United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued October 3, 2007

Decided October 26, 2007

Before

Hon. JOHN L. COFFEY, Circuit Judge

 Hon. KENNETH F. RIPPLE, Circuit Judge

Hon. MICHAEL S. KANNE, Circuit Judge

No. 06-2801

 UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

SHAABAN HAFIZ AHMAD ALI

SHAABAN,

Defendant-Appellant.

Appeal from the United States District

Court for the Southern District of

Indiana, Indianapolis Division.

No. 05 CR 34

John Daniel Tinder, Judge.

O R D E R

Shaaban Hafiz Ahmad Ali Shaaban was convicted of multiple offenses

related to his dealings with the Iraqi Intelligence Service (“IIS”) shortly before the

United States invaded in 2003. He was sentenced to a total of 160 months’

imprisonment. On appeal he argues that the district court erroneously assessed

more than the two offense levels allowed for obstructive conduct under U.S.S.G. §

3C1.1 and, therefore, his sentence should be vacated. For the reasons set forth in

this order, we affirm the judgment of the district court.

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with 

Fed. R. App. P. 32.1
No. 06-2801 Page 2

I

BACKGROUND

Mr. Shaaban, a Jordanian-born Palestinian who had acquired United States

citizenship, began conversations with the IIS through the Iraqi Mission to the

United Nations in 2002. At trial a former IIS agent testified that Mr. Shaaban

traveled to Iraq in October 2002 in an attempt to sell the names of CIA agents

working covertly in Iraq, which he claimed he could acquire through a CIA

operative secretly working for the Russian intelligence service. The IIS agents

rejected his offer, in part because Mr. Shaaban refused to provide a sample of the

information, but Mr. Shaaban remained in contact with the IIS. Their

conversations, which federal agents began to monitor around the time of

Mr. Shaaban’s trip to Iraq, included further negotiations over the list of CIA

operatives as well as a proposed plan for the IIS to fund Mr. Shaaban’s creation of a

TV station in the United States. Federal agents eventually arrested Mr. Shaaban

in March 2005.

Before trial and while in custody, Mr. Shaaban sent a letter to his older

brother in California threatening serious bodily harm if the brother did not lie at

Mr. Shaaban’s trial. At trial Mr. Shaaban, who represented himself with help from

standby counsel, claimed that he had an identical twin who committed some of the

unlawful acts alleged in the indictment. No witness corroborated his claim. 

Mr. Shaaban also testified that his travel to Iraq was part of a secret CIA mission. 

The jury rejected Mr. Shaaban’s defenses and, after a ten-day trial, found him

guilty of conspiring to act, and acting, as a foreign agent of the government of Iraq

without notifying the attorney general, see 18 U.S.C. § 371; 951(a); traveling to Iraq

in violation of the International Emergency Economic Powers Act, see 50 U.S.C.

§ 1701; procuring an Indiana commercial driver’s license and American citizenship

by fraud, see 18 U.S.C. §§ 1028(a)(1), 1425(a); and tampering with a witness, id.

§ 1512(b)(1).

The probation officer recommended a guidelines imprisonment range of 97 to

121 months based on a total offense level of 30 and a Category I criminal history. 

To calculate the offense level, the probation officer started with a base offense level

of 26, see U.S.S.G. § 2M5.1(a)(1)(B), and added two levels for obstruction of justice,

see id § 3C1.1, and two more because of the multiple counts, see id. § 3D1.1. 

Neither Mr. Shaaban nor the Government objected to these recommendations. 

Mr. Shaaban argued for a sentence within the guidelines range calculated by the

probation officer, and the Government argued for a sentence above that range based

in part on Mr. Shaaban’s multiple acts of obstructive conduct. To bolster its

argument, the Government produced transcripts of phone calls Mr. Shaaban made
No. 06-2801 Page 3

while in pretrial custody, which the district court ruled were consistent with his

effort to “fabricate and manufacture” a false defense.

At sentencing the district court agreed with the Government that a prison

term greater than 121 months was warranted based on Mr. Shaaban’s obstructive

conduct. The court seemingly spoke as if it was imposing a sentence within a

revised guidelines range that it calculated by giving Mr. Shaaban a six-level

increase for obstruction instead of the two levels recommended by the probation

officer and allowed by the guidelines. The court thus arrived at a total offense level

of 33, which corresponds to a guidelines imprisonment range of 135 to 168 months. 

The court then imposed a total prison sentence of 160 months, which it

characterized as within, but near the top, of the guidelines range. Mr. Shaaban did

not object to this methodology or to the court’s purported revision of the guidelines

range.

