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United States v. Nayyar

United States District Court, Second Circuit

June 4, 2013

UNITED STATES OF AMERICA
v.
PATRICK NAYYAR, Defendant.

SENTENCING OPINION

ROBERT W. SWEET, District Judge.

On March 27, 2012, Patrick Nayyar ("Nayyar" or the "Defendant") was convicted of the following counts: (i) Count One: conspiracy to provide material support or resources to a designated foreign terrorist organization in violation of 18 U.S.C. § 2339B; (ii) Count Two: providing material support to a designated foreign terrorist organization in violation of 18 U.S.C. § 2339B; (iii) Count Three: agreeing to provide Hizballah, a designated foreign terrorist organization, with guns, ammunition, vehicles, bulletproof vests and night vision goggles in violation of 50 U.S.C. § 1705(a) and 31 C.F.R. 595.204 & 595.311; (iv) Count Four: providing Hizballah, a designated foreign terrorist organization, with a handgun, a box of ammunition and a pick-up truck in violation of 50 U.S.C. § 1705(a) and 31 C.F.R. §§ 595.204, 595.205 & 595.311; and (v) Count Five: conspiring to traffic in firearms and ammunition, not being licensed in such business matters, and shipped the goods in interstate commerce, in violation of 18 U.S.C. §§ 922(a)(1)(A), 922 (a) (1) (B) and 922(a)(5).

For the reasons set forth below, the Defendant will be sentenced to a term of imprisonment of fifteen years.

Prior Proceedings

On February 17, 2012, superseding indictment 51 09 CR 1037 (RWS) was filed in the Southern District of New York, charging the following six counts:

Count One charged that from at least July through September 2009, in the Southern District of New York and elsewhere, Nayyar and an individual named Conrad Stanisclaus Mulholland ("Mulholland") conspired with other individuals to provide "material support or resources, as that term is defined in 18 U.S.C. § 2339A(b)(1), to Hizballah, a designated foreign terrorist organization pursuant to Section 219 of the Immigration and Nationality Act. Specifically, Nayyar, Mulholland and others agreed to provide Hizballah with guns, ammunition, vehicles, bulletproof vests and night vision goggles and did provide Hizballah with a handgun, ammunition and a pickup truck, knowing that Hizballah has engaged in terrorist activity, in violation of 18 U.S.C. § 2339B.

Count Two charged that from at least July through September of 2009, in the Southern District of New York and elsewhere, Nayyar and Mulholland provided "material support or resources, " including weapons, ammunition and vehicles, to Hizballah, a designated foreign terrorist organization pursuant to Section 219 of the Immigration and Nationality Act, knowing that Hizballah has engaged in terrorist activity, in violation of 212(a)(3)(B) of the Immigration and Nationality Act, in violation of 18 U.S.C. § 2339B.

Count Three charged that from at least July through September of 2009, in the Southern District of New York and elsewhere, Nayyar and Mulholland agreed with others to provide Hizballah with guns, ammunition, vehicles, bulletproof vests and night vision goggles, in violation of 50 U.S.C. § 1705(a) and 31 C.F.R. §§ 595.204, 595.205 and 595.311.

Count Four charged that from at least July through September of 2009, in the Southern District of New York and elsewhere, Nayyar and Mulholland, along with others, provided Hizballah, through a confidential informant working with the FBI, with a handgun, a box of ammunition and a pick-up truck, in violation of 50 U.S.C. § 1705(a) and 31 C.F.R. 595.204, 595.205 and 595.311.

Count Five charged that from at least July through September of 2009, in the Southern District of New York and elsewhere, Nayyar, Mulholland and others conspired to traffic in firearms and ammunition, not being licensed in such business matters, and shipped the goods in interstate commerce, in violation of 18 U.S.C. §§ 922(a)(1)(A), 922(a)(1)(B) and 922(a)(5).

Count Six charged that from at least August 3, 2009, through August 5, 2009, in the Southern District of New York and elsewhere, Nayyar, being an alien who was illegally in the United States, possessed a Colt Delta Elite Auto Handgun and 48 Winchester 10mm, automatic, subsonic, 180 grain, jacketed hollow point bullets, which previously had been transported in interstate and foreign commerce, in violation of 18 U.S.C. 922(g)(5).

As noted above, on March 27, 2012, Nayyar was convicted on Counts One through Five of the superseding indictment. Nayyar's sentencing is currently scheduled for June 6, 2013.

The Sentencing Framework

In accordance with the Supreme Court's decision in United States v. Booker , 543 U.S. 220 (2005), and the Second Circuit's decision in United States v. Crosby , 397 F.3d 103 (2d Cir. 2005), the sentence to be imposed was reached through consideration of all of the factors identified in 18 U.S.C. § 3553(a) ("§3553"), including the Advisory Guidelines. Thus, the sentence to be imposed here is the result of a consideration of:

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed-
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for -
(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines...;
(5) any pertinent policy statement... [issued by the Sentencing Commission];
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found ...

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