Court filing

Defendant Talal Abbas’ Motion for Downward Variance — United States v. Abbas (Dkt. 16, E.D. Mich.)

Summary

A motion for downward variance by defendant Talal Abbas, through attorney Doraid B. Elder, in United States v. Abbas, Case No. 18-20771, in the U.S. District Court for the Eastern District of Michigan, filed September 3, 2019 as ECF No. 16. It states that Abbas was charged on November 15, 2018 with one count of Federal Program Fraud under 18 U.S.C. § 641, with forfeiture allegations, and pleaded guilty on April 24, 2019. The parties' Rule 11 plea agreement put the Guideline Range at 24-30 months, based on a total offense level of 17 and criminal history category I, while Probation proposes a two-point addition for a range of 30-37 months. Abbas asks for a downward variance to a sentence of 18 months.

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Filed September 3, 2019 in Talal Abbas; one of 1 filings from this case.

Record facts

Court	U.S. District Court for the Eastern District of Michigan
Filed	2019-09-03

Cite this document

“Defendant Talal Abbas’ Motion for Downward Variance — United States v. Abbas (Dkt. 16, E.D. Mich.).” U.S. District Court for the Eastern District of Michigan, No. 3:18-cr-20771, Doc. 16, filed 2019-09-03. Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/full-docket-talal-abbas-mied-334230/2019-09-03-gov-uscourts-mied-334230-16-0-doc-16/, SHA-256 6209854593c415381402df5aada81a76c0199ea88fce622556368268bf45e143.

Full text

Case 3:18-cr-20771-RHC-MKM ECF No. 16 filed 09/03/19 PageID.62 Page 1 of 13

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

UNITED STATES OF AMERICA, CASE NO. 18-20771

vs. HON. ROBERT H. CLELAND

TALAL ABBAS
Defendant.
_________________________________/

DEFENDANT TALAL ABBAS’ MOTION FOR DOWNWARD VARIANCE

NOW COMES Defendant, TALAL ABBAS, by and through his attorney, Doraid B.

Elder, and hereby moves this Honorable Court to vary from the Sentencing Guideline Range for

the reasons set forth in this motion and the accompanying Brief in Support of Motion for

Downward Variance:

1. On November 15, 2018 Mr. Abbas was charged with one count of Federal Program Fraud

in violation of 18 U.S.C. § 641; and Forfeiture Allegations pursuant to 18 U.S.C. §

981(a)(1)(c) and 28 U.S.C. § 2461.

2. Mr. Abbas appeared before this Honorable Court on April 24, 2019 and pled guilty to the

single count of Federal Program Fraud.

3. Mr. Abbas and the government negotiated a Rule 11 plea agreement and jointly

concluded that the applicable U.S. Sentencing Guideline Range is 24-30 months based on

a total offense level of 17 and a criminal history category of I. This calculation is based

on no upward adjustment for role in the offense pursuant to USSG 3B1.1(c). However,

Probation has taken the position that there should be a two point addition, resulting in a

Total Offense Level 19 and a Guideline Range of 30-37 months.

Case 3:18-cr-20771-RHC-MKM ECF No. 16 filed 09/03/19 PageID.63 Page 2 of 13

4. Mr. Abbas filed an objection to the Presentence Investigation Report and the Probation

Department responded.

5. There are compelling reasons to grant Mr. Abbas a downward variance from the

Guideline Range.

6. Mr. Abbas respectfully requests that this Honorable Court to impose a sentence of 18

months.

7. In accordance with Local Rule 7.1 counsel sought concurrence on this motion on August

29, 2019.

Dated: September 3, 2019 Respectfully submitted,

/s/ Doraid B. Elder
Doraid B. Elder (P57728)
Attorney for Mr. Abbas
1360 Porter Street, Suite 200
Dearborn, MI 48124
(313) 582-5800
doraidelderpc@gmail.com

Case 3:18-cr-20771-RHC-MKM ECF No. 16 filed 09/03/19 PageID.64 Page 3 of 13

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

UNITED STATES OF AMERICA, CASE NO. 18-20771

vs. HON. ROBERT H. CLELAND

TALAL ABBAS
Defendant.
_________________________________/

DEFENDANT TALAL ABBAS’ BRIEF IN SUPPORT OF MOTION FOR DOWNWARD
VARIANCE

NOW COMES Defendant, TALAL ABBAS, by and through his attorney, Doraid B. Elder,

and states the following in support of his Motion for Downward Variance:

I. INTRODUCTION

For the reasons outlined below Mr. Abbas respectfully requests that this Honorable Court

vary downward from the Guidelines and impose a sentence of 18 months.

