USA v. Shuceeb Geedi

Filing

OPINION filed : AFFIRMED Geedi's conviction and sentence, : REMANDED with instructions to issue a schedule of payment for restitution, : DENIED his ineffective-assistance-of-counsel claim, decision not for publication pursuant to local rule 206. Danny J. Boggs, Circuit Judge; Ronald Lee Gilman, Circuit Judge and Bernice Bouie Donald, AUTHORING Circuit Judge.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0828n.06
No. 11-3275

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Aug 01, 2012

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SHUCEEB GEEDI,
Defendant-Appellant,

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LEONARD GREEN, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF
OHIO

OPINION

Before: BOGGS, GILMAN, and DONALD, Circuit Judges.

BERNICE B. DONALD, Circuit Judge. Defendant Shuceeb Geedi was convicted of eight
counts of food-stamp fraud, WIC1 Program fraud, theft of public funds, and conspiracy to commit
money laundering. He now appeals his convictions on food-stamp fraud (Count 2), theft of public
funds (Counts 6 and 7), and conspiracy to commit money laundering (Count 8). Geedi also appeals
the loss calculation and restitution amount of his sentence and raises an ineffective-assistance-ofcounsel claim. For the following reasons, we AFFIRM Geedi’s conviction and sentence, DENY
his ineffective-assistance-of-counsel claim, but REMAND with instructions to issue a schedule of
payments for restitution.

1

Women, Infants, and Children Program.

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I. FACTUAL AND PROCEDURAL BACKGROUND

From 2003 until August 2006, Shuceeb Geedi managed Marwaas Market and City Dollar
Store, two stores specializing in goods from Somalia. During the time that Geedi managed the stores,
he, along with his co-defendants, converted food-stamp benefits and WIC coupons into cash and
allowed customers to purchase ineligible items using their benefits.

The Internal Revenue Service and the United States Department of Agriculture conducted
a joint investigation into the business practices of both stores. On December 13, 2005, a confidential
informant entered the Marwaas Market, successfully exchanged food-stamp benefits for cash, and
purchased ineligible items. On that same day, another confidential informant used WIC benefits to
purchase ineligible items from City Dollar Store, even though City Dollar Store was not authorized
to accept WIC benefits. The coupon in this transaction was later illegally redeemed through
Marwaas Market. On two other occasions, for which Geedi handled the transactions, a confidential
informant used food-stamp benefits and WIC coupons to get cash back and purchase ineligible items.

On August 8, 2006, after a search warrant was executed at both the Marwaas Market and the
City Dollar stores, law enforcement agents found incomplete WIC coupons and Ohio Direction
Cards2 with associated PIN numbers that belonged to the recipients. The agents also found ledgers
showing that Marwaas Market extended credit and cash to customers in exchange for WIC and food-

2

The Franklin County, Ohio food-stamp program distributes benefits through the Ohio
Direction Card. Each card contains a unique account number and a personal identification number.
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stamp benefits. Agents also confiscated $19,024.66 from the Huntington National Bank business
account of Marwaas Market and $10,000 in cash from Geedi’s residence.

From 2003 through August of 2006, the Marwaas Market redeemed $597,814 in food-stamp
benefits and $496,337 in WIC benefits for a total of $1,094,153. In this same period, City Dollar
redeemed $2,487,011 in food-stamp benefits and $515,627 in WIC benefits for a total of $3,002,638.
These funds were put into the accounts of Marwaas Market and City Dollar and were used to
purchase inventory and pay business expenses.

On January 10, 2008, Geedi and his co-defendants were indicted on nine counts of foodstamp fraud, WIC fraud, and conspiracy to commit money laundering. During the course of the jury
trial, Geedi made a motion challenging the sufficiency of the evidence, under Federal Rule of Civil
Procedure 29. He failed to renew this motion at the close of all the evidence. Geedi was convicted
of conspiracy to defraud the United States (count 1), food-stamp fraud (count 2), unlawful foodstamp redemption (count 3), WIC program fraud (counts 4 and 5), theft of public funds (counts 6 and
7), and conspiracy to commit money laundering (count 8). Geedi was sentenced to twelve months
in a halfway house, six months of home confinement, probation, and restitution in the amount of
$200,000. Geedi timely appealed.

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II. ANALYSIS

A. Sufficiency of the Evidence

As he did in his Rule 29 motion at trial, Geedi argues that there was insufficient evidence to
convict him on felony food-stamp fraud, theft of public funds, and conspiracy to commit money
laundering. When a defendant challenges the sufficiency of the evidence on appeal, we must view
the evidence in the light most favorable to the prosecution and determine if any rational trier of fact
could have found the essential elements of the crime. United States v. Kuehne, 547 F.3d. 667, 696
(6th Cir. 2008). However, when, as in the present case, a defendant has failed to preserve a Rule 29
motion by making a motion for acquittal at the end of the prosecution’s case-in-chief and also at the
close of evidence, the sufficiency-of-the-evidence challenge is reviewed for a “manifest miscarriage
of justice.” United States v. Carnes, 309 F.3d 950, 956 (6th Cir. 2002). Under this standard, we will
reverse a conviction only if the record is devoid of evidence pointing to guilt. Id.

