15-2024-cr(L)
United States of America v. Murshed (Algahaim)
                                                                    
                                                    UNITED STATES COURT OF APPEALS

                                                                     FOR THE SECOND CIRCUIT

                                                                        August Term 2016

Heard:                      September 29, 2016                                           Decided: December 1, 2016

                                          Docket Nos. 15-2024(L), 15-2069(Con)

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UNITED STATES OF AMERICA,
         Appellee,

                                                v.

AHMED A. ALGAHAIM, MOFADDAL M. MURSHED,
         Defendants-Appellants.1
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Before:                        NEWMAN, WINTER, and CABRANES, Circuit Judges.

                Appeal                      from                 the        June   12,    2015,    judgments    of     the

District                           Court                   for         the     Northern      District   of     New   York

(Thomas J. McAvoy, District Judge), convicting Mofaddal M.

Murshed                         and               Ahmed                A.    Algahaim      of    offenses    concerning

benefits                             under                      the         Supplemental        Nutrition    Assistance

Program                       (formerly                              “food    stamps”)     and    sentencing    them   to

prison terms of thirty and twenty-one months, respectively.



																																																																		
	
                1
                     The Clerk is requested to change the official caption as
above.

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     Affirmed       and    remanded        for     consideration       of    non-

Guidelines sentences.


                              Molly Corbett, Office of the Federal
                                   Public Defender, Syracuse, NY
                                   (Lisa A. Peebles, Federal Public
                                   Defender, Syracuse, NY, on the
                                   brief), for Appellant Ahmed A.
                                   Algahaim.

                              Jeremy Gutman, New York, NY, for
                                   Appellant Mofaddal M. Murshed.

                              Paul D. Silver, Asst. U.S. Atty.,
                                   Albany, NY (Richard S.
                                   Hartunian, U.S. Atty., Jeffrey
                                   C. Coffman, Asst. U.S. Atty.,
                                   Albany, NY, on the brief), for
                                   Appellee.


JON O. NEWMAN, Circuit Judge:

     This is an appeal by two defendants found guilty after

a   jury   trial    of    offenses    concerning       misuse     of   benefits

under      the     Supplemental      Nutrition        Assistance         Program

(“SNAP”) (formerly “food stamps”). Ahmed A. Algahaim and

Mofaddal     M.    Murshed    appeal        from     the   June    12,      2015,

judgments of the District Court for the Northern District

of New York (Thomas J. McAvoy, District Judge). We affirm

the convictions and sentences but also remand to permit the

sentencing judge to consider non-Guidelines sentences in



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view of the significant effect of the loss enhancement in

relation to the low base offense level.

                                     Background

      Defendants-Appellants Murshed and Algahaim worked at a

small grocery store called D&D Grocery and Deli (“D&D”) in

Hudson, New York. Murshed represented himself to be the

owner     of   D&D.    D&D     was    approved       by   the    United   States

Department of Agriculture to redeem SNAP benefits for food

items. SNAP benefits are provided to eligible recipients

through the use of an electronic benefit transfer (“EBT”)

card. It is unlawful to give cash in exchange for SNAP

benefits.

      Several bona fide customers of D&D and confidential

informants     posing     as    customers       testified       that   they    were

given cash when they used their EBT cards to redeem SNAP

benefits. Both Murshed and Algahaim gave cash in exchange

for     SNAP   benefits       to     at    least    one     customer    and     one

confidential informant on several occasions.

      A   grand    jury      indicted      Murshed    and    Algahaim     on   two

counts     each.      Count    One        charged    both    defendants        with

conspiring to present or to cause to be presented, benefits

of a value of more than $100, knowing such benefits to have


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been    received,       transferred        or     used     in       violation     of   the

provisions of the SNAP, in violation of 18 U.S.C. § 371 and

7 U.S.C. § 2024(c).	 Count Two charged	 Murshed with using,

transferring, acquiring, or possessing SNAP benefits in a

manner       contrary    to    the    Food        Stamp       Act    and    regulations

issued pursuant to that act, in violation of 7 U.S.C. §

2024(b). Count Four charged Algahaim with a violation of

the same statute. After a five-day jury trial, both were

convicted on all counts.

