                          In the
 United States Court of Appeals
             For the Seventh Circuit
                       ____________

Nos. 05-4509 & 05-4575
UNITED STATES OF AMERICA,
                                           Plaintiff-Appellee,
                              v.

MALKIT “MIKE” SINGH and EKABAL “PAUL” BUSARA,
                                  Defendants-Appellants.
                       ____________
         Appeals from the United States District Court
              for the Eastern District of Wisconsin.
         No. 03 CR 52—William C. Griesbach, Judge.
                       ____________
    ARGUED JANUARY 9, 2007—DECIDED APRIL 17, 2007
                    ____________


 Before BAUER, RIPPLE, and EVANS, Circuit Judges.
   EVANS, Circuit Judge. The intriguing issue in this case
is when does “transportation” begin in a prosecution under
the Federal Kidnapping Act, 18 U.S.C. § 1201(a). Shortly,
we will get into the facts which began in New Jersey,
moved to tiny Francis Creek in Wisconsin, and wound up
back in New Jersey. The events we will relate earned
Malkit “Mike” Singh and Ekabal “Paul” Busara an indict-
ment charging them with the kidnapping of Waheed
Akhtar, during which his death occurred (count 1), the
kidnapping of Akhtar’s nephew, Mukaram Iqbal (count 2),
and conspiracy to kidnap both Akhtar and Iqbal (count 3).
A jury found Singh guilty on all three counts and Busara
2                                 Nos. 05-4509 & 05-4575

entered a guilty plea to counts 2 and 3. Singh was sen-
tenced to a term of 35 years. Busara received a life sen-
tence. Both appeal.
  Prior to 2002, Akhtar lived in New Jersey and worked
at various Atlantic City casinos. He eventually purchased
a gas station/convenience store (under the Citgo banner),
called the Fun ‘n Fast, in Francis Creek, a small town
some 20 miles south of Green Bay just off the major
interstate highway connecting that city to Milwaukee. In
early 2002, Akhtar moved to Francis Creek and started
operating the gas station. Temporarily leaving his family
behind in New Jersey, Akhtar rented a small apartment
in Francis Creek that was fairly close to the station.
  In November 2002, Akhtar traveled to Pakistan for a
family visit. Prior to leaving, he contacted Singh, whom he
knew from his days in Atlantic City, and asked him to
come to Francis Creek and manage the station while he
was out of the country. Singh, who managed two gas
stations in New Jersey, agreed and traveled to Wisconsin.
  When Akhtar returned from Pakistan in January 2003,
he and Singh discussed the possibility of Singh purchasing
the Francis Creek station. A deal was struck, and Singh
paid Akhtar $200,000 as a down payment toward the
$300,000 purchase price. Trouble quickly followed.
  Akhtar delayed signing the papers transferring the
store and did not repay the down payment. Singh, under-
standably, became increasingly frustrated. And he was
by now back in New Jersey and Akhtar was running the
business in Wisconsin.
  By February 28, 2003, Singh’s frustrations boiled over.
He asked a friend, Busara, to travel with him to Francis
Creek to make final efforts to have Akhtar either complete
the sale or pay back the $200,000. If Akhtar did not
comply, Singh intended, with the help of Busara as the
Nos. 05-4509 & 05-4575                                         3

“muscle,” to kidnap Akhtar and force him to do one or the
other.
  Singh and Busara left Atlantic City on February 28 in a
Nissan Pathfinder belonging to Singh’s girlfriend, Aeyoung
Kim. When they arrived in Wisconsin, they went to a
Milwaukee-area Home Depot store where they pur-
chased rope, a tarp, a crowbar, and gloves for use if the
kidnapping became necessary.
  The morning after arriving in the Francis Creek area,
Busara and Singh went to the gas station. Akhtar was not
there but they spoke with an employee, Haley Wagner.
They told him they would return later that day.
  Akhtar and Iqbal eventually arrived at the gas station to
relieve Wagner. Wagner told them that Singh and Busara
had been at the station and planned to return. Later that
afternoon, when Singh and Busara returned, Singh and
Akhtar again discussed the sale. Nothing was resolved.
But Akhtar gave them the keys to his apartment so that
they could continue the discussion there later that eve-
ning.
  Around 5:30 p.m., Iqbal left the gas station and went to
his uncle’s apartment to eat and rest.1 Singh and Busara
were there when he arrived. After a few hours, Iqbal
returned to the station to relieve Akhtar and Akhtar went
to his apartment, intending to return to the station later
to assist Iqbal in closing up for the night.
  When Akhtar arrived at his apartment, he and Singh
again discussed the sale of the business. The discussions
soured and Akhtar went into his bedroom to take a nap.
Singh, although frustrated, decided to spend the night


