United States v. Mohanad Hammadi , 737 F.3d 1043 ( 2013 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0346p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 13-5189
v.
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Defendant-Appellant. -
MOHANAD HAMMADI,
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Appeal from the United States District Court
for the Western District of Kentucky at Bowling Green.
No. 1:11-cr-00013-2—Thomas B. Russell, District Judge.
Argued: November 19, 2013
Decided and Filed: December 17, 2013
Before: MOORE, GIBBONS, and SUTTON, Circuit Judges.
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COUNSEL
ARGUED: James A. Earhart, Louisville, Kentucky, for Appellant. Joseph F. Palmer,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
ON BRIEF: James A. Earhart, Louisville, Kentucky, for Appellant. Joseph F. Palmer,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
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OPINION
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KAREN NELSON MOORE, Circuit Judge. The government caught Defendant-
Appellant, Mohanad Hammadi, as part of a sting operation in Bowling Green, Kentucky.
It charged him with ten terrorism-related and two immigration offenses. He pleaded
guilty. At sentencing, Hammadi asked the district court to depart downward from the
guidelines-recommended sentence of life imprisonment on the basis of sentencing
entrapment and sentencing manipulation. The district court refused to do so and
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imposed a life sentence. Hammadi now appeals and argues that the district court erred
by not adjusting his sentence downward. Despite Hammadi’s request to the contrary,
we need not decide whether to recognize these doctrines now because Hammadi would
not qualify for a departure under either one. The district court, therefore, did not abuse
its discretion, and we AFFIRM Hammadi’s sentence.
I.
Hammadi’s story, as in many terrorism cases, begins with someone else. In
2009, the Federal Bureau of Investigation launched an investigation of Waad Ramadan
Alwan—an Iraqi national living in Bowling Green—after his fingerprints appeared on
fragments of an improvised explosive device (“IED”) in Iraq. During the investigation,
the FBI introduced Alwan to a confidential human source (“CHS”), who met with Alwan
and recorded their conversations starting in August 2010. The CHS led Alwan to
believe that the undercover government agent was part of a group sending money and
weapons to the Mujahidin—Muslims engaged in Jihad, a holy war against infidels—in
Iraq. During their conversations, Alwan described his past actions as an insurgent in
Iraq to the CHS, including his use of IEDs and sniper rifles against American soldiers.
Between September 23, 2010 and January 10, 2011, Alwan assisted the CHS in
sending what Alwan believed to be money and weapons to the Mujahidin several times.
By January 11, 2011, Alwan was asking to lead the Bowling Green cell of the CHS’s
fictional terrorist organization. The CHS instructed Alwan to recruit others, and
afterward Alwan approached multiple people whom he suspected of having violent, anti-
American views. Several individuals rebuffed his offers to join the cell. Hammadi
accepted. Alwan then took Hammadi to meet with the CHS and vouched for Hammadi
as an experienced Iraqi insurgent.
In Iraq, as Hammadi would later tell the CHS and the FBI, he had participated
in approximately ten IED attacks on American troops and convoys with at least two
different cells, including al Qaida. Hammadi had been arrested for one of the IED
attacks, but bribed his way free and fled to Syria. Once in Syria, he applied for refugee
No. 13-5189 United States v. Hammadi Page 3
status in order to immigrate to the United States. On March 1, 2009, in a “Sworn
Statement of Refugee Applying for Admission into the United States form,” Hammadi
answered “no” when asked if he had engaged in terrorist activity before. Presentence
Report (“PSR”) at 13, ¶¶41–42. Similarly, in December 2010, when asked on his
application for a green card if he had engaged in terrorist activity, Hammadi answered
“no.” These two answers represent the conduct charged in Counts 11 and 12 in the
Superseding Indictment. See R. 62 at 6–7 (Page ID #334–35).
