THOMAS F. X. DUNN 

ATTORNEY AT LAW 

7 DEY STREET 

SUITE 804 

NEW YORK, NEW YORK 10007 

TEL: 212-941-9940 

FAX: 212-941-9947 

By ECF & FAX

 May 22, 2008 

Honorable Colleen McMahon 

United States District Judge 

United States District Court 

Southern district of New York 

500 Pearl Street 

New York, New York 10007 

 Re: United States v. Iqbal Mirza, 

 07 Cr. 357 (CM) 

Dear Judge McMahon: 

 Please accept this letter in lieu of a more formal submission on behalf 

of Iqbal Mirza, (“the defendant”) pertaining to his sentence presently 

scheduled for May 27, 2008. Mr. Mirza has no objection to the sentencing 

calculations set forth in the pre-sentence report (“PSR”), which are in 

agreement with the guideline calculations stipulated to in the written plea 

agreement entered into between the government and the defendant. The 

defendant acknowledges that the applicable advisory guideline range is 37-

46 months. 

 The defendant does object to the conclusion in paragraph 35 that he, 

like defendant and pharmacy owner Dinesh Shah, was an organizer/leader of 

this fraudulent conspiracy. Although the written plea agreement sets forth 

that Mirza stipulated that under United States Sentencing Guideline 

(U.S.S.G.) 3B1.1( c ) there should be a two point enhancement since “...the 

defendant was an organizer, leader, manager, or supervisor of criminal 

 1 

Case 1:07-cr-00357-CM Document 49 Filed 05/22/2008 Page 1 of 12
Honorable Collen McMahon 

May 22, 2008 

Page 2 

activity...,” the fact is that the word “or” is used in the agreement in which 

his role can and is distinguished. Stipulation to that sentence in the plea 

agreement does not result in the admission that Mirza was a 

leader/organizer. 

Objection In Addendum To Description as Leader/Organizer 

 The defendant, although agreeing that there should be a two level 

increase for his role in the offense under Guideline section 3B1.1( c ), 

objects to the description in the Addendum section to the PSR where it is set 

forth at page 29 under the heading marked Justification, that “Mirza was an 

organizer/leader of a scheme that transpired over the course of almost five 

years....” 

 In the Government’s letter dated May 16, 2008 it is noted at page 2 

that, “Mirza expressly acknowledged participating in the scheme for two 

years...,” not five years as set forth in U.S. Probation’s Addendum. The 

government also writes in its letter to the Court that “[f]ar from being a mere 

participant in the scheme, the defendant played a critical, supervisory role as 

he acknowledged in his plea agreement,...” The defendant takes exception 

to the government’s use of the adjective “critical,” but acknowledges his 

supervisory role over a two year period, which requires a two point 

enhancement under the United States Sentencing Guidelines. (U.S.S.G.) 

 It is significant to note that the government describes Mirza to the 

Court in its letter in the following way, “...he worked as a pharmacy 

technician and sometimes manager. The guidelines do not account for one 

spending minimal time as a “manager”. Therefore, under role adjustment 

Mirza is treated like Dinesh Shah, the brains behind the operation. Mirza 

simply was Dinesh Shah’s lackey. 

 The only leader/organizer of this fraudulent conspiracy was the 

pharmacy owner, Dinesh Shah. Although Dinesh Shah was the owner and 

pharmacist and directed and supervised the actions of defendant Mirza, both 

men fall into the same guideline range. The pharmacy owner was the 

defendant who obtained the overwhelming bulk of the fruits of this fraud. 

Case 1:07-cr-00357-CM Document 49 Filed 05/22/2008 Page 2 of 12
Honorable Colleen McMahon 

May 22, 2008 

Page 3 

Monetary gain is not accounted for although the fraudulent loss is under 

U.S.S.G. 2B1.1(b)(1)(I). The fraud totaled $1.1 million and it is doubted 

that the government will disagree that the overwhelming fruits of the fraud 

went into Dinesh Shah’s pocket. 

 The fact is that Shah paid very little money to Mirza for his 

involvement in this conspiracy. Defendant Shah, the owner of the 

pharmacy, received a sentence of 37 months, which the Probation 

Department recommends to the Court as an appropriate sentence for 

defendant Mirza. 

Exceptions to the Government’s Letter of May 16, 2008 

The defendant acknowledges as set forth by the government that his 

criminal conduct was serious. The defendant does take exception to the 

government’s description of his criminal conduct as “extensive.” 

