                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 12a0828n.06

                                           No. 11-3275                                    FILED

                             UNITED STATES COURT OF APPEALS                          Aug 01, 2012
                                  FOR THE SIXTH CIRCUIT                        LEONARD GREEN, Clerk


UNITED STATES OF AMERICA,                            )        ON APPEAL FROM THE UNITED
                                                     )        STATES DISTRICT COURT FOR
       Plaintiff-Appellee,                           )        THE SOUTHERN DISTRICT OF
                                                     )        OHIO
v.                                                   )
                                                     )
SHUCEEB GEEDI,                                       )        OPINION
                                                     )
       Defendant-Appellant,                          )
                                                     )



Before: BOGGS, GILMAN, and DONALD, Circuit Judges.


       BERNICE B. DONALD, Circuit Judge. Defendant Shuceeb Geedi was convicted of eight

counts of food-stamp fraud, WIC1 Program fraud, theft of public funds, and conspiracy to commit

money laundering. He now appeals his convictions on food-stamp fraud (Count 2), theft of public

funds (Counts 6 and 7), and conspiracy to commit money laundering (Count 8). Geedi also appeals

the loss calculation and restitution amount of his sentence and raises an ineffective-assistance-of-

counsel claim. For the following reasons, we AFFIRM Geedi’s conviction and sentence, DENY

his ineffective-assistance-of-counsel claim, but REMAND with instructions to issue a schedule of

payments for restitution.




       1
           Women, Infants, and Children Program.
No. 11-3275
United States v. Geedi

                    I. FACTUAL AND PROCEDURAL BACKGROUND


       From 2003 until August 2006, Shuceeb Geedi managed Marwaas Market and City Dollar

Store, two stores specializing in goods from Somalia. During the time that Geedi managed the stores,

he, along with his co-defendants, converted food-stamp benefits and WIC coupons into cash and

allowed customers to purchase ineligible items using their benefits.


       The Internal Revenue Service and the United States Department of Agriculture conducted

a joint investigation into the business practices of both stores. On December 13, 2005, a confidential

informant entered the Marwaas Market, successfully exchanged food-stamp benefits for cash, and

purchased ineligible items. On that same day, another confidential informant used WIC benefits to

purchase ineligible items from City Dollar Store, even though City Dollar Store was not authorized

to accept WIC benefits. The coupon in this transaction was later illegally redeemed through

Marwaas Market. On two other occasions, for which Geedi handled the transactions, a confidential

informant used food-stamp benefits and WIC coupons to get cash back and purchase ineligible items.


       On August 8, 2006, after a search warrant was executed at both the Marwaas Market and the

City Dollar stores, law enforcement agents found incomplete WIC coupons and Ohio Direction

Cards2 with associated PIN numbers that belonged to the recipients. The agents also found ledgers

showing that Marwaas Market extended credit and cash to customers in exchange for WIC and food-



       2
         The Franklin County, Ohio food-stamp program distributes benefits through the Ohio
Direction Card. Each card contains a unique account number and a personal identification number.

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United States v. Geedi

stamp benefits. Agents also confiscated $19,024.66 from the Huntington National Bank business

account of Marwaas Market and $10,000 in cash from Geedi’s residence.


       From 2003 through August of 2006, the Marwaas Market redeemed $597,814 in food-stamp

benefits and $496,337 in WIC benefits for a total of $1,094,153. In this same period, City Dollar

redeemed $2,487,011 in food-stamp benefits and $515,627 in WIC benefits for a total of $3,002,638.

These funds were put into the accounts of Marwaas Market and City Dollar and were used to

purchase inventory and pay business expenses.


       On January 10, 2008, Geedi and his co-defendants were indicted on nine counts of food-

stamp fraud, WIC fraud, and conspiracy to commit money laundering. During the course of the jury

trial, Geedi made a motion challenging the sufficiency of the evidence, under Federal Rule of Civil

Procedure 29. He failed to renew this motion at the close of all the evidence. Geedi was convicted

of conspiracy to defraud the United States (count 1), food-stamp fraud (count 2), unlawful food-

stamp redemption (count 3), WIC program fraud (counts 4 and 5), theft of public funds (counts 6 and

7), and conspiracy to commit money laundering (count 8). Geedi was sentenced to twelve months

in a halfway house, six months of home confinement, probation, and restitution in the amount of

$200,000. Geedi timely appealed.




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United States v. Geedi

                                          II. ANALYSIS


A. Sufficiency of the Evidence


       As he did in his Rule 29 motion at trial, Geedi argues that there was insufficient evidence to

convict him on felony food-stamp fraud, theft of public funds, and conspiracy to commit money

laundering. When a defendant challenges the sufficiency of the evidence on appeal, we must view

the evidence in the light most favorable to the prosecution and determine if any rational trier of fact

could have found the essential elements of the crime. United States v. Kuehne, 547 F.3d. 667, 696

(6th Cir. 2008). However, when, as in the present case, a defendant has failed to preserve a Rule 29

motion by making a motion for acquittal at the end of the prosecution’s case-in-chief and also at the

close of evidence, the sufficiency-of-the-evidence challenge is reviewed for a “manifest miscarriage

of justice.” United States v. Carnes, 309 F.3d 950, 956 (6th Cir. 2002). Under this standard, we will

reverse a conviction only if the record is devoid of evidence pointing to guilt. Id.


