United States v. Francisco Joseph Arcila Ramirez ( 2021 )

USCA11 Case: 20-10564 Date Filed: 11/01/2021 Page: 1 of 25
[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-10564
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO JOSEPH ARCILA RAMIREZ,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:19-cr-20036-JEM-1
____________________
USCA11 Case: 20-10564 Date Filed: 11/01/2021 Page: 2 of 25
20-10564 Opinion of the Court 2
Before WILSON, ROSENBAUM, and HULL, Circuit Judges.
HULL, Circuit Judge:
After pleading guilty, Francisco Arcila Ramirez (“Arcila
Ramirez”) appeals his 240-month sentence for providing material
support to a foreign terrorist organization, in violation of 18 U.S.C.
§ 2339B(a)(1). Arcila Ramirez challenges the district court’s
imposition of the terrorism enhancement under U.S.S.G. § 3A1.4.
After review and oral argument, we conclude that the district court
failed to make the required fact findings for the terrorism
enhancement; thus, we vacate Arcila Ramirez’s sentence and
remand.
I. BACKGROUND FACTS
A. Offense Conduct
Colombian law enforcement were investigating how illicit
firearms and ammunition were smuggled into Colombia and
distributed to guerrilla paramilitary groups. A Colombian
weapons trafficker began cooperating as a confidential source
(“CI”).
The CI met Arcila Ramirez, a Colombian national who was
a legal resident of the United States. Arcila Ramirez and the CI
discussed the demand for AK-47 style weapons in Colombia.
Residing in Southern Florida, Arcila Ramirez enlisted “straw”
USCA11 Case: 20-10564 Date Filed: 11/01/2021 Page: 3 of 25
20-10564 Opinion of the Court 3
purchasers to buy those types of firearms, which he would smuggle
into Colombia. 1
From December 2017 to August 2018, Arcila Ramirez
obtained approximately 45 firearms using straw purchasers in
Florida and sold them throughout Colombia. Arcila Ramirez
knowingly sold six of those firearms to the National Liberation
Army (“ELN”), a Marxist-Leninist insurgent group that the U.S.
State Department has designated a foreign terrorist organization.
The ELN historically focused on attacking economic
infrastructure, including oil and gas pipelines and electricity pylons.
While the Colombian government has successfully engaged in
peace negotiations with other guerrilla groups, the ELN has
remained opposed to any ceasefire and has increased its guerrilla
attacks, including bombings of police stations. The ELN also
engages in narcotics trafficking, extortion of companies, and
kidnappings for ransom to fund its operations.
In September 2018, U.S. law enforcement detected a pattern
of repetitive firearms purchases by two of Arcila Ramirez’s straw
purchasers. The ensuing investigation revealed that between April
and August of 2018, Arcila Ramirez had paid the straw purchasers
to buy firearms from multiple federal firearm licensees under false
1While Arcila Ramirez was a legal permanent resident of the United States,
he was born and raised in Colombia, lived there until 2004, and remains a
Colombian citizen. Some of his family still live in Colombia, and he frequently
visited Colombia for business and personal reasons.
USCA11 Case: 20-10564 Date Filed: 11/01/2021 Page: 4 of 25
20-10564 Opinion of the Court 4
pretenses and Arcila Ramirez then exported those firearms to
Colombia for resale.
On August 16, 2018, one straw purchaser bought six AK-
style pistols for Arcila Ramirez in Southern Florida. On August 24,
2018, Arcila Ramirez spoke with the CI in a recorded telephone
call. Speaking in code, the CI told Arcila Ramirez that the ELN was
“restless,” and Arcila Ramirez responded that he had “already
made the purchase” and had also bought 100 magazines of
ammunition. The CI said the ELN had him “flustered” for the
ammunition magazines, to which Arcila Ramirez replied, “I’ll help
you out, I’ll help you out.” Later, Arcila Ramirez concealed the six
firearms in air compressors and shipped them and 100 magazines
of AK-47 ammunition to Barranquilla, Colombia.
On August 31, 2018, Arcila Ramirez flew to Colombia to
broker the weapons shipment with the CI and a known weapons
broker for the ELN. On September 5, 2018, Arcila Ramirez and the
CI met with the ELN weapons broker and discussed the sale of the
six AK-style pistols, which were the weapon of choice for high-
ranking ELN personnel. The ELN weapons broker paid for the six
pistols and told Arcila Ramirez that he wanted to buy all weapons
and components Arcila Ramirez could bring to Colombia.
