United States v. Bokhari, Haider ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 05-1302 & 05-1303
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
HAIDER BOKHARI and
QASIM BOKHARI,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Eastern District of Wisconsin.
No. 04-CR-56—Rudolph T. Randa, Chief Judge.
____________
ARGUED SEPTEMBER 12, 2005—DECIDED DECEMBER 6, 2005
____________
Before POSNER, ROVNER, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Defendants Haider Bokhari
and Qasim Bokhari pled guilty to various counts of mail
fraud and money laundering arising out of their scheme to
defraud a federal government program that provides funds
to economically disadvantaged schools. In separate proceed-
ings, the district court sentenced each defendant to concur-
rent sentences of seventy-two months’ imprisonment for
money laundering and sixty months’ imprisonment for mail
fraud. The defendants appeal these sentences, claiming that
the district court erred in failing to make precise calcula-
tions of the total offense levels and corresponding sentenc-
ing ranges under the United States Sentencing Guidelines
2 Nos. 05-1302 & 05-1303
(“Guidelines”). We agree, and therefore vacate the sentences
and remand for resentencing.
I. BACKGROUND
Defendants were indicted for defrauding the federal
government’s E-Rate Program, which provides funding
for economically disadvantaged schools to obtain or upgrade
computer systems for students. The E-Rate Pro-
gram requires schools to solicit competitive bids for work
and submit the proposed contracts and certifications to
the federal government. The government then pays a
percentage of the cost directly to the contracted provider,
while the school pays the remainder, depending on the
school’s financial needs.
The defendants defrauded the federal government by
inducing school officials to contract with their company
in exchange for promises that the defendants would
waive any fees due to them from the schools. They also
promised certain schools free computers.1 In some in-
stances, the defendants fraudulently took over the school’s
role by submitting directly to the federal government forms
that inflated and disguised the amount and nature of the
contracts. The defendants ultimately convinced over
twenty-one schools in the Milwaukee and Chicago areas
to select their company for services. In total, they requested
over $16,000,000 from the E-Rate Program, and, although
they never performed any services for these monies, over
the course of their scheme, they actually received
$1,200,000. The bulk of these funds were laundered through
a series of bank accounts in Virginia and a significant
amount of the money eventually landed in Pakistan.
1
The parties do not contend that the schools knowingly par-
ticipated in the defendants’ fraudulent scheme.
Nos. 05-1302 & 05-1303 3
In October 2004, the defendants pled guilty to various
charges, including counts of mail fraud, money laundering,
and conspiracy. On January 28, 2005, shortly after the
Supreme Court’s decision in United States v. Booker, ___
U.S. ___, 125 S. Ct. 738 (2005), the defendants were
sentenced in separate proceedings to concurrent sen-
tences of seventy-two months’ imprisonment for money
laundering and sixty months for mail fraud,2 and three
years supervised release. They were also ordered to pay
over $1,200,000 in restitution.
The defendants now appeal their sentences.
II. ANALYSIS
This court reviews post-Booker criminal sentences for
unreasonableness. Booker, 125 S. Ct. 738. If the sentence
imposed falls within the properly calculated range pre-
scribed by the Guidelines, a rebuttable presumption of
reasonableness applies to that sentence. United States v.
Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). If the sentence
imposed falls outside of the applicable range, the district
court should explain the reasons for its departure from the
Guidelines’ now-advisory range. United States v. Dean, 414
F.3d 725, 727-28 (7th Cir. 2005). Thus, a crucial predicate
to our review for reasonableness is the district court’s
proper—and explicit—determination of the total offense
level and corresponding sentencing range under the
Guidelines. United States v. LaShay, 417 F.3d 715, 719 (7th
Cir. 2005).
2
The district court properly treated the Guidelines as advisory
post-Booker, but, as discussed infra, failed to appreciate the
full implications of Booker on the continuing requirements to
calculate properly the sentencing range under the Guidelines.
4 Nos. 05-1302 & 05-1303
Here, the district court did not calculate the total offense
level for either defendant with sufficient precision for this
court to conduct a proper review for reasonableness.
Specifically, both the pre-sentencing report (“PSR”) and the
government recommended a total offense level of 29 under
the Guidelines for each of the defendants. Based on the
defendants’ criminal history level of I, the sentenc-
ing guideline range for this offense level was 87 to 108
months. The defendants filed numerous objections to the
PSR, arguing, among other things, that the intended loss
was $1.2 million, rather than the $16 million-plus amount
recommended in the PSR. The defendants also objected
to the PSR’s recommendation for upward adjustments
due to “sophisticated means” and “role in offense” factors.
U.S.S.G. §§ 2S1.1(b)(3), 3B1.1 (2004). Therefore, at the
sentencing hearing, the defendants argued that the proper
total offense level was 19, or perhaps 21, rather than 29.3
According to their calculations, the recommended sen-
tencing guideline range was as low as 30 to 37 months.
