United States v. Andrew Persaud ( 2019 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 17-3821
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UNITED STATES OF AMERICA
v.
ANDREW PERSAUD,
Appellant
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Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal Action No. 1-15-cr-00236-001)
District Judge: Honorable Sylvia H. Rambo
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Submitted under Third Circuit LAR 34.1(a)
on July 12, 2018
Before: SHWARTZ, ROTH and RENDELL, Circuit Judges
(Opinion filed: May 8, 2019)
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OPINION
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ROTH, Circuit Judge.
In February 2016, Andrew Persaud pled guilty to one count of making false
statements, in violation of 18 U.S.C. § 1001(a). At sentencing, the District Court

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
imposed a below-Guidelines sentence of 21 months’ imprisonment and ordered Persaud
to pay $1.2 million in restitution. We will affirm the judgment of sentence.
I.
From 1996 until 2013, Persaud was the owner and president of Persaud
Companies, Inc. (PCI), a construction company based in Virginia and Maryland. While
operating PCI, Persaud engaged in two separate fraudulent schemes, which ultimately led
to separate federal sentences. Persaud now appeals the second sentence.
The first scheme took place in the Eastern District of Virginia in mid-to-late 2012.
Seeking an increase in PCI’s existing line of credit from the Bank of Georgetown,
Persaud instructed his employees to provide the Bank with materially false invoices that
overstated PCI’s accounts receivable. Persaud later secured additional funds from PCI’s
line of credit by signing and submitting a materially false certification to the Bank. In
March 2013, federal prosecutors in the Eastern District of Virginia charged Persaud with
bank fraud and falsification of records in a federal investigation. Persaud pled guilty to
the charges. In June 2013, the District Court sentenced Persaud to a below-Guidelines
sentence of 24 months’ imprisonment. Upon completion of his sentence in June 2015,
Persaud was released from federal custody.
The second scheme took place in mid-2012 in the Middle District of Pennsylvania.
In September 2011, PCI entered into a $4.4 million contact with the U.S. Navy to serve
as general contractor for a construction project at the Naval Support Activity facility in
Mechanicsburg, Pennsylvania. The project involved numerous subcontractors. In June
and July 2012, Persaud submitted three materially false certifications to the Navy in
2
connection with the project. In the certifications Persaud attested that he had paid the
subcontractors with the money he had received from the Navy and that future payments
made by the Navy would be used for that same purpose. In reliance on those
certifications, the Navy paid Persaud more than $1.2 million between June and August
2012. The certifications were false. By September 2012, most of the subcontractors had
walked off the jobsite because they had not been paid by PCI for their work. The
subcontractors were eventually compensated for their work by an insurer, Great
American Insurance Company (GAIG).1
On October 14, 2015, a grand jury in the Middle District of Pennsylvania charged
Persaud with three counts of wire fraud and three counts of making false statements,
stemming from the false certifications he provided to the Navy. In February 2016,
Persaud pled guilty to a single count of making false statements, in violation of 18 U.S.C.
§ 1001(a).2 The U.S. Probation Office determined that Persaud’s advisory Guidelines
range was 33-to-41 months’ imprisonment. At sentencing, the District Court adopted that
Guidelines calculation without objection from either party. Persaud then asked for a
downward variance on the ground that he might have been subject to a lesser aggregate
sentence—or perhaps a concurrent sentence—if the instant charges and the charges at
issue in the Virginia prosecution had been brought at the same time. Apparently
persuaded by this argument, the District Court varied downward from the Guidelines by
12 months and sentenced Persaud to 21 months’ imprisonment. In addition, the court
1
GAIG is the issuer of a materials/labor bond that Persaud was required to secure under
the terms of PCI’s contract with the Navy.
2
The government consented to dismissal of the remaining charges.
3
ordered Persaud to pay GAIG $1.2 million in restitution.3 After the District Court
announced and imposed its sentence, Persaud did not object to the reasonableness of the
sentence or the requirement that he pay restitution. Persaud now appeals.4
II.5
On appeal, Persaud challenges the validity of his sentence and corresponding
restitution obligation. Persaud’s arguments are meritless.