II. GUIDELINE RANGE

Mr. Abbas and the government negotiated a Rule 11 plea agreement and jointly concluded

that the applicable U.S. Sentencing Guideline Range is 24-30 months based on a total offense

level of 17 and a criminal history category of I. This calculation is based on no upward

adjustment for role in the offense pursuant to USSG 3B1.1(c). However, Probation has taken the

position that there should be a two point addition, resulting in a Total Offense Level 19 and a

Guideline Range of 30-37 months.

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III. APPLICATION OF 18 U.S.C. § 3553(a)

In determining the length of a sentence, 18 § U.S.C. 3553(a) requires that any sentence

imposed to be “sufficient, but not greater than necessary” to achieve the relevant statutory

purposes for sentencing. To ensure this, Congress set forth a series of factors to be considered:

(1) the nature and circumstances of the offense and the history and characteristics of the
defendant;
(2) the need for the sentence imposed
(A) to reflect the seriousness of the offense, to promote respect for the law, and to
provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed education or vocational training,
medical care, or other correctional treatment.
(3) the kinds of sentence available;
(4) the kinds of sentence and the sentencing range;
(5) any pertinent policy statement;
(6) the need to avoid unwarranted sentencing disparities among defendants;
(7) the need to provide restitution to any victims of the offense.

U.S. v. Duane, 533 F.3d 450 (6th Cir. 2008). Additionally, § 3553(b) requires that the sentencing

court impose a sentence within the guideline range “unless the court finds that there exists an

aggravating or mitigating circumstance…that should result in a sentence different from that

described”. An application of the § 3553(a) factors to this case warrant a downward variance.

A. 18 USC § 3553(a)(1): The nature and circumstances of the offense and Mr. Abbas’
history and characteristics.

The Court is well versed in the facts of the nature and circumstances of the offense, therefore

they do not warrant repetition. Mr. Abbas was born in Deir-Ames, Lebanon on September 17,

1967. Mr. Abbas is the oldest of ten children and recalls having a good, lower-middle class life

during his childhood. The family lived in a small village, and for most of Mr. Abbas’s childhood

his father worked in the United Arab Emirates, coming home only twice a year to see the family.

Fortunately Mr. Abbas’ father’s employment sustained the family financially and Mr. Abbas did

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not have to work as a child. He would not have been opposed to it, but his parents wanted him to

focus on school, and work was hard enough to come by for adults, let alone children. Mr. Abbas

excelled in school; he attended college in Beiruit for a year but could not return for his second

year due to financial reasons. He was also accepted into law school in Lebanon, but could not

attend because he could not afford the tuition. Since he could not attend law school Mr. Abbas

took classes and obtained his teaching certificate. He taught at a local village school for seven

years before being promoted to vice principal at the local high school, where he served for

another six years.

Mr. Abbas married his wife and the couple had their four children before moving the family

to the United States in 2008. Mr. Abbas’ entire family had immigrated prior to him, and

although he was leaving a great job that he loved and the village where he grew up, he knew that

he wanted to give his children the opportunity to grow up in the U.S. When Mr. Abbas arrived

in the U.S. he quickly realized that his teaching credentials from Lebanon would do him no good

here in the U.S. As a man in his 40s with a high school education and no other skills, his options

for employment were limited. Mr. Abbas found a job working in packaging for Garden Fresh.

He was incredibly unhappy in his new life in the U.S., so he decided to return to Lebanon, alone,

where he could go back to teaching and send his earnings to his family here. After just a few

months Mr. Abbas realized that he could not earn enough in Lebanon to support himself and his

family. That, coupled with the fact that he missed his wife, kids, and extended family

desperately, solidified his decision to return to the U.S. When he came back he began working

part time at a grocery store owned by his parents and operated by his brother (Al-Mona Market).

In 2012, just two years later, Mr. Abbas was presented with the opportunity to purchase the store.

