     Case: 09-10296     Document: 00511058004          Page: 1    Date Filed: 03/22/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                           March 22, 2010
                                     No. 09-10296
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

MOHAMMED FAYYAZ HAYAT,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 6:08-CR-8-1


Before BENAVIDES, PRADO and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Mohammed Fayyaz Hayat appeals the 37-month concurrent sentences
imposed following his guilty plea conviction for two counts of making a false
statement to a bank and aiding and abetting and four counts of wire fraud and
aiding and abetting. Hayat raises five challenges to his sentence, three of which
are barred by the plain language of the knowing and voluntary appeal waiver in
his written plea agreement. See United States v. Bond, 414 F.3d 542, 544 (5th
Cir. 2005). Accordingly, we consider only his claims regarding the calculation

        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
     Case: 09-10296    Document: 00511058004 Page: 2       Date Filed: 03/22/2010
                                   No. 09-10296

of the loss amount used to determine his offense level and the denial of a two-
level reduction in offense level for acceptance of responsibility.
        Loss Amount
        “Although post-Booker, the Sentencing Guidelines are advisory only, and
an     ultimate   sentence    is   reviewed    for   reasonableness     under       an
abuse-of-discretion standard, the district court must still properly calculate the
guideline sentencing range for use in deciding on the sentence to impose.”
United States v. Goss, 549 F.3d 1013, 1016 (5th Cir. 2008). A challenge to the
court’s method of determining the loss amount is a challenge to the court’s
application of the Guidelines, which is an issue that we review de novo. Id. The
district court’s finding of the amount of loss is a factual finding that we review
for clear error. Id.
        Hayat contends that the district court erred in determining that he was
responsible for a loss amount of $546,033.87 and increasing his offense level by
14 levels on this basis. United States Sentencing Guidelines Section 2B1.1
provides that, for a loss amount greater than $400,000, the defendant’s offense
level should be increased by 14 levels. § 2B1.1(b)(1)(H). “In a case involving
collateral pledged or otherwise provided by the defendant, [loss shall be reduced
by] the amount the victim has recovered at the time of sentencing from
disposition of the collateral, or if the collateral has not been disposed of by that
time, the fair market value of the collateral at the time of sentencing.” Id. at
comment. (n.3(E)(ii)).
        Hayat first challenges the district court’s methodology for calculating loss
and argues that the district court should have reduced the loss amount by the
face value of the loan. However, Hayat’s contention is refuted by the plain
language of § 2B1.1 comment. n.3(E)(ii), which the district court correctly
applied by reducing the loss amount by the amount the victim recovered from
the sale of the collateral pledged to support the loan.



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                                No. 09-10296

      Hayat next challenges the district court’s factual findings regarding the
loss amount. Hayat argues that district court should have reduced the loss
amount by the portion of loss that is attributable to the economic recession, the
collapse of the housing market, and victim negligence. The district court was
entitled to rely on the findings of the presentence report (PSR) regarding the
cause and extent of loss because Hayat failed to present competent rebuttal
evidence or otherwise demonstrate that the loss calculations were materially
unreliable. See United States v. Ford, 558 F.3d 371, 377 (5th Cir. 2009).
      Hayat also argues that the district court should have reduced the loss
amount by the additional loan payments that he contended he made. At the
sentencing hearing, the parties presented conflicting evidence regarding the
principal balances of the loans at issue. The district court’s determination that
the loss amount calculated in the PSR reflected the current principal balances
was “plausible in light of the record as a whole.” United States v. Jones, 475
F.3d 701, 705 (5th Cir. 2007).
      Hayat also argues that the excess proceeds recovered by the primary
mortgage holder from the sale of collateral should have offset the secondary
mortgage holder’s loss amount. Hayat raises this specific argument for the first
time on appeal, and, therefore, we review his claim for plain error. See United
States v. Lopez-Velasquez, 526 F.3d 804, 806 (5th Cir.), cert. denied, 129 S. Ct.
625 (2008). Even if the loss amount was reduced by the amount Hayat urges, he
has not shown “a reasonable probability that, but for the district court’s
misapplication of the Guidelines, he would have received a lesser sentence.”
United States v. Villegas, 404 F.3d 355, 364 (5th Cir. 2005).        Hayat has,
therefore, failed to show that his substantial rights were affected and failed to
demonstrate plain error with respect to this issue. See Puckett v. United States,
129 S. Ct. 1423, 1429 (2009).




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                                 No. 09-10296

       Acceptance of Responsibility
       A defendant may receive a two-level reduction in offense level pursuant
to § 3E1.1 if he “clearly demonstrates acceptance of responsibility for his
offense.” § 3E1.1(a). The defendant bears the burden of demonstrating that the
reduction is warranted. United States v. Flucas, 99 F.3d 177, 180 (5th Cir.
1996).    We “will affirm a sentencing court’s decision not to award a
reduction . . . unless it is without foundation, a standard of review more
deferential than    the   clearly   erroneous   standard.”     United    States     v.
Juarez-Duarte, 513 F .3d 204, 211 (5th Cir.) (internal quotation marks and
citation omitted), cert. denied, 128 S. Ct. 2452 (2008).
       Hayat contends that there was insufficient evidence that he committed
bankruptcy fraud while on supervised release, and, therefore, the district court
erred in denying him the two-level reduction for acceptance of responsibility.
The district court determined that Hayat failed to list a lease agreement that he
signed on a bankruptcy schedule requiring the disclosure of all unexpired leases
of real or personal property. It is a felony to knowingly and fraudulently make
a false oath or account in connection with a bankruptcy proceeding. 18 U.S.C.
§ 152(2). The parties offered conflicting evidence regarding whether the lease
was terminated before Hayat executed the bankruptcy schedule. The district
court’s implicit determination that the lease was still in effect when Hayat
executed the bankruptcy schedule was not “without foundation.” Juarez-Duarte,
513 F.3d at 211. Nor did the district court err in determining that this conduct
provided sufficient grounds for denying the reduction. See § 3E1.1, comment.
(n.1(b)), (n.3).
       For the foregoing reasons, the judgment of the district court is
AFFIRMED. The motions for bond pending appeal and to withdraw the motion
for bond pending appeal are DENIED AS MOOT.




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