RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0023P (6th Cir.)
File Name: 00a0023p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
;
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 98-5386
v.
>
ADNAN BAHHUR,
Defendant-Appellant.
1
Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 95-20122—Jon Phipps McCalla, District Judge.
Argued: April 21, 1999
Decided and Filed: January 14, 2000
Before: SILER and MOORE, Circuit Judges; SMITH,
District Judge.*
_________________
COUNSEL
ARGUED: Bruce I. Griffey, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Memphis, Tennessee, for Appellant.
Lawrence J. Laurenzi, OFFICE OF THE U.S. ATTORNEY,
*
The Honorable George C. Smith, United States District Judge for the
Southern District of Ohio, sitting by designation.
1
2 United States v. Bahhur No. 98-5386 No. 98-5386 United States v. Bahhur 19
Memphis, Tennessee, for Appellee. ON BRIEF: Bruce I. imprisonment on a failure to appear count be imposed
Griffey, OFFICE OF THE FEDERAL PUBLIC DEFENDER, consecutively to any other sentence of imprisonment.
Memphis, Tennessee, for Appellant. Lawrence J. Laurenzi, Moreover, the court must also comply with 18 U.S.C. § 3147,
OFFICE OF THE U.S. ATTORNEY, Memphis, Tennessee, which sets forth that the portion of the sentence attributable
for Appellee. to an enhancement under U.S.S.G. § 2J1.7, must also run
consecutively to any other sentence of imprisonment.
_________________ Consequently, the court is required to impose a consecutive
sentence of imprisonment under both of these provisions,
OPINION however, neither statute requires a minimum term of
_________________ incarceration.
SMITH, District Judge. Defendant Adnan Bahhur appeals For example, in the present case, the court must choose a
his sentence of 97 months’ incarceration and 3 years’ total punishment between 70 and 87 months (Criminal
supervised release, following his guilty plea to engaging in a History III, Combined Offense 25). Next, the court must
prohibited monetary transaction, in violation of 18 U.S.C. apportion that sentence between the underlying offense, the
§ 1957; food stamp fraud, in violation of 7 U.S.C. failure to appear conviction, and the enhancement under
§ 2024(b)(1); and failure to appear, in violation of 18 U.S.C. U.S.S.G. § 2J1.7. If the court determined that a “total
§ 3146(a)(1). punishment” of 83 months is appropriate, a sentence of fifty-
seven months on counts 10 and 34, seventeen months
On appeal, Bahhur raises the following issues: (1) whether consecutive pursuant to 18 U.S.C. § 3146(b)(2) for failure to
the district court had subject matter jurisdiction over his appear, and nine months consecutive pursuant to 18 U.S.C.
offense of engaging in a prohibited monetary transaction; (2) § 3147 for commission of an offense while on release, would
whether the district court erred in calculating Bahhur’s satisfy the statutory and sentencing guideline requirements.
guideline score using the prohibited monetary transaction
guideline, pursuant to U.S.S.G. § 2S1.2; (3) whether the III.
district court erred in increasing Bahhur’s sentence by three
levels based on the value of the funds attributable to the For the foregoing reasons, the district court’s judgment is
defendant, pursuant to U.S.S.G. § 2S1.2(b)(2); (4) whether VACATED to the extent that the district court must address
the district court erred in imposing a three-level increase in its misapplication of section 2J1.7, and we REMAND this
Bahhur’s sentence for an aggravating role, pursuant to case for resentencing in accordance with this opinion. It is
U.S.S.G. § 3B1.1; and (5) whether the district court erred in further ordered that the judgment of the district is
increasing defendant’s sentence by three levels, pursuant to AFFIRMED in all other respects.
U.S.S.G. § 2J1.7 on his underlying prohibited monetary
transaction conviction, instead of applying the enhancement
to his conviction for failing to appear. For the following
reasons, we affirm in part and reverse in part the judgment of
the district court, and remand for resentencing.
18 United States v. Bahhur No. 98-5386 No. 98-5386 United States v. Bahhur 3
Prohibited I.
