     11-425-cr(L)
     United States v. Defreitas

1                          UNITED STATES COURT OF APPEALS

2                                 FOR THE SECOND CIRCUIT

3                                    August Term 2012

4             (Argued: March 11, 2013           Decided: May 31, 2013)

5          Docket Nos. 11-425-cr(L), 11-429-cr(CON), 11-985-cr(CON)
6    -----------------------------------------------------x

 7   UNITED STATES OF AMERICA,
 8
 9         Appellee,
10
11                                 -- v. –-
12
13   ABDUL KADIR, ABDEL NUR, RUSSELL DEFREITAS a/k/a MOHAMMED,
14
15         Defendants-Appellants,
16
17   KAREEM IBRAHIM a/k/a AMIR KAREEM,
18
19         Defendant.
20
21   -----------------------------------------------------x

22   B e f o r e :      WALKER, SACK, and WESLEY, Circuit Judges.

23         Defendants-Appellants Abdul Kadir and Russell Defreitas appeal

24   from the 2011 judgments of conviction and sentences of the United

25   States District Court for the Eastern District of New York

26   (Irizarry, Judge).     After a jury trial, Defendants-Appellants were

27   found guilty of conspiracy to carry out acts of terrorism against

28   John F. Kennedy International Airport.        The district court then

29   sentenced them to life in prison.        We hold that there was no error

30   in the district court’s trial rulings or in the sentences imposed.

31   AFFIRMED.
 1                                   MARSHALL L. MILLER (Jo Ann M.
 2                                   Navickas, Berit W. Berger, Zainab
 3                                   Ahmad on the brief), Assistant
 4                                   United States Attorneys, of counsel
 5                                   to Loretta E. Lynch, United States
 6                                   Attorney, Eastern District of New
 7                                   York, Brooklyn, NY, for Appellee.
 8
 9                                   DARRELL B. FIELDS, Federal Defenders
10                                   of New York, Inc., Appeals Bureau,
11                                   New York, NY, for Defendant-
12                                   Appellant Russell Defreitas.
13
14                                   ARZA FELDMAN, Feldman and Feldman,
15                                   Uniondale, NY, for Defendant-
16                                   Appellant Abdul Kadir.
17
18                                   DANIEL NOBEL, Law Office of Daniel
19                                   Nobel, New York, NY, for Defendant-
20                                   Appellant Abdel Nur.
21
22   JOHN M. WALKER, JR., Circuit Judge:

23        Defendants-Appellants Abdul Kadir and Russell Defreitas appeal

24   from the 2011 judgments of conviction and sentences of the United

25   States District Court for the Eastern District of New York

26   (Irizarry, Judge).   After a jury trial, Defendants-Appellants were

27   found guilty of conspiracy to carry out acts of terrorism against

28   John F. Kennedy International Airport.   In these appeals, we

29   address various evidentiary rulings made during the trial of

30   Russell Defreitas and Abdul Kadir (collectively, “defendants”) as

31   well as the reasonableness of the district court’s sentences.   We

32   also dispose of the appeal of co-defendant Abdel Nur and the

33   motions relevant to that appeal.




                                        2
1                                   BACKGROUND

2         We assume the parties’ familiarity with the underlying facts

3    of this case and recite only those details relevant to this appeal.

4         The conspiracy to blow up John F. Kennedy International

5    Airport (“JFK Airport”) began in 2005 or 2006.     In 2006, Steven

6    Francis, a confidential informant for the FBI, met with Defreitas

7    and was later recruited into the conspiracy.     Francis wore a

8    recording device during many of his interactions with the

9    conspirators, and the recordings of these conversations provided

10   much of the evidence at trial.    In addition to Defreitas, the

11   operative indictment included as defendants and co-conspirators

12   Nur, Kadir, and Kareem Ibrahim.

13        Francis and Defreitas conducted surveillance of JFK Airport

14   four times in January 2007 and videotaped the bombing targets,

15   including fuel tanks and pipelines that, according to Defreitas,

16   would destroy “the whole of Kennedy” and part of Queens when they

17   exploded.   Defreitas App. at 831 (Recording Tr.).   The government

18   presented evidence that Nur was brought into the conspiracy at

19   least in part to help them arrange a meeting with Yasin Abu Bakr,

20   the leader of a militant Islamic group called Jamaat Al-Muslimeen

21   (“JAM”) located in Trinidad.     The conspirators wanted Abu Bakr to

22   connect them with Adnan Shukrijumah, an al Qaeda operative known

23   for his bomb-making abilities.




