United States of America v. Adnan Bahhur

*The Honorable George C. Smith, United States District Judge for the
Southern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0023P (6th Cir.)
File Name: 00a0023p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED S TATES OF AMERICA ,
Plaintiff-Appellee,
v.
ADNAN BAHHUR,
Defendant-Appellant.
;>

1
No. 98-5386
Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 95-20122—Jon Phipps McCalla, District Judge.
Argued: April 21, 1999
Decided and Filed: January 14, 2000
Before: SILER and MOORE, Circuit Judges; SMITH,
District Judge.*
_________________
COUNSEL
ARGUED: Bruce I. Griffey, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Memphis, Tennessee, for Appellant.
Lawrence J. Laurenzi, OFFICE OF THE U.S. ATTORNEY,

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2 United States v. Bahhur No. 98-5386
Memphis, Tennessee, for Appellee. ON BRIEF: Bruce I.
Griffey, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Memphis, Tennessee, for Appellant. Lawrence J. Laurenzi,
OFFICE OF THE U.S. ATTORNEY, Memphis, Tennessee,
for Appellee.
_________________
OPINION
_________________
SMITH, District Judge. Defendant Adnan Bahhur appeals
his sentence of 97 months’ incarceration and 3 years’
supervised release, following his guilty plea to engaging in a
prohibited monetary transaction, in violation of 18 U.S.C.
§ 1957; food stamp fraud, in violation of 7 U.S.C.
§ 2024(b)(1); and failure to appear, in violation of 18 U.S.C.
§ 3146(a)(1).
On appeal, Bahhur raises the following issues: (1) whether
the district court had subject matter jurisdiction over his
offense of engaging in a prohibited monetary transaction; (2)
whether the district court erred in calculating Bahhur’s
guideline score using the prohibited monetary transaction
guideline, pursuant to U.S.S.G. § 2S1.2; (3) whether the
district court erred in increasing Bahhur’s sentence by three
levels based on the value of the funds attributable to the
defendant, pursuant to U.S.S.G. § 2S1.2(b)(2); (4) whether
the district court erred in imposing a three-level increase in
Bahhur’s sentence for an aggravating role, pursuant to
U.S.S.G. § 3B1.1; and (5) whether the district court erred in
increasing defendant’s sentence by three levels, pursuant to
U.S.S.G. § 2J1.7 on his underlying prohibited monetary
transaction conviction, instead of applying the enhancement
to his conviction for failing to appear. For the following
reasons, we affirm in part and reverse in part the judgment of
the district court, and remand for resentencing.
No. 98-5386 United States v. Bahhur 19
imprisonment on a failure to appear count be imposed
consecutively to any other sentence of imprisonment.
Moreover, the court must also comply with 18 U.S.C. § 3147,
which sets forth that the portion of the sentence attributable
to an enhancement under U.S.S.G. § 2J1.7, must also run
consecutively to any other sentence of imprisonment.
Consequently, the court is required to impose a consecutive
sentence of imprisonment under both of these provisions,
however, neither statute requires a minimum term of
incarceration.
For example, in the present case, the court must choose a
total punishment between 70 and 87 months (Criminal
History III, Combined Offense 25). Next, the court must
apportion that sentence between the underlying offense, the
failure to appear conviction, and the enhancement under
U.S.S.G. § 2J1.7. If the court determined that a “total
punishment” of 83 months is appropriate, a sentence of fifty-
seven months on counts 10 and 34, seventeen months
consecutive pursuant to 18 U.S.C. § 3146(b)(2) for failure to
appear, and nine months consecutive pursuant to 18 U.S.C.
§ 3147 for commission of an offense while on release, would
satisfy the statutory and sentencing guideline requirements.
III.
For the foregoing reasons, the district court’s judgment is
VACATED to the extent that the district court must address
its misapplication of section 2J1.7, and we REMAND this
case for resentencing in accordance with this opinion. It is
further ordered that the judgment of the district is
AFFIRMED in all other respects.