On September 7, 2018, while under surveillance, Arcila
Ramirez and the CI met at a storage location in Barranquilla,
loaded the air compressors onto a truck, and took them to a
location where they were cut open to retrieve the six pistols, the
100 ammunition magazines, and 32 AR-15 semi-automatic
USCA11 Case: 20-10564 Date Filed: 11/01/2021 Page: 5 of 25
20-10564 Opinion of the Court 5
“uppers.” Unbeknownst to Arcila Ramirez, two of the AK-style
pistols contained hidden GPS trackers.
On September 10, 2018, again under surveillance, the pistols
were driven to a rendezvous location with the ELN weapons
broker in an area controlled by the ELN. The ELN weapons broker
directed that the pistols be taken to a farmhouse in a rural area.
The next day, the pistols were delivered to the ELN at the
farmhouse. That same day, Arcila Ramirez flew back to Miami
with $26,567, which he declared at the airport as attributable to his
selling cars in Colombia.
After returning to Florida, Arcila Ramirez focused on
obtaining larger quantities of firearm components, such as triggers
and rifle barrels, to bring to Colombia for assembly because parts
were cheaper to buy, easier to smuggle, and did not require straw
purchasers. In a recorded telephone call on September 16, 2018,
the CI told Arcila Ramirez that the ELN had told him “everything
is fine” and to assist Arcila Ramirez. They discussed weapons parts
and what Arcila Ramirez had already purchased. The CI told Arcila
Ramirez the ELN wanted the parts “as soon as possible.”
After purchasing more air compressors, Arcila Ramirez flew
to Cartagena, Colombia on October 17, 2018 and met with the CI.
Arcila Ramirez took money from the CI and paid the fee to release
the shipping container with the air compressors. The shipment
was then split up between Arcila Ramirez’s brother and a friend.
Two weeks later, Colombian National Police arrested the brother
USCA11 Case: 20-10564 Date Filed: 11/01/2021 Page: 6 of 25
20-10564 Opinion of the Court 6
and the friend and seized numerous firearm parts, ammunition
magazines, and the air compressors.
B. Arrest
On January 11, 2019, Arcila Ramirez was arrested in the
United States. Arcila Ramirez waived his Miranda rights and
admitted to using straw purchasers to buy firearms on his behalf,
deliberately concealing those firearms in the air compressors, and
smuggling the firearms into Colombia for resale. Arcila Ramirez
admitted that the firearms had “to be for guerillas or delinquents,”
noting that the “ELN is over there.” Arcila Ramirez explained that
it was better for the guerillas to get firearm parts because they were
cheaper. Arcila Ramirez admitted that he was participating in
sending weapons to Colombia, but said he was not part of or
involved with a group. 2
2 During his post-arrest interview, Arcila Ramirez admitted that he was aware
that some of the firearms and firearm parts he sent to the Colombian weapons
broker would go to “groups,” including “criminals, guerillas, para-military or
whatever else is in Colombia” but he did not know which groups. Arcila
Ramirez was adamant he was not “part of that world” and had “never seen a
guerrilla in [his] life.” When an agent pressed Arcila Ramirez to admit that,
even though he did not “know in whose hands that will end up,” he was
“participating in this” by sending firearms and parts to Colombia, Arcila
Ramirez agreed, stating, “Yes, I am participating in that. I know that. Okay,
I am participating in that but I am not—not part of a group. I am not involved
in a group, I mean, I am not part of a group.”
USCA11 Case: 20-10564 Date Filed: 11/01/2021 Page: 7 of 25
20-10564 Opinion of the Court 7
C. Indictment and Guilty Plea
A superseding indictment charged Arcila Ramirez with:
(1) conspiring to illegally deal firearms in violation of 18 U.S.C.
§ 922(a)(1)(A), and transport them to foreign customers in
Colombia, all in violation of 18 U.S.C. § 371 (Count One); (2) four
counts of making false statements in connection with the
acquisition of firearms, in violation of 18 U.S.C. §§ 922(a)(6) and 2
(Counts Two through Five); (3) dealing in firearms without a
license, in violation of 18 U.S.C. §§ 922(a)(1)(A) and 2 (Count Six);
(4) conspiring to provide material support to the ELN, a foreign
terrorist organization, in violation of 18 U.S.C. § 2339B(a)(1)
(Count Seven); and (5) knowingly providing material support to
the ELN, a foreign terrorist organization, in violation of 18 U.S.C.
§§ 2339B(a)(1) and 2 (Count Eight).
Pursuant to a plea agreement, Arcila Ramirez pled guilty to
Count Eight, the substantive material support offense. Count
Eight alleged that from August 2018 to January 2019, Arcila
Ramirez knowingly provided material support, including property,
weapons, firearm parts and components, and services, to the ELN,
while knowing that the ELN was a designated foreign terrorist
organization and that the ELN engages in and had engaged in
terrorist activity and terrorism.
