Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-23-2008

USA v. Sheika
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1127




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                    _____________

                                     No. 06-1127
                                    _____________

                           UNITED STATES OF AMERICA


                                            v.

                                   GEMAL SHEIKA
                                    also known as
                                        Jimmy,

                                                 Appellant


                    On Appeal from the United States District Court
                           for the District of New Jersey
                          (Honorable William G. Bassler)
                                   05-cr-00067-1




                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    May 12, 2008

       Before: McKEE and ROTH, Circuit Judges, and O’NEILL, District Judge *

                              (Filed December 23, 2008 )


                              OPINION OF THE COURT


   *
    The Honorable Thomas N. O’Neill, Jr., Senior District Judge for the United States
District Court for the Eastern District of Pennsylvania, sitting by designation.
McKee, Circuit Judge.

       Gemal Sheika appeals his conviction and sentence for conspiracy to commit credit

card fraud and mail fraud, credit card fraud and mail fraud. He raises 12 claims of error

in this appeal, some of which have sub-parts. Wearily, we find ourselves inspired yet

again to repeat the words of our colleague Judge Aldisert:

       With a decade and a half of federal appellate court experience behind me, I
       can say that even when we reverse a trial court it is rare that a brief
       successfully demonstrates that the trial court committed more than one or
       two reversible errors. I have said in open court that when I read an
       appellant's brief that contains ten or twelve points, a presumption arises that
       there is no merit to any of them. I do not say that it is an irrebuttable
       presumption, but it is a presumption nevertheless that reduces the
       effectiveness of appellate advocacy. Appellate advocacy is measured by
       effectiveness, not loquaciousness.

Aldisert , “The Appellate Bar: Professional Competence and Professional

Responsibility-A View From the Jaundiced Eye of One Appellate Judge,” Capital

University Law Review 445, 458 (1982). Nevertheless, we conclude that one of the

defendant’s contentions does have merit. We will therefore vacate the judgment of

sentence and remand for resentencing.

                                              I.

       Inasmuch as we write primarily for the parties who are familiar with this case, we

need not recite the factual or procedural background in detail.

       One of Sheika’s arguments is that the district court improperly added a two-level

enhancement to his offense level under U.S.S.G. § 2B1.1(b)(10)(C)(ii). An increase is

                                              2
required under this section if “the offense involved . . . the possession of 5 or more means

of identification that unlawfully were produced from, or obtained by the use of, another

means of identification[.]” 

that any credit cards Khaled Nijem or Issam

Matar may have obtained from (or in the name of) the cardholders could not be

considered in support of this enhancement because the credit card holders, themselves,

were active participants in the scheme. Sheika raised this argument at sentencing.

       The Application Note to this section of the Sentencing Guidelines states that the

subsection will apply only where “such a means of identification shall be of an actual (not

fictitious) individual, other than the defendant or a person for whose conduct the

defendant is accountable . . . .” U.S.S.G. § 2B1.1, Application Note 9(A). Because the

credit card holders were active participants in the scheme, Sheika is accountable for their

conduct under § 1B1.3(a)(1)(B), rendering § 2B1.1(b)(10)(C)(ii) inapplicable to the

offense conduct. Cf. United States v. Newsome, 

, 187 (3d Cir. 2006) (fake

drivers licenses that displayed the pictures of defendant’s co-conspirators contained

innocent victims’ personal identifying information and, thus, involved “actual . . .

individual[s] other than the defendant or a person for whose conduct the defendant is

accountable under § 1B1.3”).

       The government concedes the merit of this argument, but asserts that Sheika is not

entitled to a remedy “because the error did not affect his substantial rights.” We reject

this contention, because we have held that “we will remand for resentencing ‘unless [we]



                                             3
conclude on the record as a whole . . . that the error did not affect the district court’s

selection of the sentence imposed.’” United States v. Langford, 

, 215 (3d

Cir. 2008) (quoting Williams v. United States, 

, 203 (1992)) (alteration in

original). The government suggests only that Sheika’s conduct could have qualified for a

different enhancement, specifically U.S.S.G. § 2B1.1(b)(10)(B)(i). However, the

application of that subsection seems equally questionable and was, in any event, not

argued in the district court. Nor are we persuaded by the government’s suggestion that

Sheika “has already received a significant break” because the sentencing judge rejected

the PSR’s recommendation of enhancements for abuse of trust and obstruction of justice.

Each enhancement should be considered on its own merits and not in the aggregate.

                                               II.

       Since the Guideline calculation was incorrect in this instance, we cannot be certain

that the district court would have imposed the same sentence. For a criminal history

category of I and offense level of 27, the Guidelines recommend 70-87 months

imprisonment. Based on this calculation, the district court stated that “in light of all of

the circumstances, [a] sentence in the middle of the range is appropriate” and sentenced

Sheika to 78 months. With a corrected offense level of 25, the Guidelines advisory range

is 57-71 months imprisonment. We will therefore remand to the district court for




                                               4
resentencing in light of this opinion. We find no merit in the remainder of Sheika’s

contentions.2




   2
      Sheika’s brief raised the following additional arguments: (1) the district court erred
in denying defendant’s motion to suppress statements made by Sheika to the FBI prior to
indictment or arrest; (2) the district court erred in denying defendant’s motion for new
trial “as the evidence of two conspiracies was a substantial variance from the indictment
that unduly prejudiced the defendant; (3) the district court erred in denying a motion for
judgment of acquittal as to count one; (4) the district court erred in denying the motion for
judgment of acquittal as to count three; (5) the district court erred in denying defendant’s
motion for a new trial based on a sleeping juror; (6) the defendant was deprived of a fair
tiral based upon the admission of evidence regarding similar prior “bad acts”; (7) the
defendant was deprived of a fair trial based upon the admission of allegedly “expert
testimony” from a law witness regarding suspicious activity on Sheika’s merchang
account; (8) defendant was deprived of a fair trial based upon the admission of
inadmissible bank records; (9) the court erred in allowing summary testimony regarding
fraudulent credit card transactions; (10) defendant was prejudiced by the testimony of an
FBI agent who opined as to the defendant’s guilt (and counsel was ineffective for not
moving for a mistrial based on this testimony, despite corrective instruction given by the
judge); (11) the district court erred in finding for purposes of sentencing (a) the total loss
amount was $417, 389.29; (b) the number of victims was 15; (c) the offense was
sophisticated under U.S.S.G. § 2B1.1(b)(9)(C)(i); and (d) defendant was not a minimal or
minor participant; (12) trial counsel was ineffective for 37 different reasons (which we
will not list as this is not a proper subject for a direct appeal).
                                              5