NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 21

- 1934

_____________

UNITED STATES OF AMERICA

v.

MIRIAM ZUGHBI

Appellant

______________

On Appeal from United States District Court

for the District of New Jersey

No. 3

- 19

- cr

- 00257

- 001

District Court Judge : Honorable Anne E. Thompson

______________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) on

March 1, 2022

Before: McKEE

,  AMBRO, and SMITH, Circuit Judges

(Opinion filed: May 3, 2023 )

_______________________

OPINION 

_______________________

McKEE, Circuit Judge

.

 Judge McKee assumed senior status on October 21, 2022.

  This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not

constitute binding precedent.2

Miriam Zughbi appeals th e order of restitution imposed after she pled guilty to

conspiring to defraud the Supplemental Nutrition Assistance Program

. For the following

reasons, we will affirm the District Court.

Zughbi stipulated that the conspiracy caused a loss between $3.5 million and $9.5

million. The Probation Office accepted this stipulation, and recomme nded restitution of

approximately 4.6 million

. Zugbhi did not timely object. 1 However, d uring the sentencing

proceeding, Zughbi’s attorney stated:

I know your Honor has already made a ruling on the restitution amount

. . . [,] but

. . . the $4.6 million is the total amount of money that was run through

the business in the period that we’re discussing. Many, many, many of those

transactions were legi timate transactions. 2

Neverthe l ess, the C ourt then ordered Zughbi to pay restitution in the amount of

$4,663,760.30. This appeal followed. 3

The Mandatory Victim Restitution Act requires a court to “order restitution to

each victim in the full amount of each victim’s losses as determined by the court and

without consideration of the economic circumstances of the defendant.” 4 The District

Court's factual finding regarding the amount of loss is reviewed for clear error. 5 To

establish clear error, Zughbi must show “that the [$4,663,760.30] restitution figure is

1 Zughbi had 14 days to object to the draft PSR. See Fed. R. Crim. P. 32 (f)(1).

2 App. 35.

3 We have jurisdiction pursuant to 18 U.S.C. § 3742. We apply an abuse of discretion

standard as to the appropriateness of a particular restitution award. United States v.

Himler

, 355 F.3d 735, 74 4 (3d Cir. 2004).

4 18 U.S.C. § 3664(f)(1)(A).

5 United State s v. Akande, 200 F.3d 136, 138 (3d Cir.1999).3

‘completely devoid of a credible evidentiary basis or bears no rational relationship to the

supporting data.’” 6

Zughbi fails to meet this heavy burden. She stipu lated to a loss of between $3.5

million and $9.5 million, and the Presentence Report explained the assumptions and

methodology it used to calculate loss

. The restitution amount is clearly not completely

devoid of a credible evidentiary basis. 7

For the r easons set forth, we will affirm the District Court’s order of restitution.

6 United States v. Vitillo , 490 F.3d 314, 330 (3d Cir. 2007) (citing United States v. Haut

, 107 F.3d 213, 218 (3d. Cir. 1997)).

7 A District Court may rely on a factual statement in a PSR at sentencing, absen t a timely

and substantial objection from one of the parties. See United States v. May, 413 F.3d 841,

848

- 49 (8th Cir. 2005) (“Together, Rules 32(f)(1) and 32(i)(3)(A) establish that an

untimely objection to a fact in the presentence report does not change the fact's

‘undisputed’ status, and the district court may adopt the fact without additional

evidence”); United States v. Cyr, 337 F.3d 96 (1st Cir. 2003) (reasoning that “[t]he

defendant is free to challenge any assertions in the PSR with counterva iling evidence or

proffers, in which case the district court is obliged to resolve any genuine and material

dispute on the merits. But if the defendant's objections to the PSR are merely rhetorical

and unsupported by countervailing proof, the district cour t is entitled to rely on the facts

in the PSR.”); accord United States v. Cothran, 302 F.3d 279, 286 (5th Cir.

2002); United States v. Willis, 300 F.3d 803, 807 (7th Cir. 2002); United States v.

Love, 134 F.3d 595, 606 (4th Cir. 1998).

The District Court had discretion to entertain Zughbi’s belated challenge to the PSR, see Fed. R. Crim. P. 32(i)(1)(D), based on her argument that although the loss was $4.6

million, this is because it included “every single transaction,” including valid and legal

ones. App . 37. However, the “court’s use of $50 as a general point of reference for likely

fraudulent transactions, even if not based on precise data

, ” was reasonably calculated as it

was based on “ the average dollar amount of food stamp redemptions ” at small groce ry stores in Passaic County, and “the witness’ observations of the size, inventory, and setup

of [Zughbi’s] store.” United States v. Uddin , 551 F.3d 176, 180 (2d Cir. 2009).