                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 11-5210


UNITED STATES OF AMERICA,

                 Plaintiff – Appellee,

          v.

OMAR M. NIJIM,

                 Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Malcolm J. Howard,
Senior District Judge. (4:11-cr-00012-H-5)


Submitted:   October 31, 2012              Decided:   November 8, 2012


Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Jason R. Harris, WELCH AND HARRIS, LLP, Jacksonville, North
Carolina, for Appellant.     Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Omar Nijim was convicted of conspiracy to traffic in

contraband cigarettes, in violation of 18 U.S.C. § 371 (2006),

and was sentenced to thirty-three months in prison.                          Nijim now

appeals, raising three issues.                We affirm.



                                              I

             As     part        of    an     investigation       into    transactions

involving contraband cigarettes, Special Agent Michael Anderson

of   the   Bureau     of    Alcohol,         Tobacco,    Firearms    and     Explosives

(“ATF”)    operated        an    undercover       warehouse     in   North     Carolina.

Cigarettes -- allegedly illegally obtained -- were stored at the

warehouse and sold to various individuals.                      Over the course of

the investigation, over one million cartons of cigarettes were

sold for approximately $21 million.

            In     November          2009,    Anderson    met    with    one    of   his

customers,        Nafiz     Mustafa,         to   prepare     for    a   shipment     of

cigarettes to New Jersey.               In accordance with the plan, Mustafa

flew to New York on December 1.                   Iyas Leqyana picked him up in a

minivan containing money to be used to pay for the cigarettes.

Nijim joined them.          They dropped off Leqyana and drove to a rest

area in New Jersey, where they were to take possession of the

cigarettes.



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              ATF Special Agent Edwin Killette, who was driving a

Penske truck containing 9540 cartons of contraband cigarettes,

arrived at the rest area, as did Anderson, who had flown in from

North    Carolina.          Mustafa   handed    Anderson    a   bag    containing

$55,000 in cash.         Nijim then drove the Penske truck to a storage

room, followed by Mustafa in the minivan.                 Leqyana joined them,

and    the    three   men    unloaded    the    truck.      Nijim     and   Mustafa

returned to the rest area.             Mustafa gave Anderson an additional

$20,000 and agreed to pay him the balance due upon their return

to North Carolina.          Mustafa and Nijim left in the minivan, which

was registered to Nijim.

              A similar transaction occurred on January 13, 2011.

Mustafa flew to New York, Leqyana picked him up in the minivan,

they were joined by Nijim, and they drove to the rest area.

Killette drove to the rest area in a Penske truck containing

9000 cartons of contraband cigarettes.                  Anderson again arrived

separately.       After Killette exited the truck, Nijim got in and

drove    to     the   storage   room,    with    Leqyana    following       in     the

minivan.      After unloading the cigarettes, they returned to the

rest    area,    where   Mustafa      gave   Anderson    $102,000     in    cash    as

partial payment for the cigarettes.

              According to Nijim’s presentence investigation report

(“PSR”), his base offense level was 20 because the amount of

loss    was     $500,580.       See   U.S.     Sentencing   Guidelines       Manual

                                         3
(“USSG”)    §§ 2E4.1(a)(2),       2T4.1(H)     (2011).          There      were   no

adjustments, and the total offense level accordingly was 20.

Nijim’s    criminal    history   category      was   I,   and    his    Guidelines

range was 33-41 months.          The district court overruled Nijim’s

claims that he should have received a reduction in his offense

level based on his limited role in the offense, USSG § 3B1.2,

and that the amount of loss was less than $400,000.                     The court

sentenced Nijim to thirty-three months in prison.



                                        II

            Nijim first argues that the district court erroneously

refused to instruct the jury on N.J. Stat. Ann. § 54:40A-16.