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18 United States v. Bahhur No. 98-5386
Prohibited
Monetary Transaction Food Stamp Fraud Failure to Appear
18 U.S.C. § 1957 7 U.S.C. 2024(b)(1) 18 U.S.C. § 3146(a)(1)
(17) § 2S1.2 (6) § 2F1.1 (6) § 2J1.6(a)(2)
(+3) § 2S1.2(b)(2) (+9)§ 2F1.1(b)(1)(J) (+9) § 2J1.6(b)(2)(A)
(+3) § 3B1.1(b) (+3) § 3B1.1(b) (+3) § 2J1.7
(+2) § 3C1.1/§ 2J1.6 (+2) § 2F1.1(b)(2)(A) (+2) § 3C1.1/§ 2J1.6
25 22 18
(These calculations assume that the defendant obstructed
justice and was a manager or supervisor in both the
prohibited monetary transaction and the food stamp fraud
convictions.) The prohibited monetary transaction and food
stamp fraud convictions would then be grouped in accordance
with U.S.S.G. § 3D1.3(b), because the counts involved two or
more acts and were connected by a common criminal scheme
or plan. Those two counts would then be grouped into one
group with the failure to appear count based upon U.S.S.G.
§ 3D1.2(c). See U.S.S.G. § 2J1.6, Application Note 3
(indicating that in the case of a conviction on both the
underlying offense and the failure to appear, the failure to
appear is treated under § 3C1.1 (Obstructing or Impeding the
Administration of Justice) as an obstruction of the underlying
offense; and the failure to appear count and the count(s) for
the underlying offense are grouped together under
§ 3D1.2(c)). The defendant’s offense level would then be
ascertained by applying U.S.S.G. § 3D1.3(a), which instructs
that the defendant’s offense level is determined by applying
the most serious of the counts comprising the Group, i.e., the
highest offense level of the counts in the Group.
In this case, the defendant’s prohibited monetary
transaction conviction is the highest of the counts in the
Group, thus, the defendant’s combined Offense Level is
twenty-five. The defendant has a Criminal History Category
III. Therefore, the defendant’s corresponding guideline range
is 70-87 months of incarceration.
In devising a sentence, the court must look to 18 U.S.C.
§ 3146(b)(2), which dictates that any sentence of
No. 98-5386 United States v. Bahhur 3
1On June 12, 1995, the Federal Grand Jury for the Western District of
Tennessee returned a thirty-six count indictment against defendant Adnan
Bahhur and seven co-defendants. The indictment specifically charged
Adnan Bahhur with: conspiracy to commit money laundering, money
laundering, engaging in a prohibited monetary transaction, food stamp
fraud, and unlawful possession and distribution of contraband cigarettes.
On August 2, 1995, the defendant failed to appear for a report date.
On August 7, 1995, the district court signed a warrant for the defendant’s
arrest charging him with failure to appear in violation of 18 U.S.C.
§ 3146(a)(1). The warrant was forwarded to the United States Marshal
and was entered into the National Crime Information Center Computer.
On July 8, 1997, the defendant was arrested in Canada after returning
from a flight to Israel. The defendant was then extradited to the United
States and charged with Failure to Appear in district court case number
97-20227.
I.
Beginning in 1993 and continuing until 1995, the defendant
Adnan Bahhur and seven other co-defendants engaged in a
fraudulent food stamp redemption scheme. The Bahhurs
operated two convenience stores, United Family Foods
Grocery and the Shop-N-Save Grocery. At these stores,
federal food stamp coupons were purchased at a discount for
cash and redeemed for full value through the Federal Food
Stamp Program by depositing the coupons in various bank
accounts held in the names of grocery stores operated by the
Bahhurs.
On November 25, 1997, the defendant pleaded guilty to
Count 10, engaging in a prohibited monetary transaction in
violation of 18 U.S.C. § 1957, and Count 34, food stamp
fraud in violation of 7 U.S.C. § 2024(b)(1), in district court
case number 95-20122; and one count of failing to appear in
violation of 18 U.S.C. § 3146(a)(1), in district court case
number 97-20227.1
On February 18, 1998, a revised presentence investigation
report was prepared that calculated the defendant’s guideline
range to be 97-121 months based on a total offense level of 28
and a criminal history category III. The defendant filed
several objections to the presentence investigation report.

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4 United States v. Bahhur No. 98-5386
On February 24 and 25, 1998, the district court conducted
a sentencing hearing. At the sentencing hearing the court first
addressed defendant’s objection to the presentence report
wherein the defendant received a three level enhancement
under U.S.S.G. § 2S1.2(b)(2) based upon the value of the
criminally derived funds being more than $350,000 but less
than $600,000. The government relied upon the testimony of
Special Agent Robert Johnson. Agent Johnson testified that
he was able to locate six accounts which were used in the
illegal food stamp enterprise.
