United States of America v. SALEH MAHMOUD ZAHRAN, AKA Mahmoud Saleh Akel

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SALEH MAHMOUD ZAHRAN, AKA
Mahmoud Saleh Akel,
Defendant - Appellant.
No. 11-50141
D.C. No. 3:07-cr-00332-DMS-1
MEMORANDUM*
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SALEH MAHMOUD ZAHRAN, AKA
Mahmoud Saleh Akel,
Defendant - Appellant.
No. 11-50142
D.C. No. 3:09-cr-04126-DMS-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 14-50155
D.C. No. 3:07-cr-00332-DMS-1
FILED
MAR 26 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

-- 1 of 4 --

v.
SALEH MAHMOUD ZAHRAN, AKA
Mahmoud Saleh Akel,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Submitted March 2, 2015 **
Pasadena, California
Before: PREGERSON, FERNANDEZ, and NGUYEN, Circuit Judges.
Saleh Mahmoud Zahran appeals his 132-month sentence and the district
court’s denial of his motion to reconsider the restitution order with respect to the
tax loss for the tax evasion counts for years 1997 through 2004. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. The district court’s imposition of disparate sentences on Zahran and his
co-defendant wife was not unwarranted because they were convicted of different
crimes; his wife pleaded guilty to fewer, less serious offenses; and the district court
determined that Zahran was guilty of numerous, more serious offenses. See United
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2

-- 2 of 4 --

States v. Ressam, 679 F.3d 1069, 1094-95 (9th Cir. 2012) (en banc); United States
v. Carter, 560 F.3d 1107, 1121 & n.3 (9th Cir. 2009). The disparity between
Zahran’s sentence and his wife’s sentence therefore was not substantively
unreasonable.
Moreover, the district court did not abuse its discretion by imposing an
aggravating role adjustment under U.S.S.G. § 3B1.1(c) where Zahran’s wife was
granted a downward adjustment for minimal role. The district court could have
imposed the aggravating role adjustment even if Zahran’s wife was not convicted
of any crime. See U.S.S.G. § 3B1.1 cmt. n.1.
2. There is no evidence to support Zahran’s argument that the government
presumed that all cash deposits were taxable gross receipts regardless of any
notation or documentation stating otherwise. The record demonstrates that the
government excluded a total of $568,859.03 as loans, even though there were no
promissory notes, loan schedules, correspondence regarding any loans, or
documents of any kind that firmly substantiated any loans from or to clients or
family members. Zahran failed to identify any deposits that he alleged were gifts,
loans, or repayments of loans, nor did he present any witnesses, declarations, or
affidavits to support his claim. His own self-serving testimony is not adequate
proof of additional loans. See Mahigel v. Comm’r, 46 T.C.M. (CCH) 1217 (1983).
3

-- 3 of 4 --

Additionally, the record demonstrates that Agent Haas reviewed “all
available bank records (including statements and cancelled checks) for all sixteen
bank accounts” to “reconstruct[] a total of $711,609.97 in business expenses for
the years 1997 through 2004.” The district court was not required to take Zahran’s
word that there were more business expenses that could have been deducted. See
Mahigel, 46 T.C.M. (CCH) 1217. Thus, the district court did not err in denying
Zahran’s second motion to reconsider the restitution order.
AFFIRMED.
4

-- 4 of 4 --