13-1755-cr 

United States v. El-Hage 

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. 

At a stated term of the United States Court of Appeals for the Second Circuit, held at 

the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 

on the 21st day of January, two thousand fifteen. 

PRESENT: RALPH K. WINTER, 

JOSÉ A. CABRANES, 

 Circuit Judges.

*

 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

No. 13-1755-cr 

WADIH EL HAGE, AKA ABDUS SABBUR, 

Defendant-Appellant, 

FAZUL ABDULLAH MOHAMMED, AKA HARUN FAZHI,

AKA FAZHL ABDULLAH, AKA FAZHL KHAN, ET AL., 

Defendants. 

 

 *

 The Honorable Reena Raggi, originally a member of the panel sitting on January 16, 2015, 

recused herself from consideration of this matter. The remaining members of this panel, who are in 

agreement, have decided this case pursuant to 2d Cir. R § 0.14(b). 
2 

FOR DEFENDANT-APPELLANT: Julia Pamela Heit, New York, NY. 

 

FOR APPELLEE: Michael Alexander Levy, Sean Stephen 

Buckley, Aimee Hector, Karl N. Metzner, 

Assistant United States Attorneys, for Preet 

Bharara, United States Attorney, Southern 

District of New York, New York, NY. 

 Appeal from a judgment of the United States District Court for the Southern District of 

New York (Lewis A. Kaplan, Judge). 

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the judgment of the District Court is AFFIRMED. 

Defendant-appellant Wadih El-Hage (“El-Hage”) appeals from the District Court’s April 23, 

2013 judgment re-sentencing him, inter alia, to life imprisonment after his convictions on multiple 

conspiracy and false statement charges associated with the 1998 terrorist bombings of the United 

States Embassies in Kenya and Tanzania. 

BACKGROUND 

On May 29, 2001, a jury convicted El-Hage of three terrorism-related conspiracies: (1) to 

murder United States nationals (18 U.S.C. § 2332(b)) (Count One); (2) to murder United States 

officers and employees (id. §§ 1114, 1116, 1117) (Count Three); and (3) to damage or destroy United 

States property (id. § 844(n)) (Count Five). The jury also convicted El-Hage of multiple counts of 

providing false statements to a federal grand jury regarding his knowledge of and association with al 

Qaeda and its leaders and members (id. § 1623) (Counts 287–289, 291–305). On October 17, 2001, 

the District Court (Leonard B. Sand, Judge) sentenced El-Hage to life imprisonment on Counts One 

and Three, twenty years’ imprisonment on Count Five, and five years’ imprisonment on each of the 

false statement counts, with all sentences to run concurrently. El-Hage was also ordered to pay 

$33,816,561.75 in restitution. 

On direct appeal, we affirmed Judge Sand’s legal and factual findings in imposing the above 

sentence. See In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 93, 151 (2d Cir. 2009) 

(“[W]e reject all of El-Hage’s challenges to the District Court’s calculation of his Guidelines range.”). 

However, because Judge Sand imposed sentence pursuant to a “mandatory application of the 

Guidelines,” we remanded the case “for resentencing pursuant to United States v. Fagans, 406 F.3d 

138 (2d Cir. 2005).”1 Id. On April 23, 2013, Judge Kaplan conducted a plenary sentencing hearing 

 1 In Fagans, the District Court also treated the Guidelines as mandatory in sentencing a criminal defendant. 

Subsequently, the Supreme Court eliminated the requirement that the Guidelines be applied in a compulsory manner in 

United States v. Booker, 543 U.S. 220 (2005). Because the defendant in Fagans had preserved his objection to the District 

Court’s mandatory application of the Guidelines, we remanded to the District Court “with instructions to vacate the 

sentence and resentence in conformity with Booker.” 406 F.3d at 142. 
3 

and sentenced El-Hage to the same terms of imprisonment as were imposed by Judge Sand in 2001. 

El-Hage timely appealed his sentence. 

DISCUSSION 

We review criminal sentences for “reasonableness” under a deferential abuse-of-discretion 

standard. United States v. Cavera, 550 F.3d 180, 188 (2d Cir. 2008) (en banc). A sentence is procedurally

unreasonable if the district court “fails to calculate (or improperly calculates) the Sentencing 

Guidelines range, treats the Sentencing Guidelines as mandatory, fails to consider the 

§ 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails adequately to explain 

the chosen sentence.” United States v. Chu, 714 F.3d 742, 746 (2d Cir. 2013) (internal quotation marks 

omitted). A sentence is substantively unreasonable “only in exceptional cases where the trial court’s 

decision cannot be located within the range of permissible decisions.” Cavera, 550 F.3d at 189 

(internal quotation marks omitted); see generally United States v. Park, 758 F.3d 193, 199–201 (2d Cir. 

