Fifth Circuit Court Cases - Case Law and Opinions from the 5th Circuit Federal Court - Court of Appeals

	ROMINGER LEGAL
		Fifth Circuit Court of Appeals Opinions - 5th Circuit
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
___________________________
No. 92-1128
___________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ABDALLAH M. EL-ZOUBI,
Defendant-Appellant.
___________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
____________________________________________________
June 4, 1993
Before WISDOM, DAVIS AND SMITH, Circuit Judges.
DAVIS, Circuit Judge:
Abdallah M. El-Zoubi (El-Zoubi) was charged in a superseding
indictment with conspiracy, mail fraud, and arson, in violation of
18 U.S.C. 壯 371, 1341, 844(i), and 2, respectively. After a jury
trial, he was convicted on all counts. On the arson count he
received a sentence of 120 months of imprisonment, to be followed
by five years of supervised release. His sentences on the
conspiracy and mail fraud counts run concurrently with his arson
sentence, and call for 60 months of imprisonment, to be followed by
three years of supervised release. El-Zoubi appeals his conviction
and sentence. We affirm his conviction and his sentence.
I.
In May of 1991 El-Zoubi purchased the Almadafa International
Market, also known as the Holy Land Market (the market), in

Arlington, Texas. The next month, after obtaining fire insurance
for the market, El-Zoubi paid his 20 year old nephew, Adel Ahmad
Saliem Alzoubi (Adel), to burn it down. The fire occurred around
9:30 p.m. on June 14. A trail of footprints burned into the
market's tile floor led fire fighters to Adel's body. Predictably,
examiners determined the cause of death to be smoke inhalation,
carbon monoxide poisoning, and extensive burns. The fire caused
about $200,000 of damage to the strip mall in which the market was
located.
II.
We initially consider El-Zoubi's conviction. First, he argues
that the evidence was insufficient to support his conviction.
Second, he contends that the trial court erroneously admitted
hearsay testimony offered by the government. Third, he claims that
comments made by prosecutors warranted a mistrial. Finally, El-
Zoubi argues that he received ineffective assistance of counsel.
We consider these arguments in turn.
A.
El-Zoubi first challenges the sufficiency of the evidence
supporting his conviction. We review the evidence in the light
most favorable to the verdict. United States v. Williams, 985 F.2d
749, 753 (5th Cir. 1993). And we ordinarily affirm if a rational
trier of fact could have found that the evidence establishes the
essential elements of the offense beyond a reasonable doubt.
Williams, 985 F.2d at 753. However, because El-Zoubi failed to
move for judgment of acquittal at the close of the evidence, we may
set aside the conviction only if affirmance would result in a
2

"manifest miscarriage of justice." United States v. Singer, 970
F.2d 1414, 1418 (5th Cir. 1992). Under this standard, we may
reverse El-Zoubi's conviction only if "the record is devoid of
evidence pointing to guilt." Singer, 970 F.2d at 1418.
El-Zoubi's conviction for conspiracy under 18 U.S.C. � 371,
required the government to prove beyond a reasonable doubt that (1)
El-Zoubi and Adel agreed to pursue an unlawful objective together;
(2) El-Zoubi voluntarily agreed to join the conspiracy; and (3)
that either El-Zoubi or Adel performed an overt act to further the
objectives of the conspiracy. United States v. Parekh, 926 F.2d
402, 406 (5th Cir. 1991). El-Zoubi's mail fraud conviction under
18 U.S.C. � 1341 required proof beyond a reasonable doubt of (1) a
scheme to defraud; and (2) El-Zoubi's use of the mails for the
purpose of executing the scheme. United States v. Church, 888 F.2d
20, 23 (5th Cir. 1989). A conviction for arson under 18 U.S.C. �
844(i) requires proof beyond a reasonable doubt that (1) the
defendant maliciously damaged or destroyed a building; (2) he did
so by means of fire; and (3) the building was being used in an
activity affecting interstate commerce. United States v. Triplett,
922 F.2d 1174, 1177 (5th Cir.), cert. denied, 111 S.Ct. 2245
(1991). Accomplice liability under 18 U.S.C. � 2 requires a
showing that El-Zoubi (1) acted in a way that contributed to the
execution of the criminal activity; and (2) intended to aid in its
commission. Triplett, 922 F.2d at 1177-78.
We summarize below the evidence on which the government relies
to support El-Zoubi's conviction on the counts referred to above.
El-Zoubi was in dire financial straits: his checking account at the
3

