12-887-cr

United States v. Dhafir

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 A SUMMARY ORDER MUST

SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

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

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 7th 4 day of February, two thousand thirteen.

5

6 PRESENT: DENNIS JACOBS,

7 Chief Judge,

8 AMALYA L. KEARSE,

9 SUSAN L. CARNEY,

10 Circuit Judges.

11

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13 UNITED STATES OF AMERICA, 

14 Appellee,

15

16 -v.- 12-887-cr

17

18 RAFIL DHAFIR, AKA Sealed Deft # 1, 

19 Defendant-Appellant,

20

21 Maher Zagha, AKA Sealed Deft # 2,

22 Ayman Jarwan, AKA Sealed Deft # 3,

23 Osameh Al Wahaidy, AKA Sealed Deft

24 # 4, Help the Needy, AKA Sealed Deft

25 # 5, Help the Needy Endowment, Inc.,

26 AKA Sealed Deft # 6,

27 Defendants.

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1
1

2 FOR APPELLANT: PETER GOLDBERGER (Pamela A.

3 Wilk, on the brief), Ardmore,

4 Pennsylvania.

5

6 FOR APPELLEE: MICHAEL C. OLMSTED (Stephen C.

7 Green, on the brief), for

8 Richard S. Hartunian, United

9 States Attorney for the Northern

10 District of New York, Syracuse,

11 New York.

12

13 Appeal from a judgment of the United States District

14 Court for the Northern District of New York (Mordue, J.).

15

16 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

17 AND DECREED that the judgment of the district court be

18 AFFIRMED. 

19

20 Rafil Dhafir appeals from the judgment of the United

21 States District Court for the Northern District of New York

22 (Mordue, J.), reconsidering the incarceration portion of his

23 sentence pursuant to our prior opinion in United States v.

24 Dhafir, 577 F.3d 411 (2d Cir. 2009), and re-sentencing

25 Dhafir to 264 months’ imprisonment. We assume the parties’

26 familiarity with the underlying facts, the procedural

27 history, and the issues presented for review. 

28

29 Dhafir argues that the district court erred by using

30 Section 2S1.1(a)(2) of the United States Sentencing

31 Guidelines in the re-sentencing. Our prior opinion directed

32 the district court to “consider whether a different sentence

33 would result from the application of th[e] more flexible

34 approach” suggested in United States v. Crosby, 397 F.3d 103

35 (2d Cir. 2005), in which, after determining that “‘either of

36 two Guidelines ranges, whether or not adjacent, is

37 applicable, . . . the sentencing judge, having complied with

38 section 3553(a), makes a decision to impose a non-Guidelines

39 sentence, regardless of which of the two ranges applies.’” 

40 Dhafir, 577 F.3d at 415 (quoting Crosby, 397 F.3d at 112). 

41 The district court did precisely as our prior decision in

42 Dhafir instructed: It explicitly considered the Crosby

43 approach. After determining that the Crosby approach would

44 not result in a different sentence, the district court re45 sentenced Dhafir to 264 months. In any event, the district

2
1 court found in the alternative that if Section 2S1.1(a)(1)

2 applied, the same sentence would have been imposed, given

3 the seriousness of Dhafir’s offense and other factors under

4 18 U.S.C. § 3553(a). 

5

6 For the foregoing reasons, and finding no merit in

7 Dhafir’s other arguments, we hereby AFFIRM the judgment of

8 the district court.

9

10 FOR THE COURT:

11 CATHERINE O’HAGAN WOLFE, CLERK

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