United States v. Amer Alhaggagi ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10092
Plaintiff-Appellee,
D.C. No.
v. 3:17-cr-00387-CRB-1
AMER SINAN ALHAGGAGI,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted June 10, 2020
San Francisco, California
Filed October 22, 2020
Before: MILAN D. SMITH, JR. and ANDREW D.
HURWITZ, Circuit Judges, and DAVID A. EZRA, *
District Judge.
Opinion by Judge Milan D. Smith, Jr.;
Dissent by Judge Hurwitz
*
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
2 UNITED STATES V. ALHAGGAGI
SUMMARY **
Criminal Law
The panel vacated a sentence and remanded for
resentencing in a case in which the defendant was convicted
of attempting to provide material support to a terrorist
organization in violation of 18 U.S.C. § 2339B(a)(1).
The defendant opened six social media accounts for
people he knew sympathized with ISIS, an offense the
district court concluded was “calculated to influence or
affect the conduct of government by intimidation or
coercion, or to retaliate against the government conduct,”
and thus triggered application of a terrorism enhancement
pursuant to U.S.S.G. § 3A1.4.
The panel explained that the § 3A1.4 enhancement does
not automatically apply to all material support offenses. To
trigger the enhancement, the government must prove
elements distinct from those of the crime of conviction,
specifically that the offense committed involved, or was
intended to promote, a “federal crime of terrorism,” as
defined in 18 U.S.C. § 2332b(g)(5). Regarding the two
prongs of the definition of “federal crime of terrorism,” the
parties agreed, and the panel held (1) that 18 U.S.C.
§ 2332b(g)(5)(A)—providing that the offense was
calculated to influence or affect the conduct of government
by intimidation or coercion, or to retaliate against
government conduct—imposes a specific intent
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. ALHAGGAGI 3
requirement; and (2) that the defendant’s conviction for
violating § 2339B(a)(1) is one of the enumerated statutes in
18 U.S.C. § 2332b(g)(5)(B).
Addressing the remaining question whether the
defendant’s conduct satisfied § 2332b(g)(5)(A), and noting
that it was the government’s burden to prove that element by
clear and convincing evidence, the panel held (1) because
the district court failed to determine whether the defendant
knew how the accounts he opened were to be used, it could
not find that he specifically intended that the accounts be
used to coerce or intimidate a government; and (2) the
district court did not find sufficient facts to indicate that the
defendant’s opening of social media accounts was intended
to retaliate against government conduct.
The panel concluded that the district court therefore
abused its discretion in applying the terrorism enhancement.
Dissenting, Judge Hurwitz wrote that, reviewing the
district court’s factual findings for clear error and its
application of the Sentencing Guidelines to those facts for
abuse of discretion, he could not find that the district court
erred in finding that the government met its burden of
proving by clear and convincing evidence that the defendant
committed the enumerated offense with the specific intent to
achieve one of the objectives stated in § 2332b(g)(5)(A).
4 UNITED STATES V. ALHAGGAGI
COUNSEL
August Gugelmann (argued) and Mary McNamara,
Swanson & McNamara LLP, San Francisco, California, for
Defendant-Appellant.
S. Waqar Hasib (argued), Assistant United States Attorney;
Merry Jean Chan, Chief, Appellate Division; David L.
Anderson, United States Attorney; United States Attorney’s
Office, San Francisco, California; for Plaintiff-Appellee.
OPINION
M. SMITH, Circuit Judge:
Amer Sinan Alhaggagi appeals a judgment of conviction
and sentence of the United States District Court for the
Northern District of California imposing the Sentencing
Guidelines’ terrorism enhancement, U.S.S.G. § 3A1.4, to his
conviction for attempting to provide material support to a
terrorist organization in violation of 18 U.S.C.
§ 2339B(a)(1). Alhaggagi opened six social media accounts
for people he knew sympathized with ISIS, an offense the
district court concluded was “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), and thus triggered application of
the terrorism enhancement. We reverse and remand for
resentencing.
UNITED STATES V. ALHAGGAGI 5
FACTUAL AND PROCEDURAL BACKGROUND
I. Alhaggagi’s Background
Amer Alhaggagi was born in Lodi, California to Yemeni
immigrants. After September 11, 2001, Alhaggagi’s mother
moved him and his five siblings to Yemen, while his father
remained in the United States. Alhaggagi spent the
remainder of his childhood going back and forth between
Yemen, where he lived with his mother, and California,
where he lived with his father. In both places, Alhaggagi
had a strained relationship with his parents, who raised their
children in an observant Muslim household.
In 2009, Alhaggagi and his mother and siblings returned
to California to live with his father. Although he was raised
in a Muslim home, Alhaggagi was not religious and adhered
to few religious traditions. As an escape from his home life,
Alhaggagi began spending a lot of time on the Internet,
where his father had no insight into his activities. He
developed a sarcastic and antagonistic persona online,
provoking people by comments he made on YouTube
videos. He displayed these characteristics even when he was
not online—people could never tell whether he was serious.
