                    NONPRECEDENTIAL DISPOSITION
                      To be cited only in accordance with
                              Fed. R. App. P. 32.1




            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,                        Appeal from the United States District
    Plaintiff-Appellee,                          Court for the Southern District of
                                                 Indiana, Indianapolis Division.
      v.
                                                 No. 05 CR 34
SHAABAN HAFIZ AHMAD ALI
SHAABAN,                                         John Daniel Tinder, Judge.
    Defendant-Appellant.


                                      ORDER

       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.
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
