UNITED
STATES OF AMERICA, Plaintiff - Appellee, v. ALI ASAD CHANDIA, a/k/a Abu Qatada, Defendant - Appellant.
No. 08-4529
UNITED STATES COURT
OF APPEALS FOR THE FOURTH CIRCUIT
395 Fed. Appx. 53; 2010 U.S. App. LEXIS 19178
December 2, 2009,
Argued
September 14, 2010,
Decided
NOTICE:
PLEASE REFER TO FEDERAL RULES OF
APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.
SUBSEQUENT
HISTORY: Appeal after remand at United States v.
Chandia, 2012 U.S. App. LEXIS 6968 (4th Cir. Va., Apr.
6, 2012)
PRIOR
HISTORY: [**1]
Appeal
from the United States District Court for the Eastern District of Virginia, at
Alexandria. (1:05-cr-00401-CMH-1). Claude M. Hilton, Senior District Judge.
United
States v. Chandia, 514 F.3d 365, 2008 U.S. App. LEXIS
1262 (4th Cir. Va., 2008)
DISPOSITION:
VACATED AND REMANDED.
CASE
SUMMARY:
PROCEDURAL POSTURE: Defendant was convicted of three counts
of providing material support to terrorists and a terrorist organization. The
court affirmed defendant's convictions but remanded for resentencing. At
resentencing the United States District Court for the Eastern District of
Virginia, at Alexandria, again concluded that defendant deserved the terrorism
enhancement under U.S. Sentencing Guidelines Manual ¤ 3A1.4. Defendant
appealed.
OVERVIEW: At resentencing, the district court
found that defendant deserved the terrorism enhancement, but it did so
without resolving relevant factual disputes in the presentence report (PSR) and
without explaining how the facts it did find related to defendant's motive for
providing material support to the terrorist organization. The PSR did not contain
any factual assertions related to the intent element of the terrorism
enhancement. The PSR's silence on intent triggered the district court's factfinding duty under Fed. R. Crim. P. 32(i)(3). At resentencing the district court did not fulfill
this duty when it simply adopted the PSR without change in its statement of
reasons. This step did not satisfy the court's instruction (1) to resolve any
factual disputes that it deemed relevant to application of the enhancement and
(2) if defendant was found to have the requisite intent, to identify the
evidence in the record that supported that determination. The district court
did not properly apply the enhancement. Defendant's knowledge of the terrorist
organization's terrorist purposes was part of his conviction, but it did not
alone show that he had the intent required for the enhancement.
OUTCOME: Defendant's sentence was vacated and
remanded for resentencing and for further factfinding
on whether defendant had the intent required for the enhancement.
CORE
TERMS: enhancement, terrorism, resentencing,
sentencing, terrorist, terrorist organization, government conduct, factual
disputes, paintball, designated, motive, intimidation, retaliate, coercion,
sentence, military, leader, training camps, factfinding,
conspiracy, disputed, objected, violent, vacated, jihad, presentence report,
intent required, filed objections, terrorism-related, recommendation
LexisNexis(R)
Headnotes
Criminal
Law & Procedure > Sentencing > Guidelines > Adjustments &
Enhancements > Terrorism & Treason
[HN1]
The enhancement for committing a federal crime of terrorism applies only
if the government proves that a defendant's conviction is a felony that
involved, or was intended to promote, a federal crime of terrorism. U.S. Sentencing Guidelines Manual ¤ 3A1.4(a).
Criminal
Law & Procedure > Sentencing > Guidelines > Adjustments &
Enhancements > Terrorism & Treason
[HN2]
A "federal crime of terrorism" is a violation of one of many
statutorily enumerated offenses and is calculated to influence or affect the
conduct of government by intimidation or coercion, or to retaliate against
government conduct. 18 U.S.C.S. ¤ 2332b(g)(5). The
"calculated to influence or affect" element of the definition imposes
a specific intent requirement that a sentencing court must find before applying
the enhancement under U.S. Sentencing Guidelines Manual ¤ 3A1.4.