Agent Johnson obtained records for these accounts from the
period of September of 1994 to March of 1995. During this
eight month period $440,933.00 was deposited into the
accounts. Of that amount, food stamps constituted
$393,843.00 or 88.5% of the deposits (JA Vol. I, 212; Ex. 3,
JA Vol. II, 299). Moreover, Agent Johnson testified that
during the time the defendant was cooperating with the
government the defendant told him (Johnson) that the amount
of legitimate sales for the store on Tillman was an average of
one hundred and fifty to two hundred dollars a day (JA Vol.
I, 229), and the two stores were open six days a week (JA
Vol. I, 250). In addition, the defendant testified that only
about half of the $393,843 in food stamps, including beer
sales, was obtained fraudulently (JA Vol. I 256). The court
did not find defendant to be a credible witness (JA Vol. I,
282).
The district court found that the value of criminally derived
funds was greater than $350,000 but less than $600,000 (JA
Vol. I, 179). The district court stated that:
This involved multiple locations, multiple bank accounts,
in all likelihood millions of dollars, and we just simply
have a snapshot of a period of time which gives us a
glimpse of what was transpiring. It is clear to me, and I
think the evidence does preponderate in favor of the
determination that these are not all the accounts and that
monies were deposited, food stamps were deposited in
other accounts. That’s just from listening very carefully
No. 98-5386 United States v. Bahhur 17
U.S.S.G. § 2J1.7 indicates that “[b]ecause 18 U.S.C. § 3147
is an enhancement provision, rather than an offense, this
section provides a specific offense characteristic to increase
the offense committed while on release.” (emphasis added).
In fashioning a sentence which includes an enhancement
under U.S.S.G. § 2J1.7, the district court must look to
Application Note 2, which indicates:
Under 18 U.S.C. § 3147, a sentence of imprisonment
must be imposed in addition to the sentence for the
underlying offense, and the sentence of imprisonment
imposed under 18 U.S.C. § 3147 must run consecutively
to any other sentence of imprisonment. Therefore, the
court, in order to comply with the statute, should divide
the sentence on the judgment form between the sentence
attributable to the underlying offense and the sentence
attributable to the enhancement. The court will have to
ensure that the “total punishment” (i.e., the sentence for
the offense committed while on release plus the sentence
enhancement under 18 U.S.C. § 3147) is in accord with
the guideline range for the offense committed while on
release, as adjusted by the enhancement in this section.
(emphasis added).
Thus, when looking at the plain language of U.S.S.G. § 2J1.7
and the Application Notes to that section, it is clear that the
district court erred when it applied the three level
enhancement to defendant’s underlying prohibited monetary
transaction conviction.
Turning to the facts of this particular case, because there
were multiple counts of conviction, the district court should
have engaged in separate guideline calculations for each
offense, including adding the enhancements to each offense
separately. See U.S.S.G. Ch. 2 and Ch. 3, Pts. A, B and C.
It appears from the record that the appropriate guideline
calculation for each offense would be as follows:

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16 United States v. Bahhur No. 98-5386
the district court then turned to 18 U.S.C. § 3147, which
provides:
A person convicted of an offense committed while
released under this chapter shall be sentenced, in addition
to the sentence prescribed for the offense to –
(1) a term of imprisonment of not more than ten years if
the offense is a felony; or
(2) a term of imprisonment of not more than one year if
the offense is a misdemeanor.
A term of imprisonment imposed under this section shall
be consecutive to any other sentence of imprisonment.
Section 2J1.7 was promulgated to effectuate the mandate of
18 U.S.C. § 3147, and under § 2J1.7 the Guidelines provide:
“If an enhancement under 18 U.S.C. § 3147 applies, add 3
levels to the offense level for the offense committed while on
release as if this section were a specific offense characteristic
contained in the offense guideline for the offense committed
while on release.” (emphasis added).
In determining the manner in which to apply U.S.S.G.