       Geedi argues that there was not enough evidence presented during trial to convict him of

felony food-stamp fraud, felony theft of public funds, and felony conspiracy to commit money

laundering. Specifically, he submits that the government did not present any evidence showing that

his involvement in each of these crimes met the threshold dollar amount for a felony charge. The

applicable monetary threshold amount for felony food-stamp fraud is $100, 7 U.S.C. § 2024(b)(1),




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No. 11-3275
United States v. Geedi

for felony money laundering is $100, 18 U.S.C. § 1956(h)3, and for theft of public funds is $1,000.

18 U.S.C. § 641.


        The government presented evidence showing that Geedi was the manager of both City Dollar

and Marwaas Market. He was responsible for the store’s day-to-day financial operations. Under his

management, City Dollar and Marwaas Market received over $3 million in food-stamp and WIC

redemptions. A witness testified that on a few occasions he saw Geedi exchange food-stamp and

WIC benefits for money. Witnesses also testified that Geedi would allow individuals to purchase

ineligible items with their benefits and that this kind of activity was a regular practice at the store.

Furthermore, City Dollar and Marwaas Market continually reported tax-exempt sales for amounts

that were lower than the amount they received for food stamp and WIC redemptions. Food-stamp

and WIC benefits are tax exempt. Therefore, the amount of money reported as tax exempt should

be equal to or greater than the amount received in redemptions. During the time that Geedi managed

the stores, the difference between the reported tax exempt sales and the total redemptions amounted

to $2,269,189.27.


        A reasonable trier of fact could conclude that the difference between the two amounts reflects

the purchase of ineligible, taxable items with food-stamp and WIC benefits. Moreover, these

amounts are well in excess of the statutory thresholds for the offenses with which Geedi was




       3
         Under 18 U.S.C. § 1956(h), the defendant is subject to the same penalties as those
prescribed for the offense that was the subject of the conspiracy.

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No. 11-3275
United States v. Geedi

charged. Because there was evidence pointing to Geedi’s guilt, he has not shown that his convictions

constituted a miscarriage of justice.


B. Loss Calculation and Restitution


       Next, Geedi challenges the district court’s loss calculation and order of restitution. Geedi

did not object to the loss calculation or the restitution order during sentencing and challenges these

portions of his sentence for the first time on appeal.


       Ordinarily, when the district court, during sentencing, has offered a defendant a meaningful

opportunity to raise objections that have not previously been raised and the defendant does not

object, a plain-error standard of review applies. United States v. Vonner, 516 F.3d 382, 385. (6th

Cir. 2008) (en banc). However, according to United States v. Bostic, the rule “requir[es] district

courts, after pronouncing the defendant’s sentence but before adjourning the sentencing hearing, to

ask the parties whether they have any objections to the sentence just pronounced that have not been

previously raised.” 371 F.3d 865, 872 (6th Cir. 2004). If the court fails to invite objection in this

way, a challenge to the sentencing should be reviewed under an abuse-of-discretion standard. United

States v. Freeman, 640 F.3d 180, 186 (6th Cir. 2011). Under this standard, a district court’s legal

interpretations are reviewed de novo, but its factual findings will not be set aside unless they are

clearly erroneous. Id.


       In the present case, after pronouncing the sentence, the judge asked “[a]re there any other

sentencing issues that I have not addressed?” This is insufficient to satisfy Bostic. See United States

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No. 11-3275
United States v. Geedi

v. Batti, 631 F.3d 371, 379 n. 2 (6th Cir. 2011); United States v. Wettstain, 618 F.3d 577, 592-93 (6th

Cir. 2010). Therefore, we review Geedi’s factual challenges to his sentence for clear error.


       1. Loss Calculation


       The Sentencing Guidelines require that the district court make only a reasonable estimate of

monetary loss. U.S.S.G. § 2B1.1, cmt. n. 3(C); United States v. Triana, 468 F.3d 308, 320 (6th Cir.

2006) (stating that “[i]n situations where the losses occasioned by financial frauds are not easy to

quantify, the district court need only make a reasonable estimate of loss given the available

information”). “The sentencing judge is in a unique position to assess the evidence and estimate the

loss based upon that evidence. For this reason, the court’s loss determination is entitled to

appropriate deference.” U.S.S.G. § 2B1.1, cmt. n.3(C). Precision is not required of the district court.

Triana, 468 F.3d at 320.


