Petition for Writ of Certiorari — Faisal Ashraf, aka Sal, Petitioner v. United States

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APPENDIX TABLE OF CONTENTS

Page

Opinion Of The United States Court Of Appeals

For The Ninth Circuit (Mar. 20, 2023) .....................1a

Order Of The United States Court Of Appeals

For The Ninth Circuit, Denying Petition For

Rehearing And Rehearing En Banc (Jul. 6,

2023) ........................................................................7a

Reporter’s Transcript Of Proceedings For

Arraignment/Change Of Plea In The United

States District Court For The Central District

Of California, Honorable David O. Carter,

Judge Presiding (Nov. 16, 2015) .............................8a

Plea Agreement For Defendant Faisal Ashraf In

The United States District Court For The

Central District Of California (Nov. 16, 2015) .....14a

1a

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES

OF AMERICA,

Plaintiff-Appellee,

No. 18-50071

D.C. No.

8:13-cr-00088-DOC-1

v.

FAISAL ASHRAF,

AKA Sal,

MEMORANDUM*

(Filed Mar. 20 2023)

Defendant-Appellant.

Appeal from the United States District Court

for the Central District of California

David O. Carter, District Judge, Presiding

Argued and Submitted February 14, 2023

Pasadena, California

Before: O’SCANNLAIN, HURWITZ, and

Circuit Judges.

BADE,

Faisal Ashraf appeals his conviction pursuant to

plea agreement on three misdemeanor counts of

intentionally accessing a computer without or in

excess of authorization with the intent to obtain

information. See 18 U.S.C. § 1030(a)(2)(C). Ashraf

also appeals the district court’s order to pay to Hewlett

Packard (“HP”) about $12.6 million in restitution. The

* This disposition is not appropriate for publication and is

not precedent except as provided by Ninth Circuit Rule 36-3.

2a

district court had jurisdiction under 18 U.S.C. § 3231.

This court has jurisdiction under 28 U.S.C. § 1291.

Because the facts are known to the parties, we repeat

them only as necessary to explain our decision.

I

Ashraf first challenges his conviction on the

ground that the district court erred in finding the plea

to have a sufficient factual basis. See Fed. R. Crim. P.

11(b)(3). However, Ashraf ’s plea agreement waived

any appeal of his conviction except “based on a claim

that [his] guilty pleas were involuntary.” “An appeal

waiver in a plea agreement is enforceable if the

language of the waiver encompasses the defendant’s

right to appeal on the grounds raised, and if the waiver

was knowingly and voluntarily made.” United States v.

Minasyan, 4 F.4th 770, 777-78 (9th Cir. 2021) (cleaned

up).

Ashraf argues that his factual-basis claim goes to

knowledge and voluntariness because the factualbasis requirement is “designed to protect a defendant

who is in the position of pleading [guilty] . . . without

realizing that his conduct does not actually fall within

the charge.” McCarthy v. United States, 394 U.S. 459,

467 (1969). But while Rule 11(b)(3) may have the

purpose of protecting uninformed defendants, it does

not follow that every Rule 11(b)(3) violation renders

the plea unknowing or involuntary. Here, the record

shows that Ashraf was fully informed that his

admitted conduct might not constitute a crime.

3a

Specifically, Ashraf waived any argument “pursuant to

United States v. Nosal, 676 F.3d 854 (9th Cir. 2012)

(en banc),” that his conduct was noncriminal. Ashraf

does not challenge the district court’s finding that

this waiver was knowing and voluntary. Instead, he

implausibly asserts that his factual-basis argument

is not “pursuant to Nosal.” While Ashraf ’s opening

brief does not cite Nosal, his argument depends on

the Supreme Court’s recent decision in Van Buren v.

United States, which endorsed Nosal’s holding. 141

S. Ct. 1648, 1653 n.2 (2021) (noting circuit split

involving Nosal); id. at 1662 (resolving the circuit

split in favor of Nosal). Put simply, Ashraf knew his

admitted conduct was arguably noncriminal, and

chose to waive the argument and to plead guilty.

II

Ashraf also challenges his conviction on the

ground that the district court erred by improperly

participating in plea discussions. See Fed. R. Crim.

P. 11(c)(1). Ashraf argues that the district court’s

participation renders his appeal waiver invalid. See

United States v. Gonzalez-Melchor, 648 F.3d 959, 965

(9th Cir. 2011). But in contrast to Gonzalez-Melchor,

where the appeal waiver was “negotiated by the

district court in exchange for a reduced sentence,” id.,

the district court here at most encouraged Ashraf not

to move to withdraw from an existing agreement.

Whether or not such after-the-fact encouragement

violates Rule 11(c)(1), it cannot retroactively render

a plea agreement involuntary. Since Ashraf ’s Rule

4a

11(c)(1) claim does not

voluntariness, it is waived.

go

to

knowledge

or

Even if we were to reach the merits, Ashraf has

not shown prejudicial error. See United States v.