Monetary Transaction Food Stamp Fraud Failure to Appear
18 U.S.C. § 1957 7 U.S.C. 2024(b)(1) 18 U.S.C. § 3146(a)(1) Beginning in 1993 and continuing until 1995, the defendant
(17) § 2S1.2 (6) § 2F1.1 (6) § 2J1.6(a)(2) Adnan Bahhur and seven other co-defendants engaged in a
(+3) § 2S1.2(b)(2) (+9)§ 2F1.1(b)(1)(J) (+9) § 2J1.6(b)(2)(A) fraudulent food stamp redemption scheme. The Bahhurs
(+3) § 3B1.1(b) (+3) § 3B1.1(b) (+3) § 2J1.7 operated two convenience stores, United Family Foods
(+2) § 3C1.1/§ 2J1.6 (+2) § 2F1.1(b)(2)(A) (+2) § 3C1.1/§ 2J1.6 Grocery and the Shop-N-Save Grocery. At these stores,
federal food stamp coupons were purchased at a discount for
25 22 18 cash and redeemed for full value through the Federal Food
Stamp Program by depositing the coupons in various bank
(These calculations assume that the defendant obstructed accounts held in the names of grocery stores operated by the
justice and was a manager or supervisor in both the Bahhurs.
prohibited monetary transaction and the food stamp fraud
convictions.) The prohibited monetary transaction and food On November 25, 1997, the defendant pleaded guilty to
stamp fraud convictions would then be grouped in accordance Count 10, engaging in a prohibited monetary transaction in
with U.S.S.G. § 3D1.3(b), because the counts involved two or violation of 18 U.S.C. § 1957, and Count 34, food stamp
more acts and were connected by a common criminal scheme fraud in violation of 7 U.S.C. § 2024(b)(1), in district court
or plan. Those two counts would then be grouped into one case number 95-20122; and one count of failing to appear in
group with the failure to appear count based upon U.S.S.G. violation of 18 U.S.C. § 3146(a)(1), in district court case
§ 3D1.2(c). See U.S.S.G. § 2J1.6, Application Note 3 number 97-20227.1
(indicating that in the case of a conviction on both the
underlying offense and the failure to appear, the failure to On February 18, 1998, a revised presentence investigation
appear is treated under § 3C1.1 (Obstructing or Impeding the report was prepared that calculated the defendant’s guideline
Administration of Justice) as an obstruction of the underlying range to be 97-121 months based on a total offense level of 28
offense; and the failure to appear count and the count(s) for and a criminal history category III. The defendant filed
the underlying offense are grouped together under several objections to the presentence investigation report.
§ 3D1.2(c)). The defendant’s offense level would then be
ascertained by applying U.S.S.G. § 3D1.3(a), which instructs
that the defendant’s offense level is determined by applying 1
On June 12, 1995, the Federal Grand Jury for the Western District of
the most serious of the counts comprising the Group, i.e., the Tennessee returned a thirty-six count indictment against defendant Adnan
highest offense level of the counts in the Group. Bahhur and seven co-defendants. The indictment specifically charged
Adnan Bahhur with: conspiracy to commit money laundering, money
In this case, the defendant’s prohibited monetary laundering, engaging in a prohibited monetary transaction, food stamp
fraud, and unlawful possession and distribution of contraband cigarettes.
transaction conviction is the highest of the counts in the On August 2, 1995, the defendant failed to appear for a report date.
Group, thus, the defendant’s combined Offense Level is On August 7, 1995, the district court signed a warrant for the defendant’s
twenty-five. The defendant has a Criminal History Category arrest charging him with failure to appear in violation of 18 U.S.C.
III. Therefore, the defendant’s corresponding guideline range § 3146(a)(1). The warrant was forwarded to the United States Marshal
is 70-87 months of incarceration. and was entered into the National Crime Information Center Computer.
On July 8, 1997, the defendant was arrested in Canada after returning
from a flight to Israel. The defendant was then extradited to the United
In devising a sentence, the court must look to 18 U.S.C. States and charged with Failure to Appear in district court case number
§ 3146(b)(2), which dictates that any sentence of 97-20227.
