United States v. Zaky , 224 F. App'x 483 ( 2007 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0349n.06
Filed: May 18, 2007
No. 05-4654
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE NORTHERN
PETER ZAKY, ) DISTRICT OF OHIO
)
)
Defendant-Appellant )
BEFORE: SUHRHEINRICH and GIBBONS, Circuit Judges, and HEYBURN,
Chief District Judge*
JOHN G. HEYBURN II, Chief District Judge. This case presents the question of whether
a district court’s sentence was “reasonable,” where the district court varied upward from the advisory
Sentencing Guidelines range of twelve to eighteen months imprisonment to a sentence of thirty
months. We find that the sentence is reasonable, and therefore AFFIRM the district court’s decision.
I.
Appellant Peter Zaky is a native of Egypt and emigrated to the United States in 1973. He is
married and has two children. Zaky owned and operated a dry cleaning business in northeast Ohio.
Starting in January 2000, Zaky engaged in a course of conduct with Fanous and Sanaa Mikhail which
*
The Honorable John G. Heyburn II, United States Chief District Judge for the Western
District of Kentucky, sitting by designation.
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eventually resulted in his indictment on federal charges on March 30, 2005. Fanous and Sanaa
Mikhail are husband and wife; Sanaa Mikhail is Zaky’s cousin. Zaky induced the Mikhails to give
him about $115,000 over a period of several years, telling them it was an investment in an apartment
building in Ohio. There was no such investment. The indictment charged Zaky with five counts of
wire fraud, in violation of 18 U.S.C. § 1343; two counts of mail fraud, in violation of 18 U.S.C. §
1341; one count of misuse of treasury name, in violation of 18 U.S.C. § 333; and one count of false
statements, in violation of 18 U.S.C. § 1001.
Zaky was arraigned on these charges on April 14, 2005 and pled not guilty. He was released
on bond but failed to appear at several status conferences. The district court continued the trial
several times. Defense counsel eventually advised the district court that Zaky had been hospitalized
due to a self-inflicted gunshot wound. The United States then moved to revoke Zaky’s bond.
On July 29, 2005, Zaky accepted a Plea Agreement. He pled guilty on August 2, 2005. As
set forth in the Plea Agreement, the parties agreed that the base level offense was seven, pursuant
to U.S.S.G. § 2B1.1(a)(1), and that the loss was more than $70,000, which added eight levels
pursuant to U.S.S.G. § 2B1.1(b)(1)(E). The parties also agreed that there should be a two-level
reduction for acceptance of responsibility. Because Zaky had a Criminal History Level I, the
resulting advisory Sentencing Guidelines range was twelve to eighteen months.
Three sentencing hearings were held. The first hearing was held on October 24, 2005. The
district court announced its calculation of the total offense level of thirteen and announced its
intention to sentence Zaky within the Guidelines range.
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The Court heard testimony from Fanous Mikhail and Rebecca Wahl. Mikhail said that Zaky
“ruined my life.” According to Wahl, Zaky defrauded her of $6,000. In her testimony at the
sentencing hearing, Wahl called Zaky a “truly despicable person” and expressed her wish that Zaky
be prosecuted to the fullest extent of the law. The Court also heard testimony from Doha Elghaffar.
Elghaffar had known Zaky for thirteen years at the time of the sentencing hearing and their families
were quite close. She testified as to how Zaky defrauded her of over $40,000.
At the conclusion of the evidence, the United States requested that Zaky be sentenced at the
high end of the Guidelines range. The United States indicated that federal charges regarding Zaky’s
interactions with Wahl and Elghaffar were possible. The Court said that it would not allow
restitution for uncharged crimes, and the Court also expressed concern that Zaky may have been
concealing some of the monies obtained from the victims who testified. The Court continued the
sentencing to allow more time to investigate Zaky’s possible concealment of assets. The Court also
stated that based on the testimony it had heard that day, it reserved “the right to vary my sentence
higher than the advisory guideline range.”
A second sentencing hearing was held December 6, 2005. The Court indicated again that it
was considering an upward variance from the advisory guidelines. The United States suggested that
the two point reduction for acceptance of responsibility be revoked because of Zaky’s perceived lack
of cooperation with the investigation into his assets. Some evidence was presented to the Court that
Zaky might be concealing assets in Cairo, Egypt. The probation officer indicated that the
information he had uncovered – including documents provided by Zaky’s family – suggested that
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Zaky “does have funds that he did not disclose during the course of the investigation.” The Court
ultimately continued the sentencing again to allow Zaky and his counsel to examine those
documents.
A third and final sentencing hearing was held December 15, 2005. Zaky’s counsel indicated
that Zaky did not deny that he had received $6,000 from Wahl, but that he had planned to pay it
back. The Court stated that it would vary upward four levels from the original total offense level to
thirteen to a new total offense level of seventeen. The latter level resulted in a sentence of twenty-
four to thirty months under the Guidelines. The Court indicated that it was varying upward
“considering the factors under [18 U.S.C. §] 3553” because the conduct of Zaky was
“reprehensible.” The Court stated that it was “amazed that the guidelines call for as limited a
sentence as they do where there is a system of taking money from persons over protracted periods
of time in huge amounts and in fact driving that family into poverty, to me, that is reprehensible and
that’s the primary basis for my decision to vary upward.” The Court then sentenced Zaky to thirty
months imprisonment.