1
  Iqbal, who resides in Canada, was in Wisconsin for a visit with
his Uncle Waheed.
4                                 Nos. 05-4509 & 05-4575

and try again in the morning to convince Akhtar to sign
the paperwork or return his $200,000.
  After Akhtar went to bed, Busara became increasingly
agitated. Pacing nervously up and down the hallway
outside Akhtar’s bedroom, Busara eventually said to
Singh, “let’s do it.” Busara walked into Akhtar’s room,
made some noises to wake up Akhtar, and then climbed
onto the bed and kneeled on Akhtar’s chest. Busara next
placed his knees on Akhtar’s shoulders, pinning him to the
mattress, and struck Akhtar’s head with a 10-pound
workout dumbbell. Akhtar was rendered motionless on
the bed.
  After the assault, Singh used the rope he and Busara
had purchased at the Home Depot to restrain Akhtar’s
ankles and knees and to tie Akhtar’s hands behind his
back. During this time, Akhtar was lying on the bed.
According to Singh’s post-arrest statement, Akhtar was
“breathing and bleeding.” After they had “hog-tied”
Akhtar, Busara and Singh moved him to the floor in the
hallway, wrapped him in the tarp from the Home Depot,
and carried him out of the apartment to the cargo area of
the Pathfinder. Akhtar was still breathing “a little” when
they wrapped him in the tarp and started to carry him
to the car.
  Singh and Busara then cleaned up some blood in the
bedroom and flipped over the mattress to conceal a large
blood stain. Using Akhtar’s vehicle, the two made a 20-
minute drive to Manitowoc to dispose of the bloody bed-
ding and the dumbbell in a dumpster behind a Menard’s
store. They then returned to the Pathfinder.
  But what to do with Iqbal, who knew they had been at
Akhtar’s apartment? To deal with that little problem, they
drove in the Pathfinder to the gas station. When they
arrived, they lied to Iqbal, telling him that Akhtar sent
them to help Iqbal close up for the evening. At about 1:00
Nos. 05-4509 & 05-4575                                    5

a.m., Singh asked Iqbal to come into the walk-in cooler. As
Iqbal entered, Busara repeatedly struck him from behind.
Singh joined in the attack as they knocked Iqbal to the
floor and tied him up.
  Singh and Busara cleaned up some spilled blood,
snatched a surveillance tape and some money from the
store, and took Iqbal, cut and bleeding from the assault, to
the Pathfinder. Iqbal was unaware that Uncle Waheed
was wrapped in a tarp in the Pathfinder’s cargo area.
  Busara and Singh then drove from Wisconsin to New
Jersey. During the drive they threatened Iqbal, telling
him his uncle was tied up in a hotel in Wisconsin and that
they were doing this so they could get Akhtar’s money.
  The three arrived, after a long drive without a sleep-
stop, in Atlantic City late on the evening of March 3, 2003.
Busara called his brother’s Indian restaurant and ordered
food for the three of them. They then drove to a Quality
Inn motel near Atlantic City, where Busara rented a room
for the night. There, they ate and Singh called his girl-
friend, Aeyoung Kim (the owner of the Pathfinder), and
asked her to come and pick him up. Kim arrived at the
motel in another car and Singh left with her—leaving the
Pathfinder, with Akhtar’s body still in the cargo area, in
the motel parking lot. Busara stayed at the motel to guard
Iqbal, and Singh and Kim went back to Kim’s residence,
where Singh began to disclose to her what had happened.
  The next morning, Busara called his girlfriend, Christine
Colosimo, and asked her to pick him up at the motel.
Busara also called Kim’s residence and asked Singh to
come back to the Quality Inn.
  Singh arrived at the motel, and he and Busara decided
to move the Pathfinder to a nearby Coastal gas station,
where Kim stored vehicles she used for her seafood
business. Busara drove the Pathfinder (with Akhtar’s body
6                                    Nos. 05-4509 & 05-4575

still wrapped in a tarp in the cargo area), followed by
Colosimo in her car. Meanwhile, Iqbal was moved to
another hotel. He escaped when he was left alone for a
short time. He called the police and told them what Singh
and Busara had done to him.
  At around the time that Iqbal escaped, Wagner (the
clerk at the gas station in Francis Creek) reported to the
local police that Akhtar was missing. In the late afternoon
of March 4th, the Wisconsin and New Jersey investiga-
tions began to converge. The FBI was notified, and fed-
eral, state, and local law enforcement in Wisconsin and
New Jersey began to work jointly on the investigation to
locate Akhtar and arrest Singh and Busara.
  The Manitowoc County Sheriff ’s Department (Francis
Creek is in Manitowoc County) searched the Fun ‘n Fast.
In the walk-in cooler, they found blood, broken glass, and
other evidence of a struggle. After comparing their infor-
mation with information provided by Iqbal to the New
Jersey authorities, the sheriff ’s department obtained a
search warrant for Akhtar’s Francis Creek apartment.
During the initial search, the authorities found no evi-
dence of a struggle. After Busara was arrested and con-
fessed, however, Akhtar’s apartment was searched a
second time, and the police discovered the large blood
stain on the underside of the mattress of Akhtar’s bed. A
small amount of blood splatter was also found on the
wall above the headboard of the bed and on the carpet.
  Meanwhile, Singh discovered that Iqbal had escaped, so
he went to Jose Estrella’s2 apartment in Atlantic City.
Estrella, a driver for Kim’s seafood company, was a friend