 As acknowledged in his written plea agreement the defendant was a 

manager or supervisor of criminal activity during the conspiracy. Two 

factors, however, must be kept in mind. First, as set forth in the government 

letter at page 1-2, Mirza “...worked as a pharmacy technician and 

sometimes as a manager. Second, Mirza, as acknowledged in his plea 

allocution, and not disputed by the government, participated in the 

conspiracy for two years of the five year period that the conspiracy 

progressed. 

Mirza Seeks a Reasonable Sentence pursuant to 18 USC 3553(a) factors, 

and the Supreme Court holdings in Booker, Kimbrough and Gall 

Two recent Supreme Court decisions impact the case at bar. In 

Kimbrough v. United States, 2007 U.S. LEXIS 13082, the defendant had 

pled guilty in the United States District Court to offenses involving both 

powder and crack cocaine. The District Court Judge sentenced Kimbrough 

below the advisory Guideline range. The Appellate court reversed based 

upon a finding that the District Court imposition of a sentence outside the 

Case 1:07-cr-00357-CM Document 49 Filed 05/22/2008 Page 3 of 12
Honorable Colleen Mcmahon 

May 22, 2008 

Page 4 

Guideline range was per se unreasonable, because it was based on the 

crack/powder disparity. 

 The Supreme Court held that the cocaine Guidelines are advisory 

only, and that the Fourth Circuit erred in holding the crack/powder disparity 

effectively mandatory. It found that while a District Court Judge must 

include the Guideline range in the array of factors warranting consideration, 

the Judge may determine that in a particular case, a within-Guidelines 

sentence is greater than necessary to serve the objectives of sentencing under 

18 USC section 3553(a). 

 In Gall v. United States, 128 S. Ct. 586; 2007 Lexis 13083, the 

defendant had pled guilty to a conspiracy to distribute ecstasy. The 

Guidelines called for a sentence range of 30 to 37 months. The District 

Court sentenced the defendant to 36 months probation, finding that 

probation reflected the seriousness of the offense, imprisonment was 

unnecessary because of his voluntary withdrawl from the conspiracy and his 

post offense conduct reflected that he would not return to criminal behavior 

and was not a danger to society. The Eighth Circuit reversed on the ground 

that a sentence outside the Sentencing Guideline range must be – and was 

not in that case – supported by extraordinary circumstances. 

 The Supreme Court held that because the Guidelines are now 

advisory, appellate review of sentencing decisions is limited to determining 

whether those sentences are reasonable, citing United States v. Booker, 543 

U.S. 220, 125 S. Ct. 738, 160 L.Ed. 2d 621, and an abuse-of discretion 

standard applies to appellate review of sentencing decisions. Under that 

standard the Circuit Court was limited to determining whether the District 

Court abused its discretion in determining that the section 3553 (a) factors 

supported the sentence and justified a substantial deviation from The 

Guideline range. The Supreme Court found that the Eighth Circuit gave 

virtually no deference to the District Court’s decision that the variance was 

justified, and further found that while the Circuit clearly disagreed with the 

District Court’s decision, it was not for the Circuit to decide de novo

whether the justification for a variance is sufficient or the sentence 

reasonable. The Supreme Court reversed. 

Case 1:07-cr-00357-CM Document 49 Filed 05/22/2008 Page 4 of 12
Honorable Colleen McMahon 

May 22, 2008 

Page 5 

 The recent Supreme Court decisions drive home the fact that the 

Guidelines are truly advisory and simply one factor to be considered by the 

Court in determining an appropriate sentence under 18 USC section 3553 

(a). Under this authority, for example, it would not be per se unreasonable 

for the Court to find that the guideline range pertaining to Mr. Mirza is too 

harsh when compared and contrasted with the role and involvement of 

Dinesh Shah, who is at the same advisory guideline range of 37-46 months. 

In fact to sentence Mirza to a considerable less time than Shah would not be 

unreasonable under the authority annunciated in Kimbrough and Gall. 

Besides the disparity in the involvement and roles of Shah and Mirza 

there are several other 3553(a) factors which establish that a sentence of less 

than 37 months would be a reasonable sentence. 

18 U.S.C. 3553 (a) Factors which Speak to a More Reasonable Sentence 

 As a result of United States v. Booker, Districts Courts returned to the 

factors set forth in 18 U.S.C. 3553(a) in arriving at reasonable sentences. As 

set forth above Kimbrough and Gall strengthen the reliance of these factors 

in arriving at a fair and reasonable sentence. 

 In Booker, the Supreme Court held that Blakely v. Washington applied 

to the federal sentencing guidelines, and the Sixth amendment’s jury trial 

guarantee prevented judges from finding facts that exposed a defendant to 

increased prison time. 

