United States of America v. Nassar R. Rahmaan

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 08-2073
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UNITED STATES OF AMERICA
v.
NASSAR R. RAHMAAN,
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 08-2073)
District Judge: Honorable Jan E. Dubois
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Submitted Under Third Circuit LAR 34.1(a)
on March 24, 2010
Before: RENDELL, AMBRO, and FUENTES , Circuit Judges.
(Filed: March 25, 2010 )
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OPINION OF THE COURT
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RENDELL, Circuit Judge.
Nassar Rahmaan appeals from a jury verdict finding him guilty of conspiracy,
identity theft, and passport offenses, and his resulting sentence of 78 months’
imprisonment. Rahmaan contends that the District Court erred by (1) denying his request
to cross-examine a government witness regarding a 1993 aggravated assault conviction,
(2) applying a sentencing enhancement based on the involvement of six passports in the
offense, and (3) finding that Rahmaan was an organizer or a leader of criminal activity
for sentencing purposes. We write only for the parties and assume their familiarity with
the factual and procedural history of this case. We will affirm.
At trial, the government provided evidence that Rahmaan recruited, instructed,
transported, and paid individuals to apply for passports using their identifying information
and another person’s picture. One of these individuals, Malik Upshur, applied for a
passport using his own picture and identifying information and gave the passport to
Rahmaan for a promised payment of $1,000.
During the trial, Rahmaan attempted to cross-examine a government witness,
Scottie Williams, regarding a 1993 aggravated assault conviction. Rahmaan initially
contended that this conviction was relevant to disprove the government’s suggestion in its
opening statement that Rahmaan had control or influence over Williams. On appeal,
Rahmaan argues that the conviction should have been admissible to impeach Williams
under Federal Rule of Evidence 609. The District Court ruled that Williams’ conviction

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Rahmaan’s argument based on Rule 609, governing impeachment, is subject to plain1
error review because it was not raised at trial. The District Court did not plainly err in not
permitting the evidence on this basis.
Upshur first attempted to apply for a passport using photographs of a black male2
given to him by Rahmaan. After the passport clerk told Upshur that the photos did not
look like him, Upshur applied for a passport using photographs of himself.
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was irrelevant because the government had not suggested that Rahmaan had any control
over Williams, and inadmissible because it did not comply with Federal Rule of Evidence
609(b). Under Rule 609(b), evidence of a conviction is inadmissible to impeach a witness
if it is more than ten years old, unless the court decides that its probative value
“substantially outweighs” its prejudicial effect. The District Court did not err in
excluding evidence of Williams’ conviction, as it was over ten years old and had virtually
no probative value.1
At Rahmaan’s sentencing, the District Court applied an enhancement under
USSG section 2L2.1 upon finding that “the offense involved six or more documents or
passports.” Rahmaan claims that there were only five fraudulent passports involved in
the offense because the passport that contained Upshur’s photograph and identifying2
information was legitimate. However, Rahmaan solicited Upshur to obtain this passport
and paid Upshur for it. Therefore, the District Court did not err in applying the
enhancement under USSG section 2L2.1 because Upshur’s passport was clearly
“involved” in the offense, though the passport may have been legitimate.

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Finally, Rahmaan contends that he was entitled to a jury finding regarding his role
in the offense for sentencing purposes under Apprendi v. New Jersey, 530 U.S. 466
(2000). However, the portion of the Apprendi holding that Rahmaan relies on applies
only to facts that increase the statutory maximum punishment – such facts must be found
by a jury and proved beyond a reasonable doubt. United States v. Grier, 475 F.3d 556,
567 (3d Cir. 2007) (en banc).
Facts relevant to application of the Guidelines . . . do not
[increase the maximum punishment]. E.g., Tannis, 942 F.2d at
198; see also U.S. Sentencing Guidelines Manual § 5G1.1.
They inform the district court’s discretion without limiting its
authority. They therefore do not constitute “elements” of a
“crime” under the rationale of Apprendi and do not implicate
the rights to a jury trial and proof beyond a reasonable doubt.
530 U.S. at 490, 120 S.Ct. 2348.
Id. at 567-68.
The District Court properly determined on its own that Rahmaan was an organizer
or a leader of the criminal activity for sentencing purposes, as this finding did not increase
Rahmaan’s statutory maximum punishment.
For the foregoing reasons we will AFFIRM Rahmaan’s conviction and sentence.

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