While on probation from a 2006 conviction for conspiracy to defraud HUD, Manjur Alam implemented another scheme to defraud mortgage-lending institutions. Between 2006 and 2008, he recruited and organized unqualified buyers to submit loan applications that included false representations, and submitted supporting documentation for the applicants that included false verifications of rent and false letters of credit. The buyers defaulted on the loans and the lenders eventually sold the properties for less than the original loan amounts.
Alam was indicted and pleaded guilty to one count of conspiracy to commit wire fraud charged in a superseding indictment. At sentencing in July 2014, the district court calculated a loss of $485,192.70, and sentenced Alam to 72 months in prison. The advisory guideline range was 46 to 57 months.
Alam appealed, challenging his sentence as procedurally and substantively unreasonable. He argued that the court erred in calculating the loss amount and abused its discretion in varying upward from the guidelines sentencing range.
In determining the amount of loss, the district deducted the sales price from the outstanding balance on the loan. Alam argued that the district court should have used the price paid by the lending institution at the auction required under state foreclosure law, not the price the property sold for following the auction. However, in United States v. Washington, 634 F.3d 1180, 1184 (10th Cir. 2011), the sales price used was the amount recovered in sales on the open market following the lenders’ acquisition of the properties at auction.
Alam also argued the district court should have used the fair market value of the properties rather than the sales price. But this valuation method is only considered when the property has not been sold by the time of sentencing. He also argued the court should have considered the manner in which the lending institution managed and sold the property, which may have decreased the amount recovered, but he did not identify any impropriety in the sales.
With respect to the upward departure from sentencing guidelines, Alam argued that the facts upon which the district court based the upward departure are already considered in the calculation of the guideline level. Courts, however, have broad discretion in considering factors in fashioning a sentence. The district court emphasized that Alam committed the offense while on probation from a conviction for “essentially the same conduct,” and concluded that “there is very little evidence that he respects the law.” It also considered that his “crimes required thorough planning, deliberate dishonesty and the recruitment of others,” and were “not merely incidental ‘mistakes’ in an otherwise lawful life.”
The Tenth Circuit Court of Appeals affirmed the sentenced.
United States v. Alam, 2015 U.S. App. LEXIS 14276 (10th Cir. Kan. Aug. 14, 2015)(unpublished)