United States Court of Appeals

for the Fifth Circuit

No. 21-10588

United States of America, 

Plaintiff—Appellee, 

versus

Yassein Abdulfatah Said, 

Defendant—Appellant. 

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:20-CR-292-2 

Before Richman, Chief Judge, and Wiener and Willett, Circuit 

Judges.

Per Curiam:*

Yassein Abdulfatah Said (“Yassein”)1 was charged with three crimes 

stemming from his efforts to help his brother, Yaser Said (“Yaser”), evade 

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

1 To avoid confusion, this opinion will refer to Yassein and his relatives by their 

first names. 

United States Court of Appeals

Fifth Circuit

FILED

January 12, 2023

Lyle W. Cayce

Clerk

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arrest on a federal charge of unlawful flight to avoid prosecution.2 A jury 

convicted Yassein on all three counts: (1) Conspiring to conceal a person 

from arrest in violation of 18 U.S.C. §§ 371 and 1071, (2) concealing a person 

from arrest (and aiding and abetting the same) in violation of 18 U.S.C. §§ 

1071 and 2, and (3) conspiring to obstruct an official proceeding in violation 

of 18 U.S.C. §§ 1512(k) and 1512(c)(2). The district court eventually 

sentenced Yassein to an above-guidelines sentence of 144 months of 

imprisonment and two years of supervised release. 

On appeal, Yassein contends that (1) the evidence was insufficient to 

support his conviction for conspiracy to obstruct an official proceeding, and 

(2) his above-guidelines sentence was procedurally and substantively 

unreasonable. He also claims that the district court erred by allowing hearsay 

testimony, although he concedes that the error does not merit reversal.3 We 

affirm.

I. Background

On New Year’s Day 2008, Yaser murdered his teenage daughters 

because he was upset by their dating American men. On January 2, 2008, 

Yaser was charged in state court with two counts of Capital Murder and 

warrants were issued for his arrest. On August 21, 2008, he was charged in 

federal court with Unlawful Flight to Avoid Prosecution, and a federal arrest 

warrant issued. In December of 2014, Yaser was added to the FBI’s Top Ten 

Most Wanted Fugitives list. 

2 Yaser was indicted in Texas state court for capital murder arising from the deaths 

of his two teenage daughters.

3 Yassein’s opening brief also raised a multiplicity challenge to Counts 1 and 3, but 

he has since withdrawn that challenge.

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FBI agents first interviewed Yassein in April 2009. He claimed that he 

had last seen Yaser two days prior to the murders. Yassein claimed that his 

nieces’ boyfriends had threatened Yaser and that those men were responsible 

for their deaths. Yassein also acknowledged that he had traveled to Dallas,

picked up Yaser’s son, Islam, and sent him to Egypt.4

Yassein and his family relocated to the Dallas/Fort Worth area in 

2014. On September 23 of that year, FBI agents interviewed Yassein at his

home. During the interview, Yassein complained at length about the FBI and 

its investigation, claiming it was causing problems for his family. 

In 2017, the FBI acted on a tip from a maintenance man and

determined that Yaser had been staying in Islam’s apartment. But Yaser was 

able to flee hours before the FBI arrived. After the building issued a 24-hour 

notice to vacate the premises, Yassein took responsibility for the unit, argued

with the property manager, and eventually cleared the apartment with a 

family member. 

In August 2020, the FBI was able to track Yaser to a home in Justin, 

Texas, owned by Yassein, albeit in one of his daughter’s names. After 

observing Yassein and Islam carrying trash away from the Justin home over

the course of several days, the FBI moved in, capturing Yaser and eventually 

arresting Yassein and Islam. 

II. Charges and Trial

In November 2020, Yassein and Islam were charged by way of a threecount superseding indictment. Count 1 alleged that, between August 2017 

and August 2020, Yassein and Islam conspired to conceal Yaser from arrest,

4 Islam would return to the United States in 2011, moving into a Bedford, Texas 

apartment. 

