*

The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio,

sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0216p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

MCMAINE ALLEN O’GEORGIA (05-2598);

a/k/a MARK ARHEBAMEN (06-2505),

 Defendant-Appellant.

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,

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Nos. 05-2598; 06-2505

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

Nos. 99-80353; 02-80761—Gerald E. Rosen, Chief District Judge;

Lawrence P. Zatkoff, District Judge.

Submitted: March 13, 2009

Decided and Filed: June 24, 2009 

Before: MARTIN and GILMAN, Circuit Judges; ZOUHARY, District Judge.*

_________________

COUNSEL

ON BRIEF: Martin J. Beres, LAW OFFICES OF MARTIN J. BERES, Clinton

Township, Michigan, for Appellants. Alan Hechtkopf, Elissa Hart-Mahan, John Hinton

III, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

McMaine Allen O’Georgia, Mark Arhebamen, Rochester, Minnesota, pro se.

GILMAN, J., delivered the opinion of the court, in which MARTIN, J., joined.

ZOUHARY, D. J. (pp. 23-38), delivered a separate opinion dissenting in part and

concurring in part.

1
Nos. 05-2598; 06-2505 United States v. O’Georgia et al. Page 2

_________________

OPINION

_________________

RONALD LEE GILMAN, Circuit Judge. Mark Arhebamen, also known as

McMaine Allen O’Georgia, pled guilty in 2001 to one count of aiding and assisting in

the preparation of a false federal income tax return. He received a sentence of 21 months

of imprisonment plus one year of supervised release. This court affirmed his conviction

and sentence, but the Supreme Court remanded the case in 2005 for resentencing in light

of United States v. Booker, 543 U.S. 220 (2005). The district court reimposed the same

sentence.

While the appeal of his conviction and sentence was pending, Arhebamen was

prosecuted separately for conduct that occurred during the false-tax-return proceedings.

The new charges were for failure to appear at sentencing, making false claims of United

States citizenship, corruptly endeavoring to obstruct justice by lying to the Probation

Office, and making false statements to judicial officials. Arhebamen was tried before

a jury in 2003 on these new charges and was convicted on all counts. After applying six

different upward departures under the United States Sentencing Guidelines, the district

court sentenced Arhebamen to 152 months of imprisonment and to four years of

supervised release. This court affirmed Arhebamen’s conviction, but remanded for

resentencing pursuant to Booker. The district court again imposed the 152-month

sentence and the four-year term of supervised release.

Arhebamen now appeals both sentences. For the reasons set forth below, we

VACATE the sentences and REMAND the cases to the district court for resentencing

consistent with this opinion.

I. BACKGROUND

These appeals have each come before this court once before, and our summary

of the relevant factual and procedural background is largely drawn from United States

v. Arhebamen, 197 F. App’x 461 (6th Cir. 2006). Arhebamen came to the United States
Nos. 05-2598; 06-2505 United States v. O’Georgia et al. Page 3

from Nigeria in 1977 on a visitor’s visa and has never left. He obtained a Social

Security number later that year and applied for, but never received, permanent resident

status. In 1979, he obtained a second Social Security number, this time claiming to be

a United States citizen named McMaine Allen O’Georgia. Arhebamen used this alias

for more than twenty years.

In 1999, Arhebamen was indicted in the district court under the O’Georgia alias

on 22 counts of aiding and assisting in the preparation of false federal income tax

returns, in violation of 26 U.S.C. § 7206. He pled guilty to one of those tax-fraud counts

before District Judge Gerald E. Rosen in February 2001. During the plea proceeding,

Arhebamen represented that he was a citizen of the United States. Judge Rosen released

him on bond pending sentencing.

Arhebamen visited a physician in June 2001 and reported that he suffered

auditory and visual hallucinations. The doctor made a provisional diagnosis of paranoid

schizophrenia and prescribed medication. Arhebamen secured a one-month extension

of his sentencing date as a result of the doctor’s statements that he had entered her care

and that she hoped to stabilize his condition before he returned to court. During this

extension period, Arhebamen moved from Michigan to Arizona in violation of his

conditions of release. Arhebamen saw a second physician in Arizona, who also

recommended that his sentencing be postponed. After the district court rejected this

second request, Arhebamen failed to appear for his scheduled sentencing before Judge

Rosen in July 2001.

Arhebamen was arrested soon thereafter and returned to Michigan, where Judge

Rosen sentenced him to 21 months of imprisonment and one year of supervised release

on the plea-based tax-fraud conviction. The conviction and sentence were affirmed on

appeal, United States v. O’Georgia, 80 F. App’x 439 (6th Cir. 2003), but the Supreme

Court later remanded the case for resentencing in light of Booker, 543 U.S. at 245-46

(holding that the Sentencing Guidelines are now advisory). Although by that point

Arhebamen had long since completed his 21 months of imprisonment, Judge Rosen

reimposed the same sentence plus the one year of supervised release in November 2005.
Nos. 05-2598; 06-2505 United States v. O’Georgia et al. Page 4

Arhebamen, who remains in prison due to his conviction on the second case described

below, now appeals that decision.

While the tax-fraud appeal and resentencing were pending, Arhebamen was

indicted anew for conduct that occurred during the tax-fraud proceedings. The charges

were for failure to appear at sentencing, in violation of 18 U.S.C. § 3146(a)(1); making

false claims of United States citizenship, in violation of 18 U.S.C. § 911; corruptly

endeavoring to obstruct justice by lying to the Probation Office, in violation of 18 U.S.C.

§ 1503; and two counts of making false statements to judicial officials, in violation of

18 U.S.C. § 1001. United States District Judge Lawrence P. Zatkoff presided over the

second case.

Arhebamen filed various pro se pretrial motions that sought, among other things,

the recusal of Judge Zatkoff, a change of venue due to alleged negative publicity, and

the exclusion of several of Arhebamen’s state convictions from evidence. Judge Zatkoff

denied all of these motions, and this court dismissed each of Arhebamen’s ten

interlocutory appeals from those rulings. This court has also denied at least five other

appeals by Arhebamen that involve this second case, including duplicate appeals and a

habeas corpus petition.

In response to Arhebamen’s notice that he planned to offer an insanity defense

at trial, Judge Zatkoff ordered him to submit to a mental evaluation. After considering

Arhebamen’s interlocutory appeal on whether the mental evaluation should be ordered,

this court affirmed the district court’s order. United States v. Arhebamen, 79 F. App’x

104, 105 (6th Cir. 2003). The court-appointed physician concluded, “based on the

marked discrepancies between his claimed distress and the observations of his ability to

function, his atypical lack of cooperation with psychological testing, his exaggerated

psychological symptoms, and his lengthy history of general fabrication,” that

Arhebamen was likely fabricating his complaints. No diagnosis was offered. Following

a hearing at which the court-appointed physician testified about her observations, Judge

Zatkoff found that Arhebamen was competent to stand trial. Arhebamen then proceeded

to trial pro se. The jury returned a verdict of guilty on all counts.
Nos. 05-2598; 06-2505 United States v. O’Georgia et al. Page 5

Arhebamen was sentenced in April 2004. The district court used the 2000

version of the Sentencing Guidelines to determine that Arhebamen’s initial offense level

was 19 and his criminal history category was V. This led to a Guidelines range of 57 to

71 months of imprisonment. But the district court increased Arhebamen’s total offense

level to 28 after adding two levels for obstruction of justice, two levels for disrupting the

sentencing proceedings in his tax-fraud case, two levels for moving to Arizona, one level

for extent of planning, and two levels for concealing his false claim to United States

citizenship. In addition, the court increased Arhebamen’s criminal history category from

V to VI after finding that category V underrepresented the seriousness of his prior

criminal record. The court thus concluded that Arhebamen was subject to a Guidelines

range of 140 to 175 months of imprisonment, and sentenced him to 152 months.

Arhebamen appealed. After affirming Arhebamen’s convictions, this court

remanded the case for reconsideration of the sentence in light of Booker. Arhebamen,

197 F. App’x at 468. Judge Zatkoff, incorporating his prior sentencing memorandum

by way of explanation, reimposed the same 152-month sentence and accompanying fouryear period of supervised release. Arhebamen again appeals. He argues both that the

district court abused its discretion in departing upward and that the resulting sentence

is substantively unreasonable.

II. ANALYSIS

A. Standard of review

A district court’s sentencing determination is reviewed “under a deferential

abuse-of-discretion standard” for reasonableness, which has both a procedural and a

substantive component. Gall v. United States, 128 S. Ct. 586, 591 (2007). We must first

ascertain whether the district court committed a procedural error. Id. at 597; United

States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005). A district court necessarily abuses

its sentencing discretion if it

commit[s][a] significant procedural error, such as failing to calculate (or

improperly calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the § 3553(a) factors, selecting a sentence
Nos. 05-2598; 06-2505 United States v. O’Georgia et al. Page 6

based on clearly erroneous facts, or failing to adequately explain the

chosen sentence—including an explanation for any deviation from the

Guidelines range.”

Gall, 128 S. Ct. at 597.