Geedi argues that there was not enough evidence presented during trial to convict him of
felony food-stamp fraud, felony theft of public funds, and felony conspiracy to commit money
laundering. Specifically, he submits that the government did not present any evidence showing that
his involvement in each of these crimes met the threshold dollar amount for a felony charge. The
applicable monetary threshold amount for felony food-stamp fraud is $100, 7 U.S.C. § 2024(b)(1),

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for felony money laundering is $100, 18 U.S.C. § 1956(h)3, and for theft of public funds is $1,000.
18 U.S.C. § 641.

The government presented evidence showing that Geedi was the manager of both City Dollar
and Marwaas Market. He was responsible for the store’s day-to-day financial operations. Under his
management, City Dollar and Marwaas Market received over $3 million in food-stamp and WIC
redemptions. A witness testified that on a few occasions he saw Geedi exchange food-stamp and
WIC benefits for money. Witnesses also testified that Geedi would allow individuals to purchase
ineligible items with their benefits and that this kind of activity was a regular practice at the store.
Furthermore, City Dollar and Marwaas Market continually reported tax-exempt sales for amounts
that were lower than the amount they received for food stamp and WIC redemptions. Food-stamp
and WIC benefits are tax exempt. Therefore, the amount of money reported as tax exempt should
be equal to or greater than the amount received in redemptions. During the time that Geedi managed
the stores, the difference between the reported tax exempt sales and the total redemptions amounted
to $2,269,189.27.

A reasonable trier of fact could conclude that the difference between the two amounts reflects
the purchase of ineligible, taxable items with food-stamp and WIC benefits. Moreover, these
amounts are well in excess of the statutory thresholds for the offenses with which Geedi was

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Under 18 U.S.C. § 1956(h), the defendant is subject to the same penalties as those
prescribed for the offense that was the subject of the conspiracy.
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charged. Because there was evidence pointing to Geedi’s guilt, he has not shown that his convictions
constituted a miscarriage of justice.

B. Loss Calculation and Restitution

Next, Geedi challenges the district court’s loss calculation and order of restitution. Geedi
did not object to the loss calculation or the restitution order during sentencing and challenges these
portions of his sentence for the first time on appeal.

Ordinarily, when the district court, during sentencing, has offered a defendant a meaningful
opportunity to raise objections that have not previously been raised and the defendant does not
object, a plain-error standard of review applies. United States v. Vonner, 516 F.3d 382, 385. (6th
Cir. 2008) (en banc). However, according to United States v. Bostic, the rule “requir[es] district
courts, after pronouncing the defendant’s sentence but before adjourning the sentencing hearing, to
ask the parties whether they have any objections to the sentence just pronounced that have not been
previously raised.” 371 F.3d 865, 872 (6th Cir. 2004). If the court fails to invite objection in this
way, a challenge to the sentencing should be reviewed under an abuse-of-discretion standard. United
States v. Freeman, 640 F.3d 180, 186 (6th Cir. 2011). Under this standard, a district court’s legal
interpretations are reviewed de novo, but its factual findings will not be set aside unless they are
clearly erroneous. Id.

In the present case, after pronouncing the sentence, the judge asked “[a]re there any other
sentencing issues that I have not addressed?” This is insufficient to satisfy Bostic. See United States
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v. Batti, 631 F.3d 371, 379 n. 2 (6th Cir. 2011); United States v. Wettstain, 618 F.3d 577, 592-93 (6th
Cir. 2010). Therefore, we review Geedi’s factual challenges to his sentence for clear error.

1. Loss Calculation

The Sentencing Guidelines require that the district court make only a reasonable estimate of
monetary loss. U.S.S.G. § 2B1.1, cmt. n. 3(C); United States v. Triana, 468 F.3d 308, 320 (6th Cir.
2006) (stating that “[i]n situations where the losses occasioned by financial frauds are not easy to
quantify, the district court need only make a reasonable estimate of loss given the available
information”). “The sentencing judge is in a unique position to assess the evidence and estimate the
loss based upon that evidence. For this reason, the court’s loss determination is entitled to
appropriate deference.” U.S.S.G. § 2B1.1, cmt. n.3(C). Precision is not required of the district court.
Triana, 468 F.3d at 320.