Federal Savings Banc had just been closed because of excessive
insufficient funds checks; he owed over $500 on a Visa credit card
that had just been cancelled; he had been denied a bank loan; he
had to borrow $300 to cover a bad check he had written; and his
wife had just filed for divorce. Moreover, the business was
failing: lease payments had fallen behind by $6,625; inventory was
low; and business was poor--the day of the fire, the market made
only a four dollar sale.
On June 7, El-Zoubi applied for $50,000 of fire insurance,
representing that sales at the market amounted to $300 a day. In
the following days, he asked his insurance agent three times if the
application had been approved. Two days before the fire, the
application was approved. The next day, El-Zoubi paid the premium,
and sought assurances that any insurance proceeds would be paid to
him. That day El-Zoubi told another shop keeper in the same strip
shopping center, "we got our insurance."
The day of the fire, El-Zoubi asked Rami Ghanem, an
acquaintance whose business had burned, whether he had any
difficulties with fire investigators or the insurance and also told
him, referring to the market, "I'm going to knock it down today."
The fire was reported at 9:22 p.m. The fire fighters found all
doors locked, even though the business was scheduled to be open
until 10:00 p.m. Inside they found Adel's body. Investigators
found that the fire was intentionally set and of an incendiary
nature. In Adel's truck, investigators found a $5,000 check to
Adel, signed by El-Zoubi and postdated to June 30. At the time of
the fire, the balance in El-Zoubi's account was $261.16.
4

The fire caused $200,000 of damage to the shopping center
structure. The market and neighboring businesses were closed. El-
Zoubi concedes that the market was used in an activity affecting
interstate commerce. This evidence amply supports the jury's
apparent conclusion that El-Zoubi paid Adel to burn the market in
order to fraudulently collect fire insurance proceeds, and that he
used the mails to further this scheme.
B.
El-Zoubi next argues that the district court erroneously
admitted testimony about a conversation between Adel and Salif
Alahmad (Alahmad), who owns a photo business in the strip shopping
center that housed the market. According to Alahmad, four days
before the fire, Adel said that he was "sick and tired of [the
market]" and was going to "burn it down and get out of Arlington."
The government concedes that the statement constituted hearsay, but
argues that it was admissible under Fed. R. Evid. 801(d)(2)(E), the
coconspirator exception to the hearsay rule.
In order to fit the coconspirator exception, a statement must
have been made (1) by a coconspirator of a party, (2) during the
course of the conspiracy, and (3) in furtherance of the conspiracy.
United States v. McConnell, 988 F.2d 530 (5th Cir. 1993). Although
the evidence supports a finding that Adel and El-Zoubi were
coconspirators, it does not support a conclusion that Adel's
statement was made in furtherance of the conspiracy. The
government argues that Adel's statement was made in furtherance of
the conspiracy because it identified his role in the conspiracy.
"Ordinarily, a statement that identifies the role of one
5

coconspirator to another is in furtherance of the conspiracy."
United States v. Lechuga, 888 F.2d 1472, 1480 (5th Cir. 1989)
(quotations omitted). However "mere conversation between
conspirators" does not fit within this exception. McConnell, 988
F.2d at 533. The statement in question was not made to a
coconspirator. Moreover, the record does not allow the inference
that Adel thought the conspiracy would be more likely to succeed if
Alahmad knew of Adel's intent to burn the market. Therefore it was
error to admit Adel's statement under the coconspirator exception
to the hearsay rule.
Nevertheless, the error was harmless. In determining whether
the admission of hearsay evidence was harmless, we must consider
the other evidence in the case, and then decide if the inadmissible
evidence actually contributed to the jury's verdict. United States
v. Evans, 950 F.2d 187, 191 (5th Cir. 1991). We will find such
testimony harmful and reverse a conviction only if it had a
"substantial impact" on the jury's verdict. Evans, 950 F.2d at
191. The statement is probative of Adel's intent to burn down the
market. Yet, as we have already explained, the physical evidence
overwhelmingly established this fact. Thus, viewing the evidence
as a whole, we conclude that the statement had no effect on the
verdict. Evans, 950 F.2d at 191.
C.
El-Zoubi next argues that the district court should have
declared a mistrial because the prosecutor made inappropriate
remarks at trial. Because El-Zoubi did not object to any of these
comments, we review for plain error. We ask "whether the
6