Our review of a district court’s decision to depart upward from the now-advisory

Guidelines employs the same “standards we use to judge the procedural and substantive

reasonableness of a variance from any [g]uidelines range.” United States v. Vowell, 516

F.3d 503, 510 (6th Cir. 2008) (internal quotation marks omitted) (alterations in original).

See generally Irizarry v. United States, 128 S. Ct. 2198, 2201-03 (2008) (clarifying the

distinction between a departure—“a term of art under the Guidelines [that] refers only

to non-Guidelines sentences imposed under the framework set out in the

Guidelines”—and a § 3553-supported variance). But even if we determine that the

district court committed a procedural error by utilizing an inapplicable departure

provision, a remand is unnecessary if the “error was harmless—i.e.[,] any such error ‘did

not affect the district court's selection of the sentence imposed.’” United States v.

Hazelwood, 398 F.3d 792, 801 (6th Cir. 2005) (quoting Williams v. United States, 503

U.S. 193, 203 (1992)). In other words, the erroneous application of a departure

provision is harmless where the district court independently supports its choice of a

sentence by a proper use of the § 3553(a) factors. See United States v. Erpenbeck, 532

F.3d 423, 441 (6th Cir. 2008) (affirming a sentence despite an erroneous departure

pursuant to U.S.S.G. § 5K2.3 “because the sentence was sufficiently justified based upon

the 18 U.S.C. § 3553(a) factors alone.”).

If a district court’s sentencing decision is procedurally sound, we then proceed

to “consider the substantive reasonableness of the sentence imposed under an

abuse-of-discretion standard[,] . . . tak[ing] into account the totality of the circumstances,

including the extent of any variance from the Guidelines range.” Id. (alterations in

original). For sentences within the Guidelines range, we apply a rebuttable presumption

of substantive reasonableness. Id.; Rita v. United States, 127 S. Ct. 2456, 2462 (2007);

United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006). No “presumption of
Nos. 05-2598; 06-2505 United States v. O’Georgia et al. Page 7

unreasonableness,” however, applies to sentences outside of the Guidelines range. Gall,

128 S. Ct. at 597 (emphasis added).

B. Arhebamen’s 21-month tax-fraud sentence

Arhebamen had completed his 21-month sentence based on his guilty plea to tax

fraud long before he was resentenced to that same term in 2005. The corresponding oneyear term of supervised release is still pending, however, because Arhebamen is

currently serving the 152-month sentence on his second conviction. Only the one-year

term of supervised release saves his appeal in the first case from mootness. See United

States v. Maken, 510 F.3d 654, 656 n.3 (6th Cir. 2007) (noting that even if the relevant

term of incarceration has been served, an appeal of a sentence “is not moot so long as

the appeal potentially implicates the length of the . . . supervised release term.” (internal

quotation marks omitted)); United States v. Lewis, 166 F. App’x 193, 195 (6th Cir. 2006)

(holding that, where the appellant had completed his custodial sentence, any challenge

to that portion of the sentence was moot). Arhebamen argues that we should remand the

case for reconsideration of the one-year term of supervised-release because the district

court allegedly treated that portion of the sentence as mandatory.

When Arhebamen originally received his sentence in 2001, the district court was

required to include the one-year term of supervised release. See U.S.S.G. §§ 5D1.1-2

(mandating one year of supervised release to follow a Class E felony sentence of more

than one year). But the Guidelines that define supervised-release sentences, like those

that calculate terms of imprisonment, are now advisory. Maken, 510 F.3d at 656 n.3

(noting that Booker also governs sentences of supervised release). In resentencing

Arhebamen, the district court simply stated that “for all of the reasons that the Court has

indicated and after due consideration of the sentencing guidelines and the factors

reflected therein, as well as the factors contained in [18 U.S.C. § 3553], the Court

resentences this defendant to a sentence of 21 months. . . .” The court went on to

summarily reimpose the same one-year term of supervised release, stating that

“[f]ollowing the defendant’s release from imprisonment, he will be placed on a term of

supervised release for a period of one year.”
Nos. 05-2598; 06-2505 United States v. O’Georgia et al. Page 8

According to the statute that controls supervised-release sentencing, most of the

factors from § 3553(a) must be considered by a district court in imposing a term of

supervised release. 18 U.S.C. § 3583(c). Arhebamen argues that his reimposed sentence

was procedurally unreasonable because the district court failed to consider its authority

to impose a shorter period of supervised release than the one-year term dictated by the

previously mandatory Guidelines and did not perform the analysis required by

§§ 3553(a) and 3583(c).

We agree with Arhebamen that the supervised-release term was summarily

imposed without an adequate explanation. Contrary to the suggestion of our dissenting

colleague, our conclusion regarding this issue is not based upon the district court’s

failure to repeat its § 3553(a) analysis with respect to the supervised-release term. Such

repetition would serve no useful purpose in the ordinary case. See, e.g., United States

v. Berry, No. 08-1048, — F.3d —, 2009 WL 1323556 at *9 (6th Cir. 2009) (holding that

a district court need not repeat the § 3553(a) factors when determining whether to

impose a sentence consecutively or concurrently). Rather, the procedural error here

stems from the district court’s failure to recognize that Arhebamen’s completion of his

custodial sentence rendered that portion moot at the resentencing stage. This error is

apparent in the sentencing court’s incorrect statement that it “could, in fact, sentence

[Arhebamen] to a higher sentence than . . . the last time because the guidelines are not

mandatory.” The context surrounding that statement clearly shows that the quoted

remark refers to the custodial portion of the sentence.

We therefore conclude that the district court erred when it reimposed a custodial

sentence that had already been served, and we decline to transfer the district court’s

perfunctory § 3553(a) analysis with respect to the moot custodial sentence to its

analysis-free reimposition of the supervised-release term. In light of this procedural

error, we remand the case to the district court for consideration of whether the nowadvisory period of supervised release is appropriate in this case. See, e.g., Lewis, 166

F. App’x at 196 (vacating a supervised-release sentence in a case where the custodial

sentence was moot and remanding for reconsideration pursuant to § 3583(c)).
Nos. 05-2598; 06-2505 United States v. O’Georgia et al. Page 9

C. Arhebamen’s 152-month sentence

We now turn to Arhebamen’s appeal of the sentence that he is currently

serving—the 152 months of imprisonment for failure to appear at sentencing, making

false claims of United States citizenship, corruptly endeavoring to obstruct justice by

lying to the Probation Office, and making false statements to judicial officials.

Arhebamen argues that the district court abused its discretion when it increased his total

offense level from 19 to 28 and his criminal history category from V to VI. These

increases more than doubled the applicable Guidelines range.

A district court that considers a departure from the Guidelines range must decide

whether any features of the case “take it outside the Guidelines’ ‘heartland’ and make

it a special, or unusual, case.” United States v. Erpenbeck, 532 F.3d 423, 439-40 (6th

Cir. 2008) (quoting Koon v. United States, 518 U.S. 81, 95 (1996)). The court must then

proceed to determine whether “the Commission [has] forbidden departures based on

those features” and, if not, whether a departure based on those features is either

encouraged or discouraged by the Commission. Koon, 518 U.S. at 95. We will consider

each of the upward departures in this case individually. Because the district court used

the 2000 version of the Sentencing Guidelines Manual, all references are to that version.

1. Departure for obstruction of justice

In its calculation of Arhebamen’s base offense level, the district court applied a

two-level enhancement under § 3C1.1 of the Sentencing Guidelines for providing

materially false testimony during the trial. The district court supported the enhancement

for obstruction of justice by enumerating four instances where Arhebamen perjured

himself: (1) false statements regarding his name, birth date, and place of birth; (2) false

claims about having informed his probation officer about his use of the name Mark

Arhebamen; (3) a false statement that Judge Rosen’s clerk had told him not to worry

about appearing for his sentencing in the tax-fraud case, and (4) a false claim that he had

taken correspondence courses from Oxford University Press.
Nos. 05-2598; 06-2505 United States v. O’Georgia et al. Page 10

In addition to the § 3C1.1 obstruction enhancement, the district court applied a

two-level upward departure pursuant to U.S.S.G. § 5K2.0, stating that “[t]he extent of

[Arhebamen’s] willful and obstructive behavior . . . is not adequately taken into

consideration by the 2 level enhancement of § 3C1.1.” The court reasoned that

Arhebamen’s obstructive behavior fell “outside the heartland of cases considered by the

Sentencing Guidelines” because he not only committed perjury at trial, but also: (1) filed

many appeals of unappealable orders during the trial, (2) refused to accept case-related

documents that his counsel offered to Arhebamen for review—behavior that resulted in

a contempt order that was later purged, and (3) filed a meritless request for the district

judge to recuse himself. According to the court, this behavior warranted the two-level

§ 5K2.0 upward departure in addition to the two-level § 3C1.1 obstruction enhancement

because such “conduct demonstrates a pattern of abuse of the judicial system by

[Arhebamen] and . . . related directly to his attempts to exert undue influence on the . . .

proceedings.”

