United States v. Rashid Minhas , 850 F.3d 873 ( 2017 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 15-3761 & 15-3763
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RASHID MINHAS,
Defendant-Appellant.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
Nos. 14 CR 731, 13 CR 919 — Gary Feinerman, Judge.
____________________
ARGUED OCTOBER 27, 2016 — DECIDED MARCH 10, 2017
____________________
Before WOOD, Chief Judge, and BAUER and MANION, Circuit
Judges.
WOOD, Chief Judge. Rashid Minhas used the Chicago-based
travel agencies he operated to swindle customers and airlines
out of hundreds of thousands of dollars. Minhas was con-
victed of wire and mail fraud in violation of 18 U.S.C. §§ 1341
and 1343 in two separate cases: one that proceeded to a bench
trial in February 2014, and one in which Minhas pleaded
2 Nos. 15-3761 & 15-3763
guilty in 2015. At a consolidated sentencing hearing, the dis-
trict court imposed two partially concurrent prison terms to-
taling 114 months. On appeal from the two judgments, Min-
has challenges the district court’s application of the Sentenc-
ing Guidelines’ enhancement for causing “substantial finan-
cial hardship” to the two sets of victims. U.S.S.G. § 2B1.1(b)(2).
Though we have seen stronger evidence, we are not con-
vinced that the district court committed clear error in its as-
sessment of the record, and so we affirm its judgment.
I
The first case (the “City Travel case”) arose from Minhas’s
operation of City Travel & Tours. In 2008 and 2009, Minhas
defrauded customers of City Travel and airlines through a
scheme in which he collected payment for airline reservations
that he canceled without his customers’ knowledge. By ma-
nipulating the two-tiered online ticket-reservation system,
Minhas was able to make reservations for customers paying
by cash or check, print paper tickets and itineraries, and then
cancel the reservations prior to the airlines’ receipt of payment
for the tickets. Because the customers had paper tickets in
hand, many were not aware the tickets were void until they
arrived at the airport. In some instances, customers were
forced to purchase last-minute replacement tickets or forego
their travel. In others, the airlines allowed the customers to
travel on the voided tickets and received no compensation.
All told, approximately 372 customers lost money through
the City Travel scheme: five lost more than $7,000 apiece, 14
lost over $5,000, and 172 lost more than $1,000.
Minhas was charged in an indictment in case 13 CR 919
with seven counts of wire and mail fraud for the City Travel
scheme. Undeterred by these charges, he swindled at least 50
Nos. 15-3761 & 15-3763 3
additional customers while he was on pretrial release; this
time, he used another of his travel agencies, Lightstar Hajj.
Lightstar Hajj held itself out as specializing in travel packages
to Saudi Arabia for the hajj (an Islamic pilgrimage to Mecca).
In fact, it could not sell a complete package, because it lacked
the ability to provide the necessary visas. Minhas sold over 50
of these fraudulent travel packages, for which he faced mail
fraud charges in case 14 CR 731. About 54 victims lost money
through the Lightstar Hajj scheme: 18 customers each lost
over $10,000, 30 lost more than $7,000, and 45 lost more than
$5,000. As we noted earlier, he was eventually convicted on
all counts in the City Travel case, and he pleaded guilty to one
count in the Lightstar Hajj case.
When the time came for sentencing, the two cases were
consolidated before Judge Feinerman. The probation office
prepared a total of five pre-sentencing reports: one in each of
the two cases prior to their consolidation, and three supple-
mental reports thereafter. The district court held a sentencing
hearing, at which it heard testimony from five victims: one
from the City Travel case, two from Lightstar Hajj, and two
from an uncharged fraud scheme. (Ten victims of the City
Travel case had testified at trial.) The government also pre-
sented charts listing the victims and their loss amounts. Ten
victims of the Lightstar Hajj case submitted impact letters to
the district court.
A key topic at the hearing was whether to apply the Guide-
lines enhancement for causing “substantial financial harm” to
victims—a provision that had gone into effect earlier that
month. U.S.S.G. § 2B1.1(b)(2). The court noted that it was fo-
cusing on the victims’ financial losses in both cases as losses
4 Nos. 15-3761 & 15-3763
to a savings or investment fund, a factor Application Note
4(F)(iii) to the Guidelines directs courts to consider.