2014). The substantive reasonableness standard “provide[s] a backstop for those few cases that, 

although procedurally correct, would nonetheless damage the administration of justice because the 

sentence imposed was shockingly high, shockingly low, or otherwise unsupportable as a matter of 

law.” United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009). 

 Upon our review of the record, we conclude that the District Court’s was procedurally 

reasonable in sentencing El-Hage. First, we reject El-Hage’s argument that the District Court failed 

to consider “the harsh nature” of his incarceration in ADX Florence for the past 16 years. In fact, 

the record amply reflects that Judge Kaplan fully considered El-Hage’s arguments regarding his 

confinement—he simply declined to impose a lower sentence on this basis. Moreover, the District 

Court did not err in placing El-Hage in criminal history category VI for Guidelines purposes, 

because § 3A1.4(b) of the Guidelines plainly requires doing so for any defendant who is convicted of 

“a felony that involved . . . a federal crime of terrorism.”2

 Finally, we reject El-Hage’s claim that a 

lower sentence is required to avoid unwarranted sentencing disparities in comparison with his 

purportedly more culpable co-defendants. In a passage that is worth quoting in full, Judge Kaplan 

specifically addressed this claim during El-Hage’s sentencing hearing: 

A lot has been made here by defense counsel on the subject of relative culpability. 

Judge Sand had something to say about this, too, and I quote from the sentencing 

minutes of the first sentencing: “Do you want me to find that El-Hage is the least 

culpable of the four defendants? I would not make such a finding. Do not press me 

on whether I think he is the most culpable of the four. The notion that the 

 2 El-Hage asserts that the application of § 3A1.4(b) to this case constitutes procedural error because he was 

placed into criminal history category VI despite not having any prior criminal convictions. However, because we 

expressly upheld the lawfulness of § 3A1.4(b) in United States v. Meskini, 319 F.3d 88 (2d Cir. 2003), this argument is 

unavailing. See id. at 92 (“Considering the serious dangers posed by all forms of terrorism, the Guidelines are in no way 

irrational in setting the default for criminal history at a very high level, with downward departures permitted in 

exceptional cases.”). 
4 

facilitator, to use a term which I believe was first used in the government’s 

summation and has been repeated in the papers, to suggest that the facilitator is less 

culpable than the low-level individual who ground up the explosive powder is not a 

set of values that I would subscribe to. Facilitator of what? Facilitator of the 

conspiracy to kill Americans.” That’s what you were. 

App’x 468 (quoting App’x 381–83). We therefore conclude that the District Court: (1) correctly 

calculated El-Hage’s Sentencing Guidelines range; (2) properly considered the factors set forth in 

§ 3553(a); and (3) adequately explained its chosen sentence. Accordingly, the sentence imposed by 

the District Court was procedurally reasonable. 

We also conclude that a sentence of life imprisonment was substantively reasonable. Again, 

it is worth quoting from Judge Kaplan’s remarks at El-Hage’s sentencing hearing: 

Mr. El-Hage, the crimes of which you were convicted were heinous. The jury found 

that you were a knowing and willing member of conspiracies to kill Americans. 

Regardless of whether you were personally involved in the actual killing and 

regardless of whether you knew specific targets, the al Qaeda goals that were 

achieved when the embassies in Nairobi and Dar es Salaam were blown up, with 

catastrophic loss of life and injuries totaling thousands of people, were goals to 

which you subscribed and the accomplishment of which you furthered. 

App’x 465. Considering these circumstances, the life sentence imposed by the District Court was 

well within the “range of permissible decisions.” Park, 758 F.3d at 200; Cavera, 550 F.3d at 189. 

Therefore, the sentence imposed on El-Hage was substantively reasonable. 

CONCLUSION 

We have considered all of the arguments raised by El-Hage on appeal and find them to be 

without merit. For the reasons stated above, the April 23, 2013 judgment of the District Court is 

AFFIRMED. 

 

 FOR THE COURT, 

Catherine O’Hagan Wolfe, Clerk of Court