prosecutor's comments, taken as a whole in the context of the
entire case, substantially prejudiced defendant's rights." United
States v. Montemayor, 684 F.2d 1118, 1124 (5th Cir. 1982). We
recognize plain error "only if the error is so obvious that our
failure to notice it would seriously affect the fairness,
integrity, or public reputation of judicial proceedings and would
result in a miscarriage of justice." Montemayor, 684 F.2d at 1124.
El-Zoubi first challenges the prosecutor's statement that the
conspiracy and mail fraud counts could be established by evidence
that El-Zoubi knew the store was insured, had an interest in its
being insured, and believed that the insurance provided the source
for his payment. The prosecutor prefaced his comment with the
statement: "[T]he court will instruct you with regard to a
conspiracy." And the court subsequently gave an accurate
explanation of the law of conspiracy. So even if the argument was
improper, which is doubtful, taken as a whole, it did not
substantially prejudice El-Zoubi's rights.
Second, El-Zoubi points to the prosecutor's characterization
of Ghanem as someone who showed El-Zoubi "how to buy this food,
where the sources were." In fact, a different person had helped
El-Zoubi in this manner. El-Zoubi argues that this misstatement
made it more plausible for the jury to believe that El-Zoubi would
confide in Ghanem his plans to burn the market. El Zoubi further
contends that this misstatement undermined El-Zoubi's defense that
he would not confide in someone he did not know. However the
prosecution was trying to make a different point, that El-Zoubi
confided in Ghanem because he believed that Ghanem had
7

intentionally burned his business for the insurance:
When you want to know how to burn your place
down, you ask Rami Why do you ask Rami?
Because in Abdullah's twisted thinking, Rami's
store burned and so Rami burned his store,
Rami collects his insurance. So you go ask
Rami: "Rami, did you have any trouble with
the fire inspectors or collecting your
insurance." You go to the source and that is
why he asked him what he did and that is why
he said what he said.
The prosecution's misstatement did not amount to plain error.
Third, El-Zoubi contends that the prosecutor inappropriately
commented on his decision not to testify. In his closing argument,
the prosecutor said:
That insurance was taken out on the Holy Land
Market, that they had the scheme to defraud,
the scheme being insure a building and burn
it, that he obtained insurance coverage, not
disputed. That he caused another person to
mail something for the purpose of carrying out
the scheme, not disputed. . . . That a third
person maliciously damaged and destroyed the
building, housing the . . . Holy Land Market.
Not disputed. (Emphasis added.)
El-Zoubi argues that the phrase, "not disputed," was a veiled
reference to his decision not to take the stand.
A prosecutor inappropriately comments on the defendant's
decision not to testify if he "manifestly intended" to do so, or if
the statement "was of such character that a jury would naturally
and necessarily take it" to be a comment on the defendant's failure
to testify. United States v. Jennings, 527 F.2d 862, 870-71 (5th
Cir. 1976). However the prosecution may point out "that the
testimony of witnesses is uncontradicted, particularly where
someone other than the defendant could have offered contrary
evidence." Jennings, 527 F.2d at 870-71. Because witnesses other
8

than the defendant could have contradicted the government's
witnesses, the prosecutor's remarks were not improper.
D.
Finally, El-Zoubi argues that he was not given effective
assistance of counsel. He complains, first, that his counsel
persuaded him not to take the stand, second, that his counsel
failed to call witnesses crucial to his defense, third, that he did
not properly cross-examine witnesses, fourth, that his counsel
filed no pretrial motions other than a motion for continuance, and,
fifth, that his counsel should have had the Arabic interpreter
translate the entire trial. In an attempt to circumvent our plain
error standard of review on the previous issues, El-Zoubi argues,
sixth, that his counsel should have moved for judgment of
acquittal, seventh, that he should have properly objected to the
introduction of hearsay testimony, and, finally, that his counsel
should have objected to the prosecutor's inappropriate questions
and remarks.
El-Zoubi must satisfy the familiar two-prong test set out in
Strickland v. Washington, 466 U.S. 668 (1984). First, El-Zoubi
must prove "that counsel's performance was deficient," in other
words, "that counsel made errors so serious that counsel was not
functioning as counsel guaranteed the defendant by the Sixth
Amendment." Strickland, 466 U.S. at 687. Second, El-Zoubi must
show that "the deficient performance prejudiced the defense," that
"counsel's errors were so serious as to deprive the defendant of a
fair trial, a trial whose result is reliable." Strickland, 466
U.S. at 687. Judicial scrutiny of the first prong of the test--the
9