Davila, 569 U.S. 597, 601 (2013) (holding that a Rule

11(c)(1) violation warrants vacatur only if prejudice is

shown). Although the district court encouraged Ashraf

to move to withdraw his plea and then discouraged

him from doing so, the court later retracted its

statements, offered to appoint new counsel to consult

with Ashraf, provided additional time for Ashraf to

consult with new counsel, and stated that it would

not prejudge any motion. The court’s later comments

ameliorated any earlier impropriety. Ashraf has not

offered any basis for concluding that he would have

moved to withdraw absent the court’s statements, or

that the court would have granted such a motion. Since

Ashraf cannot show prejudicial error, his Rule 11(c)(1)

claim would fail even if not waived.

III

Finally, Ashraf argues on various grounds that

the district court’s restitution order was erroneous.

Although Ashraf ’s plea agreement waived his right

to appeal “the amount and terms of any restitution

order,” this waiver cannot be enforced because, as

the Government concedes, Ashraf did not receive “a

reasonably accurate estimate of the amount of the

restitution order to which he [was] exposed at the time

[he agreed] to waive the appeal.” United States v.

5a

Lo, 839 F.3d 777, 785 (9th Cir. 2016) (cleaned up).1

Accordingly, we reach the merits.

Ashraf first argues that the restitution order

lacked statutory authorization because HP’s losses

were not caused by “the specific conduct that is the

basis of the offense of conviction.” United States v.

Yijun Zhou, 838 F.3d 1007, 1013 (9th Cir. 2016)

(cleaned up). But restitution can be ordered for losses

beyond those caused by the offense conduct if the

defendant specifically consented to such restitution.

United States v. Soderling, 970 F.2d 529, 532-33 (9th

Cir. 1992). Here, Ashraf agreed to restitution “for

any losses suffered” as a result of conduct “relevant” to

the convictions. HP’s losses resulted from Ashraf ’s

purchases through its computer system, which related

to Ashraf ’s convictions for accessing that system.

Ashraf also argues that the district court adopted

an erroneous valuation method for HP’s losses. To the

contrary, the district court correctly concluded that

actual losses include lost entitlement to the “higher

price” for products improperly obtained at a discount.

United States v. Ali, 620 F.3d 1062, 1069 (9th Cir. 2010).

Ashraf suggests that later precedent limited losses to

“lost profits on sales that would have taken place if not

for the infringing conduct.” United States v. Anderson,

741 F.3d 938, 953 (9th Cir. 2013). But Ali and Anderson

1

Ashraf raised this argument in his reply brief. No rule of

this circuit required him to raise it earlier. Cf. United States v.

Desotell, 929 F.3d 821, 826 (7th Cir. 2019) (noting circuit split

regarding whether appeal waivers must be attacked in the

defendant-appellant’s opening brief).

6a

do not conflict; they simply involve different kinds of

losses. In Anderson, a copyright infringer had no right

to sell the product, and so the victim was entitled to

the profits it would have made absent those sales. 741

F.3d at 953. In Ali, a discount appropriator had no right

to receive the product at a discount, and, since he had

already received it, the victim was entitled to the

proper, higher price. 620 F.3d at 1070. Ali governs the

present case: Ashraf did not violate a copyright, but

rather obtained an improper discount.

Last, Ashraf argues that the district court

unreasonably assumed that HP had the same

overhead costs for products sold at a discount and

products sold at the higher price.2 But the district

court assumed no such thing. Overhead costs are

simply irrelevant for calculating HP’s lost entitlement.

IV

The judgment of the district court is AFFIRMED.

2

As evidence for such a disparity, Ashraf cites a colloquy

from a different case in which an HP representative agreed that

revenue differs from profits. Ashraf’s unopposed motion for

judicial notice of this colloquy (Dkt. No. 60) is GRANTED.

7a

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES

OF AMERICA,

Plaintiff-Appellee,

v.

FAISAL ASHRAF,

AKA Sal,

Defendant-Appellant.

No. 18-50071

D.C. No.

8:13-cr-00088-DOC-1

Central District of

California, Santa Ana

ORDER

(Filed Jul. 6 2023)

Before: O’SCANNLAIN, HURWITZ, and

Circuit Judges.

BADE,

The panel has voted to deny the petition for

rehearing and the petition for rehearing en banc. The

panel has voted unanimously to deny the petition for

rehearing. Judge Bade has voted to deny the petition

for rehearing en banc, and Judges O’Scannlain and

Hurwitz have so recommended. The full court has been

advised of the petition for rehearing en banc, and no

judge has requested a vote on whether to rehear the

matter en banc. Fed. R. App. P. 35.

The petition for rehearing and the petition for

rehearing en banc are DENIED.

8a

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

HONORABLE DAVID O. CARTER,

JUDGE PRESIDING

–––––––

UNITED STATES

OF AMERICA,

Plaintiff,

vs.

FAISAL ASHRAF,

aka “SAL”,

Defendant.