                                         3
1            In February 2007, Defreitas and Francis met Kadir in Guyana.

2    Kadir expressed interest in the plot and urged Francis and

3    Defreitas to refer to the attack using code words to avoid

4    detection.    In late May 2007, Ibrahim was brought into the

5    conspiracy in order to present the plot to his contacts in Iran.

6    Between February and May 2007, the conspirators met and discussed

7    their plans by telephone and in person in Guyana and Trinidad.       In

8    one telephone conversation, Defreitas twice described the planned

9    attack as “worse than the World Trade Center,” referring to the

10   September 11, 2001 attacks.    Id. at 940, 948 (Recording Tr.).

11           Kadir, Defreitas, Ibrahim, and Nur were arrested in early June

12   2007.    After being informed of his Miranda rights, Defreitas

13   admitted to his leadership role in the plot.     On the same day,

14   Defreitas, Kadir, Nur, and Ibrahim were charged by complaint with

15   conspiracy to attack a public transportation system, in violation

16   of 18 U.S.C. § 2332f(a)(2), (b)(1)(E), (b)(2)(A), and (c);

17   conspiracy to destroy a building by fire or explosive, in violation

18   of 18 U.S.C. § 844(n); conspiracy to attack aircraft and aircraft

19   materials, in violation of 18 U.S.C. § 32(a)(8); and conspiracy to

20   attack a mass transportation facility, in violation of 18 U.S.C.

21   § 1992(a)(8) and (10), (c)(1), and (c)(2).     Defreitas and Kadir

22   were also charged with surveillance of a mass transportation

23   facility, in violation of 18 U.S.C. § 1992(a)(8), (c)(1), (c)(2),

24   and 18 U.S.C. § 2.    On June 28, 2007, a grand jury indicted the


                                         4
1    defendants on the above charges,   as well as a charge of conspiracy

2    to destroy international airport facilities, in violation of 18

3    U.S.C. §§ 37(a), 37(b)(1), and 37(b)(2).

4         Prior to trial, the district court severed the case of Ibrahim

5    from the other defendants.   Just before the start of trial, Nur

6    pleaded guilty to the lesser charge of providing material support

7    to terrorists and thereafter was sentenced to 180 months’

8    imprisonment.

9         Following a trial in July 2010, a jury convicted Defreitas on

10   all six counts, and Kadir on all but the surveillance count.    At

11   separate sentencing proceedings, the district court sentenced each

12   defendant to life imprisonment.

13                                DISCUSSION

14        Defreitas and Kadir argue on appeal that the district court

15   made various errors during trial and imposed sentences that were

16   unreasonable.   Nur has also appealed, but he has advanced no

17   arguments.   His counsel has filed a motion to withdraw pursuant to

18   Anders v. California, 386 U.S. 738 (1967), and the government has

19   moved to dismiss Nur’s appeal.

20   1. Defreitas and Kadir

21        a. Anonymous Jury

22        Before trial, the government moved to empanel an anonymous

23   jury on three grounds: (1) the serious and violent nature of the

24   crimes charged; (2) the intensity of the international media


                                        5
1    coverage of the trial; and (3) threats to the judicial system

2    itself, including alleged threats by Defreitas against his own

3    attorney and potential trial witnesses. Defreitas objected, arguing

4    that an anonymous jury was inappropriate because he could not have

5    carried out the plot and his co-conspirators were all outside the

6    United States.

7         The district court granted the government’s motion, finding

8    that the evidence of threats against witnesses, the seriousness of

9    the allegations, and the extensive media coverage of the trial all

10   supported the government’s motion.    The district court also

11   carefully employed mechanisms designed to ensure a fair jury,

12   including an extensive juror questionnaire, a hearing to permit the

13   government and the defendants to strike jurors for cause, two weeks

14   of additional questioning, and a full opportunity to exercise

15   peremptory challenges.

16        If a district court has taken reasonable precautions to

17   protect a defendant’s fundamental rights, we review its decision to

18   empanel an anonymous jury for abuse of discretion. United States v.