Section 5K2.0 provides that the district court may “impose a sentence outside the

range established by the applicable guidelines” where “there exists an aggravating or

mitigating circumstance of a kind, or to a degree, not adequately taken into consideration

by the Sentencing Commission.” Departures under this section therefore fall into two

categories—departures based on facts of a different kind than those taken into account

by the underlying Guidelines and departures where the relevant circumstance is present

to an unusually large or small degree. The district court here did not opine that

Arhebamen had perjured himself at trial to an unusual degree, but rather concluded that

Arhebamen’s meritless appeals and frivolous motions, together with his refusal to accept

documents offered by his attorney, warranted the § 5K2.0 departure. In other words, this

case falls in the first category of departures purportedly based on circumstances of a kind

not contemplated by the underlying obstruction-of-justice Guideline.

Arhebamen argues that the relevant “extraordinary” facts here are not of a kind

that warrants a § 5K2.0 departure. We agree. In essence, the district court applied the
Nos. 05-2598; 06-2505 United States v. O’Georgia et al. Page 11

§ 5K2.0 departure because Arhebamen’s abysmal lawyering on his own behalf

unnecessarily delayed the proceedings against him.

The district court cited two cases in support of its decision to add a § 5K2.0

departure onto the §3C1.1 obstruction enhancement. One of the cases is United States

v. Furkin, 119 F.3d 1276, 1284 (7th Cir. 1997), where the court affirmed a § 5K2.0

departure because the defendant’s “conduct was far more severe than the ordinary case

where the obstruction of justice enhancement applies.” The defendant in that case had

instructed three witnesses to lie to the grand jury, had encouraged two others to sign

back-dated leases, and had intimidated another. Id. at 1283-84. He also hid the profits

of his illegal gambling business. Id. at 1284. Such conduct, according to the court,

constituted obstruction to a greater degree than in the usual §3C1.1 obstructionenhancement case. Id. Arhebamen’s case, by contrast, involves a departure based on

conduct of an entirely different kind than his obstruction-enhancement conduct of

perjury.

The second case cited by the district court, United States v. Ventura, 146 F.3d 91

(2d Cir. 1998), is more on point because it is an “of a kind” case like Arhebamen’s. In

Ventura, the district court first enhanced the sentence pursuant to § 3C1.1 due to the

defendant’s failure to appear at sentencing, and then departed upward under § 5K2.0

because the defendant also submitted a fraudulent birth certificate. Id. at 96. The

Second Circuit affirmed, noting that “departure may be especially justified where, as

here, the defendant obstructed justice more than once through wholly discrete and

unrelated acts.” Id. at 97.

Another case, United States v. Black, 78 F.3d 1, 5 (1st Cir. 1996), has been cited

by the government in support of the departure. In Black, the defendant perjured himself

at trial, resulting in a § 3C1.1 enhancement, and also attempted to hide assets in order

to frustrate the collection of a fine or restitution. Id. The First Circuit upheld the district

court’s imposition of a § 5K2.0 departure for the latter conduct because it amounted to

“a different act of obstruction.” Id. at 6.
Nos. 05-2598; 06-2505 United States v. O’Georgia et al. Page 12

Both Ventura and Black rested their § 5K2.0 departures upon separate acts of

obstructive conduct similar to those set forth in § 3C1.1. Here, by contrast, the

additional conduct relied upon by the district court—Arhebamen’s filing of meritless

appeals and recusal motions as well as his refusal to accept documents offered by his

attorney—are not remotely analogous to the examples of obstructive behavior listed in

§ 3C1.1, which include perjury, failure to appear for a proceeding, providing false

statements to judges and other officials, tampering with witnesses, and the like.

Arhebamen’s acts were basically those of an overzealous pro se advocate. Although

such behavior is undoubtedly annoying from the district court’s point of view, it is not

“obstructive” in the sense suggested by § 3C1.1. Our dissenting colleague, however,

describes Arhebamen’s conduct as “a deliberate effort to delay and frustrate court

proceedings” that “was so egregious as to be outside the heartland of similar cases.”

(Dissenting Op. at 32, 33) In our view, these characterizations are simply not supported

by the record.

Moreover, Application Note 7 to § 3C1.1 makes clear that the enhancement

under that provision should not be applied in cases where the charged offense is also an

obstruction offense, “except if a significant further obstruction occurred during the

investigation, prosecution, or sentencing of the obstruction offense itself (e.g., if the

defendant threatened a witness during the course of the prosecution for the obstruction

offense).” Arhebamen’s perjury at his trial presumptively qualifies as an “obstruction

offense,” although we need not decide that issue because Arhebamen does not challenge

the application of the § 3C1.1 enhancement itself. But in light of the high bar for

§ 3C1.1’s application in this type of case, we conclude that the district court’s decision

to tack an additional departure under § 5K2.0 onto § 3C1.1 was erroneous.

The Sentencing Commission makes no provision for upward departures based

upon a pro se defendant’s meritless filings—however vexatious, numerous, or annoying.

Nor does any case to our knowledge endorse such a departure. We therefore conclude

that a § 5K2.0 departure may not be based on a defendant’s poor performance as a pro

se advocate regardless of the district court’s conclusion that the defendant’s conduct
Nos. 05-2598; 06-2505 United States v. O’Georgia et al. Page 13

“obstructed” the proceedings. Such a departure amounted to a procedural error in the

form of “failing to calculate (or improperly calculating) the Guidelines range . . . .” Gall,

128 S. Ct. at 597.

2. Departures related to the conviction for failing to appear at

sentencing

The next two departures imposed by the district court related to Arhebamen’s

conviction for failure to appear at sentencing in his tax-fraud case. In connection with

his failure to appear, Arhebamen obtained reports from two physicians who

recommended postponement of the sentencing hearing. He also moved to Arizona

without authorization. The district court invoked the Guidelines departure provisions

to increase Arhebamen’s sentence in response to those acts. We will address the two

departures in turn.

a. Disrupting sentencing proceedings

The district court imposed a two-level upward departure pursuant to U.S.S.G.

§ 5K2.7, which relates to the disruption of governmental functions. This departure was

imposed because Arhebamen not only failed to appear for sentencing in the tax-fraud

case, but also “misled [two physicians] about his background and circumstances and

used letters from [the physicians] to manipulate proceedings before Judge Rosen and

avoid being sentenced.” The court stated that Arhebamen “actively solicited [the two

physicians’] unknowing assistance,” and concluded that such manipulation “and the

corresponding adjournment of sentencing is an unusual aggravating circumstance that

was not adequately considered by the Sentencing Guidelines.” Reasoning that the

“conduct resulted in the significant disruption of a government function (i.e., the timely

sentencing of the Defendant),” the court imposed a § 5K2.7 departure.
Nos. 05-2598; 06-2505 United States v. O’Georgia et al. Page 14

The policy statement regarding § 5K2.7 provides that

[d]eparture from the guidelines ordinarily would not be justified when

the offense of conviction is an offense such as bribery or obstruction of

justice; in such cases interference with a governmental function is

inherent in the offense, and unless the circumstances are unusual the

guidelines will reflect the appropriate punishment for such interference.

Both parties agree that the underlying offense here—the failure to appear for

sentencing—is one in which “interference with a governmental function is inherent.”

Id. A Guidelines departure is therefore appropriate only if the “circumstances are

unusual,” such that the underlying Guideline does not “reflect the appropriate

punishment” for Arhebamen’s failure to appear at his July 2001 sentencing in the taxfraud case. Id.

Arhebamen argues that his alleged manipulation of the two physicians does not

create “unusual circumstances” warranting additional punishment. He contends that

“obtaining an adjournment of less than a month [by obtaining a recommendation from

the first physician] hardly constitutes an extraordinary or egregious disruption of the

administration of justice,” and that “the fact that [he] enlisted the support of a report by

[the second physician] did not make the delay any longer, nor did it disrupt the judicial

process any further.” The government argues in response that “the circumstances

surrounding defendant’s failure to appear [were] particularly significant” because they

“involved the unwitting involvement of third parties.”

In support of this argument, the government cites United States v. Heckman, 30

F.3d 738 (6th Cir. 1994). That case involved a conviction for filing false documents

with the IRS—an inherently disruptive act. The court affirmed the application of a

§ 5K2.7 departure because, in addition to attempting to avoid his own tax liability, the

defendant “used the IRS to harass numerous persons who had the misfortune of coming

into contact with him.” Id. at 743. According to the government, Arhebamen’s alleged

harassment of the two physicians as innocent third parties makes Heckman like this case.

But Arhebamen did not harass the physicians or cause them any harm or inconvenience;
Nos. 05-2598; 06-2505 United States v. O’Georgia et al. Page 15

rather, he lied to them about the seriousness of the charges against him and his criminal

background in an initially successful attempt to delay his sentencing.

No case cited by the government suggests that the means employed by a

defendant to interfere with a government function is material in deciding whether to

apply the § 5K2.7 departure. Instead, the caselaw supports the proposition that such a

departure is appropriate where the harm is greater than usual for the initial governmentinterfering offense, or where the defendant has interfered with a second, independent

government function. See Heckman, 30 F.3d at 743; United States v. Garcia, 900 F.2d

45, 49 (5th Cir. 1990) (affirming a § 5K2.7 departure for a defendant convicted of mail

theft because the scale of the operation caused an unusually serious disruption of the

mail); United States v. Anderson, 353 F.3d 490, 508 (6th Cir. 2003) (superceded by

statute on other grounds as recognized in United States v. McBride, 362 F.3d 360, 374

(6th Cir. 2004)) (affirming a § 5K2.7 upward departure from a tax-fraud sentence for the

defendants’ disruptive behavior at trial).

