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15-2024-cr(L) 

United States of America v. Murshed (Algahaim) 

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT 

August Term 2016 

Heard: September 29, 2016 Decided: December 1, 2016 

Docket Nos. 15-2024(L), 15-2069(Con) 

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UNITED STATES OF AMERICA, 

Appellee, 

v. 

AHMED A. ALGAHAIM, MOFADDAL M. MURSHED, 

 Defendants-Appellants.1

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Before: NEWMAN, WINTER, and CABRANES, Circuit Judges. 

 Appeal from the June 12, 2015, judgments of the 

District Court for the Northern District of New York 

(Thomas J. McAvoy, District Judge), convicting Mofaddal M. 

Murshed and Ahmed A. Algahaim of offenses concerning 

benefits under the Supplemental Nutrition Assistance 

Program (formerly “food stamps”) and sentencing them to 

prison terms of thirty and twenty-one months, respectively. 

																																																																		

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 The Clerk is requested to change the official caption as 

above. 
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 Affirmed and remanded for consideration of nonGuidelines sentences. 

Molly Corbett, Office of the Federal 

Public Defender, Syracuse, NY 

(Lisa A. Peebles, Federal Public 

Defender, Syracuse, NY, on the 

brief), for Appellant Ahmed A. 

Algahaim.

Jeremy Gutman, New York, NY, for 

Appellant Mofaddal M. Murshed. 

Paul D. Silver, Asst. U.S. Atty., 

Albany, NY (Richard S. 

Hartunian, U.S. Atty., Jeffrey 

C. Coffman, Asst. U.S. Atty., 

Albany, NY, on the brief), for 

Appellee. 

JON O. NEWMAN, Circuit Judge:

 This is an appeal by two defendants found guilty after 

a jury trial of offenses concerning misuse of benefits 

under the Supplemental Nutrition Assistance Program 

(“SNAP”) (formerly “food stamps”). Ahmed A. Algahaim and 

Mofaddal M. Murshed appeal from the June 12, 2015, 

judgments of the District Court for the Northern District 

of New York (Thomas J. McAvoy, District Judge). We affirm 

the convictions and sentences but also remand to permit the 

sentencing judge to consider non-Guidelines sentences in 
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view of the significant effect of the loss enhancement in 

relation to the low base offense level. 

Background 

 Defendants-Appellants Murshed and Algahaim worked at a 

small grocery store called D&D Grocery and Deli (“D&D”) in 

Hudson, New York. Murshed represented himself to be the 

owner of D&D. D&D was approved by the United States 

Department of Agriculture to redeem SNAP benefits for food 

items. SNAP benefits are provided to eligible recipients 

through the use of an electronic benefit transfer (“EBT”) 

card. It is unlawful to give cash in exchange for SNAP 

benefits. 

 Several bona fide customers of D&D and confidential 

informants posing as customers testified that they were 

given cash when they used their EBT cards to redeem SNAP 

benefits. Both Murshed and Algahaim gave cash in exchange 

for SNAP benefits to at least one customer and one 

confidential informant on several occasions. 

 A grand jury indicted Murshed and Algahaim on two 

counts each. Count One charged both defendants with 

conspiring to present or to cause to be presented, benefits 

of a value of more than $100, knowing such benefits to have 
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been received, transferred or used in violation of the 

provisions of the SNAP, in violation of 18 U.S.C. § 371 and 

7 U.S.C. § 2024(c).	 Count Two charged Murshed with using, 

transferring, acquiring, or possessing SNAP benefits in a 

manner contrary to the Food Stamp Act and regulations 

issued pursuant to that act, in violation of 7 U.S.C. § 

2024(b). Count Four charged Algahaim with a violation of 

the same statute. After a five-day jury trial, both were 

convicted on all counts. 

