In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 05-1302 & 05-1303

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

HAIDER BOKHARI and

QASIM BOKHARI,

Defendants-Appellants.

____________

Appeals from the United States District Court

for the Eastern District of Wisconsin.

No. 04-CR-56—Rudolph T. Randa, Chief Judge.

____________

ARGUED SEPTEMBER 12, 2005—DECIDED DECEMBER 6, 2005

____________

Before POSNER, ROVNER, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. Defendants Haider Bokhari

and Qasim Bokhari pled guilty to various counts of mail

fraud and money laundering arising out of their scheme to

defraud a federal government program that provides funds

to economically disadvantaged schools. In separate proceedings, the district court sentenced each defendant to concurrent sentences of seventy-two months’ imprisonment for

money laundering and sixty months’ imprisonment for mail

fraud. The defendants appeal these sentences, claiming that

the district court erred in failing to make precise calculations of the total offense levels and corresponding sentencing ranges under the United States Sentencing Guidelines
2 Nos. 05-1302 & 05-1303

1 The parties do not contend that the schools knowingly participated in the defendants’ fraudulent scheme.

(“Guidelines”). We agree, and therefore vacate the sentences

and remand for resentencing.

I. BACKGROUND

Defendants were indicted for defrauding the federal

government’s E-Rate Program, which provides funding

for economically disadvantaged schools to obtain or upgrade

computer systems for students. The E-Rate Program requires schools to solicit competitive bids for work

and submit the proposed contracts and certifications to

the federal government. The government then pays a

percentage of the cost directly to the contracted provider,

while the school pays the remainder, depending on the

school’s financial needs.

The defendants defrauded the federal government by

inducing school officials to contract with their company

in exchange for promises that the defendants would

waive any fees due to them from the schools. They also

promised certain schools free computers.1

 In some instances, the defendants fraudulently took over the school’s

role by submitting directly to the federal government forms

that inflated and disguised the amount and nature of the

contracts. The defendants ultimately convinced over

twenty-one schools in the Milwaukee and Chicago areas

to select their company for services. In total, they requested

over $16,000,000 from the E-Rate Program, and, although

they never performed any services for these monies, over

the course of their scheme, they actually received

$1,200,000. The bulk of these funds were laundered through

a series of bank accounts in Virginia and a significant

amount of the money eventually landed in Pakistan.
Nos. 05-1302 & 05-1303 3

2 The district court properly treated the Guidelines as advisory

post-Booker, but, as discussed infra, failed to appreciate the

full implications of Booker on the continuing requirements to

calculate properly the sentencing range under the Guidelines.

In October 2004, the defendants pled guilty to various

charges, including counts of mail fraud, money laundering,

and conspiracy. On January 28, 2005, shortly after the

Supreme Court’s decision in United States v. Booker, ___

U.S. ___, 125 S. Ct. 738 (2005), the defendants were

sentenced in separate proceedings to concurrent sentences of seventy-two months’ imprisonment for money

laundering and sixty months for mail fraud,2

 and three

years supervised release. They were also ordered to pay

over $1,200,000 in restitution.

The defendants now appeal their sentences.

II. ANALYSIS

This court reviews post-Booker criminal sentences for

unreasonableness. Booker, 125 S. Ct. 738. If the sentence

imposed falls within the properly calculated range prescribed by the Guidelines, a rebuttable presumption of

reasonableness applies to that sentence. United States v.

Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). If the sentence

imposed falls outside of the applicable range, the district

court should explain the reasons for its departure from the

Guidelines’ now-advisory range. United States v. Dean, 414

F.3d 725, 727-28 (7th Cir. 2005). Thus, a crucial predicate

to our review for reasonableness is the district court’s

proper—and explicit—determination of the total offense

level and corresponding sentencing range under the

Guidelines. United States v. LaShay, 417 F.3d 715, 719 (7th

Cir. 2005).
4 Nos. 05-1302 & 05-1303

3 The sentencing ranges for offense levels 19 through 29 (under

defendants’ Criminal History Category I) are as follows: level 19:

30-37 months; level 20: 33-41 months; level 21: 37-46 months;

level 22: 41-51 months; level 23: 46-57 months; level 24: 51-63

months; level 25: 57-71 months; level 26: 63-78 months; level 27:

70-87 months; level 28: 78-97 months; and level 29: 87-108

months.

Here, the district court did not calculate the total offense

level for either defendant with sufficient precision for this

court to conduct a proper review for reasonableness.

Specifically, both the pre-sentencing report (“PSR”) and the

government recommended a total offense level of 29 under

the Guidelines for each of the defendants. Based on the

defendants’ criminal history level of I, the sentencing guideline range for this offense level was 87 to 108

months. The defendants filed numerous objections to the

PSR, arguing, among other things, that the intended loss

was $1.2 million, rather than the $16 million-plus amount

recommended in the PSR. The defendants also objected

to the PSR’s recommendation for upward adjustments

due to “sophisticated means” and “role in offense” factors.

