13-1755-cr
United States v. El-Hage

                                  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 21st day of January, two thousand fifteen.

PRESENT:            RALPH K. WINTER,
                    JOSÉ A. CABRANES,
                                 Circuit Judges.*


UNITED STATES OF AMERICA,

                    Appellee,

                            v.
                                                                   No. 13-1755-cr
WADIH EL HAGE, AKA ABDUS SABBUR,

                    Defendant-Appellant,

FAZUL ABDULLAH MOHAMMED, AKA HARUN FAZHI,
AKA FAZHL ABDULLAH, AKA FAZHL KHAN, ET AL.,

                    Defendants.




          *
         The Honorable Reena Raggi, originally a member of the panel sitting on January 16, 2015,
recused herself from consideration of this matter. The remaining members of this panel, who are in
agreement, have decided this case pursuant to 2d Cir. R § 0.14(b).
FOR DEFENDANT-APPELLANT:                                          Julia Pamela Heit, New York, NY.

FOR APPELLEE:                                                     Michael Alexander Levy, Sean Stephen
                                                                  Buckley, Aimee Hector, Karl N. Metzner,
                                                                  Assistant United States Attorneys, for Preet
                                                                  Bharara, United States Attorney, Southern
                                                                  District of New York, New York, NY.

     Appeal from a judgment of the United States District Court for the Southern District of
New York (Lewis A. Kaplan, Judge).

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

        Defendant-appellant Wadih El-Hage (“El-Hage”) appeals from the District Court’s April 23,
2013 judgment re-sentencing him, inter alia, to life imprisonment after his convictions on multiple
conspiracy and false statement charges associated with the 1998 terrorist bombings of the United
States Embassies in Kenya and Tanzania.

                                                 BACKGROUND

         On May 29, 2001, a jury convicted El-Hage of three terrorism-related conspiracies: (1) to
murder United States nationals (18 U.S.C. § 2332(b)) (Count One); (2) to murder United States
officers and employees (id. §§ 1114, 1116, 1117) (Count Three); and (3) to damage or destroy United
States property (id. § 844(n)) (Count Five). The jury also convicted El-Hage of multiple counts of
providing false statements to a federal grand jury regarding his knowledge of and association with al
Qaeda and its leaders and members (id. § 1623) (Counts 287–289, 291–305). On October 17, 2001,
the District Court (Leonard B. Sand, Judge) sentenced El-Hage to life imprisonment on Counts One
and Three, twenty years’ imprisonment on Count Five, and five years’ imprisonment on each of the
false statement counts, with all sentences to run concurrently. El-Hage was also ordered to pay
$33,816,561.75 in restitution.

        On direct appeal, we affirmed Judge Sand’s legal and factual findings in imposing the above
sentence. See In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 93, 151 (2d Cir. 2009)
(“[W]e reject all of El-Hage’s challenges to the District Court’s calculation of his Guidelines range.”).
However, because Judge Sand imposed sentence pursuant to a “mandatory application of the
Guidelines,” we remanded the case “for resentencing pursuant to United States v. Fagans, 406 F.3d
138 (2d Cir. 2005).”1 Id. On April 23, 2013, Judge Kaplan conducted a plenary sentencing hearing

          1 In Fagans, the District Court also treated the Guidelines as mandatory in sentencing a criminal defendant.

Subsequently, the Supreme Court eliminated the requirement that the Guidelines be applied in a compulsory manner in
United States v. Booker, 543 U.S. 220 (2005). Because the defendant in Fagans had preserved his objection to the District
Court’s mandatory application of the Guidelines, we remanded to the District Court “with instructions to vacate the
sentence and resentence in conformity with Booker.” 406 F.3d at 142.

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and sentenced El-Hage to the same terms of imprisonment as were imposed by Judge Sand in 2001.
El-Hage timely appealed his sentence.