In exchange for the plea, the government agreed to dismiss
the remaining seven counts and to recommend a three-level
reduction for acceptance of responsibility under U.S.S.G.
§ 3E1.1(a)-(b). The plea agreement advised that the government
USCA11 Case: 20-10564 Date Filed: 11/01/2021 Page: 8 of 25
20-10564 Opinion of the Court 8
planned to seek a terrorism enhancement under U.S.S.G. § 3A1.4
and that Arcila Ramirez was free to challenge the terrorism
enhancement.3
Arcila Ramirez agreed to the government’s factual proffer,
which stipulated, inter alia, that: (1) from August 2018 to January
2019, Arcila Ramirez knowingly provided material support to the
ELN, knowing that the ELN engaged in, or engages in, terrorist
activity or terrorism; (2) on August 31, 2018, Arcila Ramirez flew
to Colombia to negotiate the sale of six AK-style firearms with a
conspirator he knew at that time “was a weapons broker for the
ELN and other criminal and paramilitary groups”; and (3) at their
September 5, 2018 meeting, Arcila Ramirez agreed to sell the six
firearms to the conspirator “for the ELN” and to selling him
additional firearms in the future.
D. Sentencing
A presentence investigation report (“PSI”) recommended an
adjusted offense level of 39, using: (1) a base offense level of 26
under U.S.S.G. § 2M5.3(a); (2) a two-level increase under
§ 2M5.3(b)(1)(A)-(B) because the offense involved the provision of
firearms; (3) a two-level increase under § 3B1.1(c) because Arcila
3 Arcila Ramirez also agreed to the entry of a stipulated judicial order of
removal pursuant to 8 U.S.C. § 1182 because he was removable pursuant to 8
U.S.C. § 1227(a)(4)(B), which deems deportable an alien who has engaged in a
terrorist activity or who the Secretary of State determines has associated with
a terrorist organization. See 8 U.S.C. § 1227(a)(4)(B) (cross-referencing 8
U.S.C. § 1182(a)(3)(B) & (F)).
USCA11 Case: 20-10564 Date Filed: 11/01/2021 Page: 9 of 25
20-10564 Opinion of the Court 9
Ramirez was an organizer or leader; (4) a 12-level increase under
§ 3A1.4(a) because his offense “involved,” or “was intended to
promote,” a “federal crime of terrorism”; and (5) a three-level
decrease under § 3E1.1(a)-(b) for acceptance of responsibility. The
§ 3A1.4 terrorism enhancement increased Arcila Ramirez’s
criminal history category from I to VI. See U.S.S.G. § 3A1.4(a)-(b).
His total offense level of 39 and criminal history category of
VI yielded an advisory guidelines range of 360 months to life
imprisonment. The statutory maximum for Arcila Ramirez’s
§ 2339B(a)(1) conviction was 20 years. Thus, his guidelines prison
term became 240 months under U.S.S.G. § 5G1.1(a).
Arcila Ramirez objected to the PSI’s recommendation that
he receive the § 3A1.4 terrorism enhancement. For purposes of
that guideline, the term “federal crime of terrorism” is defined by
18 U.S.C. § 2332b(g)(5), which requires that the offense: (1) “is
calculated to influence or affect the conduct of government by
intimidation or coercion, or to retaliate against government
conduct”; and (2) “is a violation of” an enumerated statute.
U.S.S.G. § 3A1.4 cmt. n.1.
At sentencing, the district court asked whether Arcila
Ramirez was arguing that the ELN “wasn’t a terrorist organization
or that he didn’t know it was a terrorist organization or what?”
Arcila Ramirez responded that he was not making either of those
arguments.
USCA11 Case: 20-10564 Date Filed: 11/01/2021 Page: 10 of 25
20-10564 Opinion of the Court 10
Instead, Arcila Ramirez argued U.S.S.G. § 3A1.4 required
that the government prove not only his material support to the
ELN, a known terrorist organization, but also that his offense
conduct was “calculated” to influence, affect, or retaliate against
the Colombian government. In addition to terrorism, the ELN
engages in general criminal activity, such as drug trafficking and
kidnapping. Defense counsel argued that, even if a jury found
Arcila Ramirez guilty of the § 2339B(a)(1) material support offense,
the district court would still have to find that Arcila Ramirez had
the specific intent required for the enhancement, i.e., that his
offense was “calculated” to influence or affect government
conduct. Defense counsel emphasized that the terrorism
enhancement was concerned about what Arcila Ramirez intended,
not what the terrorist organization did. Arcila Ramirez claimed his
motive was to profit financially, not to retaliate against the
Colombian government.