Hammadi entered the United States in July 2009, initially settling in Las Vegas
with the help of a Catholic charity. He had $900 to his name, brought only a carry-on
bag filled with belongings, and spoke little English. He failed to find employment,
moving eventually to Bowling Green to work at a poultry factory. Hammadi did so on
the recommendation of Alwan, whose family he knew from Iraq and whom he had met
in Syria. Hammadi eventually quit his work at the poultry factory, and he claimed to be
indigent when Alwan approached him about joining the fictional terrorist cell in January
2011.
For whatever reason, Hammadi agreed to accompany Alwan to a meeting with
the CHS on January 25, 2011. At that meeting, the CHS explained the scheme for
sending money and weapons to insurgents in Iraq, and Hammadi made recommendations
as to how to accomplish their objectives. Then, on January 27, Hammadi and Alwan
took $100,000 from the CHS and transported the money to a tractor trailer, believing that
it would then find its way to the Mujahidin in Iraq. This conduct violated 18 U.S.C.
§ 2339A and served as the basis for Count 1. See R. 62 (Super. Indictment at 1) (Page
ID #329).
On February 15 and 16, Hammadi and Alwan packed two rocket-propelled
grenade launchers (“RPGs”), two machine guns, two boxes of plastic explosives, and
two sniper rifles into duffel bags. The CHS informed them that these weapons were
intended for al Qaida in Iraq. Hammadi and Alwan then took the weapons and placed
them in hidden compartments of another tractor trailer, attempting to send the weapons
No. 13-5189 United States v. Hammadi Page 4
to terrorists, in violation of 18 U.S.C. §§ 2339A and 2339B. This conduct served as the
basis for Counts 2 and 3. See R. 62 (Super. Indictment at 1–2) (Page ID #329–30).
After they delivered the weapons, the CHS told Hammadi and Alwan that they
might ship surface-to-air missiles in the future. Hammadi responded with enthusiasm,
expressing his support for sending such missiles given that one of his terrorist cells in
Iraq had acquired eleven of them. On March 15, the CHS instructed Hammadi and
Alwan that they would send two Stinger-missile systems as a test run, and the next day,
Hammadi and Alwan loaded the Stingers into another tractor trailer. These actions also
violated 18 U.S.C. §§ 2339A and 2339B and made up the basis of Counts 4 and 5. See
R. 62 (Super. Indictment at 2–3) (Page ID #330–31). Furthermore, their conspiracy to
deliver the surface-to-air missiles violated 18 U.S.C. § 2332g, which the government
charged in Count 10. Id. at 5–6 (Page ID #333–34).
Following the delivery of the Stinger missiles, Hammadi and Alwan transported
money and weapons—supplied by the CHS and the government—on two other
occasions in violation of 18 U.S.C. §§ 2339A and 2339B. This conduct served as the
basis for Counts 6, 7, 8, and 9. R. 62 (Super. Indictment at 3–5) (Page ID #331–33).
Hammadi and Alwan also plotted to murder a U.S. Army Captain whom they knew from
Iraq, and Hammadi admitted to being a member of the “Tandheem,” a common
euphemism for al Qaida in Iraq. PSR at 12, ¶¶36–37. During the last delivery on May
25, the FBI arrested Hammadi and Alwan.
A grand jury indicted Hammadi on the twelve counts discussed above. See R.
62 (Super. Indictment at 1–10) (Page ID #329–338). When negotiations over a plea
agreement broke down, Hammadi pleaded guilty without a plea agreement. The
probation office interviewed Hammadi and drafted a PSR, which calculated his offense
level at 43—the maximum under the guidelines. In Hammadi’s sentencing
memorandum, he asked the court to depart downward from the guidelines-recommended
life sentence, claiming that the government’s conduct constituted sentencing entrapment
and sentencing manipulation. R. 108 at 10–13 (Page ID #592–95). While he admitted
that this circuit has never adopted these doctrines, he nonetheless argued that the district
No. 13-5189 United States v. Hammadi Page 5
court should do so in his case because Hammadi, alone, lacked the intent or means to
acquire, sell, or transport the Stinger missiles. Id. at 11–14 (Page ID #593–96). At the
sentencing hearing, counsel elaborated, stating at various points that Hammadi had no
real experience with Stinger missiles, that the government manipulated the contraband
to trigger a mandatory minimum sentence of twenty-five years, and that Hammadi was
motivated only by his indigence.