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in violation of 18 U.S.C. §§ 371 and 1071. Count 2 alleged that Yassein and 

Islam concealed Yaser (and aided and abetted Yaser’s concealment), in 

violation of 18 U.S.C. §§ 1071 and 2. Count 3 alleged that Yassein and Islam 

conspired to corruptly impede an official federal proceeding, in violation of 

18 U.S.C. §§ 1512(k) and 1512(c)(2). On February 1, 2021, a jury found 

Yassein guilty on all three counts.

III. Sentencing

The district court calculated Yassein’s total offense level as 17 and his 

criminal history category as I. Those calculations yielded a guideline 

imprisonment range of 24 to 30 months, a supervised release range of one to 

three years, and a fine range of $10,000 to $50,000. The district court

ultimately varied upwards, imposing a total sentence of 144 months 

imprisonment, two years of supervised release, three special assessments of 

$100 each, but no fine. Yassein timely appealed.5

IV. Standard of Review

When considering a challenge to the sufficiency of the evidence 

supporting a conviction, we typically “review[] the record to determine 

whether, considering the evidence and all reasonable inferences in the light 

most favorable to the prosecution, any rational trier of fact could have found 

the essential elements of the crime beyond a reasonable doubt.”6 But when, 

as in this case, a defendant fails to preserve his sufficiency challenge,7 we

5 The record does not include a copy of Yassein’s notice of appeal, but an entry for 

it appears on the district court’s docket sheet. 

6 United States v. Vargas-Ocampo, 747 F.3d 299, 303 (5th Cir. 2014) (en banc) 

(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

7 Yassein moved for a judgment of acquittal at the end of the government’s casein-chief, but he did not renew his motion at the close of all the evidence. This omission 

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“apply plain-error review.”8 To succeed notwithstanding this difficult 

standard, Yassein must show a clear or obvious error affecting his substantial 

rights.9 We will only correct such an error if it “seriously affects the fairness, 

integrity or public reputation of judicial proceedings.”10 A sufficiency 

challenge will only be deemed clear or obvious if there was “‘a manifest 

miscarriage of justice,’ which occurs only [when] ‘the record is devoid of 

evidence pointing to guilt’ or the evidence is so tenuous that a conviction 

would be ‘shocking.’”11

A challenge to the reasonableness of a sentence is typically reviewed 

for abuse of discretion.12 However, an unpreserved claim of procedural 

unreasonableness is reviewed for plain error.13

“Any error in admitting . . . evidence is subject to harmless error 

review.”14 “Unless there is a reasonable possibility that the improperly 

admitted evidence contributed to the conviction, reversal is not required.”15

means his sufficiency challenge is unpreserved. United States v. Smith, 878 F.3d 498, 502–

03 (5th Cir. 2017). 

8 Smith, 878 F.3d at 503.

9 Id.

10 Id. (internal quotation marks, brackets, and citation omitted).

11 Id. (quoting United States v. Delgado, 672 F.3d 320, 329–31 (5th Cir. 2012) (en 

banc) (citations omitted)).

12 Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Hernandez, 633 F.3d 

370, 375 (5th Cir. 2011) (applying that standard to claims of both procedural and substantive 

unreasonableness).

13 See United States v. Castillo-Rubio, 34 F.4th 404, 411 (5th Cir. 2022); United 

States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). 

14 United States v. Mendoza-Medina, 346 F.3d 121, 127 (5th Cir. 2003) (citing United 

States v. Williams, 957 F.2d 1238, 1242 (5th Cir. 1992)).

15 Id. (quoting Williams, 957 F.2d at 1242) (cleaned up).

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V. Discussion and Analysis

On appeal, Yassein challenges (1) the sufficiency of the evidence 

supporting his conviction on Count 3, (2) the procedural and substantive 

reasonableness of his sentence, and (3) the district court’s resolution of 

particular evidentiary objections at trial, even though, as noted, he concedes 

that the third challenge cannot succeed. We address each challenge in turn.

