15-2010 United States of America v. Baig

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 21st day of June, two thousand sixteen.

PRESENT: JON O. NEWMAN RICHARD C. WESLEY, CHRISTOPHER F. DRONEY, Circuit Judges. _____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. 15‐2010

BUSHRA BAIG, ZAHID BAIG, RAMON NANAS, TARIQ RANA, MALIK YOUSAF, SHANNAWAZ BAIG,

Defendants, 1

FARRUKH BAIG,

Defendant ‐ Appellant.

_____________________________________

FOR APPELLANT: NORMAN TRABULUS, Law Office of Norman Trabulus, New York, NY.

FOR APPELLEE: CHRISTOPHER OTT, Assistant United States Attorney (Amy Busa, on the brief), for Robert L. Capers, United States Attorney for the Eastern District of New York, Brooklyn, NY.

Appeal from the United States District Court from the Eastern District of

New York (Feuerstein, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the District Court is

AFFIRMED in part and VACATED and REMANDED in part.

Defendant‐Appellant Farrukh Baig (“Baig”)1 pled guilty to one count of

conspiracy to commit wire fraud,

, 1349, and one count of

conspiracy to conceal and harbor aliens for financial gain,

(a)(1)(A)(v)(I), 1324(a)(l)(B)(i), for his role in a scheme designed to generate

1 Although the Appellant’s brief also lists Shannawaz Baig as an Appellant in this case, Shannawaz Baig’s appeal was severed from this case, and is docketed at 15‐3328. 2 profit from the employment of undocumented aliens at various 7‐Eleven

franchise stores in Suffolk County, New York. Baig and his co‐conspirators

transmitted false payroll information to the 7‐Eleven franchisor about the

identities of the employees actually working at the stores and their hours, and

then retained portions of the wages earned by the undocumented aliens. Baig

was sentenced to a term of 87 months’ imprisonment, the top of his applicable

Guidelines range, and three years of supervised release. Consistent with Baig’s

plea agreement, the District Court also ordered that Baig pay $2,621,114.97 in

restitution.

Baig argues for the first time on appeal that the Government breached the

plea agreement through its sentencing recommendation. Baig also challenges,

for the first time, the portion of the District Court’s judgment ordering him to pay

restitution. We assume the parties’ familiarity with the underlying facts, the

procedural history, and the issues presented for review.

DISCUSSION

Where, as here, a defendant fails to preserve an objection to the

Government’s purported breach of a plea agreement the issue is reviewed for

plain error. Puckett v. United States,

(2009). Plain error review

3 permits relief where (1) there is “error,” (2) the error “is plain,” (3) the error

“affect[s] substantial rights,” and (4) the error “seriously affect[s] the fairness,

integrity, or public reputation of judicial proceedings.” United States v.

Groysman,

(2d Cir. 2014) (internal quotation marks omitted).

Likewise, “where, as here, a defendant fails to object to the restitution order at the

time of sentencing, our review is for plain error.” United States v. Zangari,

(2d Cir. 2012). “[I]mproperly ordered restitution constitutes an illegal

sentence amounting to plain error.” United States v. Fiore,

(2d Cir.

2004) (internal quotation marks omitted).

I. Breach of Plea Agreement

Baig’s plea agreement calculated his Guidelines range to be 97 to 121

months’ imprisonment. App’x 44. The plea agreement noted that the

Guidelines estimate was not binding, and that “[i]f the Guidelines offense level

advocated by the [United States Attorney’s] Office, or determined by the

Probation Department or the Court, is, for any reason, including an error in the

estimate, different from the estimate, the defendant will not be entitled to

withdraw the plea and the government will not be deemed to have breached this

agreement.” App’x 44. By signing the agreement, the Government agreed that

4 it would “take no position concerning where within the Guidelines range

determined by the Court the sentence should fall” and “make no motion for an

upward departure under the Sentencing Guidelines.” App’x 54.2

Baig’s pre‐sentence report (“PSR”) calculated his Guidelines range to be 87

to 108 months’ imprisonment. This estimate did not include the two‐level global

resolution reduction included in the plea agreement. Including this reduction,

the resulting guidelines range was 70 to 87 months.

