Defendant's Sentencing Memorandum — USA v. Ukashat (Dkt. 226)

Summary

Mr. Ukashat's Sentencing Memorandum and His Position Regarding Sentencing Factors in United States of America v. Mubarak Ukashat, Case No. 2:23-cr-111, in the U.S. District Court for the District of Utah, filed August 20, 2025 as Document 226 by Assistant Federal Public Defender Nathan K. Phelps. It asks the court to impose a sentence of one year and one day, rather than the government's request for a 3-year sentence under the Rule 11(c)(1)(C) range. The memorandum argues that the government's references to the defendant's national origin and alienage are improper, citing USSG § 5H1.10 and U.S. v. Onwuemene, 933 F.2d 650. It also argues that the government's relevant-conduct inferences about the COVID loans and unemployment benefits are flawed, and cites a Guideline range of 24 to 30 months and time already spent confined at home.

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“Defendant's Sentencing Memorandum — USA v. Ukashat (Dkt. 226).” Original at ecf.utd.uscourts.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/defendant-s-sentencing-memorandum-usa-v-ukashat-dkt-226-3621a6af02/, SHA-256 36605364b6fc53c97320e6d3180d0b9e111a2a9ffd6e8e87f34f34c3c8f2ef68.

Full text

Case 2:23-cr-00111-HCN Document 226 Filed 08/20/25 PageID.1432 Page 1 of
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Scott Keith Wilson, Federal Public Defender (#7347)
Nathan K. Phelps, Assistant Federal Public Defender (#14752)
Office of the Federal Public Defender - District of Utah
46 West Broadway, Suite 110; Salt Lake City, Utah 84101
Telephone: (801) 524-4010
Email: Nathan_Phelps@fd.org
Attorneys for Defendant

UNITED STATES DISTRICT COURT

DISTRICT OF UTAH

UNITED STATES OF AMERICA, Mr. Ukashat’s Sentencing
Memorandum and His Position
Plaintiff, Regarding Sentencing Factors

vs.

MUBARAK UKASHAT, Case No. 2:23-cr-111

Defendant. Judge Howard C. Nielson, Jr.

Mubarak Ukashat, though counsel, asks the court to impose a sentence of one year

and one day. This is the appropriate sentence given the facts of this case. The government’s

request for a 3-year sentence, near the maximum in the range before the court under Rule

11(c)(1)(C), rests largely on inappropriate argument that should be disregarded in its

entirety. Instead, a sentence close to one year is proper as it commensurate with the harm

done, the need for deterrence, the harm that Mr. Ukashat has suffered, and his background

generally.

A. The government’s sentencing argument hinges on unconstitution, improper
considerations.

Because Mr. Ukashat is not a citizen of the U.S. while his wife and children are, the

collateral immigration consequences of his prosecution have always hung over this case.
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That was a critical factor that motivated his decision to enter the plea he did. Under that

plea agreement, the court has the option to sentence him between one and three years of

incarceration. But in making its case for a sentence at the maximum of that range, the

government has taken what should be a collateral issue and placed it front and center. The

government has peppered its brief with frequent references to Mr. Ukashat’s status as an

individual from Nigeria, present in the United States merely as a permanent resident. These

arguments are not subtle. Take, for example, the government’s open to its sentencing brief:

Lady Liberty does not invite thieves and criminals into her borders and
onto her shores.

...

Mubarak Sulaiman Ukashat was born in Nigeria. In 2015, he came to
America to successfully pursue a Ph.D. in physics. He became a lawful
permanent resident. He married and had children and contributed to
Muslim student organizations. He sought to become an American
citizen. Outwardly, he appeared to have the makings of a good future
citizen. But while he enjoyed all that America had to offer him, he was
stealing from the United States and its citizens.