A. Conviction

1. Sufficiency of the Evidence

Yassein contests the sufficiency of the evidence supporting his 

conviction for conspiring to obstruct justice, in violation of 

18 U.S.C. §§ 1512(k) and (c)(2). He contends that “the evidence [does] not 

show that [he] knowingly and dishonestly, with the specific intent to subvert 

or undermine the due administration of justice[,] mislead agents in their 

search for Yaser.” 

As noted, we review this contention for plain error.

16 We conclude

that there is more than enough evidence to affirm the conviction under that 

standard.

Count Three charged Yassein with a conspiracy in violation of 

18 U.S.C. § 1512(k), the object of which was obstruction of justice in violation 

of 18 U.S.C. § 1512(c)(2). Albeit in unpublished opinions, we have previously 

identified the elements of a § 1512(k) conspiracy as: (1) an agreement 

between the defendant and at least one other person to pursue the object of 

the conspiracy, (2) the defendant’s knowledge of the unlawful purpose of the 

16 See Smith, 878 F.3d at 502–03.

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agreement, and (3) that an overt act was taken by one of the conspirators 

toward carrying out the object of the conspiracy.17

Conspiracy to commit a particular substantive offense requires the 

degree of criminal intent necessary to commit the substantive offense itself.18

18 U.S.C. § 1512(c)(2) criminalizes the act of “corruptly . . . obstruct[ing], 

influenc[ing], or imped[ing] any official proceeding.” Therefore, the

government must also demonstrate that Yassein acted ‘corruptly.’ A 

defendant “acts ‘corruptly’ under the statute when [he] act[s] ‘knowingly 

and dishonestly, with specific intent to subvert or undermine the due 

administration of justice.’”19

Yassein contends that the government must also demonstrate that he 

knew the proceeding he was disrupting was a federal investigation—as 

opposed to any official proceeding—because the indictment charged him 

with doing so. He acknowledges, however, that “[t]his Court and the 

Supreme Court have not answered whether a sufficiency challenge ‘must be 

judged by reference to the elements charged in the indictment, even if the 

17 United States v. Mitchell, 792 F.3d 581, 583 (5th Cir. 2015) (per curiam); United 

States v. Coppin, 569 F. App’x 326, 332 (5th Cir. 2014) (per curiam) (citing United States v. 

Porter, 542 F.3d 1088, 1092 (5th Cir. 2008)).

We recognize that our previous interpretations of § 1512(k) may be at odds with 

the Supreme Court’s conclusions that a number of similarly-worded statutes do not contain 

an overt-act requirement. See, e.g., Whitfield v. United States, 543 U.S. 209, 214 (2005)

(gathering cases and explaining the relevant analysis). However, Yassein does not dispute 

the sufficiency of the evidence of an overt act, so we will leave this question for another 

day. 

18 Fifth Cir. Pattern Jury Instructions, § 2.15(A), note (2019 ed.) 

(addressing conspiracies charged under 18 U.S.C. § 371); see Coppin, 569 F. App’x at 331–

33 (addressing a § 1512(k) conspiracy).

19 United States v. Delgado, 984 F.3d 435, 452 (5th Cir. 2021) (quoting Coppin, 569 

F. App’x at 334).

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indictment charges one or more elements not required by statute.’”

Musacchio “abrogated Fifth Circuit precedent to the extent it provided that 

‘erroneously heightened jury instructions generally become the binding “law 

of the case” on appeal.’”20 As Yassein notes, however, both Musacchio and 

Bedoy explicitly left open the question whether an ‘erroneously heightened’ 

indictment obligates the government to prove additional elements.21 We 

decline to resolve this issue today and instead accept Yassein’s contention 

arguendo.

Yassein’s challenge apparently incorporates two theories. First, as 

noted above, Yassein suggests that he was unaware of the investigation’s 

federal nature. Second, he claims that there is no evidence that he acted 

corruptly. We reject both claims.

