                 Not for Publication in West's Federal Reporter

          United States Court of Appeals
                        For the First Circuit


No. 14-1985

                      UNITED STATES OF AMERICA,

                                 Appellee,

                                      v.

                          MUSTAFA AL KABOUNI,

                         Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF RHODE ISLAND

              [Hon. Mary M. Lisi, U.S. District Judge]


                                   Before

                    Thompson, Lipez, and Kayatta,
                           Circuit Judges.


     B. Alan Seidler on brief for appellant.
     Peter F. Neronha, United States Attorney, and Donald C.
Lockhart, Assistant United States Attorney, on brief for appellee.


                              April 25, 2016
              LIPEZ, Circuit Judge.     Appellant Mustafa Al Kabouni pled

guilty to 18 counts in connection with a conspiracy to defraud the

Supplemental Nutrition Assistance Program (SNAP) by accepting SNAP

benefits in exchange for cash.            He admitted to conspiracy to

unlawfully      acquire   SNAP     benefits,   wire     fraud,   and    money

laundering.      The district court determined that his total offense

level   was    25,   including    a   four-level   upward   adjustment    for

"organiz[ing] or lead[ing]" the fraud.                U.S.S.G. § 3B1.1(a).

Factoring in appellant's criminal history category of I, his

Guidelines range was 57 to 71 months' imprisonment.                    He was

sentenced to a below-Guidelines sentence of 36 months.           On appeal,

he argues that the district court erroneously increased his offense

level under § 3B1.1(a).          Appellant also argues that he received

ineffective assistance of counsel at sentencing.

              We find no clear error in the district court's conclusion

that appellant was a leader or organizer for purposes of the four-

level upward adjustment.         We also decline to consider appellant's

ineffective assistance of counsel claim in this direct appeal.

Accordingly, we affirm.




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                                     I.    BACKGROUND1

               Appellant owned one store (Regency Mart), and was at

least       part    owner   of   a   second    store     (Corner     Store),    in   the

Providence, Rhode Island area.               Both stores were authorized by the

federal government to accept SNAP credits -- a form of federal

benefits      commonly      known     as   "food   stamps"      --   from   individual

recipients in exchange for approved food items.                       Clerks at both

stores participated in a scheme to defraud the SNAP program along

the     following       lines.        Ordinarily,        SNAP    beneficiaries       use

electronic benefit transfer (EBT) cards to purchase goods from a

retailer.          The retailer then represents to the government that it

obtained       those     credits     by    selling     approved      items,    and   the

government deposits cash -- equivalent to the face value of the

credits -- into the retailer's account. At Regency Mart and Corner

Store, however, clerks fabricated sales to justify accepting SNAP

benefits.          Customers with SNAP EBT cards paid a certain amount of

credits to the store, and the clerks gave them cash -- roughly

half the cash value of the credits.                  The stores then represented

to the government that they had accumulated the SNAP credits in

legitimate transactions, and received cash from the government in


        1
       Because appellant pled guilty, the relevant facts are taken
from the unchallenged portions of the Presentence Investigation
Report ("PSR"), and the change of plea and sentencing hearings.
See United States v. Dávila-González, 595 F.3d 42, 45 (1st Cir.
2010).


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exchange for those credits.   In the end, the stores received about

half of the proceeds of the scheme, the other half going to the

SNAP beneficiaries themselves.      Appellant admits to overseeing

operation of the scheme at Regency Mart, though he claims his role

was more limited at Corner Store.

                          II. DISCUSSION

A.   The Offense Level Adjustment

          Appellant claims that the record does not support the

district court's conclusion that he was "an organizer or leader of

a criminal activity that involved five or more participants or was

otherwise extensive," § 3B1.1(a), and that therefore the four-

level adjustment was applied in error.

          We review the district court's factfinding for clear

error.   See United States v. Delgado, 288 F.3d 49, 52 (1st Cir.

2002).   We also review role-in-the-offense determinations, which

are innately fact-specific, for clear error.   See United States v.

Colón-Muñoz, 318 F.3d 348, 364 (1st Cir. 2003).

          The district court made two necessary findings before

applying § 3B1.1(a):   that appellant was an "organizer or leader,"

and that the criminal activity was sufficiently extensive.2   Those




     2 Criminal activity is sufficiently extensive under § 3B1.1(a)
if it either involved five or more participants, or was otherwise
extensive. See United States v. Dietz, 950 F.2d 50, 53 (1st Cir.
1991).    Here, the district court found the conspiracy to be
otherwise extensive.
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findings had to be supported by a preponderance of the evidence.

