United States v. Baig
669 F. App'x 587
| 2d Cir. | 2016Background
- Defendant Shannawaz Baig pleaded guilty to one count of conspiring to conceal and harbor illegal aliens for financial gain (8 U.S.C. § 1324).
- District court sentenced Baig to time served, three years’ supervised release, and ordered restitution of $1,253,343.48 (later found to contain a clerical discrepancy).
- Baig challenged the restitution order on appeal, raising: (1) improper use of the MVRA; (2) failure to hold an evidentiary hearing; (3) failure to follow 18 U.S.C. § 3664 procedures; and (4) failure to apportion liability given his limited role.
- At sentencing the Government stated defense counsel had indicated no desire for a factual hearing; Baig submitted letters and reiterated objections at sentencing.
- Probation relied on Department of Labor investigatory findings and audits (including interviews and payroll records) to calculate losses for about 100 victims; the court adopted restitution as a condition of supervised release under 18 U.S.C. §§ 3563(b)(2), 3583(d).
- The panel identified a clerical discrepancy between the oral pronouncement ($1,252,342.48) and written judgment ($1,253,343.48) and remanded for correction to the oral amount.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Authority for restitution | Government: MVRA or, alternatively, restitution as condition of supervised release | Baig: MVRA inapplicable; plea didn’t identify an MVRA-qualifying offense | Court: No need to decide MVRA; restitution valid as condition of supervised release under 18 U.S.C. §§ 3563(b)(2), 3583(d) |
| Evidentiary hearing | Govt: no hearing required; defense counsel waived hearing | Baig: district court erred by not holding an evidentiary hearing on losses | Court: Waived by defense; even on merits no error—defendant had adequate opportunity to present objections |
| § 3664 procedural compliance | Govt: relied on DOL audits/ interviews; impracticable to contact 100+ victims | Baig: probation failed to obtain victim affidavits and consult victims as required by § 3664 | Court: No procedural error; § 3664’s affidavit/notice provisions are “to the extent practicable,” and failure would not automatically cancel restitution |
| Apportionment / joint-and-several liability | Govt: district court may impose joint-and-several liability | Baig: should apportion restitution to reflect de minimis role | Court: Apportionment is discretionary under 18 U.S.C. § 3664(h); no abuse of discretion in imposing joint-and-several liability |
Key Cases Cited
- United States v. Zangari, 677 F.3d 86 (2d Cir.) (standard for plain error review of restitution when not objected to at sentencing)
- United States v. Bok, 156 F.3d 157 (2d Cir.) (district courts may impose restitution as a condition of supervised release)
- United States v. Yu-Leung, 51 F.3d 1116 (2d Cir.) (tactical failure to object can constitute waiver)
- United States v. Maurer, 226 F.3d 150 (2d Cir.) (sentencing procedures are within district court discretion; full evidentiary hearing not always required)
- United States v. Pickett, [citation="387 F. App'x 32"] (2d Cir.) (summary order rejecting need for victim affidavits to establish loss amounts)
- United States v. Gonzalez, 647 F.3d 41 (2d Cir.) (noncompliance with § 3664 does not automatically require cancellation of restitution)
- United States v. Nucci, 364 F.3d 419 (2d Cir.) (apportionment and joint-and-several liability are discretionary)
- United States v. Jesurum, 819 F.3d 667 (2d Cir.) (oral pronouncement of sentence governs over written judgment)