United States v. Haider Bokhari and Qasim Bokhari

Citations: 430 F.3d 861; 2005 U.S. App. LEXIS 26542Docket: 05-1302, 05-1303

Court: Court of Appeals for the Seventh Circuit; December 6, 2005; Federal Appellate Court

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Defendants Haider Bokhari and Qasim Bokhari were convicted of mail fraud and money laundering related to their fraudulent activities involving the federal E-Rate Program, which funds technology upgrades for economically disadvantaged schools. They induced school officials to contract with their company by promising to waive fees and provide free computers, while inflating contract amounts and disguising the nature of these contracts in submissions to the government. Over 21 schools in Milwaukee and Chicago were defrauded, leading to requests for over $16 million, of which they received $1.2 million, much of which was laundered through Virginia bank accounts, with some funds ending up in Pakistan.

Following their guilty pleas in October 2004, the defendants received concurrent sentences of 72 months for money laundering and 60 months for mail fraud, along with three years of supervised release and a restitution order of over $1.2 million. On appeal, they argued that the district court incorrectly calculated their total offense levels and sentencing ranges under the United States Sentencing Guidelines. The appellate court agreed, vacated their sentences, and remanded the case for resentencing, emphasizing the necessity for the district court to correctly determine the total offense level and sentencing range for proper review under the post-Booker standard of reasonableness.

The district court failed to accurately calculate the total offense level for the defendants, preventing a proper review for reasonableness. Both the presentencing report (PSR) and the government suggested a total offense level of 29, which corresponds to a sentencing guideline range of 87 to 108 months, based on the defendants' criminal history level of I. The defendants objected to the PSR's recommended intended loss of over $16 million, asserting it should be $1.2 million, and contested upward adjustments for 'sophisticated means' and 'role in offense.' They argued for a lower total offense level of 19 or 21, which would reduce the sentencing range to 30 to 37 months.

During sentencing, the district court did not clearly address the defendants' objections and was ambiguous regarding the two-level enhancements. Although it seemed to determine the intended loss was $16 million, this finding lacked clarity. The judge estimated the total offense level to be around 26 or 27 without definitively resolving the objections, which hindered the ability to assess whether the sentence fell within the Guidelines range or warranted additional reasoning.

The government contended that sufficient information existed for this court to establish the advisory sentencing range, but this argument was deemed irrelevant. The court emphasized that the district court is responsible for making the initial factual findings necessary for sentencing calculations, reiterating that this foundational responsibility cannot be transferred to the appellate court.

The district court is instructed to make clear factual findings regarding the intended loss amount and the defendants' objections to the Presentence Investigation Report (PSR). This process is essential for accurately calculating each defendant's total offense level and sentencing range according to the Guidelines. Following these findings, the district court may resentence the defendants and must provide sufficient rationale for any deviations from the recommended sentencing range under the Guidelines.

The remand renders moot the defendants' claims that the application of the Booker decision violates the Due Process clause and ex post facto principles, as the court has previously rejected similar claims in cases such as United States v. Jamison and United States v. Paulus. Additionally, the defendants risk facing higher sentences upon resentencing, as noted during oral arguments. Despite this risk, the defendants' counsel indicated that the defendants are willing to proceed with vacating their sentences.

In conclusion, the court vacates the defendants' sentences and remands the case for resentencing in accordance with the outlined opinions. It is noted that the district court correctly treated the Guidelines as advisory post-Booker but did not fully grasp the implications of Booker on the necessary calculations for the sentencing range. Further, understanding the district court's interpretation of the total offense level is crucial, as it influences whether the imposed sentence falls within the Guidelines range and its presumed reasonableness.