adequacy of counsel's performance--is highly deferential. We
"indulge a strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance" and that the
"challenged action might be considered sound trial strategy."
Strickland, 466 U.S. at 687.
El-Zoubi raised the first four arguments in a post-trial
motion for appointment of new counsel, and in a hearing on that
motion. El-Zoubi's counsel explained that he thoroughly
investigated the case. His efforts included nearly ten hours of
discussion with his client, three visits to the scene of the fire,
inspection of physical evidence at the Arlington Fire Department
and in the office of the United States Attorney, and personal
interviews with several government and defense witnesses. Through
informal discovery, he obtained copies of Adel's autopsy report,
the A.T.F. report, the Arlington Fire Department report, summaries
of the witnesses' statements and copies of the other documentary
exhibits. El-Zoubi's counsel further explained that the witnesses
he did not call could only provide cumulative or irrelevant
testimony, or were not credible. Finally, he explained that,
although he had prepared questions for direct examination of El-
Zoubi, he made the strategic choice to advise El-Zoubi not to take
the stand.
After the hearing, the district court found that El-Zoubi had
"excellent representation during the trial." The court said:
"there has not been any failure of [El-Zoubi's counsel] to perform
his duties properly. In fact, I think he performed his duties as
an attorney for the defendant in an exemplary fashion." The court
10

added that "the facts of the case the jury heard justified the
jury's verdict, and I don't think anything you have suggested here
that should have been developed would have changed the outcome of
the case if it had been developed." The court further suggested
that "some of the things I heard here would have done you more harm
than good in the presence of the jury."
After reviewing the record, we are unpersuaded that defense
counsel performed in a constitutionally inadequate manner by not
calling particular witnesses, advising El-Zoubi not to take the
stand, failing to ask unspecified questions on cross-examination,
or failing to file unspecified pretrial motions. Valles v.
Lynaugh, 835 F.2d 126, 128 (5th Cir. 1988); Murray v. Maggio, 736
F.2d 279, 282 (5th Cir. 1984); United States v. Garcia, 762 F.2d
1222, 1226 (5th Cir.), cert. denied, 474 U.S. 907 (1985). The
remaining ineffective assistance of counsel arguments were not
raised below, and therefore are not properly reviewable on this
direct appeal. United States v. Stone, 960 F.2d 426, 438 (5th Cir.
1992).
III.
We next consider El-Zoubi's challenges to his sentence.
First, he argues that the maximum sentence allowed by statute was
10 years, not "any term of years." Second, he contests the
district court's determination that he played a leadership role in
the offense. Third, El-Zoubi argues that the district court should
have grouped all three counts together, instead of into two groups.
Finally, he argues that the court should not have upwardly departed
from his sentencing range.
11

A.
The only serious sentencing question involves the district
court's upward departure from El-Zoubi's sentencing range.
U.S.S.G. � 2K1.4(c), the arson guideline, instructs the court: "If
death resulted, . . . apply the most analogous guideline from
Chapter Two, Part A (Offenses Against the Person) if the resulting
offense level is greater than that determined above." The
presentence report (PSR) and the district court chose the
involuntary manslaughter guideline, � 2A1.4, as "the most analogous
guideline." The base offense level for involuntary manslaughter is
14, far less than the base offense level of 20 for an arson that
does not result in death. See U.S.S.G. � 2K1.4(2). So the
district court used the base level of 20. The court then upwardly
departed, concluding that Chapter 2, Part A did not adequately take
into consideration "the defendant's knowingly risking the life of
others, including his nephew, the inhabitants of other businesses,
and fire fighters," or the death that resulted.
Reviewing the district court's application of the guidelines
de novo, United States v. Galvan-Revuelta, 958 F.2d 66, 68 (5th
Cir. 1992), we conclude that the district court misapplied the
arson guideline, � 2K1.4(c). Specifically, we conclude that the
"most analogous guideline" from Chapter Two, Part A is the first
degree murder guideline, � 2A1.1, not the involuntary manslaughter
guideline, � 2A1.4. Had the court correctly applied the
guidelines, the sentencing range would have called for a prison
term longer than the 120 months El-Zoubi received.
In reaching this conclusion, we note, first, that El-Zoubi's
12