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CERTIFIED

No. 8:13-CR-0088-DOC

Item No. 8

REPORTER’S TRANSCRIPT OF PROCEEDINGS

Arraignment/Change of Plea

Santa Ana, California

Monday, November 16, 2015

9a

Debbie Gale, CSR 9472, RPR, CCRR

Federal Official Court Reporter

United States District Court

411 West 4th Street, Room 1-053

Santa Ana, California 92701

(714) 558-8141

APPEARANCES OF COUNSEL:

FOR PLAINTIFF UNITED STATES OF AMERICA:

DEPARTMENT OF JUSTICE

OFFICE OF THE UNITED STATES ATTORNEY

Cyber and Intellectual Property Crimes Section

BY: Lisa Eve Feldman

Assistant United States Attorney

312 North Spring Street

Suite 1200

Los Angeles, California 90012-4700

213-894-2434

lisa.feldman@usdoj.gov

FOR DEFENDANT FAISAL ASHRAF, aka “SAL”:

James D. Riddet (retained)

BIENERT MILLER AND KATZMAN PLC

903 Calle Amanecer

Suite 350

San Clemente, California 92675

949-369-3700

jriddet@bmkattorneys.com

*

*

*

[8] THE COURT: Well, this is Case No. 130088. And it’s a plea agreement that the Court has

before it.

10a

And, sir, would you raise your right hand.

Debbie’s going to administer an oath to you.

(Defendant sworn.)

THE DEFENDANT:

THE COURT:

your hand down.

I do.

Thank you, sir. You can put

I go through the plea sequentially, page by page.

Some pages I’ll summarize, but it’s very easy to follow,

and your counsel will help you.

What’s your full name, sir?

THE DEFENDANT:

Faisal Ashraf.

THE COURT: And do you understand that

you’ve been charged with this Third Superseding

Information?

And it states that you’re going to plead guilty to

a three-count Third Superseding Information, which

contains or has charges involving three misdemeanor

counts of Intentionally Accessing a Computer Without

Authorization and in Excess of Authorization with the

attempt to obtain information in violation of Title 18,

United States Code, Section 1030(a)(2)(C), (c)(2)(A) of

the Information.

[9] And do you understand the potential arguments

that might be raised pursuant to United States v.

Nosal?

11a

And, Counsel, you can explain those rights, then,

to the gentleman.

MS. FELDMAN:

THE COURT:

Yes.

Yeah.

MS. FELDMAN:

Sure.

And we did – let me refer to – there’s a reference

to that case. You’re talking about the case, Your Honor?

THE COURT:

Well, it’s in the document –

MS. FELDMAN:

Right.

THE COURT: – I haven’t paid too much

attention to that case, so why don’t you explain it to

counsel –

MS. FELDMAN:

THE COURT:

Sure.

– and the client.

MS. FELDMAN: And I did bring a copy in

case, for any reason, the Court wanted it – or defense

counsel. But the case, United States v. Nosal, 676 F.3d

854 (9th Cir. 2012) referred to in Paragraph 2, that

case references rights under the part of exceeding

authorized access. It involved an employee of a

company who then left the company and asked people

who were still working there, his friends who had

access to that information that they were properly

granted by that company, to send him information to

use for [10] a competing company. That’s essentially

the facts.

12a

Uh, and ultimately the Ninth Circuit said that

that is not a crime; that that was not a violation of the

10 – (Inaudible.)

(Court reporter requests clarification for the

record.)

MS. FELDMAN: It was not a violation of

1030(a)(2) – Title 18, Section 1030(a)2.

We believe that this case is distinguishable from

that under the facts of the case. But, to the extent

defense for any reason feels that there could be

potentially an argument, we have set forth in here –

which was in another plea agreement your Court –

Your Honor may recall – uh, in the case – that

you understand the case and waive any potential

arguments you believe you might have under that case

to say that there’s a problem with this information and

it wouldn’t be a crime.

I hope I explained that?

THE COURT:

That’s excellent.

Better than I can, Counsel.

MR. RIDDET:

Your Honor.

Better than I could, as well,

THE COURT: Saw the case, and that’s why

I asked you to summarize it.

MS. FELDMAN:

Thank you.

[11] THE COURT: Do

everything that Counsel said?

you

understand

13a

THE DEFENDANT:

*

*

Yes, Your Honor, I do.

*

[35] COURT’S FINDINGS

THE COURT: All right. Then I’m going to

find that there’s a knowing and intelligent waiver of

your rights, that you understand the nature and

consequences of your plea, that your plea is freely and

voluntarily entered into, that there’s a sufficient

factual basis for this plea.

*

*

*

14a

EILEEN M. DECKER

United States Attorney

PATRICIA A. DONAHUE

Assistant United States Attorney

Chief, National Security Division

LISA E. FELDMAN (Cal. Bar No. 130019)

DAVID P. KOWAL (Cal. Bar No. 188651)

Assistant United States Attorneys

Cyber and Intellectual Property Crimes Section

1200 United States Courthouse

312 North Spring Street

Los Angeles, California 90012

Telephone: (213) 894-0633/5136

Facsimile: (213) 894-8601

E-mail: lisa.feldman@usdoj.gov

david.kowal@usdoj.gov

Attorneys for Plaintiff

UNITED STATES OF AMERICA

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

UNITED STATES

OF AMERICA,

Plaintiff,

v.