II. The FBI Investigation
In 2016, at the age of 21, Alhaggagi began participating
in chatrooms, and chatting on messaging apps like Telegram,
which is known to be used by ISIS. He chatted both in Sunni
group chats sympathetic to ISIS and Shia group chats that
were anti-ISIS. He trolled users in both groups, attempting
to start fights by claiming certain users were Shia if he was
in a Sunni chatroom, or Sunni if he was in a Shia chatroom,
to try to get other users to block them. He was expelled from
chatrooms for inviting female users to chat, which was
6 UNITED STATES V. ALHAGGAGI
against the etiquette of these chatrooms, as participants in
those chats followed the Islamic custom of gender
segregation.
In one Sunni chatroom, in late July 2016, Alhaggagi
caught the attention of a confidential human source (CHS)
for the FBI when he expressed interest in purchasing
weapons. In chats with the CHS, Alhaggagi made many
claims about his ability to procure weapons, explaining that
he had friends in Las Vegas who would buy firearms and
ship them to him via FedEx or UPS. Alhaggagi also made
disturbing claims suggesting he had plans to carry out
attacks against “10,000 ppl” in different parts of the Bay
Area by detonating bombs in gay nightclubs in San
Francisco, setting fire to residential areas of the Berkeley
Hills, and lacing cocaine with the poison strychnine and
distributing it on Halloween. He claimed to have ordered
strychnine online using a fake credit card, of which he sent
a screenshot to the CHS, bragging that he engaged in identity
theft and had his own device-making equipment to make
fake credit cards. He said he would be able to receive
deliveries of strychnine undetected, by having packages
shipped to an address that did not belong to him and waiting
at that address to intercept the deliveries.
In Alhaggagi’s view, all of this talk was “pure bullshit
and full of absurdities and contradictions”—it was his “chat
persona.” One minute his persona was selling weapons, the
next he claimed to need them, all in the same chatroom. His
persona allegedly had associates in Mexican cartels who
could get him grenades, bazookas, and RPGs, offered to join
a user in Brazil to attack the Olympics, and was considering
conducting attacks in Dubai.
Not surprisingly, the FBI was alarmed by Alhaggagi’s
statements and launched a months-long investigation,
UNITED STATES V. ALHAGGAGI 7
including 24-hour surveillance of Alhaggagi. The FBI had
the CHS arrange for Alhaggagi to meet an undercover agent
(UCE) in person, whom the CHS described as hating
“kuffar,” non-believers of Islam, and being interested in
carrying out a suicide mission. The CHS encouraged and
expressed interest in joining Alhaggagi’s plans.
At the UCE’s request, Alhaggagi met with the UCE on
several occasions in late July and early August 2016.
Alhaggagi shared the same plans he had discussed with the
CHS on Telegram. The two discussed bomb-making, a topic
in which the UCE claimed to have experience. On a second
occasion, Alhaggagi met with the UCE to visit a storage
space where the UCE had allegedly arranged to store
supplies they needed to carry out the attacks. Alhaggagi
offered to help purchase bomb-making materials, and on the
drive there and back, he and the UCE continued to speak of
their many plans, discussing car bombs, targeting AT&T
Park, and Alhaggagi’s plan to join a local police department
so he could more easily obtain weapons. On a third
occasion, the UCE met again with Alhaggagi at the storage
locker, where the FBI had left several barrels of mock
explosives. In the moment, Alhaggagi expressed excitement
upon seeing the explosives, and on the drive back, he pointed
out places he believed would be good targets for bombs.
After that meeting, however, Alhaggagi began
distancing himself from the CHS on Telegram and the UCE.
He told the district court that upon seeing the explosives, “it
only hit me at that moment that I’ve been talking to these
people for far too long and had no idea what I’ve gotten
myself into and now I’m kinda freaked out . . . I never took
it seriously and I never realized how serious he was until he
was ready to make a bomb (so I believed at the time) which
I wanted no part of!”
8 UNITED STATES V. ALHAGGAGI
From late August to September 2016, Alhaggagi skipped
meetings intended to practice the attacks with the UCE, and
ignored many attempts by the UCE to contact him. On
September 23, 2016, the UCE approached Alhaggagi on the
street and asked if they could share a meal. Alhaggagi
agreed, but said he needed to get something from his house
first. He never returned to meet the UCE, and they never
communicated with each other again.
III. Alhaggagi’s Arrest, Indictment, and Guilty Plea
On November 29, 2016, Alhaggagi was arrested on
identity theft charges, and the FBI searched his home.
Searches of Alhaggagi’s electronic devices indicated that
about a month after cutting ties with the UCE, Alhaggagi
began chatting online with people whom he believed to be
ISIS members in a particular chatroom with posts from ISIS
supporters and people expressing hate toward the United
States and Syrian and Iraqi governments.
Around that time, Alhaggagi agreed on two occasions to
open social media and email accounts for purported ISIS
members. Specifically, on October 31, 2016, Alhaggagi
opened a Facebook, Twitter, and Gmail account and passed
the account information on to the person with whom he was
chatting. That person asked him, “Brother, do you support
the Caliphate State?” and Alhaggagi responded, “of course.”
On November 15, 2016, a Telegram user called Abu
Muharib Iraqi 1 introduced himself to Alhaggagi, said he was
sent from a supporter of the caliphate, and asked Alhaggagi
1
Abu Muharab Iraqi, a 17-year-old, was later captured and
interviewed by FBI agents in Iraq. He confirmed that he swore an oath
of allegiance to Abu Bakr al-Baghdadi, the deceased leader of ISIS, and
recognized Alhaggagi by one of his usernames.
