                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                         August 10, 2006
                                 TENTH CIRCUIT                         Elisabeth A. Shumaker
                            __________________________                     Clerk of Court

 U N ITED STA TES O F A M ER ICA,

          Plaintiff - Appellee,

 v.                                                       No. 05-5158
                                                        (N.D. Oklahoma)
 R IA D H ABD U L R AH M A N                    (D.Ct. No. 04-CR-218-001-HDC)
 D A LLA H,

          Defendant - Appellant.
                         ____________________________

                              OR D ER AND JUDGM ENT *


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      On December 13, 2004, a one-count indictment charged Riadh Dallah with

international parental kidnapping in violation of 18 U.S.C. § 1204(a). He pled



      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
guilty and subsequently was sentenced to thirty-six months imprisonment

followed by one year of supervised release. The district court adopted the

presentence report’s (PSR) observation that the kidnapping offense was ongoing.

The court therefore 1) denied him a downward adjustment for acceptance of

responsibility and 2) imposed a maximum sentence notwithstanding the

sentencing guidelines. Dallah claims the court erred in so doing. Exercising

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we AFFIRM .

Background

      Dallah and his wife, Lama H ijazi-Dallah, were married in Syria on M ay 13,

1993. The couple relocated to the United States and had two children. Dallah

started several successful companies, primarily based on his association with the

International House of Pancakes (IHOP). In 2001, Dallah filed for divorce. A

lengthy and contested divorce ensued. Under the provisions of a temporary

custody order, Dallah had custody of the two children, but Hijazi-Dallah was to

have three overnight visits with the children each week.

      On December 26, 2003, after spending three days with her children, Lama

Hijazi-Dallah returned them to Dallah. Three days later, Dallah telephoned

Hijazi-Dallah to inform her he was in Syria with the children, he had shipped all

his belongings to Syria and he intended to remain there permanently. A short

time later, Hijazi-Dallah discovered a handwritten letter from Dallah in her

mailbox dated December 25, 2003. The letter advised her that he had sold the

                                        -2-
stock he held through IHOP, resigned from his job, closed his office, cancelled

his United States residency, relinquished his home to the bank, sold his car and

shipped his belongings to Syria where he intended to live with the children, “like

a king.” (Vol. II, ¶ 8.) He also wrote, “I will no longer pursue any litigation as

no decision of the court in the US will concern me . . . as I will never contemplate

returning, NEVER . . . .” (Id.) Dallah’s removal of the children from the United

States violated the visitation order in Tulsa County District Court Case No. FD -

2001-3944. 1 On January 5, 2004, the Tulsa County district judge granted Hijazi-

Dallah temporary custody of the children.

       On December 10, 2004, Dallah arrived in the United States on a flight from

Italy, at which time he was arrested by the Bureau of Immigration and Customs

Enforcement at the John F. Kennedy International Airport in New York. 2 Dallah

was held in custody continually after his arrest. The children remained in Syria.

       Dallah’s indictment charged he “unlaw fully and intentionally removed to

Syria from the United States, . . . the children of [his] marriage . . . in violation of

custody and visitation rights, . . . with the intent that [the] children should remain

in Syria permanently.” (Vol. I, Doc. 1.) Dallah pled guilty on April 2, 2005,



       1
         18 U.S.C. § 1204(a) provides: “Whoever removes a child from the United States,
or attempts to do so, or retains a child (who has been in the United States) outside the
United States with intent to obstruct the lawful exercise of parental rights shall be fined
under this title or imprisoned not more than 3 years, or both.”
       2
           The reason for Dallah’s return to the United States is not explained in the record.

                                              -3-
admitting to both the fact of removal in violation of the custody order and his

intent to remove the children permanently. Using the 2003 Sentencing Guideline,

the PSR assigned a base offense level of 14 pursuant to USSG §2J1.2. The report

did not recommend an adjustment for acceptance of responsibility because

“[Dallah] continues to be in violation of the offense to which he entered a guilty

plea” and “has not demonstrated any intention of returning the children to the

United States.” (Vol. II at ¶ 21.) The PSR concluded “[t]he defendant’s ongoing

conduct is simply not consistent with acceptance of responsibility and outweighs

the fact he entered a guilty plea.” (Id.) Based on a total offense level of 14 and a

criminal history category of I, the guideline range for imprisonment was fifteen to

twenty-one months. Under 18 U.S.C. § 1204(a), the maximum term of

imprisonment is thirty-six months.