2
  Estrella and the two girlfriends, Kim and Colosimo, were also
indicted in this case for making false statements to government
agents (counts 4 through 6 of the indictment). Those counts
were severed and the cases transferred to New Jersey.
Nos. 05-4509 & 05-4575                                      7

of Singh’s. They were soon joined there by Kim and
Busara. While there, Singh, Kim, and Busara discussed
what to do with Akhtar’s body, which was still in the
Pathfinder, parked where Busara had left it at the Coastal
gas station. According to Kim, Busara said that they
had to bury the body.
  They decided to dispose of the body at a storage facility
where Kim rented a shed also for her seafood business.
Once there, they dug a deep grave, carried Akhtar’s body
from the back of the Pathfinder, placed it in the grave, and
covered it with dirt. Mission accomplished, Busara and
Singh split up. Soon thereafter, Busara was arrested at his
brother-in-law’s New Jersey restaurant. Singh was
arrested a few days later in Flushing, New York. Both
separately confessed to most of the essential facts, with
Busara spilling the beans and telling the authorities
where Akhtar’s body was buried.
  As we said, the intriguing issue raised by this appeal
is when does “transportation” begin under the statute.
Depending on the answer, we can determine whether the
jury instructions were proper and, if so, whether there
is evidence to support a verdict based on those instruc-
tions. We review de novo the correctness of the jury
instructions regarding the elements of an offense. United
States v. Jones, 454 F.3d 642 (7th Cir. 2006).
  The federal kidnapping statute is based on Congress’s
power to regulate interstate commerce. Perez v. United
States, 402 U.S. 146 (1971). For that reason, to be a fed-
eral crime, kidnapping must involve moving the victim
across state lines. For many years, the statute required
that the victim was alive at the moment he was trans-
ported across a state line. See, e.g., United States v. Green,
680 F.2d 520 (7th Cir. 1982); United States v. Davis, 19
F.3d 166 (5th Cir. 1994). Proving that a person was alive
at that discrete moment, however, imposed a heavy bur-
8                                  Nos. 05-4509 & 05-4575

den on the government. And in 1998, Congress amended
the statute to eliminate the requirement that the victim be
alive at the moment the state line is crossed. It now
applies to anyone who unlawfully “seizes, confines, invei-
gles, decoys, kidnaps, abducts, or carries away” a person
if that person is
    willfully transported in interstate or foreign commerce,
    regardless of whether the person was alive when
    transported across a State boundary if the person was
    alive when the transportation began[.]
So now what must be established is whether the victim
was alive when the transportation began. In some sense,
the difficulty for the government has simply been moved
to another moment in time—“when the transportation
began,” whenever, as a legal matter, that occurs.
  In answering that question, we “must first look to the
language of the statute and assume that its plain meaning
accurately expresses the legislative purpose.” United
States v. Miscellaneous Firearms, 376 F.3d 709, 712 (7th
Cir. 2004), quoting Grzan v. Charter Hosp. of Northwest
Ind., 104 F.3d 116, 122 (7th Cir. 1997). Apparently, the
meaning of the kidnapping statute is not plain to every-
one, though an argument can be made that it should be.
  That said, we acknowledge that in this case alone,
several interpretations of the statute have been urged. At
trial, Singh urged three alternate points at which trans-
portation could be said to begin: first, when the vehicle
in which the victim is placed enters a public highway;
second, when the victim is placed in an automobile; and
third, when he was removed from the apartment. Relying
on a case from the Court of Appeals for the Fourth Cir-
cuit, the government contends that transportation begins
with any movement of the victim. United States v. Horton,
321 F.3d 476 (2003). In this court, Singh relies on the
dissent in Horton to argue that the question of whether
Nos. 05-4509 & 05-4575                                    9