offense is more analogous to first degree murder than to negligent
homicide. 18 U.S.C. � 1111(a) provides in relevant part: "Murder
is the unlawful killing of a human being with malice aforethought.
Every murder . . . committed in the perpetration of, or attempt to
perpetrate, any arson, . . . is murder in the first degree." The
English common law provided that one who caused another's death
while committing or attempting to commit a felony was guilty of
murder even though he did not intend to kill the deceased. United
States v. Browner, 889 F.2d 549, 552 & n. 2 (5th Cir. 1989).
Section 1111(a) applies the felony murder rule to arson and other
enumerated felonies. United States v. Herman, 576 F.2d 1139, 1143-
44 & n. 2 (5th Cir. 1978). Proof of premeditation or deliberation
is not required under the felony murder component of � 1111.
United States v. Antelope, 430 U.S. 641, 644 (1977). The language
of � 1111 is broad enough to include cases in which an arsonist's
accomplice dies during the commission of the felony. Moreover, the
death of an accomplice is a foreseeable result of procuring him to
commit an arson. In cases directly on point with this one, the
supreme courts of Kansas, Georgia, Rhode Island, and Pennsylvania
have held that an arsonist may be punished under the felony murder
doctrine for the death of an accomplice.1
In contrast, 18 U.S.C. � 1112 defines involuntary manslaughter
1State v. Thai Do Hoang, 755 P.2d 7, 10, 11 (Kan. 1988);
Scott v. State, 313 S.E.2d 87, 88 (Ga. 1984); In re Leon, 410
A.2d 121, 124, 125 (R.I. 1980); Commonwealth v. Bolish, 113 A.2d
464, 474 (Pa. 1955), overruled on other grounds, Com. ex. rel.
Shadd v. Myers, 223 A.2d 296, 298 (Pa. 1966); but see People v.
Ferlin, 265 P. 230, 235 (Cal. 1928); State v. Williams, 254 So.2d
548, 551 (Fla. App. 1971), overruled, State v. Perez, 382 So.2d
731, 733 (Fla. App. 1980).
13

as "the unlawful killing of a human being without malice . . . [i]n
the commission of an unlawful act not amounting to a felony, or in
the commission in an unlawful manner, or without due caution and
circumspection, of a lawful act which might produce death." While
the least egregious arson carries a maximum prison sentence of 10
years, involuntary manslaughter carries a potential prison term of
"no more than three years." 18 U.S.C. � 1112.
Second, the Sentencing Commission specially designed the first
degree murder guideline, � 2A1.1, to guide district courts in
sentencing perpetrators of felonies in which death resulted.
Application Note 1 to � 2A1.1 specifies that "this guideline also
applies when death results from the commission of certain
felonies."2 It then provides that a downward departure may be
appropriate if the killing was not intentional or knowing:
If the defendant did not cause the death
intentionally 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.
U.S.S.G. � 2A1.1, Application Note 1.
Finally, we are significantly guided by our decision in United
States v. Paden, 908 F.2d 1229 (5th Cir. 1990), cert. denied, 498
U.S. 1039 (1991). In Paden, the defendant committed an arson in
which a fire fighter died. When the district court applied the
2Before a clarifying change in 1990, the Application Note
listed arson and the other felonies enumerated in the felony-
murder clause of � 1111(a). Appendix C, amendment 310.
14

