United States of America v. Hussnian Ahmad

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 21, 2008
Decided May 28, 2008
Before
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 07‐2436
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
HUSSNIAN AHMAD,
Defendant‐Appellant.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 06 CR 381‐1
Ruben Castillo,
Judge.
O R D E R
Hussnian Ahmad falsely represented that he was a victim of Hurricane Katrina and
fraudulently received over $6,000 in cash and lodging from the Federal Emergency
Management Agency in September 2005. He pleaded guilty without the benefit of a plea
agreement to one count of theft of government funds. See 18 U.S.C. § 641. The district court
calculated a guidelines range of 2 to 8 months’ imprisonment, but at sentencing Ahmad
requested a 9‐month prison term, to run concurrently with an unrelated state sentence
imposed in Ohio. His counsel told the court that if Ahmad received a shorter sentence, he
would have to return to Ohio to serve the last few days of his sentence there; apparently
Ahmad preferred to serve the remainder of his state sentence in federal prison in Illinois.
The district court obliged and sentenced him to 9 months’ imprisonment to be followed by
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 07‐2436 Page 2
three years of supervised release and ordered him to pay restitution to FEMA. Ahmad filed
a notice of appeal, but his appointed counsel now seeks to withdraw under Anders v.
California, 386 U.S. 738 (1967), because he cannot discern a nonfrivolous basis for appeal.
We sent two notices to Ahmad—one to his original address as reflected on our docket and
one to his updated address—inviting him to comment on counsel’s motion, but he has not
accepted the opportunity. See CIR. R. 51(b). Because counsel’s supporting brief is facially
adequate, we limit our review to the potential issues identified in counsel’s brief. See United
States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002).
Counsel begins by telling us that Ahmad does not wish to challenge his guilty plea.
So counsel appropriately refrains from discussing whether Ahmad could argue that his plea
was not voluntary. See United States v. Knox, 287 F.3d 667, 670‐71 (7th Cir. 2002).
Counsel next considers whether Ahmad could challenge the reasonableness of his
prison term. Ahmad’s 9‐month prison sentence was one month longer than the guidelines
range. But at sentencing Ahmad did not argue that any of the 18 U.S.C. § 3553(a) factors
warranted a lower sentence. To the contrary, Ahmad’s counsel specifically requested a 9‐
month term to spare Ahmad the hassle of being transferred to Ohio to serve the few
remaining days of a state sentence. Thus it would be frivolous to argue that the district
court imposed an unreasonable sentence when Ahmad received the sentence that he
requested. See United States v. Kindle, 453 F.3d 438, 442 (7th Cir. 2006) (a defendant who
makes a strategic choice to adopt one sentencing argument over others waives the
arguments he chose not to pursue).
Counsel next questions whether Ahmad could argue that his three‐year term of
supervised release is unreasonably long. We agree with counsel that this argument, too,
would be frivolous. The term is within the guidelines range, which is presumptively
reasonable on appeal. See United States v. Shannon, 518 F.3d 494, 496 (7th Cir. 2008); United
States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). And the district court considered the
relevant factors under 18 U.S.C. § 3553(a), particularly Ahmad’s need for drug treatment.
At sentencing Ahmed said that his drug addiction was the driving force behind his criminal
conduct. The district court noted that it considered imposing a longer prison term to ensure
that Ahmad would stay away from drugs, but it decided instead to impose a three‐year
term of supervised release and to mandate that Ahmad undergo drug treatment, explaining
that “[t]he most important part of my sentence is that you remain drug free.” See 18
U.S.C. § 3553(a)(2)(D).
Next, counsel considers whether Ahmad could challenge the district court’s failure
to specify a maximum number of drug tests when it imposed participation in a drug

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No. 07‐2436 Page 3
treatment program as a condition of supervised release. Ahmad did not object to the court’s
omission at sentencing, and we have determined that the failure to set a ceiling on the
number of drug tests is not plain error. See United States v. Tejeda, 476 F.3d 471, 473‐76 (7th
Cir. 2007). Thus we agree with counsel that it would be frivolous to raise the error on
appeal.
Finally, counsel examines whether Ahmad could challenge the amount of restitution
the district court ordered him to pay. Ahmad did not object to the restitution order, and so
our review would be for plain error. See United States v. Thigpen, 456 F.3d 766, 771 (7th Cir.
2006). The district court was required to order restitution. See 18 U.S.C. § 3663A. The
Presentence Investigation Report concluded that $6,805 was the amount of FEMA’s loss. See
United States v. Seward, 272 F.3d 831, 839 (7th Cir. 2001) (noting that restitution is based on
the amount of actual loss). And Ahmad’s attorney acknowledged at sentencing that this
calculation was correct. So counsel properly concludes that it would be frivolous for
Ahmad to argue that the court plainly erred in calculating the restitution award.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.

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