United States v. Sherina Hosein , 581 F. App'x 199 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4622
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHERINA HOSEIN,
Defendant - Appellant.
No. 13-4646
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NAZIM HOSEIN,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:11-cr-00253-RJC-2; 3:11-cr-00253-RJC-1)
Submitted: July 29, 2014 Decided: August 6, 2014
Before SHEDD, AGEE, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Chiege O. Kalu Okwara, LAW OFFICE OF CHIEGE O. KALU OKWARA,
Charlotte, North Carolina; Randolph M. Lee, LAW OFFICE OF
RANDOLPH MARSHALL LEE, Charlotte, North Carolina, for
Appellants. Anne M. Tompkins, United States Attorney, William
M. Miller, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Following a jury trial, Nazim Hosein (“Nazim”) and his
wife, Sherina Hosein (“Sherina”) (collectively, “the Hoseins”),
were convicted of conspiracy to commit bank fraud, bank fraud,
and two counts of making a false statement to obtain a loan.
The Hoseins’ convictions stemmed from their multi-week endeavor
to fraudulently secure a credit card and several auto loans. On
appeal, the Hoseins challenge aspects of their sentences. We
affirm.
Generally, we review a sentence for reasonableness,
using “an abuse-of-discretion standard.” Gall v. United States,
552 U.S. 38, 51 (2007). We must first review for “significant
procedural error[s],” including, among other things, improperly
calculating the Guidelines range and failing to adequately
explain the chosen sentence. Id. Only if we find a sentence
procedurally reasonable may we consider its substantive
reasonableness. Id.First, Nazim questions whether the district court
adequately explained its consideration of United States
Sentencing Guidelines Manual (“USSG”) § 5D1.1(c) (2012) when
deciding to impose a term of supervised release. We reject
Nazim’s contention that he properly preserved this issue, and we
review for plain error. United States v. Maxwell, 285 F.3d 336,
339 (4th Cir. 2002) (noting standard of review); see also United
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States v. Dominguez-Alvarado, 695 F.3d 324, 327-28 (5th Cir.
2012) (applying plain error review to § 5D1.1(c) claim when
defendant only summarily objected to term of supervised
release).
Nazim’s suggestion that the district court’s
explanation of his sentence was insufficient overlooks the
court’s thorough examination of the 18 U.S.C. § 3553(a) (2012)
factors, Nazim’s personal characteristics, and the circumstances
of his offenses, all given immediately prior to the court’s
imposition of supervised release. Thus, there was no plain
error in the district court’s failure to elaborate further when
considering USSG § 5D1.1(c).
We are similarly unpersuaded by Sherina’s challenge to
her sentence. Sherina argues that the district court should
have granted her a reduction in her offense level under USSG
§ 3B1.2 (2012) because Nazim exerted control over her and
directed the couple’s fraud scheme. “In assessing a challenge
to a sentencing court’s application of the Guidelines, we review
the court’s factual findings for clear error and its legal
conclusions de novo.” United States v. Alvarado Perez, 609 F.3d
609, 612 (4th Cir. 2010) (internal quotation marks omitted).
Section 3B1.2 provides a downward adjustment for a
defendant who is “substantially less culpable than the average
participant.” USSG § 3B1.2 cmt. n.3(A). “[T]he critical
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inquiry for a sentencing court, in considering a § 3B1.2
adjustment, is not just whether the defendant has done fewer bad
acts than [her] codefendants, but whether the defendant’s
conduct is material or essential to committing the offense.”
United States v. Powell, 680 F.3d 350, 359 (4th Cir.) (internal
quotation marks omitted), cert. denied, 133 S. Ct. 376 (2012).
Thus, the court must “measure the defendant’s individual acts
and relative culpability against the elements of the offense of
conviction.” Id. (internal quotation marks omitted). Sherina
had the burden of showing by a preponderance of the evidence
that she played a minor role in the offense. Id. at 358-59.
Here, as the district court noted, Sherina’s presence,
signature, and affirmance of various misstatements on multiple
credit applications was essential to the Hoseins’ fraud. The
fact that Nazim was the instigator and directed Sherina’s
actions does not negate the fact that she was indispensable to
their repeated crimes. See United States v. Kerr, 13 F.3d 203,
206-07 (7th Cir. 1993). Accordingly, we find no clear error in
the district court’s refusal to grant Sherina the benefit of
§ 3B1.2. See Powell, 680 F.3d at 359. Sherina’s summary claim
that her within-Guidelines sentence is substantively
unreasonable also fails. United States v. Montes-Pineda, 445
F.3d 375, 379 (4th Cir. 2006).
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Accordingly, we affirm the district court’s judgments.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid in the decisional process.
AFFIRMED
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