      The PSR also identified one factor “that may warrant a departure [from] the

otherwise applicable guideline range.” (Vol. II, ¶ 55.) The PSR stated:

      In this case, a departure under USSG §5K2.0(a)(2)(B), Unidentified
      Circumstances, may be appropriate. The applicable guideline for this
      offense, USSG §2J1.2, Obstruction of Justice, generally covers a
      defendant’s obstructive conduct in the administration of justice that
      is complete and not the unusual case of preventing a parent legal
      access to her children as provided in a state court in a pending
      divorce case. In addition, in this case, the defendant’s offense was
      lengthy and remains ongoing in nature. He has never brought his
      children back to the United States so that he would be in compliance
      with the child custody provisions of his pending divorce case . . . .
      Although the guidelines calculations deny the defendant a reduction
      for acceptance of responsibility because he has not complied with the
      court order . . . and his criminal conduct is ongoing, the Court may
      determine that an upward departure in the offense level is warranted.

                                         -4-
(Id., ¶ 56.) The PSR further suggested, “[t]he Court may determine that a

sentence up to the statutory maximum is reasonable because of the duration of

this offense and the fact that there is no indication that the defendant will comply

with the court order in the near future.” (Id., ¶ 57.) Dallah objected to the factual

basis of the PSR’s recommendation, complaining its conclusion that he had not

demonstrated any intention of returning the children “presumes that M r. Dallah

can return the children while he is incarcerated,” and such a “presumption is not

supported by any proof.” (Appellant’s Br. at 6.)

      At sentencing, the district court asked Dallah if he had “seen the

presentence report and found it accurate and correct,” to which Dallah responded,

“Yes, sir.” (Vol. IV at 2.) Defense counsel reiterated Dallah’s objection to the

PSR , suggesting Dallah’s ability to return the children to the United States may

not be “legally feasible.” (Id. at 4.) Addressing this argument, the court asked

defense counsel, “Are you suggesting they couldn’t voluntarily return?” (Id.)

Defense counsel admitted he did not know, but stated it was his belief that Dallah

had initiated and completed an action in the Syrian courts that would render any

order in Oklahoma incapable of securing the return of the children. (Id. at 4-6.)

      The court considered the Sentencing Guidelines as advisory only, applied

the factors set forth in 18 U.S.C. § 3553(a), and sentenced Dallah to the statutory

maximum of thirty-six months imprisonment — a sentence exceeding the

guideline computation by fifteen months. The district court explained the

                                         -5-
sentence was appropriate to meet the sentencing goals because “preventing a

parent legal access to her child as provided by the state court in a pending divorce

case” is not the usual case of obstruction of justice. (Id. at 8.) It further

explained:

       [T]he defendant’s offense is ongoing in nature, beyond the duration
       of the offense. As stated, he has no intention of complying with the
       court’s order that he has obstructed in this case. To this date the
       children have been kept away from their mother for more than 18
       months.

(Id. at 8-9.) 3 Following the imposition of his sentence, Dallah timely filed this

appeal.

Discussion

       Dallah argues his sentence is unreasonable because the district court

imposed a sentence based on a fact not proven by the government. 4 Thus, the



       3
         The district court earlier explained what it meant by an ongoing offense stating,
“This is a continuing - - not a continuing offense, but the result of it is continuing, and I
appreciate the difficulties that the mother has had, not being able to see her children for so
long.” (Vol. IV at 7.) We agree with the district court’s description. A “continuing
offense” is a specific legal term meaning “an offense that involves a prolonged course of
conduct, . . . not complete until the conduct has run its course.” United States v. Dunne,
324 F.3d 1158, 1164 (10th Cir. 2003) (internal citations and quotations omitted). Unlike
a continuing offense, an offense under 18 U.S.C. § 1204(a) is complete as soon as a child
is removed from the United States or retained outside the United States with an intent to
obstruct the law. See United States v. Ventre, 338 F.3d 1047, 1054 (9th Cir. 2003). The
consequences of the offense continue for as long as the children remain outside the
United States.
       4
         Dallah does not claim a sentence of thirty-six months imprisonment is
unreasonable or improper had the government proved Dallah’s continuing intent to keep
the children in Syria.