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When Mr. Abbas purchased Al-Mona he had dreams of investing in it and making drastic

improvements. The economy was making a comeback from the Recession, but that also

produced new competition opening all around him. Within a year of Mr. Abbas purchasing the

store, Dearborn Fresh (a major supermarket that caters to the Arab community) opened around

the corner; another year after that, Papaya Market opened down the street. Al-Mona had been

struggling financially prior to its new competition, and things began to look rapidly more dire.

Al-Mona had a steady stream of regular, known, customers, and in order to keep them from

shopping elsewhere Mr. Abbas felt he had to offer them something to remain loyal to his store.

When a few customers inquired about purchasing non-approved items with their WIC or SNAP

benefits, Mr. Abbas reluctantly agreed. He knew that if he said no they would leave and shop

down the street. It was against his better judgment and was a terribly difficult decision. He

began doing it only for well-known customers. Then it grew to their family and friends. Then,

seemingly out of nowhere, people would start coming to Al-Mona with their friends, and the

custom began to snowball beyond Mr. Abbas’ control. In 2014 Mr. Abbas tried to sell the

business, but he could not find a buyer. The demand for government benefit exchanges became

greater and greater. Mr. Abbas tried again to sell the business. He found a buyer, but the deal

fell through at the last minute. It was at this point that he knew he had to close the business and

get out. At the time he was charged in this case he was in the process of closing down and had

very little inventory left. He also informed his landlord that he would not be renewing his lease.

Mr. Abbas does not offer this as an excuse for his behavior. He has accepted responsibility for

his violation of the law and will continue to do so. He does, however, offer this to the Court as

an explanation as to how it began and how it grew beyond his control so quickly. This is not a

case where he was a mastermind or ringleader of a large operation. This is a small family owned

Case 3:18-cr-20771-RHC-MKM ECF No. 16 filed 09/03/19 PageID.68 Page 7 of 13

and operated store that served its customers as best it could considering the economic and

financial situation it was in.

Until his oldest son recently became employed, Mr. Abbas was the sole provider for his

family. His wife has never been employed outside the home and has no marketable job skills.

His oldest daughter is currently enrolled in college at Madonna university and his two youngest

children are in school. This family is going to be severely impacted by Mr. Abbas’s

incarceration. Reduction of the destructive effects that incarceration of a defendant may have on

innocent third parties is among the permissible justifications for a downward variance. U.S. v.

Milikowsky, 65 F.3d. 4 (2nd Cir. 1995) The Third Circuit Court of Appeals held that the

sentencing court erred in holding that it could not issue a sentence below the guidelines for a

defendant who resided with her elderly parents, who were physically and financially dependent

on her, where her father had undergone brain surgery and suffered a heart attack. U.S. v.

Dominguez, 296 F.3d. 192 (3rd Cir. 2002) See also U.S. v. Milne, 384 F.Supp.2d 1309 (E.D.

Wis. 2005) (below guideline sentence because the defendant was the sole supporter of a large

family and “a long period of imprisonment would have a very harsh effect on defendant’s

dependents”).

Mr. Abbas respectfully asks the Court to consider his otherwise excellent character, work

ethic and otherwise law-abiding life, as also supported by his Sentencing Memorandum and

attached exhibits, when considering a downward variance. See U.S. v. Autery, 555 F. 3d 864 (9th

Cir. 2009) (defendant’s guidelines 41-51 months; court’s sua sponte variance to probation was

not unreasonable in part because of the defendant’s positive characteristics “such as having no

history of substance abuse, no interpersonal instability, no sociopathic or criminalistic [sic]

attitude, his motivation and intelligence, and the support of his wife and child…These

Case 3:18-cr-20771-RHC-MKM ECF No. 16 filed 09/03/19 PageID.69 Page 8 of 13

characteristics undoubtedly constitute ‘history and characteristics of the defendant’ that justify a

variance below the guidelines”.) Mr. Abbas displays all of the history and characteristics

recognized by the court in Autry and asks that this Court also impose a variance below the

guidelines.

B. 18 USC § 3553(a)(2)(A): The need for the sentence imposed to reflect the seriousness of
the offense, to promote respect for the law, and to provide just punishment for the
offense.

