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,
 4       on the 7th 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
12       - - - - - - - - - - - - - - - - - - - -X
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.
28       - - - - - - - - - - - - - - - - - - - -X

                                                  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, 

 (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, 

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 re-
45   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
12




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