U.S. v. Ismail
| Citation | 219 F.3d 76 |
| Decision Date | 01 August 1999 |
| Docket Number | Docket No. 99-1711 |
| Parties | (2nd Cir. 2000) UNITED STATES OF AMERICA, Appellee, v. HESHAM ISMAIL, Defendant Appellant |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Steven M. Statsinger, Legal Aid Society, Federal Defender Division, (Henriette D. Hoffman, on the brief) New York, New York, for Appellant.
Gary Stein, Assistant United States Attorney for the Southern District of New York (Mary Jo White, United States Attorney for the Southern District of New York, Ira M. Feinberg, Assistant United States Attorney, of counsel), New York, New York, for Appellee.
Before: FEINBERG, PARKER, and STRAUB, Circuit Judges.
Appeal from the judgment of the United States District Court for the Southern District of New York (Richard M. Berman, Judge) entered November 23, 1999, imposing sentence after a plea of guilty.
Affirmed.
Hesham Ismail appeals from the sentence imposed after a plea of guilty by the United States District Court for the Southern District of New York (Richard M Berman, Judge). As part of the sentence, the district court ordered Ismail to pay the full amount of restitution, payable to Citibank, without interest, within the five years of Ismail's supervised release. Ismail challenges this payment schedule as uninformed by the statutory factors to be considered in imposing restitution payment schedules, and as unreasonably onerous. For the following reasons, we affirm.
Beginning in 1994, Ismail worked for Citibank N.A. ("Citibank") as a relationship officer in its International Personal Banking Group. From September to November 1998, Ismail embezzled $167,832 from the accounts of two of his customers by preparing and signing fraudulent transaction request forms. With these funds, Ismail issued seven bank checks, which he signed on behalf of Citibank. Most of these checks were payable to Chat Communications L.L.C. ("Chat"), a start-up prepaid phone card company operated by Ismail's brother, Hosam. Ismail also caused Citibank to issue an $8,000 check to cash and a $13,174 check to a Visa credit card company as payment of a debt owed to a friend. After depositing the checks to the Chat account, Ismail drew several checks on the Chat account made payable to himself and to cash. Ismail was caught when a Citibank customer called for an update on one of the accounts from which Ismail had embezzled money. On March 2, 1999, Ismail made written confessions to bank security personnel and to agents of the Federal Bureau of Investigation ("FBI"), which led to his arrest later that month.
On June 14, 1999, without a plea agreement, Ismail pleaded guilty to a one-count information charging him with bank embezzlement, in violation of 18 U.S.C. § 656. Following the guilty plea, the Probation Office prepared a Presentence Investigation Report (the "PSR"), which calculated Ismail's offense level at 14 and his Guidelines range at 15-21 months' imprisonment. The PSR also recommended that Ismail be ordered to pay restitution in the amount of $153,743.28, the remaining amount owed to Citibank after the $14,089.01 he had already repaid. The PSR recommended that payment of restitution be a condition of supervised release, but did not recommend a payment schedule. The PSR contained detailed information on Ismail's family situation, educational background, vocational skills, employment history, and financial circumstances.
On November 22, 1999, the court held a sentencing hearing and sentenced Ismail. Ismail did not object to the factual findings in the PSR and the district court adopted them. Ismail objected to several of the PSR recommendations with regard to his offense level. The district court rejected his arguments; he does not appeal on any of those grounds. Ismail did not object to the PSR recommendation that he be required to pay full restitution, because full restitution is mandated by statute. See Mandatory Victims Restitution Act ("MVRA"), 18 U.S.C. §§ 3663A & 3664(f)(1).
After some discussion, the court ultimately ordered Ismail to pay the full amount of restitution, payable to Citibank, without interest, over five years of supervised release on a monthly schedule of even installments calculated by dividing the total amount of restitution by 60 months. In "imposing the restitution requirement," the court stated that it:
considered the factors set forth in 18 U.S.C. § 3663(a)(1)(B)(i) . . . as well as the recommendation of the probation department. Specifically, I have considered the amount of loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant, and the defendant's dependents, and such other factors as I have deemed appropriate.
The court also made payment of restitution a condition of supervised release. In imposing this payment schedule, the district court also...
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...to the duty to pay restitution when and if funds are eventually acquired." [Porter II], 90 F.3d at 70; see United States v. Ismail, 219 F.3d 76, 78 (2d Cir.2000) (per curiam) (present indigency not a barrier to restitution, order where future earning power exists). Furthermore, in the absen......
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