First, the record is not devoid of evidence that Yassein was aware that

the hunt for Yaser included a federal investigation. On the contrary, it 

contains ample evidence to support the jury’s verdict. As Yassein 

acknowledges in his brief, “the evidence established that [Laurie Gibbs, an 

FBI agent] spoke with him and told him that [she had] a federal warrant for 

Yaser’s arrest.”22 This interview occurred in 2014, six years after the FBI 

first obtained a warrant and listed Yaser, and three years before the beginning 

of the timeframe for the conspiracy charged in Count Three of the 

superseding indictment. Agent Gibbs testified that, during the interview, she 

20 United States v. Bedoy, 827 F.3d 495, 508–09 (5th Cir. 2016) (quoting Musacchio, 

577 U.S. at 243).

21 Musacchio, 577 U.S. at 244 n.2; Bedoy, 827 F.3d at 509. 

22 Yassein describes the agent as an investigator with “the Collin County District 

Attorney’s Office.” Gibbs was an FBI agent at the time she interviewed Yassein; she 

transitioned to the District Attorney’s Office months later. Regardless, Yassein 

acknowledges that one of the investigators present during the interview, Mario Verna, was 

an FBI agent. 

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“presented [her FBI] credentials and told him who I was and who the other 

two individuals were that were with [her] and the purpose of . . . the 

interview.” Record evidence also indicates that Yassein knew his name was 

on FBI posters identifying his brother as a fugitive. The government 

introduced the two posters into evidence at trial and both identified Yassein’s 

name as one of Yaser’s potential aliases. The government also introduced at 

trial a notebook containing a draft of a note addressed to the FBI, purportedly 

authored by Yassein. That document identifies one of Yaser’s wanted 

posters by its NCIC number. A testifying FBI agent described the number as 

“quite specific” to the poster and warrant associated with it, and explained

that a person “generally speaking, would not know that number unless” they 

read the poster. This evidence is more than enough to satisfy the very high

“manifest miscarriage of justice” standard that is appropriate here.

Yassein’s second claim is that the record is devoid of evidence that he 

acted corruptly. As noted, a defendant “acts ‘corruptly’ under the statute 

when [he] act[s] ‘knowingly and dishonestly, with specific intent to subvert 

or undermine the due administration of justice.’”23 Yassein cites the Black’s 

Law Dictionary definition of dishonest as “not involving straightforward 

dealing; discreditable; underhanded; or fraudulent.” He goes on to contend 

that: “To claim that building a secret room or a ‘spider hole’ is ‘not 

straightforward dealing[,]’ is ‘discreditable[,]’ is ‘underhanded[,]’ is 

‘fraudulent[,]’ or is ‘characterized by lack of truth, honesty, or 

trustworthiness’ is to misapply the word ‘dishonest.’” Yassein offers no 

precedent, however, to support his position. Neither does he develop his 

claim further by explaining why those definitions cannot be applied to his 

conduct. The best theory that may be inferred from Yassein’s briefing is that 

23 Delgado, 984 F.3d at 452 (quoting Coppin, 569 F. App’x at 334).

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a defendant cannot act dishonestly without lying or making a misleading 

statement.

Yassein offers no reason for us to think that the jury’s verdict was a 

“manifest miscarriage of justice” in this respect. That alone is enough to 

doom his claim. But even if we were to interpret Yassein’s briefing as 

proposing a misleading-statement requirement, this court has previously 

affirmed § 1512(c)(2) convictions without relying on a lie or omission made 

directly to an official. In Delgado, for example, this court held that the 

evidence supported a jury’s verdict that a defendant acted corruptly when, 

“after learning that he might be the target of a federal investigation involving 

the sale of firewood, he sent [his co-conspirator] a text message stating that 

he needed to return” a bribe in an effort to hide his tracks.24

This court held similarly in Bedoy when it rejected a defendant’s 

argument that he had not acted corruptly by instructing a co-conspirator “not 

to let the FBI into her apartment to talk to her” because a rational jury could 

infer that he was “instructing her to lie about the illicit aspects of their 

relationship if asked.”25

Yassein has not identified any error, let alone a plain one. We 

therefore reject his sufficiency challenge.

2. Evidentiary Objections

Yassein also claims “that the district court erred in overruling [his] 

attorney’s objections to hearsay.” We need not delve into the merits of this 

claim, however, because he concedes that he “cannot argue that the errors . 

