                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-17-1997

USA v. Khalil
Precedential or Non-Precedential:

Docket 96-1695




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Recommended Citation
"USA v. Khalil" (1997). 1997 Decisions. Paper 278.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/278


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Filed December 17, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-1695

UNITED STATES OF AMERICA

v.

NADEEM KHALIL, a/k/a DEAN

       Nadeem Khalil,

       Appellant

Appeal from the United States District Court
For the Eastern District of Pennsylvania
D.C. No.: 95-cr-00577-01

Submitted Under Third Circuit LAR 34.1(a)
December 2, 1997

Before: COWEN, MCKEE, and ROSENN, Circuit Judges.

(Opinion Filed December 17, 1997)

       William C. Nugent, Esq.
       Office of the United States Attorney
       Suite 1250
       615 Chestnut Street
       Philadelphia, PA 19106
       Counsel for Appellee
       Louis R. Busico, Esq.
       234 South State Street
       Newtown, PA 18940
       Counsel for Appellant

       Mr. Nadeem Khalil #18996-050
       Ashland FCI
       P.O. Box 6001
       Ashland, KY 41105-6001

OPINION OF THE COURT

ROSENN, Circuit Judge.

On October 17, 1995, a federal grand jury, sitting in the
United States District Court for the Eastern District of
Pennsylvania, indicted the appellant, Nadeem Khalil, along
with seven other individuals, and charged him with
conspiracy, copyright infringement, trafficking in
counterfeit labels, money laundering conspiracy, and
money laundering, in violation of 18 U.S.C. SS 371, 2319,
2318, 1956, and 1957, and sought criminal forfeiture
pursuant to 18 U.S.C. S 982, for his involvement in a large-
scale criminal enterprise which unlawfully manufactured
and distributed counterfeit audio tapes. On October 10,
1996, the appellant pleaded guilty to 17 of the 20 counts of
this indictment. Thereafter, he cooperated with the
Government by providing it with detailed information
concerning the criminal conduct of the other individuals
involved in the illegal audio tape business, and he also
testified for the Government in the subsequent criminal
trial of those individuals, United States v. Yaser Allan, et
al., Crim. No. 95-578 (E.D. Pa. May 21, 1997). Because of
Khalil's substantial assistance in prosecuting the Allan
case, the Government, pursuant to S 5K1.1 of the United
States Sentencing Guidelines, filed a motion with the court
to depart downward from the Guidelines.

The district court granted the Government's motion and
reduced his offense level by five. This brought Khalil's
guideline range to between 63 and 78 months of
incarceration. The court then sentenced him to a 72 month

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term of imprisonment, followed by 3 years of supervised
release, along with a fine of $2,500 and a special
assessment of $850. Khalil timely appealed. We affirm.

On appeal, Khalil takes issue only with the extent of the
downward departure allowed by the district court. The
threshold issue, therefore, as stated by the appellant, is
whether the extent of the district court's downward
departure from the applicable sentencing guideline range
pursuant to the court's granting of the Government's 5K1.1
motion is subject to appellate review.

Before the enactment of the Guidelines, a sentence by a
federal court within statutory limits was, for all practical
purposes, not reviewable on appeal. See Koon v. United
States, 116 S. Ct. 2035, 2045-46 (1996). However, the
Sentencing Reform Act of 1984, 18 U.S.C. S 3551, et seq.,
made far-reaching changes in federal sentencing, one of
which was to allow a convicted defendant, under certain
circumstances, to appeal his sentence. But the Act does not
allow a convicted defendant to appeal from a discretionary
downward departure of his sentence.

       The Act altered this scheme in favor of a limited
       appellate jurisdiction to review federal sentences. 18
       U.S.C. S 3742. Among other things, it allows a
       defendant to appeal an upward departure and the
       Government to appeal a downward one. SS 3742(a), (b).

Koon, 116 S. Ct. at 2046.

Khalil raises no legal question with respect to the
downward departure of his sentence but challenges only
the extent of the district court's exercise of discretion.
Thus, under Koon, we have no jurisdiction to review Khalil's
appeal from the district court's discretionary downward
departure of his sentence. Our decision is consistent with
the law of other circuits, and reaffirms the law of this
circuit, first stated in United States v. Parker, 902 F.2d 221
(3d Cir. 1990), wherein we held that because "we did not
have jurisdiction to entertain an appeal when the district
court refused to exercise its discretion to depart downward
from the guidelines," it surely follows that we could not
possibly have jurisdiction to hear an appeal by a defendant
where there has been some exercise of the court's

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discretion to depart downward. Id. at 222; accord United
States v. Senn, 102 F.3d 327, 331 (7th Cir. 1996); United
States v. McCarthy, 97 F.3d 1562, 1577 n.5 (8th Cir. 1996),
cert. denied sub nom, Thompsen v. United States, 117 S. Ct.
1101 (1997) and Houston v. United States, 117 S. Ct. 1284
(1997); United States v. Hill, 70 F.3d 321 (4th Cir. 1995);
United States v. Bureau, 52 F.3d 584, 595 (6th Cir. 1995);
United States v. Hanna, 49 F.3d 572, 576 (9th Cir. 1995);
United States v. Doe, 996 F.2d 606 (2nd Cir. 1993); United
States v. Gonzalez-Perdomo, 980 F.2d 13 (1st Cir. 1992).

Accordingly, the appeal will be dismissed for want of
jurisdiction.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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