                                             -6-
only question on appeal is whether the government presented sufficient evidence

to support the district court’s conclusion that Dallah has not demonstrated any

intention of returning the children.

      Despite the ultimate standard of review for “reasonableness” mandated

under United States v. Booker, 543 U.S. 220 (2005), our first step is to “review

factual findings for clear error and legal determinations de novo,” – the

traditional standard in considering the district court's application of the

guidelines. United States v. M ares, 441 F.3d 1152, 1159-60 (10th Cir. 2006);

United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006). “[If] we determine

under the appropriate standard of review that the district court correctly

determined the relevant Guidelines range, and if the defendant was subsequently

sentenced to a term of imprisonment within that range, then the sentence is

entitled to a rebuttable presumption of reasonableness on appeal.” Kristl, 437

F.3d at 1054. However, if we determine the district court erred in applying the

guidelines, “we must remand - without reaching the question of reasonableness -

unless the error is harmless.” Id. at 1054-55.

      Traditional departure analysis also informs any debate about the

reasonableness of a sentence. United States v. Sierra-Castillo, 405 F.3d 932, 936

n.2 (10th Cir. 2005) (post-Booker district courts should continue to apply the

guidelines departure provisions in appropriate cases). W hen reviewing upward

departures, we are guided by a four-part test. United States v. Wolfe, 435 F.3d

                                          -7-
1289, 1295 (10th Cir. 2006). W e examine:

      (1) w hether the factual circumstances supporting a departure are
      permissible departure factors; (2) whether the departure factors relied
      upon by the district court remove the defendant from the applicable
      Guideline heartland thus warranting a departure; (3) whether the
      record sufficiently supports the factual basis underlying the
      departure; and (4) w hether the degree of departure is reasonable.

Id. (quoting United States v. Whiteskunk, 162 F.3d 1244, 1249 (10th Cir. 1998)).

As stated above, Dallah contests only the third factor of this test. He claims the

government failed to introduce any evidence that he was able to return the

children after his arrest and therefore, the district court’s conclusion

impermissibly shifted the burden of proof to him. Thus, we must determine

“whether the circumstances cited by the district court to justify departure actually

exist in the instant case” or whether there was an insufficient factual basis to

justify the departure. Id. at 1297.

      W hen the court considers an upward sentence enhancement or departure

under the guidelines, the government bears the burden of proving the factual basis

for the increase by a preponderance of the evidence. United States v. Crockett,

435 F.3d 1305, 1319 (10th Cir. 2006) (“Under an advisory Guidelines regime, a

conviction, by itself, authorizes a sentence up to the statutory maximum. Thus,

the facts guiding the district court's exercise of discretion need not be found

beyond a reasonable doubt.”). W e accept as true any fact recited in the PSR,

unless the defendant objects to that fact, in determining whether a sufficient



                                          -8-
factual basis exists for a departure. Wolfe, 435 F.3d at 1299. 5 However, if a

factual finding in the PSR is disputed at sentencing, it must be resolved in

accordance with Rule 32(i)(3)(B) of the Federal Rules of Criminal Procedure, 6

which requires the sentencing court to rule on any disputed portions of the PSR

that will affect the sentence. Simply adopting the findings of the PSR will not

satisfy the court’s obligation under Rule 32.      United States v. Guzman, 318 F.3d

1191, 1198 (10th Cir. 2003). A ruling on a disputed issue “must be definite and

clear,” but it “need not be exhaustively detailed.” United States v. William s, 374

F.3d 941, 947 n.9 (10th Cir. 2004).