Criminal
Law & Procedure > Sentencing > Appeals > Standards of Review >
Clear Error Review
Criminal
Law & Procedure > Sentencing > Imposition > Findings
[HN3]
If a district court makes adequate findings as to a controverted sentencing
matter, an appellate court must affirm those findings unless they are clearly
erroneous. However, the review process cannot take place without the district
court first resolving all the disputed matters upon which it relies at
sentencing.
Criminal
Law & Procedure > Sentencing > Presentence Reports
[HN4]
Fed. R. Crim. P. 32(i)(3)(B) requires a sentencing
court--for any disputed portion of a presentence report (PSR) or other
controverted matter--to rule on the dispute or determine that a ruling is
unnecessary either because the matter will not affect sentencing, or because
the court will not consider the matter in sentencing. A district court may
satisfy Rule 32(i)(3) by simply adopting the findings
contained in a PSR, provided that the court makes clear which disputed issues
were resolved by its adoption. The court may adopt the PSR's findings in toto if the context of the ruling makes clear that the
district court intended by the adoption to rule on each of the alleged factual
inaccuracies.
Criminal
Law & Procedure > Sentencing > Imposition > Findings
Criminal
Law & Procedure > Sentencing > Presentence Reports
[HN5]
Although a district court may adopt a presentence report's (PSR) findings, it
must make clear on the record that it has made an independent finding and that
its finding coincides with the recommended finding in the PSR. This means that
the court must indicate that it has considered a defendant's objections to the
PSR and rejected them, or that a given objection will not affect sentencing.
The court must then explain how its resolution of the defendant's objections
affects its conclusion.
Criminal
Law & Procedure > Criminal Offenses > Crimes Against Persons >
Terrorism > Support of Terrorist Organizations > Elements
Criminal
Law & Procedure > Trials > Burdens of Proof > Prosecution
Criminal
Law & Procedure > Scienter > Knowledge
[HN6]
A conviction under 18 U.S.C.S. ¤ 2339B requires the government to prove a
defendant's knowledge that the organization is a designated terrorist
organization, that the organization has engaged or engages in terrorist
activity, or that the organization has engaged or engages in terrorism. 18 U.S.C.S. 2339B(a)(1).
COUNSEL:
ARGUED: Marvin David Miller,
Alexandria, Virginia, for Appellant.
John T. Gibbs, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Appellee.
ON
BRIEF: Heather Golias, LAW OFFICES OF MARVIN D. MILLER,
Alexandria, Virginia, for Appellant.
Chuck
Rosenberg, United States Attorney, Alexandria, Virginia, for Appellee.
JUDGES:
Before MICHAEL, MOTZ, and KING, Circuit
Judges.
OPINION
[*54] PER CURIAM:
Ali
Asad Chandia was convicted
of three counts of providing material support to terrorists and a terrorist
organization. We previously affirmed his convictions but remanded for
resentencing. United States v. Chandia,
514 F.3d 365 (4th Cir. 2008). We instructed the district court on remand
to resolve Chandia's objections to his presentence
report ("PSR") that were relevant to the sentencing enhancement he
received under U.S.S.G. ¤ 3A1.4 for committing a "federal crime of terrorism."
Id. at 376.
[HN1] That enhancement applies only if the government proves that Chandia's conviction is a "felony that involved, or
was intended to promote, a federal [**2]
crime of terrorism." U.S.S.G. ¤ 3A1.4(a).
Although
it may seem at first blush that a terrorism-related conviction like Chandia's is naturally a "federal crime of terrorism,"
Congress chose a more narrow, motivation-based definition. [HN2] A "federal crime of terrorism"
is a violation of one of many statutorily enumerated offenses and is
"calculated to influence or affect the conduct of government by intimidation
or coercion, or to retaliate against government conduct." 18 U.S.C. ¤ 2332b(g)(5). The "calculated to influence
or affect" element of the definition imposes a specific intent requirement
that a sentencing court must find before applying the enhancement. Chandia, 514
F.3d at 376; United States v. Stewart, 590 F.3d 93, 137-39 (2d Cir. 2009).
