United States v. Nawaz , 555 F. App'x 19 ( 2014 )

11-4080-cr(L)
United States v. Nawaz, et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 29th
day of January, two thousand fourteen.
Present:
JON O. NEWMAN,
PETER W. HALL,
GERARD E. LYNCH,
Circuit Judges.
____________________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. Nos. 11-4080-cr(L), 11-4095-cr(CON),
11-4309-cr(CON), 11-4427-cr(CON)
RAB NAWAZ, MORRIS I. OLMER,
MARSHALL ASMAR, WENDY WERNER,
Defendants–Appellants;
DAVID AVIGDOR, NATHAN M. RUSSO,
REHAN QAMER, MOHAMMAD SALEEM,
SYED A. BABAR, a/k/a Ali, Asad,1 THOMAS E.
GALLAGHER,
Defendants.
1 Although originally listed as an alias for Rab Nawaz, the government indicated in its reply brief to Rab Nawaz’s
supplemental brief that Asad was in fact an alias for Syed Babar. The Clerk of the Court is requested to modify the
official caption in this case to conform with the listing of the parties above.
1
____________________________________________________
FOR APPELLANTS: Donna R. Newman, New York, NY, for Appellant Nawaz.
Jonathan I. Edelstein, Edelstein & Grossman, New York, NY, for
Appellant Olmer.
Charles F. Willson, Nevins Law Group LLC, East Hartford, CT, for
Appellant Werner.
Frank J. Riccio II, Bridgeport, CT, for Appellant Asmar.
FOR APPELLEE: Eric J. Glover and Susan L. Wines, Assistant United States Attorneys,
(Sandra S. Glover, Assistant United States Attorney (of counsel) on
the brief) for Deirdre M. Daly, Acting United States Attorney for the
District of Connecticut, New Haven, CT.
____________________________________________________
Appeal from a judgment of the United States District Court for the District of Connecticut
(Thompson, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court be AFFIRMED; except that we
withhold determination of Defendant-Appellant Rab Nawaz’s appeal of that portion of the district
court’s judgment requiring payment of restitution pending the Supreme Court’s disposition of United
States v. Robers, 698 F.3d 937 (7th Cir. 2013), cert. granted, 82 U.S.L.W. 3231 (U.S. Oct. 21, 2013) (No.
12-9012).
Defendants-Appellants Wendy Werner and Marshall Asmar appeal the district court’s denial
of their motions for judgments of acquittal and for new trials. Defendants-Appellants Nawaz,
Morris Olmer, Werner and Asmar appeal their sentences and argue that the sentences were both
procedurally and substantively unreasonable. We assume the parties’ familiarity with the underlying
facts, the procedural history, and the issues presented for review.
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A. Werner and Asmar’s Challenge to the Sufficiency of the Evidence
Werner and Asmar contend that the evidence against them was insufficient to support their
convictions. Both Werner and Asmar were convicted of conspiracy, in violation of 18 U.S.C. § 371,
to engage in the charged mortgage fraud scheme. Werner was convicted of an additional count of
mail fraud, in violation of 18 U.S.C. § 1341; Asmar was convicted of making false statements and
committing wire fraud, in violation of 18 U.S.C. §§ 1001, 1343.
We review de novo the denial of a motion for judgment of acquittal under Fed. R. Crim. P. 29,
viewing the evidence in the light most favorable to the government, “crediting every inference that
the jury might have drawn in favor of the government, and recognizing that the government’s
evidence need not exclude every other possible hypothesis.” United States v. Persico, 645 F.3d 85, 104
(2d Cir. 2011) (internal quotation marks and citations omitted). Applying the well-known standards
for analyzing challenges to conspiracy convictions, see United States v. Torres, 604 F.3d 58, 65 (2d Cir.
2010), United States v. Huezo, 546 F.3d 174, 180 (2d Cir. 2008), In re Terrorist Bombings of U.S. Embassies
in E. Afr., 552 F.3d 93, 113 (2d Cir. 2008), United States v. Aleskerova, 300 F.3d 286, 293 (2d Cir.