Mr. Abbas’ immediate cooperation and guilty plea demonstrate his acceptance of

responsibility for his role in the offenses that bring him before this Honorable Court. He

understands that the crimes he was charged with, and ultimately pled guilty to, are serious

offenses that had consequences far beyond those that have impacted him directly. Mr. Abbas

comes before this Court prepared to accept the consequences of his actions, however a sentence

including a downward variance would still accomplish the goals of 18 USC § 3553(a)(2)(A).

Mr. Abbas’ respect for the law has been demonstrated during his supervision by pretrial

services. He has been under the Court’s supervision since November 2018 and has exhibited

excellent behavior. Courts have recognized that a defendant’s behavior while under the

supervision of pretrial services can show the likelihood of reoffense. See U.S. v. Munoz-Nava,

524 F.3d 1137 (10th Cir. 2008).

C. 18 USC § 3553(a)(2)(B): The need for the sentence imposed to afford adequate
deterrence to criminal conduct.

This case is Mr. Abbas’ only contact with the criminal justice system. Although the

guidelines take into account his lack of criminal history, sentencing courts may also consider this

factor when determining a sentence. In U.S. v. Tomko, 562 F.3d 558 (3rd Cir. 2009) the

defendant was convicted of tax evasion of $225,000; the court deviated from the guideline range

Case 3:18-cr-20771-RHC-MKM ECF No. 16 filed 09/03/19 PageID.70 Page 9 of 13

of 12-18 and imposed a sentence of probation on the condition of one year home detention and a

fine, due to the defendant’s minimal criminal record. See also U.S. v. Paul, 561 F. 3d 970 (9th

Cir. 2009) (Defendant convicted of embezzlement and Guidelines 10-16 months; court’s within

guideline sentence of 15 months was unreasonably high because he was a first time offender

with no criminal record whatsoever) and U.S. v. Huckins, 529 F. 3d 1312 (10th Cir. 2008)

(Guidelines 78-97 month; court’s variance to 24 months was proper in part because it was the

defendant’s first conviction). Mr. Abbas had never seen the inside of a courtroom until his

involvement in this case.

In addition to his lack of criminal record, Mr. Abbas is not a risk for recidivism due to his

age (52). Many courts have recognized the fact that older defendants pose a much lower risk of

committing another crime and therefore vary downward from the Sentencing Guidelines. In U.S.

v. Bariek, 2005 WL 2334682 (E.D. Va. Sept. 23, 2005) the guideline range was 37- 46 months;

the offense was defendant’s first, and like Mr. Abbas, he arrived in the United States early in his

life, obtained citizenship, maintained stable employment, supported his family and became a

well-respected member of his community. The judge stated that there was no indication that Mr.

Bariek posed a recidivism risk and that there was no compelling need for rehabilitation that

would be served by a lengthy term of incarceration. The same can be said for Mr. Abbas. See

also U.S. v. Hanson, 561 F. Supp.2d 1004 (E.D. Wisc. 2008) (child pornography case where

guidelines were 210-262 months; the court imposed a sentence of 72 months in part because the

defendant was 49 years old, had no prior record and had never been to jail in his life); U.S. v.

Ward, 814 F. Supp. 23 (E.D.Va. 1993) (departure case; departure warranted because guidelines

fail to consider the length of time the defendant has refrained from the commission of his first

crime; defendant was 49 years old). Defendants “over the age of forty…exhibit markedly lower

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rates of recidivism in comparison to younger defendants” and that “[r]ecidivism rates decline

relatively consistently as age increases” from 35.5% under age twenty one to only 9.5% over age

fifty. See Measuring Recidivism: The Criminal History Computation of The Federal Sentencing

Guidelines, at 12, 28 (2004) www.ussc.gov/publicat/Recidivism_General.pdf. Courts have also

acknowledged that a felony conviction can often have the same impact on a defendant as a life

sentence, due to the limits on education and employment. See U.S. v. Smith, 682 F.2d 1236 (9th

Cir. 1982). Knowing that the events that bring him before this Court have ruined everything he

has worked for and will have an unbelievable impact on his family, Mr. Abbas will never make

the same choices again.

