United States v. Murshed (Algahaim) , 842 F.3d 796 ( 2016 )

15-2024-cr(L)
United States of America v. Murshed (Algahaim)
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2016
Heard: September 29, 2016 Decided: December 1, 2016
Docket Nos. 15-2024(L), 15-2069(Con)
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UNITED STATES OF AMERICA,
Appellee,
v.
AHMED A. ALGAHAIM, MOFADDAL M. MURSHED,
Defendants-Appellants.1
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Before: NEWMAN, WINTER, and CABRANES, Circuit Judges.
Appeal from the June 12, 2015, judgments of the
District Court for the Northern District of New York
(Thomas J. McAvoy, District Judge), convicting Mofaddal M.
Murshed and Ahmed A. Algahaim of offenses concerning
benefits under the Supplemental Nutrition Assistance
Program (formerly “food stamps”) and sentencing them to
prison terms of thirty and twenty-one months, respectively.
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The Clerk is requested to change the official caption as
above.
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Affirmed and remanded for consideration of non-
Guidelines sentences.
Molly Corbett, Office of the Federal
Public Defender, Syracuse, NY
(Lisa A. Peebles, Federal Public
Defender, Syracuse, NY, on the
brief), for Appellant Ahmed A.
Algahaim.
Jeremy Gutman, New York, NY, for
Appellant Mofaddal M. Murshed.
Paul D. Silver, Asst. U.S. Atty.,
Albany, NY (Richard S.
Hartunian, U.S. Atty., Jeffrey
C. Coffman, Asst. U.S. Atty.,
Albany, NY, on the brief), for
Appellee.
JON O. NEWMAN, Circuit Judge:
This is an appeal by two defendants found guilty after
a jury trial of offenses concerning misuse of benefits
under the Supplemental Nutrition Assistance Program
(“SNAP”) (formerly “food stamps”). Ahmed A. Algahaim and
Mofaddal M. Murshed appeal from the June 12, 2015,
judgments of the District Court for the Northern District
of New York (Thomas J. McAvoy, District Judge). We affirm
the convictions and sentences but also remand to permit the
sentencing judge to consider non-Guidelines sentences in
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view of the significant effect of the loss enhancement in
relation to the low base offense level.
Background
Defendants-Appellants Murshed and Algahaim worked at a
small grocery store called D&D Grocery and Deli (“D&D”) in
Hudson, New York. Murshed represented himself to be the
owner of D&D. D&D was approved by the United States
Department of Agriculture to redeem SNAP benefits for food
items. SNAP benefits are provided to eligible recipients
through the use of an electronic benefit transfer (“EBT”)
card. It is unlawful to give cash in exchange for SNAP
benefits.
Several bona fide customers of D&D and confidential
informants posing as customers testified that they were
given cash when they used their EBT cards to redeem SNAP
benefits. Both Murshed and Algahaim gave cash in exchange
for SNAP benefits to at least one customer and one
confidential informant on several occasions.
A grand jury indicted Murshed and Algahaim on two
counts each. Count One charged both defendants with
conspiring to present or to cause to be presented, benefits
of a value of more than $100, knowing such benefits to have
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been received, transferred or used in violation of the
provisions of the SNAP, in violation of 18 U.S.C. § 371 and
7 U.S.C. § 2024(c). Count Two charged Murshed with using,
transferring, acquiring, or possessing SNAP benefits in a
manner contrary to the Food Stamp Act and regulations
issued pursuant to that act, in violation of 7 U.S.C. §
2024(b). Count Four charged Algahaim with a violation of
the same statute. After a five-day jury trial, both were
convicted on all counts.
Discussion
I. Jury Charge on Mens Rea
The appellants contend that the District Court’s
response to inquiries from the jury undermined the Court’s
initial instruction on the requisite mens rea. In its
initial charge, the Court instructed that the burden was on
the Government to prove beyond a reasonable doubt that the
defendants acted intentionally and deliberately with
knowledge “that receiving, transferring, using or
possessing SNAP access devices, in exchange for cash, was a
violation of the law or Department of Agriculture
regulations.” The Court explained “intentionally,”
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“deliberately,” and “knowingly” in standard language. The
initial charge properly explained the requisite mens rea.
The jury asked for clarification in two notes. The
first asked for a definition of “voluntary,” a word
included in the initial charge. Counsel did not suggest any
particular language for the Court’s use in a response. The
Court told the jurors that they should reread the state of
mind instruction and that the meaning of “voluntary” would
become apparent. Counsel for Murshed said he objected only
to the Court’s saying that the meaning of “voluntary” would
become apparent. Counsel for Algahaim made no objection.
The jury’s second inquiry asked whether all statements
in the instructions carried equal weight and whether there
was a difference between two sentences of the charge
explaining the requisite mental state. Again, counsel
offered no suggestions for a response. The Court’s reply
included a reminder that the charge was to be considered as
a whole, that there was no significant difference between
the two sentences to which the jury referred, and that
“voluntary,” the word queried in the jury’s first note,
meant that an action was taken of a person’s own free will
and was the opposite of being made to do something.
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Although the Court stated that it was providing all parties
an exception to the supplemental charge, it is not clear
what, if anything, counsel wanted the Court to tell the
jury.
We see no basis for any complaint concerning the
responses to either note. Neither response in any way
undermined the initial, entirely proper explanation of the
requisite mens rea.
II. Evidence of Mens Rea
Murshed contends that the evidence was insufficient to
establish that he acted with the requisite mens rea.
However, the evidence of the several instances when he
swiped an EBT card, did not provide food, and instead
provided cash gave the jury an ample basis for inferring
the requisite mens rea.