 As a remedy, a different majority of the Court excised the provision of 

the Sentencing Reform Act that made the Guidelines mandatory, 18 U.S.C. 

section 3553(b). The remedial majority held that the district courts must still 

consider the guideline range, 18 U.S.C. section 3553(a)(4) & (5), but also 

must consider the other directives set forth in section 3553(a). Of course 

this is clearly set forth in Kimbrough and Gall. Thus under those cases and 

Booker, courts must treat the guidelines as just one of a number of 

sentencing factors. Section 3553(a) requires courts to “impose a sentence 

sufficient, but not greater than necessary, to comply with the purposes set 

Case 1:07-cr-00357-CM Document 49 Filed 05/22/2008 Page 5 of 12
Honorable Colleen McMahon 

May 22, 2008 

Page 6 

forth in paragraph 2.” Section 3553(a)(2) states that such purposes are: (A) 

to reflect the seriousness of the offense, to promote respect for the law, and 

to provide just punishment for the offense; (B) to afford adequate deterrence 

to criminal conduct; ( C ) to protect the public from further crimes of the 

defendant; (D) to provide the defendant with needed educational or 

vocational training, medical care, or other correctional treatment in the most 

effective manner. 

 Section 3553(a) further directs sentencing courts to consider (1) the 

nature and circumstances of the offense and the history and characteristics of 

the defendant; (2)(D) to provide the defendant with needed educational or 

vocational training, medical care or other correctional treatment in the most 

effective manner; (3) the kinds of sentences available; (4) reference to the 

guidelines; (5) reference to pertinent policy statements of the Sentencing 

Commission and (6) the need to avoid unwanted sentencing disparities 

among defendants with similar records who have been guilty of similar 

conduct. 

 The directives of Booker, Kimbrough, Gall and section 3553(a) make 

clear that courts may no longer uncritically apply the guidelines. 

 

Mirza’s History 

The first factor to consider is the history of the defendant. Part of Mr. 

Mirza’s history is the condition of his health, which has deteriorated for 

years because of his poor heart condition. 

 Submitted with this letter is a letter from the defendant’s Heart doctor 

dated February 20, 2008. A copy of this letter was previously provided to 

the U.S. Probation Officer and is referenced in the PSR at paragraph 72, 

page 19. The letter was written by Dr. Emad F. Aziz of the Cardiology 

Department at St. Luke’s Hospital, part of the University Hospital of 

Columbia University College of Physicians and Surgeons. 

Case 1:07-cr-00357-CM Document 49 Filed 05/22/2008 Page 6 of 12
Honorable Colleen McMahon 

May 22, 2008 

Page 7 

 Dr. Aziz advises that Mr. Mirza has been a patient at the hospital’s 

cardiology department for over 5 years. He describes Mr. Mirza’s medical 

history to be very complicated. His history reflects a significant history of 

“...high blood pressure, diabetes, high cholesterol, severe coronary artery 

disease with a previous history of multiple heart attacks which led to severe 

deterioration and weakness of his left ventricular function with LV function 

40%.” 

 The letter from Dr. Aziz sets forth the history of coronary bypass 

operations, which have failed to improve Mr. Mirza’s condition. In 1996 the 

defendant was referred for a three vessel coronary artery bypass surgery. 

Coronary artery bypass graft surgery is advised for selected groups of 

patients with significant narrowings and blockages of the heart arteries. This 

type of bypass surgery creates new routes around narrowed and blocked 

arteries, allowing sufficient blood to deliver oxygen and nutrients to the 

heart muscle.1

Dr Aziz wrote “[u]nfortunately, giving his nature of disease 

progression, he continued to have significant angina and he underwent 

another cardiac catheterization in September of 2007 and was found to have 

occluded one of his grafts and severe stenosis on another graft.” Occluded is 

defined as to cause to become closed.2

Stenosis is the narrowing of the carotid arteries. These are the main 

arteries in the neck that supply blood to the brain. Carotid artery stenosis, 

also called carotid artery disease, is a major risk factor for ischemic stroke, 

which is the most common form of stroke and usually caused by a blood clot 

plugging the artery.3

 Dr. Aziz’ letter makes the following evaluation, “Mr. Mirza extent of 

disease makes him a high risk for another heart attack or furthermore 

sudden cardiac death, he is currently dependent on his extensive daily 

 

1

 See, MedicineNet.Com for decription of coronary artery bypass graft surgery. 2

 See, thefreedictionary.com/occluded for the definition of occluded. 3

 See, americanheart.org for the definition of carotid artery stenosis. 

Case 1:07-cr-00357-CM Document 49 Filed 05/22/2008 Page 7 of 12
Honorable Colleen McMahon 

May 22, 2008 

Page 8 

regimen of heart medications including multiple doses of nitroglycerine for 

relief of his angina symptoms.” 