4 United States v. Bahhur No. 98-5386 No. 98-5386 United States v. Bahhur 17
On February 24 and 25, 1998, the district court conducted U.S.S.G. § 2J1.7 indicates that “[b]ecause 18 U.S.C. § 3147
a sentencing hearing. At the sentencing hearing the court first is an enhancement provision, rather than an offense, this
addressed defendant’s objection to the presentence report section provides a specific offense characteristic to increase
wherein the defendant received a three level enhancement the offense committed while on release.” (emphasis added).
under U.S.S.G. § 2S1.2(b)(2) based upon the value of the In fashioning a sentence which includes an enhancement
criminally derived funds being more than $350,000 but less under U.S.S.G. § 2J1.7, the district court must look to
than $600,000. The government relied upon the testimony of Application Note 2, which indicates:
Special Agent Robert Johnson. Agent Johnson testified that
he was able to locate six accounts which were used in the Under 18 U.S.C. § 3147, a sentence of imprisonment
illegal food stamp enterprise. must be imposed in addition to the sentence for the
underlying offense, and the sentence of imprisonment
Agent Johnson obtained records for these accounts from the imposed under 18 U.S.C. § 3147 must run consecutively
period of September of 1994 to March of 1995. During this to any other sentence of imprisonment. Therefore, the
eight month period $440,933.00 was deposited into the court, in order to comply with the statute, should divide
accounts. Of that amount, food stamps constituted the sentence on the judgment form between the sentence
$393,843.00 or 88.5% of the deposits (JA Vol. I, 212; Ex. 3, attributable to the underlying offense and the sentence
JA Vol. II, 299). Moreover, Agent Johnson testified that attributable to the enhancement. The court will have to
during the time the defendant was cooperating with the ensure that the “total punishment” (i.e., the sentence for
government the defendant told him (Johnson) that the amount the offense committed while on release plus the sentence
of legitimate sales for the store on Tillman was an average of enhancement under 18 U.S.C. § 3147) is in accord with
one hundred and fifty to two hundred dollars a day (JA Vol. the guideline range for the offense committed while on
I, 229), and the two stores were open six days a week (JA release, as adjusted by the enhancement in this section.
Vol. I, 250). In addition, the defendant testified that only (emphasis added).
about half of the $393,843 in food stamps, including beer
sales, was obtained fraudulently (JA Vol. I 256). The court Thus, when looking at the plain language of U.S.S.G. § 2J1.7
did not find defendant to be a credible witness (JA Vol. I, and the Application Notes to that section, it is clear that the
282). district court erred when it applied the three level
enhancement to defendant’s underlying prohibited monetary
The district court found that the value of criminally derived transaction conviction.
funds was greater than $350,000 but less than $600,000 (JA
Vol. I, 179). The district court stated that: Turning to the facts of this particular case, because there
were multiple counts of conviction, the district court should
This involved multiple locations, multiple bank accounts, have engaged in separate guideline calculations for each
in all likelihood millions of dollars, and we just simply offense, including adding the enhancements to each offense
have a snapshot of a period of time which gives us a separately. See U.S.S.G. Ch. 2 and Ch. 3, Pts. A, B and C.
glimpse of what was transpiring. It is clear to me, and I It appears from the record that the appropriate guideline
think the evidence does preponderate in favor of the calculation for each offense would be as follows:
determination that these are not all the accounts and that
monies were deposited, food stamps were deposited in
other accounts. That’s just from listening very carefully
16 United States v. Bahhur No. 98-5386 No. 98-5386 United States v. Bahhur 5
the district court then turned to 18 U.S.C. § 3147, which to Mr. Bahhur’s own testimony. . . . I will tell you that if
provides: we had to say what was the exact amount, I couldn’t do
it. I could tell you that I believe it is very substantially in
A person convicted of an offense committed while excess of $350,000, but I don’t know that anybody would
released under this chapter shall be sentenced, in addition ever be able to do that. . . . I know from my experience
to the sentence prescribed for the offense to – with these cases that these percentages of food stamps
(1) a term of imprisonment of not more than ten years if will be extremely high. I can almost take judicial notice
the offense is a felony; or of facts such as that. When you get to 90 plus percent,
(2) a term of imprisonment of not more than one year if when you get 84 percent, you’re way way past any
the offense is a misdemeanor. legitimate operation, and the suggestion that somehow
A term of imprisonment imposed under this section shall being in a neighborhood that had Section 8 housing and
be consecutive to any other sentence of imprisonment. had public housing, that would not affect the fact that the
testimony supported the conclusion that most of the sales
Section 2J1.7 was promulgated to effectuate the mandate of from these – when there were sales, most of the sales
18 U.S.C. § 3147, and under § 2J1.7 the Guidelines provide: were of beer and cigarettes, which are non food stamp
“If an enhancement under 18 U.S.C. § 3147 applies, add 3 items. . . .