In the City Travel case, the district judge agreed with Min-
has that the term “substantial” was relative to a victim. It rea-
soned that dollar losses in the mid-four figures would repre-
sent a substantial loss to a person of modest economic circum-
stances. It then inferred that Minhas’s victims fit this economic
profile: they were “working” people “of modest means” who
were “not rich.” In characterizing the victims this way, the dis-
trict court explained that it was extrapolating from the evi-
dence before it (i.e., the testimony at trial and sentencing and
from victim impact letters) and applying those characteristics
to the group. The court then looked to a chart displaying the
dollar losses for each victim and found at least 16 losses over
$3000. Noting that it believed that losses below $2000 could
still be substantial, as this was “a lot of money for a working
person,” the court “err[ed] on the side of caution” and ex-
cluded from its tally victims who lost less than $2000. It ulti-
mately applied the § 2B1.1(b)(2)(B) four-level increase in the
in the City Travel case, finding that between five and 25 vic-
tims suffered a substantial financial hardship as a result of
Minhas’s fraud.
Similarly, in the Lightstar Hajj case, the district court relied
on victim-impact letters and sentencing testimony to general-
ize about the group of victims, finding that they tended to
save for years, that many were not able to make the Hajj be-
cause of Minhas’s fraud, and that it could also take years to
recover the amounts of money they lost. The court then con-
sulted the loss chart and counted at least 32 victims with dol-
lar losses above the mid-four figures. It applied a six-level en-
hancement pursuant to § 2B1.1(b)(2)(C), finding that the fraud
Nos. 15-3761 & 15-3763 5
resulted in substantial financial hardship to more than 25 vic-
tims.
II
Minhas argues that the district court incorrectly applied
the § 2B1.1(b)(2) enhancement in both cases by relying on in-
sufficient evidence, extrapolating from the evidence it did
have, and aggregating the victims’ economic characteristics.
Minhas contends that in order to apply the enhancement, the
district court should have made individualized determina-
tions and identified the factual basis underlying the finding
of substantial financial hardship to each victim. Because Min-
has objected to the enhancement in each case at sentencing,
we review for clear error the district court’s factual determi-
nations, and we consider de novo the appropriateness of the
enhancement. United States v. Harris, 791 F.3d 772, 780 (7th Cir.
2015).
The Sentencing Guidelines provide for increased offense
levels for crimes such as fraud that “result[] in substantial fi-
nancial hardship” to victims. § 2B1.1(b)(2)(A)–(C). In addition
to the text of the Guidelines, a court must also consider the
Application Notes, which “are considered part of the Guide-
lines and not mere commentary on them.” United States v. Rog-
ers, 777 F.3d 934, 936 (7th Cir. 2015). Application Note 4 spec-
ifies that when determining whether an offense resulted in
substantial financial hardship, a court “shall consider, among
other factors,” whether as the result of an offense a victim be-
came insolvent; filed for bankruptcy; suffered a substantial
loss of a retirement, education, or other savings or investment
fund; made substantial changes to employment or living ar-
rangements; or suffered substantial harm to the ability to ob-
tain credit. § 2B1.1 cmt. n.4.
6 Nos. 15-3761 & 15-3763
The enhancement for causing “substantial financial hard-
ship” came into effect on November 1, 2015, as a result of
amendments designed to “place greater emphasis on the ex-
tent of harm that particular victims suffer as a result of the
offense.” Sentencing Guidelines for United States Courts, 80
FR 25782-01 (May 5, 2015). Previously, § 2B1.1(b)(2) had pro-
vided for an enhancement for offenses that involved total
numbers of victims over certain thresholds, or that were com-
mitted by the use of mass marketing, but it did not include
any provision for whether the offense caused victims substan-
tial financial hardship. See U.S.S.G. § 2B1.1(b)(2) (Nov. 2014).
The effect of the 2015 amendment is to require the district
courts, when they apply § 2B1.1(b)(2), to go beyond simply
tallying the total number of victims (or deciding whether
mass marketing was used), and to evaluate the substantiality
of the financial hardship those victims suffered.
Because the amendments are relatively new, we have not
yet had occasion to weigh in on the district courts’ interpreta-
tion and application of the “substantial financial hardship”
provision. The 2015 amendment to § 2B1.1(b)(2) introduces a
measure of relativity into the inquiry. That is, whether a loss
has resulted in a substantial hardship (or substantial loss to a
savings account as in this case) will, in most cases, be gauged
relative to each victim. The same dollar harm to one victim
may result in a substantial financial hardship, while for an-
other it may be only a minor hiccup. Much of this will turn on
a victim’s financial circumstances, as the district court recog-
nized when it noted that “[a] loss that may not be substantial
to Bill Gates may be substantial to a working person.”
