United States v. Tahzib, Nassim ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2481
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
NASSIM TAHZIB, also known as Sean Panahi,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 CR 932—John F. Grady, Judge.
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ARGUED DECEMBER 11, 2007—DECIDED JANUARY 17, 2008
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Before POSNER, WOOD, and EVANS, Circuit Judges.
EVANS, Circuit Judge. This is the kind of case that
could give car salesmen a bad name.
Nassim Tahzib, a luxury car salesman, embezzled
hundreds of thousands of dollars from his employer and
didn’t pay the tax man his share of the money. He also
had, at least he said he had, a gambling addiction. His
failure to pay taxes and his embezzlement eventually
led to guilty pleas to a two-count information (he waived
indictment) charging income tax evasion and wire fraud.
At sentencing, Tahzib sought a below-guidelines sen-
tence based on his claimed gambling addiction and other
personal characteristics. The district court rejected his
2 No. 07-2481
arguments and imposed concurrent terms of 30 months,
the low end of the advisory guidelines range. On appeal,
Tahzib argues, unconvincingly, that his 30-month sen-
tence is unreasonable.
Tahzib sold cars at MotorWerks, a luxury car dealer-
ship in Barrington, Illinois, from 1992 to 2001. In three
separate sales in 2001—one Jeep,1 one Mercedes, and one
Lexus—Tahzib asked the buyers to pay by transferring
money to an account he represented as belonging to
MotorWerks but which actually belonged to his wife.
Tahzib netted $143,967 from the three sales. Tahzib took
a less sophisticated approach in another 2001 sale of a
Mercedes when he asked the buyer to pay with a $50,000
cashier’s check payable to his wife. Tahzib also had used
his wife’s account in a 2000 consignment sale of a Porsche
for $176,600. On Tahzib’s instructions, the buyer wired
the purchase money to the account, and Tahzib trans-
ferred a portion to the seller. Tahzib kept the remainder,
about $140,000, but told the seller that he had used it to
pay off the seller’s loan from Porsche. Through these five
sales, Tahzib stole more than $300,000. These facts
underlie the wire fraud charge. See 18 U.S.C. § 1343. The
failure to pay taxes on the monies he received underlies
the income tax evasion charge. See 26 U.S.C. § 7201.
In his plea agreement, Tahzib admitted to other con-
duct relevant to the tax evasion charge: working under
an alias, being paid in his wife’s name, and asking his
employer not to withhold taxes from his wages after
falsely representing that he was making quarterly tax
payments. He stipulated that his failure to pay any
1
A Jeep, of course, is hardly a luxury car, but the other cars
Tahzib sold—Mercedes, Lexus, and Porsche–certainly qualify
for that label.
No. 07-2481 3
income tax for 2000 and his underpayment for 2001
resulted in a tax loss to the government of $144,531.
Additionally, Tahzib was originally hired by MotorWerks
under his brother’s name and social security number, he
did not file his own income tax returns from 1995 to 1999,
and the income tax that he did pay through his wife’s
returns was more than $150,000 less than what he actu-
ally owed. Also relevant is Tahzib’s prior California
conviction for grand theft, which the government ex-
plained at sentencing was based on embezzlement at a
different car dealership around 1991. According to the
government, Tahzib sought a lower sentence in that case
by pointing to his purported gambling addiction.
At sentencing, Tahzib did not contest the calculation of
his 30- to 37-month guidelines range. He argued for a
below-guidelines sentence based on the purported link
between his claimed gambling addiction and his criminal
conduct. According to Tahzib, he lost most of the embez-
zled funds in the stock market after his addiction “snow-
balled” from playing the casinos to “gambling” on stocks.
This addiction, he said, motivated him to embezzle from
his employer and not pay his taxes. The government
countered by questioning whether Tahzib was truly an
addict and pointing out that U.S.S.G. § 5H1.4 prohibits
a downward adjustment based on a gambling addiction.
Tahzib insisted, however, that he was not seeking an
adjustment but was pressing for a lower sentence based
on the factors in 18 U.S.C. § 3553(a). He explained that
shortly before sentencing he contacted a “gambling
counselor”—a marriage and family therapist with a
certification from the National Council on Problem
Gambling—who diagnosed his addiction and suggested
that Tahzib might also suffer from depression and
bipolar disorder as well. The counselor suggested that
Tahzib’s possible depression and bipolar disorder—neither
of which has ever actually been professionally diag-
4 No. 07-2481
nosed—began when Tahzib was a teenager and his father
died.
The district court was not convinced by Tahzib’s evid-
ence of his gambling addiction or by his claims that the
purported addiction was connected to his crimes. The
court noted that Tahzib claimed to have suffered from
the addiction for many years without committing any
crimes. The court also questioned the credibility of
Tahzib’s gambling expert, explaining:
I’m not at all convinced that the defendant has a
gambling problem sufficient to overcome his will not
to gamble. He said today, to quote him, “Why is it
that I have no control at certain times in my life.”
Well, the fact that he does have control at other
times in his life is certainly an indication to me that he
is not out of control on a permanent basis. His gam-
bling is selective and his decision to gamble or not to
gamble or to gamble excessively or not to gamble
excessively appears from the record to be something
that is within his volition. . . .