levels to the offense level for the offense committed while on
release as if this section were a specific offense characteristic (JA Vol. I, 279).
contained in the offense guideline for the offense committed
while on release.” (emphasis added). The defendant then objected to the enhancement under
U.S.S.G. § 3B1.1 for his role in the offense. In addressing the
In determining the manner in which to apply U.S.S.G. management role issue, the government elicited the testimony
§ 2J1.7, we utilize the basic rules of statutory construction of Agent Johnson who characterized the defendant as being
because the Guidelines should be interpreted as if they were responsible for conducting the banking in five of the
a statute. See United States v. Hayter Oil Co. Inc., 51 F.3d accounts. In addition, Agent Johnson indicated that Adnan
1265, 1272 (6th Cir. 1995). Moreover, we follow the clear, Bahhur recruited a co-defendant, Robert Davis, to open up
unambiguous language of the guidelines if there is no two of the accounts in Davis’ name (JA Vol. I, 215). Johnson
manifestation of a contrary intent. See United States v. Lewis, explained that Robert Davis would sign the checks in blank
900 F.2d 877, 881 (6th Cir. 1990) (citing United States v. and defendant would be responsible for filling in the
Goldbaum, 879 F.2d 811, 813 (10th Cir. 1989)), cert. denied, remaining portions of the check (JA Vol. I at 204). Moreover,
498 U.S. 840, 111 S.Ct. 117, 112 L.Ed.2d 86 (1990); see also Johnson indicated that a third and fourth account in the name
United States v. Carroll, 893 F.2d 1502, 1510 (6th Cir. 1990) of Eagle Food Market #2 and S&S Market were opened by
(indicating that in the absence of any contrary intent the clear the defendant using the alias of Judeh Fiaz (JA Vol. I, 208).
language of the guidelines is to be applied or given effect).
The district court applied a three level enhancement
United States Sentencing Guideline § 2J1.7 is not pursuant to U.S.S.G. § 3B1.1 because defendant was the
ambiguous, as it clearly states that it applies to “the offense signator on the bank accounts, and thus had control of the
committed while on release,” which in this case was the accounts and assets. Specifically, the district court stated that
failure to appear conviction. The Application Notes under “the person who was in charge of these accounts, which was
§ 2J1.7 confirm that the enhancement is to be applied to the
offense committed while on release. Application Note 1 to
6 United States v. Bahhur No. 98-5386 No. 98-5386 United States v. Bahhur 15
really the only thing that mattered was Adnan Bahhur.” (JA accounts to pass the food stamps and deposit funds. In
Vol. I, 277). addition, Davis would also pre-sign blank checks for the
Bahhurs so that they could withdraw cash and avoid detection
The defendant then objected to the three level enhancement from authorities.
pursuant to U.S.S.G. § 2J1.7 for committing an offense while
on release. The district court found that the presentence Viewing the evidence in its entirety, we find that the district
report was correct and that the guidelines allow for an court was not clearly erroneous in finding that Mr. Bahhur
enhancement for committing an offense while on release to be played an aggravating role in the offense.
added to the underlying offense along with the obstruction of
justice enhancement, pursuant to U.S.S.G. §§ 2J1.6 and E. Sentencing Increase For Commission of An Offense
3C1.1. While on Release
Defendant then argued that the district court lacked subject Defendant argues that the district court erred in increasing
matter jurisdiction over his conviction under 18 U.S.C. his sentence by three levels, pursuant to U.S.S.G. § 2J1.7 on
§ 1957. Defendant maintained that his offense level in the his underlying money laundering transaction, instead of
PSI report was incorrect because his offense level should have applying the enhancement to his conviction for failing to
been calculated using U.S.S.G. § 2F1.1 relating to fraud. The appear. The government maintains that the defendant’s
district court rejected defendant’s position and relied on its offense level computation is correct and that it adequately
earlier decision on defendant’s motion to dismiss, finding that considers both the original offense and the separate offense
the sums involved in the fraudulent food stamp transactions for failing to appear. The appellate court reviews de novo a
can be aggregated (JA Vol. I, 80). sentencing court’s interpretation of the guidelines. See United
States v. Watkins, 994 F.2d 1192, 1195 (6th Cir. 1993).