The government argued that the record disproved each of these assertions. First,
Hammadi made several statements on February 16 that contradicted his claims of
ignorance regarding Stinger missiles. Second, the government noted that Hammadi
transported the Stinger missiles in mid-March and continued to attempt to provide
material assistance to terrorists for another two months before being arrested, which the
government believed undercut Hammadi’s argument of sentencing entrapment.
Furthermore, the government argued that Hammadi’s statements and admissions under
oath regarding his past terrorist actions in Iraq demonstrated his predisposition to
commit the charged crimes. Finally, the government pointed out that Hammadi was
actually paid only $750, which occurred months into this scheme. In sum, the
government opposed a downward departure and advocated for the guidelines-
recommended sentence of life imprisonment.
The district court considered this information, including Hammadi’s background
in Iraq, his prior bad acts, and his circumstances in the United States. It reviewed the 18
U.S.C. § 3553(a) sentencing factors in detail and Hammadi’s arguments in his
sentencing memorandum and at the hearing. Significantly, the district court found that
this circuit has not recognized the doctrines of sentencing entrapment or sentencing
manipulation, and concluded that, even if we had, the doctrines would not apply here
because Hammadi failed to carry his burden of showing inducement and a lack of
predisposition. Therefore, the district court sentenced Hammadi to “a term of life
[imprisonment] as to Count 10 in the indictment, 180 months as to Counts 1 through 9,
and 120 months as to each of Counts 11 and 12, to run concurrently with each other, for
No. 13-5189 United States v. Hammadi Page 6
a total term of life imprisonment.” R. 123 (Sent. Hr’g Tr. at 76:12–17) (Page ID #708).
Hammadi now appeals his sentence.
II.
Since United States v. Booker, 543 U.S. 220 (2005), we review sentences for
procedural and substantive reasonableness. United States v. Camacho-Arellano, 614
F.3d 244, 246 (6th Cir. 2010). We consider first whether the district court committed
procedural error by “failing to calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a)
factors, selecting a sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence . . . .” Id. at 246–47 (quoting Gall v. United States, 552 U.S.
38, 51(2007)) (alterations in original). Second, we examine the substantive
reasonableness of the sentence, reversing if the § 3553(a) factors considered together “do
not justify the sentence imposed.” United States v. Coleman, 627 F.3d 205, 210 (6th Cir.
2010) (citing United States v. Bowers, 615 F.3d 715, 725 (6th Cir. 2010)). “Regardless
of whether the sentence imposed is inside or outside the Guidelines range, [we] must
review the sentence under an abuse-of-discretion standard.” Gall, 552 U.S. at 51. “Only
if [we are] firmly convinced that the district court erred is there a[n] abuse of discretion.”
Coleman, 627 F.3d at 211 (citing Hardyman v. Norfolk & W. Ry. Co., 243 F.3d 255, 258
(6th Cir. 2001)). We “generally do[] not review a refusal to grant a downward departure
unless ‘the district court (1) improperly computed the guideline range; (2) was unaware
of its discretion to depart downward from the guideline range; or (3) imposed the
sentence in violation of law or as a result of the incorrect application of the Sentencing
Guidelines.’” United States v. Fearnow, 468 F. App’x 466, 469 (6th Cir. 2012) (quoting
United States v. May, 399 F.3d 817, 827 (6th Cir. 2005)).
III.
Hammadi’s main argument on appeal is that the district court erred by failing to
depart downward from the guidelines-recommended sentence of life imprisonment
because of sentencing entrapment or sentencing manipulation. In the past, we have
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never before recognized these theories as valid reasons to depart downward. See, e.g.,
United States v. Guest, 564 F.3d 777, 781 (6th Cir. 2009); United States v. Gardner, 488
F.3d 700, 716–17 (6th Cir. 2007); United States v. Coleman, 188 F.3d 354, 360 n.6 (6th
Cir. 1999) (en banc); United States v. Mason, 124 F.3d 201, at *3 (6th Cir. 1997)
(Table). Today, we agree with the district court that Hammadi would not qualify for a
departure under either theory, and therefore we need not decide whether to adopt or
reject these doctrines.