At
resentencing the district court again concluded that Chandia
deserved the terrorism enhancement, but the court also again did so
without resolving relevant factual disputes in the PSR and without explaining
how the facts it did find related to Chandia's motive
for providing material support to the terrorist organization Lashkar-e-Taiba
("LET"). Because the court did not follow our instructions at
resentencing, we again vacate Chandia's sentence [**3] and remand for further factfinding on whether Chandia
had the intent required for the enhancement.
I.
A.
In
June 2006 a jury in the Eastern District of Virginia convicted Chandia of three counts of terrorism-related crimes:
(1) conspiracy to provide material support to terrorists, in violation of 18
U.S.C. ¤ 371 and ¤ 2339A; (2) conspiracy to provide material support to a
designated foreign terrorist organization, in violation of 18 U.S.C. ¤ 2339B;
and (3) provision of material support to a designated foreign terrorist
organization, in violation of 18 U.S.C. ¤ 2339B. J.A. 582.
Chandia's
conviction stemmed from an investigation of a terrorist support network in the
Washington, D.C., suburbs. Chandia, 514 F.3d at 369.
Many of the individuals investigated, including Chandia,
were members of the Dar al-Arqam Islamic Center in
Falls Church, Virginia. Id. Ali Timimi, a lecturer at
the center, advocated [*55] violent jihad against
perceived enemies of Islam. Id. In May 2003 the FBI executed warrants to search
six residences, including Chandia's, on the basis
that several members of the center regularly played paintball to prepare for
violent jihad. Id. The FBI also believed that some of the individuals [**4] targeted, including Chandia, had traveled to Pakistan to attend military
training camps run by LET. Id. The United States had designated LET as a
foreign terrorist organization in December 2001. Id.
In
June 2003 all of the individuals targeted in the searches, except for Chandia, were indicted for different offenses arising from
the paintball activity. Id. at 370. Chandia did not participate in paintball. J.A. 596. He was
indicted separately in September 2005 on four counts: one substantive and one
conspiracy count of providing material support to terrorists, and one
substantive and one conspiracy count of providing material support to a foreign
terrorist organization. Id. The jury acquitted Chandia
of the substantive count of providing material support to terrorists and
convicted him on the remaining three counts. Id.
Before
Chandia's first sentencing hearing, the United States
Probation Office prepared a PSR. J.A. 581. The PSR recommended the
"federal crime of terrorism" sentencing enhancement under
U.S.S.G. ¤ 3A1.4(a). J.A. 613. Without the enhancement, the Guidelines provided
a base level of 63 to 78 months. Chandia, 514 F.3d at 370. Application of the enhancement would have
increased [**5] Chandia's Guidelines range to 360 months to life. Id. Chandia's material support convictions satisfied the first
element required for the enhancement (conviction of an enumerated felony). Id. at 376. But the PSR said nothing about the second
element -- specific intent. It simply concluded that Chandia's
material support convictions "meet the requirements" for the terrorism
enhancement, without any discussion of Chandia's motive.
J.A. 613.
In
describing the offense conduct, the PSR said that some time between September
11, 2001, and November 2, 2001, Chandia quit his job
and left the United States for a family emergency. J.A. 604. The PSR further
asserted that Chandia arrived in Lahore, Pakistan, in
November 2001, visited a LET office, and inquired about the training that
occurred at the LET military camp and what type of clothing was necessary. J.A.
605. However, the PSR did not assert that Chandia
actually went to a LET training camp while he was in Pakistan. Chandia, 514
F.3d at 370.
The
PSR also said that between February 2002 and April 2003, Chandia
provided assistance to Mohammed Ajmal Khan, a LET
leader. J.A. 605-07. In particular, Chandia served as
Khan's contact and transported [**6]
him when Khan arrived in Washington, D.C. from Birmingham, England in February
2002. J.A. 605-06. Chandia took Khan to the residence
of Khwaja Mahmood Hasan, where Khan allegedly indicated in Chandia's presence that he was in the U.S. on LET business.
