United States v. Alami ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4024
ALI ALAMI,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
William L. Osteen, Sr., District Judge.
(CR-95-269)
Submitted: July 22, 1997
Decided: September 16, 1997
Before MURNAGHAN, NIEMEYER, and HAMILTON,
Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Steven D. Benjamin, STEVEN D. BENJAMIN & ASSOCIATES,
Richmond, Virginia, for Appellant. Walter C. Holton, Jr., United
States Attorney, Douglas Cannon, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Ali Alami pled guilty to conspiracy to commit odometer fraud, 18
U.S.C. § 371 (1994), and odometer tampering, 49 U.S.C. § 32703(2)
(1994), 18 U.S.C. § 2 (1994). He appeals his 19-month sentence, con-
tending that the district court used an erroneous definition of "loss"
under USSG § 2F1.1* and clearly erred in determining the amount of
loss attributable to him. We affirm.
Alami and three co-defendants were charged with cooperating in a
two-year scheme by which high-mileage automobiles were bought at
auctions, the odometers turned back, and the cars then resold to deal-
ers. The conspirators set up a large number of sham auto dealerships
in Alabama, North Carolina, and Virginia to facilitate and conceal the
fact that they were obtaining new titles for their vehicles which
showed a falsified low mileage. Of the hundreds of cars the defen-
dants bought and sold, the government had complete documentation
for 86 cars, of which 84 were rollbacks. After his guilty plea, Alami
testified at the trial of his co-defendants.
The sentencing guideline applicable to odometer tampering is
USSG § 2N3.1. For an offense involving more than one car, there is
a cross-reference to USSG § 2F1.1. Under USSG§ 2F1.1, when a
fraud involves a misrepresentation concerning the quality of a con-
sumer product, the loss is the difference between the amount paid by
the victims for the product and the amount for which the victim could
resell the product. USSG § 2F1.1, comment. (n.7(a)). The probation
officer estimated that Alami was responsible for rolling back the
odometers on 273 cars and that, following United States v. Whitlow,
979 F.2d 1008 (5th Cir. 1992), an average loss of $4000 per car was
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*United States Sentencing Commission, Guidelines Manual (Nov.
1995).
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a reasonable calculation. Alami objected to the calculation, but pres-
ented no evidence when he was jointly sentenced with his co-
defendants. The district court decided to consider only the 84 cars
which were proven rollbacks, and found that Alami was involved
with only 80 of those cars.
Relying on United States v. Alborz, 818 F. Supp. 1306, 1309 (N.D.
Cal. 1993), the Defendants argued that the amount of loss per car
should be limited to the difference in value between a vehicle with
high mileage and one with low mileage, and that they should be given
credit for improvements made to the cars before resale. They also
argued that no more than 40% of the trade-in value should be
deducted because of high mileage, as recommended in the National
Auto Dealer's Association (NADA) Official Used Car Guide. The
district court, however, found that a transaction between automobile
wholesalers involving high- and low-mileage cars was quite different
from a purchase by a consumer who unknowingly buys a vehicle with
an altered odometer. Such a vehicle is known as a"TMU" (true miles
unknown) vehicle. Evidence presented by the Defendants during the
sentencing established that reputable dealers are extremely reluctant
to handle a TMU vehicle, which consequently has a lower resale or
trade-in value than a normal high-mileage car.
From interviews with dealers in North Carolina and Maryland, the
government estimated that the average difference between the worth
of a high-mileage car and the worth of the same car as a TMU vehicle
was $7000. The government also presented a chart showing the price
for which some of the 84 relevant cars (80 in Alami's case) were pur-
chased by the defendants and the price the consumer paid for each of
those cars after the odometer was rolled back. From this information,
at the district court's direction, the probation officer calculated that
the average increase in price was $6260 per car. After considering this
information, the district court decided that $6000 per car was a con-
servative estimate of the loss to each consumer. The amount of loss
attributed to Alami was thus $480,000, giving him a 9-level enhance-
ment for a loss between $350,000 and $500,000. See USSG
§ 2F1.1(b)(1)(J).
Alami first contends on appeal that the court erred in considering
the final purchasers of the vehicles, rather than the dealers to whom
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the conspirators sold the cars with altered odometers, to be the victims
of the offense. Because the guideline mandates this approach, we find
no error.
Second, Alami argues that he should have benefitted from the
court's decision to give co-defendant Joseph Armetta a credit of $400
for each of 40 cars where there was some evidence that Armetta made
improvements to those cars before reselling them to dealers. When
the court made this ruling at sentencing, Alami's attorney immedi-
ately claimed that his client had also made improvements to cars, but
the district court found that there was no evidence that he had done
so. Alami's argument is meritless because, even if the loss attributed
to him were reduced by $16,000, his offense level would not change.
The sentence is therefore affirmed. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED
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