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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-15220
Non-Argument Calendar
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D.C. Docket No. 1:18-cr-20279-JEM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALA SALMAN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(December 17, 2019)
Before MARTIN, NEWSOM and BLACK, Circuit Judges.
PER CURIAM:
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Ala Salman appeals his 51-month sentence for one count of wire fraud. He
raises four issues on appeal, which we address in turn. After review, we affirm
Salman’s sentence.
I. DISCUSSION
A. Substantial financial hardship enhancement
Salman asserts for the first time on appeal the district court erred by
applying the substantial financial hardship enhancement under U.S.S.G.
§ 2B1.1(b)(2)(A) because the Government failed to demonstrate that the victim’s
financial hardships were caused by him, rather than the economic downturn or the
owner’s mismanagement.
Section 2B1.1(b)(2)(A) provides for a two-level enhancement where the
offense resulted in substantial financial hardship to one or more victims. U.S.S.G.
§ 2B1.1(b)(2)(A). In relevant part, Application note 4(F) provides that courts shall
consider, among other factors, whether the offense resulted in the victim:
becoming insolvent; filing for bankruptcy; making substantial changes to his
employment, such as postponing his retirement plans; and suffering substantial
harm to his ability to obtain credit. United States v. Castaneda-Pozo,
877 F.3d
1249, 1252 (11th Cir. 2017); U.S.S.G. § 2B1.1, cmt. 4(F).
Salman consented to the substantial financial hardship enhancement at the
sentencing hearing, agreeing that three stores closing seems to satisfy substantial
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financial hardship. Therefore, Salman invited the district court’s error and has
waived appellate review. See United States v. Brannan,
562 F.3d 1300, 1306 (11th
Cir. 2009) (stating when a defendant expressly consents to or affirmatively seeks a
district court’s decision, he is deemed to have invited any error the court may have
made and waives appellate review).
Even if we review the claim, Salman must show plain error because he did
not object to the enhancement before the district court. See United States v.
Vandergrift,
754 F.3d 1303, 1307 (11th Cir. 2014) (stating when a defendant does
not object in the district court, we review only for plain error which requires the
defendant to show an error; that is plain; affects substantial rights; and seriously
affects the fairness, integrity, or public reputation of judicial proceedings).
Because there was evidence of substantial hardship, such as the closure of three
stores, a reduced line of credit, and having to float the company with personal
funds to avoid bankruptcy, the district court committed no error in imposing the
enhancement. Therefore, as Salman is unable to show any error, much less plain
error, we affirm the imposition of the substantial financial hardship enhancement.
B. Sophisticated means enhancement
Salman contends the district court clearly erred by applying the sophisticated
means enhancement under U.S.S.G. § 2B1.1(b)(10)(C) because his conduct was
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the minimum necessary to commit the charged crime, and the Government did not
offer sufficient proof to show he used sophisticated means.
Under § 2B1.1(b)(10)(C), a defendant’s offense level is enhanced by two
levels if the offense involved sophisticated means and the defendant intentionally
engaged in or caused the conduct constituting sophisticated means. U.S.S.G.
§ 2B1.1(b)(10)(C). “Sophisticated means” refers to “especially complex or
especially intricate offense conduct pertaining to the execution or concealment of
an offense.”
Id. comment. (n. 9(B)). Examples of sophisticated means listed in the
commentary include hiding assets or transactions, or both, using fictitious entities,
corporate shells, or offshore financial accounts.
Id. However, the application
notes do not limit the ways in which a defendant could use sophisticated means to
conceal his crime. See United States v. Clarke,
562 F.3d 1158, 1165 (11th Cir.
2009). In gauging sophistication, the court must examine the totality of the
defendant’s conduct, as there is no requirement that each of the defendant’s
individual actions be sophisticated. United States v. Ghertler,
605 F.3d 1256, 1267
(11th Cir. 2010). Use of repetitive, coordinated conduct to perpetuate and conceal
a fraud scheme supports a sophisticated means enhancement. United States v.
Bane,
720 F.3d 818, 826-27 (11th Cir. 2013). Further, the length of time for which
the conduct is not detected can reflect on the sophistication of the scheme. United
States v. Feaster,
798 F.3d 1374, 1381 (11th Cir. 2015).
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The undisputed facts in the PSI and factual proffer show Salman undertook
numerous schemes and repetitive conduct to make the transactions appear
legitimate, including setting up companies with the appearance of legitimacy,
transferring money between accounts, altering invoices, and consistently
withdrawing $200-$400 per day from ATMs to avoid detection. See United States
v. Beckles,
565 F.3d 832, 843 (11th Cir. 2009) (stating the district court may base
its factual findings on undisputed facts in the PSI). Furthermore, Salman
concealed this scheme for nearly six years. Therefore, the district court did not
clearly err in applying the sophisticated means enhancement under U.S.S.G.
