United States Court of Appeals

for the Fifth Circuit ____________

No. 23-20388

Summary Calendar

____________

United States of America, 

Plaintiff—Appellee,

versus

Md Azad,

Defendant—Appellant.

______________________________

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:20-CR-157-1

______________________________

Before Barksdale, Stewart, and Ramirez, Circuit Judges.

Per Curiam:* 

For his first two issues, Md Azad challenges his within-Guidelines 

188 months’ sentence, imposed following his guilty-plea conviction for 

conspiracy to commit mail fraud and mail fraud, in violation of 18 U.S.C. 

§§ 1341 (mail fraud), 1349 (conspiracy). In support, he contests the district 

court’s application of a four-level leadership enhancement to his base offense 

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

August 20, 2024

Lyle W. Cayce

Clerk

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2

level under Sentencing Guideline § 3B1.1(a) (quoted infra) and a two-level 

vulnerable-victim enhancement under Guideline § 3A1.1(b)(1) (quoted 

infra). For his third issue, he contends his sentence is substantively 

unreasonable, claiming he was disproportionally sentenced to 188 months of 

imprisonment, as compared to codefendants’ terms of imprisonment of 78 

months. 

Although post-Booker, the Guidelines are advisory only, the district 

court must avoid significant procedural error, such as improperly calculating 

the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 46, 51 

(2007). If no such procedural error exists, a properly preserved objection to 

an ultimate sentence is reviewed for substantive reasonableness under an 

abuse-of-discretion standard. Id. at 51; United States v. Delgado-Martinez, 564 

F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues preserved in 

district court, its application of the Guidelines is reviewed de novo; its factual 

findings only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 

751, 764 (5th Cir. 2008). 

As for Azad’s first issue, the Guidelines provide for a four-level 

increase to defendant’s base offense level “[i]f the defendant was an 

organizer or leader of a criminal activity that involved five or more 

participants or was otherwise extensive”. U.S.S.G. § 3B1.1(a). Whether a 

defendant occupied a role as an organizer or leader is a factual finding,

reviewed for clear error. United States v. Ochoa-Gomez, 777 F.3d 278, 281 

(5th Cir. 2015). “A factual finding that is plausible based on the record as a 

whole is not clearly erroneous.” Id. at 282. The record reflects that Azad 

played a leadership role in a nationwide mail-fraud conspiracy when he 

designated locations for co-conspirators to open bank accounts, directed 

them regarding use of victims’ money, instructed them on tactics to evade 

law enforcement, and recruited at least one accomplice. Accordingly, the 

court did not clearly err. 

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Regarding his second issue, the Guidelines provide for a two-level 

increase to defendant’s base offense level “[i]f the defendant knew or should 

have known that a victim of the offense was a vulnerable victim”. U.S.S.G. 

§ 3A1.1(b)(1). This enhancement “is primarily focused on the diminished 

ability of the victim to thwart or resist the crime at hand”. United States v. 

Swenson, 25 F.4th 309, 321 (5th Cir. 2022). Azad asserts the court 

improperly applied the enhancement for two reasons: it relied exclusively on

the ages of the victims; and it failed to determine whether Azad knew, or 

should have known, that the victims of the offense were vulnerable. 

The first of these two contentions is reviewed for clear error because

“the determination of whether a victim is vulnerable is a factual finding that 

the district court is best-suited to make”. Swenson, 25 F.4th at 321 (citation 

omitted). The record shows the court determined the victims were 

vulnerable not only due to their ages but also due to their financial situations 

and unfamiliarity with technology. Therefore, the court did not clearly err. 

Because Azad did not preserve the second contention in district court, 

review is only for plain error. E.g., United States v. Broussard, 669 F.3d 537, 

546 (5th Cir. 2012). Under that standard, Azad must show a forfeited plain 

error (clear or obvious error, rather than one subject to reasonable dispute) 

that affected his substantial rights. Puckett v. United States, 556 U.S. 129, 135 

(2009). If he makes that showing, we have the discretion to correct the 

reversible plain error, but generally should do so only if it “seriously affect[s]

the fairness, integrity, or public reputation of judicial proceedings”. Id.

(citation omitted). In the light of Azad’s close involvement in the fraudulent 

scheme and the advanced age of most of the victims, any error regarding 

whether Azad knew or should have known the victims were vulnerable was 

not clear or obvious. 

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For the third, and final, issue, and assuming it was fully preserved in 

district court and adequately briefed on appeal, Azad does not rebut the 

presumption of reasonableness afforded to his within-Guidelines sentence

and has not shown any unwarranted sentencing disparity between similarlysituated defendants nationwide or his co-conspirators who pleaded guilty. 

E.g., United States v. Douglas, 957 F.3d 602, 609 (5th Cir. 2020) (explaining 

below-Guidelines sentences are presumptively reasonable and outlining 

rebuttal requirements); United States v. Guillermo Balleza, 613 F.3d 432, 435 

(5th Cir. 2010) (explaining application of 18 U.S.C. § 3553(a)(6) disparity 

factor). 

AFFIRMED. 

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