United States of America v. Zakir Hakim

The Hon. Richard Mills, United States District Judge for the Central District of Illinois,*
sitting by designation.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0657n.06
Filed: October 31, 2008
07-2531
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ZAKIR HAKIM,
Defendant-Appellant.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MICHIGAN
Before: DAUGHTREY and GILMAN, Circuit Judges; MILLS, District Judge.*
PER CURIAM. Defendant Zakir Hakim pleaded guilty to aiding and abetting bank
theft, a Class A misdemeanor, and was sentenced to 12 months in prison. He now takes
issue with the severity of that punishment, contending both that the district court failed to
address Hakim’s objections to the suggested guideline range and that the sentence
imposed was unreasonable. For the reasons detailed in this opinion, we disagree and
affirm.
Hakim admitted at his plea hearing that he “withdrew money from [his] checking
account knowing that the funds were not available.” Similarly, he conceded that he also

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assisted Jason Shudell and Tiffany Shudell in making withdrawals of other unavailable
funds from the Charter One Bank. In fact, all told, the defendant and the Shudells illegally
withdrew $31,159.35 from the bank using the credit card option on the institution’s
automated teller machines so that the transactions were processed without the accounts
being debited immediately.
In its presentence report, the probation office suggested that Hakim’s guideline base
offense level of six be increased by six additional levels due to the monetary amount lost
by the bank in the crime, see USSG § 2B1.1(b)(1)(D), and by two levels because of the
defendant’s role as an organizer and leader, see USSG § 3B1.1(c). Consequently, even
after the defendant was granted a two-level downward adjustment for his acceptance of
responsibility, his total offense level of 12, in conjunction with his criminal history category
of III, subjected Hakim to a guideline sentencing range of 15-21 months. Because the
maximum punishment allowed by statute for the offense of conviction was only 12 months,
however, the district court eventually imposed a 12-month prison sentence, one year of
supervised release, and ordered the defendant to pay restitution to the bank in the amount
of $31,159.35.
On appeal, Hakim first asserts that the district judge erred in finding him to be an
organizer and leader in the crime. Prior to the sentencing hearing, Hakim’s original counsel
did lodge a written objection to this § 3B1.1 adjustment because of his belief that, “under
the facts of this case, co-defendants were equally culpable, thus equally accountable for

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any substantiated loss in this matter.” However, at sentencing Hakim failed to voice this
objection, despite being afforded the opportunity by the district judge to highlight “any
objections, additions, corrections or deletions that [the defendant] wish[ed] to bring to [the
judge’s] attention.” In fact, the defendant’s new counsel acknowledged Hakim’s
“leadership role in what could be considered to have been a [sic] opportunistic, relatively
atavistic crime.” Consequently, the defendant forfeited his challenge to the sentencing
determination, leading to our review for plain error only. See United States v. Bostic, 371
F.3d 865, 872-73 (6th Cir. 2004) .
Although the defendant’s first attorney did contest the “leadership” designation, the
response of the probation department to the defense objection indicated that Hakim
“recruited Jason Shudell and Tiffany Shudell, as well as directing them in making the
fraudulent bank transactions.” That assertion was not contested at the subsequent
sentencing hearing. Moreover, neither Hakim nor the attorney who represented him at
sentencing lodged any objection to the following factual assertion that was also contained
in the presentence report:
Jason P. Shudell admitted to participating in the bank fraud scheme under
the direction of HAKIM, and received $7,500.00 cash compensation for his
role in the offense. Investigation revealed that HAKIM instructed Jason P.
Shudell to open the account at Charter One Bank and HAKIM provided him
with the ATM card. HAKIM advised Jason P. Shudell that he deposited
money into the account and not to touch it. HAKIM and Jason P. Shudell
then made their April 2002 withdrawals together at the Motor City Casino,
MGM Grand Casino, and Charter One Bank locations.

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(Emphasis added.) Absent timely objection, the district judge was justified in concluding
from these statements that the preponderance of the evidence established that Hakim was
indeed a leader in the offense. This first allegation of error is, therefore, without merit.
The defendant also contends that his 12-month sentence is unreasonable, both
because the district court emphasized too heavily Hakim’s past criminal record instead of
his more positive characteristics, and because co-defendant Jason Shudell received a
more lenient sentence of probation rather than a term of incarceration. We review a district
court’s sentencing determination for reasonableness, using the deferential abuse-of-
discretion standard. See United States v. Pearce, 531 F.3d 374, 384 (6th Cir. 2008). Our
review in this regard “has both a procedural and a substantive component.” United States
v. Erpenbeck, 532 F.3d 423, 430 (6th Cir. 2008) (citing Gall v. United States, 128 S.Ct.
586, 592, 597 (2007)).
As a procedural matter, the district judge must have calculated the guidelines range
properly, recognized the advisory nature of the guidelines, considered the sentencing
factors listed in 18 U.S.C. § 3553(a), avoided reliance on clearly erroneous facts, and
explained the chosen sentence adequately. See id. “In evaluating the substantive aspect
of a sentence, we may apply a rebuttable presumption of reasonableness to sentences
within the guidelines. We also give due deference to the district court’s conclusion that the
sentence imposed is warranted by the § 3553(a) factors.” Pearce, 531 F.3d at 384 (citing

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Gall and United States v. Bolds, 511 F.3d 568, 581 (6th Cir. 2007)) (internal quotation
marks omitted).
Contrary to Hakim’s contention, the district judge adequately considered all relevant
§ 3553(a) factors in imposing the sentence he did. The judge commented on the
defendant’s stable family background and noted both Hakim’s efforts to obtain a GED
degree and his $2,000-per-month job. Nevertheless, the district court’s decision to impose
upon the defendant the most severe sentence permitted by statute was informed by
Hakim’s extensive criminal record -- a record of both convictions and arrests that
comprised 32 paragraphs of the presentence report -- and his inability to reform his
behavior, even after earlier convictions and grants of leniency. As stated by the district
judge, “This tells me that you may have a real problem complying with the laws of society,
not only in the past, but in the future.” Furthermore, the court considered the seriousness
of the offense, the need to promote respect for the law and provide just punishment, and
the desire to deter further unlawful conduct. Although the district court did not impose the
sentence that defense counsel advocated, that fact, by itself, does not necessarily
establish the judge’s failure to consider appropriate, mandated sentencing factors or the
imposition of an unreasonable sentence.
Moreover, the defendant’s sentence is not rendered unreasonable simply because
Hakim’s co-defendant was placed on probation rather than receiving a prison sentence
similar to Hakim’s. The provisions of 18 U.S.C. § 3553(a)(6) calling for the avoidance of

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“unwarranted sentence disparities among defendants with similar records who have been
found guilty of similar conduct” are not directed to the elimination of sentence disparities
between any two similarly-situated defendants. Indeed, “[a] sample size of two defendants
is not sufficient to show such a disparity.” United States v. Smith, 510 F.3d 603, 610 (6th
Cir. 2007), cert. denied, 128 S.Ct. 1910 (2008). Rather, Ҥ 3553(a)(6) is intended to
ensure that there are no unwarranted disparities between the sentence of the defendant
in question and the sentences of other defendants in the aggregate.” Id. In light of
Hakim’s extensive criminal record and the failed past attempts to reform his conduct by
measures less severe than incarceration, we conclude that any sentence disparity that is
present in this matter is justified and that the 12-month sentence is, therefore, reasonable.
For the foregoing reasons, we AFFIRM the judgment of conviction and the sentence
of imprisonment imposed upon Hakim.

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