United States v. Baig
Opinion of the Court
SUMMARY ORDER
Defendant-Appellant Farrukh Baig (“Baig”)
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.
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, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). Plain error review 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, 766 F.3d 147, 155 (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, 677 F.3d 86, 91 (2d Cir. 2012). “[Ijmproperly ordered restitution constitutes an illegal sentence amounting to plain error.” United States v. Fiore, 381 F.3d 89, 98 (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. Appx 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.” Appx 44. By signing the agreement, the Government agreed that 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.” Appx 54.
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.” Appx 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.” Appx 81. The latter half of this second portion of the quoted statement was an inadvertent 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.” Appx 111.
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”), 18 U.S.C. § 3663, 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 wpon by parties in a plea agreement.” 18 U.S.C. § 3663(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.
. 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.
. The plea also included an appeal waiver that provided that Baig would not "appeal or otherwise challenge, by petition pursuant to 28 U.S.C. § 2255 or any other provision, the conviction or sentence in the event that the Court imposes a term of imprisonment of 135 months or below.” Appx 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, 638 F.3d 114, 118 (2d Cir. 2011).
Reference
- Full Case Name
- United States v. Bushra BAIG, Zahid Baig, Ramon Nanas, Tariq Rana, Malik Yousaf, Shannawaz Baig, Farrukh Baig
- Cited By
- 1 case
- Status
- Published