III. Sentencing Issues
Guidelines calculations. Calculation of Murshed’s
Guidelines sentencing range began with a base level of six
for an offense involving fraud that has a statutory maximum
sentence of less than twenty years. See U.S.S.G. §
2B1.1(a)(2). Then from the loss table, twelve levels were
added because of the amount of loss, see id. §
6 2B1.1(b)(1)(G), bringing the adjusted offense level to
eighteen, three times the base offense level. In criminal
history category I, the adjusted offense level yielded a
sentencing range of twenty-seven to thirty-three months.
The District Court imposed a sentence of thirty months.
Algahaim’s Guidelines calculation also began with a
base offense level of six, which was increased by ten
levels for the amount of loss for which he was responsible,
see id. § 2B1.1(b)(1)(F), bringing the adjusted offense
level to sixteen. In criminal history category I, the
adjusted offense level yielded a sentencing range of
twenty-one to twenty-seven months. The District Court
imposed a sentence of twenty-one months.
Mitigating role claim. Algahaim contends that the
District Court erred by denying him a mitigating role
adjustment. The Guidelines authorize a sentencing judge to
reduce an adjusted offense level by two levels if the
defendant was a “minor participant,” by four levels if the
defendant was a “minimal participant,” and by three levels
in cases falling between those two classifications. See id.
§ 3B1.2. To be entitled to a mitigating role adjustment a
defendant must have “play[ed] a part in committing the
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offense that makes him substantially less culpable than the
average participant.” Id. § 3B1.2 Application Note 3(A).
In the pending case, no facts concerning what Algahaim
did are in dispute. The issue for the sentencing judge was
solely whether those facts entitled Algahaim to a
mitigating role adjustment. That is the sort of legal
determination we review de novo. On such review, we agree
with Judge McAvoy that no adjustment was warranted.
Although Algahaim’s role in managing the store might
have been less than that of Murshed, Algahaim’s role in
committing the charged offenses was virtually identical to
Murshed’s. Algahaim did not play a part in the offenses
that made him substantially less culpable than the average
participant.
Presentence report claim. Murshed contends that the
District Court violated Rule 32(i)(1)(A) of the Federal
Rules of Criminal Procedure, which requires a sentencing
court to “verify that the defendant and the defendant’s
attorney have read and discussed the presentence report”
(“PSR”). In the absence of objection in the District Court,
we review this alleged error under the “plain error”
standard. We have observed that “the plain-error exception
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to the contemporaneous-objection rule is to be used
sparingly, to correct only particularly egregious errors
when a miscarriage of justice would otherwise result.”
United States v. Salim, 690 F.3d 115, 125 (2d Cir. 2012)
(internal quotation marks omitted). At sentencing,
Murshed’s lawyer assured Judge McAvoy, “Yeah, we did go
over it [the PSR].” Although Murshed somewhat equivocated
as to what he knew about the PSR, his lawyer’s statement
entitled Judge McAvoy to conclude that Rule 32(i)(1)(A) had
been satisfied. And the statement assures this Court that
there had not been a plain error that affected Murshed’s
substantial rights or seriously affected the fairness of
the proceedings. See United States v. Marcus, 560 U.S. 258,
262 (2010) (outlining plain error criteria).
Effect of loss adjustment. One aspect of the
sentencing, however, warrants further consideration. The
calculation of Murshed’s adjusted offense level, driven by
the monetary loss amount, increased his base offense level
from six to eighteen, a three-fold increase. Similarly, the
calculation of Algahaim’s adjusted offense level, also
driven by the loss amount, increased his base offense level
from six to sixteen. We recognize that these increases
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complied with the Guidelines Manual. We also recognize that
the Commission had the authority to construct a set of
guidelines that used loss amount as the predominant
determination of the adjusted offense level for monetary
offenses.
But the Commission could have approached monetary
offenses quite differently. For example, it could have
started the Guidelines calculation for fraud offenses by
selecting a base level that realistically reflected the
seriousness of a typical fraud offense and then permitted
adjustments up or down to reflect especially large or small
amounts of loss. Instead the Commission valued fraud (and
theft and embezzlement) at level six, which translates in
criminal history category I to a sentence as low as
probation, and then let the amount of loss, finely
calibrated into sixteen categories, become the principal
determinant of the adjusted offense level and hence the
corresponding sentencing range. This approach, unknown to
other sentencing systems, was one the Commission was
entitled to take, but its unusualness is a circumstance
that a sentencing court is entitled to consider. See
Kimbrough v. United States, 552 U.S. 85, 101 (2007)
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(sentencing judge may make a non-Guidelines sentence if the
judge disagrees with a Commission’s policy determination);
United States v. Cavera, 550 F.3d 180, 192 (2d Cir. 2008)
(in banc) (same). Where the Commission has assigned a
rather low base offense level to a crime and then increased
it significantly by a loss enhancement, that combination of
circumstances entitles a sentencing judge to consider a
non-Guidelines sentence. Cf. United States v. Lauersen, 348
F.3d 329, 344 (2d Cir. 2003) (cumulative effect of
overlapping enhancements warranted consideration of
departure), reh’g denied, 362 F.3d 160 (2d Cir. 2004);
United States v. Gigante, 94 F.3d 53, 56 (2d Cir. 1996)
(same).
We do not rule that the sentences were imposed in
error. We conclude only that a remand is appropriate to
permit the sentencing judge to consider whether the
significant effect of the loss enhancement, in relation to
the low base offense level, should result in a non-
Guidelines sentence.
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Conclusion
Accordingly, we affirm the convictions and sentences,
but remand for further consideration as outlined in this
opinion.
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