United States v. Ala Salman

• Court: Court of Appeals for the Eleventh Circuit
• Decided: December 17, 2019
• Docket: 18-15220
• Status: Unpublished

Opinion

Case: 18-15220 Date Filed: 12/17/2019 Page: 1 of 8

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-15220 Non-Argument Calendar ________________________

D.C. Docket No. 1:18-cr-20279-JEM-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALA SALMAN,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(December 17, 2019)

Before MARTIN, NEWSOM and BLACK, Circuit Judges.

PER CURIAM: Case: 18-15220 Date Filed: 12/17/2019 Page: 2 of 8

Ala Salman appeals his 51-month sentence for one count of wire fraud. He

raises four issues on appeal, which we address in turn. After review, we affirm

Salman’s sentence.

I. DISCUSSION

A. Substantial financial hardship enhancement

Salman asserts for the first time on appeal the district court erred by

applying the substantial financial hardship enhancement under U.S.S.G.

§ 2B1.1(b)(2)(A) because the Government failed to demonstrate that the victim’s

financial hardships were caused by him, rather than the economic downturn or the

owner’s mismanagement.

Section 2B1.1(b)(2)(A) provides for a two-level enhancement where the

offense resulted in substantial financial hardship to one or more victims. U.S.S.G.

§ 2B1.1(b)(2)(A). In relevant part, Application note 4(F) provides that courts shall

consider, among other factors, whether the offense resulted in the victim:

becoming insolvent; filing for bankruptcy; making substantial changes to his

employment, such as postponing his retirement plans; and suffering substantial

harm to his ability to obtain credit. United States v. Castaneda-Pozo, 877 F.3d

1249, 1252 (11th Cir. 2017); U.S.S.G. § 2B1.1, cmt. 4(F).

Salman consented to the substantial financial hardship enhancement at the

sentencing hearing, agreeing that three stores closing seems to satisfy substantial

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financial hardship. Therefore, Salman invited the district court’s error and has

waived appellate review. See United States v. Brannan, 562 F.3d 1300, 1306 (11th

Cir. 2009) (stating when a defendant expressly consents to or affirmatively seeks a

district court’s decision, he is deemed to have invited any error the court may have

made and waives appellate review).

Even if we review the claim, Salman must show plain error because he did

not object to the enhancement before the district court. See United States v.

Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014) (stating when a defendant does

not object in the district court, we review only for plain error which requires the

defendant to show an error; that is plain; affects substantial rights; and seriously

affects the fairness, integrity, or public reputation of judicial proceedings).

Because there was evidence of substantial hardship, such as the closure of three

stores, a reduced line of credit, and having to float the company with personal

funds to avoid bankruptcy, the district court committed no error in imposing the

enhancement. Therefore, as Salman is unable to show any error, much less plain

error, we affirm the imposition of the substantial financial hardship enhancement.

B. Sophisticated means enhancement

Salman contends the district court clearly erred by applying the sophisticated

means enhancement under U.S.S.G. § 2B1.1(b)(10)(C) because his conduct was

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the minimum necessary to commit the charged crime, and the Government did not

offer sufficient proof to show he used sophisticated means.

Under § 2B1.1(b)(10)(C), a defendant’s offense level is enhanced by two

levels if the offense involved sophisticated means and the defendant intentionally

engaged in or caused the conduct constituting sophisticated means. U.S.S.G.

§ 2B1.1(b)(10)(C). “Sophisticated means” refers to “especially complex or

especially intricate offense conduct pertaining to the execution or concealment of

an offense.” Id. comment. (n. 9(B)). Examples of sophisticated means listed in the

commentary include hiding assets or transactions, or both, using fictitious entities,

corporate shells, or offshore financial accounts. Id. However, the application

notes do not limit the ways in which a defendant could use sophisticated means to

conceal his crime. See United States v. Clarke, 562 F.3d 1158, 1165 (11th Cir.

2009). In gauging sophistication, the court must examine the totality of the

defendant’s conduct, as there is no requirement that each of the defendant’s

individual actions be sophisticated. United States v. Ghertler, 605 F.3d 1256, 1267

(11th Cir. 2010). Use of repetitive, coordinated conduct to perpetuate and conceal

a fraud scheme supports a sophisticated means enhancement. United States v.

Bane, 720 F.3d 818, 826-27 (11th Cir. 2013). Further, the length of time for which

the conduct is not detected can reflect on the sophistication of the scheme. United

States v. Feaster, 798 F.3d 1374, 1381 (11th Cir. 2015).