J.A. 606. The PSR indicates that Khan sent emails during his February 2002
visit to two technology companies for the purpose of ordering the anti-ballistic
material Kevlar and remote-controlled aircraft equipment. J.A. 605-07. The PSR
notes that fragments of one of these emails from Khan were recovered from a
computer at Chandia's residence. J.A. 612. The
government contended that Chandia gave Khan access to
Chandia's computer during Khan's visit. Chandia, 514
F.3d at 370. The PSR also said that Chandia
delivered twenty-one boxes of paintballs to an international shipping company
for delivery to Lahore, Pakistan in March 2003. J.A. 610. [*56] Chandia
allegedly paid for the shipment costs. J.A. 610-11.
Prior
to his first sentencing, Chandia submitted detailed
objections to the PSR. J.A. 350-62. Among his objections was that the PSR gave
no explanation of why the terrorism enhancement applied other than
stating that his convictions "meet the [**7] definition" of a
federal crime of terrorism, thus suggesting that the enhancement applies
automatically to a material support conviction. J.A. 362,
613. Chandia admitted that he was in Pakistan
from November 2001 to February 2002 but claimed that he was there to care for
his ill father and to prepare for his brother's wedding. Chandia, 514 F.3d at 370.
Although Chandia knew of LET's terrorist purposes, he
maintained that LET also engaged in non-terrorist activity such as the
operation of schools and hospitals. J.A. 356. Chandia
also admitted to transporting Khan, but he denied knowing that Khan was in the
United States on LET business. J.A. 360. Chandia
argued that the computer that Khan used to order equipment did not belong to Chandia personally but rather was in Chandia's
residence and was used by multiple family members. J.A. 361. Chandia admitted that he helped Khan ship approximately
50,000 paintballs to Pakistan, but denied purchasing or "clearing"
the shipment. Appellant's Br. 10.
At
Chandia's first sentencing hearing in August 2006,
the government sought application of the ¤ 3A1.4(a) terrorism
enhancement. The district court did not explicitly say that the terrorism
enhancement [**8] applied. Chandia, 514
F.3d at 371. However, on Chandia's first
appeal, we concluded that the court implicitly applied the enhancement when it
determined that the Guidelines range was properly calculated at 360 months to
life. Id. The court sentenced Chandia to 180 months'
imprisonment, the statutory maximum for a single material support conviction.
Id. The court did not resolve the factual disputes in Chandia's
objections to the PSR. Id.
In
January 2008 we affirmed Chandia's convictions but
vacated his sentence and remanded for resentencing because (1) the PSR provided
no explanation as to why the terrorism enhancement applied and (2) the
district court did not resolve the factual disputes arising from Chandia's PSR, as required by Federal Rule of Criminal
Procedure 32(i)(3)(B). In particular, the court did
not make any factual findings regarding whether Chandia
committed the offense with intent to "influence or affect the conduct of
government by intimidation or coercion, or to retaliate against government
conduct." Chandia, 514 F.3d at 376. Most importantly, we rejected the
contention that the ¤ 3A1.4(a) terrorism enhancement "automatically
applies to a material support conviction." [**9] Id. We emphasized that
unlike cases in which the underlying conviction involves violence, the facts of
Chandia's conviction (including his assistance to
Khan by shipping paintballs to Pakistan) did not alone "give rise to an
automatic inference of the required intent." Id. We instructed the
district court to reconsider whether the enhancement applied by determining
whether Chandia had the requisite intent. Id. In
making this determination, we instructed the court to "resolve any factual
disputes that it deems relevant to the application of the enhancement"
under Federal Rule of Criminal Procedure 32(i)(3)(B).
Id. If the court remained convinced that the enhancement applied, we asked the
court to "identify the evidence in the record that supports its determination."
Id.
B.
On
remand Chandia's PSR remained unchanged and Chandia did not file a new set [*57] of
objections. J.A. 581. At the resentencing hearing in April 2008, Chandia's counsel did, however, remind the district court
of his previously filed objections and went on to argue why the enhancement
should not apply. J.A. 547-57, 566-72. The court
concluded that regardless of whether the government had to prove Chandia's specific intent [**10] by a
preponderance or by clear and convincing evidence, the enhancement
applied.1 J.A. 573. The court relied upon the following facts in
deciding that the enhancement applied: Chandia
watched videos2 of LET; he spent time in Pakistan and visited LET
offices in Pakistan; he met with Khan, a "known leader of the LET";
he picked Khan up from the airport and his phone number served as Khan's
contact; his computer was used to order Kevlar supplies from Canada; he took
Khan to the airport to "make arrangements to buy other goods and military
equipment"; and he helped ship paintballs to Pakistan. J.A. 573. In sum,
the court found that Chandia "knew the purpose
of the LET organization, clearly he knew it," and thus the terrorism
enhancement applied. Id.