FAISAL ASHRAF,

aka “Sal,”

Defendant.

No. SA CR 13-00088(C) -DOC

PLEA AGREEMENT

FOR DEFENDANT

FAISAL ASHRAF

FILED

2015 Nov 16 AM 11:42

1. This constitutes the plea agreement between

FAISAL ASHRAF, also known as (“aka”) “Sal”

15a

(“defendant”), and the United States Attorney’s Office

for the Central District of California (“the USAO”)

in the above-captioned action. This agreement is

limited to the USAO and cannot bind any other federal,

state, local, or foreign prosecuting, enforcement,

administrative, or regulatory authorities.

DEFENDANT’S OBLIGATIONS

2.

Defendant agrees to:

a) Give up the right to indictment by a

grand jury and, at the earliest opportunity requested

by the USAO and provided by the Court, appear and

plead guilty to a three-count, third superseding

information in the form attached to this agreement as

Exhibit A or a substantially similar form, which

charges defendant with three misdemeanor counts

of intentionally accessing a computer, without

authorization and in excess of authorization, with

intent to obtain information, in violation of Title 18,

United States Code, Sections 1030(a)(2)(C), (c)(2)(A)

(the “Information”). Defendant understands potential

arguments that might be raised pursuant to United

States v. Nosal, 676 F.3d 854 (9th Cir. 2012) (en banc)

and waives those arguments.

b) Not contest facts agreed to in this

agreement.

c) Abide by all agreements

sentencing contained in this agreement.

regarding

16a

d) Appear for all court appearances,

surrender as ordered for service of sentence, obey all

conditions of any bond, and obey any other ongoing

court order in this matter.

e) Not commit any crime; however, offenses

that would be excluded for sentencing purposes under

United States Sentencing Guidelines (“U.S.S.G.” or

“Sentencing Guidelines”) § 4A1.2(c) are not within the

scope of this agreement.

f ) Be truthful at all times with Pretrial

Services, the United States Probation Office, and the

Court.

g) Pay the applicable special assessments at

or before the time of sentencing unless defendant lacks

the ability to pay and prior to sentencing submits a

completed financial statement on a form to be provided

by the USAO.

h) Not seek the discharge of any restitution

obligation, in whole or in part, in any present or future

bankruptcy proceeding.

i) Upon the filing of this plea agreement, to

promptly withdraw all pending motions.

THE USAO’S OBLIGATIONS

3.

The USAO agrees to:

a) Not contest facts agreed to in this

agreement.

17a

b) Abide by all agreements

sentencing contained in this agreement.

regarding

c) Except for criminal tax violations (including

conspiracy to commit such violations chargeable under

18 U.S.C. § 371), not further criminally prosecute

defendant for violations arising out of defendant’s

conduct described in the First Superseding Indictment

and the agreed-to factual basis set forth in paragraph

11 below. Defendant understands that the USAO is

free to criminally prosecute defendant for any other

unlawful past conduct or any unlawful conduct that

occurs after the date of this agreement. Defendant

agrees that at the time of sentencing the Court may

consider the uncharged conduct in determining the

applicable Sentencing Guidelines range, the propriety

and extent of any departure from that range, and the

sentence to be imposed after consideration of the

Sentencing Guidelines and all other relevant factors

under 18 U.S.C. § 3553(a).

d) At the time of sentencing, provided that

defendant demonstrates an acceptance of responsibility

for the offenses up to and including the time of

sentencing, recommend a two-level reduction in the

applicable Sentencing Guidelines offense level, pursuant

to U.S.S.G. § 3E1.1, and recommend and, if necessary,

move for an additional one-level reduction if available

under that section.

18a

NATURE OF THE OFFENSES

4. Defendant understands that for defendant to

be guilty of the misdemeanor crime of intentionally

accessing a computer, without or in excess of

authorization, with intent to obtain information, in

violation of Title 18, United States Code, Sections

1030(a)(2)(C), (c)(2)(A), as charged in Counts One, Two

and Three of the Information, the following must be

true: (1) the defendant intentionally accessed without

authorization or exceeded authorized access to a

computer; and (2) by accessing without authorization

or exceeding authorized access to a computer, the

defendant obtained information from a computer that

was used in or affected commerce or communication

between one state and another state or between a state

of the United States and a foreign country.

PENALTIES

5. Defendant understands that the statutory

maximum sentence that the Court can impose for

each violation of Title 18, United States Code, Sections

1030(a)(2), (c)(2)(A), as charged in the Information, is:

a one-year period of imprisonment or a five-year period

of probation; a one-year period of supervised release; a

fine of $100,000 or twice the gross gain or gross loss

resulting from the offense, whichever is greatest; and

a mandatory special assessment of $25.