UNITED STATES V. ALHAGGAGI 9
to open Twitter accounts. Alhaggagi agreed, believing he
needed to curry favor with certain users to continue his
trolling and retaliatory games. He opened Twitter and Gmail
accounts and passed along the account information. Some
of the accounts Alhaggagi opened were later used to report
ISIS attacks in Mosul, Iraq, destroyed tanks, planes, and
Humvees, and the deaths of Peshmerga and Iraqi soldiers.
The posts were attributed to Amaq, which is known to be
ISIS’s propaganda organization.
The FBI search also revealed that Alhaggagi had at some
point accessed a bomb-making manual he had previously
downloaded and exchanged messages with users on
Telegram about bomb-making. It revealed a powerpoint
presentation about strychnine and internet searches around
mid-October for large Halloween events. Other internet
history revealed searches for information on flammable
liquids, rocket igniters, electric matchers, and sulfuric acid.
Alhaggagi had also posted in chatrooms materials about
jihadist courses, instructions to build a napalm bomb and
chloroform, and links to a training video for ISIS supporters
about how to assist in cyberattacks.
On July 18, 2018, Alhaggagi pled guilty without a plea
agreement to the four counts alleged in the indictment:
Count One, attempting to provide material support to a
designated foreign terrorist organization, 18 U.S.C.
§ 2339B(a)(1); Count 2, possessing device-making
equipment, 18 U.S.C. § 1029(a)(4); Count 3, using an
unauthorized access device, 18 U.S.C. § 1029(a)(2); and
Count 4, aggravated identity theft.
IV. Sentencing
The probation office prepared a presentence report
(PSR), which concluded that the terrorism enhancement,
10 UNITED STATES V. ALHAGGAGI
U.S.S.G. § 3A1.4, did not apply in Alhaggagi’s case. The
PSR calculated the total offense level at 26, with a 3-point
reduction for acceptance of responsibility, and a Criminal
History Category I. This put the guidelines range at 46–57
months, and the probation office recommended a 48-month
sentence.
Alhaggagi presented the expert opinion of Dr. Marc
Sagemen, a forensic psychiatrist and anti-terrorism expert,
who conducted a multi-day evaluation of Alhaggagi.
Dr. Sagemen opined that Alhaggagi was not radicalized, did
not harbor anti-American sentiment, and “demonstrates a
lack of ideological commitment to jihad.” Rather,
Dr. Sagemen concluded Alhaggagi was an “immature young
man who bragged online about being a dangerous terrorist to
impress gullible young men communicating with him.”
In its sentencing memorandum, the government argued
that the terrorism enhancement was applicable, and
calculated the total offense level at 38, with a criminal
history category VI, yielding a guidelines range of 360–564
months. The government recommended a sentence of
396 months.
Following a two-day evidentiary hearing, the district
court sentenced Alhaggagi to 164 months on Count One,
164 months on Count Two, 120 months on Count Three, and
24 months on Count Four. The court ordered the sentences
on Counts One, Two, and Three to run concurrently, and the
sentence on Count Four to run consecutively, as required by
statute, for a total of 188 months. 2 The court also imposed a
2
Alhaggagi does not challenge the sentence on Count Four on
appeal.
UNITED STATES V. ALHAGGAGI 11
term of 10 years’ supervised release on Count One and
3 years on each remaining count, to run concurrently.
In a separate written order, the district court explained its
application of the terrorism enhancement. 3 Reciting the
definition of “federal crime of terrorism” from 18 U.S.C.
§ 2332b(g)(5), the court recognized that the crime of
conviction, attempting to provide material support, was one
of the enumerated statutes to which the enhancement
applies. It concluded that the only dispute was whether
Alhaggagi’s material support offense “constituted an offense
that is ‘calculated [1] to influence or affect the conduct of
government by intimidation or coercion, or [2] to retaliate
against government conduct.”
Evaluating the first prong, the district court concluded
that Alhaggagi knew the social media and email accounts he
opened would “influence or affect the conduct of
government by intimidation or coercion.” 18 U.S.C.
§ 2332b(g)(5)(A). The district court reasoned that
Alhaggagi need not have seen the anti-government posts in
the Telegram chatroom to understand the anti-government
purpose of the accounts he opened because “what other
purpose would the accounts serve?” The district court
further noted:
Defendant splits hairs in asserting that “it can
be safely presumed that he understood the
accounts would be used (if at all) to spread
information sympathetic to ISIS. But he did
3
The order also explained the district court’s reasoning for departing
from a criminal history category of VI, as provided by U.S.S.G. § 3A1.4,
to a criminal history category of I. The district court’s well-reasoned
decision on this point is not at issue on appeal.
12 UNITED STATES V. ALHAGGAGI
not know that they would be used to influence
government conduct by coercion or
intimidation.” Spreading information
sympathetic to ISIS strengthens ISIS, which
combats hostile governments through
intimidation and force. This is a rather
straightforward cause and effect, not nearly
as convoluted as Defendant contends.
The district court, therefore, saw no difference between
general propaganda and propaganda aimed to influence or
affect government conduct by intimidation and force.
