         08-5500-cr
         United States v. Elfgeeh


                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                                 SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX 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 Daniel Patrick Moynihan
         United States Courthouse, 500 Pearl Street, in the City of
         New York, on the 18 th day of May, two thousand and ten.

         PRESENT: AMALYA L. KEARSE,
                  RICHARD C. WESLEY,
                           Circuit Judges,
                  PAUL A. CROTTY,
                           District Judge. *


         UNITED STATES OF AMERICA,

                                         Appellee,

                         -v.-                                                   08-5500-cr

         AREF ELFGEEH,

                                         Defendant,

         ABAD ELFGEEH,




                 *
                 The Honorable, Paul A. Crotty, of the United States District Court for
         the Southern District of New York, sitting by designation.
                             Defendant-Appellant. **


     FOR APPELLANT:          JAMES M. BRANDEN, New York, NY.

     FOR APPELLEE:           JEFFREY H. KNOX, Assistant United States
                             Attorney (David C. James, Pamela K. Chen,
                             on the brief), for Benton J. Campbell,
                             United States Attorney for the Eastern
                             District of New York, Brooklyn, NY.

          Appeal from the United States District Court for the
     Eastern District of New York (Johnson, J.).

1          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

2    AND DECREED that the judgment of the United States District

3    Court for the Eastern District of New York be AFFIRMED.

4          Appellant, Abad Elfgeeh, appeals from an amended

5    judgment of the United States District Court for the Eastern

6    District of New York (Johnson, J.), entered on November 10,

7    2008.      Defendant was convicted, after a jury trial, of

8    conspiracy to operate an unlicensed money-transmitting

9    business in violation of 18 U.S.C. § 371, operation of an

10   unlicensed money-transmitting business in violation of 18

11   U.S.C. § 1960(a), and structuring of financial transactions




           **
              The Clerk of the Court is respectfully directed to amend the official
     caption in this action to conform to the caption of this order.

                                           2
1    in violation of 31 U.S.C. § 5324(a)(3).              In a prior appeal,

2    this Court affirmed Elfgeeh’s conviction and sentence in

3    substantial part, but remanded for reconsideration of a

4    previously imposed fine.         United States v. Elfgeeh, 515 F.3d

5    100, 136-37, 140 (2d Cir. 2008).            On remand, the district

6    court rescinded the fine.          We assume the parties’

7    familiarity with the underlying facts, the procedural

8    history, and the issues presented for review.

9          In his second appeal to this Court Elfgeeh contends

10   that the district court erred in declining to re-sentence

11   him de novo and in refusing to redact a paragraph of his

12   pre-sentence report (“PSR”), which he claims causes him to

13   be treated in an unduly harsh manner by the Bureau of

14   Prisons (“BOP”). 1      We conclude that this Court’s limited




           1
             The paragraph at issue indicates that Elfgeeh has been named by the
     government as an alleged associate of Yemeni cleric Mohammed Ali Al-Moayad
     [PSR ¶ 21], who was found guilty by a jury of conspiring to provide and
     attempting to provide material support to Al-Qaeda and Hamas, and of providing
     material support to Hamas. United States v. Al-Moayad, 545 F.3d 139, 158 (2d
     Cir. 2008). Al-Moayad’s conviction was vacated by this Court and remanded for
     further proceedings. Id. at 178-79. Following the remand, Al-Moayad pled
     guilty to one count of conspiracy to provide support to a foreign terrorist
     organization. He was sentenced to time served and was deported. See United
     States v. Al-Moayad, 03-CR-1322 (DLI) (E.D.N.Y. Aug. 7, 2009).

                                           3
1    remand 2 did not call for de novo re-sentencing.               We further

2    hold that, based on the record before us, we cannot find

3    that the defendant has been harmed by the contents of his

4    PSR within the meaning of Federal Rule of Criminal Procedure

5    32(d)(3)(C).        If the defendant has a remedy to challenge

6    restrictions imposed by the BOP, it lies with that entity.

7          This Court has already specifically rejected

8    defendant’s argument that his sentence was “substantively

9    unreasonable or unwarrantedly high in comparison to the

10   terms of imprisonment meted out to others convicted of

11   similar crimes.”        Elfgeeh, 515 F.3d at 139.         We noted that

12   the sentence is within the appropriate Guidelines range and

13   found “no basis for concluding that the prison terms imposed

14   are unreasonable, given that the district court’s

15   articulation of the reasons for the prison term[] imposed,

16   although not extensive[,] . . . was sufficient to show that

17   the court considered the Guidelines and the required § 3553

18   factors.”     Id.



           2
             Specifically, “we vacate[d] so much of [Elfgeeh’s] sentence as imposed
     a fine of $1.25 million, and we remand[ed] for reconsideration of the amount
     of the fine.” Elfgeeh, 515 F.3d at 137.

                                           4
1        Because this Court identified only a “sentencing error”

2    with respect to the fine imposed, and not a “conviction

3    error,” resentencing de novo was not appropriate.    United

4    States v. Rigas, 583 F.3d 108, 116 (2d Cir. 2009); see also

5    United States v. Stanley, 54 F.3d 103, 108 (2d Cir. 1995).

6    Nothing required the district court to go beyond the “narrow

7    issue” identified by this Court on the first appeal.

8    Stanley, 54 F.3d at 108.   We gave a specific instruction to

9    the district court to address the propriety of the fine

10   imposed on Elfgeeh, which it clearly did.   Therefore, we

11   identify no error on the part of the sentencing court in

12   this regard.

13       Federal Rule of Criminal Procedure 32(d)(3)(C) states

14   that the “presentence report must exclude” “any information

15   that, if disclosed, might result in physical or other harm

16   to the defendant.”   Fed. R. Crim. P. 32(d)(3)(C).   As an

17   initial matter, we note that there are “no formal

18   limitations” on the contents of a PSR.   Gregg v. United

19   States, 394 U.S. 489, 492 (1969).   We cannot conclude, based

20   on the record before us, that the defendant has been harmed


                                   5
1    within the meaning of Rule 32. 3         To the extent Elfgeeh

2    challenges, as unnecessary or unwarranted, restrictions

3    imposed by the BOP, these protocols should be addressed

4    through the channels in place at the BOP.

5         We have considered all of Elfgeeh’s contentions on this

6    appeal and have found them to be without merit.               Therefore,

7    for the foregoing reasons, the judgment of the district

8    court is hereby AFFIRMED.

 9
10                                      FOR THE COURT:
11                                      Catherine O’Hagan Wolfe, Clerk
12
13




          3
             During the proceedings on remand, the district court agreed, on
     consent of the government, to amend the PSR to reflect the fact that Al-
     Moayad’s conviction had been reversed and remanded for a new trial. Further,
     the district court made it clear that it “did not consider Al-Moay[a]d” in
     sentencing Elfgeeh, or otherwise, because Al-Moay[a]d was “not part of this
     case.”

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