6. Defendant understands, therefore, that while

the statutory maximum sentence for each count of

conviction is one year imprisonment or five years

19a

probation as set forth in the preceding paragraph, if

the Court were to exercise its discretion and impose

consecutive sentences on each of the three counts of

conviction, instead of concurrent sentences on each

of the three counts of conviction, the total statutory

maximum sentence for all offenses to which defendant

is pleading guilty is: three years imprisonment or a

five-year period of probation; a one-year period of

supervised release; a fine of $300,000 or twice the

gross gain or gross loss resulting from the offenses,

whichever is greatest; and a mandatory special

assessment of $75.

7. Defendant understands that supervised

release is a period of time following imprisonment

during which defendant will be subject to various

restrictions

and

requirements.

Defendant

understands that if defendant violates one or more of

the conditions of any supervised release imposed,

defendant may be returned to prison for all or part of

the term of supervised release authorized by statute

for the offense that resulted in the term of supervised

release, which could result in defendant serving a total

term of imprisonment greater than the statutory

maximum stated above.

8. Defendant understands that should the Court

determine that restitution is appropriate and/or

required, defendant will be required to pay full

restitution to the victim(s) of the offenses to which

defendant is pleading guilty. Defendant agrees that, in

return for the USAO’s compliance with its obligations

under this agreement, the Court may order restitution

20a

to persons other than the victim(s) of the offenses to

which defendant is pleading guilty and in amounts

greater than those alleged in the counts to which

defendant is pleading guilty. In particular, defendant

agrees that the Court may order restitution to any

victim of any of the following for any losses suffered by

that victim as a result: (a) any relevant conduct, as

defined in U.S.S.G. § 1B1.3, in connection with the

offenses to which defendant is pleading guilty; and (b)

any counts dismissed and charges not prosecuted

pursuant to this agreement as well as all relevant

conduct, as defined in U.S.S.G. § 1B1.3, in connection

with those counts and charges.

9. Defendant understands that, by pleading

guilty, defendant may be giving up valuable

government benefits and valuable civic rights.

Defendant understands that the conviction in this

case may also subject defendant to various other

collateral consequences, including but not limited to

revocation of probation, parole, or supervised release

in another case and suspension or revocation of a

professional license. Defendant understands that

unanticipated collateral consequences will not serve

as grounds to withdraw defendant’s guilty plea.

10. Defendant understands that, if defendant

is not a United States citizen, the convictions in this

case may subject defendant to: removal, also known

as deportation, which may, under some circumstances,

be mandatory; denial of citizenship; and denial of

admission to the United States in the future. The

court cannot, and defendant’s attorney also may not

21a

be able to, advise defendant fully regarding the

immigration consequences of the convictions in

this case. Defendant understands that unexpected

immigration consequences will not serve as grounds

to withdraw defendant’s guilty plea.

FACTUAL BASIS

11. Defendant admits that defendant is, in fact,

guilty of the offenses to which defendant is agreeing to

plead guilty. Defendant and the USAO agree to the

statement of facts provided below and agree that this

statement of facts is sufficient to support pleas of

guilty to the charges described in this agreement

and to establish the Sentencing Guidelines factors set

forth in paragraph 13 below but is not meant to be

a complete recitation of all facts relevant to the

underlying criminal conduct or all facts known to

either party that relate to that conduct.

At all times relevant to the Superseding

Information, Hewlett Packard (“HP”) was a

company that produced and sold computer

equipment. HP offered a program called the

“HP Volume Big Deal Rebate Program,” also

known as (“aka”) the “Big Deal” program. The

Big Deal program offered special discounts

substantially greater than others offered by

HP. An HP partner that was seeking a Big

Deal discount was required to represent that

the products obtained through the program

were for internal use by the stated end user

and would not be resold, and to obtain a

discounted price quote using a protected HP

22a

computer system. Big Deal price quotations

were authorized only for transactions involving

stated end users purchasing the products for

internal use, and were not authorized to

obtain products for resellers. If a Big Deal

price quotation was authorized, the HP

partners would access it through the “HP

Partner Portal” computer system. To access

the HP Partner Portal computer system, the

partner needed a user name and password.

HP does not provide user names and

passwords where HP products would be sold

to unauthorized end users.

Beginning on a date unknown but prior to

on or about May 31, 2006 and continuing

through on or about August 11, 2009, in

Orange County, California, and elsewhere,

defendant Faisal Ashraf, aka “Sal,” and his

brother, defendant Umer Haseeb, aka “Omar

Farooq” (“Haseeb”), intentionally accessed a

protected computer without authorization

and exceeding authorization, and thereby

obtained information from that computer.

More specifically, at his brother Haseeb’s

request, defendant Ashraf, without authorization

and exceeding authorization, intentionally

accessed HP’s Partner Portal computer system

using logins and passwords that his brother

Haseeb provided to him. HP would not have

provided the logins and passwords if HP had

been aware that the products to be purchased

were for unauthorized end users. Once they

obtained unauthorized access to HP’s Partner

Portal computer system, defendant Ashraf

23a

and Haseeb obtained information in order

to purchase HP products for resale to

unauthorized end users or customers. As a

result of the above actions, defendant Ashraf

and Haseeb thereby caused shipments of

HP products under the Big Deal program

to be delivered to unauthorized end-users,

including Company A, which was engaged in

the business of re-selling computer products.