 Dr. Aziz concludes his letter setting forth that “Mr. Mirza’s condition 

is very critical and every effort should be made not to exaggerate or 

precipitate further deterioration of his cardiac status.” It is submitted that 

the defendant’s placement in any federal facility to serve a sentence of 

incarceration invites a situation that may very well exaggerate or precipitate 

a further deterioration of his cardiac status. It can be inferred from this letter 

that placing Mr. Mirza inside a federal facility will result in a fatal heart 

attack. 

 At the same time it is possible that during the next three years that if 

Mr. Mirza is permitted to remain at liberty under a sentence of probation or 

supervised release, that he may die of a fatal heart attack as well. There is 

an excellent chance that whether Mr. Mirza receives 12 months incarceration 

37 months incarceration, or no jail time, that he may die before 37 months or 

even 60 months. 

 The Government in their letter fails to address the rationale of 18 USC 

section 3553 (a), and also fails to address the holdings and philosophies of 

Booker, Kimbrough and Gall. The government instead relies on case law 

and guideline philosophy that pre-dates Blakely v. Washington, which with 

Apprendi v. NewJersey, started the courts on a road to advisory guidelines 

and judicial independence in sentencing. 

 The government insists that “[t]here is nothing remarkable about this 

defendant’s background or characteristics meriting either a downward 

departure or non-Guidelines sentence.” The government is wrong. They try 

to rely on outdated case law to support a guideline sentence. They speak of 

departures from the guidelines when none is sought, and the defendant 

refrains from such outdated terminology. Admittedly, a number of the 

reasons that the defendant presents to the court would have been not only 

frowned at under the mandatory guideline system and the case law, but it 

would have been strongly recommended to reject such arguments. 

Extraordinary and exceptional reasons and circumstances were required 

Case 1:07-cr-00357-CM Document 49 Filed 05/22/2008 Page 8 of 12
Honorable Colleen McMahon 

May 22, 2008 

Page 9 

under the old system to give a fair sentence to a person in Mr. Mirza’s 

condition and situation. 

 The Supreme Court of the United States changed the landscape in 

their resounding decisions in Gall and Kimbrough in which the view of the 

Circuits requiring exceptional circumstances to give a non-guideline 

sentence was rejected outright. The government writes that “[f]or medical 

conditions, the standards for a downward departure are ‘strict,’ and cite a 

Second Circuit case decided before the Millenium. The government further 

fosters their position in the same reference by stating according to the 

Second Circuit in order to depart it is required that a medical condition be 

one that the Bureau of Prisons is unable to treat. The Supreme Court 

trumped the authority of the Second Circuit in that case. Again, this is not a 

departure application, this application is made pursuant to 3553(a) and the 

recent Supreme Court decisions, which state that the guidelines are only one 

factor to consider in arriving at a fair and reasonable sentence. 

Treatment in or out of jail is not the issue. The issue is a possible 

death penalty in jail or out of jail for Mr. Mirza. Justice and mercy cry out 

for a non custodial sentence. The government states that the defendant has 

made no proffer that his condition cannot be treated. How is treatment 

defined. There will be no improvement either at a federal hospital or at St. 

Luke’s in New York City. I as a non-medical observer have had numerous 

opportunities to observe Mr. Mirza during rather stress filled conversations 

between a lawyer and client concerning how to handle the defense and entry 

of a guilty plea in this case. Based upon my observations and having been 

advised of his condition, and the failure of operations to improve or resolve 

it, there were a number of occasions when I thought the next moment would 

lead to a medical emergency. I also observed Mr. Mirza’s breathing patterns 

after traveling to my office by subway from 125th street in Manhattan. I am 

not optimistic concerning his health over the next 5 years, much less the next 

37 months, and it is clear that the cardiology Department of St. Luke’s 

Hospital is not optimistic either. 

The Probation Department is in lockstep with the United States 

Attorney’s Office concerning Mr. Mirza’s heart condition and the treatment 

Case 1:07-cr-00357-CM Document 49 Filed 05/22/2008 Page 9 of 12
Honorable Colleen McMahon 

May 22, 2008 

Page 10 

to be received. In the Justification section concerning its recommendation 

for a 37 month sentence the department sets forth the following, “The 

Bureau of Prisons has five Federal Medical Centers (FMCs), where Mirza’s 

health can be closely monitored during his incarceration. In fact, we 

respectfully suggest that the Court recommend that the Bureau of Prisons 

designate the defendant to an FMC, so as not to risk compromising his 

health. It is unclear how or why the Probation Department finds the 

confidence to state that Mr. Mirza’s health will not be compromised at a 

FMC. 