The district court’s written statement of reasons, which was issued one

month and a day after sentencing, offers a different explanation for how the court

arrived at its sentence of 160 months. The statement of reasons recites that the

court first calculated the offense level to be 30, as the probation officer

recommended. Statement of Reasons at 2. Then, after correctly calculating the

range, the court imposed an above-guidelines sentence because it believed that

Mr. Shaaban’s multiple acts of obstruction were “not adequately addressed by a two

level increase to the offense level.” Id. The text accompanying a checked check-box

in the statement of reasons indicated that “[t]he court departs from the advisory

guideline range for reasons authorized by the sentencing guidelines manual.” Id.

Mr. Shaaban appealed, but his appointed attorney initially moved to

withdraw under Anders v. California, 386 U.S. 738 (1967), because he could not

discern a nonfrivolous ground for appeal. Based on Mr. Shaaban’s own submission

under Circuit Rule 51(b), however, we denied counsel’s motion and ordered him to

address whether the district court miscalculated the guidelines range by adding

more than two levels for obstruction of justice. United States v. Shaaban, No. 06-

2801 (7th Cir. Mar. 14, 2007).

.

II

DISCUSSION

Mr. Shaaban’s sole argument is that the district court miscalculated his

guidelines range by adding more than the two levels permitted for obstruction

under § 3C1.1. “We review the district court's application of the Guidelines de novo
No. 06-2801 Page 4

and its factual determinations for clear error.” United States v. Warren, 454 F.3d

752, 762 (7th Cir. 2006).

The Government contends that the additional levels were not used in

calculating the guidelines range, but instead were “included as upward departures.” 

Gov’t Br. at 28. The Government acknowledges that Booker v. United States, 543

U.S. 220 (2005), rendered the term “departure” obsolete, but it contends that any

error in the way the district court articulated its methodology was harmless.

The sentencing transcript, standing alone, does not clearly answer whether

the district court erroneously added additional guideline levels, as Mr. Shaaban

insists, or sentenced on the basis of a pre-Booker “departure,” as the Government

suggests. Our analysis does not rest on the transcript alone; we also consider any

written explanation given by the district court for the sentence imposed. United

States v. Baker, 445 F.3d 987, 991-92 (7th Cir. 2006). In this instance, the

statement of reasons entered by the district court after the sentencing hearing

convinces us that the Government’s understanding of the district court’s

methodology is the correct one. The statement of reasons documents that

Mr. Shaaban’s total offense level is 30, meaning that Mr. Shaaban was assessed

only two levels for obstruction and that his advisory guidelines range was

calculated correctly. 

The written statement also demonstrates that Mr. Shaaban received a

sentence above the guidelines range--that the district court called an “upward

departure”--based on his “multiple acts of obstruction not adequately addressed by a

two level increase to the offense level.” Statement of Reasons at 2. Thus, there was

no error in calculating the guidelines range; at the sentencing hearing the district

court simply mispoke about the manner in which it arrived at a sentence above the

range. Essentially the court was “adding” additional levels to Mr. Shaaban’s true

offense level as a means of guiding the degree to which the court went above the

guidelines range. Cf. United States v. Johnson, 427 F.3d 423, 425 (7th Cir. 2005)

(district court chose sentence within “departure range” calculated by “adding” levels

to defendant’s true offense level); United States v. Sarna, 28 F.3d 657, 663 (7th Cir.

1994) (district court calculated extent of departure for failure to appear at

sentencing by increasing sentence by the same amount it had already increased it

for other obstructive conduct). We approved of this practice before Booker. United

States v. Leahy, 169 F.3d 433, 445 (7th Cir. 1999); United States v. Scott, 145 F.3d

878, 886 (7th Cir. 1998). After Booker we have said that it is not error for a

sentencing judge to characterize a sentence outside the range as a “departure”

absent “reason to think that the choice of words made a substantive difference.” 

United States v. Rosby, 454 F.3d 670, 676-77 (7th Cir. 2006). Here, the terminology

did not make a substantive difference.
No. 06-2801 Page 5

Finally, we note that in addition to correctly calculating the guidelines range,

the district court, as it was required to do, imposed a reasonable sentence in light of

the factors set out in 18 U.S.C. § 3553(a). See United States v. Laufle, 433 F.3d 981,

987 (7th Cir. 2006). 

For the foregoing reasons, we affirm Mr. Shaaban’s sentence.

AFFIRMED