§ 2J1.7, we utilize the basic rules of statutory construction
because the Guidelines should be interpreted as if they were
a statute. See United States v. Hayter Oil Co. Inc., 51 F.3d
1265, 1272 (6th Cir. 1995). Moreover, we follow the clear,
unambiguous language of the guidelines if there is no
manifestation of a contrary intent. See United States v. Lewis,
900 F.2d 877, 881 (6th Cir. 1990) (citing United States v.
Goldbaum, 879 F.2d 811, 813 (10th Cir. 1989)), cert. denied,
498 U.S. 840, 111 S.Ct. 117, 112 L.Ed.2d 86 (1990); see also
United States v. Carroll, 893 F.2d 1502, 1510 (6th Cir. 1990)
(indicating that in the absence of any contrary intent the clear
language of the guidelines is to be applied or given effect).
United States Sentencing Guideline § 2J1.7 is not
ambiguous, as it clearly states that it applies to “the offense
committed while on release,” which in this case was the
failure to appear conviction. The Application Notes under
§ 2J1.7 confirm that the enhancement is to be applied to the
offense committed while on release. Application Note 1 to
No. 98-5386 United States v. Bahhur 5
to Mr. Bahhur’s own testimony. . . . I will tell you that if
we had to say what was the exact amount, I couldn’t do
it. I could tell you that I believe it is very substantially in
excess of $350,000, but I don’t know that anybody would
ever be able to do that. . . . I know from my experience
with these cases that these percentages of food stamps
will be extremely high. I can almost take judicial notice
of facts such as that. When you get to 90 plus percent,
when you get 84 percent, you’re way way past any
legitimate operation, and the suggestion that somehow
being in a neighborhood that had Section 8 housing and
had public housing, that would not affect the fact that the
testimony supported the conclusion that most of the sales
from these – when there were sales, most of the sales
were of beer and cigarettes, which are non food stamp
items. . . .
(JA Vol. I, 279).
The defendant then objected to the enhancement under
U.S.S.G. § 3B1.1 for his role in the offense. In addressing the
management role issue, the government elicited the testimony
of Agent Johnson who characterized the defendant as being
responsible for conducting the banking in five of the
accounts. In addition, Agent Johnson indicated that Adnan
Bahhur recruited a co-defendant, Robert Davis, to open up
two of the accounts in Davis’ name (JA Vol. I, 215). Johnson
explained that Robert Davis would sign the checks in blank
and defendant would be responsible for filling in the
remaining portions of the check (JA Vol. I at 204). Moreover,
Johnson indicated that a third and fourth account in the name
of Eagle Food Market #2 and S&S Market were opened by
the defendant using the alias of Judeh Fiaz (JA Vol. I, 208).
The district court applied a three level enhancement
pursuant to U.S.S.G. § 3B1.1 because defendant was the
signator on the bank accounts, and thus had control of the
accounts and assets. Specifically, the district court stated that
“the person who was in charge of these accounts, which was

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6 United States v. Bahhur No. 98-5386
really the only thing that mattered was Adnan Bahhur.” (JA
Vol. I, 277).
The defendant then objected to the three level enhancement
pursuant to U.S.S.G. § 2J1.7 for committing an offense while
on release. The district court found that the presentence
report was correct and that the guidelines allow for an
enhancement for committing an offense while on release to be
added to the underlying offense along with the obstruction of
justice enhancement, pursuant to U.S.S.G. §§ 2J1.6 and
3C1.1.
Defendant then argued that the district court lacked subject
matter jurisdiction over his conviction under 18 U.S.C.
§ 1957. Defendant maintained that his offense level in the
PSI report was incorrect because his offense level should have
been calculated using U.S.S.G. § 2F1.1 relating to fraud. The
district court rejected defendant’s position and relied on its
earlier decision on defendant’s motion to dismiss, finding that
the sums involved in the fraudulent food stamp transactions
can be aggregated (JA Vol. I, 80).
The district court then adopted the presentence report and
determined the defendant’s total offense level to be 28 and
his criminal history score to be a category III (JA Vol. I, 287).
The defendant was sentenced to 97 months of incarceration:
fifty-seven months on the underlying offenses of food stamp
fraud and engaging in a prohibited monetary transaction,
seventeen months consecutive pursuant to 18 U.S.C.
§ 3146(b)(2) for failure to appear, and twenty-three months
consecutive pursuant to 18 U.S.C. § 3147 for commission of
an offense while on release, to be followed by three years of
supervised release and a special assessment of $150. The
Judgment was filed on March 2, 1998, and defendant filed his
notice of appeal on March 4, 1998.