Specifically, on or about April 30, 2007, May

21, 2007, and May 23, 2007, defendant

Ashraf, in Orange County, within the Central

District of California, and elsewhere, without

authorization and exceeding authorization,

used login and password information to access

the HP Partner Portal computer system to

obtain information for unauthorized purchase

transactions under the Big Deal program

knowing that he was not authorized by HP to

do so. For example, on or about May 23, 2007,

defendant Ashraf, without authorization

and exceeding authorization, accessed HP’s

Partner Portal computer system with login

and password information to HP’s website

that Haseeb provided to him via email.

Ashraf ’s use of HP logins and passwords

described above was unauthorized by HP.

The HP computer equipment met the

definition of “computer” set forth in Title 18,

United States Code, Section 1030(e)(1) and were

used in and affected interstate commerce.

24a

SENTENCING FACTORS

12. Defendant understands that in determining

defendant’s sentence the Court is required to calculate

the applicable Sentencing Guidelines range and to

consider that range, possible departures under the

Sentencing Guidelines, and the other sentencing

factors set forth in 18 U.S.C. § 3553(a). Defendant

understands that the Sentencing Guidelines are advisory

only, that defendant cannot have any expectation of

receiving a sentence within the calculated Sentencing

Guidelines range, and that after considering the

Sentencing Guidelines and the other § 3553(a) factors,

the Court will be free to exercise its discretion to

impose any sentence it finds appropriate up to the

maximum set by statute for the crimes of conviction.

13. Except as set forth in paragraph 3(d) above,

defendant and the USAO have no agreement as to

the appropriate sentence or the applicable Sentencing

Guidelines factors, including that defendant specifically

reserves his right to argue that the applicable

Sentencing Guideline Section in this case is USSG

§ 2X5.2 and the USAO specifically reserves its right to

argue that the applicable Sentencing Guideline

Section in this case is USSG § 2B1.1. Except as

set forth in paragraph 3(d), both parties reserve the

right to seek any sentence within the statutory

maximum, and to argue for any criminal history

score and category, base offense level, specific

offense characteristics, adjustments, departures, and

variances. As applied to this case, defendant thus

reserves the right to seek any sentence lower than

25a

three years imprisonment, including a sentence of

probation, and the government reserves the right to

argue for any sentence up to the statutory maximum

sentence of three years imprisonment.

14. Defendant understands that there is no

agreement as to defendant’s criminal history or

criminal history category.

15. Defendant and the USAO reserve the right

to argue for a sentence outside the sentencing range

established by the Sentencing Guidelines based on the

factors set forth in 18 U.S.C. § 3553(a)(1), (a)(2), (a)(3),

(a)(6), and (a)(7).

WAIVER OF CONSTITUTIONAL RIGHTS

16. Defendant understands that by pleading

guilty, defendant gives up the following rights;

a)

The right to persist in a plea of not guilty.

b)

The right to a speedy and public trial by

jury.

c) The right to be represented by counsel –

and if necessary have the court appoint counsel –

at trial. Defendant understands, however, that,

defendant retains the right to be represented by

counsel – and if necessary have the court appoint

counsel – at every other stage of the proceeding.

d) The right to be presumed innocent and to

have the burden of proof placed on the government to

prove defendant guilty beyond a reasonable doubt.

26a

e) The right to confront and cross-examine

witnesses against defendant.

f ) The right to testify and to present

evidence in opposition to the charges, including the

right to compel the attendance of witnesses to testify.

g) The right not to be compelled to testify,

and, if defendant chose not to testify or present

evidence, to have that choice not be used against

defendant.

h) Any and all rights to pursue any

affirmative defenses. Fourth Amendment or Fifth

Amendment claims, and other pretrial motions

that have been filed or could be filed.

WAIVER OF VENUE

17. Having been fully advised by defendant’s

attorney regarding the requirements of venue with

respect to the offenses to which defendant is pleading

guilty, to the extent the offenses to which defendant is

pleading guilty were committed, begun, or completed

outside the Central District of California, defendant

knowingly, voluntarily, and intelligently waives,

relinquishes, and gives up: (a) any right that defendant

might have to be prosecuted only in the district where

the offenses to which defendant is pleading guilty were

committed, begun, or completed; and (b) any defense,

claim, or argument defendant could raise or assert

based upon lack of venue with respect to the offenses

to which defendant is pleading guilty.

