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United States v. Zogheib

United States District Court, D. Nevada

January 8, 2020




         Defendant 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.

         I. Factual Background and Procedural History

         Zogheib 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 2013.

         While 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 Zogheib's probation was revoked in 2016, and he is currently in state prison serving a 76 to 192-month sentence.

         Following 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 No. 202).

         II. Legal Standard

         Federal 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)).

         III. Discussion

         Zogheib's 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).

         As the 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.

         A. Guideline Loss Calculation

         Zogheib 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.

         As to 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. ยง2B1.1(b)(1) cmt. n. 3(E)(i) (requiring that for the defendant ...

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