2002), United States v. Gordon, 987 F.2d 902, 906-07 (2d Cir. 1993), and construing the evidence in the
light most favorable to the government, we hold that the evidence against Werner and Asmar was
sufficient to sustain their convictions.
Werner argues that the evidence introduced against her failed to show that she had the
requisite knowledge of the nature and extent of the conspiracy. In her case, however, the evidence
showed that the sale of the Lake Street Properties had the “hallmarks” of the other sham sales
involved in the scheme. As in the other transactions, Thomas Gallagher issued fraudulently inflated
appraisals, Syed Babar received a consulting fee, Babar paid a straw buyer, and the mortgage loan
company lost significant sums in the form of loan proceeds in connection with the sham sales. The
evidence showed that Werner knew the properties were not worth the amount she received for their
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sale. The evidence also indicated that, by failing to disclose payments to Babar on Form HUD-1
Settlement Statements, Werner concealed them from her own attorney and from lenders. Werner
argues that the time lapse between the Lake Street sales and the other transactions involved in the
conspiracy was too great to indicate that her sales were part of the conspiracy, but that time lapse
was a matter of mere months in a conspiracy that lasted several years. The district court correctly
determined that the evidence against Werner was sufficient for a rational juror to conclude that she
had the requisite awareness of the general nature and extent of the conspiracy. See Torres, 604 F.3d
at 65.
With regard to Asmar’s argument that the proof against him was insufficient, the evidence
indicated that he repeatedly worked with Babar and that other co-defendants knew of his
involvement in the conspiracy. The evidence also showed that Asmar received proceeds from
closings on his properties that were substantially less than what the lenders were told, thus indicating
Asmar had paid co-conspirators from the proceeds of the sales. A number of witnesses also
testified that Asmar was at the center of the conspiracy. In addition, there was evidence that Asmar
was present at a number of closings and that he signed HUD-1 Settlement Statements that omitted
important disclosures. There was even testimony from a tenant of one of the apartment buildings
sold by Asmar that Asmar continued to collect rent from her family after Asmar had purportedly
sold the building to a straw buyer. Finally, despite Asmar’s claims that he did not know of Sheda
Telle, one of the sham corporations used for the disbursement of proceeds, evidence showed that
Asmar specifically authorized a portion of one of the sales proceeds to be disbursed to that
company’s account. In light of the evidence against him, a rational juror could conclude that he had
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the requisite awareness of the purposes of the conspiracy and participated in it. See Torres, 604 F.3d
at 65.2
Werner and Asmar argue that the district court should have granted their motions for new
trials because of the lack of evidence against them and because they were prejudiced by the spillover
effect of sitting through the trial of the other counts of the indictment in which they were not
charged and the introduction of evidence regarding the conduct of the other co-defendants. We
review the denial of a Rule 33 motion for a new trial for abuse of discretion. United States v. Diaz,
176 F.3d 52, 106 (2d Cir. 1999). “The test is whether it would be a manifest injustice to let the guilty
verdict stand,” United States v. Guang, 511 F.3d 110, 119 (2d Cir. 2007) (internal quotation marks
omitted), or whether the district court “is convinced that the jury has reached a seriously erroneous
result,” United States v. Landau, 155 F.3d 93, 104 (2d Cir. 1998) (internal quotation marks omitted).
Given the evidence against these defendants, we agree with the district court that there were no
“extraordinary circumstances” warranting a new trial. The district court did not abuse its discretion
in denying Werner and Asmar’s Rule 33 motions.
B. Nawaz, Olmer, Werner and Asmar’s Challenges to their Respective Sentences
All four defendants contend that their sentences were both procedurally and substantively
unreasonable on a number of grounds. Each defendant challenges the district court’s loss
calculation determination and its consideration and balancing of the factors set out in 18 U.S.C.
