UNITED STATES v. SHAHBAZ (2021)

SUMMARY ORDER

Defendant-appellant Muhammad Shahbaz appeals the district court's judgment entered December 4, 2019, convicting him, following his guilty plea, of one count of food stamp fraud and sentencing him principally to 33 months' imprisonment and restitution of approximately $1.5 million. He argues that the term of imprisonment in his sentence was procedurally and substantively unreasonable. We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.¹

Shahbaz challenges the procedural and substantive reasonableness of his sentence. We review this challenge “under a deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). “A sentence is procedurally unreasonable if the district court fails to calculate (or improperly calculates) the Sentencing Guidelines range, treats the Sentencing Guidelines as mandatory, fails to consider the § 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails adequately to explain the chosen sentence.” United States v. Jesurum, 819 F.3d 667, 670 (2d Cir. 2016) (internal quotation marks and citation omitted). A sentence is substantively unreasonable “only in exceptional cases where the trial court's decision cannot be located within the range of permissible decisions.” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (internal quotation marks omitted). “In determining whether a sentence falls within the permissible range, [the Court] patrol[s] the boundaries of reasonableness, cognizant of the fact that responsibility for sentencing is placed largely with the district courts.” United States v. Jenkins, 854 F.3d 181, 187 (2d Cir. 2017) (internal quotation marks omitted).

In pleading guilty, Shahbaz stipulated that as a cashier, he permitted customers to use food stamps to receive cash and purchase items ineligible for food stamps, charging them in food stamps approximately double the value of what they received in exchange. Shahbaz's employer, WB Trade Fair Market, would then redeem from the government the amount that it charged the food stamp customers.²

Shahbaz argues that his sentence was procedurally unreasonable because the district court created an unwarranted disparity by sentencing him to a 33-month term of imprisonment, while his co-conspirators received only 30 months. We are not persuaded. The district court concluded that Shahbaz was not similarly situated to the co-conspirators because he managed others at the store, as evidenced by interviews with other employees indicating that he “taught them how to engage in trafficking of food stamps and that he was the person responsible for closing the store each night.” App'x at 156. The district court's determination that in these circumstances Shahbaz deserved three more months of imprisonment than his less culpable co-conspirators was eminently reasonable.

To the extent Shahbaz argues on appeal that there was a factual dispute as to whether he trained other employees how to traffic in food stamps, he did not object to the district court's finding below, nor did he request an evidentiary hearing. Hence, the district court did not abuse its discretion in failing to conduct a hearing. United States v. Sabhnani, 599 F.3d 215, 258 (2d Cir. 2010) (“The district court is not required ․ to hold a full-blown evidentiary hearing in resolving sentencing disputes. All that is required is that the court afford the defendant some opportunity to rebut the Government's allegations.” (internal quotation marks and alterations omitted)).

Shahbaz argues that the sentence was substantively unreasonable in light of the following factors: (1) the 30-month sentences received by two of his co-conspirators, (2) his status as a “true first offender,” Appellant's Br. at 10, (3) the 16-level enhancement for the loss amount, and (4) the immigration consequences of his conviction. While a sentence of 33 (or 30) months' imprisonment for a cashier who engages in food stamp fraud in the circumstances here may be harsh, we are not persuaded that the sentence was substantively unreasonable. In light of the loss amount of $1.5 million, Shahbaz's participation in the scheme for at least two years, his role as a manager, and his teaching others how to carry out the fraud, this was not an “exceptional case where the trial court's decision cannot be located within the range of permissible decisions.” United States v. Thavaraja, 740 F.3d 253, 263 (2d Cir. 2014) (internal quotation marks omitted).

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We have considered Shahbaz's remaining arguments and conclude they are without merit. For the foregoing reasons, we AFFIRM the district court's judgment.

FOOTNOTES

1.   Shahbaz also appealed from the district court's order entered July 31, 2020, denying his motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A). On May 24, 2021, the parties filed a stipulation dismissing Shahbaz's compassionate release appeal. This Court so-ordered the stipulation on May 25, 2021.

2.   The parties and the Pre-Sentence Report use different versions of the market name. The indictment refers to the market as “WB Trade Fair Market” and that is the version we use here.