United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-1258
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United States of America, *
*
Plaintiff - Appellee, * Appeal from the United States
* District Court for the
v. * Southern District of Iowa.
*
Sukhdev Sam Singh, * [UNPUBLISHED]
*
Defendant - Appellant. *
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Submitted: June 14, 2010
Filed: August 19, 2010
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Before LOKEN, ARNOLD, and GRUENDER, Circuit Judges.
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PER CURIAM.
Sukhdev Singh, an Illinois gas station owner, was contacted as a possible
purchaser of nine former Phillips 66 gas stations in Des Moines and Sioux City, Iowa,
being sold by Molo Oil Company. To secure financing, Singh approached Surinder
Multani, whose company helped broker loans guaranteed by the Small Business
Administration (SBA) through a private lender. Singh and Multanti, participating in
a more extensive fraud by the lender’s officers, submitted false financial statements,
purchase contracts, bank statements, and promissory notes that induced the SBA to
guarantee loans to purchase the Iowa gas stations. When the gas stations failed and
the scheme unraveled, Singh and Multani were indicted on eleven counts of mail
fraud, wire fraud, and conspiracy to commit fraud. Multani pleaded guilty, admitting
that he owed over $6,000,000 in restitution for four fraudulent loans to Iowa
corporations. The government then filed a superseding indictment charging Singh
with an additional count of making a false statement in violation of 18 U.S.C. § 1001.
On the same day, Singh pleaded guilty to that count, and the government dismissed
the remaining counts. The district court1 sentenced Singh to 24 months in prison, the
bottom of his advisory guidelines range. Singh appeals the court’s denial of a minor
role reduction under U.S.S.G. § 3B1.2. Finding no clear error, we affirm.
In the plea agreement, Singh admitted that, as part of the closing of one Iowa
gas station loan, which we will refer to as the AG II loan, he faxed a HUD-1
Settlement Statement to the other loan participants knowing it contained a material
misrepresentation that the gas stations were being purchased by another person when
in fact all but two were being purchased by Singh, who was ineligible for an
additional SBA loan. The Presentence Investigation Report (PSR) determined that the
actual loss on that loan was $912,867.33. In addition to the loss related to that loan,
Singh “acknowledged” that Multani caused additional fraudulent documents to be
submitted in connection with financing the Iowa transactions, and he agreed to make
restitution on a second Iowa gas station loan we will refer to as the AG III loan.
At sentencing, Singh moved a for a minor role reduction, arguing that Multani
was the principal architect and main actor in the fraud scheme. In determining the
advisory guidelines sentencing range, the district court found that Singh was
responsible for the actual loss of $912,867.33 on the AG II loan, resulting in a 14
offense-level increase under U.S.S.G. § 2B1.1(b)(1)(H). The court denied a minor
role reduction because -
The Court doesn’t believe the facts entitle the defendant to a
mitigating role based upon the relevant conduct as revealed by the
1
The HONORABLE ROBERT W. PRATT, Chief Judge of the United States
District Court for the Southern District of Iowa.
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[PSR]. . . . I think the offense level of 17 accurately captures what
happened in the case.
The court sentenced Singh to 24 months in prison, the bottom of his advisory range
of 24-30 months in prison. Consistent with the plea agreement, the court ordered
restitution of $2,008,964.39, the actual loss on the AG II and AG III loans combined.
On appeal, Singh raises a single issue, whether the district court clearly erred
in denying a two-level, minor role reduction. The reduction applies to a defendant
who is substantially less culpable than most other participants, but whose role could
not be described as minimal. U.S.S.G. § 3B1.2, comment. (n. 5). In evaluating
comparative culpability, “[a] defendant’s role in the offense is measured by the
relevant conduct for which he is held responsible.” United States v. Deans, 590 F.3d
907, 909 (8th Cir. 2010) (quotation omitted). The defendant has the burden of proof
on this issue, which is a question of fact we review for clear error. Id.
In this case, Singh admitted making a materially false statement that induced
SBA’s guarantee of the AG II loan, proof that he played “an integral role” in the 18
U.S.C. § 1001 offense. United States v. Boyd, 291 F.3d 1274, 1277 (11th Cir. 2002).
Even if that loan was the full extent of his actual criminal conduct, “merely showing
the defendant was less culpable than other participants is not enough to entitle the
defendant to the adjustment if the defendant was deeply involved in the offense.”
Deans, 590 F.3d at 911. But here, while Singh’s relevant conduct for offense-level
purposes was the actual loss of $912,867.33 on the AG II loan, his admitted relevant
conduct for restitution purposes was over $2,000,000. Had the actual loss on the AG
III loan been added to Singh’s offense-level relevant conduct, it would have increased
his total offense level by two levels. See U.S.S.G. § 2B1.1(b)(1)(I). In these
circumstances, the district court did not clearly err in denying a minor role reduction.
“If a defendant has received a lower offense level by virtue of being convicted of an
offense significantly less serious than warranted by his actual criminal conduct, a
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reduction for a mitigating role under this section ordinarily is not warranted.”
U.S.S.G. § 3B1.2, comment. (n.3(B)).
The judgment of the district court is affirmed.
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