§ 3553(a). Werner and Asmar also challenge the special means enhancement applied to their
respective sentences and the district court’s failure to grant a minor role reduction. Finally, Olmer
contends that he was entitled to a two-level sentence adjustment in light of his acceptance of
responsibility and that the district court should not have imposed a special skills enhancement when
2 To the extent that Werner and Asmar challenge the sufficiency of the evidence that supports their
convictions on the other substantive counts, Werner and Asmar raise no new arguments specific to these
counts. For the reasons stated above, any challenge to these counts on the aforementioned grounds lacks
merit.
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determining his sentence. We address each argument in turn and “review [the] district court’s
sentence for procedural and substantive reasonableness. . . . Pursuant to this standard, we review
[the] district court’s interpretation of the Sentencing Guidelines de novo and apply the clear error
standard when evaluating [its] findings of fact.” United States v. Cavera, 550 F.3d 180, 210 (2d Cir.
2008) (citations omitted) (en banc).
1. Loss Calculation
Nawaz, Olmer, Werner and Asmar contend that in calculating the appropriate loss the
district court misapplied this Court’s decision in United States v. Turk, 626 F.3d 743 (2d Cir. 2010)
adopting the method of calculation described in United States v. Mallory, 709 F. Supp. 2d 455 (E.D.
Va. 2010), aff’d, 461 F. App’x 352 (4th Cir. 2012). Specifically, they argue that the district court
should have used the Connecticut Superior Court appraisal values for all properties instead of the
considerably lower foreclosure sale prices at which the lenders sold certain properties. They
contend, moreover, that the foreclosure sale prices were “nominal” and indicative of “dumping” on
the part of the lenders.
“In calculating the amount of loss under the Guidelines, a sentencing court ‘need only make
a reasonable estimate of the loss.’” United States v. Rigas, 583 F.3d 108, 120 (2d Cir. 2009) (quoting
U.S.S.G. § 2B1.1 cmt. n.3(C)); see also United States v. Bryant, 128 F.3d 74, 75 (2d Cir. 1997) (“[T]he
Guidelines do not require that the sentencing court calculate the amount of loss with certainty or
precision.”). Thus, we “must determine [ ] whether the [sentencing] court’s method of calculating
the amount of loss was legally acceptable.” United States v. Rutkoske, 506 F.3d 170, 178 (2d Cir. 2007)
(internal quotation marks omitted).
Under the Guidelines, the “General Rule” is that “loss is the greater of actual loss or
intended loss.” U.S.S.G. § 2B1.1 cmt. n.3(A). “‘Actual loss’ means the reasonably foreseeable
pecuniary harm that resulted from the offense, [while] ‘[i]ntended loss’ (I) means the pecuniary harm
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that was intended to result from the offense; and (II) includes intended pecuniary harm that would
have been impossible or unlikely to occur.” U.S.S.G. § 2B1.1 cmt. n.3(A)(i),(ii). The loss amount
shall be reduced by certain “credits against loss,” defined, “in a case involving collateral pledged or
otherwise provided by the defendant,” as “the amount the victim has recovered at the time of
sentencing from disposition of the collateral, or if the collateral has not been disposed of by that
time, the fair market value of the collateral at the time of sentencing.” U.S.S.G. § 2B1.1 cmt.
n.3(E)(ii). To determine actual loss under U.S.S.G. § 2B1.1, this court has adopted the two-step
process used in Mallory. See Turk, 626 F.3d at 749-50. First, the sentencing court must determine
“the foreseeable pecuniary harm resulting from the fraud, and second, [it must apply] any credits
against loss from sale of the collateral, as required by Application Note 3(E)(ii).” Id. at 749. This
calculation is made as of the time of sentencing, and “the only loss that need have been foreseeable
to the defendant is the loss of the unpaid principal.” Id.We have held that where mortgage fraud is concerned, “the item of value lost by [the]
victims [is] the unpaid principal of the loans, not the buildings themselves.” Id. at 751. Additionally,
we stated that “loss shall be reduced by the amount the victim has recovered at the time of sentencing
from disposition of the collateral.” Id. at 750 (emphasis in original; alterations omitted); see also
U.S.S.G. § 2B1.1 cmt. n.3(E)(ii). Recently, we have accepted as reasonable estimates of loss the use
of short-sale prices, where they were negotiated, not fraudulent, and where the “evidence showed
that the appraisals at the time of the fraudulent mortgages may not have been reliable.” United States
v. Lacey, 699 F.3d 710, 720 (2d Cir. 2012). Having reviewed the record in light of these principles,
we conclude that the district court used an acceptable method of calculating loss when it credited
against loss the appraisal values of properties that had not been sold at the time of sentencing and
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the foreclosure sale values of the properties that had been sold.3 We disagree with the defendants
that the foreclosure sale values were nominal. The district court did not err by using them in its loss
calculation formula.
