                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 08a0693n.06
                            Filed: November 13, 2008

                                         07-2147

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                    )
                                             )
          Plaintiff-Appellee,                )
                                             )
v.                                           )   ON APPEAL FROM THE UNITED
                                             )   STATES DISTRICT COURT FOR THE
TARIQ F. HAMAD,                              )   EASTERN DISTRICT OF MICHIGAN
                                             )
          Defendant-Appellant.               )



          Before: MARTIN, BATCHELDER, and DAUGHTREY, Circuit Judges.


          PER CURIAM. In this sentencing appeal, defendant Tariq F. Hamad1 challenges

the district court’s application of a two-level enhancement, both the procedural and the

substantive reasonableness of his 110-month sentence, and the correctness of a portion

of the court’s restitution order. We find no basis on which to overturn the sentence and

affirm.


                       FACTUAL AND PROCEDURAL BACKGROUND


          From approximately January 2001 until June 2003, Tariq Hamad and his relative,

Kalil Khalil, obtained mortgage loans using false and fraudulent information. The loan


          1
      The defendant was indicted as Tariq F. Hamad, although it appears from other
documents in the record that his surname is actually spelled Hamed.
07-2147
United States v. Hamad

applications contained the names and social security numbers of family members and

acquaintances without their knowledge or permission and referred to non-existent

properties. In order to facilitate the fraud, the defendant used his own mortgage company,

created fictional title and appraisal companies, and fraudulently used the names of actual

appraisal companies. The defendant invested the proceeds of the mortgage loan in the

stock market and obtained additional loans to make payments on the mortgages when he

did not make money in the stock market. The total losses to financial institutions amounted

to $15,542,603. In addition, three individuals claimed lost income resulting from the

defendant’s fraudulent use of the names of their appraisal and title companies.


       The government charged Hamad with wire fraud in a criminal complaint filed in the

Eastern District of Michigan, which the district court dismissed without prejudice upon the

government’s motion.     The defendant agreed to waive indictment and proceed by

information. Hamad pleaded guilty to one count of wire fraud in violation of 18 U.S.C.

§ 1343 pursuant to a Rule 11 plea agreement.


       The district court judge applied a two-level sentence enhancement based on identity

theft, resulting in a total offense level of 31 and a guidelines range of 108-135 months.

The defendant contested the application of both the sentencing enhancement for identity

theft and for losses of more than $7,000,000, arguing that such dual consideration

constituted impermissible double counting. The defendant also argued that the district

court should depart below the sentencing guidelines range due to his extraordinary


                                           -2-
07-2147
United States v. Hamad

acceptance of responsibility, assistance to the government, and personal history and

characteristics, including his charity work and his important role in the community. The

district judge rejected these arguments and imposed a sentence of 110 months’

imprisonment, to be followed by three years of supervised release. The district court also

ordered Hamad to pay $11,884,247 in restitution, including a payment of $320,000 to EDI

Appraisal Services, Inc., a payment that the defendant opposed.


                                        DISCUSSION


Identity Theft Enhancement Issues


       The defendant challenges the district court’s application of the two-level sentencing

enhancement for identity theft on two grounds: first, that a mortgage loan is not a means

of identification within the guideline’s definition and, second, that application of the

enhancement is a form of impermissible double counting. We review de novo a district

court’s legal conclusion regarding application of the guidelines. See United States v.

Hazelwood, 398 F.3d 792, 795 (6th Cir. 2005).


       Sentencing Guideline § 2B1.1(b)(9)(C)(i) (2002) provides that if the offense involved

“the unauthorized transfer or use of any means of identification unlawfully to produce or

obtain any other means of identification,” the base offense level is to be increased by two.

“‘Means of identification’ has the meaning given that term in 18 U.S.C. § 1028(d)(4), except

that such means of identification shall be of an actual (i.e., not fictitious) individual, other


                                             -3-
07-2147
United States v. Hamad

than the defendant or a person for whose conduct the defendant is accountable under

§ 1B1.13 (Relevant Conduct).”       U.S.S.G. § 2B1.1 cmt. n.7(A) (2002).         “Means of

identification” is defined by 18 U.S.C. § 1028(d)(4) as “any name or number that may be

used, alone or in conjunction with any other information, to identify a specific individual,

including any— (A) name, social security number, date of birth . . . or (D) . . . access

device (as defined in section 1029(e)).” 18 U.S.C. § 1028(d)(4)(A)-(D) (2002). “Access

device” is defined as including an “account number . . . or other means of account access

that can be used, alone or in conjunction with another access device, to obtain money,

goods, services, or any other thing of value, or that can be used to initiate a transfer of

funds.” 18 U.S.C. § 1029(e)(1) (2002).