In this case, Arhebamen’s lies to the first physician delayed his sentence by one

additional month beyond the delay that would have ensued had he simply failed to

appear for his original sentencing date. No additional delay was caused by the report of

the second physician. Nor does the record reflect that the physicians themselves were

harmed or even inconvenienced by Arhebamen’s dishonest interactions with them. In

light of § 5K2.7’s command that the departure not apply except in unusual

circumstances, we conclude that the district court abused its discretion in departing

upward by two levels on the basis of a one-month delay to Arhebamen’s sentencing.

The underlying Guideline § 2J1.6 adequately accounts for the harm caused by

Arhebamen’s failure to appear at his sentencing, making the use of § 5K2.7 to add

additional punishment a procedural error.
Nos. 05-2598; 06-2505 United States v. O’Georgia et al. Page 16

b. Relocation to Arizona

During the one-month extension period that the district court granted in response

to the first physician’s report, Arhebamen moved to Arizona in direct defiance of his

pretrial-services officer’s orders. In response to this act, the court imposed an additional

departure pursuant to § 5K2.0 in connection with the conviction for failure to appear at

sentencing. The district court decided that a two-level upward departure was appropriate

for Arhebamen’s move to Arizona by employing an “analogy to § 2F1.1(b)(6)(A)

(2 level Specific Offense Characteristic where Defendant ‘relocated or participated in

relocating, a fraudulent scheme in order to avoid law enforcement or regulatory

officials’).”

As set forth above, § 5K2.0 departures are appropriate where the case involves

characteristics “of a kind, or to a degree, not adequately taken into consideration by the

Sentencing Commission.” The government argues that this departure was appropriate

because the “relocation—in direct contravention of the orders of his pretrial services

officer—was a serious aggravating circumstance” that demonstrated “total disregard for

the authority of the district court and ma[d]e [this] case much different from the average

failure to appear case.” Arhebamen counters that because the jurisdiction of the U.S.

Marshall is nationwide, he was at all times “within the grasp of the authorities to return

him to custody,” and “[t]he fact that he did not stay in the Eastern District of Michigan

can hardly be characterized as unusual or extraordinary so as to impose an additional

2 levels of departure.”

We do not find the district court’s analogy to U.S.S.G. § 2F1.1(b)(6)(A)

persuasive here. Nothing in the record reflects that Arhebamen relocated in order “to

avoid law enforcement or regulatory officials” or the authority of the court. See id. To

the contrary, Arhebamen’s wife provided a forwarding address to the pretrial-services

officer and, as a result, Arhebamen was promptly arrested after he failed to appear. In

light of these facts, Arhebamen’s move to Arizona did not take his failure to appear for

sentencing out of the “heartland” of similar cases, or burden the government in any

unusual way. We are also unaware of any case that endorses the use of § 5K2.0 under
Nos. 05-2598; 06-2505 United States v. O’Georgia et al. Page 17

analogous circumstances. In sum, we conclude that the district court committed a

procedural error in imposing this two-level upward departure.

3. Departures related to the false-statements convictions

The next two departures at issue in this case involve Arhebamen’s convictions

for making false statements to the United States Probation Office. We address each in

turn.

a. Extent of planning

The district court again employed § 5K2.0—the general departure provision for

acts “of a kind, or to a degree, not adequately taken into consideration by the Sentencing

Commission”—to further enhance Arhebamen’s sentence under U.S.S.G.

§ 2F1.1(b)(2)(A). According to the district court, Arhebamen’s

false statements to the Probation Department involved more than

minimal planning within the meaning of § 1B1.1 cmt. n.1(f), and a 2

level enhancement of [the false-statement convictions] is appropriate

pursuant to § 2F1.1(b)(2)(A). This 2 level enhancement, however, does

not adequately take into account the extensiveness and history of the

planning that has gone into the Defendant’s false claim to the identity of

McMaine Allen O’Georgia, and an upwards departure is warranted.

The § 2F1.1(b)(2)(A) enhancement applies in cases where the extent of planning

is “more . . . than is typical for commission of the offense in its typical form,” and is

“deemed present in any case involving repeated acts over a period of time.” U.S.S.G.

§ 1B1.1 cmt. 1(f) (defining “more than minimal planning”). According to the district

court, the specific enhancement was insufficient to capture the full extent of

Arhebamen’s use of the O’Georgia alias, which lasted more than twenty years. The

court thus added an additional one-level departure pursuant to § 5K2.0 because the

degree of planning extended over such a long period of time.

Arhebamen argues that the district court abused its discretion in invoking this

one-level departure because “[t]he fact that a defendant in a fraud type offense used an

alias for a lengthy period of time is not extraordinary, and the district court failed to

provide any evidence that this case should be so considered.” We disagree. Because the
Nos. 05-2598; 06-2505 United States v. O’Georgia et al. Page 18

district court is in the best position to compare a wide variety of cases over time, it has

wide discretion to decide how much planning is extraordinary, such that the “more than

minimal planning” enhancement is insufficient on its own.

Arhebamen’s multi-decade, elaborate attempt to take on his invented identity

certainly involved an extraordinary number of “repeated acts over a period of time.” We

therefore conclude that the district court did not abuse its discretion by invoking this

one-level departure pursuant to § 5K2.0. See, e.g., United States v. Kay, 83 F.3d 98, 102

(5th Cir. 1998) (“[T]he repetitiveness, intricacy, and sophistication of Kay’s scheme

were substantially in excess of that which ordinarily is involved in the crime of bank

fraud, and . . . this level of malfeasance was not accounted for by the ‘more than minimal

planning’ adjustment.”).

b. Concealing a prior crime

The district court next employed U.S.S.G. § 5K2.9 to depart upward by two

levels because Arhebamen “falsely claimed that he had been born in Albany, Georgia

on May 5, 1955 . . . in order to conceal the commission of another offense—i.e., his prior

False Claim to U.S. Citizenship during the guilty plea before Judge Rosen.” Section

5K2.9 states that “[i]f the defendant committed the offense in order to facilitate or

conceal the commission of another offense, the court may increase the sentence above

the guideline range to reflect the actual seriousness of the defendant’s conduct.”

Arhebamen argues “that there is no evidence that he made false statements in

order to conceal the commission of another offense,” and that the consistent use of the

O’Georgia alias for such a long period suggests a lack of such a purpose. The

government responds by pointing out that Arhebamen’s consistency in using his false

identity in fact “emphasizes his criminal purpose,” noting that he “did not accidentally

adopt the identity of McMaine O’Georgia; rather, it was part of a deliberate and

sophisticated plan” for the purpose of “conceal[ing] his true identity.”

Arhebamen has been subject to removal from the United States since the

expiration of his visitor’s visa in the late 1970s. The district court therefore reasonably
Nos. 05-2598; 06-2505 United States v. O’Georgia et al. Page 19

concluded that Arhebamen did not call himself O’Georgia for two decades simply

because he preferred the name, but rather because he wished to avoid removal from the

United States. No abuse of discretion is apparent in the district court’s determination

that each time Arhebamen gave the name O’Georgia—to the court, the Probation Office,

or others—he did so at least in part for the criminal purpose of concealing his past

commissions of identity fraud.

4. Inadequacy of criminal history

Finally, the district court departed upward in this case “[b]ased upon the nature

of [Arhebamen’s] criminal history, and the likelihood that [he] will recidivate.” The

district court employed U.S.S.G. § 4A1.3, which provides that when “reliable

information indicates that the criminal history category does not adequately reflect the

seriousness of the defendant’s past criminal conduct or the likelihood that the defendant

will commit other crimes, the court may consider imposing a sentence departing from

the otherwise applicable guideline range.” In support of this final departure, the court

cited, among other things, Arhebamen’s extended unlawful presence in the United

States, the extensive scope of his tax-fraud activities (preparing 171 false federal income

tax returns), civil judgments against him totaling more than $150,000, a period of about

two months in 1995 when he was married to two women at the same time, and the more

than $280,000 of unpaid child support that he owed at the time to one of his ex-wives.

The district court thus adjusted Arhebamen’s criminal history category from V to VI.

Section 4A1.3 provides that a departure for the underrepresentation of a

defendant’s criminal history category is appropriate where “prior sentence(s) of

substantially more than one year [were] imposed as a result of independent crimes

committed on different occasions” and where “prior similar misconduct [was]

established by a civil adjudication or by a failure to comply with an administrative

order.” U.S.S.G. § 4A1.3 (b)-(c). The district court’s consideration of Arhebamen’s

wrongdoings, particularly his outstanding civil debts and child support, was therefore

appropriate. We find no error in the district court’s decision to increase Arhebamen’s

criminal history category from V to VI.
Nos. 05-2598; 06-2505 United States v. O’Georgia et al. Page 20

D. Corrected advisory range

As set forth above, the district court erred in imposing two-level increases in

Arhebamen’s offense level for obstruction of justice, pursuant to § 5K2.0; for disruption

of a governmental function by lying to his physicians in an attempt to postpone

sentencing, pursuant to § 5K2.7; and for moving to Arizona, pursuant to § 5K2.0. These

errors amount to “significant procedural error” in the form of an improper calculation

of the Guidelines range. See Gall v. United States, 128 S. Ct. 586, 597 (2007). The

corrected offense level in this case is thus 22 (instead of 28), with the criminal history

category remaining at VI. This results in an advisory Guidelines range of 84 to 105

months of imprisonment.