The fact that the stolen money was used for gam-
bling is, in my view, not a mitigating factor. . . . Now,
could it be a mitigating circumstance if the defend-
ant lacked control? Perhaps. But, as I say, I think
the record fails to reveal that this is the situation
here.
The judge also questioned Tahzib’s claims that his losses
from playing the stock market even constituted gambling.
Finally, the judge (veteran District Judge John F. Grady)
flatly rejected Tahzib’s attempts to connect his pur-
ported gambling addiction to the tax evasion charge:
There’s been no attempt here to explain half of the
case; namely, the tax evasion half in terms of any
addiction of any kind or any psychological problem.
No. 07-2481 5
I can’t recall a single case in all my years on the
bench where anybody has ever come before me on a
tax evasion case and said that I did it because I had
an emotional disturbance of some kind, and the
reason, of course, is that such an idea would be laugh-
able.
In the end, the judge concluded that there was not “suffi-
cient evidence of a gambling addiction in this case to
warrant my departing even if I were to choose to ignore”
§ 5H1.4.
The judge also rejected Tahzib’s other proposed bases
for a lower sentence under § 3553(a). In particular, the
judge questioned the link between the death of his
father when Tahzib was in his teens and the crimes he
committed more than 25 years later when he was in his
forties. The judge also rejected Tahzib’s tenuous claims
that he suffered from depression and bipolar disorder. The
important § 3553(a) factors, the judge determined, were
the need to promote respect for the law, deter similar
conduct by others, and provide just punishment. The
judge also expressed concern that basing a lower sen-
tence on a gambling addiction would create an unwar-
ranted disparity between Tahzib’s sentence and the
sentences of other defendants.
On appeal, Tahzib argues that his sentence is unrea-
sonable. We review a sentence for reasonableness in light
of the factors set forth in 18 U.S.C. § 3553(a). United
States v. Williams, 425 F.3d 478, 480 (7th Cir. 2005). A
sentence within the guidelines range is, of course, pre-
sumed to be reasonable. Rita v. United States, 127 S. Ct.
2456, 2465 (2007); United States v. Gama-Gonzalez, 469
F.3d 1109, 1110 (7th Cir. 2006).
Tahzib tries to overcome the presumption of reason-
ableness by arguing that the judge did not properly
consider all of his arguments in mitigation. Aside from the
6 No. 07-2481
gambling addiction, which the judge considered at length,
Tahzib lists eight purported mitigating factors that, he
contends, should have been considered. This is wrong. The
judge expressly rejected two of these arguments on the
record—Tahzib’s suspected psychiatric disorders and
his father’s death. The other “factors” are nothing
more than stock arguments that sentencing courts see
routinely: things like Tahzib’s family ties, how his crim-
inal history category over-represents the seriousness of
his prior conviction, and the extent to which he accepted
responsibility. They are the type of argument that a
sentencing court is certainly free to reject without dis-
cussion. United States v. Cunningham, 429 F.3d 673, 678
(7th Cir. 2005) (“[A]rguments clearly without merit can,
and for the sake of judicial economy should, be passed
over in silence.”). A court’s discussion need only demon-
strate its meaningful consideration of the § 3553(a) factors,
United States v. Laufle, 433 F.3d 981, 987 (7th Cir. 2006),
and the judge’s discussion in this case amply demon-
strates that he gave meaningful consideration to the
claims that merited comment.
Regarding the gambling addiction, Tahzib claims that
the judge improperly relied on U.S.S.G. § 5H1.4 when
he refused to impose a lower sentence. It is not clear
from the sentencing transcript whether the judge be-
lieved that after United States v. Booker, 543 U.S. 220(2005), he could consider a gambling addiction as a
mitigating factor under § 3553(a), even though before
Booker he could not have departed downward on that
basis. But it is clear here that the judge’s answer to the
question doesn’t matter because he was not even per-
suaded of Tahzib’s factual assertion that he truly suffers
from a gambling addiction. See United States v. Spano, 476
F.3d 476, 480 (7th Cir. 2007) (holding sentencing error
to be harmless). And Tahzib does not argue that this
finding is clearly erroneous, as he must to win reversal.
No. 07-2481 7
United States v. Stitman, 472 F.3d 983, 986 (7th Cir.
2007). He simply ignores that it was his burden to
prove the existence of a factor he presented in mitigation,
cf. United States v. Chavez-Chavez, 213 F.3d 420, 422 (7th
Cir. 2000) (noting, pre-Booker, that defendant bears
burden when seeking a downward departure), and that
he did not do so.
Thus, Tahzib fails to point to any procedural error
in calculating his sentence, and all that remains is a
naked claim that his sentence is unreasonable. He pres-
ents nothing that would overcome the presumption of
reasonableness that applies on appeal. If a below-guide-
lines sentence will almost never be unreasonable, United
States v. George, 403 F.3d 470, 473 (7th Cir. 2005), the
same must be true for the lowest possible within-guide-
lines sentence.
Because the district court imposed a reasonable sen-
tence, we AFFIRM.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-17-08