After extensive colloquy with the parties’ counsel, the
district court overruled Arcila Ramirez’s objection to the terrorism
enhancement. The district court’s comments at sentencing suggest
it believed that the mere fact that Arcila Ramirez pled guilty to
knowingly providing material support to a known terrorist
organization per se satisfied § 3A1.4’s “calculated” or specific intent
requirement. In any event, the district court made no fact findings
as to the § 3A1.4 enhancement.
After denying Arcila Ramirez’s requests for either a
downward departure or a variance, the district court heard Arcila
USCA11 Case: 20-10564 Date Filed: 11/01/2021 Page: 11 of 25
20-10564 Opinion of the Court 11
Ramirez’s allocution. Arcila Ramirez maintained that he had no
nexus to terrorism, was not opposed to any government politically,
and was not a religious extremist. Ultimately, the district court
sentenced Arcila Ramirez to 240 months’ imprisonment. Arcila
Ramirez timely appealed.
II. DISCUSSION
Arcila Ramirez challenges the district court’s application of
the terrorism enhancement under U.S.S.G. § 3A1.4(a). 4
A. Section 3A1.4(a)
Section 3A1.4(a) provides that the terrorism enhancement
applies if the defendant’s “offense is a felony that involved, or was
intended to promote, a federal crime of terrorism.” U.S.S.G.
§ 3A1.4(a). The structure of § 3A1.4 establishes two separate bases
for applying the enhancement: (1) when the defendant’s offense
“involved” a federal terrorism crime; or alternatively, (2) when his
offense was “intended to promote” a federal terrorism crime.
On appeal, the government relies on only the “involved”
prong of § 3A1.4(a) and not its “intended to promote” prong. Our
inquiry thus becomes whether Arcila Ramirez’s offense “involved
. . . a federal crime of terrorism.” For this case, the key terms are
“involved” and “a federal crime of terrorism.”
4 We review “the district court’s interpretation and application of the
Sentencing Guidelines de novo and its underlying factual findings for clear
error.” United States v. Jayyousi, 657 F.3d 1085, 1114 (11th Cir. 2011).
USCA11 Case: 20-10564 Date Filed: 11/01/2021 Page: 12 of 25
20-10564 Opinion of the Court 12
B. “Involved”
This Court already has concluded that the term “involved”
in this guideline “means to ‘include.’” United States v. Mandhai,
375 F.3d 1243, 1247-48 (11th Cir. 2004) (citing United States v.
Graham, 275 F.3d 490, 516 (6th Cir. 2001)); see also United States
v. Arnaout, 431 F.3d 994, 1001 (7th Cir. 2005) (“The ordinary and
plain meaning of ‘involved’ means ‘to include.’”) (citing Random
House Webster’s College Dictionary 1042 (2d ed. 1997)). As the
Fifth Circuit explained, an offense “involved” a federal crime of
terrorism if the crime of conviction itself is a federal crime of
terrorism or if the relevant conduct includes such a crime. United
States v. Fidse, 862 F.3d 516, 522 (5th Cir. 2017).
Similarly, the Second Circuit concluded that “a defendant’s
offense ‘involves’ a federal crime of terrorism when his offense
includes such a crime, i.e., the defendant committed, attempted, or
conspired to commit a federal crime of terrorism . . . or his relevant
conduct includes such a crime.” United States v. Awan, 607 F.3d
306, 313-14 (2d Cir. 2010); see also United States v. Wright, 747 F.3d
399, 407 (6th Cir. 2014) (stating “the terrorism enhancement can be
applied to inchoate offenses, such as attempt and conspiracy”);
Graham, 275 F.3d at 516 (same). 5
5In addition to the Second and Fifth Circuits, the Fourth, Sixth, and Seventh
Circuits have also concluded that the “involved” prong of § 3A1.4 requires that
the defendant’s offense of conviction or relevant conduct “include” a federal
crime of terrorism, as defined in 18 U.S.C. § 2332b(g)(5). See United States v.
USCA11 Case: 20-10564 Date Filed: 11/01/2021 Page: 13 of 25
20-10564 Opinion of the Court 13
C. “Federal Crime of Terrorism” Defined in § 2332b(g)(5)
As to the other key term, the application notes to § 3A1.4(a)
state that “[f]or purposes of this guideline, ‘federal crime of
terrorism’ has the meaning given that term in 18 U.S.C.
§ 2332b(g)(5).” U.S.S.G. § 3A1.4 cmt. n.1. In turn, the § 2332b(g)(5)
statute provides that a “[f]ederal crime of terrorism” means “an
offense that”:
(1) “is calculated to influence or affect the conduct of
government by intimidation or coercion, or to retaliate against
government conduct,” and
(2) “is a violation of” one of the criminal statutes listed in
§ 2332b(g)(5)(B).
