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United States v. Khalil

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.

CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS

PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A

SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY

MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC

DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING

TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT

REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second 1

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 2

Square, in the City of New York, on the 16 th day of May, two thousand seventeen. 3

4

PRESENT: GUIDO CALABRESI, 5

RICHARD C. WESLEY, 6

RAYMOND J. LOHIER, JR., 7

Circuit Judges

. 8

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UNITED STATES OF AMERICA, 10

11 Appellee

, 12

13

v. No. 15

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CHOUDRY MUHAMMAD KHALIL, 16

17 Defendant

‐ Appellant. 18

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FOR APPELLANT: A NDREW H. F REIFELD

, New York, NY. 20

21

FOR APPELLEE : M ATTHEW J. J ACOBS (Emily Berger, 22

Alexander A. Solomon, on the brief ), 23

Assistant United States Attorneys, for 24

Bridget M. Rohde, Acting United 25

States Attorney for the Eastern 26

District of New York, Brooklyn, NY. 27

282 Appeal from a judgment of the United States District Court for the Eastern 1

District of New York (Roslynn Mauskopf, Judge). 2

UPON DUE CONSIDERATION, it is HEREBY ORDERED, ADJUDGED, 3

AND DECREED that the judgment of the District Court is AFFIRMED in part, 4

REVERSED in part, and REMANDED with instructions for the District Court to 5

dismiss Count Four and for de novo resentencing. 6

Defendant Choudry Muhammad Khalil appeals from a judgment of the 7

District Court (Mauskopf, J.) following his conviction for (1) smuggling, 8

conspiring to smuggle, transporting, conspiring to transport, and harboring an 9

alien in violation of 8 U.S.C. § 1324; (2) transferring and conspiring to transfer 10

false identification documents in violation of 18 U.S.C. § 1028; and (3) making 11

false statements to federal agents in violation of 18 U.S.C. § 1001. On appeal, 12

Khalil argues that the District Court erred in denying his motion for a judgment 13

of acquittal on several counts of conviction, constructively amended the 14

indictment, and misapplied the United States Sentencing Guidelines. In a 15

separate opinion filed simultaneously with this order, we reverse Khalil’s 16

conviction for violation of 8 U.S.C. § 1324(a)(1)(A)(ii) (Count Four) and remand 17

for the District Court to dismiss Count Four. We assume the parties’ familiarity 183 with that separate opinion and with the facts and record of the prior proceedings, 1

to which we refer only as necessary to explain our decision to affirm in part and 2

reverse in part. 3

First, Khalil challenges his convictions for harboring and conspiring to 4

transport an alien, Ehsan Ullah, within the United States on the ground that Ullah 5

was legally in the United States at the time he stayed in Khalil’s apartment. We 6

disagree. Trial evidence showed that Khalil instructed or encouraged Ullah to 7

lie to immigration officers and to submit a knowingly false asylum application in 8

order to remain in the United States, and thereafter arranged for Ullah to live in 9

Khalil’s apartment. That evidence is sufficient to show that Khalil’s conduct was 10

“intended to facilitate an alien’s remaining in the United States illegally and to 11

prevent detection by the authorities of the alien’s unlawful presence.” United 12

States v. Vargas

‐ Cordon, 733 F.3d 366, 382 (2d Cir. 2013). 13

Khalil next argues that his two false statements to an FBI agent were not 14

material. The two false statements were (1) that Khalil was not related to Jamil 15

Ahmed, a leader of the criminal enterprise to which Khalil belonged, and (2) that 16

on May 11, 2012, Khalil did not know the whereabouts of Ullah. We conclude 17

that the jury could have found that both statements were “capable of distracting 184 government investigators’ attention,” United States v. Stewart, 433 F.3d 273, 318 1

(2d Cir. 2006), or had “a natural tendency to influence, or be capable of 2

influencing, the decision of the” FBI agents investigating Khalil and Ahmed, 3

United States v. Coplan, 703 F.3d 46, 79 (2d Cir. 2012) (quoting United States v. 4

Adekanbi

, 675 F.3d 178, 182 (2d Cir.2012)). 5

Khalil also argues, for the first time on appeal, that the District Court 6

constructively amended the indictment because the jury instructions did not 7

indicate what specific conduct underlay count four (transporting an alien). But 8

the Government’s summation made clear that it “relates

. . . to

. . . the 9

transportation of Rafique to Penn Station and then on to Canada,” App’x 1355, 10

and so we discern no plain error in the District Court’s instructions. 11

Finally, we reject Khalil’s challenges to his sentence. 1 First, the District 12

Court was entitled to apply the three

‐ level enhancement under U.S.S.G. 13

§ 2L1.1(b)(2)(A), based on evidence that Khalil illegally smuggled, harbored, or 14

transported six or more unlawful aliens. Second, Khalil forfeited the argument 15

that Zagham Yaseen’s testimony (that he was detained by Khalil through the use 16

1 Because, as noted, we reve rse Khalil’s conviction under § 1324(a)(1)(A)(ii) by separate opinion, we remand to the

District Court for de novo resentencing, expressing no view on whether the District Court should impose a lower

sentence. See United States v. Powers, 842 F.3d 177, 179–180 (2d Cir. 2016) (per curiam).5 of threat or coercion) does not support the two

‐ level enhancement under U.S.S.G. 1

§ 2L1.1(b)(8)(A). Third, the District Court’s finding that Khalil was “an 2

organizer or leader” of the criminal enterprise, resulting in a four

‐ level 3

enhancement pursuant to U.S.S.G. § 3B1.1(a), was supported in the record. 4

Lastly, we reject Khalil’s argument that the District Court failed to consider the 5

sentencing disparity between Khalil and Ahmed because, among other reasons, 6

Khalil is not similarly situated to Ahmed, who pleaded guilty. See United States 7

v. Ebbers, 458 F.3d 110, 129 (2d Cir. 2006). 8

We have considered Khalil’s remaining arguments that are not the subject 9

of the opinion we issue simultaneously with this summary order and conclude 10

that they are without merit. For the reasons stated herein and in the separate 11

opinion accompanying this order, the judgment of the District Court is 12

AFFIRMED in part, REVERSED in part, and REMANDED with instructions for 13

the District Court to dismiss Count Four and for de novo resentencing. 14

FOR THE COURT: 15

Catherine O’Hagan Wolfe, Clerk of Court 16

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