These theories spring from the affirmative defense of entrapment and represent
the two conceptions of the doctrine. United States v. Strickland, 342 F. App’x 103, 107
(6th Cir. 2009). At the most basic level, defendants pleading entrapment, or one of its
derivative theories, argue that they should escape, or receive a lesser, punishment
because the government’s conduct induced them to commit the crime. See United States
v. Al-Cholan, 610 F.3d 945, 950 (6th Cir. 2010); Mason, 124 F.3d at *3. While
defendants pleading the substantive defense of entrapment claim that they had no intent
to break the law (minus government inducement), defendants pursuing the mitigating
theories argue that, but for outrageous government conduct, the defendant would have
committed only a less serious crime. See Mason, 124 F.3d at *3. Sentencing entrapment
is similar to the subjective theory of entrapment and “focuses on the defendant’s lack of
predisposition to commit the greater offense.” Strickland, 342 F. App’x at 107 (citing
United States v. Sanchez, 138 F.3d 1410, 1414 (11th Cir. 1998)); see also Sosa v. Jones,
389 F.3d 644, 647 (6th Cir. 2004) (describing the subjective theory of entrapment).
Sentencing manipulation, in contrast, tracks the objective theory of entrapment and
“‘focuses on the [g]overnment’s conduct.’” Strickland, 342 F. App’x at 107 (quoting
Sanchez, 138 F.3d at 1414). Under either theory, the defendant bears the burden of proof
as to his lack of predisposition and to the outrageousness of government conduct. See
United States v. Jernigan, 59 F. App’x 647, 650 (6th Cir. 2003); United States v.
Parrilla, 114 F.3d 124, 127 (9th Cir. 1997).
The district court did not err in deciding that Hammadi would not qualify under
either approach. First, Hammadi’s guilty plea forecloses his argument that he is entitled
No. 13-5189 United States v. Hammadi Page 8
to a departure based on sentencing entrapment or manipulation. Hammadi’s sentence
is not the result of the government tricking him into trafficking in a greater quantity of
contraband.1 Instead, Hammadi’s sentence is the result of his conspiring to traffic in a
different kind of contraband at different times, which serves as the basis for a separate
crime that requires a longer sentence. If he lacked the intent to deal in surface-to-air
missiles as charged in Count 10, he needed to assert the substantive defense of
entrapment. He did not. Rather, he pleaded guilty, waiving any substantive entrapment
defense. United States v. Cottage, 307 F.3d 494, 499 (6th Cir. 2002) (“A voluntary and
unconditional guilty plea generally waives any non-jurisdictional claims that arose
before the plea, including the defense of entrapment.”). Hammadi now claims, under the
guise of sentencing entrapment and manipulation, that he lacked the requisite intent to
deal in Stinger missiles. However, this argument undercuts his guilty plea and is
identical to a substantive entrapment defense. Hammadi has already waived that defense
and cannot relitigate it at sentencing or on appeal.
Second, even if Hammadi has not waived his sentencing entrapment and
manipulation arguments, he has not carried his burden of proving that he was not
predisposed to commit the more egregious crimes charged in the indictment, particularly
Count 10. In the past, we have looked to a number of factors to determine
predisposition, such as “the character or reputation of the defendant”; “whether the
suggestion of the criminal activity was initially made by the [g]overnment”; “whether
the defendant was engaged in the criminal activity for profit”; “whether the defendant
evidenced reluctance to commit the offense”; and “the nature of the inducement or
1
For example, if the CHS encouraged Hammadi to transport a particular number of Stinger
missiles to trigger a mandatory minimum, then Hammadi might be able to invoke one of the mitigation
theories and cite U.S.S.G. § 2D1.1 cmt. n.26(A). This application note allows a court to depart downward
from the guidelines-recommended sentence if a drug defendant can prove that the government agent
intentionally manipulated the quantity of drugs exchanged with the purpose of triggering a larger sentence.
