US v. Al Kabouni
Filing
OPINION issued by Rogeriee Thompson, Appellate Judge; Kermit V. Lipez, Appellate Judge and William J. Kayatta , Jr., Appellate Judge. Unpublished. [14-1985]
Case: 14-1985
Document: 00116989775
Page: 1
Date Filed: 04/25/2016
Entry ID: 5994202
Not for Publication in West's Federal Reporter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
Case: 14-1985
Document: 00116989775
Page: 2
LIPEZ, Circuit Judge.
Date Filed: 04/25/2016
Entry ID: 5994202
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.
unlawfully
laundering.
level
was
acquire
SNAP
He admitted to conspiracy to
benefits,
wire
fraud,
and
money
The district court determined that his total offense
25,
including
a
four-level
"organiz[ing] or lead[ing]" the fraud.
upward
adjustment
for
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.
sentenced to a below-Guidelines sentence of 36 months.
He was
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 fourlevel 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.
Date Filed: 04/25/2016
Entry ID: 5994202
BACKGROUND1
Appellant owned one store (Regency Mart), and was at
least
part
owner
of
a
second
Providence, Rhode Island area.
store
(Corner
Store),
in
the
Both stores were authorized by the
federal government to accept SNAP credits -- a form of federal
benefits
commonly
known
as
"food
stamps"
--
recipients in exchange for approved food items.
from
individual
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.
obtained
The retailer then represents to the government that it
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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Case: 14-1985
Document: 00116989775
exchange for those credits.
Page: 4
Date Filed: 04/25/2016
Entry ID: 5994202
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 fourlevel 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
2
Those
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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Document: 00116989775
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Date Filed: 04/25/2016
Entry ID: 5994202
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.
undisputed
facts
adequately
support
this
finding.
The
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
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Document: 00116989775
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Date Filed: 04/25/2016
Entry ID: 5994202
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,
activity
here
involved
it
is
store
undisputed
that
employees
and
the
criminal
numerous
SNAP
beneficiaries, and the illicit transfer of over $1.9 million in
SNAP credits over roughly three years.
finding
that
this
activity
was
The district court's
sufficiently
§ 3B1.1(a) was not clear error.
extensive
under
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
3
Claims
of
ineffective
Counsel's purported failures are, first, not moving for an
evidentiary hearing on appellant's role in the offense, and second,
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Document: 00116989775
Page: 7
Date Filed: 04/25/2016
Entry ID: 5994202
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).
sufficient
This is because appellate courts typically lack a
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
An
Cir.
2013).
exception
to
the
general
rule
allows
ineffective assistance claims to be considered on direct appeal in
"those
rare
developed."
instances
in
which
the
record
is
sufficiently
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.
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Case: 14-1985
Document: 00116989775
Page: 8
Date Filed: 04/25/2016
Entry ID: 5994202
III. CONCLUSION
Finding no merit in appellant's arguments, we affirm the
judgment below.
So ordered.
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