19   Thai, 29 F.3d 785, 801 (2d Cir. 1994).    “[W]hen genuinely called

20   for and when properly used, anonymous juries do not infringe a

21   defendant’s constitutional rights.”   United States v. Pica, 692

22   F.3d 79, 88 (2d Cir. 2012) (quotation marks omitted).    A district

23   court may order the empaneling of an anonymous jury “upon (a)

24   concluding that there is strong reason to believe the jury needs


                                      6
1    protection, and (b) taking reasonable precautions to minimize any

2    prejudicial effects on the defendant and to ensure that his

3    fundamental rights are protected.”    Id. (quotation marks omitted).

4         If a district court determines that an anonymous jury is

5    appropriate, the court must take “reasonable precautions to

6    minimize any prejudicial effects on the defendant and to ensure

7    protection of his fundamental rights.”    Thai, 29 F.3d at 801.     This

8    can be done by giving the jurors “a plausible and nonprejudicial

9    reason for not disclosing their identities” and “the court’s

10   conduct of a voir dire designed to uncover bias.”    Id.   Here the

11   district court specified in the questionnaire that the reason for

12   the anonymous jury was that, given the media interest in the case,

13   anonymity would protect the jurors’ “rights of privacy” and assist

14   them “in discharging [their] responsibility as jurors

15   independently, fairly and impartially.”   Defreitas App. at 287-88

16   (Jury Instructions).

17        We see no basis to fault the district court’s empanelment of

18   an anonymous jury in this case.   Defreitas and his co-defendants

19   were charged with serious crimes of terrorism.    Their plot to blow

20   up oil pipelines and jet fuel tanks at JFK Airport had the

21   potential to kill hundreds or thousands of people.    The district

22   court reasonably concluded that the jurors would be fearful if

23   their identities were revealed to these defendants.     Our view,

24   expressed in an earlier case, that “the reasonable likelihood that


                                       7
1    the pervasive issue of terrorism would raise in the jurors’ minds a

2    fear for their individual safety” holds here and supports the

3    district court’s decision.    United States v. Stewart, 590 F.3d 93,

4    125 (2d Cir. 2009).    This ruling is buttressed by the extensive

5    media coverage of the case, an additional factor we have found

6    significant in considering the decision to empanel an anonymous

7    jury.    See United States v. Wong, 40 F.3d 1347, 1377 (2d Cir.

8    1994).

9            The district court also relied on separate reports by two

10   jailhouse informants that Defreitas had threatened to harm

11   potential witnesses.    Defreitas disputed their accounts and argues

12   that the district court should not have relied on their testimony

13   without conducting an evidentiary hearing.    Because “[t]he district

14   court has discretion to determine whether or not an evidentiary

15   hearing is needed on the government’s allegations” concerning a

16   defendant’s interference with the case, United States v. Aulicino,

17   44 F.3d 1102, 1116 (2d Cir. 1995), and because there were

18   sufficient independent grounds for empaneling an anonymous jury, we

19   need not address this point.    Our confidence that the use of an

20   anonymous jury was neither an abuse of discretion nor unfairly

21   prejudicial is strengthened by the record of appropriate measures

22   the district court took to ensure the jury’s impartiality, which

23   was never seriously challenged.

24


                                         8
1         b. Admission of Matthew Levitt’s Expert Testimony

2         Before trial, the government moved in limine for the admission

3    of terrorism expert Matthew Levitt’s testimony to describe al Qaeda

4    and Hezbollah and their activities in South America and to define

5    various terms related to terrorism.      See United States v.

6    Defreitas, 07-CR-543(DLI)(SMG), 2011 WL 317964, at *4 (E.D.N.Y.

7    Jan. 31, 2011).   The government asserted that it was relevant

8    because “[t]he fact that the defendants wanted to present their

9    plot to organizations and operatives with a well-established

10   history of participating in international terrorist activities

11   demonstrates the seriousness of their intent to have their plot

12   succeed.”   Id.   As relevant on appeal, the defendants opposed

13   Levitt’s testimony on the basis that the mention of terrorist

14   organizations would be more prejudicial than probative and thus

15   should be excluded under Federal Rule of Evidence 403.

16        The district court granted the government’s motion, reasoning

17   that aside from supporting the government’s allegation, the adverse

18   effect was unclear.    Levitt testified at trial without further

19   objection from the defendants.    Levitt’s testimony was dry and

20   academic, devoid of vivid imagery that might excite the jury.       See,

21   e.g., Kadir App. at 192 (Levitt Direct Testimony).