The Court subsequently issued a Memorandum Opinion dated December 19, 2005, detailing
the Court’s rationale for the sentence. The Court identified five factors under 18 U.S.C. § 3553(a)
as justification for the upward variance.1 First, the Court extensively reviewed the nature and
1
18 U.S.C. § 3553(a) reads – in pertinent part – as follows:
Factors to be considered in imposing a sentence.-The court shall impose a sentence sufficient, but not greater than
necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the
particular sentence to be imposed, shall consider-
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circumstances of the offense and Zaky’s history and characteristics. The Court clearly understood
the events leading to Zaky’s guilty plea regarding his fraud upon the Mikhails. The Court also
recited in detail the multiple messages Zaky sent to the Mikhails as part of his fraudulent scheme.
Second, the Court found that under 18 U.S.C. § 3553(a)(2)(A), the guidelines range of twelve to
eighteen months was “patently insufficient to reflect the seriousness of the defendant’s reprehensible
conduct over a protracted period of time during which he played, without any sense of remorse, on
the natural sympathies of his victims.” Third, the Court found that an eighteen month sentence was
insufficient to afford adequate deterrence to criminal conduct.
Fourth, the Court found that, because of Zaky’s unwillingness to be forthcoming in
accounting for the money he gained by fraud and because Zaky had engaged in a similar course of
action with “another victim” (presumably Wahl), the evidence suggested that Zaky “may engage in
[similar] conduct in the future.” Therefore, the Court concluded that a longer sentence was necessary
to protect the public from further crimes committed by Zaky. Fifth and finally, the Court found that
incarceration could provide Zaky with needed medical care to address his physical and mental health.
II.
“[C]ourts of appeal review sentencing decisions for unreasonableness.” United States v.
Booker, 543 U.S. 220, 264 (2005). This Court will not overturn a sentence imposed by a district
court unless that sentence is unreasonable. United States v. Ferguson, 456 F.3d 660, 664 (6th Cir.
2006) (citing United States v. Richardson, 437 F.3d 550, 553 (6th Cir. 2006)). Reasonableness
review has “both substantive and procedural components.” United States v. Jones, 445 F.3d 865,
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869 (6th Cir. 2006). “A sentence may be procedurally unreasonable if the district judge fails to
consider the applicable Guidelines range or neglects to consider the other factors listed in 18 U.S.C.
§ 3553(a), and instead simply selects what the judge deems an appropriate sentence without such
required consideration.” Ferguson, 456 F.3d at 664 (citing United States v. Webb, 403 F.3d 373, 383
(6th Cir. 2005)) (internal quotations omitted). A sentence may be substantively unreasonable if the
district court selects an arbitrary sentence, uses impermissible factors in deciding the sentence, fails
to consider pertinent § 3553(a) factors, or gives unreasonable weight to any particular factor. United
States v. Webb, 403 F.3d 373, 385 (6th Cir. 2005). A district court need not recite the § 3553(a)
factors but must articulate its reasoning in pronouncing a sentence in order to allow for reasonable
appellate review. United States v. Kirby, 418 F.3d 621, 626 (6th Cir. 2005).
Sentences within the advisory Sentencing Guidelines range are entitled to a presumption of
reasonableness. United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006). However, sentences
outside of the Guidelines range are neither presumptively reasonable nor presumptively
unreasonable. United States v. Foreman, 436 F.3d 638, 644 (6th Cir. 2006). In the post-Booker
sentencing regime, district courts have the option, after calculating the Guideline range, to sentence
a defendant outside the Guidelines range. United States v. Williams, 411 F.3d 675, 678 (6th Cir.
2005). District courts are “not bound to adhere to the Guideline range.” Foreman, 436 F.3d at 643.
In this case, the district court reviewed the factors under § 3553(a), explicitly discussed the
relevant factors in a Memorandum Opinion, and considered all of the relevant factors, a procedure
that this Court has regularly approved. See, e.g., United States v. Barton, 455 F.3d 649, 659 (6th Cir.
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2006). The district court found an eighteen month sentence inadequate to punish Zaky’s continued
course of fraudulent conduct. The Memorandum Opinion emphasizes the repeated and long-term
nature of Zaky’s fraudulent scheme against the Mikhails. We conclude that it was reasonable for
the district court to conclude that eighteen months was an inadequate sentence based on the record,
§ 3553(a)(1), and § 3553(a)(2)(A).
Furthermore, we conclude that it was reasonable for the district court to conclude that an
eighteen month sentence would not provide adequate deterrence for Zaky’s repeated fraudulent
conduct. We also find that it was reasonable for the district court to conclude that a longer sentence
was necessary to protect the public from further crimes committed by Zaky. Although the record
is not crystal clear on this point, it appears that the district court found by a preponderance of the
evidence that Zaky had committed a similar fraud on Rebecca Wahl and that the fact he had
committed this similar fraud was evidence that he could present an ongoing danger to the public.
Based on our review of the record, that certainly appears to be a reasonable conclusion and an
appropriate consideration.
Finally, Appellant’s counsel asserts that the district court “inexplicably” found that Zaky’s
physical and mental health would be well-served by a period of incarceration. Although conditions
in our federal prisons may not be ideal, we find that it was reasonable for the district court to
conclude that given the choice between government-funded medical care and the possibility that
Zaky would have insufficient funds to pay for his own care (especially after restitution was ordered
in this case), the former was preferable.
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For the foregoing reasons, we AFFIRM.