Discussion 

I. Jury Charge on Mens Rea 

 The appellants contend that the District Court’s 

response to inquiries from the jury undermined the Court’s 

initial instruction on the requisite mens rea. In its 

initial charge, the Court instructed that the burden was on 

the Government to prove beyond a reasonable doubt that the 

defendants acted intentionally and deliberately with 

knowledge “that receiving, transferring, using or 

possessing SNAP access devices, in exchange for cash, was a 

violation of the law or Department of Agriculture 

regulations.” The Court explained “intentionally,” 
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“deliberately,” and “knowingly” in standard language. The 

initial charge properly explained the requisite mens rea. 

 The jury asked for clarification in two notes. The 

first asked for a definition of “voluntary,” a word 

included in the initial charge. Counsel did not suggest any 

particular language for the Court’s use in a response. The 

Court told the jurors that they should reread the state of 

mind instruction and that the meaning of “voluntary” would 

become apparent. Counsel for Murshed said he objected only 

to the Court’s saying that the meaning of “voluntary” would 

become apparent. Counsel for Algahaim made no objection. 

 The jury’s second inquiry asked whether all statements 

in the instructions carried equal weight and whether there 

was a difference between two sentences of the charge 

explaining the requisite mental state. Again, counsel 

offered no suggestions for a response. The Court’s reply 

included a reminder that the charge was to be considered as 

a whole, that there was no significant difference between 

the two sentences to which the jury referred, and that 

“voluntary,” the word queried in the jury’s first note, 

meant that an action was taken of a person’s own free will 

and was the opposite of being made to do something. 
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Although the Court stated that it was providing all parties 

an exception to the supplemental charge, it is not clear 

what, if anything, counsel wanted the Court to tell the 

jury. 

 We see no basis for any complaint concerning the 

responses to either note. Neither response in any way 

undermined the initial, entirely proper explanation of the 

requisite mens rea. 

II. Evidence of Mens Rea

 Murshed contends that the evidence was insufficient to 

establish that he acted with the requisite mens rea. 

However, the evidence of the several instances when he 

swiped an EBT card, did not provide food, and instead 

provided cash gave the jury an ample basis for inferring 

the requisite mens rea. 

III. Sentencing Issues 

Guidelines calculations. Calculation of Murshed’s 

Guidelines sentencing range began with a base level of six 

for an offense involving fraud that has a statutory maximum 

sentence of less than twenty years. See U.S.S.G. § 

2B1.1(a)(2). Then from the loss table, twelve levels were 

added because of the amount of loss, see id. § 
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2B1.1(b)(1)(G), bringing the adjusted offense level to 

eighteen, three times the base offense level. In criminal 

history category I, the adjusted offense level yielded a 

sentencing range of twenty-seven to thirty-three months. 

The District Court imposed a sentence of thirty months. 

 Algahaim’s Guidelines calculation also began with a 

base offense level of six, which was increased by ten 

levels for the amount of loss for which he was responsible, 

see id. § 2B1.1(b)(1)(F), bringing the adjusted offense 

level to sixteen. In criminal history category I, the 

adjusted offense level yielded a sentencing range of 

twenty-one to twenty-seven months. The District Court 

imposed a sentence of twenty-one months. 

Mitigating role claim. Algahaim contends that the 

District Court erred by denying him a mitigating role 

adjustment. The Guidelines authorize a sentencing judge to 

reduce an adjusted offense level by two levels if the 

defendant was a “minor participant,” by four levels if the 

defendant was a “minimal participant,” and by three levels 

in cases falling between those two classifications. See id.

§ 3B1.2. To be entitled to a mitigating role adjustment a 

defendant must have “play[ed] a part in committing the 
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offense that makes him substantially less culpable than the 

average participant.” Id. § 3B1.2 Application Note 3(A). 

 In the pending case, no facts concerning what Algahaim 

did are in dispute. The issue for the sentencing judge was 

solely whether those facts entitled Algahaim to a 

mitigating role adjustment. That is the sort of legal 

determination we review de novo. On such review, we agree 

with Judge McAvoy that no adjustment was warranted. 

