United States v. Sael Mustafa , 695 F.3d 860 ( 2012 )

United States Court of Appeals
For the Eighth Circuit
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No. 11-3556
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Sael Moh’d Tumah Mustafa
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: September 17, 2012
Filed: September 24, 2012
[Published]
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Before WOLLMAN, LOKEN, and MURPHY, Circuit Judges.
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PER CURIAM.
Sael Moh’d Tumah Mustafa pleaded guilty to aiding and abetting mail fraud,
in violation of 18 U.S.C. §§ 1341 and 2. The district court1 sentenced Mustafa to 120
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The Honorable Fernando J. Gaitan, Jr., Chief Judge of the United States
District Court for the Western District of Missouri.
months’ imprisonment. Mustafa appeals his sentence, arguing that the district court
erred by applying a preponderance of the evidence standard when determining
Mustafa’s relevant conduct for purposes of sentencing enhancements. We affirm.
I.
The government charged Mustafa for his participation in a scheme involving
the use of stolen credit card information to purchase gift cards from several
businesses. Mustafa pleaded guilty without a plea agreement, and the district court
ordered a presentence report (PSR). The PSR set Mustafa’s base offense level at 7
under United States Sentencing Guidelines (Guidelines) § 2B1.1(a)(1)2 and
recommended the following seven enhancements based on Mustafa’s relevant
conduct: 1) a fourteen-level enhancement under § 2B1.1(b)(1)(H) for a loss of more
than $400,000; 2) a six-level enhancement under § 2B1.1(b)(2)(C) because the loss
involved 250 or more victims; 3) a two-level enhancement under § 2B1.1(b)(9)(B)
because a substantial portion of the scheme was committed from outside the United
States; 4) a two-level enhancement under § 2B1.1(b)(10)(C)(i) for using means of
identification to unlawfully produce other means of identification; 5) a three-level
enhancement under § 3B1.1(b) because Mustafa was a manager or supervisor in the
scheme and the criminal activity involved five or more participants; 6) a two-level
enhancement under § 3B1.3 because Mustafa used a special skill in the commission
of the offense; and 7) a two-level enhancement under § 3B1.4 for using minors to
facilitate commission of the offense. Mustafa objected to these enhancements,
arguing that there was no factual basis to support them.
At the initial sentencing hearing in April 2011, the district court heard
testimony that Mustafa used a computer to gain administrative access to several
2
The Probation Officer used the 2009 version of the Guidelines in preparing the
PSR.
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business websites. As an administrator, Mustafa was able to download personal
information about the businesses’ customers. Mustafa used this personal information
to access the customers’ credit and debit card accounts. The government presented
evidence that Mustafa and other members of the scheme would then steal from the
customers’ accounts through wire transfers and the purchase of gift cards and airline
tickets. At the conclusion of the hearing, the district court reserved ruling on
Mustafa’s objections to the enhancements.
At a second sentencing hearing, the district court found that the PSR’s
enhancements were supported by a preponderance of the evidence presented at the
April 2011, hearing. The district court calculated Mustafa’s advisory Guidelines
range at 168 to 210 months’ imprisonment but varied downward and imposed a
sentence of 120 months’ imprisonment. Mustafa argues that the district court’s
calculation of the Guidelines was error because the district court should have required
the government to prove the facts enhancing Mustafa’s sentence by clear and
convincing evidence.
II.
We review the district court’s interpretation and application of the advisory
Guidelines de novo. United States v. Gayekpar, 678 F.3d 629, 639 (8th Cir. 2012).
In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court rendered the
Guidelines advisory. Since that time, we have repeatedly held that “due process
never requires applying more than a preponderance-of-the-evidence standard for
finding sentencing facts, even where the fact-finding has ‘an extremely
disproportionate impact on the defendant’s advisory guidelines [sentencing] range.’”
United States v. Lee, 625 F.3d 1030, 1034-35 (8th Cir. 2010) (quoting United States
v. Villareal-Amarillas, 562 F.3d 892, 898 (8th Cir. 2009)).
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Mustafa argues that because the uncharged relevant conduct used to enhance
his sentence could have been charged independently as other federal crimes, his case
is distinguishable from Lee, Villareal-Amarillas, and other similar cases. We have
rejected a similar argument before and again decline to draw such a distinction. See
United States v. McKanry, 628 F.3d 1010, 1020 (8th Cir. 2011) (district court did not
err by basing defendant’s loss calculation on fraudulent transactions for which
defendant was acquitted or not charged because a preponderance of the evidence
supported the conclusion that defendant had engaged in conduct furthering the
fraudulent transactions at issue). Mustafa is not being sentenced for crimes for which
he was not charged. As the Supreme Court explained, “sentencing enhancements do
not punish a defendant for crimes of which he was not convicted, but rather increase
his sentence because of the manner in which he committed the crime of conviction.”
United States v. Watts, 519 U.S. 148, 154 (1997).
III.
The sentence is affirmed.
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