United States v. Murshed (Algahaim)
2016 U.S. App. LEXIS 21447
| 2d Cir. | 2016Background
- Defendants Mofaddal M. Murshed and Ahmed A. Algahaim worked at D&D Grocery, a SNAP-authorized store, and were tried and convicted for exchanging SNAP benefits (EBT transactions) for cash in violation of SNAP statutes.
- A jury convicted both on conspiracy and substantive SNAP-offense counts after testimony from customers and confidential informants that the defendants provided cash instead of food when EBT cards were used.
- Murshed was sentenced to 30 months; Algahaim to 21 months; both were in Criminal History Category I.
- Sentencing calculations began with a base offense level of 6 for fraud-related offenses and were increased by loss-based enhancements (Murshed +12 levels = total 18; Algahaim +10 levels = total 16), producing Guidelines ranges of 27–33 months and 21–27 months, respectively.
- Defendants appealed, raising issues about jury instructions on mens rea, sufficiency of evidence regarding mens rea (Murshed), denial of a mitigating-role adjustment (Algahaim), Rule 32(i)(1)(A) compliance, and whether the substantial loss enhancements warranted consideration of non-Guidelines sentences.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jury instruction on mens rea (response to juror notes) | Gov't: initial instruction and supplemental responses were proper and clear | Defendants: supplemental responses undermined the initial mens rea instruction (Algahaim also objected) | Court: Initial instruction was proper; supplemental answers did not undermine mens rea charge; no reversible error |
| Sufficiency of evidence of mens rea (Murshed) | Gov't: repeated cash-for-EBT transactions permit inference of knowing, intentional misconduct | Murshed: argued evidence insufficient to show requisite mens rea | Court: Evidence (swiping EBT, giving cash repeatedly) supported jury inference of requisite mens rea; conviction sustained |
| Mitigating-role reduction (Algahaim) | Algahaim: played lesser role meriting 2–4 level reduction under §3B1.2 | Gov't: his role in offenses was virtually identical to Murshed; no substantial less culpability | Court: de novo review; denied adjustment—Algahaim not substantially less culpable than average participant |
| Sentencing — effect of loss enhancements and remand for non-Guidelines consideration | Gov't: Guidelines calculation (low base + loss enhancement) applied correctly | Defendants: argued sentencing issues generally; court considered whether loss-driven increases made Guidelines range disproportionate | Court: Calculations complied with Guidelines, but because a low base level (6) combined with large loss enhancements produces large increases, sentencing court must be allowed to consider non-Guidelines sentences; convictions and sentences affirmed, remanded for reconsideration on that narrow point |
Key Cases Cited
- Kimbrough v. United States, 552 U.S. 85 (2007) (sentencing judge may disagree with Sentencing Commission policy and impose non-Guidelines sentence)
- United States v. Cavera, 550 F.3d 180 (2d Cir. 2008) (sentencing judge may consider variance from Guidelines based on policy disagreements)
- United States v. Salim, 690 F.3d 115 (2d Cir. 2012) (plain-error rule applied sparingly for contemporaneous-objection failures)
- United States v. Marcus, 560 U.S. 258 (2010) (standard for plain-error review affecting substantial rights)
- United States v. Lauersen, 348 F.3d 329 (2d Cir. 2003) (cumulative effect of overlapping enhancements can warrant departure)
- United States v. Gigante, 94 F.3d 53 (2d Cir. 1996) (same)