a defendant made a single journey that took him across
state lines or made a stop or series of movements that
broke the trip into multiple journeys was a question for
a properly instructed jury. Under this view, the victim
must be alive when the leg of the journey during which
state lines are crossed begins. The dissent is useful to
Singh because it means that transportation of Akhtar
arguably could be said to begin only after the trip to
Manitowoc to dispose of the bloody bedding, at which time
Akhtar was almost certainly dead.
  Assuming that the statute is ambiguous, we turn to its
structure and purpose to determine its meaning. FDA v.
Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000).
We start with the premise that Congress certainly did not
intend to make proof of the crime more complicated, and
thus more difficult, than it was under the prior stat-
ute—which is exactly what most of the possibilities
cited by Singh do. By the amendment, Congress clearly
signaled its intent to remove a barrier to prosecution under
the statute by inserting the words “regardless of whether
the person was alive when transported across a State
boundary . . . .” Why would it then require that the victim
be alive at some more or less arbitrary point along the
way? We think it would not.
  To the contrary, we agree with the court in Horton that
the transportation of a victim begins when he or she
is “willfully moved from the place of her abduction.” At
481. To use any other point in time would, in fact, be
arbitrary and would insert an unnecessary element of
uncertainty into the statute. Why would the crime begin
when, for instance, Singh and Busara started up the
Pathfinder after they returned from disposing of the bloody
bedding, rather than when they seized Akhbar? The
moment Akhbar was seized, he was kidnapped. If he was
alive at the moment he was moved, and if ultimately he
10                                 Nos. 05-4509 & 05-4575

was taken across a state line, the federal kidnapping
statute applies.
  The instruction given by Judge Griesbach in this case
is as follows:
       The government does not have to prove that Waheed
     Akhtar was alive when he crossed the Wisconsin
     boundary; it is sufficient if Akhtar was alive when the
     transportation began. Transportation begins within
     the meaning of the statute when a defendant moves
     the victim from one location to another as part of a
     plan or scheme that takes the victim to a place
     across the state line.
The instruction correctly states that transportation begins
when the victim is moved. And by its verdict, the jury must
have found that Akhtar was alive when he was moved
from the bed onto the tarp in preparation for being placed
in the Pathfinder for the trip to New Jersey.
  During deliberations, the jury asked where transporta-
tion begins—when the body was moved to the tarp, or
when it was rolled over and tying began. The judge stated:
     [T]ransportation means to carry from one place to
     another. To convey. Transportation of a victim for
     purposes of the Federal Kidnapping Act begins at the
     place, including a place within a residence, where the
     victim is seized, if the transportation from that place
     is part of a plan or scheme that takes the victim
     across the State boundary.
We find this instruction also to be in keeping with our view
of the scope of the revised federal kidnapping law.
  So, in this case, there was a properly instructed jury.
The next issue is whether there was sufficient evidence
that Akhtar was alive when transportation began. Our
review of a claim based on the sufficiency of the evidence
Nos. 05-4509 & 05-4575                                   11

is deferential. We view the evidence in the light most
favorable to the government and affirm so long as a
“rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” United
States v. Allen, 383 F.3d 644, 646 (7th Cir. 2004).
   The evidence was sufficient. First of all, Singh confessed
to the kidnapping, and his confession was consistent
with the physical evidence, including the location of the
body, the location of the bloody bedding and dumbbell, the
beating of Iqbal, the burying of the body, and Akhtar’s
injuries. As to the kidnapping itself, what Singh said
was that he and Busara hog-tied Akhtar while he was
still on the bed. They then moved him to the tarp on the
floor. They rolled him in the tarp, bound the outside of the
tarp, and carried him to the Pathfinder. Singh said that
while they were tying him in the tarp, Akhtar was breath-
ing and bleeding. Singh also said that as they carried
Akhtar to the car, he was still breathing “a little.”
  Secondly, this evidence is consistent with the testimony
of the expert witness for the government, Dr. Ian Hood.
Dr. Hood testified that physical evidence found during
the autopsy supported the inference that Akhtar had
survived for at least several minutes following the beat-
ing. He said that the fracture Akhtar suffered from the
blow on the head did not cause the kind of damage that
would result in instantaneous death. In addition, a small
amount of blood was found in Akhtar’s lungs, which
indicates that he had survived for some time after the
blow to the head. Dr. Hood’s analysis of the injury led
him to conclude that it was not necessarily a fatal injury.
He said that people with such an injury often live long
enough to be organ donors, and a few actually survive. We
find that, viewed in the light most favorable to the gov-
ernment, the evidence was sufficient to sustain the
conviction.
12                                 Nos. 05-4509 & 05-4575

