United States v. Zaman , 689 F. App'x 28 ( 2017 )

15-870-cr
United States of America v. Zaman
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
26th day of April, two thousand seventeen.
Present: GUIDO CALABRESI,
ROSEMARY S. POOLER,
RICHARD C. WESLEY,
Circuit Judges.
_____________________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. 15-870-cr
MAHABUBUZ ZAMAN, aka SEALED DEFENDANT 1,
aka FAISEL, aka FAISEL AHMED,
aka ZAMAN MAHABUB,1
Defendant-Appellant.
_____________________________________________________
Appearing for Appellant: Daniel DeMaria, Merchant Law Group, New York, NY.
Appearing for Appellee: Lisa P. Korologos, Assistant United States Attorney (Alexander
Wilson, Brian J. Blais, Assistant United States Attorneys, on the
brief), for Joon H. Kim, Acting United States Attorney for the
Southern District of New York, New York, NY.
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The Clerk of the Court is directed to amend the caption as above.
Appeal from the United States District Court for the Southern District of New York
(Nathan, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
Mahabubuz Zaman appeals from the March 16, 2015 judgment of conviction entered
against him in the United States District Court for the Southern District of New York (Nathan, J.)
sentencing him to 88 months’ incarceration, three years’ supervised release, and a $300
assessment. Zaman was also ordered to pay $2,638,700.30 in restitution, and the same amount in
forfeiture. We assume the parties’ familiarity with the underlying facts, procedural history, and
specification of issues for review.
Zaman was convicted, after jury trial, on one count of conspiracy to commit bank fraud
in violation of 18 U.S.C. § 1349, one count of conspiracy to commit identity fraud in violation of
18 U.S.C. § 1028(f), and one count of using a false passport in violation of 18 U.S.C. § 1543.
The charges flowed from a large-scale bank fraud and false identification documents conspiracy.
In broad strokes, the conspiracy created sham companies, opened bank accounts in the sham
companies’ names, created counterfeit checks to deposit in those accounts, and extracted cash
before the victim banks realized the transactions were fraudulent.
On appeal, Zaman argues that his sentence is procedurally unreasonable because the
district court improperly imposed a four-level enhancement for his role as a leader of the
criminal activity, and an eighteen-level enhancement based on the loss amount. “We review a
challenged sentence for reasonableness. This inquiry has both procedural and substantive
components.” United States v. Friedberg, 558 F.3d 131, 133 (2d Cir. 2009) (internal citation and
quotation marks omitted). “Procedural error occurs in situations where, for instance, the district
court miscalculates the Guidelines; treats them as mandatory; does not adequately explain the
sentence imposed; does not properly consider the § 3553(a) factors; bases its sentence on clearly
erroneous facts; or deviates from the Guidelines without explanation.” United States v. Cossey,
632 F.3d 82, 86 (2d Cir. 2011).
In deciding whether a defendant is a leader within the meaning of the sentencing
enhancement, the district court considers “the degree of discretion exercised by him, the nature
and degree of his participation in planning or organizing the offense, and the degree of control
and authority exercised over the other members of the conspiracy.” United States v. Beaulieau,
959 F.2d 375, 379-80 (2d Cir. 1992) (citation omitted). Here, Zaman argues that the district court
erred by failing to consider evidence that he believes to be exculpatory. We disagree. The district
court considered each of the factors above and found by a preponderance of the evidence that
Zaman played a key role in organizing any number of jobs undertaken by the conspiracy. There
is no error.
Zaman also argues that the district court erred in finding the entire loss amount was
foreseeable by him. “A district court's factual findings relating to loss must be established by a
preponderance of the evidence, and we review them for clear error.” United States v. Brennan,
395 F.3d 59, 74 (2d Cir. 2005) (citations and internal quotation marks omitted). A defendant who
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leads a criminal conspiracy is liable for all “reasonably foreseeable acts and omissions of others
in furtherance of the jointly undertaken criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B)(iii) (2014).
Thus, “[u]nder the relevant conduct principles of subsection 1B1.3(a)(1)(B), all reasonably
foreseeable acts . . . of others in furtherance of [a] conspiracy may be taken into account to
determine a defendant's sentence.” United States v. Molina, 106 F.3d 1118, 1121 (2d Cir. 1997)
(internal quotation marks omitted). The record here fully supports the district court’s finding
that Zaman was a leader of the conspiracy, and is thus liable for all losses caused by the
conspiracy. There is no error.
We have considered the remainder of Zaman’s arguments and find them to be without
merit. Accordingly, the order of the district court hereby is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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