During the global COVID-19 pandemic, while so many Americans
were struggling, and Mr. Ukashat was earning a subsidized Ph.D. at
Utah State University, Mr. Ukashat betrayed America and broke her
trust. He engaged in a wire fraud scheme . . . . He repaid the United
States’ generosity in welcoming him to its shores by exploiting the
United States’ pandemic response, misusing COVID relief funds, and
damaging the credit of innocent Americans. 1

This reference to Mr. Ukashat’s national origin or alienage is completely improper.

In a case from almost 40 years ago, the Seventh Circuit noted that it “obviously

would be unconstitutional” to sentence a person “more harshly solely because of their

nationality or alien status.” 2 Nonetheless, the government has made Mr. Ukashat’s status a

1
Doc. 216 at 1–2.
2
U.S. v. Gomez, 797 F.2d 417, 419 (7th Cir.1986).

2
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central pillar of its sentencing argument. Indeed, the government’s repeated focus on Mr.

Ukashat’s national origin goes further than examples condemned in case law. In a

frequently cited case, a district court in Nebraska was reversed because it made the

following statement:

The other thing that I feel that warrants imposition at the high end of
the guideline range: You are not a citizen of this country. This country
was good enough to allow you to come in here and to confer upon you
... a number of the benefits of this society, form of government, and its
opportunities, and you repay that kindness by committing a crime like
this. We have got enough criminals in the United States without
importing any. 3

In that case, U.S. v. Onwuemene, the district court said the defendant’s nationality was just

one of three reasons it sentenced the defendant to the high-end of the then-mandatory

Guidelines sentencing range. 4 Nonetheless, the Eight Circuit held that even if it was just one

reason, the statement still violated the defendant’s due-process rights and required a new

sentencing hearing. 5 By contrast, the government’s focus on Mr. Ukashat’s national origin is

not a one-off statement.

In my review of Tenth Circuit case law, I have not found a published decision that

deals with this issue. However, in an unpublished case from 2014, the Tenth Circuit cites

the Eight Circuit opinion discussed above as representing the correct legal conclusion:

“sentencing a defendant more harshly because of his alien status violates the defendant's

3
U.S. v. Onwuemene, 933 F.2d 650, 650–51 (8th Cir. 1991).
4
Id. at 651–52.
5
Id. at 652.

3
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constitutional right to due process.” 6 Moreover, this conclusion seems to be uniform among

the circuit courts to have considered it. 7

But even without a published Tenth Circuit case, there is plenty of authority that

should have alerted the government to the problem with its argument. For instance, in the

Guidelines it states plainly that “Race, Sex, National Origin, Creed, Religion, and Socio-

Economic Status” are “not relevant in the determination of a sentence.” 8 That provision, in

place since 1987, reflects Congress’ directive that “the guidelines and policy statements are

entirely neutral as to the race, sex, national origin, creed, and socioeconomic status of

offenders.” 9 Similarly, the Justice Manual, which “publicly sets forth internal Department

of Justice (DOJ) policies and procedures,” 10 states that a prosecutor “should oppose

attempts by the court to impose any sentence that is . . . based on a prohibited factor, such

as race, religion, gender, ethnicity, national origin, sexual orientation, or political

association, activities, or beliefs.” 11

The bottom line is that the government’s sentencing argument has been undermined

by its assertion that Mr. Ukashat’s national origin is an aggravating factor. It should be

disregarded completely.

6
U.S. v. Oyegoke-Eniola, 595 Fed.Appx. 784, 787 (10th Cir. 2013) (unpublished)
(cleaned-up) (citing U.S. v. Garcia–Cardenas, 242 Fed.Appx. 579 (10th Cir.2007)
(unpublished)).
7
Id. at 787 (collecting published cases from the Seventh and Ninth Circuits).
8
USSG § 5H1.10.
9
28 U.S.C. § 994(d); accord Onwuemene, 933 F.2d at 651.
10
Justice Manual, § 1-1.100 – Purpose (updated March 2024), available at
https://www.justice.gov/jm/jm-1-1000-introduction.
11
Id., § 9-27.745 - Unreasonable or Illegal Sentences (updated Feb. 2018), available at
https://www.justice.gov/jm/jm-9-27000-principles-federal-prosecution#9-27.745.