Prior to sentencing, the Government submitted a sentencing memorandum

that stated that it “has no objection to the Court’s application of the lower range

set forth in the PSR.” App’x 76. At a later point in the memorandum, the

Government “ask[ed] the Court to follow the lower Guidelines calculation

utilized within the PSR” and stated that “[f]or that reason, and consistent with the

Section 3553(a) factors, the government submits that a sentence between 97 and

121 months would be appropriate for this specific defendant.” App’x 81. The

latter half of this second portion of the quoted statement was an inadvertent

2 The plea also included an appeal waiver that provided that Baig would not “appeal or otherwise challenge, by petition pursuant to

or any other provision, the conviction or sentence in the event that the Court imposes a term of imprisonment of 135 months or below.” App’x 45. The appeal waiver does not bar our consideration of this issue because if the government breached the plea agreement, Baig’s waiver of appellate rights is unenforceable. United States v. Buissereth,

(2d Cir. 2011). 5 mistake: the PSR included the 87 to 108 month sentence range, prior to another

possible reduction for the global plea agreement, which reduced it to 70 to 87

months’ imprisonment. The Government corrected this error at sentencing,

clarifying that it asked the District Court to “follow the presentence report’s

guideline range, which is 70 to 87 months.” App’x 111.

The District Court sentenced Baig to 87 months’ imprisonment, the top of

his applicable Guidelines range but ten months below the Guidelines estimate

provided in his plea agreement and forty‐eight months below the sentence

specified in his appellate waiver. Baig asserts that the Government breached its

plea agreement by “‘submit[ting]’ that an ‘appropriate’ sentence would be higher

than Baig’s acknowledged Guideline range.” Appellant Br. 36. We disagree.

The Government did not “take [a] position concerning where within the

Guidelines range determined by the Court the sentence should fall” or “make [a]

motion for an upward departure under the Sentencing Guidelines,” and thus it

did not violate the plea agreement. App’x 54. The Government’s inadvertent

mistake could be construed as advocating for the initial Guidelines estimate

provided in the plea agreement—97 to 121 months’ imprisonment—yet even that

permissible advocacy was repudiated by the Government’s repeated request for

6 the “application of the lower range set forth in the PSR” in its sentencing

memorandum and request for a 70 to 87 month sentence at the sentencing

hearing. App’x 76, 81; see also United States v. Riera,

, 135–36 (2d Cir.

2002) (finding that the Government did not breach the plea agreement obligation

not to suggest a departure where its sentencing “letter did not explicitly advocate

a departure” and where, to repudiate “any possible implicit message of advocacy

in the letter, the government soon thereafter and repeatedly told the district court

that it had not intended to advocate and was not advocating a departure”).

Accordingly, the Government did not breach the plea agreement.

II. Restitution

In the plea agreement, Baig agreed to pay $2,621,114.97 in restitution to

“pay the back wages of the employees described in the Indictment” pursuant

to the Victim Witness Protection Act (“VWPA”),

, and the

Mandatory Victims Restitution Act (“MVRA”), 18 U.S.C. § 3663A. The District

Court ordered Baig to pay $2,621,114.97 in restitution, the precise figure agreed

upon in the plea agreement.

Critically for this case, the VWPA provides that the Court “may also order

restitution in any criminal case to the extent agreed upon by parties in a plea agreement.”

7

(a)(3) (emphasis added). Here, the parties agreed to the

restitution amount that the District Court ultimately ordered in the plea

agreement, and the District Court was authorized to impose restitution for that

amount. Baig’s arguments to the contrary are unavailing.

However, Baig is correct, as the Government concedes, that the victims

listed at Appendix 1 do not appear to be franchise employees. The Government

agrees that the restitution portion of the judgment must be modified to eliminate

any obligation to compensate the four individuals listed on Appendix 1, which

relates to a separate case and which the Government inadvertently attached to its

letter providing the identities of Baig’s employee victims. Accordingly, we

vacate and remand for correction of that part for correction of the judgment as

specific in this order.

We have considered Baig’s remaining arguments and find them to be

without merit. Accordingly, we AFFIRM in part, and VACATE and REMAND

in part for further proceedings consistent with this order.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

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