18 U.S.C. § 2332b(g)(5)(A)-(B). This definition is written in the
conjunctive, and both prongs must be satisfied. Fidse, 862 F.3d at
524 & n.6; Graham, 275 F.3d at 514.
Arcila Ramirez’s statute of conviction, 18 U.S.C. § 2339B, is
one of the listed statutes. So, under the “involved” prong of
U.S.S.G. § 3A1.4, the issue becomes whether Arcila Ramirez’s
offense or relevant conduct was “calculated” to influence, affect, or
retaliate against government conduct.
Kobito, 994 F.3d 696, 702 (4th Cir. 2021); Arnaout, 431 F.3d at 1001; Graham,
275 F.3d at 516.
USCA11 Case: 20-10564 Date Filed: 11/01/2021 Page: 14 of 25
20-10564 Opinion of the Court 14
D. Eleventh Circuit Precedent
Our Court has affirmed U.S.S.G. § 3A1.4(a) terrorism
enhancements in two decisions that we now outline. See United
States v. Mandhai, 375 F.3d 1243 (11th Cir. 2004); United States v.
Jayyousi, 657 F.3d 1085 (11th Cir. 2011).
1. Mandhai in 2004
In Mandhai, the defendant met two individuals who
expressed a desire to “wage jihad in Florida.” 375 F.3d at 1245-46.
Both men secretly were cooperating with the FBI. Id. The
defendant asked the FBI informants for financial support and help
with his plot to bomb electrical transformers in Florida “in
retaliation for the U.S. government’s support of Israel and other
countries that oppress Muslims.” Id. at 1246. The defendant spoke
at a meeting to recruit men for “jihad training,” and asked one FBI
informant to obtain bombs so he could complete his plan. Id. After
arrest, the defendant confessed that he was planning to blow up
electrical sites and demand the release of Muslim prisoners and
changes in the United States’ policy in the Middle East. Id.The defendant pled guilty to conspiring to destroy buildings
affecting interstate commerce by means of fire and explosives, in
violation of 18 U.S.C. § 844(n). 6 Id. at 1245, 1247. The sentencing
court applied § 3A1.4’s terrorism enhancement. Id. at 1247.
6 Section 844(i) makes it a crime to “maliciously damage[] or destroy[], or
attempt[] to damage or destroy, by means of fire or an explosive, any building,
USCA11 Case: 20-10564 Date Filed: 11/01/2021 Page: 15 of 25
20-10564 Opinion of the Court 15
On appeal, the defendant contended that his conspiracy
offense did not constitute a “federal crime of terrorism” as defined
by 18 U.S.C. § 2332b(g)(5). Id. The defendant argued that the
object of his conspiracy—destroying buildings by fire or explosives
under 18 U.S.C. § 844(i)—was a listed “federal crime of terrorism”
in § 2332b(g)(5)(B), but conspiracy to do so under § 844(n) was not
listed. Id. Rejecting that argument, this Court pointed out that
“[h]ad the Guideline drafters intended that § 3A1.4 apply only
where the defendant is convicted of a crime listed in 18 U.S.C.
§ 2332b(g)(5)(B), they would have included such limiting
language.” Id. Instead, the § 3A1.4 guideline “cast a broader net
by applying the enhancement to any offense that ‘involved’ or was
‘intended to promote’ a terrorism crime.” Id.
Under Mandhai, a defendant need not be convicted of a
federal crime listed in § 2332b(g)(5)(B). See id. It is sufficient if the
defendant’s offense conduct “involved” or “intended to promote”
a federal crime of terrorism listed in § 2332b(g)(5)(B). Id. And
“intended to promote” means that “a goal or purpose was to bring
or help [others] bring into being a crime listed in 18 U.S.C.
§ 2332b(g)(5)(B).” Id. at 1248 (citing Graham, 275 F.3d at 516-18). 7
vehicle, or other real or personal property . . . .” 18 U.S.C. § 844(i). Section
844(n) makes it a crime to conspire to commit a § 844(i) offense. Id. § 844(n).
7 The Second Circuit also has concluded that the “intended to promote” prong
applies to defendants who “clearly ‘intend to promote’ federal crimes of
terrorism committed by other persons.” Awan, 607 F.3d at 315. Thus, “even
if [the defendant’s] crimes of conviction and relevant conduct did not satisfy
USCA11 Case: 20-10564 Date Filed: 11/01/2021 Page: 16 of 25
20-10564 Opinion of the Court 16
The Mandhai Court also discussed the first prong of the
definition of a “federal crime of terrorism,” which is an offense
“calculated to influence or affect the conduct of government by
intimidation or coercion or to retaliate against government
conduct.” Id. Our Court concluded there was substantial evidence
supporting the district court’s fact finding that the object of
Mandhai’s crime—destroying buildings by fire or explosives—was
to influence or affect government conduct, or to retaliate against
past government action. Id. We emphasized that “the terrorism
enhancement does not hinge upon a defendant’s ability to carry out
specific terrorist crimes or the degree of separation from their
actual implementation.” Id. Rather, the terrorism enhancement
applied “even though the record reflects that Mandhai lacked both
the means and the ability to carry out” the planned bombing
without help “that was not present.” Id.
