United States v. Nadim Saifan, Jr. , 671 F. App'x 543 ( 2016 )

NOT FOR PUBLICATION FILED
DEC 15 2016
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50417
Plaintiff-Appellee, D.C. No.
8:11-cr-00288-CJC-1
v.
NADIM NICK SAIFAN, Jr., MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Submitted December 8, 2016**
Pasadena, California
Before: NGUYEN and OWENS, Circuit Judges, and KORMAN,*** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
Defendant Nadim Nick Saifan Jr. (“Saifan”) appeals the 48-month sentence
he received following his convictions on two counts of tax evasion in violation of
26 U.S.C. § 7201.1 As the parties are familiar with the facts, we do not recount
them here. We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291,
and we affirm.
Under U.S. Sentencing Guidelines Manual § 2T1.1, courts may consider a
defendant’s unclaimed tax deductions in estimating the tax loss for sentencing
purposes if, among other factors, the deductions are “reasonably and practicably
ascertainable.” § 2T1.1 cmt. n.3. The defendant bears the burden of establishing
any unclaimed deductions by a preponderance of the evidence. Id.
Saifan contends that the district court erred by not crediting unclaimed
business expenses incurred by his company, Defense Logistical Support &
Services Corporation (“DLSS”), in calculating the tax loss. Not so. Although
Saifan plausibly argues that DLSS incurred some legitimate business expenses in
the course of its performance on numerous contracts, he provided no invoices,
bank statements, or any other documentation establishing what those expenses
actually were. Nor does he point to a reliable method for the district court to
reasonably approximate those expenses—an especially onerous task given that
1
The motion for leave to transmit the physical exhibit, App. Dkt. 17, is DENIED.
2
DLSS operated as a cash business in wartime Iraq. Accordingly, the district court
did not err in finding that DLSS’s unclaimed business expenses were not
“reasonably and practicably ascertainable,” and therefore excluding them from its
tax loss calculation.
AFFIRMED.
3