The district court then adopted the presentence report and
determined the defendant’s total offense level to be 28 and In the case at bar, defendant was convicted of multiple
his criminal history score to be a category III (JA Vol. I, 287). offenses including one count of failure to appear under 18
The defendant was sentenced to 97 months of incarceration: U.S.C. § 3146. In calculating the defendant’s offense level,
fifty-seven months on the underlying offenses of food stamp the district court determined that the defendant’s convictions
fraud and engaging in a prohibited monetary transaction, should be grouped into a single group. The court then applied
seventeen months consecutive pursuant to 18 U.S.C. several sentencing enhancements including an enhancement
§ 3146(b)(2) for failure to appear, and twenty-three months pursuant to U.S.S.G. § 2J1.7 for committing an offense while
consecutive pursuant to 18 U.S.C. § 3147 for commission of on release. The three level enhancement under § 2J1.7 was
an offense while on release, to be followed by three years of based upon the defendant’s failure to appear conviction.4
supervised release and a special assessment of $150. The Upon enhancing the defendant’s offense level under § 2J1.7,
Judgment was filed on March 2, 1998, and defendant filed his
notice of appeal on March 4, 1998.
4
The Sixth Circuit Court of Appeals in United States v. Benson, 134
F.3d 787, 788 (6th Cir. 1998), established that 18 U.S.C. § 3147, which
provides for an enhanced sentence if defendant commits an offense while
released on bond, and U.S.S.G. § 2J1.7 which provides for a three level
increase for offenses committed while on release, apply to a defendant
convicted of failing to appear.
14 United States v. Bahhur No. 98-5386 No. 98-5386 United States v. Bahhur 7
The guideline provides in relevant part: II.
Based on the defendant’s role in the offense, increase the A. District Court’s Subject Matter Jurisdiction
offense level as follows:
Defendant Bahhur argues that the district court lacked
.... subject matter jurisdiction over his conviction under 18
U.S.C. § 1957. Defendant maintains that 18 U.S.C. § 1956
(b) If the defendant was a manager or supervisor (but not defines “specified unlawful activity” for purposes of 18
an organizer or leader) and the criminal activity involved U.S.C. § 1957 as a felony (singular) food stamp transaction
five or more participants or was otherwise extensive, (singular) that involves a quantity of coupons having a value
increase by 3 levels. of not less than $5,000. Defendant sets forth that he never
engaged in a transaction involving a quantity of coupons in
U.S.S.G. § 3B1.1. The presentence investigation report excess of $5,000, therefore, the district court was without
recommended that the district court find that Bahhur played subject matter jurisdiction. “Questions of subject matter
an aggravating role in the offense as a manager or supervisor jurisdiction are questions of law that are reviewed de novo.”
of a criminal enterprise involving five or more participants United States v. Yanott, 42 F.3d 999, 1003 (6th Cir. 1994).
and accordingly increase his sentence by three levels.
Title 18 United States Code § 1957, states in relevant part:
The district court found that Bahhur’s food stamp ring
clearly involved more than five participants. In addition, the (A) Whoever, in any of the circumstances set forth in
district court concluded that Bahhur was a manager or subsection (d), knowingly engages or attempts to engage
supervisor within the definition of the Sentencing Guidelines, in a monetary transaction in criminally derived property
reasoning that, “[w]hile it may not have been the strictest run that is of a value greater than $10,000 and is derived
organization in the world, the person who was in charge of from specified unlawful activity, shall be punished as
these (bank) accounts, which was really the only thing that provided in subsection (b) . . . .
mattered, was Adnan Bahhur . . . . He was the key person.
Without him, they might not have been able to open the (f) As used in this section –
accounts.” Further, the district court noted that Bahhur was (3) the term “specified unlawful activity” has the
responsible for recruiting Robert Davis. Therefore, the meaning given that term in section 1956 of this title.
district court increased defendant’s sentence by three levels.