  The sentencing issues raised by defendant Busara are
less intriguing, but nonetheless important. He claims that
the district judge improperly calculated his advisory
sentencing guideline range and that the life sentence
imposed on him was not reasonable under the sentencing
factors set out in 18 U.S.C. § 3553(a).
  After United States v. Booker, 543 U.S. 220 (2005), we
review criminal sentences for unreasonableness. If a
sentence falls within the properly calculated range under
the United States Sentencing Guidelines, it enjoys a
rebuttable presumption of reasonableness. United States
v. Mykytiuk, 415 F.3d 606 (7th Cir. 2005). We continue to
review guideline calculations de novo and factual find-
ings for clear error. United States v. Ellis. 440 F.3d 434
(7th Cir. 2006).
  As to count 2, in which Busara is charged with the
kidnapping of Iqbal, the district judge concluded that the
proper sentencing guideline was § 2A1.1 and accordingly
set the offense level at 43. We see no problem with the
calculation. The calculation started with § 2A4.1(a), which
at the time provided for a base offense level of 24 for
kidnapping. However, if the victim (here Iqbal) was
abducted in connection with or during an escape from
another underlying offense and the base offense level for
the underlying offense is higher, the higher offense level
is applied. Iqbal’s kidnapping was committed to cover up
Akhtar’s kidnapping and murder—a felony murder, which
the application notes make clear is first degree murder,
making the offense level properly calculated at 43.
  Count 3 alleged a conspiracy to kidnap both victims. In
calculating the guildelines for this count, Judge Griesbach
applied the cross-reference in § 2A4.1(d)(1), which provides
that the first degree murder guideline applies when the
victim was killed under circumstances constituting mur-
der under 18 U.S.C. § 1111. That section provides that
Nos. 05-4509 & 05-4575                                  13

every murder “committed in the perpetration of, or at-
tempt to perpetrate, any . . . kidnapping . . . is murder
in the first degree.” Again, the application of U.S.S.G.
§ 2A1.1 was correct.
  Where we part company with the district judge is in his
application of a 2-level enhancement for obstruction of
justice under § 3C1.1. That section provides for an en-
hancement if the “defendant willfully obstructed or
impeded . . . the administration of justice during the
course of the investigation, prosecution, or sentenc-
ing . . . .”
  The presentence report did not suggest that an enhance-
ment for obstruction of the justice be imposed, nor did the
government request one. When the judge suggested the
enhancement might be appropriate, the government
nimbly got on board. Ultimately, the enhancement was
used to increase the offense level. The judge stated that
“[b]urying the body conceals it in a way that leaving it
in the back of a vehicle does not.” He also stated that
burying the body “during the investigation of the crime
is concealing evidence of the crime.”
  The problem we see with the enhancement is that the
act of burying the body can easily been seen as part of the
ongoing conspiracy, rather than as an attempt to impede
the investigation. Singh and Busara had continued to
confine Iqbal until he escaped from the motel room. It was
immediately after Singh discovered that Iqbal had escaped
that he and Busara determined that they had to bury
Akhtar’s body. After that, when Busara learned the
police were looking for him, he surrendered, confessed to
his participation in the crime, and showed the police
where the body was buried. Under these circumstances,
we see burying the body as a part of the conspiracy, rather
than as an attempt to obstruct justice. Therefore, we
find that the enhancement for obstruction was improper.
14                                 Nos. 05-4509 & 05-4575

  The 2-level enhancement for obstruction, of course,
infected the remaining guideline calculations. Because the
guideline range was not properly calculated, we are unable
to determine whether Busara’s sentence was reasonable.
See United States v. Bokhari, 430 F.3d 861 (7th Cir. 2005).
  Accordingly, the judgment of conviction as to Malkit
Singh is AFFIRMED; the sentence imposed on Ekabal
Busara is VACATED and his case is REMANDED to the
district court for resentencing.




  RIPPLE, Circuit Judge, dissenting in part and concurring
in the judgment in part. I agree with my colleagues that
Mr. Singh has not demonstrated reversible error in his
conviction, and I further agree with the court that Mr.
Busara has demonstrated error sufficient to require
resentencing in the misapplication of the obstruction of
justice enhancement. I write separately, however, because
I believe that Mr. Busara has demonstrated an addi-
tional error at sentencing that requires this court’s
attention. Specifically, Mr. Busara has invoked a line of
this circuit’s precedent that directs a sentencing court to
consider whether the first degree murder guideline is
appropriate when, as here, the court concludes that a
defendant is responsible for an unintentional felony
murder. In my view, the majority opinion gives insufficient
attention to this aspect of his challenge, and, therefore,
insufficient direction to the district court on resentencing.
  As the majority opinion notes, before trial, Mr. Busara
pleaded guilty to a charge of kidnaping Mukaram Iqbal,
Nos. 05-4509 & 05-4575                                    15

the surviving victim, and a charge of conspiracy to kidnap
both Iqbal and Waheed Akhtar. In exchange, the Govern-
ment dropped the charge of kidnaping resulting in the
death of Akhtar. In sentencing Mr. Busara, the district
court began with the kidnaping guideline and arrived
at the first degree murder guideline, resulting in a base
offense level of 43, a result the majority opinion sanctions
without much discussion. See slip op. at 12-13. I part
company with the majority on this issue because I be-
lieve the district court, in calculating the appropriate
offense level, failed to consider whether a departure
from the first degree murder guideline was proper be-
cause the killing was unintentional.