2. Jayyousi in 2011
In Jayyousi, the defendants were convicted of: (1) conspiring
in the United States to murder, kidnap, or maim persons overseas,
in violation of 18 U.S.C. § 956(a)(1); (2) conspiring to provide
material support, knowing or intending that they would be used in
carrying out a conspiracy to murder, kidnap, or maim overseas, in
the calculation requirement for a federal crime of terrorism,” the
enhancement will still apply if the government can prove that the defendant’s
crimes or relevant conduct “were intended to promote a federal crime of
terrorism committed or to be committed by other individuals.” Id.USCA11 Case: 20-10564 Date Filed: 11/01/2021 Page: 17 of 25
20-10564 Opinion of the Court 17
violation of 18 U.S.C. §§ 371 and 2339A; and (3) a substantive 18
U.S.C. § 2339A offense. 657 F.3d at 1091-92. The trial evidence
showed that the defendants, while ostensibly engaged in charitable
fundraising in a Muslim community in Florida, were, in fact,
operating a “support cell” that sent funds, recruits, and equipment
overseas to terrorist groups seeking to create Islamic states through
violent jihad against secular governments. Id. at 1092-1101.
On appeal, two defendants challenged the district court’s
application of U.S.S.G. § 3A1.4’s terrorism enhancement. Id. at
1114. The district court examined both prongs of § 2332b(g)(5)’s
definition of a “federal crime of terrorism.” Id. at 1114-15. It
determined that the defendants’ crimes were listed in
§ 2332b(g)(5)(B). Id. at 1115.
The district court then explicitly found that “the defendants’
activities were calculated to influence, affect, or retaliate against
government conduct.” Id. at 1114. As to this fact finding, ample
trial evidence established that the defendants “wished to impose
Sharia throughout the Middle East and remove government in the
process.” Id. at 1115. The district court reasoned (1) that the
indictment charged that the object of the conspiracy was to
advance violent jihad and to commit acts of murder and maiming
for the purpose of opposing existing governments, and (2) thus
there was (within the jury’s verdict) “a finding that the defendants’
actions were intended to bring about the downfall of governments
that were not Islamic or not Islamic enough.” Id. at 1114-15.
USCA11 Case: 20-10564 Date Filed: 11/01/2021 Page: 18 of 25
20-10564 Opinion of the Court 18
On appeal, the defendants argued that “their benign motive”
was to “assist[] the oppressed Muslims” in other countries with
humanitarian aid and therefore their conduct “was not calculated
to influence or affect the conduct of any [foreign] government.” Id.
at 1114.
This Court affirmed the terrorism enhancement. Id. at 1115.
As to § 2332b(g)(5)(A)’s requirement that the defendants’ offenses
be “calculated” to influence or affect government conduct, “[t]he
record demonstrate[d] that the defendants’ support activities were
intended to displace ‘infidel’ governments that opposed radical
Islamist goals.” Id. The trial evidence included the defendants’
statements “about their desire to impose Sharia, toppling existing
governments in the process.” Id. This Court emphasized that
“what the [defendants’] activity was calculated to accomplish” was
relevant, not “the defendants’ claimed motivation behind it . . . .”
Id. The defendants’ personal motive “is simply not relevant.” Id.
(quoting Awan, 607 F.3d at 317).
E. Meaning of “Calculated,” a Statutory Term
With this background, we examine whether Arcila
Ramirez’s 18 U.S.C. § 2339B material support offense is a “federal
crime of terrorism” as defined by 18 U.S.C. § 2332b(g)(5). As noted
earlier, his § 2339B offense is a listed crime. See 18 U.S.C.
§ 2332b(g)(5)(B)(i). The only issue is whether Arcila Ramirez’s
offense was “calculated” to influence, affect, or retaliate against
government conduct.