22        A district court’s decision to admit expert testimony is

23   reviewed for abuse of discretion.       United States v. Massino, 546

24   F.3d 123, 132 (2d Cir. 2008) (per curiam).      Federal Rule of


                                         9
1    Evidence 403 provides that the district court “may exclude relevant

2    evidence if its probative value is substantially outweighed by a

3    danger of . . . unfair prejudice, confusing the issues, [or]

4    misleading the jury,” among other concerns not relevant here.

5    Provided the district court “has conscientiously balanced the

6    proffered evidence’s probative value with the risk for prejudice,

7    its conclusion will be disturbed only if it is arbitrary or

8    irrational.”   United States v. Al-Moayad, 545 F.3d 139, 159-60 (2d

9    Cir. 2008) (quotation marks omitted).   “To avoid acting

10   arbitrarily, the district court must make a conscientious

11   assessment of whether unfair prejudice substantially outweighs

12   probative value.”   Id. at 160 (quotation marks omitted).

13        Admitting Levitt’s testimony was not an abuse of discretion.

14   As the district court noted, Levitt’s testimony was “probative of

15   the intent element of the charged conspiracies” because the

16   “government’s allegation is that defendants intended to obtain

17   support from [al Qaeda and Hezbollah], and/or identified with their

18   goals.”   Defreitas, 2011 WL 317964, at *8.   The defendants wanted

19   to exclude this testimony because it was detrimental to their case,

20   but “[e]vidence is [unduly] prejudicial only when it tends to have

21   some adverse effect upon a defendant beyond tending to prove the

22   fact or issue that justified its admission into evidence.”     United

23   States v. Figueroa, 618 F.2d 934, 943 (2d Cir. 1980) (emphasis

24   added).   It was not error for the district court to allow testimony


                                      10
1    about these groups because it supported the government’s

2    allegations against the defendants and was not unfairly

3    prejudicial.

4         c. Kadir Photographs

5         As part of its case against Kadir, the government introduced

6    three photographs of Kadir posing with multiple machine guns.

7    During trial, Kadir filed a motion in limine to exclude these

8    photos, as well as photos depicting Kadir’s children with guns, on

9    the grounds that the photos were irrelevant, that he had not been

10   charged with possession of a firearm, and that the photos

11   constituted inadmissible character evidence.    The government argued

12   on the basis of United States v. Khalil, 214 F.3d 111 (2d Cir.

13   2000), that the photos were admissible to rebut the defense’s

14   portrayal of Kadir as a peaceful, religious teacher seeking only to

15   raise funds to build a mosque.1   Specifically, during his opening

16   statement, Kadir’s counsel described Kadir as

17             a man who lives in the country of Guyana, was
18             well-respected, 9 children, 24 grandchildren,
19             working guy. . . . He’s a Muslim Shiite. He
20             goes to Iran. . . . And Kadir had a dream . .
21             . to build a mosque, a Shiite mosque, in
22             Guyana, and there’s nothing wrong with that[.]
23
24   Gov’t App. at 181-83 (Trial Tr.).



     1
       In Khalil, we affirmed the district court’s admission of photos of
     defendant Abu Mezer “wearing garb that is associated with violent
     militants, and assuming a posture of martyrdom . . . [as] relevant
     to rebut the defense portrayals of Abu Mezer as having no
     destructive objective and posing no real threat.” 214 F.3d at 122.
                                       11
1           After hearing argument, the district court admitted the photos

2    of Kadir, but not the photos of his children, noting that the

3    admitted photos were

 4               relevant to rebut [portrayals] by the defense
 5               in this case of Mr. Kadir as having no
 6               destructive objective and posing no real
 7               threat to the safety of human beings in
 8               general. . . . These photographs go towards
 9               rebutting that in the way that was permitted,
10               in the court’s view, in the Khalil case.
11
12   Kadir App. at 236-38 (Trial Tr.).    The district court noted that

13   Khalil was not identical in part because Kadir, unlike Mezer in

14   Khalil, had not been charged with weapons possession.     When the

15   photographs were introduced to the jury, the district court gave a

16   limiting instruction, noting “[t]his evidence may be considered by

17   you only to the extent it bears upon Defendant Kadir’s knowledge,

18   intent or motive to commit the acts charged in the indictment.”

19   Id. at 248 (Trial Tr.).    It is noteworthy that, as part of his

20   defense, Kadir himself later referred to all of the photos,

21   including those excluded earlier by the district court.

22          The district court’s admission of the Kadir photographs is

23   reviewed for abuse of discretion.    See Marcic v. Reinauer Transp.