Accordingly, the court found that the government
demonstrated by clear and convincing evidence that the
terrorism enhancement applied to Alhaggagi’s sentence
pursuant to the first prong.
With respect to the second prong, the court concluded
“for essentially the same reasons” that Alhaggagi had the
specific intent to commit an offense that was calculated to
“retaliate against government conduct.” The court reasoned
retaliation against government conduct “is one of the central
features of ISIS,” is “a central feature of the propaganda ISIS
distributes through social media,” and was “a theme in the
chatroom Defendant frequented.” The court thus concluded
that opening social media accounts for ISIS to be used to
“spread[] information sympathetic to ISIS[,] strengthens
ISIS and recruits adherents to ISIS, which leads to retaliation
against governments with acts of terror.” Accordingly, it
found that Alhaggagi had the specific intent to commit an
offense that was calculated to “retaliate against government
conduct.”
Alhaggagi timely appealed his sentence.
UNITED STATES V. ALHAGGAGI 13
JURISDICTION AND STANDARDS OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 1291. “We
review a district court’s construction and interpretation of
the Guidelines de novo and its application of the Guidelines
to the facts for abuse of discretion.” United States v. Simon,
858 F.3d 1289, 1293 (9th Cir. 2017) (en banc) (alteration and
citation omitted).
ANALYSIS
In this appeal, we consider whether the district court
abused its discretion in applying the terrorism enhancement
in sentencing Alhaggagi. 4
I. Distinguishing the terrorism enhancement from the
elements of the underlying crime
The terrorism enhancement, U.S.S.G. § 3A1.4, imposes
a significantly harsher punishment on those who commit
certain types of crimes of terrorism. The enhancement
increases a defendant’s offense level to a minimum of 32 and
designates a defendant’s criminal history category as
Category VI, regardless of whether the defendant has
previously committed a crime. U.S.S.G. § 3A1.4. To trigger
this enhancement, the government must prove elements
distinct from those of the crime of conviction, specifically
that the offense committed “involved, or was intended to
promote, a federal crime of terrorism.” Id.
4
Alhaggagi also argued on appeal that the district court committed
procedural error by not articulating the reasoning for the sentences on
Counts Two and Three, and that the sentences are substantively
unreasonable. Because we remand for resentencing, we need not
consider those arguments.
14 UNITED STATES V. ALHAGGAGI
The term “federal crime of terrorism” is defined as “an
offense that 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)(A), and that “is a violation of” certain
enumerated statutes, 18 U.S.C. § 2332b(g)(5)(B). Both parts
of § 2332b(g)(5) must be satisfied for the enhancement to
apply. See United States v. Tankersley, 537 F.3d 1100, 1113
(9th Cir. 2008); United States v. Parr, 545 F.3d 491, 504 (7th
Cir. 2008).
The material support statute, by contrast, requires proof
that a defendant attempted to, conspired to, or did provide
“material support or resources to a foreign terrorist
organization,” knowing “that the organization is a
designated terrorist organization” or “that the organization
has engaged or engages in terrorism.” 18 U.S.C.
§ 2339B(a)(1). It is possible for a defendant to provide
material support to a terrorist group in violation of 18 U.S.C.
§ 2339B(a)(1) without intending that the support or
resources would influence, affect, or retaliate against
government conduct to satisfy the first prong of the
definition of federal crime of terrorism. See, e.g., United
States v. Chandia (Chandia I), 514 F.3d 365, 376 (4th Cir.
2008).
The enhancement, therefore, does not automatically
apply to all material support offenses. Congress created this
distinction in order to punish certain dangerous terrorists
more severely than persons who committed non-violent
crimes. See Tankersley, 537 F.3d at 1113. Thus, to warrant
a substantial increase in punishment pursuant to the
terrorism enhancement, a defendant must have the requisite
intent necessary to satisfy the definition of federal crime of
UNITED STATES V. ALHAGGAGI 15
terrorism, beyond the intent required to establish a violation
of the material support statute.
II. The terrorism enhancement requires examining the
specific intent with respect to the offense of conviction
The parties agree, consistent with the district court’s
decision and those of our sister circuits that have addressed
the issue, that § 2332b(g)(5)(A) imposes a specific intent
requirement. See, e.g., United States v. Hassan, 742 F.3d
104, 148–49 (4th Cir. 2014); United States v. Wright,
747 F.3d 399, 408 (6th Cir. 2014); United States v.
Mohamed, 757 F.3d 757, 760 (8th Cir. 2014); United States
v. Stewart, 590 F.3d 93, 138 (2d Cir. 2009) (“[C]omission of
a federal crime of terrorism . . . incorporates a specific intent
requirement.”) (quoting Chandia I, 514 F.3d at 376 (cleaned
up)).
We agree with this interpretation of § 2332b(g)(5) and
the reasoning of our sister circuits in adopting it. 5 As the
Second Circuit explained, § 2332b(g)(5) “does not require
proof of a defendant’s particular motive,” which is
“concerned with the rationale for an actor’s particular
conduct.” United States v. Awan, 607 F.3d 306, 317 (2d Cir.