Title 18 United States Code § 1956(c)(7)(D) defines
The record provides ample support for the district court’s specified unlawful activity as, “[a]ny felony violation of
conclusion that Mr. Bahhur was a manager or supervisor of section 15 of the Food Stamp Act of 1977 (relating to food
the food stamp operation. Mr. Bahhur admitted that he was stamp fraud) involving a quantity of coupons having a value
responsible for opening and closing the various bank accounts of not less than $5,000 . . . .”
which the two stores used in their food stamp scheme. The
defendant also admitted that he had an employee named Defendant maintains that the district court did not have
Robert Davis who would pose as the owner of the VFF subject matter jurisdiction over his 18 U.S.C. § 1957
Market and would open various bank accounts through which conviction because 18 U.S.C. § 1956 requires that each
the Bahhurs passed the food stamps and deposited the funds. fraudulent food stamp transaction involve a quantity of
Once the accounts were open, the Bahhurs would use the coupons worth $5,000. The government argues that the
8 United States v. Bahhur No. 98-5386 No. 98-5386 United States v. Bahhur 13
district court did in fact have subject matter jurisdiction over admitted that the two stores did approximately one hundred
defendant’s conviction under 18 U.S.C. § 1957, because and fifty to two hundred dollars a day in legitimate business,
§ 1957 is an offense against the laws of the United States as and that most of the business was in cigarettes and beer,
described under 18 U.S.C. § 3231. neither of which could be purchased legally with food stamps.
Title 18, United States Code § 3231 provides in relevant In the case at bar, the defendant was an integral part of the
part, “The District Courts of the United States shall have joint criminal activity, and therefore, all actions of his co-
original jurisdiction, exclusive of the courts of the States, of conspirators were both foreseeable and within the scope of the
all offenses against the laws of the United States.” criminal agreement. The enterprise took in approximately
$393,000 in food stamps during the sample eight-month
Mr. Bahhur pleaded guilty to a violation of 18 U.S.C. period, and only a small portion of the food stamps deposited
§ 1957. Title 18, United States Code § 1957 is a federal into the accounts could be attributed to legitimate business.
statute that is clearly an “offense against the laws of the Moreover, the defendant admitted that he and his family had
United States.” Therefore, the district court had subject been purchasing food stamps since 1993, and that there were
matter jurisdiction over defendant’s conviction under 18 other accounts in which food stamps were deposited which
U.S.C. § 1957. Accordingly, the Court believes that were not discovered by the government. Thus, the district
defendant has misstated the nature of his objection on this court properly found that the defendant’s offense level should
matter. Defendant’s argument regarding the quantity element be increased by three points pursuant to U.S.S.G.
of 18 U.S.C. § 1956 is an attack against the sufficiency of the § 2S1.2(b)(2) on the basis that the value of the funds involved
evidence necessary to sustain a conviction under 18 U.S.C. was greater than $350,000.
§ 1957, not an argument against the district court’s subject
matter jurisdiction. Based on the foregoing, we find adequate factual support
for the three level increase in defendant’s sentence pursuant
The government contends that defendant’s failure to enter to U.S.S.G. § 2S1.2(b)(2).
a conditional guilty plea prevents him from raising arguments
against his conviction under 18 U.S.C. § 1957 upon appeal. D. Sentencing Increase for Aggravating Role
The government maintains that review of defendant’s
conviction under 18 U.S.C. § 1957 is precluded by Rule Defendant appeals the district court’s imposition of a three
11(a)(2) of the Federal Rules of Criminal Procedure. level increase in his sentence, pursuant to U.S.S.G. § 3B1.1,
based on the district court’s finding that he played an
Under Federal Rule of Criminal Procedure 11(a)(2), a aggravating role in the offense as a manager or supervisor.
defendant is permitted to enter a conditional plea of guilty or This court reviews the district court’s factual findings in its
nolo contendere while reserving the right “on appeal from the application of the Sentencing Guidelines for clear error. See
judgment, to review of the adverse determination of any United States v. Gort-DiDonato, 109 F.3d 318, 320 (6th Cir.