27a

WAIVER OF STATUTE OF LIMITATIONS

18. Having been fully advised by defendant’s

attorney regarding application of the statute of

limitations to the offenses to which defendant is

pleading guilty, defendant hereby knowingly, voluntarily,

and intelligently waives, relinquishes, and gives up:

(a) any right that defendant might have not to be

prosecuted for the offenses to which defendant is

pleading guilty because of the expiration of the statute

of limitations for those offenses prior to the filing of

the information alleging those offenses; and (b) any

defense, claim, or argument defendant could raise

or assert that prosecution of the offenses to which

defendant is pleading guilty is barred by the expiration

of the applicable statute of limitations, pre-indictment

delay, or any speedy trial violation.

WAIVER OF RETURN OF DIGITAL DATA

19. Understanding that the government has in

its possession digital devices and/or digital media

seized from defendant, defendant waives any right to

the return of digital data contained on those digital

devices and/or digital media and agrees that if any of

these digital devices and/or digital media are returned

to defendant, the government may delete all digital

data from those digital devices and/or digital media

before they are returned to defendant.

28a

WAIVER OF APPEAL OF CONVICTION

20. Defendant understands that, with the exception

of an appeal based on a claim that defendant’s guilty

pleas were involuntary, by pleading guilty defendant is

waiving and giving up any right to appeal defendant’s

convictions on the offenses to which defendant is

pleading guilty.

LIMITED MUTUAL WAIVER

OF APPEAL OF SENTENCE

21. Defendant agrees that, provided the Court

imposes a total term of imprisonment on all counts

of conviction of no more than 36 months, defendant

gives up the right to appeal all of the following:

(a) the procedures and calculations used to determine

and impose any portion of the sentence; (b) the term

of imprisonment imposed by the Court; (c) the fine

imposed by the court, provided it is within the

statutory maximum; (d) the amount and terms of

any restitution order; (e) the term of probation or

supervised release imposed by the Court, provided it

is within the statutory maximum; and (f ) any of the

following conditions of probation or supervised release

imposed by the Court: the conditions set forth in

General Orders 318, 01-05 and/or 05-02 of this Court;

the drug testing conditions mandated by 18 U.S.C.

§§ 3563(a)(5) and 3583(d); and the alcohol and drug

use conditions authorized by 18 U.S.C. § 3563(b)(7).

22. The USAO agrees that, provided (a) all

portions of the sentence are at or below the statutory

29a

maximum specified above and (b) the Court imposes a

term of imprisonment of no less than 36 months, the

USAO gives up its right to appeal any portion of the

sentence.

RESULT OF WITHDRAWAL OF GUILTY PLEA

23. Defendant agrees that if, after entering

guilty pleas pursuant to this agreement, defendant

seeks to withdraw and succeeds in withdrawing

defendant’s guilty pleas on any basis other than a

claim and finding that entry into this plea agreement

was involuntary, then (a) the USAO will be relieved

of all of its obligations under this agreement; and

(b) should the USAO choose to pursue any charge

that was either dismissed or not filed as a result

of this agreement, then (i) any applicable statute

of limitations will be tolled between the date of

defendant’s signing of this agreement and the filing

commencing any such action; and (ii) defendant waives

and gives up all defenses based on the statute of

limitations, any claim of pre-indictment delay, or any

speedy trial claim with respect to any such action,

except to the extent that such defenses existed as of

the date of defendant’s signing this agreement.

EFFECTIVE DATE OF AGREEMENT

24. This agreement is effective upon signature

and execution of all required certifications by

defendant, defendant’s counsel, and an Assistant

United States Attorney.

30a

BREACH OF AGREEMENT

25. Defendant agrees that if defendant, at any

time after the signature of this agreement and

execution of all required certifications by defendant,

defendant’s counsel, and an Assistant United States

Attorney, knowingly violates or fails to perform any

of defendant’s obligations under this agreement (“a

breach”), the USAO may declare this agreement

breached. All of defendant’s obligations are material, a

single breach of this agreement is sufficient for the

USAO to declare a breach, and defendant shall not be

deemed to have cured a breach without the express

agreement of the USAO in writing. If the USAO

declares this agreement breached, and the Court finds

such a breach to have occurred, then: (a) if defendant

has previously entered guilty pleas pursuant to this

agreement, defendant will not be able to withdraw the

guilty pleas, and (b) the USAO will be relieved of all its

obligations under this agreement.

26. Following the Court’s finding of a knowing

breach of this agreement by defendant, should the

USAO choose to pursue any charge that was either

dismissed or not filed as a result of this agreement,

then:

a) Defendant agrees that any applicable

statute of limitations is tolled between the date of

defendant’s signing of this agreement and the filing

commencing any such action.

b) Defendant waives and gives up all

defenses based on the statute of limitations, any

31a

claim of pre-indictment delay, or any speedy trial

claim with respect to any such action, except to the

extent that such defenses existed as of the date of

defendant’s signing this agreement.

c) Defendant agrees that: (i) any statements

made by defendant, under oath, at the guilty plea

hearing (if such a hearing occurred prior to the breach);

(ii) the agreed to factual basis statement in this

agreement; and (iii) any evidence derived from such

statements, shall be admissible against defendant in

any such action against defendant, and defendant

waives and gives up any claim under the United States

Constitution, any statute, Rule 410 of the Federal

Rules of Evidence, Rule 11(f ) of the Federal Rules of

Criminal Procedure, or any other federal rule, that

the statements or any evidence derived from the

statements should be suppressed or are inadmissible.

