Circuit Judge Guido Calabresi


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Khalil was a principal in an international passport fraud ring. Khalil worked from New York. In 2010 Rafique—who Khalil and his brother had smuggled into the U.S. from Pakistan in 2002—approached Khalil for a fake British passport, so as to obtain legal status in the U.S. Khalil recommended he use the passport to travel to Canada, to obtain legal status there. In 2010 Khalil drove Rafique to Manhattan’s Pennsylvania Station, and bought him a train ticket to Montreal. Rafique was arrested by U.S. Customs and Border Protection officers before the train reached the border. Khalil was convicted under an April 9, 2015 10-count indictment. Addressing only his argument he should have been acquitted of transporting an alien within the U.S. for profit in violation of 8 USC §1324(a)(1)(A)(ii), the court reversed conviction under Count 4 and remanded the case for de novo resentencing. The government’s evidence that Khalil drove Rafique to Pennsylvania Station in order to facilitate Rafique’s entry into Canada using a fraudulent passport, did not establish a direct, substantial relationship between the transportation and an act in furtherance of Rafique’s unlawful presence in the United States, as is required under 8 USC §1324(a)(1)(A)(ii).