Persaud first argues that the 21-month sentence imposed by the District Court was
procedurally unreasonable because the court failed to adequately address the sentencing
factors, set out in 18 U.S.C. § 3553(a), when imposing sentence. Because Persaud failed
to raise this procedural objection at sentencing, we review it for plain error.6 Our review
convinces us that the District Court did not commit a plain procedural error. The court
considered the § 3553(a) factors, explained its rationale for the sentence it imposed, and
addressed the primary argument Persaud raised at sentencing and in his sentencing
3
Without supporting evidence, Persaud contends that GIAG obtained an $800,000 civil
judgment against him at some point after he perpetrated the fraudulent scheme involving
the Mechanicsburg Navy project.
4
Persaud’s counsel at the time did not file a direct appeal. After sentencing, Persaud
obtained new counsel and moved to vacate the sentence under 28 U.S.C. § 2255, arguing
that sentencing counsel provided constitutionally deficient assistance by failing to file a
direct appeal. After conducting an evidentiary hearing, the District Court agreed with
Persaud that counsel had been ineffective. As a result, the court vacated the initial
judgment of sentence, and then re-imposed the same sentence so that replacement
counsel could file a direct appeal.
5
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 28 U.S.C. § 1291 and § 3742(a).
6
United States v. Flores-Mejia, 759 F.3d 253, 258 (3d Cir. 2014) (en banc).
4
memorandum.7 We thus conclude that Persaud’s 21-month sentence was procedurally
sound.
Next, Persaud argues that the District Court’s sentence was substantively
unreasonable because his below-Guidelines sentence violated the parsimony provision,
18 U.S.C. § 3553(a), which requires the court to “impose a sentence sufficient, but not
greater than necessary” to comply with the purposes of sentencing. However, if a
sentence is procedurally sound, as here, “we will affirm it unless no reasonable
sentencing court would have imposed the same sentence on that particular defendant for
the reasons the district court provided.”8 Persaud has not made such a showing. We
therefore reject his substantive challenge to his sentence.
Finally, Persaud contends that, because GAIG already has an outstanding
$800,000 civil judgment against him, the requirement that he pay GAIG $1.2 million in
restitution constitutes an impermissible double penalty. We review the District Court’s
restitution order for plain error because Persaud did not challenge the imposition of
restitution at sentencing.9 However, Persaud has not presented any evidence establishing
that GAIG actually has an outstanding civil judgment against him. Nor has he shown that
he has made any payments toward that purported judgment that could be used to offset
7
See United States v. Dragon, 471 F.3d 501, 505 (3d Cir. 2006) (a plain sentencing
error is one that “is ‘clear’ or ‘obvious’” and that “‘affected the outcome of the district
court proceedings’” (quoting United States v. Olano, 507 U.S. 725, 732-34 (1993))).
8
United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc) (“[T]he party
challenging the sentence has the burden of demonstrating unreasonableness.”).
9
See, e.g., United States v. Gillette, 738 F.3d 63, 80 (3d Cir. 2013); United States v.
Hawes, 523 F.3d 245, 255 (3d Cir. 2008).
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his restitution obligation.10 If there is in fact such a judgment and if GAIC collects on it,
Persaud will be entitled to move the district court for a credit or offset to his restitution
obligations.11 Accordingly, Persaud has not established that his restitution obligation
constitutes an impermissible double penalty or that he is entitled to the remedy he seeks.
III.
For the above reasons, we will affirm the District Court’s judgment of sentence.
10
See 18 U.S.C. § 3664(j)(2) (“Any amount paid to a victim under an order of
restitution shall be reduced by any amount later recovered as compensatory damages for
the same loss by the victim [in any State or federal proceeding.]” (emphasis added)); Doe
v. Hesketh, 828 F.3d 159, 169 n. 10 (3d Cir. 2016) (explaining that § 3664(j)(2) “ensures
that any duplicative recovery . . . does not violate the . . . principle against double
recovery”).
11
United States v. Yalincak, 853 F.3d 629, 637 (2d Cir. 2017) (emphasis added) (citing
cases); see 18 U.S.C. § 3664(j)(2).
6