24   Cos., 397 F.3d 120, 124 (2d Cir. 2005).    Kadir’s argument that the

25   photos were impermissible character evidence under Federal Rule of

26   Evidence 404 is undermined by his gamesmanship, most notably his

27   introduction of all of the photos as part of his defense.2


     2
         Kadir’s attorney stated that the purpose of the motion in limine
                                        12
1         In determining whether the district court properly admitted

2    the photos as evidence of motive, opportunity, or intent, we

3    consider whether: “(1) [the evidence] was offered for a proper

4    purpose; (2) it was relevant to a disputed trial issue; (3) its

5    probative value is substantially outweighed by its possible

6    prejudice; and (4) the trial court administered an appropriate

7    limiting instruction.”   United States v. Edwards, 342 F.3d 168, 176

8    (2d Cir. 2003).   The photos satisfy all four requirements: they

9    were offered (1) to show that Kadir’s intent was not confined to

10   peaceful fundraising for a future mosque; which (2) was a disputed

11   trial issue; moreover, (3) the photos’ probative value, in showing

12   intent, was not substantially outweighed by the prejudice caused

13   Kadir; and (4) the trial court issued an appropriate limiting

14   instruction to the jury more than once.   The district court did not

15   abuse its discretion in admitting the photographs.

16        d. Declassification of October 2006 Meeting Memo

17        In October 2006, case agents met in Barbados to discuss the

18   ongoing investigation and development of the plot.   The defendants

19   were provided with a partially declassified report of that meeting

20   during discovery and at trial moved unsuccessfully to have the rest




     had been “to control when the pictures were coming in,” to which
     the district court responded that it had “never, never, never” in
     31 years of practice heard that a party could argue to affect the
     timing of the introduction of evidence. Gov’t App. at 341, 342-43
     (Trial Tr.).
                                      13
1    declassified and turned over to them.   They argue on appeal that

2    the district court’s denial of their motion was error.

3         At the Barbados meeting, there were at least three individuals

4    present, including two case agents, Robert Addonizio and Michael

5    Hanratty.   Louis Napoli, Francis’s primary handler, did not attend

6    the meeting.   The third participant, whose identity remains

7    classified, authored the challenged report about the meeting (the

8    “October 2006 report”).   During discovery, the government

9    declassified the parts of the report that stated that “U.S.

10   Government officers” would reach out to Francis “and task him to

11   increase pressure on the plotters . . . to move ahead,” and that

12   after Defreitas returned to the United States “U.S. Government

13   officers plan[ned] to mount a full court press on Defreitas with an

14   eye towards building a case of material support to terrorism.”

15   Defreitas App. at 344 (October 2006 Report).

16        Urging complete declassification of the report and its

17   author’s identity at trial, Defreitas argued that “the document at

18   least raises the possibility and the likelihood that there is a

19   witness out there who has direct evidence of government pressure.”

20   Id. at 413-14, 421 (Trial Tr.).   Counsel for Defreitas later argued

21   that “because of the classified issues, Mr. Defreitas’s ability to

22   present his defense is compromised.”    Id. at 423 (Trial Tr.).

23        In denying Defreitas’s motion to have the document

24   declassified, the district court ruled that Defreitas could elicit


                                       14
1    testimony on the structure of the investigation through cross-

2    examination of the government’s witnesses.   Addonizio, Napoli, and

3    Francis testified at trial, and Hanratty was available to testify

4    but was not called by either side.

5         We review an evidentiary ruling such as this for abuse of

6    discretion and “will reverse only if an erroneous ruling affected a

7    party’s substantial rights.”   Marcic, 397 F.3d at 124.   In general,

8    a party is entitled to a new trial if the district court committed

9    errors that were a “clear abuse of discretion” and “clearly

10   prejudicial” to the trial’s outcome, when measured “by assessing

11   the error in light of the record as a whole.”    Id. (quotation marks

12   omitted).

13        The district court’s decision not to declassify the remaining

14   classified portions of the October 2006 report and the identity of

15   its author was not an abuse of discretion.   Defreitas has failed to

16   show what the defense could gain through the report’s

17   declassification that was not otherwise available by cross-

18   examining the government’s witnesses at trial.     Moreover, as the

19   district court noted, “the fact that neither defendant [was]

20   seeking the entrapment defense diminishe[d] the importance of the

21   document and therefore ma[de] it less relevant.”    Defreitas App. at

22   432-33 (Trial Tr.).   Any information about pressures on Francis,

23   orders given to Francis, or the overall structure of the

24   investigation could have been elicited through Francis himself as


                                      15
1    well as through the other government investigators.       The district

2    court’s ruling was not error, much less reversible error.

