United States v. Ferdous

Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-20269 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus

MOHAMMAD SHARIF FERDOUS, Defendant-Appellant.

Appeal from the United States District Court For the Southern District of Texas (CR-H-94-1141-06)

June 21, 1996 Before POLITZ, Chief Judge, DAVIS and EMILIO M. GARZA, Circuit Judges.

POLITZ, Chief Judge:*

Indicted for his role in a wide-ranging conspiracy to aid and abet the commission of

insurance fraud and for the substantive offense,1 Mohammad Sharif Ferdous appeals the

sentence imposed following his guilty plea entered pursuant to a plea agreement. His

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. 1 18 U.S.C. §§ 2, 371; 18 U.S.C. §§ 2, 1341. counsel moves to withdraw. That motion is denied and for the reasons assigned the sentence

appealed is affirmed.

The conspiracy at bar involved activities in Houston and Los Angeles. Ferdous

laundered the proceeds of false insurance claims in Houston, managed a participating law

office in Los Angeles, and recruited persons for the scheme. The Houston operation resulted

in false claims totaling $3,642,080 with settlements totaling $956,754. The Los Angeles

claims totaled $2,382,401 and resulted in settlements totaling $441,420.

In computing Ferdous’ criminal offense level the court began with a base offense of

6 which was increased by 14 levels because of the $6 million loss involved,2 by 3 because

of Ferdous’ role as a manager or supervisor,3 and by 2 levels for more than minimal planning

in the grand scheme.4 A reduction of 3 levels for acceptance of responsibility5 resulted in

an offense level of 22 which, with a criminal history category of I, resulted in a guidelines

range of 41-51 months. The court sentenced Ferdous to 45 months imprisonment and

ordered restitution in the amount of $4200. He timely appealed.

In his motion to withdraw and Anders brief, counsel for Ferdous suggests that

Ferdous may not appeal because the plea agreement provides that “the defendant waives the

right to appeal the sentence or the manner in which it was determined on the grounds set

2 U.S.S.G. § 2F1.1(b)(1)(O). 3 U.S.S.G. § 3B1.1(b). 4 U.S.S.G. § 2F1.1(b)(2). 5 U.S.S.G. § 3E1.1(a), (b). 2 forth in Title 18, United States Code, Section 3742.” A handwritten addendum to the

government’s form agreement, however, declares that Ferdous’ waiver of his right to appeal

does not extend to “the grounds listed in Title 18, section 3742(a)(2) concerning the

calculation of the guidelines.” We therefore find that Ferdous may appeal and conclude that

his right to challenge the calculation of his sentence has been preserved.6 We accordingly

consider this appeal and, under the circumstances, make an independent review of the entire

record. In doing so we review the district court’s application of the guidelines de novo and

the supporting factual findings for clear error.7

At sentencing Ferdous objected to the amount of losses used in his offense level

computation, contending that he did not participate in the Houston operation until December

1993 and in the Los Angeles operation until February 1994. The district court rejected that

submission and found, based upon information from case agents, that Ferdous had

participated in the fraudulent scheme from its very inception. That finding is not clearly

erroneous and the resulting upward adjustment in the offense level was appropriate. Our

review of the balance of the record discloses neither error nor abuse of discretion in the

acceptance of Ferdous’ guilty plea or in the sentence imposed and same is therefore

AFFIRMED.

6 See United States v. Wittie, 25 F.3d 250 (5th Cir. 1994), aff’d., 115 S.Ct. 2199 (1995); United States v. Hernandez, 17 F.3d 78 (5th Cir. 1994). 7 United States v. Cabral-Castillo, 35 F.3d 182 (5th Cir.), cert. denied, 115 S.Ct. 1157 (1995). 3