       The sentencing guidelines provide examples of the type of conduct to which

§ 2B1.1(b)(9)(C)(i) applies. See U.S.S.G. § 2B1.1 cmt. n.7(C). The enhancement applies

when “[a] defendant obtains an individual’s name and social security number from a source

. . . and obtains a bank loan in that individual’s name. In this example, the account number

of the bank loan is the other means of identification that has been obtained unlawfully.”

Id. at n.7(C)(ii)(I). The enhancement also applies if the defendant uses another individual’s

information to obtain a “credit card in that individual’s name. In this example, the credit

card is the other means of identification that has been obtained unlawfully.” Id. at

n.7(C)(ii)(II). In contrast, the enhancement does not apply when a defendant “uses a credit

card from a stolen wallet only to make a purchase” or “forges another individual’s signature

to cash a stolen check.” Id. at n.7(C)(iii)(I)-(II). In these examples, the defendant has not

                                            -4-
07-2147
United States v. Hamad

used the stolen credit card or the forged check to obtain another means of identification.

See id.


       In this case, Hamad used the names and social security numbers of his relatives

and acquaintances without their consent in order to obtain mortgage loans. The names

and social security numbers are obviously “means of identification” and satisfy the first part

of the enhancement: “unauthorized transfer or use of any means of identification.”

U.S.S.G. § 2B1.1(b)(9)(C)(i). The question on appeal is whether a mortgage loan qualifies

as a “means of identification,” such that the defendant used the names and social security

numbers “unlawfully to produce or obtain any other means of identification.” Id.


       The defendant argues that “means of identification” are limited to names or

numbers, and that a mortgage loan is not a “means of identification” as contemplated by

the guidelines. We have considered and rejected a similar argument in interpreting the

same sentence enhancement in United States v. Williams, 355 F.3d 893 (6th Cir. 2003).

In Williams, the defendants used false social security numbers to obtain loans from

Community Mortgage Corporation, purportedly for use as down payments for new homes.

See id. at 895-96. The defendants appealed from the district court’s application of the

§ 2B1.1(b)(9)(C)(i) sentence enhancement, arguing that a bank loan number is not a

means of identification. See id. at 898. We relied upon the first example provided in the

commentary and affirmed their sentences, holding that “[a]s a bank loan number is an




                                            -5-
07-2147
United States v. Hamad

account number that can be used to obtain money . . . it is a ‘means of identification’ as

that term is defined in 18 U.S.C. 1028.” Id. at 899.


       The mortgage loans fraudulently obtained by Hamad are associated with account

numbers and were used by the defendant to obtain money, bringing them within the

definition of “means of identification.” This conclusion finds additional support in the history

of the enhancement, implemented pursuant to the Identity Theft and Assumption

Deterrence Act of 1998, which is specifically concerned with misappropriation of an

individual’s identifying information to establish credit in his or her name. See Williams, 355

F.3d at 898 (citing Identity Theft and Assumption Deterrence Act of 1998, Pub. L. No. 105-

318 § 4(a), 112 Stat. 3007). The background to the sentencing guideline references

particular types of harm to victims resulting from identity theft, including damaged credit

rating and inability to obtain a loan. See U.S.S.G. § 2B1.1 cmt. background (2002). The

defendant’s conduct in this case is exactly what this enhancement targets. He fraudulently

used one form of identification in order to create a line of credit—a means of

identification—in the individual’s name.


       The defendant next argues that application of the § 2B1.1(9)(C)(i) enhancement

constitutes impermissible double-counting because the conduct relevant to that

enhancement is the same conduct underlying the base offense.                   In this circuit,

impermissible double-counting “occurs when precisely the same aspect of a defendant’s

conduct factors into his sentence in two separate ways.” United States v. Farrow, 198 F.3d


                                             -6-
07-2147
United States v. Hamad

179, 193 (6th Cir. 1999) (citing United States v. Perkins, 89 F.3d 303, 310 (6th Cir. 1996)).