In addition to his lack of criminal history, the length of time until his first conviction and

his age, the Court should consider varying below the Guidelines because any sentence of

imprisonment will be devastating to Mr. Abbas and will affect him for the rest of his life. In U.S.

v. Baker, 445 F. 3d 987 (7th Cir. 2006) the Court of Appeals affirmed a below guideline sentence

of 78 months (guidelines called for 108) noting that “significant is the district court’s finding that

a prison term would mean more to Mr. Baker than to a defendant who previously had been

imprisoned. Consideration of this factor is consistent with § 3553’s directive that the sentence

reflect the need for ‘just punishment’ §3553(a)(2)(A) and ‘adequate deterrence’ §

3553(a)(2)(B)”. See also U.S. v. Willis, 479 F.Supp.2d 927 (E.D. Wisc. 2007) (sentence of one

year and one day in drug case with guidelines of 120 months was sufficient in part because the

sentence “provided a substantial punishment for someone like defendant, who had never before

been to jail” and U.S. v. McGee, 479 F.Supp.2d 910 (E.D. Wisc. 2007) (“generally a lesser

period of imprisonment is required to deter a defendant not previously subject to lengthy

incarceration than is necessary to deter a defendant who had already served some serious time

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yet continues to reoffend”). The instant offense is the result of unfortunate decisions by Mr.

Abbas but is not an indication of any kind of criminal career. At his age the chance of him

repeating the same terrible decision is nil. Perhaps more importantly, Mr. Abbas closed the store

and found other employment (working at a local bakery) to support his family. He is neither a

criminal mastermind nor a risk for recidivism.

D. 18 USC § 3553(a)(2)(C): The need for the sentence imposed to protect the public from
further crimes of the defendant

Mr. Abbas poses no threat to the public. In U.S. v. Hein, 463 F.Supp2d 940 (E.D. Wisc.

2006) the sentencing court departed from the guideline term of 12-18 months to a non-custodial

sentence because the defendant was unlikely to re-offend and posed no danger to the public, due

to his minimal prior record and law abiding life. See also U.S. v. Edwards, 595 F.3d 1004 (9th

Cir. 2010), where defendant was convicted of bankruptcy fraud and received a sentence of seven

months probation because it satisfied any deterrent and punitive purposes; U.S. v. Baker, 502

F.3d 465 (6th Cir. 2007), where departure from guidelines of 27-33 to probationary sentence was

appropriate because incarceration was not necessary to protect the public. Mr. Abbas

acknowledges his role in this offense, however he is not a threat to the public.

E. 18 USC § 3553(a)(2)(D): The need for the sentence imposed to provide the defendant
with needed education or vocational training, medical care, or other correctional
treatment

The sentence imposed by the Court does not necessitate any sort of educational or vocational

training.

F. 18 USC § 3553(a)(3) and (4): The kinds of sentences available and the sentencing range
available

Case 3:18-cr-20771-RHC-MKM ECF No. 16 filed 09/03/19 PageID.73 Page 12 of 13

Mr. Abbas and the government concur, pursuant to the Rule 11 Plea Agreement, that the

advisory guideline range is 24-30 months. The Probation Department has calculated the

guideline range to be 30-37 months. There is no statutory mandatory minimum, therefore

the Court may impose any sentence it deems appropriate.

G. 18 USC § 3553(a)(5): Any pertinent policy statement

There does not appear to be any pertinent policy statement that would have an effect on

Mr. Abbas’ sentence.

H. 18 USC § 3553(a)(6): The need to avoid unwarranted sentencing disparities among
defendants

Mr. Abbas does not have any co-defendants. A sentence of 18 months would not

produce unwarranted disparities between Mr. Abbas and another defendant who is similarly

situated to him.

I. 18 USC § 3553(a)(7): The need to provide restitution to victims

The People of the United States of America would bbenefit by Mr. Abbas being

sentenced to an 18 month term of incarceration, below the guideline range, so that he may find

employment and begin working on repayment of his restitution.

IV. CONCLUSION

A downward variance from the Guideline Range will achieve the goals of § 3553(a) and the

body case law that has developed in recent years. Mr. Abbas respectfully asks this Honorable

Court to consider his personal characteristics and history, the impact incarceration will have on

his family, the small window in which the activity took place, his incredibly low likelihood of

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recidivism, and all of the other factors mentioned above and also outlined in his Sentencing

Memorandum, and sentence him to a term of 18 months.