Where a Guidelines departure provision has been erroneously applied, the

resulting sentence may still be procedurally reasonable if the district court has

adequately explained it by reference to the 18 U.S.C. § 3553(a) factors. In such a case,

the sentence would be unreasonable as a departure but reasonable as a variance from the

advisory Guidelines range. See, e.g., United States v. Erpenbeck, 532 F.3d 423, 441 (6th

Cir. 2008) (“The district court’s error [in departing upward under U.S.S.G. § 5K2.3] is

harmless . . . [where the district court] did not have to base the 65-month enhancement

on the Guidelines-departure factors because the sentence was sufficiently justified based

upon the 18 U.S.C. § 3553(a) factors alone.”)

But the district court here did not independently explain the 152-month sentence

by reference to the § 3553(a) factors, an explanation required by the Supreme Court in

Gall. See 128 S. Ct. at 597. Instead, the court simply incorporated its analysis from the

original pre-Booker Guidelines-based sentence. The court’s only statement with respect

to § 3553(a) was the following:

Pursuant to § 3553(a), this Court is to impose a sentence sufficient, but

not greater than necessary, to reflect the seriousness of the offense, to

promote respect for the law, and to provide just punishment for the

offense; to afford adequate deterrence to criminal conduct; to protect the

public from further crimes of the defendant; and to provide the defendant

with needed educational or vocational training, medical care, or other
Nos. 05-2598; 06-2505 United States v. O’Georgia et al. Page 21

correctional treatment in the most effective manner. . . . Based on the

purposes set forth in 18 U.S.C. § 3553(a)(2), and the considerations of

§ 3553(a)(1), & (3)-(7), the Court imposes upon the Defendant a ‘total

punishment’ of a term of imprisonment of 152 months.

With the above perfunctory recitation and the incorporation of the initial

sentencing order, the district court again imposed a 152-month sentence, which was

within the Guidelines range as calculated by the court. But, as stated above, the 152-

month sentence in fact amounts to a 47-month upward variance from the properly

calculated Guidelines range of 84 to 105 months of imprisonment. The dissent, applying

harmless-error review, appears to be convinced that the district court would nonetheless

impose an identical sentence in the form of a variance in lieu of a Guidelines departure.

(Dissenting Op. at 37–38) We decline to make that assumption, and in any event cannot

review the reasonableness of such a result without the district court providing the

necessary § 3553(a) analysis to support a variance in the first instance. See United States

v. Johnson, 467 F.3d 559, 564 (6th Cir. 2006) (“To establish harmless error such that this

Court lets stand a defendant’s sentence in spite of errors at trial or sentencing below, . . .

the government must demonstrate to this Court with certainty that the error at sentencing

did not cause[] the defendant to receive a more severe sentence.” (citations and internal

quotation marks omitted)). As a result, we vacate Arhebamen’s sentence and remand

the case to the district court for resentencing. The court should consider the correct

advisory range and adequately explain its application of the § 3553(a) factors in

imposing a new sentence.

Although Arhebamen requests resentencing before a different district judge “to

preserve the appearance of justice,” we do not believe that such a measure is necessary

in this case. See, e.g., United States v. Elfgeeh, 515 F.3d 100, 137 (2d Cir. 2008) (“As

a general rule, even when a sentencing judge has been shown to have held erroneous

views or made incorrect findings, . . . resentencing before a different judge is required

only in the rare instance in which the judge’s fairness or the appearance of the judge’s

fairness is seriously in doubt.” (citation omitted) (alteration in original)). The record in

the present case gives us no reason to question the fairness of either of the district judges

below.
Nos. 05-2598; 06-2505 United States v. O’Georgia et al. Page 22

III. CONCLUSION 

For all of the reasons set forth above, we VACATE both of Arhebamen’s

sentences and REMAND the cases to the district court for resentencing consistent with

this opinion.
Nos. 05-2598; 06-2505 United States v. O’Georgia et al. Page 23

________________________________________________

DISSENTING IN PART, CONCURRING IN PART

________________________________________________

JACK ZOUHARY, District Judge. Because I find the two sentences involved

in this appeal were not the result of procedural errors, and because I find the district

judges did not abuse their discretion, I respectfully dissent as to parts II.B, II.C(1),

II.C(2), and II.D. I concur as to parts II.C(3) and II.C(4) of the Opinion.

STANDARD OF REVIEW

“A district court’s sentencing determination is reviewed ‘under a deferential

abuse-of-discretion standard’ for reasonableness, which has both a procedural and a

substantive component.” United States v. Erpenbeck, 532 F.3d 423, 430 (6th Cir. 2008)

(quoting Gall v. United States, ___U.S.___, 128 S. Ct. 586, 597 (2007)).

This Court reviews a district court’s decision to depart upward under Chapter 5

of the advisory Guidelines under “the same ‘standards we use to judge the procedural

and substantive reasonableness of a variance from any guidelines range.’” Id. at 440

(quoting United States v. Vowell, 516 F.3d 503, 510 (6th Cir. 2008)). Thus, a district

court’s sentencing determination is reviewed under an abuse-of-discretion standard for

procedural reasonableness, and “[a] district court necessarily abuses its sentencing

discretion if it ‘commit[s][a] significant procedural error, such as failing to calculate (or

improperly calculating) the Guidelines range.’” Id. at 430 (quoting Gall, 128 S. Ct. at

597).

IMPOSITION OF SUPERVISED RELEASE IN CASE NO. 05-2598

Did the district court fulfill its procedural obligation under 18 U.S.C. §§ 3553

and 3583 when it resentenced Arhebamen? Yes -- the resentencing and imposition of

the one-year term of supervised release was procedurally reasonable.

Arhebamen pled guilty and was sentenced to 21 months imprisonment and one

year of supervised release. In 2005, this Court remanded the case back to the district
Nos. 05-2598; 06-2505 United States v. O’Georgia et al. Page 24

court for resentencing in light of United States v. Booker, 543 U.S. 220 (2005). At the

resentencing hearing, the district court imposed the same sentence of 21 months

imprisonment and one year of supervised release. At the time of the resentencing,

Arhebamen had completed his custody sentence but had yet to begin his supervised

release because he remained incarcerated for other distinct convictions.

When imposing a term of supervised release, the district court considers

18 U.S.C. § 3583(c), which in turn refers to those factors in 18 U.S.C. § 3553:

(c) Factors to be considered in including a term of supervised release. --

The court, in determining whether to include a term of supervised

release, and, if a term of supervised release is to be included, in

determining the length of the term and the conditions of supervised

release, shall consider the factors set forth in section 3553(a)(1),

(a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7).

At the resentencing hearing, the district court acknowledged its discretion and

the factors to be considered under Section 3553, making the following statements:

. . . [O]n remand for resentencing under Booker because the guidelines

are not mandatory, I . . . could, in fact, sentence you to a higher sentence

then I sentenced you the last time because the guidelines are not

mandatory (Tr. 31).

* * *

The guidelines, first of all, are no longer mandatory, so I can

certainly, under both the sentencing guidelines as voluntary and as

offering guidance, but perhaps more importantly under the sentencing

statute [18 U.S.C. § 3553], I can certainly take into account all of the

surrounding conduct that was part of an overall plan or scheme (Tr. 34).

* * *

[F]or all the reasons that the Court has indicated and after due

consideration of the sentencing guidelines and the factors reflected

therein, as well as the factors contained in [18 U.S.C. § 3553] the Court

resentences this defendant to a sentence of 21 months.

Defendant will be given – the Court recommends the defendant

be given credit on this sentence for time served related to this sentence.
Nos. 05-2598; 06-2505 United States v. O’Georgia et al. Page 25

Following the defendant’s release from imprisonment, he will be

placed on a term of supervised release for a period of one year (Tr. 37-38).

The majority relies upon United States v. Lewis, 166 F. App’x 193 (6th Cir.

2006) as support for the alleged error. The unique facts of that case are as follows.

Defendant, convicted of fraud, was sentenced to 33 months imprisonment and two years

probation. This Court remanded in 2004 for resentencing after concluding the district

court incorrectly applied certain enhancements (§§ 2B1.(b)(1)(C) & (b)(2)(A)(i)) by

failing to make specific findings of fact as to the amount of loss, the number of victims,

and the scope of defendant’s agreement with co-conspirators. Defendant was

resentenced by the district court to 30 months imprisonment and two years probation,

applying the same enhancements. The United States Supreme Court issued Booker in

2005. Defendant appealed again, and while his appeal was pending, he completed his

custodial sentence.