24 Id.

25 827 F.3d at 510.

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. . cause ‘harm’ sufficient to justify reversal.” This concession is 

dispositive.26 We therefore affirm Yassein’s conviction.

B. Sentence

Yassein also challenges his sentence, claiming that it is both 

procedurally and substantively unreasonable. As noted, the district court

calculated that the Sentencing Guidelines yielded an advisory guidelines 

range of 24 to 30 months of imprisonment. The government moved for an 

upward variance, and the district court ultimately varied upwards, 

sentencing Yassein to a term of 144 months of imprisonment and two years 

of supervised release. 

Our “inquiry [into the reasonableness of a sentence] involves two 

steps.”27 “First, we must ‘ensure that the district court committed no 

significant procedural error.’”28 “Second, if the district court’s sentencing 

decision is procedurally sound, we ‘consider the substantive reasonableness 

of the sentence imposed.’”29

1. Procedural Reasonableness

As an initial matter, we review the procedural reasonableness of 

Yassein’s sentence for plain error. Yassein claims that an abuse-of-discretion 

standard is appropriate. But, as the government points out, Yassein only 

objected to the substantive reasonableness of his sentence at his sentencing 

26 See Mendoza-Medina, 346 F.3d at 127 (citing United States v. Williams, 957 F.2d 

1238, 1242 (5th Cir. 1992)).

27 United States v. Fraga, 704 F.3d 432, 437 (5th Cir. 2013).

28 Id. (quoting Gall, 552 U.S. at 51).

29 Id.

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hearing. An objection to the substantive reasonableness of a sentence does 

not, without more, preserve a claim of procedural unreasonableness.30

Yassein claims that his sentence was procedurally unreasonable 

because the district court failed to explain adequately its reasons for varying 

upwards from the guidelines sentence it had calculated. He concedes that the 

district court “provided some reasons to justify the upwards variance,” but 

nonetheless contends that the reasons were not “sufficient to justify the 

increase [in months of imprisonment] of 480 percent to 600 percent.” He 

claims that such reasons were inadequate to meet the “high standard” 

required for such a large upwards variance. Yassein also attacks portions of 

the district court’s reasoning as a litany of “rote statements” too vague to 

facilitate meaningful review. And Yassein also claims that the district court’s 

statement that it had balanced his health and age against the other factors it 

had considered was too vague to allow for meaningful appellate review. 

As noted, plain-error review requires a defendant to explain how the 

relevant error affected his substantial rights.31 Therefore, when claiming that 

the inadequacy of a district court’s explanation of its sentence constitutes 

plain error, a defendant must demonstrate “that there is a reasonable 

probability that, but for the district court’s failure to explain the sentence 

adequately, [he] would have received a lesser sentence.”32

30 Mondragon-Santiago, 564 F.3d at 361; see, e.g., United States v. Martinez, 872 F.3d 

293, 303 (5th Cir. 2017) (similar).

31 See, e.g., Smith, 878 F.3d at 503.

32 United States v. Jackson, 594 F. App’x 232, 236 (5th Cir. 2014) (citing 

Mondragon-Santiago, 564 F.3d at 364–65) (per curiam); see Mondragon-Santiago, 564 F.3d 

at 365 (affirming sentence despite finding district court’s explanation of its sentence 

inadequate because defendant failed to “show that an explanation would have changed his 

sentence”).

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Yassein does not suggest that his sentence might have been different 

had the district court adequately explained its sentence. Neither does he 

reply to the government’s brief noting this requirement. These failures—

combined with the reality that the record is entirely devoid of any indication 

that further explanation would have led the district court to a different 

sentencing decision—doom Yassein’s claim.

2. Substantive Reasonableness

We turn next to Yassein’s claim of substantive unreasonableness. 

This claim is properly preserved, so we review the substantive nature of the 

district court’s sentence for an abuse of discretion. While it is undeniable that 

the district court imposed a significant upward variance, we see no abuse of 

discretion in its decision to do so. 