“[N]o double counting occurs where, although the conduct underlying two enhancements

is the same, a single guideline provision requires the district court to increase the

defendant’s sentence based on different aspects of the defendant’s conduct.” Perkins, 89

F.3d at 310.


       In the instant case, even though the defendant’s conduct constituted fraudulent use

of other people’s social security numbers to obtain mortgage loans, the base offense of

§ 2B1.1 covers a wide range of larceny and other forms of theft. Thus, a defendant

sentenced under § 2B1.1 need not have obtained a means of identification by the

fraudulent use of another means of identification. Because the § 2B1.1(9)(C)(i) sentence

enhancement applies to conduct more specific than the general base offense, applying the

two-level enhancement to Hamad’s base offense level does not constitute impermissible

double counting.


Reasonableness of Prison Sentence


       The defendant next challenges his sentence as procedurally and substantively

unreasonable. We review the sentencing decision of the district court for abuse of

discretion. See Gall v. United States, 128 S.Ct. 586, 594 (2007). In conducting our review

of the district court’s sentence, we must


       first ensure that the district court committed no significant procedural error,
       such as failing to calculate (or improperly calculating) the Guidelines range,

                                            -7-
07-2147
United States v. Hamad

       treating the Guidelines as mandatory, failing to consider § 3553(a) factors,
       selecting a sentence based on clearly erroneous facts, or failing to
       adequately explain the chosen sentence—including an explanation for any
       deviation from the Guidelines range. Assuming that the district court’s
       sentencing decision is procedurally sound, the appellate court should then
       consider the substantive reasonableness of the sentence imposed under an
       abuse-of-discretion standard.


Gall, 128 S.Ct. at 597. The defendant argues that the district court failed to consider

meaningfully and to address all factors required by 18 U.S.C. § 3553(a).


       After calculating the applicable guidelines range, the district court may not simply

presume that the range is reasonable, but must conduct an “individualized assessment

based on the facts presented.” Gall, 128 S.Ct. at 596-97. With the guidelines as a

“starting point and the initial benchmark,” the district court must “consider all of the

§ 3553(a) factors to determine whether they support the sentence requested by a party.”

Id. at 596. In order to allow for meaningful appellate review, the district court must also

“adequately explain the chosen sentence.” Id. at 597 (citing Rita v. United States, 127

S.Ct. 2456 (2007)). “The sentencing judge should set forth enough to satisfy the appellate

court that he has considered the parties’ arguments and has a reasoned basis for

exercising his own legal decisionmaking authority.” Rita, 127 S.Ct. at 2468 (citing United

States v. Taylor, 487 U.S. 326, 336-37 (1988)).


       After ruling on the defendant’s criminal history level and the applicability of the

identity theft sentence enhancement, the district judge in this case stated the applicable

guidelines range. The district judge noted the advisory nature of the guidelines, but went

                                           -8-
07-2147
United States v. Hamad

on to discuss the value of following the guidelines, noting the collective wisdom of the

drafters and the increase in uniformity gained by following the guidelines. The district

judge then proceeded to review orally the § 3553(a) factors:


       [O]ne of the factors that I must take into account is the nature and
       circumstances of the offense and the offender himself.
                                            ....
       The nature of the crime itself is a serious one. . . . I must consider the nature
       of the sentence in order to provide a just punishment; that is, to promote
       respect for the law and to mete out justice with respect to the Defendant and
       his admitted conduct in the case.
       I also must be concerned about the deterrent effect of the sentence and that
       is a factor that I think weighs heavily in this regard.
                                            ....
       . . . I must fashion a sentence that addresses any special needs that the
       Defendant might have . . . .