No. 98-5386 United States v. Bahhur 15
4The Sixth Circuit Court of Appeals in United States v. Benson, 134
F.3d 787, 788 (6th Cir. 1998), established that 18 U.S.C. § 3147, which
provides for an enhanced sentence if defendant commits an offense while
released on bond, and U.S.S.G. § 2J1.7 which provides for a three level
increase for offenses committed while on release, apply to a defendant
convicted of failing to appear.
accounts to pass the food stamps and deposit funds. In
addition, Davis would also pre-sign blank checks for the
Bahhurs so that they could withdraw cash and avoid detection
from authorities.
Viewing the evidence in its entirety, we find that the district
court was not clearly erroneous in finding that Mr. Bahhur
played an aggravating role in the offense.
E. Sentencing Increase For Commission of An Offense
While on Release
Defendant argues that the district court erred in increasing
his sentence by three levels, pursuant to U.S.S.G. § 2J1.7 on
his underlying money laundering transaction, instead of
applying the enhancement to his conviction for failing to
appear. The government maintains that the defendant’s
offense level computation is correct and that it adequately
considers both the original offense and the separate offense
for failing to appear. The appellate court reviews de novo a
sentencing court’s interpretation of the guidelines. See United
States v. Watkins, 994 F.2d 1192, 1195 (6th Cir. 1993).
In the case at bar, defendant was convicted of multiple
offenses including one count of failure to appear under 18
U.S.C. § 3146. In calculating the defendant’s offense level,
the district court determined that the defendant’s convictions
should be grouped into a single group. The court then applied
several sentencing enhancements including an enhancement
pursuant to U.S.S.G. § 2J1.7 for committing an offense while
on release. The three level enhancement under § 2J1.7 was
based upon the defendant’s failure to appear conviction.4
Upon enhancing the defendant’s offense level under § 2J1.7,

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14 United States v. Bahhur No. 98-5386
The guideline provides in relevant part:
Based on the defendant’s role in the offense, increase the
offense level as follows:
. . . .
(b) If the defendant was a manager or supervisor (but not
an organizer or leader) and the criminal activity involved
five or more participants or was otherwise extensive,
increase by 3 levels.
U.S.S.G. § 3B1.1. The presentence investigation report
recommended that the district court find that Bahhur played
an aggravating role in the offense as a manager or supervisor
of a criminal enterprise involving five or more participants
and accordingly increase his sentence by three levels.
The district court found that Bahhur’s food stamp ring
clearly involved more than five participants. In addition, the
district court concluded that Bahhur was a manager or
supervisor within the definition of the Sentencing Guidelines,
reasoning that, “[w]hile it may not have been the strictest run
organization in the world, the person who was in charge of
these (bank) accounts, which was really the only thing that
mattered, was Adnan Bahhur . . . . He was the key person.
Without him, they might not have been able to open the
accounts.” Further, the district court noted that Bahhur was
responsible for recruiting Robert Davis. Therefore, the
district court increased defendant’s sentence by three levels.
The record provides ample support for the district court’s
conclusion that Mr. Bahhur was a manager or supervisor of
the food stamp operation. Mr. Bahhur admitted that he was
responsible for opening and closing the various bank accounts
which the two stores used in their food stamp scheme. The
defendant also admitted that he had an employee named
Robert Davis who would pose as the owner of the VFF
Market and would open various bank accounts through which
the Bahhurs passed the food stamps and deposited the funds.
Once the accounts were open, the Bahhurs would use the
No. 98-5386 United States v. Bahhur 7
II.
A. District Court’s Subject Matter Jurisdiction
Defendant Bahhur argues that the district court lacked
subject matter jurisdiction over his conviction under 18
U.S.C. § 1957. Defendant maintains that 18 U.S.C. § 1956
defines “specified unlawful activity” for purposes of 18
U.S.C. § 1957 as a felony (singular) food stamp transaction
(singular) that involves a quantity of coupons having a value
of not less than $5,000. Defendant sets forth that he never
engaged in a transaction involving a quantity of coupons in
excess of $5,000, therefore, the district court was without
subject matter jurisdiction. “Questions of subject matter
jurisdiction are questions of law that are reviewed de novo.”
