United States v. Rajendrasinh Makwana , 445 F. App'x 671 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5294
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RAJENDRASINH BABUBAHAI MAKWANA,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:09-cr-00043-JFM-1)
Submitted: August 24, 2011 Decided: August 31, 2011
Before GREGORY, SHEDD, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Marta K. Kahn, THE LAW OFFICE OF MARTA K. KAHN, LLC, Baltimore,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, P. Michael Cunningham, Assistant United States
Attorney, Anthony V. Teelucksingh, Special Assistant United
States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rajendrasinh Babubahai Makwana appeals his conviction
after a jury trial for causing and attempting to cause the
transmission of a code to a protected computer, in violation of
18 U.S.C. § 1030(a)(5)(A)(i), (B)(i), (c)(4)(A) (2006), and
forty-one-month prison sentence. On appeal, Makwana argues that
the district court erred in refusing to instruct the jury on
reasonable doubt and erred in the calculation of his Guidelines
sentencing range. We affirm.
We review the district court’s refusal to give a
party’s requested jury instruction for abuse of discretion.
United States v. Passaro, 577 F.3d 207, 221 (4th Cir. 2009),
cert. denied, 130 S. Ct. 1551 (2010). Makwana argues that the
district court erred when it did not instruct the jury on the
definition of the term “reasonable doubt” after defense counsel
requested that it do so. We have “consistently and vigorously
condemned the attempts of [district] courts to define reasonable
doubt,” unless such an instruction is requested by the jury.
United States v. Reives, 15 F.3d 42, 45 (4th Cir. 1994). In
this case, the jury did not request a definition of the term
“reasonable doubt.” Although Makwana requests that we overrule
this precedent, we decline the invitation. United States v.
Rivers, 595 F.3d 558, 564 n.3 (4th Cir. 2010) (“[A] panel of
this court cannot overrule, explicitly or implicitly, the
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precedent set by a prior panel of this court. Only the Supreme
Court or this court sitting en banc can do that.” (internal
quotation marks omitted)). We therefore conclude that the court
did not err in refusing to give Makwana’s requested jury
instruction.
Makwana also challenges his forty-one-month sentence,
arguing that the district court erred in its calculation of the
Guidelines range by: (1) applying the two-level enhancement
under U.S. Sentencing Guidelines Manual (“USSG”)
§ 2B1.1(b)(9)(C) (2010) for his use of sophisticated means and
(2) applying the four-level enhancement under USSG
§ 2B1.1(b)(14)(B)(i) because his offense substantially
jeopardized the safety and soundness of a financial institution.
We review Makwana’s sentence for reasonableness “under a
deferential abuse-of-discretion” standard. Gall v. United
States, 552 U.S. 38, 41, 51 (2007). In conducting this review,
we ensure that the district court correctly calculated Makwana’s
Guidelines range. Id. at 49, 51. When reviewing the district
court’s application of the Guidelines, we review de novo the
application of the Guidelines to the facts. United States v.
Sosa-Carabantes, 561 F.3d 256, 259 (4th Cir. 2009).
Under the Guidelines, a two-level enhancement to a
defendant’s offense level is warranted if the offense involved
“sophisticated means.” USSG § 2B1.1(b)(9)(C). The enhancement
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applies when a defendant employs “especially complex or
especially intricate offense conduct pertaining to the execution
or concealment of an offense.” USSG § 2B1.1, cmt. n.8(B). A
defendant’s offense of conviction may involve “sophisticated
means” even if not every aspect of his scheme was complex or
intricate. United States v. Edelmann, 458 F.3d 791, 816
(8th Cir. 2006). The enhancement applies if the “defendant's
total scheme was undoubtably sophisticated.” Id. (internal
quotation marks omitted); see United States v. Weiss, 630 F.3d
1263, 1279 (10th Cir. 2010) (“The Guidelines do not require
every step of the defendant’s scheme to be particularly
sophisticated; rather, as made clear by the Guidelines’
commentary, the enhancement applies when the execution or
concealment of a scheme, viewed as a whole, is especially
complex or especially intricate.” (internal quotation marks
omitted)); see also United States v. Jackson, 346 F.3d 22, 25
(2d Cir. 2003) (concluding that a credit card fraud scheme
linking unelaborate steps in a coordinated way to exploit the
vulnerabilities of the banking system was “sophisticated”).