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B. The logic underlying the government’s relevant-conduct argument is flawed.

As stated above, the collateral consequences to Mr. Ukashat’s immigration status

were central to his decision to enter the plea agreement before the court. He has pleaded to a

technical, regulatory offense, not the fraud he was charged with. Consistent with that, it was

originally his intent minimize his discussion of that alleged relevant conduct, only objecting

to avoid a finding that he has conceded it. 12

However, the government’s focus on that fraud has made further silence untenable.

Its argument fails to seriously acknowledge any problems with its proof. Essentially, the

government asserts that Mr. Ukashat is at the center of the fraudulent that put the COVID

loan money in his hands without any direct proof. There is no figurative smoking gun—no

proof that the loans applications were completed by him, or even submitted from his IP

address, or something of the like. Instead, recycling its trial memo, it points to how Mr.

Ukashat handled the proceeds of the loans as its prime evidence of fraud. However, the

government asserts all the necessary inferences necessary for conviction as a given. It never

mentions, let alone confronts, the alternative inferences that could be drawn.

To understand the problem with the government’s argument, the court must

understand more backgrounds details. First, there has never been any serious question

whether the loans at issue in this case are fraudulent. The loan paperwork includes the

details of random businesses and individuals. The only connection to Mr. Ukashat is that

the loans were deposited in the Muslim Student Club account, which he had access to. As a

consequence, the only relevant question was whether Mr. Ukashat had the required

culpable mental state that made him criminal liable for the fraudulent loans.

12
See, e.g., FRCrP 32(i)(3)(A) (stating that “the court . . . may accept any undisputed
portion of the presentence report as a finding of fact).

5
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Second, Mr. Ukashat provided an explanation to the government for why he was not

guilty. Around August 2023, his previous counsel sought a resolution of the case with the

government by explaining what would essentially be Mr. Ukashat’s defense at trial: an

acquaintance told Mr. Ukashat that he could get Mr. Ukashat a grant in support of his non-

profit ventures. Mr. Ukashat only needed to provide a business account for the deposit.

Trusting this acquaintance—an apparent friend of a friend—Mr. Ukashat provided details

about himself. However, he did not have a business account for his educational non-profits,

so he provided the Muslim Student club account.

Third, the government obviously did not credit this explanation. It was never curious

about investigating the possibility of others’ involvement in the offense. The government’s

only response was to seek a second superseding indictment that added aiding-and-abetting

allegations to all the previously charged crimes. 13

But despite being aware of Mr. Ukashat’s potential defense, the government makes

no effort to justify the inferences it suggests over the inferences that would support his

defense. For starters, take the government’s focus on Mr. Ukashat using the club business

account. 14 The government asserts that using the club account to receive the funds is

evidence of guilt because the Muslim Student club has nothing to with the agricultural

businesses that were falsely named as the loan applicants. 15 But that inference is faulty

because it presume what it is attempting to prove: that Mr. Ukashat was aware of funds’

true providence. Without that assumption, the fact that the club account was used proved

little. Yes, it shows access and control of the loan funds once they are deposited. But the

13
Doc. 41 at ¶¶ 24, 27, 30.
14
Doc. 216 at 3–4, 7.
15
Doc. 216 at 7.

6
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club account was linked to Mr. Ukashat, so using the account would have been an

ineffective diversionary tactic. And if Mr. Ukashat was unaware of the funds’ true

providence, using the account would also be consistent with innocence.

Similarly, the government focuses on how the funds moved out of the club account,

primarily into other accounts, to further assert Mr. Ukashat’s guilt. It claims both the speed

and the number of accounts involve support an inference that “he knew the funds were

fraudulently obtained and had to be moved quickly.” 16 But the government offers no

explanation of what that inference necessary follows. The majority of the loan funds were

moved to accounts in either Mr. Ukashat’s or his wife’s name. If Mr. Ukashat was trying to

hide fraud, why not move the money into accounts he had no obvious direct control over?