In his supplemental brief, Nawaz asserts that the district court erred by including the loss
associated with five properties4 in its loss calculation as there was a lack of evidence “to support a
finding that [he] was directly involved in these transaction[s] or that the fraud involved was within
the conspiratorial agreement or that he had knowledge of the transactions or that the transactions
were reasonably foreseeable to him.” Nawaz, however, did not object to the inclusion of these
transactions in his Pre-Sentence Report (“PSR”), nor did he object to the district court’s
consideration of them at sentencing. We therefore review the district court’s decision for plain
error. See United States v. Villafuerte, 502 F.3d 204, 207 (2d Cir. 2007). “A finding of plain error
requires (1) error, (2) that is plain, and (3) that affects the defendant’s substantial rights.” United
States v. Gomez, 580 F.3d 94, 100 (2d Cir. 2009) (internal quotation marks omitted).
There is extensive evidence in the record concerning Nawaz’s work to further the mortgage
fraud scheme as a whole. Nawaz was intimately involved in the sale to straw buyers of a number of
properties and was one of Babar’s close partners. The record evidence supports the conclusion that
Nawaz assumed an active role in the conspiracy by using his own and his wife’s personal bank
3 United States v. Boccagna, 450 F.3d 107 (2d Cir. 2006), is not to the contrary. In Boccagna, the defendant fraudulently
obtained loans by making false statements to a federally insured lending institution in violation of 18 U.S.C. § 1014. In
Boccagna, the Court was addressing the proper calculation of restitution under the Mandatory Victims Restitution Act
(“MVRA”), rather than the calculation of loss under § 2B1.1 of the sentencing guidelines. Unlike the MVRA, the
sentencing guidelines expressly contemplate the use of returned collateral to offset the loss amount, and instruct the
district court to reduce the loss amount by “the amount the victim has recovered at the time of sentencing from
disposition of the collateral or if the collateral has not been disposed of by that time, the fair market value of the
collateral at the time of sentencing.” U.S.S.G. § 2B.1.1 cmt. n. 3(c)(ii). That is precisely how the district court calculated
the loss amounts here. Moreover, in Boccagna HUD had concededly charged merely nominal prices, and had made no
effort to obtain a market price, for understandable reasons of its own; here, the district court found that the prices
received represented a reasonable return obtained in an arm’s-length transaction.
4 Three of the properties were purchased by Perkins as a straw buyer in 2007, namely: 104 Walnut Street, Willimantic,
Connecticut (loss $194,100), 80 Hillside Avenue, Meriden, Connecticut (loss $157,000), and 110 Walnut Street,
Willimantic, Connecticut (loss $145,500). The remaining properties were purchased by another straw buyer in 2008: 173
Beaver Street, New Britain, Connecticut (loss $140,000) and 281 Crown Street, Meriden, Connecticut (loss $151,000).
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accounts to facilitate deposits of fraudulent proceeds and their distribution to co-conspirators.
Nawaz also provided his own home as a base for a sham company called Global Home Painting,
thereby ensuring that the conspiracy had a real address and telephone number to back up its false
claims of employment for straw buyers. Recorded conversations between Nawaz and Perkins
substantiate his role as a co-conspirator involved in the details of the scheme and aware of the use of
Sheda Tell as a shell company to further the scheme. One of the recorded conversations shows
Nawaz’s attempts at concealing or minimizing his role in the conspiracy by instructing Perkins to
deny Nawaz’s involvement with Global Home Painting and his multiple interactions with Perkins.