3            e. Exclusion of Kadir Tape Recordings

4            During Kadir’s cross-examination of Francis, Kadir tried to

5    introduce portions of a recording made by Francis during which a

6    student of Kadir’s makes statements such as: “we are not with al

7    Qaeda.    We don’t agree with what al Qaeda does.    We don’t agree

8    with killing innocent people.”     Kadir App. at 158 (Trial Tr.).

9    Although Kadir makes no similar statements, the defense argued to

10   the district court that he was “agreeing [with] and adopting all of

11   [his student’s] statements,” by saying “a hum, a hum.”      Id. (Trial

12   Tr.).    Kadir argued that his own statements (“a hum, a hum”) were

13   not hearsay because they reflected his intent as expressed by his

14   student.    The district court disagreed, ruling that Kadir’s “mere

15   statement of ‘mmm mm’ . . . [wa]sn’t necessarily an adoption [of]

16   what someone says,”    id. at 165 (Trial Tr.), and the testimony was

17   excluded as hearsay.

18           As with the other evidentiary rulings discussed above, the

19   district court’s decision to exclude this tape recording is

20   reviewed for abuse of discretion.       See Marcic, 397 F.3d at 124.     A

21   defendant may not introduce his own prior out-of-court statements

22   because they are “hearsay, and . . . not admissible.”       United

23   States v. Marin, 669 F.2d 73, 84 (2d Cir. 1982).      However, a

24   “statement of the declarant’s then-existing state of mind (such as


                                        16
1    motive, intent, or plan)” is exempted from the hearsay rule.       Fed.

2    R. Evid. 803(3).     Thus, the student’s statements would be

3    admissible if Kadir could show that they reflect Kadir’s own

4    intent.

5         We find no fault with the district court’s conclusion that

6    Kadir did not establish his adoption of his student’s statements.

7    Kadir cites to one case that he alleges stands for the proposition

8    that “A-hum” means “yes.”     See Johnson v. Ricks, 9:02-CV-1366

9    (NPM), 2007 WL 3171782, at *9 (N.D.N.Y. Oct. 29, 2007) (in response

10   to a question by the court, a juror answers “A-hum,” which the

11   court apparently accepts as a “yes” answer).     There was no holding

12   to that effect, however, and the colloquy between judge and juror

13   in Johnson shows at most that such an utterance can mean yes.       As

14   the government points out, an “mm-mmm” noise “is as likely to

15   represent agreement with what somebody is saying as it is to

16   represent not paying attention to what somebody is saying, or even

17   disagreement with what somebody is saying coupled with a

18   willingness to hear the person out.”     Gov’t Br. at 95.   Absent more

19   persuasive evidence that Kadir shared his student’s views, it was

20   not error for the district court to exclude the recording.

21        f. Sentencing

22        Both Kadir and Defreitas challenge their sentences of life

23   imprisonment as substantively unreasonable.     Kadir also argues that




                                        17
1    his sentence was procedurally unreasonable.     These arguments are

2    without merit.

3         Probation calculated the base offense level for all of

4    Defreitas’s convictions to be 33.     A twelve-level terrorism

5    enhancement was added pursuant to U.S.S.G. § 3A1.4(a),3 and four

6    additional levels were added under § 3B1.1(a) because Defreitas was

7    a leader of the plot.   With an adjusted offense level of 49, and an

8    automatic criminal history category of VI because the crime

9    involved terrorism, U.S.S.G. § 3A1.4(b), Defreitas’s offense level

10   exceeded by six levels the highest level on the sentencing chart,

11   level 43, which itself carried a life sentence recommendation

12   without any regard to a defendant’s criminal history.

13        The base offense level for Kadir’s offenses was 33, which was

14   similarly increased by twelve levels under the terrorism

15   enhancement and by two levels for testifying falsely at trial.

16   With a criminal history category of VI, and an adjusted offense



     3
       Section 3A1.4, describing adjustments for crimes involving
     terrorism, provides:
                (a) If the offense is a felony that involved,
                or was intended to promote, a federal crime of
                terrorism, increase by 12 levels; but if the
                resulting offense level is less than level 32,
                increase to level 32.
                (b) In each such case, the defendant’s
                criminal history category . . . shall be
                Category VI.
     In short, the penalties for terrorism are harsh: at offense level
     32 and criminal history category VI, the recommended sentence is
     210-262 months.
                                      18
1    level of 47, Kadir’s recommended sentence also fell above the

2    sentencing chart’s range.