The Lewis court in 2006 again held the district court failed to make the necessary

specific findings supporting the enhancements. Id. at 195. Defendant had completed his

custodial sentence, but the court held the appeal was not moot because the two-year

probation sentence was not yet completed. The case was remanded a second time for

resentencing in light of its finding the district court erred (again) in applying the

enhancements, which in turn may have affected the term of supervised release, and in

light of Booker. Id. at 195-96.

Here, there was no enhancement or other Guidelines error, and the district court

specifically recognized and verbalized its discretion under Booker, acknowledging “the

sentencing guidelines . . . as well as the factors contained in [18 U.S.C. § 3553]” when

resentencing Arhebamen to one year of supervised release.

United States v. Presto, 498 F.3d 415 (6th Cir. 2007), is more on point. In that

case, defendant was convicted of receiving child pornography and sentenced to 135

months imprisonment and a lifetime of supervised release. Defendant appealed,

challenging only the lifetime supervised release. At the sentencing hearing, the district

court stated it had “‘considered the nature and circumstances of the offense, the history
Nos. 05-2598; 06-2505 United States v. O’Georgia et al. Page 26

and characteristics of the defendant, . . . the advisory guideline range that’s applicable

to this case, as well as those other factors listed in [18 U.S.C. § 3553(a)], and all the

reasons I just stated.’” Id. at 418 (quoting sentencing transcript). This Court held the

“‘reasons just stated’ referred to the [district] court’s foregoing discussion of the

harmfulness of possession of child pornography in general and of defendant’s conduct

in particular.” Id. This Court approved this “single consideration of the sentencing

factors, which embraced both the incarceration sentence and the supervised release

term,” because 18 U.S.C. § 3583(c) is encompassed in the 18 U.S.C. § 3553(a) factors.

Id. at 419.

Furthermore, the Presto court cited United States v. Coffee, 180 F. App’x 562

(6th Cir. 2006), as support for its position. In that case, defendant was sentenced to

12 months imprisonment and three years supervised release. On appeal, he challenged

the reasonableness of his three-year term of supervised release. At the sentencing

hearing, the district court discussed the Section 3553(a) factors. Id. at 565-66. The

Coffee court concluded the three-year term of supervised release was both procedurally

and substantively reasonable.

Finally, the majority’s decision hinges on the belief the district court failed to

recognize the mootness of the custodial sentence. Not so. The following colloquy took

place at the outset of the sentencing hearing:

THE COURT

(Judge Rosen):

As I understand it, you have completed your sentence

that I imposed on you in my case, but you are serving a

sentence in the case that you were convicted on in front

of Judge Zatkoff; is that correct? 

THE DEFENDANT: Yes. 

(Nov. 9, 2005 Resentencing Tr., pp. 12-13). Thus, the district court specifically

acknowledged Arhebamen had completed the custodial portion of the sentence.

The majority is troubled because after the district court acknowledged that

Arhebamen’s custodial sentence was complete and therefore moot, the district court

proceeded to evaluate what length of custodial sentence would be appropriate and then
Nos. 05-2598; 06-2505 United States v. O’Georgia et al. Page 27

reimposed the same 21-month custodial sentence. However, I find that a district court

does not err when it imposes a term of supervised release by proceeding through the

same steps the court takes when imposing a custodial sentence. Indeed, calculating a

term of supervised release without going through an adequate explanation of a custodial

sentence, even if moot, would be suspect. Lengths of custodial sentences and terms of

supervised release are interdependent, and district courts cannot impose a term of

supervised release in a vacuum, without reference to the custodial sentence. See, e.g.,

Lewis, 166 F. App’x at 195-96 (remanding for resentencing because district court erred

when it applied enhancements, even though defendant had completed custodial

sentence). Indeed, the interplay between 18 U.S.C. §§ 3583 and 3553 demands as much.

The majority’s position is irreconcilable with its reliance on Lewis, where the court

expressly recognized that application of enhancements in a completed custodial sentence

can affect the term of supervised release. Id.

The district court clearly understood both that Arhebamen had completed his

custodial sentence and that the Guidelines were advisory, and then properly reviewed the

Section 3553 factors, to arrive at an appropriate term of supervised release. Therefore,

I would affirm.

IMPOSITION OF SENTENCE IN CASE NO. 06-2505

Arhebamen was sentenced to 152 months imprisonment in April 2004. He was

resentenced to 152 months imprisonment in November 2006, after the case was

remanded in light of Booker. Because I find the district court did not err when it applied

upward departures, I respectfully dissent. I further note that any procedural error in the

application of the upward departures was harmless because the district court could have

varied upward, under identical reasoning, pursuant to Section 3553(a).
Nos. 05-2598; 06-2505 United States v. O’Georgia et al. Page 28

1

(1) He testified that his name was McMaine O’Georgia, that he was born on May 5, 1955, and

that he obtained a delayed birth certificate from the State of Georgia using that name and date of birth.

INS records from his arrival in the United States in 1977 contradict this testimony. (2) Arhebamen

testified that he had informed his probation officer that he previously used the name Mark Arhebamen and

used a specific social security number. Statements from the probation officer contradict this testimony.

(3) He testified he spoke with a clerk from Judge Rosen’s chambers prior to his scheduled sentencing and

that the clerk told him that Judge Rosen was excusing him from the sentencing and not to worry about

appearing at the scheduled sentencing. The district court found this statement to be false as well. (4)

Arhebamen testified at trial that he had taken correspondence courses from Oxford University Press. A

statement from a representative of Oxford University Press indicated that it never offered correspondence

courses.

Obstruction (18 U.S.C. § 1503): § 5K2.0 Enhancement

Arhebamen was convicted of obstruction of justice under 18 U.S.C. § 1503 for

lying to a U.S. probation official. The district court concluded enhancements under both

§§ 3C1.1 and 5K2.0 applied because during the course of the obstruction of justice

prosecution, Arhebamen engaged in other, distinct obstructive acts.

First, the district court applied a two-level enhancement under § 3C1.1, finding

Arhebamen provided materially false testimony during trial. The district court cited four

instances in which Arhebamen perjured himself at trial.1

Second, the district court applied a two-level enhancement under § 5K2.0,

finding “[t]he extent of [Arhebamen’s] willful and obstructive behavior is not adequately

taken into consideration by the 2-level enhancement of § 3C1.1 [providing materially

false testimony during trial]” (JA 131). In support of this enhancement, the district court

pointed to (1) Arhebamen’s filing of twelve appeals to the court of appeals during trial,

ten of which were unappealable orders, even after the district court explained the court

of appeals typically only has jurisdiction to hear appeals from “final decisions” of the

district court; (2) refusal to accept case-related documents that his counsel offered to

Arhebamen for review; and (3) the filing of a meritless request for the district judge to

recuse himself, asserting Judges Zatkoff and Rosen were engaged in a religious

conspiracy with one of Arhebamen’s creditors.

The district court concluded that the above behavior, “taken together,”

demonstrated a “pattern of abuse of the judicial system by [Arhebamen],” warranting an

upward departure under § 5K2.0 (JA 133).
Nos. 05-2598; 06-2505 United States v. O’Georgia et al. Page 29

A Guidelines departure “may be warranted in an exceptional case, even though

the circumstance that forms the basis for the departure is taken into consideration in

determining the guideline range, if the court determines that such circumstance is present

in the offense to a degree substantially in excess of, or substantially below, that which

ordinarily is involved in that kind of offense.” § 5K2.0(a)(3). The introduction to the

Sentencing Guidelines states:

The Commission intends the sentencing courts to treat each guideline as

carving out a “heartland,” a set of typical cases embodying the conduct

that each guideline describes. When a court finds an atypical case, one

to which a particular guideline linguistically applies but where conduct

significantly differs from the norm, the court may consider whether a

departure is warranted. Section 5H1.10 (Race, Sex, National Origin,

Creed, Religion, and Socio-Economic Status), § 5H1.12 (Lack of

Guidance as a Youth and Similar Circumstances), the third sentence of

§ 5H1.4 (Physical Condition, Including Drug or Alcohol Dependence or

Abuse), the last sentence of § 5K2.12 (Coercion and Duress), and

§ 5K2.19 (Post-Sentencing Rehabilitative Efforts) list several factors that

the court cannot take into account as grounds for departure. With those

specific exceptions, however, the Commission does not intend to limit the

kinds of factors, whether or not mentioned anywhere else in the

guidelines, that could constitute grounds for departure in an unusual

case.

U.S.S.G. ch. 1, pt. A(1), n.4(b) (emphasis added).

Thus, the Commission specifically refused to further limit what kind of factors

can be considered when deciding whether to depart because “it is difficult to prescribe

a single set of guidelines that encompasses the vast range of human conduct potentially

relevant to a sentencing decision.” Id. The Commission explained that a departure “may

rest upon grounds referred to in Chapter Five, Part K (Departures) or on grounds not

mentioned in the guidelines. While Chapter Five, Part K lists factors that the

Commission believes may constitute grounds for departure, the list is not exhaustive.

The Commission recognizes that there may be other grounds for departure that are not

mentioned.” Id.

In its Sentencing Opinion and Order, the district court cited United States v.

Furkin, 119 F.3d 1276 (7th Cir. 1997) and United States v. Ventura, 146 F.3d 91 (2d Cir.
Nos. 05-2598; 06-2505 United States v. O’Georgia et al. Page 30

1998) as support for applying a two-level enhancement to Arhebamen’s obstruction of

justice conviction under § 5K2.0.