 Although Algahaim’s role in managing the store might 

have been less than that of Murshed, Algahaim’s role in 

committing the charged offenses was virtually identical to 

Murshed’s. Algahaim did not play a part in the offenses 

that made him substantially less culpable than the average 

participant. 

 Presentence report claim. Murshed contends that the 

District Court violated Rule 32(i)(1)(A) of the Federal 

Rules of Criminal Procedure, which requires a sentencing 

court to “verify that the defendant and the defendant’s 

attorney have read and discussed the presentence report” 

(“PSR”). In the absence of objection in the District Court, 

we review this alleged error under the “plain error” 

standard. We have observed that “the plain-error exception 
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to the contemporaneous-objection rule is to be used 

sparingly, to correct only particularly egregious errors 

when a miscarriage of justice would otherwise result.” 

United States v. Salim, 690 F.3d 115, 125 (2d Cir. 2012) 

(internal quotation marks omitted). At sentencing, 

Murshed’s lawyer assured Judge McAvoy, “Yeah, we did go 

over it [the PSR].” Although Murshed somewhat equivocated 

as to what he knew about the PSR, his lawyer’s statement 

entitled Judge McAvoy to conclude that Rule 32(i)(1)(A) had 

been satisfied. And the statement assures this Court that 

there had not been a plain error that affected Murshed’s 

substantial rights or seriously affected the fairness of 

the proceedings. See United States v. Marcus, 560 U.S. 258, 

262 (2010) (outlining plain error criteria). 

Effect of loss adjustment. One aspect of the 

sentencing, however, warrants further consideration. The 

calculation of Murshed’s adjusted offense level, driven by 

the monetary loss amount, increased his base offense level 

from six to eighteen, a three-fold increase. Similarly, the 

calculation of Algahaim’s adjusted offense level, also 

driven by the loss amount, increased his base offense level 

from six to sixteen. We recognize that these increases 
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complied with the Guidelines Manual. We also recognize that 

the Commission had the authority to construct a set of 

guidelines that used loss amount as the predominant 

determination of the adjusted offense level for monetary 

offenses. 

 But the Commission could have approached monetary 

offenses quite differently. For example, it could have 

started the Guidelines calculation for fraud offenses by 

selecting a base level that realistically reflected the 

seriousness of a typical fraud offense and then permitted 

adjustments up or down to reflect especially large or small 

amounts of loss. Instead the Commission valued fraud (and 

theft and embezzlement) at level six, which translates in 

criminal history category I to a sentence as low as 

probation, and then let the amount of loss, finely 

calibrated into sixteen categories, become the principal 

determinant of the adjusted offense level and hence the 

corresponding sentencing range. This approach, unknown to 

other sentencing systems, was one the Commission was 

entitled to take, but its unusualness is a circumstance 

that a sentencing court is entitled to consider. See

Kimbrough v. United States, 552 U.S. 85, 101 (2007) 
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(sentencing judge may make a non-Guidelines sentence if the 

judge disagrees with a Commission’s policy determination); 

United States v. Cavera, 550 F.3d 180, 192 (2d Cir. 2008) 

(in banc) (same). Where the Commission has assigned a 

rather low base offense level to a crime and then increased 

it significantly by a loss enhancement, that combination of 

circumstances entitles a sentencing judge to consider a 

non-Guidelines sentence. Cf. United States v. Lauersen, 348 

F.3d 329, 344 (2d Cir. 2003) (cumulative effect of 

overlapping enhancements warranted consideration of 

departure), reh’g denied, 362 F.3d 160 (2d Cir. 2004); 

United States v. Gigante, 94 F.3d 53, 56 (2d Cir. 1996) 

(same). 

 We do not rule that the sentences were imposed in 

error. We conclude only that a remand is appropriate to 

permit the sentencing judge to consider whether the 

significant effect of the loss enhancement, in relation to 

the low base offense level, should result in a nonGuidelines sentence. 
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Conclusion 

 Accordingly, we affirm the convictions and sentences, 

but remand for further consideration as outlined in this 

opinion.