1
As in our first decision in this case, we leave open the question of whether
the government's burden of proof for the intent requirement under ¤ 3A1.4 is a
preponderance or clear and convincing. Chandia, 514 F.3d at 376 n.4.
2
Although the district court used the word "videos," it appears that
the court was referencing LET websites that Chandia
allegedly visited. J.A. 294. Defense witness Husnain Awan testified that he and Chandia
looked at websites [**11]
containing information about LET's military operations in Pakistan. J.A.
293-94.
The
court did not address Chandia's PSR objections in its
oral disposition. In its accompanying Statement of Reasons the court indicated
that it adopted the PSR without change. J.A. 642. Although the court applied
the terrorism enhancement, it again sentenced Chandia
to 180 months' imprisonment because the three counts of conviction were
"part and parcel of conduct that was charged in all three offenses."
J.A. 574.
II.
[HN3] "If the district court makes
adequate findings as to a controverted [sentencing] matter, this court must
affirm those findings unless they are clearly erroneous." United States v. Morgan, 942 F.2d 243, 245 (4th Cir. 1991).
However, the "review process cannot take place without the district court
first resolving all the disputed matters upon which it relies at
sentencing." Id. In this case, the district court did not follow our
instruction to resolve factual disputes governing the terrorism
enhancement it imposed. Nor did it "identify the evidence in the record
that support[ed] its determination." Chandia, 514
F.3d at 376.
[HN4] Federal Rule of Criminal Procedure
32(i)(3)(B) requires a sentencing court [**12] "-- for any disputed
portion of the presentence report or other controverted matter
? [to] rule on the dispute or determine that a
ruling is unnecessary either because the matter will not affect sentencing, or
because the court will not consider the matter in sentencing." A district
court may satisfy Rule 32(i)(3) by "simply
adopt[ing] the findings contained in a PSR, provided
that [the court] makes clear 'which disputed issues were resolved by its
adoption.'" Bolden, 325 F.3d at 497 (quoting Walker, 29 F.3d at 911). The
court may adopt "the PSR's findings in toto"
if "the context of the ruling makes clear that the district court intended
[by the adoption] to rule on each of the alleged factual inaccuracies."
Walker, 29 F.3d at 911 (holding that the district court's statement [*58] from
the bench that it overruled the objections filed by the defendant, taken
together with the court's Statement of Reasons form, satisfied Rule 32 because
it demonstrated that the court was "adopting each of the PSR's findings")
(emphasis added) (internal quotations omitted); see also United States v.
Sykes, 357 F.3d 672, 674 (7th Cir. 2004) (holding that sentencing court may
satisfy Rule 32(i)(3) by "adopting [**13] the proposed findings in
the [PSR], even as to contested facts, so long as the PSR indicates a
sufficiently clear basis for the sentence"). Compare United States v.
West, 550 F.3d 952, 974 (10th Cir. 2008) (holding that simply adopting the PSR
"without change" does not satisfy Rule 32); United States v. White,
492 F.3d 380, 415 (6th Cir. 2007) (holding that once a defendant "calls
the [disputed] matter to the court's attention, the court may not merely
summarily adopt the factual findings in the [PSR] or simply declare that the
facts are supported by a preponderance of the evidence") (internal
quotations and citations omitted).
In
this case, after we vacated Chandia's original
sentence and remanded for resentencing, the PSR remained unchanged. Therefore,
the district court was left with a PSR that, as before, "stated that the terrorism
enhancement applied but gave no explanation for the conclusion." Chandia, 514
F.3d at 376. The PSR "did not contain any factual assertions . . .
related to the intent element" of the terrorism enhancement. Id.
The PSR's silence on intent triggered the sentencing court's factfinding duty under Rule 32(i)(3).