See Delgado, 288 F.3d at 52.         In making those findings, the court

was permitted to rely on undisputed facts from the PSR. See United

States v. Prochner, 417 F.3d 54, 65-66 (1st Cir. 2005).              We see no

clear error in either finding.

             The district court based its conclusion that appellant

was a leader or organizer on his direction of the scheme at Regency

Mart, and his control over the finances of both stores.                     The

undisputed    facts    adequately    support     this   finding.    Appellant

admitted that he was the sole owner of Regency Mart, authorized

his   employees   to    conduct     fraudulent    transactions     there,   and

claimed substantially all of the $293,000 in illicit proceeds from

that location.    See United States v. Aguasvivas-Castillo, 668 F.3d

7, 15 (1st Cir. 2012) (identifying factors to be considered in

determining     the    role-in-the-offense        to    include    "authority

exercised over others," and "the claimed right to a larger share

of the fruits of the crime" (quoting U.S.S.G. § 3B1.1 cmt. n.4)).

With regard to Corner Store, appellant did not dispute the PSR's

statement that SNAP credits flowed from both stores into bank

accounts he controlled, including all proceeds of the illicit

transactions at Corner Store. Further, the money laundering counts

to which he pled guilty were based on transactions he personally

conducted using Corner Store's SNAP account.            See id. (emphasizing

the significance of defendant's control over the bank accounts of

                                     - 5 -
stores engaged in SNAP fraud, and concluding that he exercised a

leadership role in the fraud); see also U.S.S.G. § 3B1.1 cmt. n.2

(authorizing a role-in-the-offense adjustment for defendants who

"exercise[] management responsibility over the property[] [or]

assets . . . of a criminal organization").

                 Additionally,       it     is     undisputed     that    the   criminal

activity         here     involved     store       employees      and    numerous    SNAP

beneficiaries, and the illicit transfer of over $1.9 million in

SNAP credits over roughly three years.                          The district court's

finding      that       this     activity    was    sufficiently        extensive   under

§ 3B1.1(a) was not clear error.                     See Dietz, 950 F.2d at 53-54

(finding criminal activity otherwise extensive under § 3B1.1(a)

based       on    the     "number    of     participants"         --    including   minor

participants -- and the "width, breadth, scope, complexity, and

duration" of the scheme); U.S.S.G. § 3B1.1 cmt. n.3 ("In assessing

whether an organization is 'otherwise extensive,' all persons

involved         during    the    course    of     the   entire    offense    are   to   be

considered.").

B.      The Ineffective Assistance of Counsel Claim

                 Appellant also claims that his attorney's failure to

properly challenge the application of § 3B1.1(a) amounted to

ineffective         assistance       of     counsel.3       Claims       of   ineffective


        3
       Counsel's purported failures are, first, not moving for an
evidentiary hearing on appellant's role in the offense, and second,
                                            - 6 -
assistance of counsel generally may not be raised for the first

time on direct appeal.            United States v. Jones, 778 F.3d 375, 389

(1st Cir. 2015); United States v. Grace, 367 F.3d 29, 37 (1st Cir.

2004) (applying the rule to a claim of ineffective assistance at

sentencing).          This is because appellate courts typically lack a

sufficient          record    to        make     the     necessary       fact-specific

determinations as to what happened, and why counsel took the

challenged actions.          United States v. LaPlante, 714 F.3d 641, 648

(1st       Cir.    2013).    An    exception       to    the   general    rule   allows

ineffective assistance claims to be considered on direct appeal in

"those       rare    instances     in    which     the    record   is    sufficiently

developed."         Jones, 778 F.3d at 389-90.

                  Appellant offers no plausible argument that the general

rule should not apply.4           We note, in particular, the lack of record

evidence on "why counsel acted as he did," LaPlante, 714 F.3d at

648, and decline to consider the ineffective assistance claim.                      We

dismiss this claim of error without prejudice to the defendant's

right to seek relief pursuant to 28 U.S.C. § 2255.




not arguing in the alternative that the court should enhance his
offense level by two levels under U.S.S.G. § 3B1.1(c) or three
levels under U.S.S.G. § 3B1.1(b), rather than four levels under
§ 3B1.1(a).

       4
       Indeed, appellant's brief fails to even acknowledge the
general rule as it exists in this circuit.         In an apparent
oversight, the brief cites only Second Circuit cases on this issue.
                                           - 7 -
                         III. CONCLUSION

          Finding no merit in appellant's arguments, we affirm the

judgment below.

          So ordered.




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