19-4192
United States of America v. Shahbaz
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
"SUMMARY ORDER"). A PARTY CITING 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 30th day of June, two thousand twenty-one.
PRESENT: AMALYA L. KEARSE,
GERARD E. LYNCH,
DENNY CHIN,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
-v- 19-4192
MUHAMMAD SHAHBAZ,
Defendant-Appellant.
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FOR APPELLEE: KONSTANTIN LANTSMAN, Assistant
United States Attorney (Marc H.
Silverman, Assistant United States
Attorney, on the brief), for Leonard C.
Boyle, United States Attorney for the
District of Connecticut, New Haven,
Connecticut.
FOR DEFENDANT-APPELLANT: ROBERT M. FROST, JR., Frost Bussert
LLC, New Haven, Connecticut.
Appeal from the United States District Court for the District of
Connecticut (Bryant, J.).
UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Defendant-appellant Muhammad Shahbaz appeals the district court's
judgment entered December 4, 2019, convicting him, following his guilty plea, of one
count of food stamp fraud and sentencing him principally to 33 months' imprisonment
and restitution of approximately $1.5 million. He argues that the term of imprisonment
in his sentence was procedurally and substantively unreasonable. We assume the
parties' familiarity with the underlying facts, the procedural history of the case, and the
issues on appeal. 1
1 Shahbaz also appealed from the district court's order entered July 31, 2020,
denying his motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A). On May 24, 2021,
the parties filed a stipulation dismissing Shahbaz's compassionate release appeal. This Court
so-ordered the stipulation on May 25, 2021.
2
Shahbaz challenges the procedural and substantive reasonableness of his
sentence. We review this challenge "under a deferential abuse-of-discretion standard."
Gall v. United States, 552 U.S. 38, 41 (2007). "A sentence is procedurally unreasonable if
the district court fails to calculate (or improperly calculates) the Sentencing Guidelines
range, treats the Sentencing Guidelines as mandatory, fails to consider the § 3553(a)
factors, selects a sentence based on clearly erroneous facts, or fails adequately to explain
the chosen sentence." United States v. Jesurum, 819 F.3d 667, 670 (2d Cir. 2016) (internal
quotation marks and citation omitted). A sentence is substantively unreasonable "only in
exceptional cases where the trial court's decision cannot be located within the range of
permissible decisions." United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc)
(internal quotation marks omitted). "In determining whether a sentence falls within the
permissible range, [the Court] patrol[s] the boundaries of reasonableness, cognizant of
the fact that responsibility for sentencing is placed largely with the district courts."
United States v. Jenkins, 854 F.3d 181, 187 (2d Cir. 2017) (internal quotation marks
omitted).
In pleading guilty, Shahbaz stipulated that as a cashier, he permitted
customers to use food stamps to receive cash and purchase items ineligible for food
stamps, charging them in food stamps approximately double the value of what they
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received in exchange. Shahbaz's employer, WB Trade Fair Market, would then redeem
from the government the amount that it charged the food stamp customers. 2
Shahbaz argues that his sentence was procedurally unreasonable because
the district court created an unwarranted disparity by sentencing him to a 33-month
term of imprisonment, while his co-conspirators received only 30 months. We are not
persuaded. The district court concluded that Shahbaz was not similarly situated to the
co-conspirators because he managed others at the store, as evidenced by interviews
with other employees indicating that he "taught them how to engage in trafficking of
food stamps and that he was the person responsible for closing the store each night."
App'x at 156. The district court's determination that in these circumstances Shahbaz
deserved three more months of imprisonment than his less culpable co-conspirators
was eminently reasonable.
To the extent Shahbaz argues on appeal that there was a factual dispute as
to whether he trained other employees how to traffic in food stamps, he did not object
to the district court's finding below, nor did he request an evidentiary hearing. Hence,
the district court did not abuse its discretion in failing to conduct a hearing. United
States v. Sabhnani, 599 F.3d 215, 258 (2d Cir. 2010) ("The district court is not required . . .
to hold a full-blown evidentiary hearing in resolving sentencing disputes. All that is
2 The parties and the Pre-Sentence Report use different versions of the market
name. The indictment refers to the market as "WB Trade Fair Market" and that is the version we
use here.
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required is that the court afford the defendant some opportunity to rebut the
Government's allegations." (internal quotation marks and alterations omitted)).
Shahbaz argues that the sentence was substantively unreasonable in light
of the following factors: (1) the 30-month sentences received by two of his co-
conspirators, (2) his status as a "true first offender," Appellant's Br. at 10, (3) the 16-level
enhancement for the loss amount, and (4) the immigration consequences of his
conviction. While a sentence of 33 (or 30) months' imprisonment for a cashier who
engages in food stamp fraud in the circumstances here may be harsh, we are not
persuaded that the sentence was substantively unreasonable. In light of the loss
amount of $1.5 million, Shahbaz's participation in the scheme for at least two years, his
role as a manager, and his teaching others how to carry out the fraud, this was not an
"exceptional case where the trial court's decision cannot be located within the range of
permissible decisions." United States v. Thavaraja, 740 F.3d 253, 263 (2d Cir. 2014)
(internal quotation marks omitted).
* * *
We have considered Shahbaz's remaining arguments and conclude they
are without merit. For the foregoing reasons, we AFFIRM the district court's judgment.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
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