United States v. Tony Jarjis

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0064n.06
No. 13-1430
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jan 24, 2014
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
TONY ORAHA JARJIS, ) MICHIGAN
)
Defendant-Appellant. )
)
)
BEFORE: ROGERS, McKEAGUE, and WHITE, Circuit Judges.
PER CURIAM. Tony Oraha Jarjis, a federal prisoner, appeals through counsel the
sentence imposed following his guilty plea to a charge of wire fraud.
Jarjis ran a convenience store in Saginaw, Michigan, which came to the attention of the
government due to its extremely high redemption of benefits under the Women, Infants, and
Children (WIC) program and Supplemental Nutritional Assistance Program (SNAP). An
undercover investigation revealed that Jarjis would purchase WIC and SNAP benefits from
customers for less than their full value in cash and then claim reimbursement from the
government for the full value of the benefits. Jarjis entered a guilty plea to one count of wire
fraud under a written plea agreement that left the amount of restitution to the district court. At
the sentencing hearing, the district court addressed the issue of the amount of restitution Jarvis
owed the WIC and SNAP programs. The government presented three methods of calculating the
amount: a comparison between the numbers from the store before the scheme was discovered
No. 13-1430
United States v. Jarjis
and those from the store after Jarjis knew he had been caught, a comparison with similar stores in
the same area, and a comparison with stores state-wide. All three methods arrived at amounts
over $200,000. The district court used the second method, after removing the figures from two
outlying stores, to the benefit of Jarjis, in arriving at a figure of $288,770.
On appeal, Jarjis argues that the district court used improper methodology to calculate the
amount of loss and that the amount of restitution was required to be established beyond a
reasonable doubt. Alternatively, he argues that the amount of restitution in this case was not
established even by a preponderance of the evidence.
Jarjis cites Southern Union Co. v. United States, 132 S. Ct. 2344, 2350 (2012), in support
of his argument that the amount of restitution had to be proven beyond a reasonable doubt. That
case held that facts that increase the amount of a fine beyond the statutory maximum must be
found beyond a reasonable doubt. However, this court has held that the requirement of proving
facts beyond a reasonable doubt does not apply to restitution, both because restitution has no
statutory maximum and because the Mandatory Victim Restitution Act mandates that judges
determine the amount. United States v. Sosebee, 419 F.3d 451, 461-62 (6th Cir. 2005). Even
after the Southern Union decision, other circuits have continued to hold that the requirement of
finding facts beyond a reasonable doubt does not apply to restitution. See United States v.
Green, 722 F.3d 1146, 1150-51 (9th Cir. 2013); United States v. Wolfe, 701 F.3d 1206, 1216-17
(7th Cir. 2012), cert. denied, 133 S. Ct. 2797 (2013); United States v. Day, 700 F.3d 713, 732
(4th Cir. 2012), cert. denied, 133 S. Ct. 2038 (2013). Therefore, we reject the argument that the
amount of restitution had to be proven beyond a reasonable doubt.
Jarjis argues that, in the alternative, the district court’s finding of the amount of
restitution in this case did not even satisfy the preponderance of the evidence standard. We
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No. 13-1430
United States v. Jarjis
review a determination of the amount of restitution for an abuse of discretion. United States v.
Reaume, 338 F.3d 577, 585 (6th Cir. 2003). No abuse of discretion is apparent in this case,
where the district court had three methods of calculating the amount of restitution, each of which
yielded a similar number, thus supporting their accuracy. Jarjis has not shown that the district
court’s calculation was inaccurate or outside the realm of permissible computations. See United
States v. Jackson, 25 F.3d 327, 330 (6th Cir. 1994).
Accordingly, we affirm the district court’s judgment.
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