specified pre-trial motion.” The term “specified pre-trial 1997). “A finding is clearly erroneous when ‘although there
motion” incorporates all questions that are collateral to a is evidence to support it, the reviewing court on the entire
determination of guilt or innocence. United States v. Pickett, evidence is left with the definite and firm conviction that a
941 F.2d 411, 416 (6th Cir. 1991) (referring to the Notes of mistake has been committed.” Gort-DiDonato, 109 F.3d at
the Advisory Committee on Rules for the 1983 Amendments 320 (quoting United States v. Perez, 871 F.2d 45, 48 (6th Cir.
to Rule 11(a), reprinted in 18 U.S.C. Rules 1-11 at 359). “[A] 1989)).
defendant forecloses all subsequent non-jurisdictional appeals
12 United States v. Bahhur No. 98-5386 No. 98-5386 United States v. Bahhur 9
United States v. Kohlbach, 38 F.3d 832, 835 (6th Cir. 1994). to his conviction by pleading guilty or nolo contendere.”
Nonetheless, the government bears the burden of proving a Pickett, 941 F.2d 411, 416 (citing the Notes of the Advisory
sentencing enhancement by a preponderance of the evidence. Committee on Rules for the 1983 Amendments to Rule 11(a),
See United States v. Berridge, 74 F.3d 113, 116 (6th Cir. reprinted in 18 U.S.C. § 1-11 at 358 which cites Tollett v.
1996). The appellate court reviews the district court’s legal Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235
conclusions de novo and accepts the district court’s factual (1973) and Lott v. United States, 367 U.S. 421, 81 S.Ct. 1563,
findings unless clearly erroneous. See United States v. 6 L.Ed.2d 940 (1961)). Moreover, “in the absence of a court-
Rutana, 18 F.3d 363, 365 (6th Cir. 1996). approved reservation of issues for appeal, [a defendant
pleading guilty] waives all challenges to the prosecution
The guideline for a violation of 18 U.S.C. § 1957 is set except those going to the court’s jurisdiction.” Hayle v.
forth under U.S.S.G. § 2S1.2. Under § 2S1.2(a), the base United States, 815 F.2d 879, 881 (2d Cir. 1987) (cited in
offense level is seventeen. Although the base offense level is Pickett, 941 F.2d at 416).
seventeen, the guidelines also direct the court to consider the
amount of funds that the defendant knew were the proceeds In the case at bar, the defendant, prior to pleading guilty,
of an unlawful activity, which serves as a specific offense filed a pre-trial motion to dismiss the prohibited monetary
characteristic enhancement. Here, the district court found that transaction count on the basis that the district court failed to
Bahhur knew that more than $350,000 was criminally derived meet the prerequisite set out under the statute. The
property for an enhancement of three levels under U.S.S.G. government opposed the motion and subsequently the district
§ 2S1.2(b)(2). We review this finding for clear error. court denied defendant’s motion. On November 25, 1997,
pursuant to a guilty plea the defendant pleaded guilty to Count
In determining the amount of loss, the district court relied 10 charging the defendant with engaging in a prohibited
upon Exhibit 3 and the testimony of Special Agent Robert monetary transaction and Count 34 charging food stamp fraud
Johnson of the Internal Revenue Service. Special Agent in case number 95-20122, and Count 1 charging the defendant
Johnson testified in accordance with Exhibit 3 that he was with failure to appear in case number 97-20227. The plea
able to locate six accounts which were used in the illegal food agreement that the defendant signed and the district court
stamp enterprise run by Mr. Bahhur and the other co- accepted was not a conditional plea pursuant to
defendants. Agent Johnson obtained records for these Fed. R. Crim. P. 11(a)(2), nor did defendant indicate to the
accounts from a period of September of 1994 to March of district court that he was preserving his right to appeal the
1995. During this eight month period $440,933 was district court’s decision on his motion to dismiss. The
deposited into the accounts. Of that amount, food stamps defendant then raised the same argument in both his written
constituted $393,843 or 88.5% of the deposits. Agent objections to the presentence report and during the sentencing
Johnson was only able to identify $5,504.07 in checks to hearing and the district court again overruled defendant’s
distributors from the accounts. objection.