The   statute   generally    prohibits       wholesale    and    retail     dealers

from accepting deliveries of cigarettes that do not bear proper

New Jersey tax stamps, which signify the payment of applicable

New Jersey excise taxes.          The statute provides an exception to

this prohibition:

      The director [of the New Jersey Division of Taxation]
      may, however, . . . authorize wholesale dealers and
      retail dealers to acquire and have in their possession
      cigarettes bearing cigarette revenue stamps of other
      states, provided such cigarettes are intended for sale
      or other disposition in those states.

N.J. Stat. Ann. § 54:40A-16.

            Nijim     contends   that   the    cigarettes       involved    in    the

December    1   and   January    13   transactions,       which    bore     no    tax


                                        4
stamps,    were       intended      for      distribution              in    one     of       the       three

states    that      do    not    require         the       affixation         of    tax       stamps       to

cigarettes.         Under the above provision, he argues, possession of

unstamped cigarettes would be legal if they were destined for

any of those states.                An instruction on the statute would, if

the jury believed that he possessed the cigarettes for transfer

to a non-tax state, require acquittal.

              The     decision       to      give          or    refuse       to     give          a     jury

instruction         is    reviewed        for         abuse      of        discretion.                 United

States v. Sarwari, 669 F.3d 401, 410-11 (4th Cir. 2012).                                                   “A

court’s     failure         to   give        a     proposed           instruction             does        not

constitute reversible error unless it dealt with some point in

the   trial    so        important,      that         failure         to    give     the      requested

instruction         seriously       impaired               the    defendant’s             ability          to

conduct    his      defense.”          Id.       at    411       (internal         quotation            marks

omitted).

              We conclude that the district court did not abuse its

discretion       in      refusing    the     requested            instruction            because          the

statutory      exception         was      inapplicable.                    Testimony          at        trial

established that Nijim was, during the relevant period, employed

at two stores: one that sold Disney products and one that sold

clothing.           Neither      Nijim       nor       either         store        was    a    licensed

stamping      agent,       nor    had      he         or    either          store    received             the

authorization         contemplated           by       the       statute.            Further,            Nijim

                                                   5
denied    having       worked    for       a    cigarette     dealer,      wholesaler,       or

manufacturer.         The statute simply was inapplicable.



                                                III

            Nijim next contends that, pursuant to USSG § 3B1.2, he

should have received a reduction in his offense level based on

his role in the offense.                To qualify for a reduction under the

Guideline, a defendant must show that he was a “minimal” or

“minor”    participant          in    the       offense.          USSG    § 3B1.2;    United

States v. Akinkoye, 185 F.3d 192, 201-02 (4th Cir. 1999).                                   In

deciding whether a defendant’s role was minimal or minor, the

“critical inquiry is . . . not just whether the defendant has

done   fewer     bad    acts     than      his      co-defendants,        but    whether    the

defendant’s conduct is material or essential to committing the

offense.”      United States v Pratt, 239 F.3d 640, 646 (4th Cir.

2001) (internal quotation marks omitted).

            We    hold    that       the       district    court     did    not    abuse    its

discretion in denying the reduction because Nijim’s role in the

offense was neither minimal nor minor.                            On two occasions, he

transported coconspirators, cigarettes, and cash to pay for the

cigarettes       in     his     minivan.              He   also    unloaded       contraband

cigarettes     and      placed       them      in    the   storage       room.     All     this

establishes his material role in the offense.



                                                 6
                                      IV

            Finally,    Nijim    claims    that   the    amount    of    loss   was

incorrectly calculated; his position is that the proper amount

was less than $400,000.           Testimony at trial established that:

the   December   1   delivery    involved    9540    cartons      of    contraband

cigarettes; the January 13 shipment involved 9000 cartons; and

the New Jersey excise tax on a carton of cigarettes was $27.

Accordingly, the amount of loss was properly determined to be

$500,580.20.



                                      V

            We therefore affirm Nijim’s conviction and sentence.

We    dispense   with   oral    argument   because      the   facts     and   legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                                          AFFIRMED




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