Nos. 15-3761 & 15-3763 7
We recognize that reasonable people may disagree about
the substantiality of a loss in a particular instance. The inclu-
sion of the word “substantial” implies that the loss or hard-
ship must be significant, meaning at least more than minimal
or trivial. But between a minimal loss or hardship (occurring,
perhaps, when a defendant fraudulently obtains five dollars
a victim had intended to donate to a charity), and a devastat-
ing loss (occurring in the wake of a scheme to wipe out a vic-
tim’s life savings), there lies a wide range in which we rely
upon the judgment of the district courts, guided by the non-
exhaustive list of factors in Application Note 4. In the end, this
is just one more determination of a fact that bears on the ulti-
mate sentence; that determination is entitled to the normal
deference that applies to all facts found at sentencing. See, e.g.,
United States v. Parolin, 239 F.3d 922, 926 (7th Cir. 2001) (“De-
termining whether a defendant’s victims were ‘unusually vul-
nerable’ is a question of fact that is reversible only for clear
error.”).
Minhas urges that the district court committed clear error
when it chose to consider the victims as a group rather than
individually. In some instances, that would indeed pose a
problem. It would be clear error for a district judge, for exam-
ple, merely to divide a total loss amount by the number of
victims without any information about the amount each indi-
vidual victim suffered or the victim’s financial circumstances.
But that is not what happened here. This district judge care-
fully consulted a chart that listed each victim’s individual
losses. Inferring that each person was of modest economic cir-
cumstances, the judge then reasoned that losses above a cer-
tain threshold to each one were substantial.
8 Nos. 15-3761 & 15-3763
A district court may draw reasonable inferences from the
record. United States v. Melendez, 819 F.3d 1006, 1011 (7th Cir.
2016). Making an inference about an individual victim by vir-
tue of his membership in a particular group is not necessarily
problematic, so long as a district court has reason to believe
that the victims are in similar economic circumstances. The
question here is thus whether the court had sufficient evi-
dence from which to infer that the victims were in similar eco-
nomic positions.
In making its factual findings, a district court may draw
conclusions from the testimony and evidence introduced at
sentencing. United States v. Halliday, 672 F.3d 462, 475 (7th Cir.
2012). In the City Travel case, the district court indicated that
he was doing just that, as he considered the evidence about
Minhas’s customer base. That evidence revealed that they
were not rich and that they were looking for discounted tick-
ets in a Pakistani-American newspaper. The court also indi-
cated in the City Travel case that he was relying on the testi-
mony of victims at sentencing and at trial, and on the submit-
ted victim impact statements. These people reported saving
for long times for their trips. In the Lightstar Hajj case, the
court indicated it was relying on evidence from impact state-
ments and testimony that victims had saved for long periods
to go on the hajj, or that they had spent their life savings to do
so.
While Minhas notes that much of the testimony was “con-
clusory” and lacked “verifiable facts,” the evidentiary stand-
ards at sentencing are more relaxed than at trial, United States
v. Harmon, 721 F.3d 877, 888 (7th Cir. 2013), and the district
court is entitled to make credibility determinations about the
witnesses and testimony presented. United States v. Smith, 308
Nos. 15-3761 & 15-3763 9
F.3d 726, 746 (7th Cir. 2002). “[W]e require only that the infor-
mation considered has sufficient indicia of reliability to sup-
port its probable accuracy.” United States v. Statham, 581 F.3d
548, 553 (7th Cir. 2009).
In addition to numerous victims who testified about the
amounts of time that it took them to save enough money for
their trip, another victim who testified at sentencing indicated
that he and others were from the same neighborhood, and
that Minhas “took money from the poor people, hard-work-
ing people like [the victim].” The district court was familiar
with victims who testified at trial and knew that Minhas’s
schemes tended to target those looking for discounted travel.
And while looking for discounted travel alone does not imply
that a person is not rich, it is at least some evidence that he or
she is not so wealthy as to be purchasing luxury airfare or
travel packages. One can imagine stronger evidence showing
that the victims shared similar economic circumstances. But
that does not mean that the district court erred by relying on
what was in front of it when it concluded that it was more
likely than not that the necessary number of victims in each
case suffered a substantial financial hardship.