       Geedi argues that the district court erred when it calculated his offense level based on an

amount of loss that was not supported by the record. The district court was presented with two

estimations of loss. The court took into account the presentence report, which attributed to Geedi

$200,000 in misappropriated funds, and the testimony of an expert witness, who determined the

amount of loss to be much greater. The district court adopted the amount of loss as determined by

the presentence report. In doing so, it looked at the nature of the crime, finding that Geedi engaged

in a spectrum of violations–some minor and some more significant. The district court heard all the

information presented at trial and had already sentenced other individuals involved in the case.


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United States v. Geedi

Thus, it was fully aware of all the evidence against Geedi. Geedi was the manager of both stores and

was also the one who signed the applications for the stores to be able to negotiate WIC vouchers and

food-stamp debit cards. The expert determined that, from approximately 2002 to 2006, the stores

illegally redeemed food-stamp and WIC benefits in excess of $2 million. Based upon this

information, the district court did not abuse its discretion by finding that Defendant’s amount of loss

was $200,000 for purposes of calculating his offense level.


       2. Restitution


       Geedi next argues that the district court failed to perform the proper analysis when it made

a determination about the amount of restitution he owed. The district court ordered that Geedi pay

restitution to the United States Department of Agriculture in the amount of $200,000.


       Under the Mandatory Victim Restitution Act (MVRA),


       Upon determination of the amount of restitution owed . . . the court shall, pursuant

       to section 3572, specify in the restitution order the manner in which, and the schedule

       according to which, the restitution is to be paid, in consideration of—


       (A)     the financial resources and other assets of the defendant, including

               whether any of these assets are jointly controlled;


       (B)     projected earnings and other income of the defendant; and



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No. 11-3275
United States v. Geedi

       (C)     any financial obligations of the defendant; including obligations to

               dependents.


18 U.S.C. § 3664(f)(2)(A)-(C). The district court is not required to make findings on the record

regarding a defendant’s ability to pay. United States v. Blanchard, 9 F.3d 22, 24-25 (6th Cir. 1993)

(in affirming a restitution order, noting that the sentencing court had acknowledged that it reviewed

the presentence report and without further explanation imposed an order of restitution). In the case

before us, the district court relied on the presentence report for the purpose of determining

restitution. Geedi never objected to this portion of the report. Because the presentence report

supported a restitution order of $200,000, the district court did not abuse its discretion in ordering

restitution in that amount.


       Geedi further argues that the district court never specified how much his payments should

be or when they should be made. In United States v. Davis, we adopted the reasoning of the Third

Circuit in United States v. Coates, 178 F.3d 681 (3d Cir. 1999), which held that the district court

must satisfy the MVRA’s mandatory requirements under § 3664 by setting a payment schedule. 306

F.3d 398, 426 (6th Cir. 2002). Here, the district court stated that “[the Defendant] shall make

restitution to the United States Department of Agriculture in the amount of $200,000 a portion of

which will be severally and jointly due with other co-defendants in this case.” Because the district

court determined the amount of restitution owed, but has not specified the manner or schedule of

payment, we will remand to the district court with instructions to issue a schedule of payments.



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No. 11-3275
United States v. Geedi

C. Ineffective Assistance of Counsel


       Finally, Geedi presents the court with a claim for ineffective assistance of counsel based on

his attorney’s failure to object to the order of restitution and to the advisory Guidelines ranges

associated with the loss attributed to him. “Ordinarily, we will not review a claim of ineffective

assistance of counsel on direct appeal because the record is usually insufficient to permit such

review.” United States v. Wynn, 663 F.3d 847, 850 (6th Cir. 2011). An exception exists, however,

when the record is adequately developed to allow the court to properly assess the merits of the issue.

Id. (citation and internal quotation marks omitted). The record in this case has been fully developed

and additional fact-finding is unnecessary because Geedi is currently appealing the claim for which

he believed he had ineffective assistance of counsel; thus we will address Geedi’s ineffective-

assistance-of-counsel claim.


       In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court set forth the test for

determining whether a defendant’s counsel provided ineffective assistance. Under Strickland, Geedi

must prove (1) that his counsel’s performance fell below an objective standard of reasonableness,

and (2) that this performance prejudiced the defendant’s case. Id. at 694. It is unnecessary to

address both components of the test if the defendant makes an insufficient showing on one. Id. at

697. To show prejudice, a petitioner must show that there is a reasonable probability that, but for

the errors of counsel, his sentence would have been different. Id. at 694.




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No. 11-3275
United States v. Geedi

       Geedi has not proven that he was prejudiced by his attorney’s performance. Geedi’s sentence

would not have been any different because, as we have addressed, his restitution and loss claims are

without merit. Geedi has not succeeded on his appeal and likewise would not have succeeded had

his attorney raised those claims during trial. Geedi’s ineffective-assistance-of-counsel claim fails.


                                       III. CONCLUSION


       For the foregoing reasons, we AFFIRM Geedi’s conviction and sentence, but REMAND

with instructions to issue a schedule of payment for restitution. We also DENY his ineffective-

assistance-of-counsel claim.




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