2010). Rather, “‘[c]alculation’ is concerned with the object
that the actor seeks to achieve through planning or
contrivance.” Id. The appropriate focus thus is not “on the
defendant, but on his ‘offense,’ asking whether it was
calculated, i.e., planned—for whatever reason or motive—
5
Although we previously acknowledged that the terrorism
enhancement requires a showing of intent, Tankersley, 537 F.3d at 1113,
we did not decide the level of intent required. See id. (holding a sentence
was not per se unreasonable where the terrorism enhancement was
inapplicable but the district court imposed a twelve-level upward
departure to mirror the punishment had the enhancement applied).
16 UNITED STATES V. ALHAGGAGI
to achieve the stated object.” Id. In other words,
2332b(g)(5) “is better understood as imposing a requirement
‘that the underlying felony [be] calculated to influence or
affect the conduct of government by intimidation or
coercion, or to retaliate against government conduct.” Id.
(quoting Stewart, 590 F.3d at 138). 6
Against that backdrop, we consider whether the evidence
supports a finding that Alhaggagi’s conduct meets the
definition of federal crime of terrorism required for § 3A1.4
to apply.
III. The terrorism enhancement does not apply in this
case
The parties do not dispute that Alhaggagi’s conviction
satisfies the second prong of the definition of federal crime
of terrorism. The crime of conviction here—attempt to
provide material support in violation of 18 U.S.C.
§ 2339B(a)(1)—is one of the enumerated statutes in
18 U.S.C. § 2332b(g)(5)(B).
6
The government argues Alhaggagi’s acts and statements related to
the attacks he purportedly planned throughout the Bay Area are
circumstantial evidence of him opening the accounts with the specific
intent to influence or affect government by intimidation or coercion.
This argument misunderstands the text of the terrorism enhancement,
which explicitly requires the underlying offense—the offense that
violates one of the enumerated crimes in the second prong—be
calculated to influence or affect government conduct. See 18 U.S.C.
§ 2332b(g)(5)(A). Thus, in determining whether the terrorism
enhancement applies here, the court must analyze whether Alhaggagi
provided material support with the specific intent of influencing or
affecting government conduct. See 18 U.S.C. § 2332b(g)(5)(A).
Alhaggagi’s specific intent from other unrelated offenses is not sufficient
to trigger the enhancement under § 3A1.4.
UNITED STATES V. ALHAGGAGI 17
The remaining question is whether Alhaggagi’s conduct
satisfies the first prong: whether his attempt to provide
material support to a terrorist organization by opening social
media accounts was “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)(A). The parties agree it was the government’s
burden to prove that element by clear and convincing
evidence, because application of the enhancement here
increased the guidelines range from a low end of 51 months
to a low end of 324 months, an increase of over 22 years.
See United States v. Jordan, 256 F.3d 922, 926 (9th Cir.
2001).
Alhaggagi contends the district court erred in applying
the terrorism enhancement because it centered its analysis on
ISIS, not on Alhaggagi’s conduct or mental state. The
enhancement, Alhaggagi argues, specifically requires the
district court to consider the latter, whereas the offense itself
implicates the former. Alhaggagi concludes that because the
district court failed to determine whether he knew how the
accounts he opened were to be used, it could not find that he
specifically intended that the accounts be used to coerce or
intimidate a government. We agree.
A. Calculated to influence or affect the conduct of
government by intimidation or coercion
Alhaggagi opened six social media accounts on two
occasions for people he understood to be ISIS sympathizers.
The district court concluded that this conduct was calculated
to influence or affect government conduct by intimidation or
coercion because Alhaggagi knew he was providing support
to ISIS sympathizers and he knew that ISIS is a terrorist
organization.
18 UNITED STATES V. ALHAGGAGI
The district court’s logic holds true in the broadest
sense—any support given to a terrorist organization
ultimately inures to the benefit of its terrorist purposes. See
Holder v. Humanitarian Law Project, 561 U.S. 1, 29 (2010).
This reasoning, however, misses the mark in the context of
the terrorism enhancement because it fails to properly
differentiate between the intent required to sustain a material
support conviction pursuant to 18 U.S.C. § 2339B(a)(1) and
the intent required to trigger the terrorism enhancement
pursuant to U.S.S.G. § 3A1.4. As explained above, the
material support statute requires only that the defendant have
“knowledge of the foreign group’s designation as a terrorist
organization or the group’s commission of terrorist acts.” Id.
at 12. Section 3A1.4, in contrast, requires the defendant’s
specific intent that the offense “influence or affect the
conduct of government by intimidation or coercion.”
18 U.S.C. § 2332b(g)(5)(A).
In cases involving violent acts of terrorism, specific
intent is relatively easy to identify, either from the statements
or admissions of the defendant or the nature of the offense. 7
7
See, e.g., United States v. Mandhai, 375 F.3d 1243, 1247 (11th Cir.
2004) (upholding application of § 3A1.4 where the defendant “admitted
he was planning to blow up electrical sites and then demand the release
of Muslim prisoners and changes to the U.S. Middle East policy”);
United States v. McDavid, 396 F. App’x 365, 372 (9th Cir. 2010)
(terrorism enhancement applied for conspiring to bomb federal facilities
where defendant and his co-conspirators “discussed a number of
different ways to disrupt the government and the economy” and
defendant “had clearly expressed his goals and objectives in disrupting
the government”); Wright, 747 F.3d at 410 (terrorism enhancement
applied for attempting to bomb a bridge); United States v. Dye, 538 F.