At resentencing the court did not fulfill this [**14] duty when it simply
adopted the PSR without change in its Statement of Reasons. This step did not
satisfy our instruction (1) to "resolve any factual disputes that it deems
relevant to application of the enhancement" and (2) if Chandia
is found to "ha[ve] the
requisite intent, [to] identify the evidence in the record that supports [that]
determination." Id. Because it did not follow our instruction, the
district court did not properly apply the enhancement.3
3
We reject the government's suggestion that before his resentencing, Chandia should have requested a new PSR or should have
stated more particularly why the PSR failed to support the terrorism
enhancement. Chandia's counsel did not focus on the
PSR during argument at resentencing but, as the hearing began, counsel reminded
the court of Chandia's previously filed objections to
the unchanged PSR. J.A. 547. In Walker we addressed whether the defendant
objected to the PSR's recommendation that he be denied an adjustment for
acceptance of responsibility in a manner sufficient to trigger the sentencing
court's factfinding duty under Rule 32. 29 F.3d at 911. We noted that Walker filed several written, specific
objections, even though at [**15]
argument his counsel did not explicitly challenge the PSR's recommendation
regarding acceptance of responsibility. Id. at 912. We
held that it was Walker's prior "specific objections to the factual
findings underlying the PSR's recommendation" that triggered the
sentencing court's factfinding duties under Rule 32,
not counsel's arguments at resentencing. Id. Here, our specific remand
instructions coupled with defense counsel's reference to Chandia's
previously filed objections put the district court on notice at resentencing
that it had to resolve those objections in a way that complied with Rule 32(i)(3).
The
district court's oral remarks at resentencing on April 25, 2008, do not provide
a sufficient basis for us to hold that a week later, when the court adopted Chandia's PSR in toto
"without change," the court intended "to rule on each of [Chandia's] alleged factual inaccuracies." Walker, 29 F.3d at 911. The district court did not mention
the substance of the PSR in its remarks at resentencing;
after a week passed, on May 2, 2008, the court simply adopted the PSR in toto in its Statement of Reasons form attached to the
judgment. J.A. 648. We cannot call this a Rule 32(i)(3) [*59]
determination,
[**16] given the PSR's lack of discussion on the terrorism
enhancement. [HN5] Although the
district court may adopt the PSR's findings, it must "make clear on the
record that it has made an independent finding and that its
finding coincides with the recommended finding in the presentence report."
Morgan, 942 F.2d at 245 (emphasis added). This means
that the court must indicate that it has considered Chandia's
objections to the PSR and rejected them, or that a given objection will not
affect sentencing. The court must then explain how its resolution of Chandia's objections affects its conclusion on whether Chandia provided material support with the intent to
retaliate against government conduct, or to influence the government's conduct
by intimidation or coercion.
For
example, Chandia objected to paragraph 100 of the
PSR, which asserted that in February 2002 Chandia
transported Mohammed Khan to Khwaja Hasan's residence and that Khan told Hasan
in Chandia's presence that he was in the United
States on LET business. J.A. 606. Chandia maintained
that Hasan did not testify that Khan stated that he
was in the United States on LET business. J.A. 360. The probation officer reported
the government's response: [**17]
the trial transcript, which was unavailable when the PSR was prepared, would be
necessary to resolve the controversy. J.A. 639. The transcript, now available,
reveals that Hasan testified as follows: he knew Khan
was associated with LET, and he assumed Khan was in the United States on LET
business. J.A. 246, 248. Hasan
did not testify that Khan said in Chandia's presence
that Khan was in the United States on LET business. Hasan
conceded that Khan did not indicate to Hasan his
purpose for being in the United States, nor did Hasan
speculate on Khan's purpose in Chandia's presence.
J.A. 275. Although the district court characterized Khan as a known LET leader,
whether Khan was a known LET leader to Chandia may
bear on whether Chandia provided material support
with the intent to retaliate against government conduct, or to affect the
government's conduct by intimidation or coercion. We are not foreclosing the
possibility that Chandia knew Khan was a LET leader
when he assisted him, but the district court must resolve the dispute and
indicate how the resolution affects its determination regarding Chandia's motive for providing support.