It is also worth noting that the district court understood
that, at least in the Lightstar Hajj case, the harm was not just
the loss of money, but was also a spiritual injury inflicted
when it became impossible for the victim to make the hajj. The
hajj is an annual pilgrimage to Islam’s holiest site, Mecca, and
making it is a religious duty to be performed at least once in
a lifetime by every able-bodied Muslim who can afford the
trip. See The Religion of Islam, The Fifth Pillar of Islam: The
Pilgrimage (Hajj), at https://www.islamreligion.com/arti-
cles/184/fifth-pillar-of-islam/ (last visited Mar. 10, 2017); see
10 Nos. 15-3761 & 15-3763
also Diaa Hadid, What Muslims Do on Hajj, and Why, The New
York Times (Sep. 8, 2016), https://www.nytimes.com/2016/
09/09/world/middleeast/hajj-muslim-pilgrimage-mecca.html.
(Those who have made the pilgrimage are often given the title
“Hajji”, a term of respect.) While being deprived of this op-
portunity (for a year at the very least) may not constitute a
financial loss in the traditional sense of losing dollars from a
bank account, it is a significant alteration in life circum-
stances, as are many of the factors pertinent to interpreting
“substantial financial hardship” that can be found in a non-
exhaustive list in Application Note 4(F), such as making
changes to employment or retirement plans or altering one’s
housing situation. The existence of this loss reinforces the dis-
trict court’s ultimate choice of sentence.
Minhas further argues that the district court ought to have
identified which of the particular victims it was including in
its calculation, rather than concluding that at least a certain
number of those on the list met the threshold. While listing
each individual victim he was including to meet each thresh-
old would have been helpful, it is not an end in itself. We look
at the record as a whole, and in this case it is adequate.
III
We are bolstered in our decision to affirm Minhas’s sen-
tence because we are convinced that any error that may have
crept into the sentencing proceeding was harmless. Though a
district court must seriously consider and carefully apply the
Sentencing Guidelines, they are, in the end, only guidelines;
sentencing is the responsibility of the district judge after care-
ful consideration of the § 3553(a) factors. United States v. Lopez,
634 F.3d 948, 953–54 (7th Cir. 2011). Procedural errors do not
warrant remand when we are convinced that returning the
Nos. 15-3761 & 15-3763 11
case to the district court would result in the same sentence.
United States v. Abbas, 560 F.3d 660, 667 (7th Cir. 2009). We
acknowledge that “[a] finding of harmless error is only appro-
priate when the government has proved that the district
court’s sentencing error did not affect the defendant’s substan-
tial rights (here—liberty).” Id. Nonetheless, “[a]n error in cal-
culating the Guideline range can still be harmless where the
district judge makes clear that the sentence would have been
the same absent the error.” United States v. Tate, 822 F.3d 370,
377 (7th Cir. 2016). We have suggested that when a district
court faces a “tricky but technical issue” under the Guide-
lines, it should exercise its discretion under § 3553(a) and
United States v. Booker, 543 U.S. 220 (2005) and spell out
whether the resolution of the guideline issue matters or af-
fects the final decision on the sentence. Lopez, 634 F.3d at 954.
The district court was aware that it could let the parties
and the reviewing court know whether it would have given
Minhas the same sentence if it had agreed with him on the
guidelines issue. While the judge’s initial statement was some-
what inconclusive—he began by stating “I can’t say that I
would have imposed the same 9-1/2 year sentence … ”(em-
phasis added)—he then discussed the seriousness of the of-
fense and aggravating factors. He noted that he “would have
imposed sentences at the upper end of those Guideline ranges
[proposed by Minhas]” and that he “would have made less of
[the sentence] concurrent and more of it consecutive.” This
suggests to us that perhaps the judge simply misspoke when
he said “can’t” instead of “can.”
In any event, the court finally concluded, “[t]his is a seri-
ous crime, and as I said, taking into account everything and
even putting aside the technical calculation of the Guidelines
12 Nos. 15-3761 & 15-3763
range, I don’t think anything less than 9-1/2 years would be
sufficient to fulfill the purposes of 3553(a).” This is a firm
statement that after all was said and done, the court thought
that a 9-1/2 year sentence was the correct one for Minhas. That
is what the court ordered, and any error buried in the weeds
of the Guidelines was thus harmless.
The judgments of the district court are AFFIRMED.