US v. Sherina Hosein, No. 13-4622 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4622 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SHERINA HOSEIN, Defendant - Appellant. No. 13-4646 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. NAZIM HOSEIN, Defendant - Appellant. Appeals from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., District Judge. (3:11-cr-00253-RJC-2; 3:11-cr-00253-RJC-1) Submitted: July 29, 2014 Decided: Before SHEDD, AGEE, and FLOYD, Circuit Judges. August 6, 2014 Affirmed by unpublished per curiam opinion. Chiege O. Kalu Okwara, LAW OFFICE OF CHIEGE O. KALU OKWARA, Charlotte, North Carolina; Randolph M. Lee, LAW OFFICE OF RANDOLPH MARSHALL LEE, Charlotte, North Carolina, for Appellants. Anne M. Tompkins, United States Attorney, William M. Miller, Assistant United States Attorney, Charlotte, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Following a jury trial, Nazim Hosein ( Nazim ) and his wife, Sherina Hosein ( Sherina ) (collectively, the Hoseins ), were convicted of conspiracy to commit bank fraud, bank fraud, and two counts of making a false statement to obtain a loan. The Hoseins convictions stemmed from their multi-week endeavor to fraudulently secure a credit card and several auto loans. On appeal, the Hoseins challenge aspects of their sentences. We affirm. Generally, we review a sentence using an abuse-of-discretion standard. 552 U.S. 38, 51 (2007). for reasonableness, Gall v. United States, We must first review for significant procedural error[s], including, among other things, improperly calculating the Guidelines range explain the chosen sentence. procedurally reasonable reasonableness. First, Id. may we and failing to adequately Only if we find a sentence consider its substantive Id. Nazim adequately explained Sentencing Guidelines questions its Manual whether the consideration of ( USSG ) district United § 5D1.1(c) deciding to impose a term of supervised release. court States (2012) when We reject Nazim s contention that he properly preserved this issue, and we review for plain error. United States v. Maxwell, 285 F.3d 336, 339 (4th Cir. 2002) (noting standard of review); see also United 3 States v. Dominguez-Alvarado, 695 F.3d 324, 327-28 (5th Cir. 2012) (applying defendant plain only error summarily review to objected § 5D1.1(c) to term claim of when supervised release). Nazim s explanation of suggestion his that sentence was the district insufficient court s overlooks the court s thorough examination of the 18 U.S.C. § 3553(a) (2012) factors, Nazim s personal characteristics, and the circumstances of his offenses, imposition of all given supervised immediately release. prior Thus, to there the was court s no plain error in the district court s failure to elaborate further when considering USSG § 5D1.1(c). We are similarly unpersuaded by Sherina s challenge to her sentence. Sherina argues that the district court should have granted her a reduction in her offense level under USSG § 3B1.2 (2012) because Nazim exerted directed the couple s fraud scheme. control over her and In assessing a challenge to a sentencing court s application of the Guidelines, we review the court s factual conclusions de novo. findings for clear error and its legal United States v. Alvarado Perez, 609 F.3d 609, 612 (4th Cir. 2010) (internal quotation marks omitted). Section 3B1.2 provides a downward adjustment for a defendant who is substantially less culpable than the average participant. USSG § 3B1.2 cmt. 4 n.3(A). [T]he critical inquiry for a sentencing court, in considering a § 3B1.2 adjustment, is not just whether the defendant has done fewer bad acts than [her] codefendants, but whether the defendant s conduct is material or essential to committing the offense. United States v. Powell, 680 F.3d 350, 359 (4th Cir.) (internal quotation marks omitted), cert. denied, 133 S. Ct. 376 (2012). Thus, the court must measure the defendant s individual acts and relative culpability against the elements of the offense of conviction. Id. (internal quotation marks omitted). Sherina had the burden of showing by a preponderance of the evidence that she played a minor role in the offense. Id. at 358-59. Here, as the district court noted, Sherina s presence, signature, and affirmance of various misstatements on multiple credit applications was essential to the Hoseins fraud. fact that Nazim was the instigator and directed The Sherina s actions does not negate the fact that she was indispensable to their repeated crimes. See United States v. Kerr, 13 F.3d 203, 206-07 (7th Cir. 1993). Accordingly, we find no clear error in the district court s refusal to grant Sherina the benefit of § 3B1.2. that See Powell, 680 F.3d at 359. her within-Guidelines unreasonable also fails. Sherina s summary claim sentence is substantively United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006). 5 Accordingly, we affirm the district court s judgments. We dispense contentions with are oral argument adequately because presented in the facts and the materials legal before this court and argument would not aid in the decisional process. AFFIRMED 6

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