§ 2B1.1(b)(10)(C). See United States v. Sosa,
777 F.3d 1279, 1300 (11th Cir.
2015) (reviewing for clear error a district court’s decision to impose a sophisticated
means enhancement).
C. Reasonableness
Salman asserts his 51-month sentence was substantively unreasonable
because the district court failed to apply any mitigating facts to the § 3553 factors,
such as his acceptance of responsibility, and only offered a blanket statement that
the § 3553 factors had been considered.
After considering procedural reasonableness, we consider the substantive
reasonableness of a sentence in light of the totality of the circumstances and the
§ 3553(a) factors. Gall v. United States,
552 U.S. 38, 51 (2007). A district court
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abuses its discretion by: (1) failing to consider relevant factors that were due
significant weight; (2) giving significant weight to an improper or irrelevant
factor; or (3) committing a clear error of judgment by balancing proper factors
unreasonably. United States v. Irey,
612 F.3d 1160, 1189 (11th Cir. 2010) (en
banc). We may vacate the sentence only if we are left with the definite and firm
conviction that the district court committed a clear error of judgment in weighing
the § 3553(a) factors to arrive at an unreasonable sentence based on the facts of the
case.
Id. at 1190. The district court must issue a sentence “sufficient, but not
greater than necessary” to comply with the purposes of § 3553(a)(2). 18 U.S.C.
§ 3553(a).
Salman’s 51-month sentence is substantively reasonable. See
Gall, 552 U.S.
at 41 (explaining when reviewing for reasonableness, we apply a deferential
abuse-of-discretion standard). The district court stated it considered the § 3553(a)
factors and the PSI, and it discussed many of the mitigating factors with the parties
during the objections. It specifically discussed Salman’s acceptance of
responsibility. The district court also noted its concern that Salman had an arrest
for a similar crime that was nolle prossed. Even so, the district court imposed a
sentence at the low end of the Guidelines range, which both Salman and the
Government requested, and which this Court would expect to be reasonable. See
United States v. Gonzalez,
550 F.3d 1319, 1324 (11th Cir. 2008) (stating we
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ordinarily expect a Guidelines range sentence to be reasonable, and the defendant
bears the burden of showing otherwise). Therefore, the district court had a
reasoned basis for exercising its legal decisionmaking authority. See United States
v. Livesay,
525 F.3d 1081, 1090 (11th Cir. 2008) (stating the district court need not
state explicitly on the record that it considered each of the § 3553(a) factors, but it
should set forth enough to satisfy the appellate court that it has a reasoned basis for
exercising its own legal decisionmaking authority). Accordingly, we affirm
Salman’s sentence.
D. Ineffective assistance of counsel
Salman contends his sentence was the result of ineffective assistance of
counsel because no competent attorney would have conceded to the substantial
financial hardship enhancement or failed to object to the sophisticated means
enhancement.
We generally do not consider claims of ineffective assistance of counsel on
direct appeal because the record is usually not sufficiently developed as to the
merits of those claims. United States v. Andrews,
953 F.2d 1312, 1327 (11th Cir.
1992). We will consider an ineffective assistance of counsel claim on direct appeal
where there is sufficient evidence on the record for us to do so.
Id. We conclude
there is sufficient evidence in the trial record for us to consider Salman’s claim.
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A showing of ineffective assistance of counsel requires a defendant to show
that counsel’s performance was deficient, and that deficient performance
prejudiced the defense. Strickland v. Washington,
466 U.S. 668, 687 (1984).
Salman cannot show deficient performance or prejudice. It was not objectively
unreasonable for Salman’s counsel to have determined the enhancements applied
given the facts of the case. First, as to the substantial financial hardship
enhancement, the evidence in the factual proffer was overwhelming. Second, as to
the sophisticated means enhancement, the Government objected to the
enhancement and the district court still decided to impose it. The record on direct
appeal supports that Salman’s counsel was not ineffective in conceding the
substantial financial hardship enhancement or in failing to object to the
sophisticated means enhancement.
II. CONCLUSION
The district court did not plainly err in enhancing Salman’s offense level for
causing substantial financial hardship under U.S.S.G. § 2B1.1(b)(2)(A), did not
clearly err by enhancing his offense level for using sophisticated means under
U.S.S.G. § 2B1.1(b)(10)(C), and did not impose an unreasonable sentence.
Finally, Salman’s argument his counsel was ineffective is without merit.
AFFIRMED.
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