United States v. Miriam Zughbi ( 2023 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 21-1934
_____________
UNITED STATES OF AMERICA
v.
MIRIAM ZUGHBI
Appellant
______________
On Appeal from United States District Court
for the District of New Jersey
No. 3-19-cr-00257-001
District Court Judge: Honorable Anne E. Thompson
______________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) on
March 1, 2022
Before: McKEE, AMBRO, and SMITH, Circuit Judges
(Opinion filed: May 3, 2023)
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OPINION
_______________________
McKEE, Circuit Judge.

Judge McKee assumed senior status on October 21, 2022.

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Miriam Zughbi appeals the order of restitution imposed after she pled guilty to
conspiring to defraud the Supplemental Nutrition Assistance Program. For the following
reasons, we will affirm the District Court.
Zughbi stipulated that the conspiracy caused a loss between $3.5 million and $9.5
million. The Probation Office accepted this stipulation, and recommended restitution of
approximately 4.6 million. Zugbhi did not timely object.1 However, during the sentencing
proceeding, Zughbi’s attorney stated:
I know your Honor has already made a ruling on the restitution amount . . .
[,] but . . . the $4.6 million is the total amount of money that was run through
the business in the period that we’re discussing. Many, many, many of those
transactions were legitimate transactions.2
Nevertheless, the Court then ordered Zughbi to pay restitution in the amount of
$4,663,760.30. This appeal followed.3
The Mandatory Victim Restitution Act requires a court to “order restitution to
each victim in the full amount of each victim’s losses as determined by the court and
without consideration of the economic circumstances of the defendant.”4 The District
Court's factual finding regarding the amount of loss is reviewed for clear error.5 To
establish clear error, Zughbi must show “that the [$4,663,760.30] restitution figure is
1
Zughbi had 14 days to object to the draft PSR. See Fed. R. Crim. P. 32(f)(1).
2
App. 35.
3
We have jurisdiction pursuant to 18 U.S.C. § 3742. We apply an abuse of discretion
standard as to the appropriateness of a particular restitution award. United States v.
Himler, 355 F.3d 735, 744 (3d Cir. 2004).
4
18 U.S.C. § 3664(f)(1)(A).
5
United States v. Akande, 200 F.3d 136, 138 (3d Cir.1999).
2
‘completely devoid of a credible evidentiary basis or bears no rational relationship to the
supporting data.’”6
Zughbi fails to meet this heavy burden. She stipulated to a loss of between $3.5
million and $9.5 million, and the Presentence Report explained the assumptions and
methodology it used to calculate loss. The restitution amount is clearly not completely
devoid of a credible evidentiary basis.7
For the reasons set forth, we will affirm the District Court’s order of restitution.
6
United States v. Vitillo, 490 F.3d 314, 330 (3d Cir. 2007) (citing United States v. Haut,
107 F.3d 213, 218 (3d. Cir. 1997)).
7
A District Court may rely on a factual statement in a PSR at sentencing, absent a timely
and substantial objection from one of the parties. See United States v. May, 413 F.3d 841,
848-49 (8th Cir. 2005) (“Together, Rules 32(f)(1) and 32(i)(3)(A) establish that an
untimely objection to a fact in the presentence report does not change the fact's
‘undisputed’ status, and the district court may adopt the fact without additional
evidence”); United States v. Cyr, 337 F.3d 96 (1st Cir. 2003) (reasoning that “[t]he
defendant is free to challenge any assertions in the PSR with countervailing evidence or
proffers, in which case the district court is obliged to resolve any genuine and material
dispute on the merits. But if the defendant's objections to the PSR are merely rhetorical
and unsupported by countervailing proof, the district court is entitled to rely on the facts
in the PSR.”); accord United States v. Cothran, 302 F.3d 279, 286 (5th Cir.
2002); United States v. Willis, 300 F.3d 803, 807 (7th Cir. 2002); United States v.
Love, 134 F.3d 595, 606 (4th Cir. 1998).
The District Court had discretion to entertain Zughbi’s belated challenge to the PSR, see
Fed. R. Crim. P. 32(i)(1)(D), based on her argument that although the loss was $4.6
million, this is because it included “every single transaction,” including valid and legal
ones. App. 37. However, the “court’s use of $50 as a general point of reference for likely
fraudulent transactions, even if not based on precise data,” was reasonably calculated as it
was based on “the average dollar amount of food stamp redemptions” at small grocery
stores in Passaic County, and “the witness’ observations of the size, inventory, and setup
of [Zughbi’s] store.” United States v. Uddin, 551 F.3d 176, 180 (2d Cir. 2009).
3