Nawaz also met with Perkins at Babar’s instruction, when Babar was incarcerated, to ask Perkins not
to talk to the authorities. In light of Nawaz’s extensive involvement in the conspiracy and the fact
that a defendant is liable for “all reasonably foreseeable acts and omissions of others in furtherance
of the jointly undertaken criminal activity,” U.S.S.G. § 1B1.3(a)(1)(B), the district court did not err,
much less plainly err, by including the five properties in question in its loss calculation with respect
to Nawaz’s sentence.
Olmer challenges the district court’s reliance on Zillow.com’s estimates and what he asserts
was an arbitrary estimate advocated by the government in determining the loss calculation in his
case. Olmer’s argument is unavailing because, even excluding the challenged properties from the
loss calculation used in determining Olmer’s sentencing guideline, his loss amount would still far
exceed the $1,000,000 under U.S.S.G. § 2B1.1(b)(1)(I) that the district court applied. As a result,
there was no error, much less plain error, that resulted from calculating the loss amount applicable
to Olmer’s sentence.
2. Sophisticated Means Enhancement
Werner and Asmar contend that the district court erred in applying a sophisticated means
enhancement in determining their sentences. We review de novo a defendant’s challenge of the
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application of the sophisticated means enhancement. United States v. Hasan, 586 F.3d 161, 168 (2d
Cir. 2009). Sophisticated means is defined as “especially complex or especially intricate offense
conduct pertaining to the execution or concealment of an offense.” U.S.S.G. § 2B1.1 cmt. n.9(B).
The record reflects that Werner and Asmar engaged in a scheme that involved forged bank
documents, fraudulent property appraisals, fictitious entities, straw buyers and corporate shells used
to perpetrate fraudulent mortgage transactions. The district court did not err when it applied a
sophisticated means enhancement in determining Werner and Asmar’s sentences. See, e.g., United
States v. Amico, 416 F.3d 163, 169 (2d Cir. 2005) (affirming a sophisticated means enhancement
where the mortgage fraud scheme “involved sophisticated means designed to prevent detection . . .
includ[ing inter alia] the creation of false bank documents; the solicitation and creation of false
appraisals; . . . [and] collusion with the attorney representing many of the purchasers at closing.”).
3. Minor Role Reduction
Werner and Asmar also contend that the district court should have departed from the
Guidelines in recognition of their minor role in the conspiracy. “It is the defendant’s burden to
establish by a preponderance of the evidence that his level of culpability entitles him to a minor role
reduction.” United States v. Garcia, 920 F.2d 153, 156 (2d Cir. 1990) (per curiam). A minor role
reduction “will not be available simply because the defendant played a lesser role than his co-
conspirators; to be eligible for a reduction, the defendant’s conduct must be ‘minor’ or ‘minimal’ as
compared to the average participant in such a crime.” United States v. Carpenter, 252 F.3d 230, 235
(2d Cir. 2001) (internal quotation marks omitted). The facts in the record demonstrate that neither
Werner nor Asmar played minor roles in the conspiracy. They were both involved in fraudulent
transactions and provided fraudulent information to the lenders. They were both aware of the
scheme and each benefitted from it. Werner and Asmar failed to meet their “burden to establish by
a preponderance of the evidence that [their] level of culpability entitle[d them] to a minor role
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reduction,” and the district court’s “findings [in this regard] neither lacked record support nor were
clearly erroneous.” Garcia, 920 F.2d at 156.
4. Acceptance of Responsibility Adjustment
Olmer argues that because the district court allowed him the opportunity to take
responsibility for his crimes, which he took advantage of, the district court should have afforded
him a two-level downward adjustment under U.S.S.G. § 3E1.1. We disagree. Section 3E1.1(a) of
the Sentencing Guidelines provides a two-level reduction if “the defendant clearly demonstrates
acceptance of responsibility for his offense.” U.S.S.G. § 3E1.1(a). The commentary explains that
“[t]his adjustment is not intended to apply to a defendant who puts the government to its burden of
proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits
guilt and expresses remorse,” unless the defendant “goes to trial to assert and preserve issues that do
not relate to factual guilt.” U.S.S.G. § 3E1.1 cmt. n.2. “Since the sentencing judge is in a much
better position to make the factual assessment of contrition and candor than is an appellate court,
the finding of whether the defendant has adequately demonstrated an acceptance of responsibility
will not be disturbed unless it is without foundation.” United States v. Rivera, 96 F.3d 41, 43 (2d Cir.