In Furkin, the Seventh Circuit affirmed the district court’s upward departure

under § 5K2.0, finding the district court adequately explained how defendant’s case fell

outside the “heartland” of cases of conspiracy to impede the IRS. 119 F.3d at 1284. In

that case, defendant encouraged many witnesses to perjure themselves and also

attempted to hide assets from an illegal gambling business. Id. at 1283-84. The court

affirmed the district court’s conclusion that, much like in this case, the two-level

enhancement under § 3C1.1 failed to adequately account for all of defendant’s

obstructive conduct. Id. at 1284.

In Ventura, the Second Circuit affirmed an upward departure under § 5K2.0,

based on the district court’s conclusion that the two-level enhancement under § 3C1.1

did not adequately account for defendant’s obstructive behavior. 146 F.3d at 97. In that

case, defendant was already subject to a § 3C1.1 enhancement because he failed to

appear for sentencing. However, defendant had also lied to the court and probation

officers about his age. The district court found that it could not apply a § 3C1.1

enhancement twice, and therefore concluded that § 3C1.1 could not fully account for

defendant’s obstructive behavior because it did not account for his false statements about

his age to both the court and probation. Id. at 96-97. The district court determined that

a two-level upward departure under § 5K2.0 was warranted in order “to reflect the

renewed and repeated and different form of obstruction of justice which was attempted

here and which put the Court and the government to a considerable additional effort.”

Id. at 95-96.

The Second Circuit affirmed this interpretation of the interplay between § 3C1.1

and § 5K2.0, noting that:

. . . the language of [§ 3C1.1] and commentary suggest that the rule was

drafted without consideration that the defendant might engage in multiple

episodes of obstructive conduct. Multiple acts of obstruction, especially

when they differ in kind or have different obstructive objectives, can be
Nos. 05-2598; 06-2505 United States v. O’Georgia et al. Page 31

2

Application Note 4 reads: 

Examples of Covered Conduct.--The following is a non-exhaustive list of examples of the types of

conduct to which this enhancement applies:

(a) threatening, intimidating, or otherwise unlawfully influencing a co-defendant, witness, or

juror, directly or indirectly, or attempting to do so;

(b) committing, suborning, or attempting to suborn perjury, including during the course of a civil

proceeding if such perjury pertains to conduct that forms the basis of the offense of conviction;

(c) producing or attempting to produce a false, altered, or counterfeit document or record during

an official investigation or judicial proceeding;

found to fall sufficiently far outside the “heartland” conduct § 3C1.1 was

designed to address that departures will be warranted.

Id. at 97. Furthermore, the court held that “[d]eparture may be especially justified

where, as here, the defendant obstructed justice more than once through wholly discrete

and unrelated acts.” Id. In concluding the two-level enhancement under § 5K2.0 was

within the district court’s discretion, the court noted that the misrepresentations “caused

numerous government officials to expend substantial time and resources, delayed his

sentencing, and imposed additional burdens on the district court.” Id. at 98.

Similarly, in United States v. Black, 78 F.3d 1, 5 (1st Cir. 1996), defendant

committed perjury during his trial and then attempted to secrete assets in order to

frustrate the collection of a fine or restitution. The district court applied a two-level

enhancement under § 3C1.1 for defendant’s perjury and also found that defendant’s

efforts to hide money in a sham trust justified a two-level upward departure under

§ 5K2.0. Id. The First Circuit held that the upward departure did not constitute

impermissible double-counting because “the latter increase results from a different act

of obstruction.” Id. at 6.

Here, the district court found appropriate an upward departure based upon the

filing of twelve meritless appeals during trial, the refusal of Arhebamen to cooperate

with his legal counsel, and the filing of meritless requests for recusal asserting a religious

conspiracy with one of Arhebamen’s creditors. Application Note 4 to § 3C1.1 lists

examples of conduct, any one of which justifies a two-level increase for obstruction of

justice.2

 Here, Arhebamen’s conduct goes far beyond “abysmal lawyering” as
Nos. 05-2598; 06-2505 United States v. O’Georgia et al. Page 32

(d) destroying or concealing or directing or procuring another person to destroy or conceal

evidence that is material to an official investigation or judicial proceeding (e.g., shredding a document or

destroying ledgers upon learning that an official investigation has commenced or is about to commence),

or attempting to do so; however, if such conduct occurred contemporaneously with arrest (e.g., attempting

to swallow or throw away a controlled substance), it shall not, standing alone, be sufficient to warrant an

adjustment for obstruction unless it results in a material hindrance to the official investigation or

prosecution of the instant offense or the sentencing of the offender;

(e) escaping or attempting to escape from custody before trial or sentencing; or willfully failing

to appear, as ordered, for a judicial proceeding;

(f) providing materially false information to a judge or magistrate;

(g) providing a materially false statement to a law enforcement officer that significantly

obstructed or impeded the official investigation or prosecution of the instant offense; 

(h) providing materially false information to a probation officer in respect to a presentence or

other investigation for the court;

(i) other conduct prohibited by obstruction of justice provisions under Title 18, United States

Code (e.g., 18 U.S.C. §§ 1510, 1511);

(j) failing to comply with a restraining order or injunction issued pursuant to 21 U.S.C. 853(e)

or with an order to repatriate property issued pursuant to 21 U.S.C. 853(p);

(k) threatening the victim of the offense in an attempt to prevent the victim from reporting the

conduct constituting the offense of conviction.

This adjustment also applies to any other obstructive conduct in respect to the official investigation,

prosecution, or sentencing of the instant offense where there is a separate count of conviction for such

conduct.

characterized by the majority. Rather, this conduct was obstructionist and constituted

a deliberate effort to impede court proceedings. The mere fact it came in the form of

purported legal filings does not negate the intentional and disruptive behavior or

somehow cloak it in a veil of legitimacy.

Further, the majority characterizes the conduct here as not being “remotely

analogous” to the obstructionist examples provided in Application Note 4. I disagree.

The introductory sentence to Application Note 4 explicitly states that it is a nonexhaustive list and is merely exemplary in nature, and, moreover, Arhebamen’s conduct

went beyond “annoying” and was a deliberate effort to delay and frustrate court

proceedings. Certainly this behavior is similar to the examples listed in Application

Note 4 and is contemplated by § 3C1.1, which instructs courts to apply the two-level

enhancement if “the defendant willfully obstructed or impeded, or attempted to obstruct

or impede, the administration of justice with respect to the investigation, prosecution, or

sentencing of the instant offense of conviction.” U.S.S.G. § 3C1.1.
Nos. 05-2598; 06-2505 United States v. O’Georgia et al. Page 33

Nor does the fact that Arhebamen’s underlying offense was obstruction of justice

(18 U.S.C. § 1503) prevent an upward departure under § 5K2.0. The majority correctly

points out that under Application Note 7 to § 3C1.1, the Commission made clear that the

two-level enhancement under § 3C1.1 should not be applied in cases where the charged

offense is also an obstruction of justice offense, unless “a significant further obstruction

occurred during the investigation, prosecution, or sentencing of the obstruction offense

itself.” Here, the additional obstructionist conduct the district court sought to account

for under §§ 3C1.1 and 5K2.0 was entirely distinct from the underlying obstruction of

justice conviction. Arhebamen’s underlying conviction under 18 U.S.C. § 1503 related

to lies he told a U.S. probation officer. The district court applied a two-level § 3C1.1

enhancement because Arhebamen perjured himself at trial. The district court then cited

Arhebamen’s meritless filings and refusal to accept paperwork as support for an upward

departure under § 5K2.0. None of the conduct the district court cited for enhancements

under §§ 3C1.1 and 5K2.0 related to Arhebamen’s conduct in the underlying obstruction

of justice prosection. In sum, Arhebamen’s obstructive conduct occurred in different

proceedings, took many different forms, and was so egregious as to be outside the

heartland of similar cases.

Failure to Appear (18 U.S.C. § 3146(b)(2)): § 5K2.7 Enhancement

On February 23, 2001, Arhebamen pled guilty to one count of aiding and

assisting in the preparation of a false tax return. Sentencing was scheduled four months

later on June 28. On June 25, Arhebamen approached Dr. Heasley and requested a letter

from him, addressed to the district court, excusing Arhebamen from court proceedings.

Arhebamen misled Dr. Heasley by telling him that he was merely under indictment

(although he had already pled guilty and was to be sentenced in three days) and by

denying any previous legal problems or jail sentence (although he had an extensive

criminal history which included previous incarceration).

Dr. Heasley complied with Arhebamen’s request and that day faxed a letter to the

district judge’s chambers recommending that Arhebamen not attend court proceedings
Nos. 05-2598; 06-2505 United States v. O’Georgia et al. Page 34

until he was stabilized, and indicating that Arhebamen’s next appointment was July 11.

After receiving Dr. Heasley’s letter, the district court adjourned sentencing until July 25.

However, rather than attend his July 11 appointment with Dr. Heasley,

Arhebamen relocated to Arizona. In Arizona, Arhebamen solicited a letter from Dr.