United States v. Yanott, 42 F.3d 999, 1003 (6th Cir. 1994).
Title 18 United States Code § 1957, states in relevant part:
(A) Whoever, in any of the circumstances set forth in
subsection (d), knowingly engages or attempts to engage
in a monetary transaction in criminally derived property
that is of a value greater than $10,000 and is derived
from specified unlawful activity, shall be punished as
provided in subsection (b) . . . .
(f) As used in this section –
(3) the term “specified unlawful activity” has the
meaning given that term in section 1956 of this title.
Title 18 United States Code § 1956(c)(7)(D) defines
specified unlawful activity as, “[a]ny felony violation of
section 15 of the Food Stamp Act of 1977 (relating to food
stamp fraud) involving a quantity of coupons having a value
of not less than $5,000 . . . .”
Defendant maintains that the district court did not have
subject matter jurisdiction over his 18 U.S.C. § 1957
conviction because 18 U.S.C. § 1956 requires that each
fraudulent food stamp transaction involve a quantity of
coupons worth $5,000. The government argues that the

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8 United States v. Bahhur No. 98-5386
district court did in fact have subject matter jurisdiction over
defendant’s conviction under 18 U.S.C. § 1957, because
§ 1957 is an offense against the laws of the United States as
described under 18 U.S.C. § 3231.
Title 18, United States Code § 3231 provides in relevant
part, “The District Courts of the United States shall have
original jurisdiction, exclusive of the courts of the States, of
all offenses against the laws of the United States.”
Mr. Bahhur pleaded guilty to a violation of 18 U.S.C.
§ 1957. Title 18, United States Code § 1957 is a federal
statute that is clearly an “offense against the laws of the
United States.” Therefore, the district court had subject
matter jurisdiction over defendant’s conviction under 18
U.S.C. § 1957. Accordingly, the Court believes that
defendant has misstated the nature of his objection on this
matter. Defendant’s argument regarding the quantity element
of 18 U.S.C. § 1956 is an attack against the sufficiency of the
evidence necessary to sustain a conviction under 18 U.S.C.
§ 1957, not an argument against the district court’s subject
matter jurisdiction.
The government contends that defendant’s failure to enter
a conditional guilty plea prevents him from raising arguments
against his conviction under 18 U.S.C. § 1957 upon appeal.
The government maintains that review of defendant’s
conviction under 18 U.S.C. § 1957 is precluded by Rule
11(a)(2) of the Federal Rules of Criminal Procedure.
Under Federal Rule of Criminal Procedure 11(a)(2), a
defendant is permitted to enter a conditional plea of guilty or
nolo contendere while reserving the right “on appeal from the
judgment, to review of the adverse determination of any
specified pre-trial motion.” The term “specified pre-trial
motion” incorporates all questions that are collateral to a
determination of guilt or innocence. United States v. Pickett,
941 F.2d 411, 416 (6th Cir. 1991) (referring to the Notes of
the Advisory Committee on Rules for the 1983 Amendments
to Rule 11(a), reprinted in 18 U.S.C. Rules 1-11 at 359). “[A]
defendant forecloses all subsequent non-jurisdictional appeals
No. 98-5386 United States v. Bahhur 13
admitted that the two stores did approximately one hundred
and fifty to two hundred dollars a day in legitimate business,
and that most of the business was in cigarettes and beer,
neither of which could be purchased legally with food stamps.
In the case at bar, the defendant was an integral part of the
joint criminal activity, and therefore, all actions of his co-
conspirators were both foreseeable and within the scope of the
criminal agreement. The enterprise took in approximately
$393,000 in food stamps during the sample eight-month
period, and only a small portion of the food stamps deposited
into the accounts could be attributed to legitimate business.
Moreover, the defendant admitted that he and his family had
been purchasing food stamps since 1993, and that there were
other accounts in which food stamps were deposited which
were not discovered by the government. Thus, the district
court properly found that the defendant’s offense level should
be increased by three points pursuant to U.S.S.G.
§ 2S1.2(b)(2) on the basis that the value of the funds involved
was greater than $350,000.
Based on the foregoing, we find adequate factual support
for the three level increase in defendant’s sentence pursuant
to U.S.S.G. § 2S1.2(b)(2).