Chandia
also objected to the PSR's description of LET [**18] as an organization whose
"primary" focus is "conducting violent jihad against the
Government of India." J.A. 593. Chandia
contended that LET is a popular organization in Pakistan that operates schools
and hospitals and provides vocational training. Which of LET's purposes Chandia intended to serve by providing material support is
relevant to the terrorism issue. J.A. 356. At resentencing the district
court underscored that Chandia "clearly
knew" of LET's purpose and "was clearly involved in assisting
it." J.A. 573. Indeed, Chandia's knowledge of
LET's terrorism-related purpose was necessary to his conviction for
providing material support to a designated terrorist organization under 18
U.S.C. ¤ 2339B. [HN6] A conviction
under ¤ 2339B requires the government to prove the defendant's "knowledge
that the organization is a designated terrorist organization, that the organization
has engaged or engages in terrorist activity, or that the organization has
engaged or engages in terrorism." 18 U.S.C. 2339B(a)(1).4
4
The Supreme Court recently upheld the constitutionality of ¤ 2339B against a
First Amendment challenge. Holder v. Humanitarian Law Project, 130 S. Ct. 2705,
177 L. Ed. 2d 355 (2010). The Court rested its [**19] holding in part on the
statute's mental state component, requiring that the defendant have knowledge
that the organization receiving material support is a designated terrorist
organization.
Chandia's
knowledge of LET's terrorist purposes was thus part of his conviction, but it
does not alone show that he had the intent required for the terrorism
enhancement. [*60] The government failed to prove that he
attended a LET military training camp while in Pakistan. Chandia, 514 F.3d at 370. Chandia objected to the PSR's allegation that he discussed
with Kwon the training and gear requirements at the LET camp. J.A. 360, 605. Kwon testified, however, that this discussion
occurred. J.A. 122-23. The district court should resolve this factual dispute
and explain whether the resolution leaves motives attributable to Chandia under the terrorism enhancement.
We
have provided guidance on what sort of intent justifies that enhancement for a
material support crime. See United States v. Hammoud,
381 F.3d 316, 356 (4th Cir. 2004)(upholding district court's application of ¤
3A1.4 terrorism enhancement where defendant had "close connections
with Hizballah officials" and his own testimony
indicated that he was "well [**20]
aware of Hizballah's terrorist activities and goals
and that he personally supported this aspect of Hizballah"
(emphases added)), vacated on other grounds, 543 U.S. 1097, 125 S. Ct. 1051,
160 L. Ed. 2d 997 (2005); United States v. Benkahla,
530 F.3d 300, 313 (4th Cir. 2008) (holding that enhancement was proper because
defendant "attended a jihadist training camp abroad, was acquainted with a
network of people involved in violent jihad and terrorism, and lied
about both"; distinguishing Chandia on the
ground that the district court made "extensive factual findings" and
appropriately applied the enhancement to serve its purpose of punishing
defendants "more harshly" when their "wrongs served an end more
terrible than other crimes").
Based
on our review of the record and the district court's analysis to date, we are
not comfortable holding that Chandia is a defendant
who warrants the harsh enhancement. The district court began resentencing by
reciting the two elements required to apply the terrorism enhancement.
J.A. 572. In its subsequent recitation of facts that would support the enhancement,
however, it appears to have applied the wrong legal standard by equating intent
with knowledge.
The
facts that the district court [**21]
relied upon essentially restate the facts underlying Chandia's
material support conviction, without explaining how these facts speak to Chandia's motive for providing the support. The court
concluded that Chandia "clearly knew" that
LET had terrorist purposes and that he was "clearly involved in
assisting" LET. J.A. 573. But Chandia's
knowledge of LET's purpose was part of his conviction and that does not automatically
yield an inference of the specific intent required for the enhancement to
apply.
On
remand, the district court must make clear that it has made independent
findings in response to Chandia's objections to the
PSR. If it again finds application of the enhancement warranted, it must
explain how specific facts indicate that his motive in providing material
support was to influence or affect government conduct by intimidation or
coercion, or to retaliate against government conduct.
III.
For
the foregoing reasons, we vacate Chandia's sentence
and remand for resentencing in accordance with this opinion.
VACATED
AND REMANDED