1996) (citation omitted).
In this case, Olmer accepted responsibility for his crimes after a jury verdict was entered
against him. He does not argue that he went to trial to assert and preserve issues unrelated to factual
guilt, nor do such issues appear to exist. Moreover, neither Olmer nor his counsel requested a two-
level reduction on the basis of his acceptance of guilt, and the district court adopted the findings of
fact in Olmer’s PSR prior to his purporting to accept responsibility for his crimes. Section 3E1.1(a),
therefore, does not provide a basis on which to award a two-level sentence reduction. To the extent
that Olmer accepted responsibility after his conviction, the district court exercised its discretion in
considering it and then imposing a below guideline sentence.
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5. Special Skills Enhancement
Olmer argues the court erred procedurally in applying a special skills enhancement on
account of his legal training, asserting that he acted only as a notary and that he could not practice
law as he had been disbarred. He also maintains that the district court sentenced him under the
misimpression that he acted as an attorney. We review for clear error a district court’s
“determination of whether a defendant utilized . . . special skill[s] in a manner that significantly
facilitated the commission or concealment of” an offense. United States v. Thorn, 446 F.3d 378, 388
(2d Cir. 2006). Because Olmer failed to object to the special skills enhancement before the district
court, however, we review the court’s application of that enhancement for plain error, see Thomas,
274 F.3d at 660, and we find none here.
During sentencing, the district court acknowledged Olmer’s status as a disbarred attorney,
but stated it could neither ignore his role in the scheme nor that he had formerly been a practicing
attorney. The district court was justified in imposing a two-level enhancement because the evidence
indicated that Olmer “abused a position of public or private trust, or used a special skill, in a manner
that significantly facilitated the commission or concealment of the offense.” U.S.S.G. § 3B1.3.
Specifically, although he had been disbarred, Olmer held himself out to be an attorney, and he did so
even after he was indicted. During the scheme, moreover, he essentially acted as a closing attorney
for at least fourteen of the fraudulent transactions. The record reflects that Olmer worked in a law
office and used its IOLTA accounts. Additionally, he used his expertise as a former lawyer to
counsel his co-conspirators on how to handle inquiries by lenders that could disrupt the scheme.
The district court did not err, nor plainly err, in applying a special skills enhancement in calculating
Olmer’s sentence.
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6. Section 3553(a) factors
Nawaz contends that the district court did not adequately consider several factors under 18
U.S.C. § 3553(a) and failed to recognize its authority to impose a non-Guidelines sentence under
United States v. Booker, 543 U.S. 220 (2005). Specifically, Nawaz argues that the district court failed to
consider his arguments relating to loss calculations for the purpose of a departure or variance and
did not consider his family circumstances, his expression of remorse and admission of wrongdoing,
his naiveté and his contributions to the community. Nawaz also contends that in sentencing him,
the district court placed unreasonable weight on the need to promote respect for the law when
considering Nawaz’s obstruction of justice. “Failure to consider the § 3553(a) factors constitutes
procedural error.” United States v. Wagner-Dano, 679 F.3d 83, 88-89 (2d Cir. 2012). We have
previously recognized that “we will not substitute our own judgment for the district court’s on the
question of what is sufficient to meet the § 3553(a) considerations in any particular case.” Cavera,
550 F.3d at 189. We have also held that a sentencing “judge need not utter ‘robotic incantations’
repeating each factor that motivates a sentence.” United States v. Corsey, 723 F.3d 366, 374 (2d Cir.