A. The Sentencing Calculations and Related Find-
   ings
  In order to understand the district court’s misstep in this
regard, it is necessary to track with some precision the
determinations made by the court to arrive at the ulti-
mate sentence. At the sentencing hearing, before turning
to the sentence calculation, the district court made the
following statement in its findings:
      It appears to me that what occurred here was not an
    intentional killing of Mr. Akhtar, at least as it started
    out. They intended to kidnap him. When it didn’t
    work, when they couldn’t coerce him into signing the
    promissory note or providing the money, the decision
    was made then to take him. And they needed to
    incapacitate him to do so. They struck him. Mr.
    Busara, I find, inflicted the blow.
      He did so too hard. He inflicted such a harsh blow
    that—he inflicted a fatal blow where presumably his
    intent was to knock Mr. Akhtar out, and it is for that
    reason that they then tied up Mr. Akhtar, placed him
16                                   Nos. 05-4509 & 05-4575

     on a tarp, intending to take a live, but unconscious
     person out of the area and presumably make good
     on the plan to get him to cooperate ultimately and pay
     the money or sign the documents or whatever.
       No other explanation makes sense. Why they would
     have tied him up if they thought he was dead right
     away makes no sense.
Sent. Tr. at 80-81 (emphasis added).
   Turning to the actual guidelines calculation on the count
related to the kidnaping of Iqbal, the district court began
with the kidnaping guideline, U.S.S.G. § 2A4.1. The court
then determined that the kidnaping of Iqbal was com-
mitted “during the commission of, or in connection
with, another offense or escape therefrom,” U.S.S.G.
§ 2A4.1(b)(7), that offense being the kidnaping of Akhtar.
Following the directive of § 2A4.1(b)(7), the court deter-
mined that the appropriate base offense level should be
borrowed from this related offense—the kidnaping of
Akhtar. To calculate the appropriate offense level for the
killing of Akhtar, the district court looked afresh at the
kidnaping guideline, § 2A4.1. It concluded that, if Akhtar
was killed “under circumstances that would constitute
murder under 18 U.S.C. § 1111[1] had such killing taken
place within the territorial or maritime jurisdiction of the
United States,” it would be appropriate to apply the
kidnaping guideline’s cross-reference, U.S.S.G. § 2A4.1(c),
which directs the court to apply the offense level of the
first degree murder guideline, § 2A1.1.
  The court invited the parties to address the applicability
of the cross-reference. Counsel for Mr. Busara clarified, “if


1
  18 U.S.C. § 1111 provides that murder is killing with “malice
aforethought”; it defines first degree murder to include felony
murder and it also defines second degree murder.
Nos. 05-4509 & 05-4575                                   17

I heard it correctly, I think what the Court said is that
the version of the offense that Your Honor finds as being
the reasonable one is that they didn’t intend to kill him;
they intended to subdue him and that the hit was too
hard.” Sent. Tr. at 90-91. On the basis of the finding that
the killing was unintentional, counsel for Mr. Busara
urged that, in applying the cross-reference, the court
should not look to the first degree murder guideline, but
to the second degree murder guideline. The court re-
sponded:
     You heard me correctly. . . . And I don’t find evidence
   here—credible evidence that the intent in striking Mr.
   Akhtar was to kill him. That certainly was the effect.
   I don’t think it makes any difference.
     ....
     I understand [defense counsel’s] argument is that
   this is not first degree murder, and it would be proba-
   bly anyhow because it was committed in the course of
   a kidnapping.
     First degree murder, of course, is defined in 18
   U.S.C. [§] 1111. First and second degree murder
   actually is defined there. And if this crime was first or
   second degree murder, it would be—it would con-
   stitute murder under 18 U.S.C. [§] 1111, and therefore,
   the applicable Guideline would be 2A1.1. 2A1.1 is a 43.
     And this constitutes murder under [§] 1111, whether
   it was first or second degree murder. And it is cer-
   tainly first degree murder because it is committed in
   the course of a kidnapping.
     [Section] 1111 reads, “Murder is the unlawful killing
   of a human being with malice [a]forethought.” I note
   that malice [a]forethought does not require specific
   premeditation. That would be required for first degree
18                                    Nos. 05-4509 & 05-4575

     murder, but it is not required for second degree mur-
     der.
       Malice [a]forethought includes evil intent; not
     necessarily to murder, but malicious intent. Clearly
     that was here. So this would, even with the kidnap-
     ping, would constitute a second-degree murder, so it
     would be murder under 18 U.S.C. [§] 1111.
       But every murder perpetrated—and then it goes on
     to state, “In perpetration of or attempt to perpetrate
     the crime of kidnapping is a first degree murder.” And
     I’m satisfied that this murder occurred in the course
     of an effort to perpetrate the crime or the conspiracy
     in this case—or the crime of kidnapping. It’s relevant
     conduct, and therefore, 43 is the offense.
Sent. Tr. at 91-93. Having made the determination that
the cross-reference was applicable, the court thus arrived
at the first degree murder guideline’s offense level of 43;
after adding a multiple-count enhancement2 and an
obstruction of justice enhancement and subtracting
levels for acceptance of responsibility, the resulting total
offense level was 44.


