12-3431-cr
United States v. El-Sebai



                            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 20th
day of June, two thousand thirteen.

PRESENT:

                    GUIDO CALABRESI,
                    JOSÉ A. CABRANES,
                    BARRINGTON D. PARKER,

                                Circuit Judges.

_____________________________________

UNITED STATES OF AMERICA,

                                        Appellee,

                    v.                                                   No. 12-3431-cr

AYAD EL-SEBAI,

                     Defendant-Appellant.
_____________________________________

FOR DEFENDANT-APPELLANT:                                Joyce C. London (Michael A. Young, of counsel),
                                                        Joyce C. London, P.C., New York, NY.

FOR APPELLEE:                                           Susan Corkery, Alicyn L. Cooley, for Loretta E.
                                                        Lynch, United States Attorney for the Eastern
                                                        District of New York, Brooklyn, NY.

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       Appeal from a judgment of the United States District Court for the Eastern District of New
York (Sandra L. Townes, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

         Defendant-appellant Ayad El-Sebai pleaded guilty to one count of conspiracy to distribute
cocaine, in violation of 21 U.S.C. §§ 846, 841(a), and 841(b)(1)(A), and one count of naturalization
fraud, in violation of 18 U.S.C. § 1425(a). As relevant here, the District Court sentenced him to
concurrent prison terms of 36 months. On appeal, El-Sebai argues that the District Court erred in
its calculation of the advisory sentencing range under the United States Sentencing Guidelines (the
“Guidelines”) by denying him a two-level “minor participant” reduction. See U.S.S.G. § 3B1.2. He
also argues that his sentence was substantively unreasonable under the general sentencing principles
stated in 18 U.S.C. § 3553(a). We assume the parties’ familiarity with the facts and procedural
history of this case.

                                            DISCUSSION

                                                    i.

         We review a district court’s sentencing decision for abuse of discretion. Gall v. United States,
552 U.S. 38, 41 (2007). “A district court has abused its discretion if it based its ruling on an
erroneous view of the law or on a clearly erroneous assessment of the evidence, or rendered a
decision that cannot be located within the range of permissible decisions.” In re Sims, 534 F.3d 117,
132 (2d Cir. 2008) (internal citations, quotation marks, and alteration omitted). Accordingly, a
district court abuses its discretion if it commits a “significant procedural error, such as failing to
calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory,
failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence.” Gall, 552 U.S. at 51. We review de novo a district
court’s interpretation and legal application of the Guidelines. See United States v. Cossey, 632 F.3d 82,
86 (2d Cir. 2011).

                                                    ii.

        El-Sebai first argues that the District Court erroneously refused to apply a two-level
reduction in his offense level pursuant to § 3B1.2(b) of the Guidelines. Section 3B1.2 provides:

        Based on the defendant’s role in the offense, decrease the offense level as follows:
                (a) If the defendant was a minimal participant in any criminal activity,
                decrease by 4 levels.

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                (b) If the defendant was a minor participant in any criminal activity, decrease
                by 2 levels.
        In cases falling between (a) and (b), decrease by 3 levels.

U.S.S.G. § 3B1.2. In the Guidelines commentary, which “is authoritative unless it violates the
Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that
guideline,” Stinson v. United States, 508 U.S. 36, 38 (1993), the Sentencing Commission has explained
that this provision applies to “a defendant who plays a part in committing the offense that makes
him substantially less culpable than the average participant,” U.S.S.G. § 3B1.2, application note 3(A)
(emphasis added); see also id. § 3B1.2, application notes 4 & 5 (explaining the difference between
“minimal” and “minor” roles).

         After hearing arguments from both the government and the defendant on this issue, the
District Court held that El-Sebai “was not less culpable for his position within this conspiracy.”
Spec. App’x 28. We do not disturb this reasonable assessment of the evidence. Although the
defense correctly points out El-Sebai apparently did not touch the illicit drugs, he assisted the
criminal enterprise by supplying the “cutting” agents used to prepare the drugs for distribution, and
he arranged for portions of the drugs to be distributed at his café. Moreover, El-Sebai was involved
in this scheme over the course of many years, and he had an established relationship with the
coconspirators, thus increasing his culpability for the charged offense. See, e.g., United States v. Garcia,
920 F.2d 153, 155 (2d Cir. 1990) (“The culpability of a defendant courier must depend necessarily
on such factors as the nature of the defendant’s relationship to other participants, the importance of
the defendant’s actions to the success of the venture, and the defendant’s awareness of the nature
and scope of the criminal enterprise.”). Accordingly, we conclude that the District Court did not
clearly err, or otherwise “abuse its discretion,” by declining to apply the “minor participant”
reduction.

                                                    iii.

        El-Sebai further argues that his 36-month sentence was substantively unreasonable. The
substantive reasonableness of a sentence is determined through “individualized application of the
statutory sentencing factors.” United States v. Dorvee, 616 F.3d 174, 184 (2d Cir. 2010). Given the
broad deference to a district court’s assessment of these factors, our appellate review “is intended to
provide a backstop against sentences that are shockingly high, shockingly low, or otherwise
unsupportable as a matter of law,” not to test a district court’s decision against what we would have
done in the first instance. Id. at 183 (internal quotation marks omitted). Accordingly, “we do not
consider what weight we would ourselves have given a particular factor. Rather, we consider
whether the factor, as explained by the district court, can bear the weight assigned it under the


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totality of circumstances in the case.” United States v. Cavera, 550 F.3d 180, 191 (2d Cir. 2008) (en
banc) (internal citation omitted).

        Applying this highly deferential standard, we do not disturb the District Court’s conclusion
that a 36-month prison term was appropriate in light of the relevant sentencing factors under
§ 3553(a). Notably, the District Court did take El-Sebai’s various arguments into consideration, and
on that basis gave a 36-month prison sentence, rather than one within the advisory Guidelines range
of 97 to 121 months.1 Having reviewed the sentencing record, we conclude that the District Court
did not fail to consider any of El-Sebai’s arguments, nor did it unreasonably weigh any of the
relevant sentencing factors in making its decision.

                                                CONCLUSION

       We have reviewed all of El-Sebai’s arguments and find them to be without merit.
Accordingly, the judgment is AFFIRMED.



                                                               FOR THE COURT:
                                                               Catherine O’Hagan Wolfe, Clerk




    1The Court also concluded that, pursuant to 18 U.S.C. 3553(f), El-Sebai was not subject to the ten-year mandatory
minimum prison term that would otherwise have applied to his narcotics offense.

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