D. Sentencing Increase for Aggravating Role
Defendant appeals the district court’s imposition of a three
level increase in his sentence, pursuant to U.S.S.G. § 3B1.1,
based on the district court’s finding that he played an
aggravating role in the offense as a manager or supervisor.
This court reviews the district court’s factual findings in its
application of the Sentencing Guidelines for clear error. See
United States v. Gort-DiDonato, 109 F.3d 318, 320 (6th Cir.
1997). “A finding is clearly erroneous when ‘although there
is evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a
mistake has been committed.” Gort-DiDonato, 109 F.3d at
320 (quoting United States v. Perez, 871 F.2d 45, 48 (6th Cir.
1989)).

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12 United States v. Bahhur No. 98-5386
United States v. Kohlbach, 38 F.3d 832, 835 (6th Cir. 1994).
Nonetheless, the government bears the burden of proving a
sentencing enhancement by a preponderance of the evidence.
See United States v. Berridge, 74 F.3d 113, 116 (6th Cir.
1996). The appellate court reviews the district court’s legal
conclusions de novo and accepts the district court’s factual
findings unless clearly erroneous. See United States v.
Rutana, 18 F.3d 363, 365 (6th Cir. 1996).
The guideline for a violation of 18 U.S.C. § 1957 is set
forth under U.S.S.G. § 2S1.2. Under § 2S1.2(a), the base
offense level is seventeen. Although the base offense level is
seventeen, the guidelines also direct the court to consider the
amount of funds that the defendant knew were the proceeds
of an unlawful activity, which serves as a specific offense
characteristic enhancement. Here, the district court found that
Bahhur knew that more than $350,000 was criminally derived
property for an enhancement of three levels under U.S.S.G.
§ 2S1.2(b)(2). We review this finding for clear error.
In determining the amount of loss, the district court relied
upon Exhibit 3 and the testimony of Special Agent Robert
Johnson of the Internal Revenue Service. Special Agent
Johnson testified in accordance with Exhibit 3 that he was
able to locate six accounts which were used in the illegal food
stamp enterprise run by Mr. Bahhur and the other co-
defendants. Agent Johnson obtained records for these
accounts from a period of September of 1994 to March of
1995. During this eight month period $440,933 was
deposited into the accounts. Of that amount, food stamps
constituted $393,843 or 88.5% of the deposits. Agent
Johnson was only able to identify $5,504.07 in checks to
distributors from the accounts.
Mr. Bahhur operated the illegal enterprise for two years.
Agent Johnson obtained the bank records of the enterprise
representing an eight month period. The defendant admitted
that the Bahhur family had been purchasing food stamps since
1993, and that there were other accounts in which food
stamps were deposited. Moreover, the defendant also
No. 98-5386 United States v. Bahhur 9
to his conviction by pleading guilty or nolo contendere.”
Pickett, 941 F.2d 411, 416 (citing the Notes of the Advisory
Committee on Rules for the 1983 Amendments to Rule 11(a),
reprinted in 18 U.S.C. § 1-11 at 358 which cites Tollett v.
Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235
(1973) and Lott v. United States, 367 U.S. 421, 81 S.Ct. 1563,
6 L.Ed.2d 940 (1961)). Moreover, “in the absence of a court-
approved reservation of issues for appeal, [a defendant
pleading guilty] waives all challenges to the prosecution
except those going to the court’s jurisdiction.” Hayle v.
United States, 815 F.2d 879, 881 (2d Cir. 1987) (cited in
Pickett, 941 F.2d at 416).
In the case at bar, the defendant, prior to pleading guilty,
filed a pre-trial motion to dismiss the prohibited monetary
transaction count on the basis that the district court failed to
meet the prerequisite set out under the statute. The
government opposed the motion and subsequently the district
court denied defendant’s motion. On November 25, 1997,
pursuant to a guilty plea the defendant pleaded guilty to Count
10 charging the defendant with engaging in a prohibited
monetary transaction and Count 34 charging food stamp fraud
in case number 95-20122, and Count 1 charging the defendant
with failure to appear in case number 97-20227. The plea
agreement that the defendant signed and the district court
accepted was not a conditional plea pursuant to
Fed. R. Crim. P. 11(a)(2), nor did defendant indicate to the
district court that he was preserving his right to appeal the
district court’s decision on his motion to dismiss. The
defendant then raised the same argument in both his written
objections to the presentence report and during the sentencing
hearing and the district court again overruled defendant’s
objection.