On the other hand, if he believed the money was legitimately his, there is nothing untoward

about putting where he thought was appropriate. And, as both sides concede, the money

had nothing to do with the club, moving the money out of the club account was entirely

appropriate.

A similar point follows how Mr. Ukashat used the money. The government asserts

that the sudden surge in spending also supports an inference of guilt. 17 Again, though, even

Mr. Ukashat thought the money was legitimately his as the proceeds of a grant, then the

same spending infers nothing supporting guilt. That follows, too, for Mr. Ukashat’s effort to

wire money to Nigeria. The government recites with some detail how one credit union put a

restriction on Mr. Ukashat’s that prevented him from wiring money from the account. 18 But

the government fails to note one key point: a large factor playing into the credit union’s

16
Doc. 216 at 4–7.
17
Doc. 216 at
18
Doc. 216 at 9–12.

7
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decision to restrict Mr. Ukashat’s account was the fact that he was wiring money overseas

and to Nigeria in particular. The government offers no explanation for why Mr. Ukashat

should have given into the credit union’s paternalistic oversight. Again, if he thought the

money was legitimate, there was no untoward about taking his business elsewhere.

The government’s most potent circumstantial evidence is the unemployment benefits

improperly requested from other states. But even on this front, the government’s logic needs

help. The government simply asserts, without elaboration, that because Mr. Ukashat was

receiving legitimate unemployment benefits for himself, he must have understood that the

benefits were fraudulent. The government further argues that this conduct shows that Mr.

Ukashat had a common modus operandi. 19 Again, had this case gone to trial, Mr. Ukashat

would likely have presented evidence that he was told that the employment benefits were for

the benefit of Nigerians who, because of travel restrictions, were unable to collect the

benefits directly because they were stuck abroad. And if he believed the benefits were valid,

those benefits were not evidence of modus operandi.

Admittedly, for the inferences to have gone in Mr. Ukashat’s favor, the jury (or this

court) would have to believe that Mr. Ukashat, despite his intellect, is also an incredibly

gullible individual. Except for such gullibility, how could someone like Mr. Ukashat, who

earned a Ph.D. in physics, really believe that he received a grant? The answer is that Mr.

Ukashat would have to possess a similar gullibility for the government’s inferences and

arguments to be valid. Otherwise, how else could a factfinder believe that Mr. Ukashat had

the wherewithal to get valid, non-public information from businesses and individuals, use

that information to apply for loans without leaving any connection he was involved in the

19
Doc. 216 at 13–14.

8
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process—but then funnel all the money to accounts linked to him. The last fact meant that,

eventually, the trail would lead to Mr. Ukashat, and he would be caught, despite his efforts

at obfuscation. Putting the money into accounts tied directly to him is more consistent with

Mr. Ukashat being an unwitting fall guy than a criminal mastermind.

However, despite the strength of Mr. Ukashat’s potential defense, he still pleaded

guilty. As stated already, partly that was due to collateral immigration concerns. But, in all

frankness, the decision was also partly due to the fear that the jury, despite voir dire and

instruction from the court, would nonetheless indulge the same prejudice that the

government blatantly presented in its sentencing memo. Mr. Ukashat’s plea avoided that

potentiality and limited his punishment. It made sense.

But in sentencing Mr. Ukashat, regardless of whether the court concludes that the

fraud is relevant conduct or not, it is important that the court understands that the case

against him is nowhere as clear-cut as the government’s assertions would lead it to believe. 20

Put another way, to the extent the government claims that Mr. Ukashat’s conduct was

“egregious” separate from his focus on his alienage, 21 this explanation shows the possibility

that he potentially innocent, or, alternatively, willfully blind.