App’x 654, 666 (6th Cir. 2013) (enhancement applied given “natural
inference” that defendant intended to retaliate against court for charges
pending against him when he firebombed the chambers of a judge
presiding over those cases).
UNITED STATES V. ALHAGGAGI 19
But, where the conduct underlying the conviction does not
involve violent terrorist acts, as is true in many material
support cases, those “acts cannot, standing alone, support
application of the terrorism enhancement.” Chandia I,
514 F.3d at 376. In such cases, evidence beyond the facts
underlying the offense conduct must reflect that the
defendant had the enhancement’s requisite intent. 8
The Second Circuit’s decision in United States v. Stewart
is instructive. 590 F.3d at 93. In Stewart, defendant
Mohammed Yousry served as a translator between a
convicted terrorist and his legal team. Some of these
translated messages concerned the terrorist’s support for the
termination of a cease-fire and a return to violence between
al-Gama’a, a terrorist organization in Egypt, and the
Egyptian government. Id. at 103–07. Yousry was ultimately
convicted of providing and concealing material support to
that conspiracy in violation of 18 U.S.C. § 2339A. Id.
at 108. The district court, however, did not apply the
terrorism enhancement to Yousry’s conviction, finding that
“he did not act with the requisite state of mind.” Id. at 136.
On appeal, the Second Circuit agreed. Id. at 136–37. The
court held that, despite Yousry’s proximity to the messaging
8
Compare Mohamed, 757 F.3d at 760 (enhancement applied to
conviction for conspiracy to provide material support to terrorists in
violation 18 U.S.C. § 2339A(a) where defendant assisted men who were
traveling to Somalia “so that the men could fight against Ethiopian troops
who were in Somalia assisting the internationally-recognized
Transitional Federal Government”), with United States v. Arnaout,
431 F.3d 994, 997–98, 1002 (7th Cir. 2005) (enhancement did not apply
to conviction of a charity director who used donated funds to provide
supplies to Bosnian and Chechen soldiers, given that there was no
evidence defendant “intended the donated boots, uniforms, blankets,
tents, X-ray machine, ambulances, nylon or walkie talkies to be used to
promote a federal crime of terrorism”).
20 UNITED STATES V. ALHAGGAGI
scheme and the scheme’s role in benefiting al-Gama’a, the
government failed to show that Yousry sought to influence
or affect the conduct of government. Id. at 138.
Similarly, Alhaggagi’s actions—even though the social
media accounts inured to the benefit of ISIS and its terrorist
purpose in the long run—are not accompanied by the
necessary mental state to trigger the enhancement. The
district court abused its discretion in concluding otherwise.
The district court’s conclusion rests on the erroneous
assumption that in opening the social media accounts for
ISIS, Alhaggagi necessarily understood the purpose of the
accounts was “to bolster support for ISIS’s terrorist attacks
on government and to recruit adherents.” 9 Unlike conspiring
to bomb a federal facility, planning to blow up electrical
sites, attempting to bomb a bridge, or firebombing a
courthouse—all of which have triggered the enhancement—
opening a social media account does not inherently or
unequivocally constitute conduct motivated to “affect or
influence” a “government by intimidation or coercion.”
18 U.S.C. § 2332b(g)(5)(A). In other words, one can open a
social media account for a terrorist organization without
knowing how that account will be used; whereas it is
difficult to imagine someone bombing a government
building without knowing that bombing would influence or
affect government conduct. The district court’s “cause and
effect” reasoning is insufficient because the cause—opening
social media accounts—and the effect—influencing
government conduct by intimidation or coercion—are much
9
The government makes a similar argument for the first time on
appeal, that “[a]iding ISIL’s social media operation is, in and of itself,
an act calculated to influence or affect the conduct of government
through intimidation or coercion.”
UNITED STATES V. ALHAGGAGI 21
too attenuated to warrant the automatic triggering of the
enhancement. Instead, to properly apply the enhancement,
the district court had to determine that Alhaggagi knew the
accounts were to be used to intimidate or coerce government
conduct. See Awan, 607 F.3d at 317–18; Chandia I,
514 F.3d at 376.
The district court did not make sufficient factual findings
concerning Alhaggagi’s knowledge of how the accounts he
opened were to be used. Although Alhaggagi participated in
a chatroom replete with posts praising ISIS, denouncing the
United States, and planning “to kindle strife and chaos” in
the United States through Twitter, there is no evidence that
Alhaggagi saw those posts, opened the accounts because of
those posts, or had contact with the authors of the posts.
Furthermore, Alhaggagi himself did not post to the social
media accounts, he did not control how those accounts
would be used, and his statements contemporaneous to the
opening of the accounts demonstrate that he did not know
how the accounts would be used. (Muharib: “I think you
read about the [social media campaign] that I want, brother.”