The sentencing transcript reveals that the district
court did not definitely resolve the defendants’ objections to
the PSR, and therefore did not—and could not—calculate
the total offense level and corresponding sentencing range
with requisite specificity. Specifically, it is unclear whether
the district court granted or denied defendants’ objections
to the two-level enhancements for “sophisticated means”
and “role in offense.” In addition, although it appears that
the district court determined that the intended loss amount
3
The sentencing ranges for offense levels 19 through 29 (under
defendants’ Criminal History Category I) are as follows: level 19:
30-37 months; level 20: 33-41 months; level 21: 37-46 months;
level 22: 41-51 months; level 23: 46-57 months; level 24: 51-63
months; level 25: 57-71 months; level 26: 63-78 months; level 27:
70-87 months; level 28: 78-97 months; and level 29: 87-108
months.
Nos. 05-1302 & 05-1303 5
was $16 million, rather than $1.2 million, this factual
finding is also less than clear.
Instead, it appears that the district court judge arrived at
only an estimate of the total offense level, which he consid-
ered to be “around” level 26 or 27 for each of the defendants.
For instance, the district court judge stated the following
when sentencing Qasim Bokhari:
If one were to look at the Guidelines one would say,
well, there is a 29 range at this juncture. And if it
took into account considerations of ruling on the
objections, and giving you credit for the—for the
lack of a sophisticated laundering effort, the lack of
role in offense, the Court would still have you
somewhere in the 26 range in that type of analysis.
(R.118: 35:9-15) (emphasis added).
Simply put, the sentencing record here lacks sufficient
clarity for this court to determine how—or if—the district
court made final rulings on the defendants’ objections to the
PSR, much less the district court’s methodology and final
determinations pertaining to total offense level under the
Guidelines. This is not a mere academic exercise. Without
specific information pertaining to the district court’s
calculation of the total offense level, we cannot determine
whether the sentence falls within the Guidelines range (and
therefore is entitled to a presumption of reasonableness) or
whether it falls outside of the recommended range (and
therefore requires sufficient additional reasoning from the
district court).4 See Dean, 414 F.3d at 727-28. Nor can we
4
For instance, the interpretation of the district court’s statement
that the defendants’ total offense level was “somewhere in the 26
range” can affect our review. If the district court’s statement
reflects a finding that the total offense level was 26, then the
seventy-two months’ sentence imposed falls within the Guidelines
range, and is entitled to a presumption of reasonableness. If,
(continued...)
6 Nos. 05-1302 & 05-1303
determine where the sentence falls in relation to the upper
and lower bands within a particular recommended sentenc-
ing range. We need this information to review the sentences
for reasonableness and to consider whether any errors by
the district court were merely harmless error. See LaShay,
417 F.3d at 719.
The government argues that there is sufficient infor-
mation in the record for this court to calculate the appropri-
ate advisory sentencing range under the Guidelines. But
this argument misses the mark. We have repeatedly held
that it is the role of the district court—not this court—to
make the initial factual findings necessary to support a
sentencing calculation. United States v. Patel, 131 F.3d
1195, 1202 (7th Cir. 1997); United States v. Tai, 41 F.3d
1170, 1175 (7th Cir. 1994). We reiterate that
basic proposition.
Thus, the proper course here is to allow the district
court to make explicit and clear factual findings and
determinations pertaining to the intended loss amount, as
well as defendants’ other objections to the PSR. This
will allow a proper calculation of each defendant’s total
offense level and sentencing range under the Guidelines.
The district court may then resentence, providing, if
necessary, sufficient rationale for any deviation from the
recommended sentencing range under the Guidelines.
The remand ordered here moots the defendants’ claims
that the application of Booker violates the Due Process
clause and ex post facto principles. Although we need not
reach the merits of these claims, we note this court has
recently rejected them. See United States v. Jamison, 416
4
(...continued)
however, the statement reflects a finding that the total offense
level was 25, then the imposed sentence falls outside of prescribed
range, and is not entitled to presumptive reasonableness.
Nos. 05-1302 & 05-1303 7
F.3d 538, 539 (7th Cir. 2005); United States v. Paulus, 419
F.3d 693, 698 (7th Cir. 2005).
Finally, as we noted during oral argument, by asking that
we vacate their sentences under these circumstances, on
remand defendants here run the risk of exposing them-
selves to potentially higher sentences. See United States v.
Goldberg, 406 F.3d 891, 894-95 (7th Cir. 2005). But the
defendants’ counsel assured us during oral argument that
this is a risk that the defendants are willing to take, so the
defendants knowingly embark on this course.
III. CONCLUSION
For the foregoing reasons, we VACATE the defendants’
sentences and REMAND for resentencing in accordance with
this opinion.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-6-05