Sorokin also asking Arhebamen be excused from any court proceedings. On July 24,

one day before his scheduled sentencing, Dr. Sorokin faxed a letter of excuse to the

district court. Just as Arhebamen had misled Dr. Heasley, Arhebamen misled Dr.

Sorokin into believing that he was merely being investigated for fraudulent activity, and

failed to disclose that he was scheduled to be sentenced the following day.

Arhebamen was convicted of the crime of failure to appear (18 U.S.C.

§ 3146(b)(2)) at his July 25 sentencing. The district court applied a two-level

enhancement under § 5K2.7, finding that “[t]he manipulation of Dr. Heasley and Dr.

Sorokin, and the corresponding adjournment of sentencing is an unusual aggravating

circumstance that was not adequately considered by the Sentencing Guidelines” (JA

135). The district court concluded that Arhebamen’s conduct “resulted in a significant

disruption of a Government function (i.e., the timely sentencing of Defendant), and an

upwards departure of 2 levels pursuant to U.S.S.G. § 5K2.7 is appropriate” (id.).

Section 5K2.7 provides:

If the defendant’s conduct resulted in a significant disruption of a

governmental function, the court may increase the sentence above the

authorized guideline range to reflect the nature and extent of the

disruption and the importance of the governmental function affected.

Departure from the guidelines ordinarily would not be justified when the

offense of conviction is an offense such as bribery or obstruction of

justice; in such cases interference with a governmental function is

inherent in the offense, and unless the circumstances are unusual the

guidelines will reflect the appropriate punishment for such interference.

There are no Application Notes to this section of the Guidelines. Both parties agree that

the underlying offense here -- failure to appear for sentencing -- is one in which

“interference with a governmental function is inherent.” Therefore, a Guidelines

departure under § 5K2.7 is appropriate only if the “circumstances are unusual” such that
Nos. 05-2598; 06-2505 United States v. O’Georgia et al. Page 35

the underlying Guidelines sentence does not “reflect the appropriate punishment” for

Arhebamen’s failure to appear at his July sentencing dates.

In United States v. Heckman, 30 F.3d 738 (6th Cir. 1994), this Court affirmed an

upward departure under § 5K2.7 where the underlying offense involved a disruption of

a government function. In that case, defendant was convicted of filing false documents

with the IRS. Id. at 740. The defendant indicated in his false filing that he had paid over

$1 million to various businesses and individuals. Id. The court determined that a

§ 5K2.7 departure was justified because, in addition to attempting to avoid his own tax

liability, defendant “used the IRS to harass numerous persons who had the misfortune

of coming into contact with him.” Id. at 743.

Here, too, the “circumstances are unusual” because Arhebamen did not simply

fail to appear for his July 25, 2001 sentencing. Rather, he manipulated the district court

to postpone his sentencing twice by obtaining letters from two different doctors under

false pretenses. It is beyond dispute that these last-minute delays wasted government

time and resources, not to mention the time of the doctors.

In Heckman, the court held that the crime of tax fraud “may contemplate the

disruption bound to result from income tax evasion but not the disruption resulting from

an attempt to use the IRS as a tool of harassment.” Id. Similarly, here the crime of

failure to appear may contemplate disruption bound to result from not appearing for

sentencing as required, but not the deceit and manipulation of two doctors in two states

as well as court personnel.

I disagree that the § 5K2.7 enhancement is appropriate only where defendant’s

conduct results in substantial harm. This “no harm, no foul” approach is too narrow.

Just because Arhebamen was not entirely successful in his attempts to further delay his

sentencing beyond July 25 does not mean that an upward departure under § 5K2.7 is

inappropriate.

Additionally, even under the majority’s resulting-harm approach, I find the

majority has understated the harm here. Government time and resources were wasted
Nos. 05-2598; 06-2505 United States v. O’Georgia et al. Page 36

when Arhebamen requested continuances for sentencing based on false pretenses.

Furthermore, in the district court’s Sentencing Opinion and Order, it noted another kind

of harm -- that Arhebamen’s misconduct hindered legitimate requests of other criminal

defendants and undermined court flexibility in scheduling appearances (JA 136). Such

disruptions are harmful to the administration of justice.

Failure to Appear (18 U.S.C. § 3146(b)(2)): § 5K2.0 Enhancement

Arhebamen was convicted of failing to appear at his July 25, 2001 sentencing.

In addition to failing to appear, Arhebamen relocated to Arizona, violating the terms of

his release. After conviction and before sentencing, Arhebamen sought permission from

his pretrial services officer to move to Arizona. The pretrial services officer explicitly

denied this request, yet Arhebamen moved anyway. The district court concluded that

“[t]his aggravating circumstance, (leaving the Court’s jurisdiction) does not appear to

have been adequately taken into account by the Sentencing Commission in formulating

the Guidelines and, therefore, warrants an upward departure from the Guidelines

pursuant to § 5K2.0” (JA 136). The district court imposed a two-level upward departure

under § 5K2.0 because it viewed Arhebamen’s flight from Michigan as comparable to

“a fraudulent scheme in order to avoid law enforcement” (id. (quoting U.S.S.G.

§ 2F1.1(b)(6)(A))).

The district court did not err or abuse its discretion in imposing a two-level

upward departure, under § 5K2.0, for Arhebamen’s move to Arizona in direct defiance

of his pretrial services officer. Indeed, under Guideline § 2J1.6, which provides the

offense level for the crime of failure to appear, there is no provision accounting for

whether a defendant leaves the jurisdiction as part of the crime. Section 5K2.0(a)(2)(B)

states that “[a] departure may be warranted in the exceptional case in which there is

present a circumstance that the Commission has not yet identified in the guidelines but

that nevertheless is relevant to determining the appropriate sentence.” Furthermore, this

Court has acknowledged that with the exception of a few factors which may never form

the basis of a departure, the Guidelines do not “limit the kinds of factors, whether or not
Nos. 05-2598; 06-2505 United States v. O’Georgia et al. Page 37

mentioned anywhere else in the guidelines, that could constitute grounds for departure

in an unusual case.” United States v. Crouse, 145 F.3d 786, 789 (6th Cir. 1998).

The majority notes: “[N]othing in the record reflects that Arhebamen relocated

in order to avoid law enforcement or regulatory officials or the authority of the court.

To the contrary, Arhebamen’s wife provided a forwarding address to the pretrial services

officer and, as a result, Arhebamen was promptly arrested after he failed to appear.” A

clever defendant, or the quick response of the U.S. Marshals to arrest a fugitive, are not

determinative of whether flight from the jurisdiction constitutes an “exceptional

circumstance.” The key fact is that a convicted felon, on the eve of sentencing, traveled

some 2,000 miles across the country in direct defiance of the terms of his presentence

release, thereby breaking the law. His misconduct is not diminished simply because he

left a trail of crumbs, someone else turned him in, or because his capture was swift.

In sum, the Guidelines provide district courts the opportunity to apply an upward

departure when circumstances exist that were not contemplated by the Commission. The

district court found such circumstances, which certainly distinguish this case from the

average failure to appear case. The district court did not commit any procedural errors

when it applied upward departures under the Guidelines, and did not otherwise abuse its

discretion in sentencing Defendant to 152 months imprisonment.

I also find that had the district court elected to increase Arhebamen’s Guidelines

sentence by varying upward under Section 3553(a), rather than by applying upward

departures, this Court’s review of the sentence would be far more limited. See

Erpenbeck, 532 F.3d at 430 (“If the sentence departs from the Guidelines, we must give

‘due deference’ to the district court’s decision that the § 3553(a) factors justify the

variance. ‘The fact that [this Court] might reasonably have concluded that a different

sentence was appropriate is insufficient to justify reversal of the district court.’”)

(quoting Gall, 128 S. Ct. at 597).

Indeed, the same detailed reasons given by the district court for an upward

departure equally support an upward variance. During the 2006 resentencing, the

district court specifically acknowledged that the Guidelines were no longer mandatory
Nos. 05-2598; 06-2505 United States v. O’Georgia et al. Page 38

and “[b]ased on the purposes set forth in 18 U.S.C. § 3553(a)(2), and the considerations

of § 3553(a)(1), & (3)-(7), the Court imposes upon Defendant a ‘total punishment’ of a

term of imprisonment of 152 months” (JA 146). Therefore, any disagreement over the

district court’s reasoning for these upward departures would disappear under an upwardvariance analysis. See United States v. Obi, 542 F.3d 148, 156 (6th Cir. 2008) (harmless

error where Guidelines mistake did not affect selection of sentence). A remand is

unnecessary if the same sentence can be reimposed as a variance for the same detailed

reasons and then upheld on another appeal. See United States v. Abbas, 560 F.3d 660,

667 (7th Cir. 2009) (“[T]he recognition that some Guidelines miscalculations can be

harmless does not change these basic principles [that judges possess discretion under

Section 3553(a)]. It merely removes the pointless step of returning to the district when

we are convinced that the sentence the judge imposes will be identical to the one we

remanded.”).

In this case, I find alternatively that the 152-month sentence is sufficiently

justified based upon the 18 U.S.C. § 3553(a) factors. See Erpenbeck, 532 F.3d at 441.

For this reason too, I would affirm.