                                     Discussion

I. Jury Charge on Mens Rea

       The    appellants       contend           that     the       District      Court’s

response to inquiries from the jury undermined the Court’s

initial      instruction       on    the     requisite          mens       rea.   In    its

initial charge, the Court instructed that the burden was on

the Government to prove beyond a reasonable doubt that the

defendants       acted        intentionally             and     deliberately           with

knowledge        “that        receiving,           transferring,             using       or

possessing SNAP access devices, in exchange for cash, was a

violation       of      the    law     or        Department          of     Agriculture

regulations.”           The     Court            explained           “intentionally,”




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“deliberately,” and “knowingly” in standard language. The

initial charge properly explained the requisite mens rea.

      The jury asked for clarification in two notes. The

first     asked     for     a   definition      of     “voluntary,”        a     word

included in the initial charge. Counsel did not suggest any

particular language for the Court’s use in a response. The

Court told the jurors that they should reread the state of

mind instruction and that the meaning of “voluntary” would

become apparent. Counsel for Murshed said he objected only

to the Court’s saying that the meaning of “voluntary” would

become apparent. Counsel for Algahaim made no objection.

      The jury’s second inquiry asked whether all statements

in the instructions carried equal weight and whether there

was   a   difference        between    two   sentences         of    the       charge

explaining        the     requisite    mental        state.    Again,      counsel

offered no suggestions for a response. The Court’s reply

included a reminder that the charge was to be considered as

a whole, that there was no significant difference between

the two sentences to which the jury referred, and that

“voluntary,” the word queried in the jury’s first note,

meant that an action was taken of a person’s own free will

and   was   the     opposite      of   being     made     to    do   something.


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Although the Court stated that it was providing all parties

an exception to the supplemental charge, it is not clear

what, if anything, counsel wanted the Court to tell the

jury.

    We     see     no    basis     for    any    complaint    concerning           the

responses     to       either    note.    Neither       response    in     any     way

undermined the initial, entirely proper explanation of the

requisite mens rea.

II. Evidence of Mens Rea

    Murshed contends that the evidence was insufficient to

establish     that       he     acted    with    the    requisite        mens    rea.

However,    the     evidence       of    the    several    instances       when    he

swiped   an      EBT    card,     did    not    provide    food,    and     instead

provided cash gave the jury an ample basis for inferring

the requisite mens rea.

III. Sentencing Issues

    Guidelines           calculations.          Calculation        of     Murshed’s

Guidelines sentencing range began with a base level of six

for an offense involving fraud that has a statutory maximum

sentence      of    less      than      twenty    years.     See        U.S.S.G.     §

2B1.1(a)(2). Then from the loss table, twelve levels were

added    because         of     the     amount     of     loss,     see     id.      §


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2B1.1(b)(1)(G),            bringing         the      adjusted         offense     level       to

eighteen, three times the base offense level. In criminal

history category I, the adjusted offense level yielded a

sentencing range of twenty-seven to thirty-three months.

The District Court imposed a sentence of thirty months.

       Algahaim’s         Guidelines         calculation             also    began     with    a

base    offense          level    of    six,        which      was       increased     by    ten

levels for the amount of loss for which he was responsible,

see    id.    §     2B1.1(b)(1)(F),            bringing         the       adjusted     offense

level    to       sixteen.       In    criminal           history         category     I,   the

adjusted          offense    level          yielded        a    sentencing        range       of

twenty-one          to    twenty-seven            months.           The     District     Court

imposed a sentence of twenty-one months.

       Mitigating          role       claim.        Algahaim         contends     that       the

District          Court    erred       by    denying        him      a    mitigating        role

adjustment. The Guidelines authorize a sentencing judge to

reduce       an    adjusted       offense         level        by   two     levels     if    the

defendant was a “minor participant,” by four levels if the

defendant was a “minimal participant,” and by three levels

in cases falling between those two classifications. See id.

§ 3B1.2. To be entitled to a mitigating role adjustment a

defendant         must    have     “play[ed]          a    part      in     committing       the


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offense that makes him substantially less culpable than the

average participant.” Id. § 3B1.2 Application Note 3(A).

     In the pending case, no facts concerning what Algahaim

did are in dispute. The issue for the sentencing judge was

solely     whether    those     facts     entitled        Algahaim     to     a

mitigating    role    adjustment.       That   is   the    sort   of    legal

determination we review de novo. On such review, we agree

with Judge McAvoy that no adjustment was warranted.