arson guideline, � 2K1.4(c)(1), to the defendant Boyd, it
determined that the most analogous murder guideline was � 2A1.1.
Paden, 908 F.2d at 1233, 1238.3 Because the fire fighter's death
was not caused intentionally or knowingly, the court downwardly
departed to a base offense level of 33, which corresponds to second
degree murder. Paden, 908 F.2d at 1233, 1238; See U.S.S.G. �
2A1.1, Application Note 1. We concluded that the district court's
sentence had applied "the literal language of the guidelines," and
was therefore not clearly erroneous. Paden, 908 F.2d at 1238.
If the district court had correctly applied the cross
reference in the arson guideline by choosing � 2A1.1 as the "most
analogous guideline from Chapter Two Part A," it would have begun
with a base offense level of 43. With an additional two points for
El-Zoubi's leadership role in the offense and a criminal history
category of I, the sentencing table would have called for life
imprisonment. If the district court had then downwardly departed
to the limits allowed by Application Note 1 to � 2A1.1 (the base
offense level of 33, corresponding to the second degree murder
guideline, plus the two points for El-Zoubi's leadership role, and
a criminal history category of I), the sentencing table would have
called for a sentencing range of 168 to 210 months.
Thus, El-Zoubi's sentence of 120 months of imprisonment is
substantially lower than the sentence that would have resulted from
3Although the opinion, at one point, gives the impression
that the district court went straight to the second degree murder
guideline, it explains in an earlier section that the district
court went to the first degree murder guideline and then
downwardly departed to the base offense level corresponding to
second degree murder. Paden, 908 F.2d at 1233, 1238.
15

a correct application of the guidelines. However the government
did not cross-appeal, and has therefore waived any challenge to the
district court's misapplication of the guidelines in El-Zoubi's
favor. United States v. Turner, 898 F.2d 705, 711 (9th Cir.),
cert. denied, 495 U.S. 962 (1990); United States v. Bechtol, 939
F.2d 603, 605 & n. 4 (8th Cir. 1991). We therefore affirm El-
Zoubi's sentence.
B.
El-Zoubi argues that the evidence does not support a two level
increase under U.S.S.G. � 3B1.1 for his leadership role in the
offense. When the PSR gave the increase it determined that El-
Zoubi "exercised decision making authority, expected to claim the
rights to a larger share of the fruits of the crime, and was the
major participant in planning and organizing the offense." The PSR
relied on evidence that El-Zoubi wrote Adel a $5,000 check.
Additionally, it relied on evidence that El-Zoubi made all of the
arrangements to procure fire insurance for the market. The
district court's agreement with the PSR is not clearly erroneous.
C.
In light of our disposition of El-Zoubi's sentence, we need
not address his remaining two arguments. El-Zoubi contests the
district court's conclusion that he could be sentenced to "any term
of years." Arson, in violation of 18 U.S.C. � 844(i), normally
carries a maximum prison term of "not more than ten years."
However the section provides that "if death results to any person
. . . as a direct or proximate result" of the offense, the maximum
prison sentence goes up to "any term of years." The district court
16

concluded that Adel's death was the death of "any person," within
the meaning of � 844(i), and that El-Zoubi was exposed to a prison
sentence of "any term of years." El-Zoubi argues that Adel's
coconspirator status takes his death out of the contemplation of �
844(i)'s penalty enhancement provision. We need not decide this
issue, because El-Zoubi's sentence does not exceed ten years.
El-Zoubi also contends that the district court should have
grouped all three of his convictions together for sentencing
purposes. Under U.S.S.G. � 3D1.2, the PSR divided the three counts
on which El-Zoubi was convicted into two groups. Group one
consisted of counts one and three, conspiracy and arson. Group two
consisted of counts one and two, conspiracy and mail fraud. The
adjusted offense level for group one was 22, while the adjusted
offense level for group two was 17. Because group two was "5 to 8
levels less serious" than group one, one level was added to the
adjusted offense level for group one, for a total of 23. See
U.S.S.G. � 3D1.4(b).
U.S.S.G. � 3D1.4(c) instructs the court to "disregard any
group that is 9 or more levels less serious than the group with the
highest offense level." As we have explained above, the offense
level for group one, calculated correctly, would have been more
than 9 levels above the adjusted offense level for group two. See
U.S.S.G. 壯 2A1.1, 2A1.2. So the district court's grouping
decision will not affect El-Zoubi's sentence. Therefore we need
not address the merits of this argument.
IV.
For the reasons stated above, we affirm El-Zoubi's conviction
17

for conspiracy, mail fraud, and arson. In addition, we affirm the
sentence imposed by the district court.
AFFIRMED.
18