US v. Omar Nijim, No. 11-5210 (4th Cir. 2012)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-5210 UNITED STATES OF AMERICA, Plaintiff Appellee, v. OMAR M. NIJIM, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. Malcolm J. Howard, Senior District Judge. (4:11-cr-00012-H-5) Submitted: October 31, 2012 Decided: November 8, 2012 Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Jason R. Harris, WELCH AND HARRIS, LLP, Jacksonville, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Omar Nijim was convicted of conspiracy to traffic in contraband cigarettes, in violation of 18 U.S.C. § 371 (2006), and was sentenced to thirty-three months in prison. appeals, raising three issues. Nijim now We affirm. I As part of an investigation into transactions involving contraband cigarettes, Special Agent Michael Anderson of the ( ATF ) Bureau of operated Alcohol, an Tobacco, undercover Firearms warehouse in and Explosives North Carolina. Cigarettes -- allegedly illegally obtained -- were stored at the warehouse and sold to various individuals. Over the course of the investigation, over one million cartons of cigarettes were sold for approximately $21 million. In customers, November Nafiz 2009, Mustafa, cigarettes to New Jersey. Anderson to met prepare with for a one of shipment his of In accordance with the plan, Mustafa flew to New York on December 1. Iyas Leqyana picked him up in a minivan containing money to be used to pay for the cigarettes. Nijim joined them. They dropped off Leqyana and drove to a rest area in New Jersey, where they were to take possession of the cigarettes. 2 ATF Special Agent Edwin Killette, who was driving a Penske truck containing 9540 cartons of contraband cigarettes, arrived at the rest area, as did Anderson, who had flown in from North Carolina. Mustafa $55,000 in cash. handed Anderson the three bag containing Nijim then drove the Penske truck to a storage room, followed by Mustafa in the minivan. and a men unloaded returned to the rest area. the Leqyana joined them, truck. Nijim and Mustafa Mustafa gave Anderson an additional $20,000 and agreed to pay him the balance due upon their return to North Carolina. Mustafa and Nijim left in the minivan, which was registered to Nijim. A similar transaction occurred on January 13, 2011. Mustafa flew to New York, Leqyana picked him up in the minivan, they were joined by Nijim, and they drove to the rest area. Killette drove to the rest area in a Penske truck containing 9000 cartons of contraband cigarettes. separately. drove to minivan. rest Anderson again arrived After Killette exited the truck, Nijim got in and the storage room, with Leqyana following in the After unloading the cigarettes, they returned to the area, where Mustafa gave Anderson $102,000 in cash as partial payment for the cigarettes. According to Nijim s presentence investigation report ( PSR ), his base offense level was 20 because the amount of loss was $500,580. See U.S. 3 Sentencing Guidelines Manual ( USSG ) §§ 2E4.1(a)(2), 2T4.1(H) (2011). There were no adjustments, and the total offense level accordingly was 20. Nijim s criminal history range was 33-41 months. category was I, and his Guidelines The district court overruled Nijim s claims that he should have received a reduction in his offense level based on his limited role in the offense, USSG § 3B1.2, and that the amount of loss was less than $400,000. The court sentenced Nijim to thirty-three months in prison. II Nijim first argues that the district court erroneously refused to instruct the jury on N.J. Stat. Ann. § 54:40A-16. The statute generally prohibits wholesale and retail dealers from accepting deliveries of cigarettes that do not bear proper New Jersey tax stamps, which signify the payment of applicable New Jersey excise taxes. The statute provides an exception to this prohibition: The director [of the New Jersey Division of Taxation] may, however, . . . authorize wholesale dealers and retail dealers to acquire and have in their possession cigarettes bearing cigarette revenue stamps of other states, provided such cigarettes are intended for sale or other disposition in those states. N.J. Stat. Ann. § 54:40A-16. Nijim December 1 and contends January that 13 the cigarettes transactions, 4 involved which bore in the no tax stamps, states were that intended do cigarettes. not for distribution require the in one of affixation of the tax three stamps to Under the above provision, he argues, possession of unstamped cigarettes would be legal if they were destined for any of those states. An instruction on the statute would, if the jury believed that he possessed the cigarettes for transfer to a non-tax state, require acquittal. The instruction decision is to reviewed give for or refuse abuse of to give a discretion. jury United States v. Sarwari, 669 F.3d 401, 410-11 (4th Cir. 2012). court s failure to give a proposed instruction A does not constitute reversible error unless it dealt with some point in the trial so important, instruction conduct failure impaired seriously that the defense. his Id. at 411 to give the defendant s (internal requested ability quotation to marks omitted). We conclude that the district court did not abuse its discretion statutory in refusing exception the was requested instruction inapplicable. because Testimony at the trial established that Nijim was, during the relevant period, employed at two stores: one that sold Disney products and one that sold clothing. stamping Neither agent, authorization nor Nijim had contemplated nor either he or by the 5 store either was store statute. a licensed received Further, the Nijim denied having manufacturer. worked for a cigarette dealer, wholesaler, or The statute simply was inapplicable. III Nijim next contends that, pursuant to USSG § 3B1.2, he should have received a reduction in his offense level based on his role in the offense. To qualify for a reduction under the Guideline, a defendant must show that he was a minimal or minor participant in the offense. USSG § 3B1.2; United States v. Akinkoye, 185 F.3d 192, 201-02 (4th Cir. 1999). In deciding whether a defendant s role was minimal or minor, the critical inquiry is . . . not just whether the defendant has done fewer bad acts than his co-defendants, but whether the defendant s conduct is material or essential to committing the offense. United States v Pratt, 239 F.3d 640, 646 (4th Cir. 2001) (internal quotation marks omitted). We hold that the district court did not abuse its discretion in denying the reduction because Nijim s role in the offense was neither minimal nor minor. On two occasions, he transported coconspirators, cigarettes, and cash to pay for the cigarettes in his minivan. cigarettes and placed them He in also unloaded the storage establishes his material role in the offense. 6 room. contraband All this IV Finally, Nijim claims that the amount of loss was incorrectly calculated; his position is that the proper amount was less than $400,000. Testimony at trial established that: the involved December 1 delivery 9540 cartons of contraband cigarettes; the January 13 shipment involved 9000 cartons; and the New Jersey excise tax on a carton of cigarettes was $27. Accordingly, the amount of loss was properly determined to be $500,580.20. V We therefore affirm Nijim s conviction and sentence. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 7
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