15-2010
United States of America v. Baig
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL
APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 21st day of June, two thousand sixteen.
PRESENT: JON O. NEWMAN
RICHARD C. WESLEY,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
UNITED STATES OF AMERICA,
Appellee,
v. 15‐2010
BUSHRA BAIG, ZAHID BAIG, RAMON NANAS,
TARIQ RANA, MALIK YOUSAF, SHANNAWAZ
BAIG,
Defendants,
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FARRUKH BAIG,
Defendant ‐ Appellant.
_____________________________________
FOR APPELLANT: NORMAN TRABULUS, Law Office of Norman
Trabulus, New York, NY.
FOR APPELLEE: CHRISTOPHER OTT, Assistant United States
Attorney (Amy Busa, on the brief), for Robert L.
Capers, United States Attorney for the Eastern
District of New York, Brooklyn, NY.
Appeal from the United States District Court from the Eastern District of
New York (Feuerstein, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is
AFFIRMED in part and VACATED and REMANDED in part.
Defendant‐Appellant Farrukh Baig (“Baig”)1 pled guilty to one count of
conspiracy to commit wire fraud, 18 U.S.C. §§ 1343, 1349, and one count of
conspiracy to conceal and harbor aliens for financial gain, 8 U.S.C. §§
1324(a)(1)(A)(v)(I), 1324(a)(l)(B)(i), for his role in a scheme designed to generate
1 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.
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profit from the employment of undocumented aliens at various 7‐Eleven
franchise stores in Suffolk County, New York. Baig and his co‐conspirators
transmitted false payroll information to the 7‐Eleven franchisor about the
identities of the employees actually working at the stores and their hours, and
then retained portions of the wages earned by the undocumented aliens. Baig
was sentenced to a term of 87 months’ imprisonment, the top of his applicable
Guidelines range, and three years of supervised release. Consistent with Baig’s
plea agreement, the District Court also ordered that Baig pay $2,621,114.97 in
restitution.
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.
DISCUSSION
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 (2009). Plain error review
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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). “[I]mproperly 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. App’x 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.” App’x 44. By signing the agreement, the Government agreed that
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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.” App’x 54.2
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.” App’x 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.” App’x 81. The
latter half of this second portion of the quoted statement was an inadvertent
2 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.” App’x 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).
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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.” App’x 111.
The District Court sentenced Baig to 87 months’ imprisonment, the top of
his applicable Guidelines range but ten months below the Guidelines estimate
provided in his plea agreement and forty‐eight months below the sentence
specified in his appellate waiver. Baig asserts that the Government breached its
plea agreement by “‘submit[ting]’ that an ‘appropriate’ sentence would be higher
than Baig’s acknowledged Guideline range.” Appellant Br. 36. We disagree.
The Government did not “take [a] position concerning where within the
Guidelines range determined by the Court the sentence should fall” or “make [a]
motion for an upward departure under the Sentencing Guidelines,” and thus it
did not violate the plea agreement. App’x 54. The Government’s inadvertent
mistake could be construed as advocating for the initial Guidelines estimate
provided in the plea agreement—97 to 121 months’ imprisonment—yet even that
permissible advocacy was repudiated by the Government’s repeated request for
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the “application of the lower range set forth in the PSR” in its sentencing
memorandum and request for a 70 to 87 month sentence at the sentencing
hearing. App’x 76, 81; see also United States v. Riera, 298 F.3d 128, 135–36 (2d Cir.
2002) (finding that the Government did not breach the plea agreement obligation
not to suggest a departure where its sentencing “letter did not explicitly advocate
a departure” and where, to repudiate “any possible implicit message of advocacy
in the letter, the government soon thereafter and repeatedly told the district court
that it had not intended to advocate and was not advocating a departure”).
Accordingly, the Government did not breach the plea agreement.
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 upon by parties in a plea agreement.”
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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.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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