Geedi argues that the district court erred when it calculated his offense level based on an
amount of loss that was not supported by the record. The district court was presented with two
estimations of loss. The court took into account the presentence report, which attributed to Geedi
$200,000 in misappropriated funds, and the testimony of an expert witness, who determined the
amount of loss to be much greater. The district court adopted the amount of loss as determined by
the presentence report. In doing so, it looked at the nature of the crime, finding that Geedi engaged
in a spectrum of violations–some minor and some more significant. The district court heard all the
information presented at trial and had already sentenced other individuals involved in the case.

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Thus, it was fully aware of all the evidence against Geedi. Geedi was the manager of both stores and
was also the one who signed the applications for the stores to be able to negotiate WIC vouchers and
food-stamp debit cards. The expert determined that, from approximately 2002 to 2006, the stores
illegally redeemed food-stamp and WIC benefits in excess of $2 million. Based upon this
information, the district court did not abuse its discretion by finding that Defendant’s amount of loss
was $200,000 for purposes of calculating his offense level.

2. Restitution

Geedi next argues that the district court failed to perform the proper analysis when it made
a determination about the amount of restitution he owed. The district court ordered that Geedi pay
restitution to the United States Department of Agriculture in the amount of $200,000.

Under the Mandatory Victim Restitution Act (MVRA),

Upon determination of the amount of restitution owed . . . the court shall, pursuant
to section 3572, specify in the restitution order the manner in which, and the schedule
according to which, the restitution is to be paid, in consideration of—

(A)

the financial resources and other assets of the defendant, including
whether any of these assets are jointly controlled;

(B)

projected earnings and other income of the defendant; and

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(C)

any financial obligations of the defendant; including obligations to
dependents.

18 U.S.C. § 3664(f)(2)(A)-(C). The district court is not required to make findings on the record
regarding a defendant’s ability to pay. United States v. Blanchard, 9 F.3d 22, 24-25 (6th Cir. 1993)
(in affirming a restitution order, noting that the sentencing court had acknowledged that it reviewed
the presentence report and without further explanation imposed an order of restitution). In the case
before us, the district court relied on the presentence report for the purpose of determining
restitution. Geedi never objected to this portion of the report. Because the presentence report
supported a restitution order of $200,000, the district court did not abuse its discretion in ordering
restitution in that amount.

Geedi further argues that the district court never specified how much his payments should
be or when they should be made. In United States v. Davis, we adopted the reasoning of the Third
Circuit in United States v. Coates, 178 F.3d 681 (3d Cir. 1999), which held that the district court
must satisfy the MVRA’s mandatory requirements under § 3664 by setting a payment schedule. 306
F.3d 398, 426 (6th Cir. 2002). Here, the district court stated that “[the Defendant] shall make
restitution to the United States Department of Agriculture in the amount of $200,000 a portion of
which will be severally and jointly due with other co-defendants in this case.” Because the district
court determined the amount of restitution owed, but has not specified the manner or schedule of
payment, we will remand to the district court with instructions to issue a schedule of payments.

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C. Ineffective Assistance of Counsel

Finally, Geedi presents the court with a claim for ineffective assistance of counsel based on
his attorney’s failure to object to the order of restitution and to the advisory Guidelines ranges
associated with the loss attributed to him. “Ordinarily, we will not review a claim of ineffective
assistance of counsel on direct appeal because the record is usually insufficient to permit such
review.” United States v. Wynn, 663 F.3d 847, 850 (6th Cir. 2011). An exception exists, however,
when the record is adequately developed to allow the court to properly assess the merits of the issue.
Id. (citation and internal quotation marks omitted). The record in this case has been fully developed
and additional fact-finding is unnecessary because Geedi is currently appealing the claim for which
he believed he had ineffective assistance of counsel; thus we will address Geedi’s ineffectiveassistance-of-counsel claim.

In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court set forth the test for
determining whether a defendant’s counsel provided ineffective assistance. Under Strickland, Geedi
must prove (1) that his counsel’s performance fell below an objective standard of reasonableness,
and (2) that this performance prejudiced the defendant’s case. Id. at 694. It is unnecessary to
address both components of the test if the defendant makes an insufficient showing on one. Id. at
697. To show prejudice, a petitioner must show that there is a reasonable probability that, but for
the errors of counsel, his sentence would have been different. Id. at 694.

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Geedi has not proven that he was prejudiced by his attorney’s performance. Geedi’s sentence
would not have been any different because, as we have addressed, his restitution and loss claims are
without merit. Geedi has not succeeded on his appeal and likewise would not have succeeded had
his attorney raised those claims during trial. Geedi’s ineffective-assistance-of-counsel claim fails.

III. CONCLUSION

For the foregoing reasons, we AFFIRM Geedi’s conviction and sentence, but REMAND
with instructions to issue a schedule of payment for restitution. We also DENY his ineffectiveassistance-of-counsel claim.

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