                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 08a0657n.06
                            Filed: October 31, 2008

                                            07-2531

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                        )
                                                 )
          Plaintiff-Appellee,                    )
                                                 )
v.                                               )   ON APPEAL FROM THE UNITED
                                                 )   STATES DISTRICT COURT FOR THE
ZAKIR HAKIM,                                     )   EASTERN DISTRICT OF MICHIGAN
                                                 )
          Defendant-Appellant.                   )



          Before: DAUGHTREY and GILMAN, Circuit Judges; MILLS,* District Judge.


          PER CURIAM. Defendant Zakir Hakim pleaded guilty to aiding and abetting bank

theft, a Class A misdemeanor, and was sentenced to 12 months in prison. He now takes

issue with the severity of that punishment, contending both that the district court failed to

address Hakim’s objections to the suggested guideline range and that the sentence

imposed was unreasonable. For the reasons detailed in this opinion, we disagree and

affirm.


          Hakim admitted at his plea hearing that he “withdrew money from [his] checking

account knowing that the funds were not available.” Similarly, he conceded that he also



          *
         The Hon. Richard Mills, United States District Judge for the Central District of Illinois,
sitting by designation.
07-2531
United States v. Hakim

assisted Jason Shudell and Tiffany Shudell in making withdrawals of other unavailable

funds from the Charter One Bank. In fact, all told, the defendant and the Shudells illegally

withdrew $31,159.35 from the bank using the credit card option on the institution’s

automated teller machines so that the transactions were processed without the accounts

being debited immediately.


       In its presentence report, the probation office suggested that Hakim’s guideline base

offense level of six be increased by six additional levels due to the monetary amount lost

by the bank in the crime, see USSG § 2B1.1(b)(1)(D), and by two levels because of the

defendant’s role as an organizer and leader, see USSG § 3B1.1(c). Consequently, even

after the defendant was granted a two-level downward adjustment for his acceptance of

responsibility, his total offense level of 12, in conjunction with his criminal history category

of III, subjected Hakim to a guideline sentencing range of 15-21 months. Because the

maximum punishment allowed by statute for the offense of conviction was only 12 months,

however, the district court eventually imposed a 12-month prison sentence, one year of

supervised release, and ordered the defendant to pay restitution to the bank in the amount

of $31,159.35.


       On appeal, Hakim first asserts that the district judge erred in finding him to be an

organizer and leader in the crime. Prior to the sentencing hearing, Hakim’s original counsel

did lodge a written objection to this § 3B1.1 adjustment because of his belief that, “under

the facts of this case, co-defendants were equally culpable, thus equally accountable for


                                             -2-
07-2531
United States v. Hakim

any substantiated loss in this matter.” However, at sentencing Hakim failed to voice this

objection, despite being afforded the opportunity by the district judge to highlight “any

objections, additions, corrections or deletions that [the defendant] wish[ed] to bring to [the

judge’s] attention.”     In fact, the defendant’s new counsel acknowledged Hakim’s

“leadership role in what could be considered to have been a [sic] opportunistic, relatively

atavistic crime.” Consequently, the defendant forfeited his challenge to the sentencing

determination, leading to our review for plain error only. See United States v. Bostic, 371

F.3d 865, 872-73 (6th Cir. 2004) .


       Although the defendant’s first attorney did contest the “leadership” designation, the

response of the probation department to the defense objection indicated that Hakim

“recruited Jason Shudell and Tiffany Shudell, as well as directing them in making the

fraudulent bank transactions.” That assertion was not contested at the subsequent

sentencing hearing. Moreover, neither Hakim nor the attorney who represented him at

sentencing lodged any objection to the following factual assertion that was also contained

in the presentence report:


       Jason P. Shudell admitted to participating in the bank fraud scheme under
       the direction of HAKIM, and received $7,500.00 cash compensation for his
       role in the offense. Investigation revealed that HAKIM instructed Jason P.
       Shudell to open the account at Charter One Bank and HAKIM provided him
       with the ATM card. HAKIM advised Jason P. Shudell that he deposited
       money into the account and not to touch it. HAKIM and Jason P. Shudell
       then made their April 2002 withdrawals together at the Motor City Casino,
       MGM Grand Casino, and Charter One Bank locations.