B. Application Note 1
  Mr. Busara urges this court to consider whether the
district court erred in applying the cross-reference in
§ 2A4.1(c)(1) without first acknowledging that the ap-



2
  The court had arrived at an offense level of 43 for the conspir-
acy count “for the same reasons” as arriving at an offense level
of 43 for the kidnaping count. Sent. Tr. at 97. The obstruction
enhancement was applied to the conspiracy count, and the
multiple-count enhancement was applied, without grouping,
because the counts involved two victims.
Nos. 05-4509 & 05-4575                                        19

plication notes permit a “departure” below that guideline
for unintentional killings. At the time of the offense,
Application Note 1 to § 2A1.1, the first degree murder
guideline, provided:
      The Commission has concluded that in the absence
    of capital punishment life imprisonment is the appro-
    priate punishment for premeditated killing. However,
    this guideline also applies when death results from
    the commission of certain felonies. Life imprisonment
    is not necessarily appropriate in all such situations.
    For example, if in robbing a bank, the defendant
    merely passed a note to the teller, as a result of which
    she had a heart attack and died, a sentence of life
    imprisonment clearly would not be appropriate.
      If the defendant did not cause the death intention-
    ally or knowingly, a downward departure may be
    warranted. The extent of the departure should be based
    upon the defendant’s state of mind (e.g., recklessness or
    negligence), the degree of risk inherent in the conduct,
    and the nature of the underlying offense conduct.
    However, the Commission does not envision that
    departure below that specified in § 2A1.2 (Second
    Degree Murder) is likely to be appropriate. Also,
    because death obviously is an aggravating factor, it
    necessarily would be inappropriate to impose a sen-
    tence at a level below that which the guideline for
    the underlying offense requires in the absence of
    death.
U.S.S.G. § 2A1.1, Application Note 1 (2003) (emphasis
added).3 In the Application Note, the Sentencing Commis-
sion recognizes that, by virtue of the cross-reference
contained in § 2A4.1 and certain other similar guidelines


3
   Subsequent amendments to the guidelines restructure this
section and it now appears, with minor modifications, in Applica-
tion Note 2.
20                                     Nos. 05-4509 & 05-4575

provisions (which sweep certain second degree murders
into the first degree guideline), and by virtue of the
classification of felony murder as murder in the first
degree, many non-intentional, non-premeditated killings
result in a life sentence under strict application of the
guideline; a district court is empowered, indeed, directed
to consider whether the mental state of the defendant
justifies using a less severe starting point in the sentenc-
ing calculus. Mr. Busara contends that, because the
district court failed to consider Application Note 1, it
erroneously determined that it was bound to arrive at
the full offense level under the first degree murder guide-
line because the death of Akhtar occurred in the course
of a felony.4
  As an initial matter, when the Note is applicable, it
directs the sentencing court to consider a “downward
departure.” Recent precedent from this court, of course,
notes that post-Booker, the concept of departures is “obso-
lete.” See, e.g., United States v. Filipiak, 466 F.3d 582, 584
(7th Cir. 2006). The “departure” involved in this case,
however, relates to the proper application of the guide-
lines in determining the offense level, not a departure
from a properly calculated sentencing range. Therefore, the
present issue is analyzed more properly as part of our de
novo inquiry into whether the guidelines were properly
applied. See United States v. Scott, 405 F.3d 615, 617 (7th
Cir. 2005) (“The Sentencing Reform Act requires


4
  As has been made clear by the foregoing discussion, Mr.
Busara urged the district court to adopt something lower than
the first degree murder guideline because the court had made
a finding that the killing was unintentional. At oral argument,
Mr. Busara conceded that he did not make specific reference to
Application Note 1 directly to the district court; however, the
Government does not suggest that our review of the appro-
priate guidelines calculation is other than de novo, see Appellee’s
Br. at 29-30.
Nos. 05-4509 & 05-4575                                        21