20
This is especially true as it concerns the aggravated identify theft charge. To prove
that charge, the government must show that Mr. Ukashat knowingly used “a means of
identification of another person.” 18 U.S.C. § 1028A. That requires proof that Mr. Ukashat
knew the identification was legitimate and not counterfeit. See generally Flores-Figueroa v.
U.S., 556 U.S. 646 (2009). The government presented no evidence that supports that
conclusion. In fact, the government’s dependence on aiding-and-abetting liability makes that
practically impossible.
21
See, e.g., Doc. 216 at 19.

9
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C. The government has failed to prove that the “leader-organizer” enhancement should
apply.

Regardless of the court’s conclusion as to the greater relevant conduct question, the

government nonetheless fails in its burden to show that an enhancement under USSC

§ 3B1.1(c) should apply. The government’s argument is that Mr. Ukashat earned that

enhancement because, purportedly, he used his wife to wire money abroad. 22 However, to

prove the enhancement, the government must show that Mr. Ukashat’s wife was a

participant in the offense—meaning she was criminally culpable—and that Mr. Ukashat

exercised control over her. 23 But it offers only complete speculation about what Mrs.

Ukashat knew or understood, and to extent she might be considered a participant, what role

she played vis-à-vis her husband. In short, the government has in no way met this burden.

D. The court should impose a sentence at the bottom of the agreed upon range.

The court has the option to sentence Mr. Ukashat to between 1 and 3 years of

imprisonment. As stated at the top, the appropriate sentence here is at the bottom of that

range. Specifically, a sentence of 1 year and 1 day imprisonment, together with a 3-year

term of supervised release, combined with the stipulated restitution, is more than adequate

under the § 3553(a) factors. That is a below-Guideline sentence, but under the

circumstances, it is the appropriate sentence in this case.

For starters, the court should take note of Mr. Ukashat’s extended period of home

incarceration. For nearly 18 months, Mr. Ukashat has been confined to either his home or

the small area around it. Although home incarceration was result of his own bad actions—

continued traffic violations—the court must be aware that those conditions were still

22
Doc. 222-2.
23
See USSC § 3B1.1 notes 1 & 2.

10
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onerous even if they were not actual incarceration. That is not to say that his term of home

incarceration should be credited on a day-for-day basis. But in determining what additional

punishment he should receive, his home incarceration deserves to be considered.

Moreover, the five years that have passed since the events underlying this case show

that a term longer than a year is not needed for deterrence or incapacitation. For about three

years, Mr. Ukashat was not on any sort of supervision. After he was charged, and even

when he was confined to his home, he had the potential tools to commit fraud or similar

crime. But through these five years, nothing of the sort happened. While he cannot claim

that he has lived a mistake-free life or has been perfect on court supervision, he has shown

that supervision itself, rather than additional incarceration, is sufficient to deter him from

future misconduct.

In one point of agreement with the government, a longer term is not needed for

rehabilitation. Mr. Ukashat is a well-educated man who has shown resourcefulness even as

he has been confined to his home. During this latter period, he has written and self-

published one book and started a business refurbishing computer equipment. And before he

was charged, he showed a lengthy history of pro-social activities, represented by the letters

offered in his support together with his efforts to deliver educational supplies to his home

country as well as his creation of a streaming educational series.

That leaves only just deserts. Without a clear picture of what conduct should be held

against him, this calculation is fuzzy. But given the Guideline range of 24 to 30 months,

combined with his period of home incarceration, his requested sentence of a year and a day

is more than reasonable and appropriate. And, needless to say, contrary to the government’s

assertions , Mr. Ukashat’s alienage should not play any role in that calculation.

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So, for these reasons, and others that may be presented during his sentencing

hearing, Mr. Ukashat asks the court to impose a sentence near the bottom of the proposed

sentencing range.

Respectfully submitted,

DATED August 20, 2025.

/s/ Nathan K. Phelps
NATHAN K. PHELPS
Assistant Federal Public Defender

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