USCA11 Case: 20-10564 Date Filed: 11/01/2021 Page: 19 of 25
20-10564 Opinion of the Court 19
We begin with the statutory term “calculated.” See 18
U.S.C. § 2332b(g)(5)(A). The ordinary and plain meaning of
“calculated” is planned to accomplish a purpose or intended. See
Calculated, Merriam-Webster Online Dictionary, https://
merriam-webster.com/dictionary/calculated (last visited Oct. 21,
2021) (“Planned or contrived to accomplish a purpose; Deliberate,
intended.”); Calculated, Black’s Law Dictionary (11th ed. 2019)
(“Planned so as to achieve a specific purpose; deliberate.”);
Calculate, Oxford English Dictionary (2d ed. 1989) (“To plan or
devise with forethought; to think out; to frame.”). “[C]alculated”
means “planned—for whatever reason or motive—to achieve the
stated object.” Awan, 607 F.3d at 317. “‘Calculation’ is concerned
with the object that the [defendant] seeks to achieve through
planning or contrivance.” Id. (citing Calculated, Webster’s Third
New International Dictionary Unabridged 315 (1986)).
Other circuits have read the phrase “calculated to” as
creating something akin to, or closely resembling, “a specific
intent” requirement. See United States v. Alhaggagi, 978 F.3d 693,
699-700 (9th Cir. 2020); United States v. Ansberry, 976 F.3d 1108,
1127-28 (10th Cir. 2020); United States v. Mohamed, 757 F.3d 757,
759-60 (8th Cir. 2014); United States v. Wright, 747 F.3d 399, 408-
09 (6th Cir. 2014); United States v. Hassan, 742 F.3d 104, 148 (4th
Cir. 2014); Awan, 607 F.3d at 317.
The Second Circuit’s Awan decision discussed at length the
“calculated” term and is instructive.
USCA11 Case: 20-10564 Date Filed: 11/01/2021 Page: 20 of 25
20-10564 Opinion of the Court 20
Defendant Awan was convicted of, inter alia, conspiring to
provide, and providing, material support (funds) to the KCF, a Sikh
terrorist organization in India, in violation of 18 U.S.C. § 2339A.
Awan, 607 F.3d at 309-10. The district court found that there was
insufficient evidence that the defendant’s conduct was “calculated”
to influence or affect the conduct of government or to retaliate
against government conduct under § 2332b(g)(5)(A). Id. at 312,
316. The district court reasoned that it would be “speculative to
conclude that the defendant . . . was motivated by a desire to
influence the policies of the Indian government or retaliate for
some unspecified wrong.” Id. at 316. Instead, the district court
made a fact finding that the defendant’s motive in providing the
funds to the KCF was “the prestige or potential influence he
obtained by associating with [the KCF’s leader] and with the
Pakistani intelligence services.” Id.
In vacating the denial of the terrorism enhancement, the
Second Circuit held, inter alia, that § 2332b(g)(5) does not require
the government to prove the defendant’s motive for committing
the crime of conviction. Id. at 313. The Second Circuit explained
that the word “‘[c]alculation’ is concerned with the object the actor
seeks to achieve through planning and contrivance,” rather than
with the actor’s particular motive. Id. at 317. The proper focus of
the “calculation element” of § 2332b(g)(5)(A) is not “on the
defendant but on his ‘offense,’ asking whether it was ‘calculated,’
i.e., planned—for whatever reason or motive—to achieve the
stated object.” Id. The Second Circuit explained that “a person
USCA11 Case: 20-10564 Date Filed: 11/01/2021 Page: 21 of 25
20-10564 Opinion of the Court 21
may intend and may commit an offense that is so calculated even
if influencing or retaliating against government is not his personal
motivation.” Id.
As to Awan’s offense, the Second Circuit observed that
“there [was] little doubt that Awan (1) knew that the objective of
[the KCF’s leader] and the KCF was to influence the Indian
government through violence, and (2) knew that the money he
provided to the KCF would be used toward that end.” Id. The
Second Circuit acknowledged that Awan “may have been
motivated, as the district court found, by a desire for . . . prestige
and potential influence.” Id. It concluded, however, that “the
government could still prove that Awan’s offenses themselves
were calculated to influence . . . the conduct of government . . .
even if [Awan] lacked a specific political motive for committing
them.” Id. (quotation marks omitted).
Without deciding the issue, the Second Circuit indicated
that “if the evidence showed that Awan engaged in criminal
conduct with knowledge that confederates solicited his actions to
effectuate politically motivated bombings in India, or homicidal
attacks on the country’s security forces or its political leaders, such
proof could demonstrate that Awan’s crimes were calculated to
influence the conduct of government even if he was not personally
motivated by that object.” Id. at 317-18. The Second Circuit
remanded for the district court to reconsider whether the evidence
supported the terrorism enhancement. Id. at 318. With this
background, we turn to Arcila Ramirez’s case.
USCA11 Case: 20-10564 Date Filed: 11/01/2021 Page: 22 of 25
20-10564 Opinion of the Court 22
We agree with Awan and our other sister circuits that
“calculated” imposes an intent requirement. For U.S.S.G. § 3A1.4
to apply, the government must satisfy the “calculated” prong of
§ 2332b(g)(5)(A). To do that, the government must show that the
defendant’s offense was planned to influence, affect, or retaliate
against government conduct, even if that was not the defendant’s
personal motive.