     Although Algahaim’s role in managing the store might

have been less than that of Murshed, Algahaim’s role in

committing the charged offenses was virtually identical to

Murshed’s. Algahaim did not play a part in the offenses

that made him substantially less culpable than the average

participant.

     Presentence     report     claim.    Murshed    contends     that      the

District    Court    violated    Rule    32(i)(1)(A)      of   the   Federal

Rules of Criminal Procedure, which requires a sentencing

court to “verify that the defendant and the defendant’s

attorney have read and discussed the presentence report”

(“PSR”). In the absence of objection in the District Court,

we   review   this    alleged    error     under    the     “plain     error”

standard. We have observed that “the plain-error exception


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to     the    contemporaneous-objection             rule      is   to   be    used

sparingly, to correct only                 particularly egregious errors

when    a    miscarriage      of    justice       would     otherwise    result.”

United States v. Salim, 690 F.3d 115, 125 (2d Cir. 2012)

(internal       quotation          marks        omitted).     At    sentencing,

Murshed’s lawyer assured Judge McAvoy, “Yeah, we did go

over it [the PSR].” Although Murshed somewhat equivocated

as to what he knew about the PSR, his lawyer’s statement

entitled Judge McAvoy to conclude that Rule 32(i)(1)(A) had

been satisfied. And the statement assures this Court that

there had not been a plain error that affected Murshed’s

substantial rights or seriously affected the fairness of

the proceedings. See United States v. Marcus, 560 U.S. 258,

262 (2010) (outlining plain error criteria).

       Effect      of   loss       adjustment.        One     aspect     of    the

sentencing,        however,    warrants         further     consideration.    The

calculation of Murshed’s adjusted offense level, driven by

the monetary loss amount, increased his base offense level

from six to eighteen, a three-fold increase. Similarly, the

calculation        of   Algahaim’s       adjusted     offense      level,     also

driven by the loss amount, increased his base offense level

from    six   to    sixteen.       We   recognize     that     these    increases


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complied with the Guidelines Manual. We also recognize that

the Commission had the authority to construct a set of

guidelines         that     used    loss         amount      as     the      predominant

determination of the adjusted offense level for monetary

offenses.

       But    the    Commission          could       have     approached           monetary

offenses      quite       differently.         For     example,         it   could    have

started the Guidelines calculation for fraud offenses by

selecting      a    base    level    that        realistically           reflected       the

seriousness of a typical fraud offense and then permitted

adjustments up or down to reflect especially large or small

amounts of loss. Instead the Commission valued fraud (and

theft and embezzlement) at level six, which translates in

criminal      history       category       I     to     a    sentence        as    low    as

probation,         and     then    let     the        amount       of     loss,     finely

calibrated into sixteen categories, become the principal

determinant of the adjusted offense level and hence the

corresponding sentencing range. This approach, unknown to

other       sentencing      systems,       was        one     the       Commission       was

entitled to take, but its unusualness is a circumstance

that    a    sentencing       court       is     entitled          to    consider.       See

Kimbrough      v.     United       States,        552       U.S.    85,      101    (2007)


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(sentencing judge may make a non-Guidelines sentence if the

judge disagrees with a Commission’s policy determination);

United States v. Cavera, 550 F.3d 180, 192 (2d Cir. 2008)

(in banc) (same). Where                the         Commission      has     assigned     a

rather low base offense level to a crime and then increased

it significantly by a loss enhancement, that combination of

circumstances        entitles      a    sentencing          judge     to    consider     a

non-Guidelines sentence. Cf. United States v. Lauersen, 348

F.3d     329,      344    (2d   Cir.         2003)        (cumulative        effect     of

overlapping          enhancements            warranted            consideration         of

departure),        reh’g    denied,      362        F.3d    160    (2d     Cir.   2004);

United States v. Gigante, 94 F.3d 53, 56 (2d Cir. 1996)

(same).

       We    do    not   rule   that     the        sentences      were     imposed     in

error. We conclude only that a remand is appropriate to

permit       the    sentencing         judge         to    consider        whether    the

significant effect of the loss enhancement, in relation to

the    low    base       offense   level,           should    result        in    a   non-

Guidelines sentence.




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                       Conclusion

    Accordingly, we affirm the convictions and sentences,

but remand for further consideration as outlined in this

opinion.




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