“Appellate review of the substantive reasonableness of a sentence is 

highly deferential.”33 “To determine whether a sentence 

is substantively reasonable, a district court should consider ‘the totality of 

the circumstances, including the extent of any variance from the Guidelines 

range.’”34 “Even a significant variance from the Guidelines does not 

constitute an abuse of discretion if it is ‘commensurate with the 

individualized, case-specific reasons provided by the district court.’”35

Instead, “[a] non-Guidelines sentence unreasonably fails to reflect the 

statutory sentencing factors set forth in § 3553(a) where it (1) does not 

account for a factor that should have received significant weight, (2) gives 

33 United States v. Hudgens, 4 F.4th 352, 358 (5th Cir. 2021) (cleaned up) (quoting 

United States v. Hoffman, 901 F.3d 523, 554 (5th Cir. 2018)).

34 Id. (quoting Gall, 552 U.S. at 51).

35 United States v. Diehl, 775 F.3d 714, 724 (5th Cir. 2015) (quoting United States v. 

McElwee, 646 F.3d 328, 338 (5th Cir. 2011)).

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significant weight to an irrelevant or improper factor, or (3) represents a clear 

error of judgment in balancing the sentencing factors.”36

Yassein offers a few attacks to the district court’s sentencing decision, 

but none are compelling. He first contends that the district court erred by 

taking into account the fact that “Texas sought Yaser for capital murder” 

without conducting an individualized assessment whether “Yaser was a 

continuing threat to the public.” He claims that this led the district court to 

make “the erroneous though understandable conclusion that a fugitive 

charged with Capital Murder is necessarily a greater threat to society than a 

fugitive charged with a financial crime or other ‘white collar’ offense.” He 

suggests that “the balancing factor should be risk to the public and not the 

alleged offense.” 

First, there is no indication in the record that the court made such a 

sweeping conclusion about the nature of Capital Murder and white-collar 

crime. The court merely indicated that it took into account the fact that Yaser 

“was wanted for the double murder of two teenaged girls on a capital murder 

charge.” More importantly, that fact goes to the nature of Yassein’s offense, 

which the district court was obligated to consider.37

Yassein next suggests that his use of antisemitic slurs, while 

“indefensible,” cannot be the “basis for a 480 to 600 percent variance.” 

Yassein does not contend, however, that the district court could not consider 

his use of such slurs at all—or that they were the sole justification for the 

upwards variance. This claim is similarly unavailing. After noting a number 

of other facts it had considered, the district court explained that it took “into 

account the slurs that the defendant used during [the] investigation[,] which 

36 Id. (citing Smith, 440 F.3d at 708).

37 18 U.S.C. § 3553(a)(1).

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[it] believe[d] were used as an attempt to divert attention away from 

[Yassein’s] actions.” This too goes to the nature of the offense.

Finally, Yassein takes issue with the district court’s focus on the 

resources expended during the hunt for Yaser, particularly in Egypt.38 He 

does not challenge the district court’s factual findings, but claims the record 

suggests that the government’s expenditures were “hardly different than 

the[y would have been had they been investigating a] much more common 

escape to Mexico or Canada.” Assuming arguendo that this factual summary 

is correct, however, Yassein offers no reason whatsoever to question the 

district court’s judgment on this point.

The upward variance applied in this case is undeniably significant. But 

sentencing is the province of the district court, and Yassein has not identified 

any error of the sort we enumerated in Diehl. And, we recently affirmed an 

upward variance of a similarly significant magnitude imposed on Yassein’s 

co-defendant, Islam, in United States v. Said, No. 21-10455, 2022 WL 

3097848, at *4 (5th Cir. Aug. 3, 2022) (unpublished).39 “Although the degree 

of the variance is considerable and this court may have weighed the Section 

3553(a) favors differently, we are not permitted to reweigh the factors.”40

* * *

AFFIRMED.

38 Yassein suggested to investigators in 2014 that the family had ties there. 

39 In Said, we affirmed the district court’s upward variance from a 21- to 27-month 

guideline range to a 120-month sentence.

40 Id. (citing United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008)).

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