U.S.S.G. §§ 2S1.1(b)(3), 3B1.1 (2004). Therefore, at the

sentencing hearing, the defendants argued that the proper

total offense level was 19, or perhaps 21, rather than 29.3

According to their calculations, the recommended sentencing guideline range was as low as 30 to 37 months.

The sentencing transcript reveals that the district

court did not definitely resolve the defendants’ objections to

the PSR, and therefore did not—and could not—calculate

the total offense level and corresponding sentencing range

with requisite specificity. Specifically, it is unclear whether

the district court granted or denied defendants’ objections

to the two-level enhancements for “sophisticated means”

and “role in offense.” In addition, although it appears that

the district court determined that the intended loss amount
Nos. 05-1302 & 05-1303 5

4 For instance, the interpretation of the district court’s statement

that the defendants’ total offense level was “somewhere in the 26

range” can affect our review. If the district court’s statement

reflects a finding that the total offense level was 26, then the

seventy-two months’ sentence imposed falls within the Guidelines

range, and is entitled to a presumption of reasonableness. If,

(continued...)

was $16 million, rather than $1.2 million, this factual

finding is also less than clear.

Instead, it appears that the district court judge arrived at

only an estimate of the total offense level, which he considered to be “around” level 26 or 27 for each of the defendants.

For instance, the district court judge stated the following

when sentencing Qasim Bokhari:

If one were to look at the Guidelines one would say,

well, there is a 29 range at this juncture. And if it

took into account considerations of ruling on the

objections, and giving you credit for the—for the

lack of a sophisticated laundering effort, the lack of

role in offense, the Court would still have you

somewhere in the 26 range in that type of analysis.

(R.118: 35:9-15) (emphasis added).

Simply put, the sentencing record here lacks sufficient

clarity for this court to determine how—or if—the district

court made final rulings on the defendants’ objections to the

PSR, much less the district court’s methodology and final

determinations pertaining to total offense level under the

Guidelines. This is not a mere academic exercise. Without

specific information pertaining to the district court’s

calculation of the total offense level, we cannot determine

whether the sentence falls within the Guidelines range (and

therefore is entitled to a presumption of reasonableness) or

whether it falls outside of the recommended range (and

therefore requires sufficient additional reasoning from the

district court).4 See Dean, 414 F.3d at 727-28. Nor can we
6 Nos. 05-1302 & 05-1303

4 (...continued)

however, the statement reflects a finding that the total offense

level was 25, then the imposed sentence falls outside of prescribed

range, and is not entitled to presumptive reasonableness.

determine where the sentence falls in relation to the upper

and lower bands within a particular recommended sentencing range. We need this information to review the sentences

for reasonableness and to consider whether any errors by

the district court were merely harmless error. See LaShay,

417 F.3d at 719.

The government argues that there is sufficient information in the record for this court to calculate the appropriate advisory sentencing range under the Guidelines. But

this argument misses the mark. We have repeatedly held

that it is the role of the district court—not this court—to

make the initial factual findings necessary to support a

sentencing calculation. United States v. Patel, 131 F.3d

1195, 1202 (7th Cir. 1997); United States v. Tai, 41 F.3d

1170, 1175 (7th Cir. 1994). We reiterate that

basic proposition.

Thus, the proper course here is to allow the district

court to make explicit and clear factual findings and

determinations pertaining to the intended loss amount, as

well as defendants’ other objections to the PSR. This

will allow a proper calculation of each defendant’s total

offense level and sentencing range under the Guidelines.

The district court may then resentence, providing, if

necessary, sufficient rationale for any deviation from the

recommended sentencing range under the Guidelines.

The remand ordered here moots the defendants’ claims

that the application of Booker violates the Due Process

clause and ex post facto principles. Although we need not

reach the merits of these claims, we note this court has

recently rejected them. See United States v. Jamison, 416
Nos. 05-1302 & 05-1303 7

F.3d 538, 539 (7th Cir. 2005); United States v. Paulus, 419

F.3d 693, 698 (7th Cir. 2005).

Finally, as we noted during oral argument, by asking that

we vacate their sentences under these circumstances, on

remand defendants here run the risk of exposing themselves to potentially higher sentences. See United States v.

Goldberg, 406 F.3d 891, 894-95 (7th Cir. 2005). But the

defendants’ counsel assured us during oral argument that

this is a risk that the defendants are willing to take, so the

defendants knowingly embark on this course.

III. CONCLUSION

For the foregoing reasons, we VACATE the defendants’

sentences and REMAND for resentencing in accordance with

this opinion.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—12-6-05