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The undisputed facts in the PSI and factual proffer show Salman undertook

numerous schemes and repetitive conduct to make the transactions appear

legitimate, including setting up companies with the appearance of legitimacy,

transferring money between accounts, altering invoices, and consistently

withdrawing $200-$400 per day from ATMs to avoid detection. See United States

v. Beckles, 565 F.3d 832, 843 (11th Cir. 2009) (stating the district court may base

its factual findings on undisputed facts in the PSI). Furthermore, Salman

concealed this scheme for nearly six years. Therefore, the district court did not

clearly err in applying the sophisticated means enhancement under U.S.S.G.

§ 2B1.1(b)(10)(C). See United States v. Sosa, 777 F.3d 1279, 1300 (11th Cir.

2015) (reviewing for clear error a district court’s decision to impose a sophisticated

means enhancement).

C. Reasonableness

Salman asserts his 51-month sentence was substantively unreasonable

because the district court failed to apply any mitigating facts to the § 3553 factors,

such as his acceptance of responsibility, and only offered a blanket statement that

the § 3553 factors had been considered.

After considering procedural reasonableness, we consider the substantive

reasonableness of a sentence in light of the totality of the circumstances and the

§ 3553(a) factors. Gall v. United States, 552 U.S. 38, 51 (2007). A district court

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abuses its discretion by: (1) failing to consider relevant factors that were due

significant weight; (2) giving significant weight to an improper or irrelevant

factor; or (3) committing a clear error of judgment by balancing proper factors

unreasonably. United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en

banc). We may vacate the sentence only if we are left with the definite and firm

conviction that the district court committed a clear error of judgment in weighing

the § 3553(a) factors to arrive at an unreasonable sentence based on the facts of the

case. Id. at 1190. The district court must issue a sentence “sufficient, but not

greater than necessary” to comply with the purposes of § 3553(a)(2). 18 U.S.C.

§ 3553(a).

Salman’s 51-month sentence is substantively reasonable. See Gall, 552 U.S.

at 41 (explaining when reviewing for reasonableness, we apply a deferential

abuse-of-discretion standard). The district court stated it considered the § 3553(a)

factors and the PSI, and it discussed many of the mitigating factors with the parties

during the objections. It specifically discussed Salman’s acceptance of

responsibility. The district court also noted its concern that Salman had an arrest

for a similar crime that was nolle prossed. Even so, the district court imposed a

sentence at the low end of the Guidelines range, which both Salman and the

Government requested, and which this Court would expect to be reasonable. See

United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (stating we

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ordinarily expect a Guidelines range sentence to be reasonable, and the defendant

bears the burden of showing otherwise). Therefore, the district court had a

reasoned basis for exercising its legal decisionmaking authority. See United States

v. Livesay, 525 F.3d 1081, 1090 (11th Cir. 2008) (stating the district court need not

state explicitly on the record that it considered each of the § 3553(a) factors, but it

should set forth enough to satisfy the appellate court that it has a reasoned basis for

exercising its own legal decisionmaking authority). Accordingly, we affirm

D. Ineffective assistance of counsel

Salman contends his sentence was the result of ineffective assistance of

counsel because no competent attorney would have conceded to the substantial

financial hardship enhancement or failed to object to the sophisticated means

enhancement.

We generally do not consider claims of ineffective assistance of counsel on

direct appeal because the record is usually not sufficiently developed as to the

merits of those claims. United States v. Andrews, 953 F.2d 1312, 1327 (11th Cir.

1992). We will consider an ineffective assistance of counsel claim on direct appeal

where there is sufficient evidence on the record for us to do so. Id. We conclude

there is sufficient evidence in the trial record for us to consider Salman’s claim.

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A showing of ineffective assistance of counsel requires a defendant to show

that counsel’s performance was deficient, and that deficient performance

prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).

Salman cannot show deficient performance or prejudice. It was not objectively

unreasonable for Salman’s counsel to have determined the enhancements applied

given the facts of the case. First, as to the substantial financial hardship

enhancement, the evidence in the factual proffer was overwhelming. Second, as to

the sophisticated means enhancement, the Government objected to the

enhancement and the district court still decided to impose it. The record on direct

appeal supports that Salman’s counsel was not ineffective in conceding the

substantial financial hardship enhancement or in failing to object to the

sophisticated means enhancement.

II. CONCLUSION

The district court did not plainly err in enhancing Salman’s offense level for

causing substantial financial hardship under U.S.S.G. § 2B1.1(b)(2)(A), did not

clearly err by enhancing his offense level for using sophisticated means under

U.S.S.G. § 2B1.1(b)(10)(C), and did not impose an unreasonable sentence.

Finally, Salman’s argument his counsel was ineffective is without merit.

AFFIRMED.