As stated above, although defendant characterized his
objection as an argument against the district court’s subject
matter jurisdiction, in fact, it was an argument against the
sufficiency of the government’s evidence based on
defendant’s interpretation of 18 U.S.C. §§ 1956 and 1957.
This was a non-jurisdictional collateral attack against his

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10 United States v. Bahhur No. 98-5386
2The defendant refers to the money laundering guideline, however, the
defendant’s conviction under 18 U.S.C. § 1957 falls under U.S.S.G.
§ 2S1.2 which addresses the crime of engaging in a monetary transaction
in property derived from a specified unlawful activity.
3Defendant concedes that his argument is predicated upon the Court
finding that the district court lacked subject matter jurisdiction over his
conviction under 18 U.S.C. § 1957.
conviction. Therefore, by failing to enter into a conditional
plea under Rule 11(a)(2), Mr. Bahhur waived his right to
appeal the district court’s denial of his pre-trial motion to
dismiss the prohibited monetary transaction count on the basis
of insufficient evidence. See Pickett, 941 F.2d at 416-17.
Based on the above, the Court finds that the district court
had subject matter jurisdiction over defendant’s conviction
under 18 U.S.C. § 1957. Moreover, the defendant’s objection
regarding the government’s proof of the quantity element
under 18 U.S.C. §§ 1956 and 1957 is actually an objection to
the sufficiency of the government’s evidence concerning that
element. Such an objection can be waived, and accordingly,
defendant’s failure to enter into a conditional guilty plea
prevents him from raising this argument against his
conviction upon appeal.
B. District Court’s Application of the Money
Laundering Guideline
The defendant next argues that the district court committed
error in calculating his base offense level using the money
laundering guideline2, U.S.S.G. § 2S1.2, instead of the fraud
guideline, U.S.S.G. § 2F1.1, because the district court lacked
subject matter jurisdiction over defendant’s conviction under
18 U.S.C. § 1957.3
Appellate review of sentences imposed under the
Sentencing Guidelines is generally governed by 18 U.S.C.
§ 3742. See United States v. Flowers, 55 F.3d 218, 220 (6th
Cir. 1995) (citing United States v. Morrison, 983 F.2d 730,
No. 98-5386 United States v. Bahhur 11
731-32 (6th Cir. 1993)). Under § 3742, the appellate court
reviews de novo the sentencing court’s interpretation of the
Guidelines. See United States v. Watkins, 994 F.2d 1192,
1195 (6th Cir. 1993).
According to U.S.S.G. § 1B1.2(a), a defendant’s base
offense level is determined by applying the guideline section
most applicable to the offense of conviction, i.e., the offense
conduct charged in the count of indictment or information for
which the defendant was convicted. Moreover, U.S.S.G.
§ 3D1.3(a) instructs that in the case of counts grouped
together, the defendant’s offense level is determined by
applying the most serious of the counts comprising the Group.
In the instant case, Mr. Bahhur was convicted of engaging
in a prohibited monetary transaction, in violation of 18 U.S.C.
§ 1957; food stamp fraud, in violation of 7 U.S.C.
§ 2024(b)(1); and failure to appear, in violation of 18 U.S.C.
§ 3146(a)(1) . As addressed previously, the district court had
subject matter jurisdiction over defendant’s 18 U.S.C. § 1957
conviction, and the defendant’s failure to enter a conditional
guilty plea prevents him from attacking his conviction upon
appeal. Accordingly, the district court properly calculated
Mr. Bahhur’s base offense level utilizing the prohibited
monetary transaction guideline set forth under U.S.S.G.
§ 2S1.2 and in accordance with the grouping rules of U.S.S.G.
§ 3D1.3(a).
C. Value of Funds Attributable to Defendant
Defendant further argues that the district court erred in
determining that defendant’s offense level should be
increased by three points pursuant to U.S.S.G. § 2S1.2(b)(2)
on the basis that the value of the funds involved was greater
than $350,000 but less than $600,000. The government
submits that the record sufficiently supports the district
court’s finding as to the amount of loss attributable to the
defendant.
In calculating the amount of loss figure, the Court
recognizes that the district court is given some leeway. See

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