resentencing when the challenged sentence was ‘imposed
as a result of an incorrect application of the sentencing
guidelines.’ 18 U.S.C. § 3742(f)(1). This provision survived
Booker. See [543 U.S. 220, 258-60,] 125 S. Ct. [738,] 764
(2005). An incorrect application of the guidelines requires
resentencing under the post-Booker sentencing regime.”).
Further, “[i]t is well established that ‘[a]n application
note is binding authority unless it violates the Constitution
or a federal statute, or is inconsistent with, or a plainly
erroneous reading of that Guideline.’ ” United States v.
Stitman, 472 F.3d 983, 987 (7th Cir. 2007) (quoting United
States v. Dyer, 464 F.3d 741, 743 (7th Cir. 2006)).
  The particular Application Note at issue in this case has
been the subject of several prior sentencing challenges
in this court. In a series of cases beginning with United
States v. Prevatte, 16 F.3d 767, 784-85 (7th Cir. 1994), this
court emphasized the duty of the district court, in im-
posing a sentence for first degree murder, to consider
whether the use of the full base offense level for first
degree murder was appropriate in instances of non-
intentional killings consistent with Application Note 1.
  In Prevatte, the defendants had used pipe bombs to
create diversions for burglaries; the explosion of one of
those bombs killed an elderly woman outside her home.
The district court had applied the first degree murder
guideline and sentenced the defendants to life imprison-
ment. We overturned the life sentence because the dis-
trict court had not applied “the directives of the Sentencing
Commission in Application Note 1 to § 2A1.1.” Id. at 784.5
  In United States v. Martin, 63 F.3d 1422 (7th Cir. 1995),
abrogated in part on other grounds by Jones v. United


5
   We simultaneously rejected the sentence on the alternate
ground that under the relevant statute, a jury recommenda-
tion was required before a life sentence could be imposed. United
States v. Prevatte, 16 F.3d 767, 784 (7th Cir. 1994).
22                                  Nos. 05-4509 & 05-4575

States, 529 U.S. 848 (2000), after determining on other
grounds that resentencing was required, we again noted
the relevance of Application Note 1. We noted that “there
[was] no indication that the [district] court considered the
defendant’s mental state or any other grounds for depar-
ture” authorized by the note, and noted that on remand the
court “may depart . . . should it find appropriate reasons
therefor.” Id. at 1435.
  More recently, in United States v. Thomas, 280 F.3d
1149 (7th Cir. 2002), we evaluated a challenge to a sen-
tence imposed under the first degree murder guideline
without sufficient findings of premeditation, or, in the
alternative, without specific findings supporting felony
murder as first degree murder. After concluding that the
court erred in not making such findings, we continued,
     [a]dditionally, there is nothing in the record to suggest
     that the district court recognized that it had the
     option under Application Note 1 to § 2A1.1 to depart
     downward from life imprisonment. See Prevatte, 16
     F.3d at 784-85 (holding that when felony murder
     provides the basis for the sentence enhancement, a
     district court’s failure to make findings as to the
     defendant’s mental state to determine if a departure
     down from life imprisonment required a remand).
     Therefore, the district court’s selection of first degree
     murder under a felony murder theory cannot stand.
Thomas, 280 F.3d at 1158.
  The thrust of these cases is that, because the Notes are
binding authority, and because they authorize the court
to exercise discretion not only in imposing a sentence
but in calculating the guidelines range, a sentencing
court is under an obligation to consider whether circum-
stances warrant a downward departure from the first
degree murder offense level. In Prevatte, the error of the
district court had been its failure to “undertake further
Nos. 05-4509 & 05-4575                                          23

analysis of the mental state of each defendant.” 16 F.3d at
784. In the case before us, the court did make an inquiry,
and indeed, repeatedly made a finding on the record that
the killing was not intentional or premeditated. It none-
theless failed to acknowledge that it had discretion not
to apply that offense level and indeed used language
that strongly suggested it was bound to that guideline
under the circumstances. Sent. Tr. at 91 (“And I don’t find
evidence here—credible evidence that the intent in striking
Mr. Akhtar was to kill him. . . . I don’t think it makes any
difference.”); Sent. Tr. at 92 (“And if this crime was first or
second degree murder, it would be—it would constitute
murder under 18 U.S.C. [§] 1111, and therefore, the
applicable Guideline would be 2A1.1.”).
  This approach is inconsistent with our precedent, as
outlined above. Although Application Note 1 does not
require the district court to adjust downward Mr. Busara’s
offense level as a necessary consequence of the finding
that the killing was unintentional, it invests the court
with discretion to do so, and our precedent imposes an
obligation on that court to affirmatively consider its
option in this regard. A sentencing court, therefore, should
acknowledge its authority under the Note; particularly
when, as here, a finding as to lack of intent to kill has
been made, the sentencing court should make a further
determination on the record as to whether such an ad-
justment would be appropriate.6


6
   I acknowledge that the court had the authority to depart from
a properly-calculated guidelines sentence and chose not to do so.
I cannot say, however, that the same considerations necessarily
would animate a decision regarding proper calculation of the
guidelines range as opposed to a decision that no departure
from a properly calculated guidelines range is appropriate. The
error in failing to consider Application Note 1, is, therefore, not
                                                     (continued...)
24                                 Nos. 05-4509 & 05-4575

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




6
  (...continued)
harmless despite the considerable discretion now afforded to
sentencing courts.


                   USCA-02-C-0072—4-17-07