3          This Court reviews sentences for reasonableness under the

4    deferential abuse of discretion standard.    United States v.

5    Johnson, 567 F.3d 40, 51 (2d Cir. 2009).    Both the substance and

6    the procedure of the sentencing are reviewed for reasonableness.

7    Id.   Among other things, procedural error may occur when the

8    district court “(1) fails to calculate the Guidelines range; (2) is

9    mistaken in the Guidelines calculation; (3) treats the Guidelines

10   as mandatory; (4) does not give proper consideration to the

11   § 3553(a) factors; (5) makes clearly erroneous factual findings;

12   (6) does not adequately explain the sentence imposed; or

13   (7) deviates from the Guidelines range without explanation.”     Id.

14         When examining substantive reasonableness, the Court takes

15   “into account the totality of the circumstances, giving due

16   deference to the sentencing judge’s exercise of discretion, and

17   bearing in mind the institutional advantages of district courts.”

18   United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en

19   banc).   Substantive reasonableness review asks whether the district

20   court’s sentence was “shockingly high, shockingly low, or otherwise

21   unsupportable as a matter of law.”    United States v. Rigas, 583

22   F.3d 108, 123 (2d Cir. 2009).

23         None of either defendant’s sentencing arguments supports

24   resentencing.   Kadir argues that he was previously offered a plea


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1    agreement, but that the offer was withdrawn.    On this basis, he

2    argues that his sentence was procedurally unreasonable because he

3    was punished for going to trial, but he offers no evidence of such

4    “punishment,” other than the length of his sentence, which was

5    within the Guidelines range.   See United States v. Negron, 524 F.3d

6    358, 361 (2d Cir. 2008) (per curiam) (holding that a district court

7    is not required to consider a rejected plea offer during

8    sentencing).   Further, it was not an abuse of discretion to

9    sentence Kadir and Nur, who received a 180-month prison term,

10   differently because Nur was sentenced under a plea agreement that

11   included his undertaking to plead guilty to lesser charges and

12   admit his knowledge of the plot.

13        Finally, neither Kadir nor Defreitas offers a persuasive

14   argument that their sentences were substantively unreasonable.      The

15   district court stated explicitly at both sentencing hearings that

16   it was mindful of the principle that each defendant’s sentence

17   “must not be greater than necessary to achieve the goals of

18   sentencing.”   Defreitas App. at 1127 (Sentencing Tr.); see also

19   Kadir App. at 413 (Sentencing Tr.).     The defendants were convicted

20   of conspiring to explode pipelines and jet-fuel tanks at JFK

21   Airport in order to kill countless Americans and other travelers,

22   disrupt air travel, and harm the American economy.     The gravity of

23   the crimes for which they were convicted easily justifies the life




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1    sentences that were imposed.     Kadir’s and Defreitas’s sentences are

2    affirmed.

3                                      * * *

4           We have reviewed the remainder of Defreitas’s and Kadir’s

5    arguments and find them to be without merit.

6    2. Nur

7           Although Nur filed a notice of appeal, his counsel Daniel

8    Nobel moves for permission to withdraw pursuant to Anders, 386 U.S.

9    738.     The government cross-moves to dismiss Nur’s appeal as barred

10   by an appeal waiver.

11          Nobel’s Anders motion and the government’s motion to dismiss

12   Nur’s appeal are granted.    Upon review of the plea agreement and

13   the plea hearing transcript, we find that Nur’s guilty plea was

14   knowing and voluntary.    He also knowingly and voluntarily agreed

15   not to appeal his conviction or sentence if the district court

16   “impose[d] a term of imprisonment of 180 months or below.”    Nur

17   App. at 66 (Plea Agreement).     Because Nur was sentenced to 180

18   months’ imprisonment, his waiver bars the appeal.    In any event, he

19   raises no non-frivolous issues on appeal.     See United States v.

20   Gomez-Perez, 215 F.3d 315, 319, 321 (2d Cir. 2000).

21                                  CONCLUSION

22          For the foregoing reasons, the district court judgments are

23   AFFIRMED.    Nur’s appeal is DISMISSED, and his attorney’s Anders

24   motion is GRANTED.


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