United States v. Syed Madad ( 2014 )

FILED
NOT FOR PUBLICATION DEC 18 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50311
Plaintiff - Appellee, D.C. No. 2:12-cr-01048-PA-1
v.
MEMORANDUM*
SYED QAISAR MADAD,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Submitted December 11, 2014**
Pasadena, California
Before: SILVERMAN, BEA, and CHRISTEN, Circuit Judges.
Syed Madad appeals the sentence imposed following his convictions for
wire fraud under 18 U.S.C. § 1343 and tax fraud under 26 U.S.C. § 7206(1). We
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1
have jurisdiction under 28 U.S.C. § 1291, and we affirm.1
1. Madad argues the district court should not have applied a two-level
“sophisticated means” enhancement under U.S. Sentencing Guideline §
2B1.1(b)(10)(C). The commentary to Guideline § 2B1.1 explains that
“‘sophisticated means’ means especially complex or especially intricate offense
conduct pertaining to the execution or concealment of an offense.” U.S.S.G. §
2B1.1, cmt. 9(B). Madad generated detailed, fabricated account statements and
reports for several years; invented a non-existent IRS investigation to buy time to
satisfy an investor’s withdrawal request; and when other investors became
concerned, produced more fake documents purporting to show that their money
was safe in an account with UBS. Madad’s scheme was sufficiently complex to
support applying the sophisticated means enhancement. See, e.g., United States v.
Tanke, 743 F.3d 1296, 1307 (9th Cir. 2014) (affirming enhancement where
defendant attempted to cover up embezzlement by falsifying invoices and other
records to make payments appear legitimate); United States v. Horob, 735 F.3d
866, 872 (9th Cir. 2013) (affirming enhancement where defendant secured loans
using cattle he did not own and covered up scheme by manipulating people to lie
1
The parties are familiar with the facts, so we will not recount them
here.
2
for him, transferring funds between accounts, and fabricating numerous
documents).
2. Madad also argues the Guideline should be read to apply only to
telemarketing or similar schemes. We disagree. In the Telemarketing Fraud
Prevention Act of 1998, Congress directed the Commission to “provide an
additional appropriate sentencing enhancement if the offense involves
sophisticated means, including but not limited to, sophisticated concealment efforts
such as perpetrating the offense from outside the United States.” Pub. L. No. 105-
184, § 6(c)(2),112 Stat. 520 (1998). But the Sentencing Commission has
considerable discretion to adopt guidelines for federal offenses as long as they are
not inconsistent with congressional directives. United States v LaBonte, 520 U.S.
751, 757 (1997). The sophisticated means enhancement is not at odds with any
Congressional directive.
3. Finally, Madad argues Guideline § 2B1.1(b)(10)(C) is unconstitutionally
vague. Unless the First Amendment is implicated, we examine vagueness under
the circumstances of the case. United States v. Purdy, 264 F.3d 809, 811 (9th Cir.
2001). Because Madad’s scheme clearly qualifies as “sophisticated means” under
Guideline § 2B1.1(b)(10)(C), the Guideline provided sufficient notice that his
3
conduct could result in a sentencing enhancement. Guideline § 2B1.1(b)(10)(C) is
not vague as applied to Madad’s case.
AFFIRMED.
4