhbayan does not challenge the sentencing court’s determination that he

was an organizer or leader within the meaning of § 3B1.1, but he

asserts that the court erred in finding that his criminal activity was

"otherwise extensive." In making such a determination, a sentencing

court may consider "all persons involved during the course of the

entire offense." USSG § 3B1.1, comment. (n. 3). For example, "a

UNITED STATES v. RUHBAYAN 13
fraud that involved only three participants but used the unknowing

services of many outsiders could be considered extensive." Id. Here,

the sentencing court found that, although Ruhbayan’s scheme

involved just two participants (Goodman and Ruhbayan), it was "otherwise extensive" because it included the unknowing services of Melton, his staff, and, "most importantly, the twelve jurors who returned

verdicts based upon the perjured testimony presented at the [First

Trial]." United States v. Ruhbayan, 302 F. Supp. 2d 634, 636 (E.D.

Va. 2004). 

In this situation, however, the jurors in the First Trial were the

objects of Ruhbayan’s criminal scheme to obstruct justice, and they

could hardly have been involved in the commission of the offenses.

For that reason, this situation is readily distinguishable from that

underlying United States v. Ellis, 951 F.2d 580 (4th Cir. 1991) (Powell, J.), upon which the sentencing court relied. Ellis involved a

scheme to corruptly secure the passage of legislation in West Virginia. Although the corrupt scheme involved only four participants,

we upheld the application of the § 3B1.1(a) enhancement because the

unknowing services of lobbyists, legislators, and their staffs advanced

the criminal activity. Ellis, 951 F.2d at 585. In this case, the jurors in

the First Trial did nothing to advance Ruhbayan’s scheme. Ruhbayan’s scheme was simply to obstruct justice by lying to the court and

the jury and having his girlfriend do likewise, and it was not "otherwise extensive" under § 3B1.1(a). As a result, enhancing Ruhbayan’s

offense level under § 3B1.1(a) for exercising a leadership role in "otherwise extensive" criminal activity is not appropriate. 

III.

Pursuant to the foregoing, we affirm Ruhbayan’s various convictions, but we vacate his sentences and remand for such resentencing

proceedings as may be appropriate.

AFFIRMED IN PART, VACATED IN PART,

AND REMANDED

14 UNITED STATES v. RUHBAYAN