The district judge stressed the seriousness of the offense, specifically noting the

substantial harm to victims of the offenses and the millions of dollars lost. Although the

district judge expressed his belief that Hamad would not commit wire fraud in the future,

the judge considered the broader deterrent effect of the sentence, explaining that the

sentence would not be reduced “because of the risk of the message that might send to

others.” The district judge also discussed the defendant’s arguments for a reduced

sentence based on his acceptance of responsibility and cooperation with the government,

stating:




                                             -9-
07-2147
United States v. Hamad

       Now I have listened to Mr. Hiyama today and his statements with respect to
       the cooperation that the Defendant exhibited in terms of his elaboration on
       the extent of the scheme and the amount of the loss and assistance to the
       Government in terms of identifying victims and so forth and I am persuaded
       by that argument that a sentence at the lower end of the guideline range is
       more appropriate.


After discussing the § 3553(a) factors and explaining the basis for his sentence, the district

judge sentenced the defendant near the low end of the guidelines, to 110 months in prison

and three years of supervised release.


       The defendant argues that the district judge did not adequately address all of his

arguments for why a lower sentence would be appropriate – specifically, that the judge did

not mention Hamad’s charity work or the 27 letters of support written by members of his

family and community. The defendant alleges that the district judge felt “straight-jacketed”

by the guidelines, as evidenced by his failure to address the individual characteristics of

the defendant or adequately explain the chosen sentence.


       Because the judge sentenced the defendant within the guidelines range, a long

explanation was not required. The Supreme Court addressed the reasonableness of a

within-guidelines sentence in Rita v. United States, 127 S.Ct. 2456, 2468 (2007), and

concluded that “when a judge decides simply to apply the Guidelines to a particular case,

doing so will not necessarily require lengthy explanation.” As long as “the record makes

clear that the sentencing judge considered the evidence and arguments, we do not believe

the law requires the judge to write more extensively.” Id. at 2469. The Sixth Circuit


                                            - 10 -
07-2147
United States v. Hamad

recently affirmed a within-guidelines sentence as procedurally reasonable where the district

judge did not provide a lengthy explanation, but mentioned the relevant § 3553(a) factors

and demonstrated an understanding of the defendant’s arguments. See United States v.

Vonner, 516 F.3d 382, 387-88 (6th Cir. 2008) (en banc).


       In this case, the district judge clearly considered and addressed the arguments

made by the defendant. Even though the district judge did not expressly mention the

character letters or the defendant’s charity work, he made clear that he had “reviewed this

case and considered all of the submissions of Counsel.” Because the defense attorney

twice mentioned the judge taking the time to read the defendant’s sentencing memo and

character letters, it is reasonable to assume that the judge intended to reference the letters

when he said that he “considered all of the submissions of Counsel.” The district judge

provided adequate explanation of his thought process behind the sentence by discussing

the severity of the crime, the impact to victims, and the need to deter others and maintain

uniformity. The district judge also explained that he initially intended to sentence the

defendant “right around the midpoint of the guidelines” and changed his mind due to the

defendant’s arguments, making clear that he did take the defendant’s arguments into

account by ultimately sentencing him near the low end of the guideline range.


       The defendant also briefly challenges his sentence as substantively unreasonable

for failing to take into account his particular history and characteristics. Appellate courts

review sentences for abuse of discretion, see Gall, 128 S.Ct. at 594, and in this circuit we


                                            - 11 -
07-2147
United States v. Hamad

apply a presumption of reasonableness to a within-guidelines sentence. See Vonner, 516

F.3d at 389. For the reasons explained above, the district court judge did appropriately

address the defendant’s personal history and characteristics, and the defendant has not

overcome the presumption of reasonableness or demonstrated that his sentence of 110

months was an abuse of discretion.


Restitution


       The defendant challenges the award of $320,000 in restitution to EDI Appraisal

Services, Inc., as speculative and as violating his right to a jury under Apprendi v. New

Jersey, 530 U.S. 466 (2000). Appellate courts review restitution awards with a bifurcated

standard of review. See United States v. Wood, 364 F.3d 704, 714 (6th Cir. 2004). “We

review de novo whether a restitution order is permitted under the law. If it is, then the

amount of restitution ordered is reviewed under the ‘abuse of discretion’ standard.” Id.

(citations omitted).


