                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-2-2006

USA v. Zoher
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1333




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                                                                 NOT PRECEDENTIAL

                   IN THE UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                   Case No: 05-1333

                           UNITED STATES OF AMERICA


                                             v.

                                 ALAAELDIN ZOHER,

                                            Appellant




                    On Appeal From the United States District Court
                               for the District of New Jersey
                              District Court No.: 04-cr-00470
                   District Judge: The Honorable Harold A. Ackerman


                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                    July 13, 2006

                   Before: SMITH, WEIS, and ROTH, Circuit Judges

                                 (Filed: August 2, 2006 )




                                        OPINION


SMITH, Circuit Judge.

      Alaaeldin Zoher pled guilty to one count of bankruptcy fraud and now appeals the

reasonableness of his sentence. Because we find no error in the District Court’s
judgment, we will affirm.

                                              I.

       In 1999, Zoher opened a total of thirty-four credit accounts, frequently

misrepresenting his income in order to obtain higher credit limits. In 1999 and 2000,

Zoher and others used these accounts to make purchases and to receive cash advances

totaling nearly $386,000. On September 29, 2000, Zoher filed a petition for bankruptcy

pursuant to Chapter 11 of the United States Bankruptcy Code in the Bankruptcy Court for

the District of New Jersey, listing the aforementioned $386,000 in debts and

approximately $500 in assets. Following an investigation by the United States Postal

Inspection Service, Zoher was arrested on July 29, 2002.

       On July 22, 2004, Zoher pled guilty to one count of bankruptcy fraud, a violation

of 18 U.S.C. § 157(1) and (2), which was punishable by a maximum term of sixty months

of imprisonment. Based on the stipulations in his written plea agreement, the Sentencing

Guidelines range was fifteen to twenty-one months. Zoher moved for downward

departures–and, in the alternative, requested discretionary reductions in his sentence–in

light of his allegedly extraordinary attempts to rehabilitate himself and his allegedly

extraordinary acceptance of responsibility.

       During the sentencing hearing on January 25, 2005, the District Court denied

Zoher’s motions for downward departures and denied his requests for discretionary

reductions in his sentence. Citing the relatively large amounts of money involved in this



                                              2
case, the District Court instead imposed a custodial sentence of twenty-four months, three

months above the top of the Guidelines range. In its judgment entered February 1, 2005,

the District Court also imposed thirty-six months of supervised release, a special

assessment of $100, and restitution in the amount of $33,873.61. Zoher has appealed the

reasonableness of both his custodial sentence and the order of restitution.1

                                             II.

       Although Zoher received a custodial sentence that was three months above the top

of the Guidelines range, we conclude that Zoher has not established the unreasonableness

of his sentence on appeal.2 The record establishes that the District Court considered both



  1
   The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231. We
have appellate jurisdiction pursuant to 18 U.S.C. § 3742(a). In accordance with this
Court’s longstanding rule, we will decline to review the District Court’s discretionary
decisions not to grant downward departures pursuant to the Sentencing Guidelines. See
United States v. Cooper, 437 F.3d 324, 328 (3d Cir. 2006) (citing United States v.
Denardi, 892 F.2d 269, 271-72 (3d Cir.1989)). However, we have jurisdiction under 18
U.S.C. § 3742(a) to review the overall reasonableness of the District Court’s sentence,
including the factors that the District Court deemed insufficiently extraordinary to warrant
a downward departure pursuant to the guidelines but which nonetheless fall within the
enumerated sentencing factors in 18 U.S.C. § 3553(a). See Cooper, 437 F.3d at 329.
  2
    In our review of the reasonableness of the District Court’s sentence, “[t]he record must
demonstrate the trial court gave meaningful consideration to the § 3553(a) factors” and
“we must also ascertain whether those factors were reasonably applied to the
circumstances of the case.” Cooper, 437 F.3d at 329-30. Although “[a] sentence that
falls within the guidelines range is more likely to be reasonable than one outside the
guidelines range,” “appellants have the burden of demonstrating unreasonableness.” Id.
at 332. “[W]hat we must decide is whether the district judge imposed the sentence he or
she did for reasons that are logical and consistent with the factors set forth in section
3553(a).” Id. at 330.


                                             3
Zoher’s rehabilitation efforts and his acceptance of responsibility within the context of

exercising its sentencing discretion. But the District Court also noted that the statutory

maximum for Zoher’s offense was sixty months. The District Court further found that in

light of the relatively large sums of money involved in this case, a sentence of only

twenty-one months would not adequately reflect the seriousness of the crime. The

seriousness of the crime is a permissible consideration in sentencing pursuant to 18

U.S.C. § 3553(a)(1), and on appeal Zoher did not demonstrate any unreasonableness in

the District Court’s application of this factor to Zoher’s case. Accordingly, we will affirm

the District Court’s judgment as to Zoher’s custodial sentence.

       Further, we find no error in the District Court’s judgment as to restitution.3

Because this was a fraud offense under Title 18 in which identifiable victims suffered

pecuniary loss, the Mandatory Victim Restitution Act of 1996 required the District Court

to order restitution. See 18 U.S.C. §§ 3663A(a)(1) & 3663A(c)(1). The District Court

did not err by ordering payment of restitution to a corporation because § 3663A(a)(2)

defines “victim” as “a person directly and proximately harmed as a result of the

commission of an offense for which restitution may be ordered,” and the general

definition of “person” for federal statutory purposes includes corporations. See 1 U.S.C.

§ 1. Finally, § 3663A(d) provides that “[a]n order of restitution under this section shall be



  3
   Because we find no error in the District Court’s judgment with respect to this issue,
we need not address the government’s argument that Zoher failed to adequately raise this
issue below and thus that it should be subject to review for plain error.

                                              4
issued and enforced in accordance with section 3664,” which in turn provides that “[i]n

each order of restitution, the court shall order restitution to each victim in the full amount

of each victim’s losses as determined by the court and without consideration of the

economic circumstances of the defendant.” 18 U.S.C. § 3664(f)(1)(A). Accordingly, the

District Court did not err by failing to consider Zoher’s financial resources when setting

the amount of his restitution, and we will affirm the District Court’s judgment as to

restitution.

       In sum, we find no error in the District Court’s judgment and we will affirm.




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