United States v. Ghosh, Fuad Abu , 190 F. App'x 484 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 19, 2006*
Decided July 20, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
No. 05-2534
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Illinois, Eastern Division
v.
No. 04 CR 680
FUAD ABU GHOSH,
Defendant-Appellant. Rebecca R. Pallmeyer,
Judge.
ORDER
Fuad Abu Ghosh appeals the sentences imposed on his guilty pleas to mail
fraud, 18 U.S.C. § 1341, wire fraud, id. § 1343, making a false statement to a
financial institution, id. § 1014, and credit card fraud, id. § 1029(a)(2). He argues
here for the first time that the district court used the wrong version of the
sentencing guidelines to calculate his imprisonment range, and failed to set a
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 05-2534 Page 2
payment schedule for restitution. The government concedes that these errors
warrant a remand for resentencing.
Abu Ghosh misrepresented himself as an employee of the former
Immigration and Naturalization Service. He defrauded several immigrants by
soliciting cash for filing fees or his help in preparing and submitting citizenship or
residency applications and using the money for rent and other personal expenses.
On one occasion he accepted a television in return for his purported services, though
he did nothing in return. Abu Ghosh also identified his employer as the INS or the
Department of Justice in opening bank accounts and applying for credit cards and
loans. He defaulted on two credit cards and an automobile loan, and overdrew a
checking account before authorities intervened.
The probation officer prepared the presentence report using the November
2000 edition of the Guidelines Manual (the version in effect when the fraud
schemes ended) because that edition was viewed as more favorable to Abu Ghosh
than the edition in effect at the time of sentencing. See U.S.S.G. § 1B1.11(a), (b). In
fact it was not. The 2000 edition yielded an imprisonment range of 18 to 24
months; the
November 2004 Guidelines Manual, which was in effect when Abu Ghosh was
sentenced, would have yielded a range of 15 to 21 months. But Abu Ghosh did not
object to the use of the older manual, and the district court adopted the probation
officer’s 2000-edition calculations. The court sentenced Abu Ghosh to a total of 21
months’ imprisonment and four years’ supervised release, and ordered him to pay
restitution of $20,953 immediately.
We accept the government’s concession that the district court committed
plain error, see Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 734
(1993), by using the 2000 edition of the guidelines. Section 1B1.11 is explicit that
district courts are to “use the Guidelines Manual in effect on the date that the
defendant is sentenced” unless to do so “would violate” the Ex Post Facto Clause of
the Constitution. U.S.S.G. § 1B1.11(a), (b)(1). As it turns out there existed no
potential for a violation of that clause, so the misapplication of the guidelines is
clear. See United States v. Baretz, 411 F.3d 867, 877 (7th Cir. 2005). We recognize
that the sentence imposed still falls within the properly calculated guidelines range,
but we cannot tell from the district court’s comments at sentencing to what degree
its choice of 21 months turned on where that number fell within the advisory range.
Accordingly, we elect to exercise our discretion and remand for resentencing.
Abu Ghosh already has been released from prison, but he still can gain from
resentencing because any reduction in prison time will result in a credit against his
supervised release. See United States v. Larson, 417 F.3d 741, 747 (7th Cir. 2005);
United States v. Trotter, 270 F.3d 1150, 1152-53 (7th Cir. 2001).
No. 05-2534 Page 3
On remand the district court must reassess whether Abu Ghosh is capable of
making immediate restitution. We note that the district court found, by adopting
the probation officer’s unchallenged factual representations, that Abu Ghosh had a
negative net worth at the time of sentencing. Unless there since has been a
significant change in his financial situation, the court shall set a payment schedule
for restitution. See 18 U.S.C. §§ 3663A, 3664; United States v. Day, 418 F.3d 746,
761 (7th Cir. 2005).
The sentences are VACATED, and the case is REMANDED for resentencing.