United States v. Robert Saad

FILED
NOT FOR PUBLICATION FEB 07 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50437
Plaintiff - Appellee, D.C. No. 2:10-cr-01324-DSF-1
v.
MEMORANDUM *
ROBERT PAUL SAAD,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted January 10, 2013 **
Pasadena, California
Before: O’SCANNLAIN and W. FLETCHER, Circuit Judges, and
HELLERSTEIN, Senior District Judge.***
*
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).
***
The Honorable Alvin K. Hellerstein, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.
1
Robert Paul Saad (“Appellant”) appeals the 80-month sentence imposed
following his plea of guilty to mail fraud in violation of 18 U.S.C. § 1341.
Specifically, Appellant challenges (1) the application of the two-level,
“sophisticated means” enhancement of United States Sentencing Guidelines §
2B1.1(b)(9)(C), 2010 edition, in calculating his sentence and (2) an upward
departure from the Sentencing Guidelines range pursuant to U.S.S.G. §
4A1.3(a)(4)(B) based on the inadequacy of criminal history category VI.1 We
assume familiarity with the record. We affirm the district court’s sentence.
I
In calculating Appellant’s total offense level in accordance with the
Sentencing Guidelines, the district court imposed a two-level increase pursuant to
U.S.S.G. § 2B1.1(b)(9)(C) because the offense involved “sophisticated means.” A
challenge to the district court’s application of the “sophisticated means”
enhancement is reviewed for clear error. United States v. Aragbaye, 234 F.3d
1101, 1107-08 (9th Cir. 2000).
1
Appellant was sentenced pursuant to the 2010 edition of the U.S.
Sentencing Guidelines Manual. Citations to the Guidelines in this memorandum
refer to that edition. The 2012 edition of the Sentencing Guidelines includes the
“sophisticated means” enhancement at § 2B1.1(b)(10)(C).
2
Appellant’s conviction arises from a scheme to defraud California’s
Employment Development Department and Franchise Tax Board, the U.S.
Treasury, and various financial institutions. Appellant created and used four
fictitious companies and eight different mailing addresses. He also stole the
identities of 44 individuals, using their names, Social Security numbers, and dates
of birth. Accordingly, the district court did not clearly err in finding Appellant’s
offense involved “sophisticated means.”
II
Appellant had a total of 32 criminal history points, establishing a criminal
history category of VI and a Sentencing Guidelines range of 37 to 46 months
imprisonment. The district court imposed a sentence of 80 months, applying an
upward departure from category VI pursuant to U.S.S.G. § 4A1.3(a)(4)(B), which
provides,
If reliable information indicates that the defendant’s criminal history
category substantially under-represents the seriousness of the
defendant’s criminal history or the likelihood that the defendant will
commit other crimes, an upward departure may be warranted.
U.S.S.G. § 4A1.3(a)(1).
3
We review the district court’s application of this provision, and the
imposition of a sentence departing from the Guidelines range, for an abuse of
discretion. Gall v. United States, 552 U.S. 38, 51 (2007). We “consider the
substantive reasonableness of the sentence imposed...tak[ing] into account the
totality of the circumstances,” and “giv[ing] due deference to the district court’s
decision that the [18 U.S.C.] § 3553(a) factors, on the whole, justify the extent of
the variance” from the Guidelines range. Id. at 51.
The imposition of an 80-month sentence was substantively reasonable and
was not an abuse of discretion given Appellant’s pattern of continuous and
uninterrupted criminal activity. At the time he was sentenced, Appellant was a 44-
year-old man convicted of 24 crimes, at least 18 of which were felonies. Since
1993, Appellant has been almost continually in contact with the criminal justice
system as a consequence of a myriad of increasingly serious offenses, many
involving fraud and identity theft, and many resulting in lengthy sentences of
imprisonment or parole. “An upward departure from category VI is permissible
when a district court finds that a defendant has a long record of criminal conduct of
escalating seriousness and prior incarcerations have not affected his propensity to
commit crimes.” United States v. Segura-Del Real, 83 F.3d 275, 277 (9th Cir.
1996).
4
AFFIRMED.
5