       Contrary to Dallah’s assertion, the government did not need to provide

direct evidence that Dallah had the ability to return the children to the United

States after his arrest. The sentencing judge is no less a “trier of fact” than a

juror at trial. Therefore, our rules regarding permissible inferences applies

equally to the situation before us. A trier of fact is permitted to infer “that a

person intends the natural and probable consequence of acts knowingly done or



       5
         In United States v. Bass, we noted an exception to this rule when the defendant is
sentenced under pre-Booker mandatory guidelines. 411 F.3d 1198, 1204 n. 7 (10th Cir.
2005) (a failure to object does not operate as an “admission of fact” for purposes of the
rights announced in Booker.), cert. denied, 126 S.Ct. 1106 (2006). Here, however, Dallah
was sentenced under the post-Booker advisory guidelines.
       6
        Rule 32(i)(3)(B) provides that the sentencing court “must — for any disputed
portion of the presentence report or other controverted matter — rule on the dispute or
determine that a ruling is unnecessary either because the matter will not affect sentencing,
or because the court will not consider the matter in sentencing.”

                                            -9-
knowingly omitted.” United States v. Lawrence, 405 F.3d 888, 899-900 (10th

Cir.), cert. denied, 126 S.Ct. 468 (2005). A permissive inference “is valid if there

is a rational connection between the fact that the prosecution proved and the

ultimate fact presumed, and the latter is more likely than not to flow from the

former.” United States v. Badilla, 383 F.3d 1137, 1140 (10th Cir. 2004), vacated

543 U.S. 1098, holding reinstated 419 F.3d 1128, 1131-32 (10th Cir. 2005), cert.

denied, 126 S.Ct. 1344 (2006). “Because [a] permissive presumption leaves the

trier of fact free to credit or reject the inference and does not shift the burden of

proof, it affects the application of the [preponderance of the evidence] standard

only if, under the facts of the case, there is no rational way the trier could make

the connection permitted by the inference.” County Court of Ulster County, N.Y.

v. Allen, 442 U.S. 140, 157 (1979).

      The factual basis in this case begins with Dallah’s admission that he took

the children with the intent to keep them permanently in Syria. His agreement

with the underlying facts stated in the PSR is also an admission that he wrote the

letter to his wife stating he would not be affected by any legal proceeding in the

United States. In addition, at sentencing, defense counsel explained that his

doubt as to whether the children could return pursuant to a U nited States court

order was based on the proceedings initiated by Dallah in Syria – a further

indication that Dallah was very serious when he said he would not return the




                                          -10-
children in spite of any court order from Oklahoma. 7 The consistency of D allah’s

actions up to the time of his arrest, nearly a year after he kidnapped the children,

leaves no doubt of his intent during that period of time. Eight months later, at the

time of his sentencing, Dallah had shown no remorse. No contrary evidence was

presented. Under these facts, Dallah’s intent to continue to avoid the Oklahoma

custody order and prevent the children from returning to their mother may be

inferred from his deliberate actions and their known consequences. Such an

inference is entirely permissible, supported by the facts, and ultimately rational.

W e have no trouble concluding the district court was presented with a sufficient

factual basis to determine Dallah had no intention of complying with the state

court’s order he had obstructed.

      The district court’s sentencing decision would pass muster under our

traditional departure analysis and is, therefore, reasonable. M oreover, we find no

error in the district court’s determination, on the same basis, to refuse to apply a

downward adjustment for acceptance of responsibility. As Dallah raises no other




       7
          We note that the First Circuit has upheld a district court’s order that the
defendant comply with the outstanding orders of the state courts by returning his children
to this country as a condition of supervised release. See United States v. Raheman-Fazal,
355 F.3d 40, 55-56 (1st Cir.), cert. denied, 543 U.S. 856 (2004); United States v.
Raheman-Fazal, 130 Fed. Appx. 485, 486 (1st Cir.), cert. denied, 126 S.Ct. 247 (2005)
(unpublished).

                                           -11-
objections to his sentence, we AFFIRM .

                                     Entered by the C ourt:

                                     Terrence L. O ’Brien
                                     United States Circuit Judge




                                      -12-