2013). The judge must, however, “explain enough about the sentence for a reviewing court both to
understand it and to assure itself that the judge considered the principles enunciated in federal
statutes and the Guidelines.” Id.At Nawaz’s sentencing the district court recognized and considered the factors on which the
sentence could be based. The district court specifically and repeatedly referred to the § 3553(a)
factors throughout the sentencing hearing. It is also apparent from that court’s careful consideration
of the Section 3553(a) factors and Nawaz’s arguments that it was aware that it could impose a below
Guidelines sentence but instead chose not to. The argument that the district court committed
procedural error in assessing the relevant considerations under § 3553(a) is without merit.
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Similarly, the district court did not commit any substantive error. In reviewing a sentence
for substantive reasonableness, this court will vacate a sentence “when [the district court’s] decision
cannot be located within the range of permissible decisions or is based on a clearly erroneous factual
finding or an error of law.” United States v. Rigas, 490 F.3d 208, 238 (2d Cir. 2007) (internal quotation
marks omitted). We do not presume that a within-guidelines sentence is reasonable, but “in the
overwhelming majority of cases, a Guidelines sentence will fall comfortably within the broad range
of sentences that would be reasonable in the particular circumstances.” See Wagner-Dano, 679 F.3d at
95. Here, there was no error. Nawaz’s sentence of 90 months imprisonment falls well within the
advisory guidelines range of 87 to 108 months’ imprisonment noted in his PSR, and is reasonable
under the circumstances of his case.
Werner, Asmar, and Olmer also argue that the sentences imposed by the district court in
their respective cases were substantially unreasonable. Werner contends that her contributions to
the community, her age and the fact that, as a citizen of Australia, she is subject to deportation
warranted a below guidelines sentence and that the court did not give enough weight to these
factors. Asmar argues that his character witnesses, his well-spoken remarks during sentencing, his
lack of a criminal record, and his contributions to the community also warranted a lower sentence.
The record reflects, however, that in both Werner and Asmar’s cases, the district court took these
factors into consideration when it conducted its analysis under Section 3553(a). The district court
determined that despite these factors, Werner was not entitled to a below guidelines sentence due to
evidence concerning her involvement in another mortgage fraud scheme introduced at sentencing.
Her sentencing guidelines range was 46 to 57 months’ imprisonment, and the court imposed a
sentence of 48 months’ imprisonment. Although Asmar’s initial advisory guidelines range was 57 to
75 months, the district court considered Werner’s sentence, Asmar’s involvement in two additional
transactions, and the duration of his involvement in the conspiracy to reduce it to a range of 49 to
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57 months. Using this new range, the district court imposed a guidelines sentence of 52 months’
imprisonment. The district court’s sentences are “located within the range of permissible
decisions.” Cavera, 550 F.3d at 191. Thus, Werner and Asmar’s sentences are substantively
reasonable.
Olmer argues that his sentence was unreasonably high in light of his age, medical condition,
the punishment he suffered by being shamed and disgraced in the community, his acceptance of
responsibility, and his blameless life prior to 2006 when he filed a false HUD and was forced to
resign from the bar. Olmer’s sentencing guidelines range was 70 to 87 months. The district court
heard his testimony about his life and medical condition and considered all his other arguments. It
then imposed a below guidelines sentence of 60 months’ imprisonment. The district court’s
decision was certainly permissible, and there are no exceptional circumstances warranting this
Court’s intrusion into its determinations. See Cavera, 550 F.3d at 189. Olmer’s sentence was
substantively reasonable.
We have considered the Appellants’ remaining arguments and find them to be without merit.
For the foregoing reasons, we AFFIRM the district court’s denial of Werner and Asmar’s
Rule 29 and Rule 33 motions. We also AFFIRM the sentences imposed on each Appellant by the
district court with the only exception being that we withhold determination of Nawaz’s appeal of the
district court’s restitution order pending the Supreme Court’s disposition of United States v. Robers,
698 F.3d 937 (7th Cir. 2013), cert. granted, 82 U.S.L.W. 3231 (U.S. Oct. 21, 2013) (No. 12-9012). The
mandate shall issue in the normal course as to the affirmance of the convictions and sentences of all
appellants, except that the mandate will be withheld pending further order of this Court, as to the
order of restitution with respect to appellant Nawaz.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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