United States v. Chandia ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4529
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALI ASAD CHANDIA, a/k/a Abu Qatada,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:05-cr-00401-CMH-1)
Argued: December 2, 2009 Decided: September 14, 2010
Before MICHAEL, MOTZ, and KING, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
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.
Unpublished opinions are not binding precedent in this circuit.
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. That enhancement applies only if
the government proves that Chandia’s conviction is a “felony
that involved, or was intended to promote, a federal 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. 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
2
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 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.
3
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 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 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
4
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 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
5
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 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. 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
6
objections was that the PSR gave no explanation of why the
terrorism enhancement applied other than stating that his
convictions “meet the 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 applied. Chandia, 514 F.3d at 371.
However, on Chandia’s first appeal, we concluded that the court
7
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.” 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
8
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 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 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
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.
9
applied: Chandia watched videos 2 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.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.
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 containing
information about LET’s military operations in Pakistan. J.A.
293-94.
10
II.
“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.
Federal Rule of Criminal Procedure 32(i)(3)(B)
requires a sentencing court “ -- 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
11
adoption] to rule on each of the alleged factual inaccuracies.”
Walker, 29 F.3d at 911 (holding that the district court’s
statement 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 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
12
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 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 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
(Continued)
13
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) determination, given the
PSR’s lack of discussion on the terrorism enhancement. 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
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).
14
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: 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
15
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
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. 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
16
terrorist activity, or that the organization has engaged or
engages in terrorism.” 18 U.S.C. 2339B(a)(1). 4
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. 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
4
The Supreme Court recently upheld the constitutionality of
§ 2339B against a First Amendment challenge. Holder v.
Humanitarian Law Project, 130 S. Ct. 2705 (2010). The Court
rested its 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.
17
he was “well 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(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 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
18
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
19