Mr. Bahhur operated the illegal enterprise for two years. As stated above, although defendant characterized his
Agent Johnson obtained the bank records of the enterprise objection as an argument against the district court’s subject
representing an eight month period. The defendant admitted matter jurisdiction, in fact, it was an argument against the
that the Bahhur family had been purchasing food stamps since sufficiency of the government’s evidence based on
1993, and that there were other accounts in which food defendant’s interpretation of 18 U.S.C. §§ 1956 and 1957.
stamps were deposited. Moreover, the defendant also This was a non-jurisdictional collateral attack against his
10 United States v. Bahhur No. 98-5386 No. 98-5386 United States v. Bahhur 11
conviction. Therefore, by failing to enter into a conditional 731-32 (6th Cir. 1993)). Under § 3742, the appellate court
plea under Rule 11(a)(2), Mr. Bahhur waived his right to reviews de novo the sentencing court’s interpretation of the
appeal the district court’s denial of his pre-trial motion to Guidelines. See United States v. Watkins, 994 F.2d 1192,
dismiss the prohibited monetary transaction count on the basis 1195 (6th Cir. 1993).
of insufficient evidence. See Pickett, 941 F.2d at 416-17.
According to U.S.S.G. § 1B1.2(a), a defendant’s base
Based on the above, the Court finds that the district court offense level is determined by applying the guideline section
had subject matter jurisdiction over defendant’s conviction most applicable to the offense of conviction, i.e., the offense
under 18 U.S.C. § 1957. Moreover, the defendant’s objection conduct charged in the count of indictment or information for
regarding the government’s proof of the quantity element which the defendant was convicted. Moreover, U.S.S.G.
under 18 U.S.C. §§ 1956 and 1957 is actually an objection to § 3D1.3(a) instructs that in the case of counts grouped
the sufficiency of the government’s evidence concerning that together, the defendant’s offense level is determined by
element. Such an objection can be waived, and accordingly, applying the most serious of the counts comprising the Group.
defendant’s failure to enter into a conditional guilty plea
prevents him from raising this argument against his In the instant case, Mr. Bahhur was convicted of engaging
conviction upon appeal. in a prohibited monetary transaction, in violation of 18 U.S.C.
§ 1957; food stamp fraud, in violation of 7 U.S.C.
B. District Court’s Application of the Money § 2024(b)(1); and failure to appear, in violation of 18 U.S.C.
Laundering Guideline § 3146(a)(1) . As addressed previously, the district court had
subject matter jurisdiction over defendant’s 18 U.S.C. § 1957
The defendant next argues that the district court committed conviction, and the defendant’s failure to enter a conditional
error in calculating his base offense level using the money guilty plea prevents him from attacking his conviction upon
laundering guideline2, U.S.S.G. § 2S1.2, instead of the fraud appeal. Accordingly, the district court properly calculated
guideline, U.S.S.G. § 2F1.1, because the district court lacked Mr. Bahhur’s base offense level utilizing the prohibited
subject matter jurisdiction over defendant’s conviction under monetary transaction guideline set forth under U.S.S.G.
18 U.S.C. § 1957.3 § 2S1.2 and in accordance with the grouping rules of U.S.S.G.
§ 3D1.3(a).
Appellate review of sentences imposed under the
Sentencing Guidelines is generally governed by 18 U.S.C. C. Value of Funds Attributable to Defendant
§ 3742. See United States v. Flowers, 55 F.3d 218, 220 (6th
Cir. 1995) (citing United States v. Morrison, 983 F.2d 730, Defendant further argues that the district court erred in
determining that defendant’s offense level should be
increased by three points pursuant to U.S.S.G. § 2S1.2(b)(2)
2
on the basis that the value of the funds involved was greater
The defendant refers to the money laundering guideline, however, the than $350,000 but less than $600,000. The government
defendant’s conviction under 18 U.S.C. § 1957 falls under U.S.S.G. submits that the record sufficiently supports the district
§ 2S1.2 which addresses the crime of engaging in a monetary transaction court’s finding as to the amount of loss attributable to the
in property derived from a specified unlawful activity.
defendant.
3
Defendant concedes that his argument is predicated upon the Court
finding that the district court lacked subject matter jurisdiction over his In calculating the amount of loss figure, the Court
conviction under 18 U.S.C. § 1957. recognizes that the district court is given some leeway. See