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51-Month Sentence Affirmed for Man Who Drew $1.3 Million in Aid Through Fraud
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday rebuffed a challenge by a fraudster to a sentence of four years and three months in prison for fraudulently obtaining about $1.3 million in COVID-19 relief guaranteed by the Small Business Administration.
Defendant Hassan Kanyike, a citizen of Uganda, pled guilty to bank fraud, obtaining the government’s agreement to a three-year downward setting of the sentence “for acceptance of responsibility,” though the potential sentence remained at 20 years in prison.
The Ninth Circuit permitted a direct appeal of the sentence, rather than relegating Kanyike to a petition for a writ of habeas corpus, because, the memorandum opinion recites, the appeal is “sufficiently developed to permit review and determination of the issue.” The opinion was signed by Circuit Judge Jacqueline H. Nguyen, Senior Circuit Judge A. Wallace Tashima, and District Court Sidney A. Fitzwater of the Northern District of Texas, sitting by designation.
Lawyer Blamed
Kanyike contended that the sentence was too high, blaming his retained lawyer at the time of sentencing, Dyke E. Huish of Mission Viejo, for failing to competently represent him.
The opinion recites that the lawyer did object, before the sentencing and at the hearing, to an enhancement based on use of “sophisticated means.”
“What he did not do was cite non-binding out-of-circuit precedent that Kanyike maintains should have been cited in support of the objection,” the opinion says. “This failure to cite non-binding authority did not fall below an objective standard of reasonableness.”
The opinion sets forth that Kanyike faults his lawyer for not contesting an enhancement based on the level of the financial loss but “his counsel’s failure to dispute that he derived more than $1 million from financial institutions did not fall below an objective standard of reasonableness.” Kanyike was chief executive officer and chief financial officer of Falcon Motors Inc., which suffered financial losses due to the pandemic.
Huish said in his sentencing memorandum that his client “in a moment of a panic due to Covid induced desperation, accepts full responsibility for false applications seeking $1,775,675.00 and actually receiving $1,302,255.00.” But it notes that he “did not take posh trips or celebrate at high end hotels and bars,” but sent $762,000 to his father in Uganda for use in an investment “the remaining money was used to pay employees, expenses, fees, and debts for his business. Falcon Motors.”
Leniency Sought
He argued:
“When asking for the appropriate sentence one risks credibility if they ask for too much, hi this case what is Too much? Shall justice and the need for punishment be limited because Hassan Kanyike is a good man who transgressed the law? Shall mercy fall onto the fertile and deserved ground of this man’s life and grant him a type of reprieve? To do either would not be unfair nor unexpected.
“But this Court is now charged with the task of weighing out the factors of Hassan’s life well lived against the failure he committed during the days of the Covid Pandemic which induced high anxiety and fear. Would a sentence of substantial home confinement and community service, as have been recommended by The Aleph Institution, be unreasonable? Perhaps a sentence of a year and a day? Even the Government’s request of 33 months does not fall beyond the understanding of the outside observer.”
He was sentenced by District Court Judge (now Senior Judge) Virginia A. Phillips. In addition to imposing a prison term, she ordered that Kanyike make restitution in the amount of $1,302,550.
The case is United States v. Kanyike, 21-50269.
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