Alhaggagi: “No, I did not read about it.”). While he
expressed his support for ISIS in conversations about
creating the account, he did not indicate that he hoped or
intended that those accounts would be used to spread any
specific type of content. See Awan, 607 F.3d at 317
(“‘Calculation’ is concerned with the object that the actor
seeks to achieve through planning or contrivance.”). 10
10
Alhaggagi’s case is therefore distinguishable from the cases on
which the government relies, where the evidence underlying the offenses
includes defendants’ statements specifically demonstrating the intent to
intimidate and coerce government conduct. See United States v. Ali,
799 F.3d 1008, 1016, 1031–32 (8th Cir. 2015) (material support
22 UNITED STATES V. ALHAGGAGI
B. Calculated to retaliate against government
conduct
Alhaggagi further disputes the district court’s conclusion
that in opening the social media accounts, he had the specific
intent to retaliate against government conduct.
Cases applying the retaliation prong rely on evidence
that the defendant intended to respond to specific
government action. For example, in United States v. Van
Haften, the defendant, a registered sex offender, was
apprehended while travelling to Turkey to try to join ISIS.
881 F.3d 543 (7th Cir. 2018). His Facebook posts and notes
reflected his belief that the United States government had
ruined his life by placing him on the sex offender registry.
Id. at 544–45. The district court concluded that he “sought
to join ISIS, at least in part, because he wanted to retaliate
against the government for its treatment of Muslims in
general and specifically for its treatment of [the defendant]
conviction for sending money to al Shabaab in Somalia triggered
terrorism enhancement where al Shabaab leaders directly communicated
to defendants about victorious battles and suicide bombings, defendants
vocally supported and expressed gratitude for al Shabaab’s anti-
government effort, and defendants raised funds to support that effort);
United States v. Chandia (Chandia II), 675 F.3d 329, 332, 334 (4th Cir.
2012) (enhancement applied to material support conviction where
defendant assisted a known leader of LET by helping secure equipment
for LET, assisting the leader “in shipping paintballs to Pakistan for LET
use in military training operations,” and discussing “the training that
occurred at the LET camp and [the necessary] clothing”); United States
v. El-Mezain, 664 F.3d 467, 485, 487, 571 (5th Cir. 2011) (enhancement
applied to material support conviction of officers and directors of
fundraising arm of Hamas where defendants’ statements in organization
meetings “demonstrated the defendants’ support for Hamas’s goal of
disrupting the Oslo accords and the peace process, as well as their
agreement with Hamas’s goals of fighting Israel”).
UNITED STATES V. ALHAGGAGI 23
as a designated sex offender.” Id. at 544. See also United
States v. Salim, 549 F.3d 67, 76–77 (2d Cir. 2008) (finding
the retaliation prong satisfied where the defendant’s attack
“was in retaliation for judicial conduct denying [the
d]efendant’s applications or substitution of counsel”);
United States v. Abu Khatallah, 314 F. Supp. 3d 179, 198
(D.D.C. 2018) (finding that the defendant “joined the attack
[on the U.S. Special Mission in Benghazi] in order to
retaliate against the U.S. government for its presence in
Libya.”).
Here, the district court relied on “essentially the same
reasons” that it found supported the “influence or affect”
prong to find the retaliation prong satisfied. The court
reasoned that retaliation against government conduct is a
“central features of ISIS,” is “a central feature of the
propaganda ISIS distributes through social media,” and was
“a theme in the chatroom Defendant frequented.” The court
thus concluded that opening social media accounts for ISIS
to be used to “spread[] information sympathetic to ISIS[,]
strengthens ISIS and recruits adherents to ISIS, which leads
to retaliation against governments with acts of terror.”
While providing support to terrorist groups inevitably
strengthens their ability to retaliate against government
conduct, it is not enough that such support will generally
“lead[] to” more acts of terrorism. That reasoning does not
distinguish between conduct that satisfies the material
support statute and the specific intent required to establish
calculated retaliation for purposes of the terrorism
enhancement. We instead look to whether the offense itself
is “calculated . . . to retaliate against government conduct.”
18 U.S.C. § 2332b(g)(5)(A).
24 UNITED STATES V. ALHAGGAGI
Thus, for the reasons explained above, the district court
abused its discretion by failing to find Alhaggagi committed
the underlying offense with the specific intent to retaliate
against government conduct. Specifically, the district court
did not find sufficient facts to indicate that Alhaggagi’s
opening of social media accounts was intended to retaliate
against government conduct. The district court did not find
that Alhaggagi harbored retaliatory intent against any
particular government, or that he posted retaliatory messages
from the social media accounts he created, that he had a
particular purpose in mind as to how the accounts would be
used, or that he knew how ISIS sympathizers would use
them. The district court’s reasoning instead focused on
ISIS’s conduct, and that retaliation was a theme in the
chatroom Alhaggagi visited. Generally assisting a terrorist
organization with social media does not necessarily
demonstrate an intention that the accounts are to be used to
retaliate against a government, and there is no evidence that
Alhaggagi sought revenge on any particular government or
for any specific government conduct. We therefore
conclude that clear and convincing evidence does not
establish Alhaggagi opened social media accounts
calculating that they would be used to retaliate against
government action, and the district court erred by applying
the sentencing enhancement.
CONCLUSION
We conclude that the district court abused its discretion
in applying the terrorism enhancement to Alhaggagi’s
sentence. We vacate Alhaggagi’s sentence and remand for
resentencing.
VACATED AND REMANDED.