       The district court ordered mandatory restitution in the amount of $11,884,247

pursuant to 18 U.S.C. § 3663A.          Mandatory restitution applies “in all sentencing

proceedings for convictions of, or plea agreements relating to charges for, any offense . . .

that is . . . an offense against property under this title, including any offense committed by

fraud or deceit; . . . and in which an identifiable victim or victims has suffered a physical

injury or pecuniary loss.” 18 U.S.C. § 3663A(c)(1). “Victim” is defined as “a person directly



                                            - 12 -
07-2147
United States v. Hamad

and proximately harmed as a result of the commission of an offense for which restitution

may be ordered.” 18 U.S.C. § 3663A(a)(2). The victim’s losses are to be determined by

the court and resolved by a preponderance of the evidence.                 See 18 U.S.C.

§ 3664(e)—(f)(1)(A).


       Terry Hanning, owner of EDI Appraisal Services, Inc., submitted a letter to the

district court summarizing his experiences following the defendant’s misappropriation of

his name. After the defendant forged Hanning’s name to fraudulent appraisals, a number

of banks removed EDI Appraisal Services from their list of approved appraisers. The State

of Michigan Appraisal Licensing department brought fraud charges against Hanning, and

he alleges that his reputation has been permanently damaged. Hanning alleges that his

business has suffered as a result and points to the decreased income of EDI Appraisal

Services. The average gross income for the three years prior to the defendant’s use of EDI

Appraisal Services’s name was $357,000, but the average gross income for the three

years after the fraudulent appraisals dropped to $264,917. Based on this letter, the district

court judge found by a preponderance of the evidence that EDI Appraisal Services was a

victim with losses of $320,000.


       The defendant challenges this finding, arguing that the evidence is speculative and

insufficient to establish either his victim status or his amount of damages. The defendant

alleges that EDI Appraisal Services’s lost revenues may be due to factors other than his

use of the company’s name on his fraudulent mortgage applications and that additional


                                           - 13 -
07-2147
United States v. Hamad

support is required. However, the district court judge directly addressed the defendant’s

argument, stating:


       I think the argument that the Defense makes with respect to speculativeness
       has to do with the fact that there may be other factors that caused the
       reduction in his annual income as an appraiser other than simply the harm
       caused by the theft of his identity by the Defendant in this case, and indeed,
       one only needs [to] read the paper with respect to what’s happening in the
       economy and the housing market to conclude that perhaps the volume of
       transactions is considerably less, but I’m satisfied from the letter that Mr.
       Hanning was a respected appraiser who was near the top of his game with
       respect to reputation in the business and would have been called upon to
       perform appraisals on the transactions that did occur, and therefore, I’m
       satisfied that the amount of $320,000 reflects an actual loss to him as a
       result of the conduct of the Defendant in this case, and so I will make a
       determination of that $320,000 [b]e included in the restitution figure that I will
       ultimately determine in this case.


       Hanning submitted evidence demonstrating a loss in income after the defendant’s

use of his company’s name. The district court judge was entitled to rely upon that letter

and Hanning’s statement in court to find that he was a victim and that he lost $320,000 in

revenue as a result of the defendant’s scheme. “An abuse of discretion occurs when the

reviewing court is left with the ‘definite and firm conviction that the trial court committed a

clear error of judgment.’” United States v. Hunt, 521 F.3d 636, 648 (6th Cir. 2008) (quoting

Dubay v. Wells, 506 F.3d 422, 431 (6th Cir. 2007)). In this case, the district court judge

had sufficient evidence to support his conclusion and, therefore, did not abuse his

discretion in awarding Hanning $320,000 in restitution.




                                             - 14 -
07-2147
United States v. Hamad

        The defendant argues that because Hanning’s loss of $320,000 was not a fact to

which he admitted or a fact found by a jury, the restitution award violates Apprendi, which

held that all facts which increase the maximum sentence be admitted by the defendant or

found by a jury. However, this court found in United States v. Sosebee, 419 F.3d 451,

461-62 (6th Cir. 2005), that the ruling in Apprendi does not apply to restitution orders

because restitution statutes do not specify a statutory maximum and              because the

restitution statute “mandates that a judge exercise his or her discretion.” Therefore, the

restitution order in this case violates neither Apprendi nor the defendant’s right to a trial by

jury.


                                       CONCLUSION


        For the reasons set out above, we AFFIRM the judgment of the district court in its

entirety.




                                             - 15 -