COURT AND PROBATION OFFICE NOT PARTIES

27. Defendant understands that the Court

and the United States Probation Office are not parties

to this agreement and need not accept any of the

USAO’s sentencing recommendations or the parties’

agreements to facts or sentencing factors.

28. Defendant understands that both defendant

and the USAO are free to: (a) supplement the facts by

supplying relevant information to the United States

Probation Office and the Court, (b) correct any and

all factual misstatements relating to the Court’s

Sentencing Guidelines calculations and determination

32a

of sentence, and (c) argue on appeal and collateral

review that the Court’s Sentencing Guidelines

calculations and the sentence it chooses to impose

are not error, although each party agrees to maintain

its view that the calculations in paragraph 13 are

consistent with the facts of this case. While this

paragraph permits both the USAO and defendant to

submit full and complete factual information to the

United States Probation Office and the Court, even if

that factual information may be viewed as inconsistent

with the facts agreed to in this agreement, this

paragraph does not affect defendant’s and the USAO’s

obligations not to contest the facts agreed to in this

agreement.

29. Defendant understands that even if the

Court ignores any sentencing recommendation, finds

facts or reaches conclusions different from those

agreed to, and/or imposes any sentence up to the

maximum established by statute, defendant cannot,

for that reason, withdraw defendant’s guilty pleas,

and defendant will remain bound to fulfill all

defendant’s obligations under this agreement.

Defendant understands that no one – not the

prosecutor, defendant’s attorney, or the Court – can

make a binding prediction or promise regarding

the sentence defendant will receive, except that it

will be within the statutory maximum.

33a

NO ADDITIONAL AGREEMENTS

30. Defendant understands that, except as set

forth herein, there are no promises, understandings, or

agreements between the USAO and defendant or

defendant’s attorney, and that no additional promise,

understanding, or agreement may be entered into

unless in a writing signed by all parties or on the

record in court.

PLEA AGREEMENT PART OF

THE GUILTY PLEA HEARING

31. The parties agree that this agreement will

be considered part of the record of defendant’s

guilty plea hearing as if the entire agreement had

been read into the record of the proceeding.

AGREED AND ACCEPTED

UNITED STATES ATTORNEY’S OFFICE

FOR THE CENTRAL DISTRICT OF CALIFORNIA

EILEEN M. DECKER

United States Attorney

/s/ Lisa E. Feldman

11-16-15

LISA E. FELDMAN/DAVID P. KOWAL Date

Assistant United States Attorneys

/s/ Faisal Ashraf

FAISAL ASHRAF

Defendant

11/14/15

Date

34a

/s/ Joel Androphy

Nov. 14, 2015

JOEL ANDROPHY/JAMES RIDDET Date

Attorneys for Defendant

FAISAL ASHRAF

CERTIFICATION OF DEFENDANT

I have read this agreement in its entirety. I

have had enough time to review and consider this

agreement, and I have carefully and thoroughly

discussed every part of it. with my attorney. I

understand the terms of this agreement, and I

voluntarily agree to those terms. I have discussed

the evidence with my attorney, and my attorney

has advised me of my rights, of possible pretrial

motions that might be filed, of possible defenses that

might be asserted either prior to or at trial, of the

sentencing factors set forth in 18 U.S.C. § 3553(a), of

relevant Sentencing Guidelines provisions, and of the

consequences of entering into this agreement. No

promises, inducements, or representations of any kind

have been made to me other than those contained in

this agreement. No one has threatened or forced me in

any way to enter into this agreement. I am satisfied

with the representation of my attorney in this matter,

and I am pleading guilty because I am guilty of the

charges and wish to take advantage of the promises

set forth in this agreement, and not for any other

reason.

/s/ Faisal Ashraf

FAISAL ASHRAF

Defendant

11/14/15

Date

35a

CERTIFICATION OF DEFENDANT’S ATTORNEY

I am FAISAL ASHRAF’s attorney. I have carefully

and thoroughly discussed every part of this agreement

with my client. Further, I have fully advised my client

of his rights, of possible pretrial motions that might

be filed, of possible defenses that might be asserted

either prior to or at trial, of the sentencing factors set

forth in 18 U.S.C. § 3553(a), of relevant Sentencing

Guidelines provisions, and of the consequences of

entering into this agreement. To my knowledge: no

promises, inducements, or representations of any kind

have been made to my client other than those

contained in this agreement; no one has threatened

or forced my client in any way to enter into this

agreement; my client’s decision to enter into this

agreement is an informed and voluntary one; and the

factual basis set forth in this agreement is sufficient

to support my client’s entry of guilty pleas pursuant

to this agreement.

/s/ Joel Androphy

11-14-15

JOEL ANDROPHY/JAMES RIDDET Date

Attorneys for Defendant

FAISAL ASHRAF

[Attachment Omitted]