The fact is the odds are excellent that Mr. Mirza’s heath will be 

compromised anywhere. It is a sad situation. Whether placed in an FMC, or 

house arrest on a farm in Pennsylvania, Mr. Mirza’s condition will not 

improve. Could it remain the same – possibly, but the prospects are bleak 

for many more years of life. 

The defendant is not making the application for a non-jail sentence 

because the federal facilities will not be able to treat him. The fact is no one 

knows whether it can or cannot or if the Cardiology Department at St. 

Luke’s can or cannot. The health issue is presented to the Court because it is 

submitted a 37 month sentence may very well be a death sentence. There is 

no way federal facilities or any hospital or Cardiologist can prevent that. All 

efforts and treatments have been tried by the best cardiologists. The heart 

procedure conducted in September was unable to cure or even slightly 

improve the defendant’s condition. He is beyond being helped by any future 

procedures that are presently available. 

Other factors 

Aberrant Behavior 

The defendant is a 55 year old American citizen, who is a college 

graduate. This is his first arrest and conviction. He has led a law abiding 

life prior to his entry into this conspiracy. 

Case 1:07-cr-00357-CM Document 49 Filed 05/22/2008 Page 10 of 12
Honorable Colleen McMahon 

May 22, 2008 

Page 11 

Employment at MLK Pharmacy 

The government voices outrage at the fact that the defendant was a 

Medicaid recipient and failed to advise Medicaid officials that he was 

gainfully employed. The fact is Mr. Mirza made insignificant amounts of 

money not only from his employ at MLK but from the fruits of the fraud 

itself. The defendant’s Social Security benefits stopped in March, 2008. 

Family Circumstances 

Mr. Mirza is married and the father of children ages 6 through 14. 

Ms. Shahida Mirza, the defendant’s wife, advised U.S. Probation that she 

was very scared concerning the prospects of her husband’s incarceration. 

The PSR sets forth that his wife said “...they have been together for 14 

years, and they go everywhere together, as a family; she stated that she does 

not know what they will do if her husband is not with them.” (PSR p. 18 

par.68) 

 In a letter provided to Probation which is cited in the PSR at Par. 69, 

MS. Mirza wrote that she is concerned for her children’s growth as people 

since their father will not be there to assist them with their homework, which 

he does on a daily basis. 

 Again the government resorts to old arguments in their letter which 

submits that family circumstances should not be considered by the Court. 

The government cites a Second Circuit case to support a challenge to a 

departure argument. No such argument for a departure is submitted instead 

the defendant requests the Court to consider the recent Supreme Court 

holdings and the factors of 3553(a) in arriving at a fair and reasonable 

sentence. 

Non-Jail Sentence

 Based on the factors submitted to the Court the defendant submits that 

when the court weighs the factors of 18 USC section 3553(a), the facts of 

this case, the role of the defendant in relationship to the pharmacy owner, 

Case 1:07-cr-00357-CM Document 49 Filed 05/22/2008 Page 11 of 12
Honorable Colleen McMahon 

May 22, 2008 

Page 12 

who the guidelines treats as an equal, that a reasonable sentence is a noncustodial sentence. A reasonable sentence, it is submitted, is a period of 

three years of House Arrest followed by three years of supervised release. 

 The Supreme Court provided District Court Judges with discretion in 

sentencing. The Supreme Court provided a level of discretion that did not 

exist pre-Blakely and pre-Booker. Booker, Gall and Kimbrough permit 

District Court judges to reflect compassion in sentencing. The defendant 

requests the court to issue a non-jail sentence which under the circumstances 

will comply with the tenets of 18 U.S.C. section 3553(a) which sets forth 

that courts should “impose a sentence sufficient, but not greater than 

necessary, to comply with the purposes of section 2 of 3553. 

CONCLUSION 

 The defendant requests that the Court sentence him to three years of 

House Arrest based on the factors presented in this letter. Most importantly, 

it is submitted that the defendant’s medical condition, not the treatment for 

that medical condition, is the key factor presented in his argument for a 

sentence of House Arrest. 

 Respectfully yours, 

 /s/ 

 Thomas F. X. Dunn 

cc: William Stellmach, Esq.(by fax & ECF) 

 Assistant U.S. Attorney 

 Seetha Ramachandran, Esq.(by Fax & ECF 

 Assistant U.S. Attorney 

 Emily Frankelis 

 Senior U.S. Probation (by fax & ECF) 

Case 1:07-cr-00357-CM Document 49 Filed 05/22/2008 Page 12 of 12