United States District Court, D. Nevada
R. HICKS, UNITED STATES DISTRICT JUDGE.
Jihad Anthony Zogheib has filed a motion to “Correct or
Reduce Sentence Pursuant to [Federal Rule of Criminal
Procedure 35(a)].” (ECF No. 202). Pursuant to the
Court's November 8, 2019 order (ECF No. 212), the United
States filed a response (ECF No. 214) and Zogheib filed a
reply (ECF No. 216). For the reasons stated below, the Court
will deny Zogheib's Rule 35(a) motion.
Factual Background and Procedural History
was originally indicted on February 23, 2016, with five
counts of wire fraud and two counts of money laundering. (ECF
No. 1). A superseding indictment was filed in April 2016,
charging him with eight counts of wire fraud and two counts
of money laundering. (ECF No. 23). More than two years later,
Zogheib pleaded guilty to the eight counts of wire fraud,
with the two counts of money laundering being dismissed by
stipulation of the government. (ECF No. 140). The conduct
underlying Zogheib's guilty pleas is relatively
straightforward - Zogheib solicited large loans from
individuals while representing that they would be used to
fund his various business ventures, such as home renovation
or construction crane rental. Instead of using the money for
that end, he used it for personal expenses, such as gambling
trips to casinos in Las Vegas. (ECF No. 132 at 4-6). Zogheib
also used the money to run a ponzi scheme whereby he
solicited loans from new victims to repay other victims when
they became suspicious or started asking for their money
back. (Id.). His victims in this federal case have
been identified by the initials of K.L., K.W., and P.N.
Zogheib's conduct spanned from February 2011 to June
this case was proceeding, Zogheib was incarcerated in the
Nevada state prison system stemming from his probation on
state convictions being revoked following multiple probation
violations. In 2011, Zogheib was charged with fraud and theft
in state court for defrauding three victims - E.A., D.T., and
L.N. D.T. and L.N. do not have any relation to the current
case, but Zogheib used money he received from E.A. to make
partial repayments to K.W. He pleaded guilty to those charges
and was given a sentence suspended with five years of
probation, and he was required to pay approximately $300, 000
in restitution. Zogheib's probation was revoked in 2016,
and he is currently in state prison serving a 76 to 192-month
Zogheib's October 2018 guilty plea, sentencing was
delayed for nearly a year while Zogheib engaged in disputes
with a series of appointed counsel and repeatedly sought
extensions to file evidentiary objections. Sentencing was
eventually conducted on October 16, 2019, and during the
four-hour hearing, the Court reviewed the parties'
extensive evidence, heard arguments from counsel, and
listened to Zogheib directly. The Court granted the
government's request for an upward variance, although not
as great as the upward variance of a 180-month sentence
recommended by the U.S. Probation Office, and sentenced
Zogheib to 96 months incarceration to run concurrent with his
state sentence. (ECF No. 197). The Court also ordered Zogheib
to pay $1, 751, 475 in restitution to his various victims.
(ECF No. 199). Shortly after sentencing, Zogheib filed the
motion pending before the court to correct or reduce his
sentence under Federal Rule of Criminal Procedure 35(a). (ECF
Rule of Criminal Procedure 35(a) states that “within 14
days after sentencing, the court may correct a sentence that
resulted from arithmetical, technical, or other clear
error.” The scope of review of Rule 35(a) is intended
to be extremely narrow; the court cannot reconsider
sentencing issues or reopen issues previously resolved under
the guidelines. U.S. v. Mack, 92 F.Supp.3d 1006,
1008 (D. Nev. 2015) (citing U.S. v. Aguirre, 214
F.3d 1122, 1126 (9th Cir. 2000)).
motion raises two main grounds for correction of his
sentence. First, he argues that the Court incorrectly found
that his fraudulent schemes resulted in a loss of more than
$1, 500, 000, as he claims that he actually caused a loss of
less than $1, 500, 000. (ECF No. 202-1 at 3). The Court's
finding that Zogheib inflicted a loss of more than $1, 500,
000 increased his offense level by 16 instead of 14,
resulting in a total offense level of 21 rather than 19.
U.S.S.G. §2B1.1. Second, he argues that Court erred by
applying an upward variance based on his criminal history and
not applying a downward variance for time he has already
served in state custody. (ECF No. 202-1 at 9).
government asserts, neither of Zogheib's arguments are
proper grounds for a Rule 35(a) motion. (ECF No. 214 at 3).
The amount of loss caused by Zogheib's schemes was
relevant only because it affected what his offense level
would be under the sentencing guidelines, and a Rule 35(a)
motion cannot be used to relitigate guidelines arguments.
U.S. v. Mack, 92 F.Supp.3d 1006, 1008 (D. Nev.
2015). Similarly, the Court has discretion whether to grant
an upward or downward variance based on a particular
defendant's characteristics and history. Gall v.
U.S., 552 U.S. 38, 51 (2007) (sentences in or out of the
guidelines are reviewed under an abuse of discretion
standard). See also Irizarry v. U.S., 553 U.S. 708,
713-16 (2008) (district court is not required to give advance
notice of its intent to impose a sentence outside the
advisory guidelines range). But even if Zogheib's
arguments were proper under Rule 35(a), an analysis of their
substance reveals that they either lack merit or are
transparent attempts to obfuscate evidence and mislead the
Court. The Court will address each of them briefly.
Guideline Loss Calculation
first argues that the Court incorrectly determined that he
inflicted a loss of $300, 00 on victim K.W. (ECF No. 202-1 at
5-6). He argues that because he repaid K.W. more than what he
was lent on the first three loans, he should receive a $135,
000 offset on the fourth loan that he did not repay.
(Id.) This is a frivolous argument. Zogheib has
admitted that pursuant to the terms of the loans between him
and K.W., Zogheib was obligated to pay K.W. interest at a
flat rate. (Id.). The evidence produced indicates
that on the three loans which Zogheib actually repaid, he
paid interest. But Zogheib cannot plausibly argue that he
should receive an offset on the loan he did not repay because
he repaid K.W. the proper amount on the first three loans.
victim K.L., Zogheib argues that because K.L. allegedly took
possession of a house Zogheib owned valued at “an
amount exceeding one million dollars” following
discovery of the fraud, the value of the house should offset
the $548, 000 out of which Zogheib defrauded him. (ECF No.
202-1 at 6-7). Zogheib's argument fails for three
independent reasons. First, Zogheib has not submitted any
evidence that he actually owned this house. Second, the
government has submitted compelling evidence demonstrating
that Zogheib never had any ownership interest in the house.
(ECF No. 186 at 22). Specifically, the government cited to a
deposition Zogheib took in a civil action K.L. filed against
him after discovering the fraud. (Id. at 23). In
that deposition, Zogheib denied owning the house, claiming
that he was only renting it. (ECF No. 186-10 at 4). Third,
even if Zogheib had owned the house, K.L would have taken
possession of it after discovering Zogheib's fraud scheme
and filing a lawsuit against him. A defendant cannot offset
an amount of loss when the victim recovers after the offense
was detected. U.S.S.G. §2B1.1(b)(1) cmt. n. 3(E)(i)
(requiring that for the defendant ...