F. Analysis of Arcila Ramirez’s Terrorism Enhancement
As noted earlier, the district court here made no fact findings
as to the § 3A1.4 enhancement. Rather, the district court appeared
to believe the mere fact that Arcila Ramirez had pled guilty to
knowingly providing material support to a known foreign terrorist
organization per se triggered the terrorism enhancement.
It bears repeating that Arcila Ramirez’s § 2339B(a)(1)
offense—providing material support to a foreign terrorist
organization—requires that he know that the ELN is a designated
foreign terrorist organization and that the ELN has engaged in or
engages in terrorism or terrorist activity. See 18 U.S.C.
§ 2339B(a)(1). But § 2339B(a)(1) does not contain the additional
requirement found in § 2332b(g)(5)(A) that the defendant’s offense
be “calculated” (i.e., planned or intended) to influence, affect, or
retaliate against government conduct. Rather, it is only the
definition of a “federal crime of terrorism” in § 2332b(g)(5)(A) that
requires the defendant’s offense be so “calculated.”
USCA11 Case: 20-10564 Date Filed: 11/01/2021 Page: 23 of 25
20-10564 Opinion of the Court 23
To assume an offense listed in § 2332b(g)(5)(B) is per se a
“federal crime of terrorism” without a separate finding as to
“calculated” would render the “calculated” requirement in
§ 2332b(g)(5)(A) superfluous. Fidse, 862 F.3d at 524; United States
v. Chandia, 514 F.3d 365, 376 (4th Cir. 2008) (vacating and
remanding because the district court “did not make any factual
findings related to the intent [i.e., calculation] element.”).
To be sure, whether a defendant’s offense is calculated (i.e.,
intended) to influence, affect, or retaliate against government
conduct is a highly fact specific inquiry that requires examining the
record as a whole. Sometimes, as in Jayyousi and Mandhai, the
record will contain statements by the defendant expressing an
intent to influence, affect, or retaliate against government conduct.
See Jayyousi, 657 F.3d at 1115; Mandhai, 375 F.3d at 1246.
However, because a defendant often will not admit his full
knowledge or intentions, the district court may find the requisite
calculation or intent existed based on circumstantial evidence and
reasonable inferences drawn from the facts. As the Second Circuit
emphasized, a defendant’s knowledge that a terrorist organization
solicited his actions to attack the government could demonstrate
that a defendant’s crimes were calculated to influence government
conduct, even if the defendant was not personally motivated by the
organization’s object. See Awan, 607 F.3d at 317-18. Personal
motive is not relevant. Jayyousi, 657 F.3d at 1115; Awan, 607 F.3d
at 317.
USCA11 Case: 20-10564 Date Filed: 11/01/2021 Page: 24 of 25
20-10564 Opinion of the Court 24
Here though, with no “calculated” or specific intent finding
at all, the district court erred in applying § 3A1.4’s terrorism
enhancement.8 We express no opinion as to whether the factual
proffer and any other record evidence were sufficient for the
district court to draw any particular inferences here. Rather, the
error is that the district court made no fact findings at all. 9
III. CONCLUSION
For the foregoing reasons, we vacate Arcila Ramirez’s
sentence and remand for resentencing and fact findings. 10
8For the first time in his reply brief, Arcila Ramirez contends the government
must prove that the terrorism enhancement applies by clear and convincing
evidence. However, our circuit’s settled law is that the preponderance of the
evidence standard is sufficient to establish the predicate facts for a sentencing
adjustment or enhancement. See, e.g., United States v. Rodriguez, 398 F.3d
1291, 1296 (11th Cir. 2005); United States v. Whitesell, 314 F.3d 1251, 1255
(11th Cir. 2002).
9In cases under the “involved” prong, sometimes the offense conduct alone
will be sufficient evidence to support a “calculated” fact finding. Sometimes
not, requiring additional evidence. In either event, given the terrorism
enhancement’s large impact on both the offense level and criminal history
category, the district court should make an express fact finding as to the
“calculated” requirement. Because our Court had not until now clarified that
point, we remand for a full resentencing that permits the parties to present
additional evidence and argument.
10 Because we vacate Arcila Ramirez’s sentence and remand for a full
resentencing, we do not address his remaining arguments that the district
court should have either departed downward under United States v.
USCA11 Case: 20-10564 Date Filed: 11/01/2021 Page: 25 of 25
20-10564 Opinion of the Court 25
VACATED AND REMANDED.
Rodriguez, 64 F.3d 638 (11th Cir. 1995), or varied downward based on the 18
U.S.C. § 3553(a) factors.