                                                   DISCUSSION

        We review criminal sentences for “reasonableness” under a deferential abuse-of-discretion
standard. United States v. Cavera, 550 F.3d 180, 188 (2d Cir. 2008) (en banc). A sentence is procedurally
unreasonable if the district court “fails to calculate (or improperly calculates) the Sentencing
Guidelines range, treats the Sentencing Guidelines as mandatory, fails to consider the
§ 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails adequately to explain
the chosen sentence.” United States v. Chu, 714 F.3d 742, 746 (2d Cir. 2013) (internal quotation marks
omitted). A sentence is substantively unreasonable “only in exceptional cases where the trial court’s
decision cannot be located within the range of permissible decisions.” Cavera, 550 F.3d at 189
(internal quotation marks omitted); see generally United States v. Park, 758 F.3d 193, 199–201 (2d Cir.
2014). The substantive reasonableness standard “provide[s] a backstop for those few cases that,
although procedurally correct, would nonetheless damage the administration of justice because the
sentence imposed was shockingly high, shockingly low, or otherwise unsupportable as a matter of
law.” United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009).

        Upon our review of the record, we conclude that the District Court’s was procedurally
reasonable in sentencing El-Hage. First, we reject El-Hage’s argument that the District Court failed
to consider “the harsh nature” of his incarceration in ADX Florence for the past 16 years. In fact,
the record amply reflects that Judge Kaplan fully considered El-Hage’s arguments regarding his
confinement—he simply declined to impose a lower sentence on this basis. Moreover, the District
Court did not err in placing El-Hage in criminal history category VI for Guidelines purposes,
because § 3A1.4(b) of the Guidelines plainly requires doing so for any defendant who is convicted of
“a felony that involved . . . a federal crime of terrorism.”2 Finally, we reject El-Hage’s claim that a
lower sentence is required to avoid unwarranted sentencing disparities in comparison with his
purportedly more culpable co-defendants. In a passage that is worth quoting in full, Judge Kaplan
specifically addressed this claim during El-Hage’s sentencing hearing:

         A lot has been made here by defense counsel on the subject of relative culpability.
         Judge Sand had something to say about this, too, and I quote from the sentencing
         minutes of the first sentencing: “Do you want me to find that El-Hage is the least
         culpable of the four defendants? I would not make such a finding. Do not press me
         on whether I think he is the most culpable of the four. The notion that the

         2  El-Hage asserts that the application of § 3A1.4(b) to this case constitutes procedural error because he was
placed into criminal history category VI despite not having any prior criminal convictions. However, because we
expressly upheld the lawfulness of § 3A1.4(b) in United States v. Meskini, 319 F.3d 88 (2d Cir. 2003), this argument is
unavailing. See id. at 92 (“Considering the serious dangers posed by all forms of terrorism, the Guidelines are in no way
irrational in setting the default for criminal history at a very high level, with downward departures permitted in
exceptional cases.”).

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       facilitator, to use a term which I believe was first used in the government’s
       summation and has been repeated in the papers, to suggest that the facilitator is less
       culpable than the low-level individual who ground up the explosive powder is not a
       set of values that I would subscribe to. Facilitator of what? Facilitator of the
       conspiracy to kill Americans.” That’s what you were.

App’x 468 (quoting App’x 381–83). We therefore conclude that the District Court: (1) correctly
calculated El-Hage’s Sentencing Guidelines range; (2) properly considered the factors set forth in
§ 3553(a); and (3) adequately explained its chosen sentence. Accordingly, the sentence imposed by
the District Court was procedurally reasonable.

         We also conclude that a sentence of life imprisonment was substantively reasonable. Again,
it is worth quoting from Judge Kaplan’s remarks at El-Hage’s sentencing hearing:

       Mr. El-Hage, the crimes of which you were convicted were heinous. The jury found
       that you were a knowing and willing member of conspiracies to kill Americans.
       Regardless of whether you were personally involved in the actual killing and
       regardless of whether you knew specific targets, the al Qaeda goals that were
       achieved when the embassies in Nairobi and Dar es Salaam were blown up, with
       catastrophic loss of life and injuries totaling thousands of people, were goals to
       which you subscribed and the accomplishment of which you furthered.

App’x 465. Considering these circumstances, the life sentence imposed by the District Court was
well within the “range of permissible decisions.” Park, 758 F.3d at 200; Cavera, 550 F.3d at 189.
Therefore, the sentence imposed on El-Hage was substantively reasonable.

                                         CONCLUSION

       We have considered all of the arguments raised by El-Hage on appeal and find them to be
without merit. For the reasons stated above, the April 23, 2013 judgment of the District Court is
AFFIRMED.


                                              FOR THE COURT,
                                              Catherine O’Hagan Wolfe, Clerk of Court




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