Although not every aspect of Makwana’s scheme was
complex or intricate, we easily conclude that, viewed as a
whole, Makwana’s mode of access to the Fannie Mae server in
which he embedded malicious code, coupled with his efforts to
conceal the presence of the code and his connection to it, were
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unambiguously sophisticated. Accordingly, the district court
did not err in applying the two-level enhancement under USSG
§ 2B1.1(b)(9)(C).
Makwana also argues that the district court erred in
applying the four-level enhancement under USSG
§ 2B1.1(b)(14)(B)(i) for an offense that substantially
jeopardized the safety and soundness of a financial institution.
Makwana asserts that Fannie Mae’s safety and soundness was not
jeopardized because neither the outcomes described in the
commentary to the Guideline nor any outcomes akin to those
described in the commentary occurred as a result of his
transmission of the malicious script.
Analysis of section 2B1.1(b)(14)(B)(i) of the
Guidelines properly begins with the plain language of the
Guideline itself. See United States v. Tigney, 367 F.3d 200,
203 (4th Cir. 2004) (rejecting a party’s Guideline
interpretation because it conflicted with the Guideline’s plain
language). This section of the Guidelines provides for a four-
level enhancement to a defendant’s offense level if his offense
“substantially jeopardized the safety and soundness of a
financial institution.” USSG § 2B1.1(b)(14)(B)(i). The
commentary to section 2B1.1 directs a district court to consider
a list of four “non-exhaustive” factors in determining whether
the safety and soundness of a financial institution has been
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substantially jeopardized by the defendant’s offense conduct.
USSG § 2B1.1, cmt. n.12(A)(i)-(iv). See United States v. Seay,
553 F.3d 732, 737 (4th Cir. 2009) (recognizing the Guidelines’
commentary is authoritative). The commentary does not require
the fulfillment of any one particular factor, some combination
of the factors, or all of the factors for the enhancement to
apply. USSG § 2B1.1, cmt. n.12(A).
The Guideline does not define the terms
“substantially” and “jeopardized.” Application of standard
dictionary definitions of these terms leads us to conclude that
the plain language of USSG § 2B1.1(b)(14)(B)(i) clearly
indicates that a financial institution need not actually suffer
any of the outcomes specifically delineated in application note
12(A) or any actual harm to its safety or soundness for the
four-level enhancement to apply. Rather, the financial
institution’s safety and soundness need only be placed in a
position of non-illusory exposure to risk. See United States v.
Zech, 553 F.3d 663, 666-67 (8th Cir. 2009) (“The list [in
application note 12(A)] does not define all of the circumstances
in which the enhancement is appropriate. Thus, Zech's principal
argument, that the [financial institution] did not actually
become insolvent, does not establish that the district court
erroneously applied the substantial-jeopardy enhancement.”);
United States v. Jackson, 524 F.3d 532, 548 (4th Cir. 2008)
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(construing an earlier version of the Guideline and affirming
its application even though one of the defendants ultimately
surrendered assets to reimburse company for losses to retirement
and health plans), vacated on other grounds by Jackson v. United
States, 129 S. Ct. 1307 (2009).
Makwana’s contention that Fannie Mae was not
jeopardized because the malicious script did not execute lacks
merit. The district court’s findings make clear that Makwana’s
offense conduct jeopardized Fannie Mae’s soundness by exposing
the entity to the non-illusory risk of losing all of the data
stored on its computer servers. Although the malicious code was
discovered and removed before the date it was programmed to
execute, it was not necessary to the application of Makwana’s
enhancement that the data on the servers be actually deleted.
Consequently, we affirm the district court’s imposition of the
four-level enhancement under USSG § 2B1.1(b)(14)(B)(i). *
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
*
Makwana also suggests that, even if the malicious script
had executed, the outcome forecast by the Government—namely,
that Fannie Mae’s business activity would have been halted for
at least one day at a loss of 47.7 million dollars in revenue—
does not qualify as conduct that would have substantially
jeopardized Fannie Mae’s safety and soundness. We reject this
argument because the district court did not adopt the
Government’s position in this regard as one of its findings of
fact.
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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