Mealey's (June 23, 2016, 2:07 PM EDT) -- NEW YORK — A Second Circuit U.S. Court of Appeals panel on June 21 let stand the sentence for a man who pleaded guilty to hiring undocumented aliens to work in several New York state 7-Eleven stores but vacated and remanded the case for recalculation of the amount of restitution he must pay because of a government error (United States of America v. Busha Baig, et al., No. 15-2010, 2nd Cir.; 2016 U.S. App. LEXIS 11405).
(Order available. Document #98-160712-018R.)
In a plea agreement, defendant-appellant Farrukh Baig pleaded guilty to one count of conspiracy to commit wire fraud and one count of conspiracy to conceal and harbor aliens for financial gain for his role in a scheme to generate profit from the employment of undocumented aliens at various 7-Eleven franchise stores in Suffolk County, N.Y.
Baig and his co-conspirators transmitted false payroll information to the 7-Eleven franchisor about the identities of the employees actually working at the stores and their hours and then retained portions of the wages earned by the undocumented aliens. Baig was sentenced to 87 month in prison, the top of his applicable guidelines range, and three years of supervised release. U.S. Judge Sandra J. Feuerstein of the Eastern District of New York ordered Baig to pay more than $2.6 million in restitution.
Appeal Arguments
On appeal, Baig argued for the first time that the government breached the plea agreement through its sentencing recommendation. He also challenged, for the first time, the portion of Judge Feuerstein’s judgment ordering him to pay restitution.
The appeals panel said that before Baig’s sentencing, the government submitted a sentencing memorandum that said that it “has no objection to the Court’s application of the lower range set forth in the PSR [pre-sentencing report].” The PSR calculated Baig’s guidelines range to be 87 to 108 months’ imprisonment. With a two-level global resolution reduction included in the plea agreement, the resulting guidelines range was 70 to 87 months.
Haig was sentenced to 87 months, the top of his guidelines range but 10 months below the guidelines estimate provided in his plea agreement and 48 months below the sentence specified in his appellate waiver. Baig argued that the government breached its plea agreement by “submit[ting] that an ‘appropriate’ sentence would be higher than Baig’s acknowledged Guideline range.”
“We disagree,” the panel said. “The Government did not ‘take [a] position concerning where within the Guidelines range determine by the Court the sentence should fall’ or ‘make [a] motion for an upward departure under the Sentencing Guidelines,’ and thus it did not violate the plea agreement.”
Restitution
In the plea agreement, Baig agreed to pay $2,621,114.97 in restitution to “pay the back wages of the employees described in the Indictment” pursuant to the Victim Witness Protection Act and the Mandatory Victims Restitution Act.
“However, Baig is correct, as the Government concedes, that the victims listed at Appendix 1 do not appear to be franchise employees,” the panel said. The Government agrees that the restitution portion of the judgment must be modified to eliminate any obligation to compensate the four individuals listed in Appendix 1, which relates to a separate case and which the Government inadvertently attached to its letter providing the identities of Baig’s employee victims.
“Accordingly we vacate and remand for correction of that part for correction of the judgment as specific in this order.”
The panel was Circuit Judges Jon O. Newman, Richard C. Wesley and Christopher F. Droney.
Baig is represented by Norman Trabulus of Law Office of Norman Trabulus in New York. The United States is represented by Assistant U.S. Attorneys Christopher Ott and Amy Louise Busa for U.S. Attorney Robert L. Capers, all of the U.S. Attorney’s Office for the Eastern District of New York in Brooklyn, N.Y.
(Additional documents available: District Court judgment. Document #98160712019Z. Appellee brief. Document #98-160712-020B. Reply brief. Document #98-160712-021B.)...