Id. Importantly, in drug cases, the amount of drugs possessed, manufactured, or sold determines the length
of the sentence. See, e.g., 21 U.S.C. § 841(b)(1)(A) (mandatory ten-year minimum sentences based on
weight of certain drugs). In material-assistance cases, such as Hammadi’s, the penalties are determined
largely irrespective of the amount of assistance. Furthermore, it is unclear whether sentencing entrapment
as a concept makes sense outside the drug context. As the D.C. Circuit has written, “[c]onsider a
defendant who agrees with an undercover agent to murder someone for a fee. Are we to suppose that if
the defendant initially offered only to beat the person up, he should be sentenced as if that were his
offense?” United States v. Walls, 70 F.3d 1323, 1329 (D.C. Cir. 1995).
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persuasion supplied by the government.” United States v. Khalil, 279 F.3d 358, 365 (6th
Cir. 2002) (internal quotation marks omitted). An analysis of these factors clearly shows
predisposition. As the district court recognized, Hammadi boasted repeatedly of his
prior terrorist activities in Iraq and demonstrated familiarity with Stinger missiles and
other explosives. R. 123 (Sent. Hr’g Tr. at 74: 22–75:16) (Page ID #706–07).
Additionally, Hammadi never balked at taking part in the scheme, unlike others whom
Alwan tried to recruit. And as we have noted, “the ready commission of the criminal act
amply demonstrates the defendant’s predisposition.” United States v. Kussmaul, 987
F.2d 345, 349 (6th Cir. 1993) (quoting Jacobson v. United States, 503 U.S. 540, 550
(1992)) (emphasis deleted). Finally, the record undermines Hammadi’s claims that
indigence drove him to commit the offense, because it shows that he was paid only $750
and after multiple deliveries had been made. See R. 123 (Sent. Hr’g Tr. at 53:11–20)
(Page ID #685). Given these facts, the district court did not abuse its discretion by
refusing to depart downward on account of sentencing entrapment because these
admissions would support a finding of predisposition.
Third, Hammadi has also failed to prove by a preponderance of the evidence that
the government’s conduct was so outrageous as to present a due-process concern. The
government’s conduct in this case is not irregular, and Hammadi offers no evidence that
the government acted purposefully to trigger a twenty-five-year mandatory minimum.
Since September 11, 2001, the government has maintained that these sting operations
are necessary to root out potential domestic terrorists, and part of those investigations
is “testing to see just how far these defendants would go in committing acts of
terrorism.” United States v. Cromitie, 727 F.3d 194, 227 (2d Cir. 2013). While the
judiciary should not rubberstamp executive conduct based on blanket claims of
necessity, the Supreme Court has recognized that the entrapment defense “was not
intended to give the federal judiciary a ‘chancellor’s foot’ veto over law enforcement
practices of which it [does] not approve.” United States v. Russell, 411 U.S. 423, 435
(1973). As a result, courts have given the government “wide latitude . . . in conducting
sting operations . . . ,” United States v. Rizzo, 121 F.3d 794, 801 (1st Cir. 1997),
remembering that “[w]here the [g]overnment simply gives the defendant ‘[the]
No. 13-5189 United States v. Hammadi Page 10
opportunity to commit a crime,’ and the defendant accommodates by committing a
crime, the entrapment claim is unavailable,” Kussmaul, 987 F.2d at 349 (quoting
Jacobson, 503 U.S. at 550). Here, the government’s conduct sits squarely within this
latitude; its tactics do not shock the conscience. Cf. Rochin v. California, 342 U.S 165,
172 (1952). The government provided Hammadi with an opportunity to commit a crime,
and he took it. Accordingly, we hold that the district court did not abuse its discretion
in refusing to depart downward based on sentencing manipulation.
IV.
For these reasons, we AFFIRM the sentence imposed by the district court.