                                            -3-
07-2531
United States v. Hakim

(Emphasis added.) Absent timely objection, the district judge was justified in concluding

from these statements that the preponderance of the evidence established that Hakim was

indeed a leader in the offense. This first allegation of error is, therefore, without merit.


       The defendant also contends that his 12-month sentence is unreasonable, both

because the district court emphasized too heavily Hakim’s past criminal record instead of

his more positive characteristics, and because co-defendant Jason Shudell received a

more lenient sentence of probation rather than a term of incarceration. We review a district

court’s sentencing determination for reasonableness, using the deferential abuse-of-

discretion standard. See United States v. Pearce, 531 F.3d 374, 384 (6th Cir. 2008). Our

review in this regard “has both a procedural and a substantive component.” United States

v. Erpenbeck, 532 F.3d 423, 430 (6th Cir. 2008) (citing Gall v. United States, 128 S.Ct.

586, 592, 597 (2007)).


       As a procedural matter, the district judge must have calculated the guidelines range

properly, recognized the advisory nature of the guidelines, considered the sentencing

factors listed in 18 U.S.C. § 3553(a), avoided reliance on clearly erroneous facts, and

explained the chosen sentence adequately. See id. “In evaluating the substantive aspect

of a sentence, we may apply a rebuttable presumption of reasonableness to sentences

within the guidelines. We also give due deference to the district court’s conclusion that the

sentence imposed is warranted by the § 3553(a) factors.” Pearce, 531 F.3d at 384 (citing




                                            -4-
07-2531
United States v. Hakim

Gall and United States v. Bolds, 511 F.3d 568, 581 (6th Cir. 2007)) (internal quotation

marks omitted).


       Contrary to Hakim’s contention, the district judge adequately considered all relevant

§ 3553(a) factors in imposing the sentence he did. The judge commented on the

defendant’s stable family background and noted both Hakim’s efforts to obtain a GED

degree and his $2,000-per-month job. Nevertheless, the district court’s decision to impose

upon the defendant the most severe sentence permitted by statute was informed by

Hakim’s extensive criminal record -- a record of both convictions and arrests that

comprised 32 paragraphs of the presentence report -- and his inability to reform his

behavior, even after earlier convictions and grants of leniency. As stated by the district

judge, “This tells me that you may have a real problem complying with the laws of society,

not only in the past, but in the future.” Furthermore, the court considered the seriousness

of the offense, the need to promote respect for the law and provide just punishment, and

the desire to deter further unlawful conduct. Although the district court did not impose the

sentence that defense counsel advocated, that fact, by itself, does not necessarily

establish the judge’s failure to consider appropriate, mandated sentencing factors or the

imposition of an unreasonable sentence.


       Moreover, the defendant’s sentence is not rendered unreasonable simply because

Hakim’s co-defendant was placed on probation rather than receiving a prison sentence

similar to Hakim’s. The provisions of 18 U.S.C. § 3553(a)(6) calling for the avoidance of


                                           -5-
07-2531
United States v. Hakim

“unwarranted sentence disparities among defendants with similar records who have been

found guilty of similar conduct” are not directed to the elimination of sentence disparities

between any two similarly-situated defendants. Indeed, “[a] sample size of two defendants

is not sufficient to show such a disparity.” United States v. Smith, 510 F.3d 603, 610 (6th

Cir. 2007), cert. denied, 128 S.Ct. 1910 (2008). Rather, “§ 3553(a)(6) is intended to

ensure that there are no unwarranted disparities between the sentence of the defendant

in question and the sentences of other defendants in the aggregate.” Id. In light of

Hakim’s extensive criminal record and the failed past attempts to reform his conduct by

measures less severe than incarceration, we conclude that any sentence disparity that is

present in this matter is justified and that the 12-month sentence is, therefore, reasonable.


       For the foregoing reasons, we AFFIRM the judgment of conviction and the sentence

of imprisonment imposed upon Hakim.




                                            -6-