UNITED STATES V. ALHAGGAGI 25
HURWITZ, Circuit Judge, dissenting:
In light of the evidence, the district court did not abuse
its discretion in applying the terrorism enhancement to Amer
Alhaggagi’s sentence. I therefore respectfully dissent.
I
The terrorism enhancement in the Sentencing Guidelines
applies to a “felony that involved, or was intended to
promote, a federal crime of terrorism.” U.S.S.G. § 3A1.4.
A federal crime of terrorism is defined in relevant part
in 18 U.S.C. § 2332b(g)(5) as an enumerated offense
“calculated to influence or affect the conduct of government
by intimidation or coercion.” Alhaggagi was convicted of
an enumerated offense, attempting to provide material
support to a terrorist organization. See 18 U.S.C.
§ 2332b(g)(5)(B)(i). Thus, the critical issue is whether he
committed that offense with the specific intent to achieve
one of the objectives stated in § 2332b(g)(5)(A). See United
States v. Awan, 607 F.3d 306, 317 (2d Cir. 2010).
The district court found that the government met its
burden of proving that intent by clear and convincing
evidence. We review the district court’s factual findings for
clear error and its application of the Guidelines to those facts
for abuse of discretion. United States v. George, 949 F.3d
1181, 1184 (9th Cir. 2020). Applying this highly deferential
standard of review, I cannot find that the district court erred.
II
A
Alhaggagi came to the attention of the FBI in July 2016
after posting in a private chatroom about acquiring weapons
26 UNITED STATES V. ALHAGGAGI
from an individual associated with ISIS. Over the next
week, Alhaggagi engaged in several conversations with an
FBI source. Alhaggagi initially urged the source to travel
with him to Syria to join ISIS, but eventually focused on
plans for terrorist attacks in the Bay Area. These plans
included detonating bombs at crowded locations, setting fire
to the Berkeley Hills, and distributing strychnine-laced
cocaine in San Francisco nightclubs. After the source
offered to introduce Alhaggagi to a purported ISIS
sympathizer who was in fact an undercover FBI agent,
Alhaggagi eagerly agreed to a meeting.
During his first meeting with the undercover agent,
Alhaggagi discussed the logistics of his planned attacks in
detail, expressing interest in the agent’s supposed bomb-
making experience. Alhaggagi showed the undercover agent
a fake credit card he claimed to have used to order strychnine
and a fake driver’s license he planned to use to rent a locker
to store materials in preparation for the attacks. As the two
explored Berkeley in the agent’s car, Alhaggagi identified
various locations he wanted to attack. Alhaggagi hoped that
his attacks would “make it to the point where every
American here . . . thinks twice or three times before he
leaves his home.”
About a week later, Alhaggagi met the undercover agent
to inspect a storage locker. Alhaggagi detailed the steps he
had taken to carry out the attacks since the previous meeting.
Alhaggagi claimed, for example, he had obtained cocaine,
identified AT&T Park as a possible attack location because
it was always crowded, and researched cell phone
detonators, car bombs, and backpack bombs because they
offered the best opportunity to escape. Alhaggagi
volunteered to collect supplies for the attacks and bring them
to the storage locker. Alhaggagi then marveled at the
UNITED STATES V. ALHAGGAGI 27
possibility that “the whole state would shut down,” claiming
that they would be responsible for “the biggest attack . . . in
America since Pearl Harbor.”
The undercover agent subsequently met with Alhaggagi
once again to visit the storage locker. On the drive there,
Alhaggagi described a plan for a coordinated attack in which
he would park a car bomb outside a San Francisco nightclub
and then place backpack bombs throughout the East Bay.
When the two arrived at the storage locker, the undercover
agent showed Alhaggagi several barrels containing mock
explosives; Alhaggagi responded with excitement.
Alhaggagi told the undercover agent that he wanted to match
the death toll of the September 11 attacks.
Alhaggagi broke off contact with the undercover agent
and the FBI source in mid-August 2016 after concluding that
the undercover agent worked for the government. But,
Alhaggagi continued to engage in illegal activity until his
arrest in November 2016. During a search of his residence,
the government discovered an SD card, which contained a
suicide note detailing attack plans virtually identical to those
previously shared. The government also discovered dozens
of encrypted messages in which Alhaggagi volunteered to
open social media and email accounts for members of ISIS.
On Alhaggagi’s electronic devices, the government found an
ISIS-produced bomb-making manual that had last been
accessed only a few days before Alhaggagi’s arrest, research
on strychnine, an ISIS propaganda magazine, and a video of
Alhaggagi speaking while recording a car burning on the
side of a highway. In the video, Alhaggagi issued a warning
to all Americans, claiming he had killed a police officer and
set fire to the officer’s vehicle as part of a soldier’s mission
on behalf of ISIS.
28 UNITED STATES V. ALHAGGAGI
B
After Alhaggagi pleaded guilty, the district court held a
two-day evidentiary sentencing hearing. Although
Alhaggagi claimed he never seriously intended to commit
acts of terrorism, the court found to the contrary, citing his
extensive preparations to carry out the planned attacks. The
court also observed that Alhaggagi’s statements to the
undercover officer and constant references to his violent
plans evidence “a total lack of empathy.” The district court
therefore applied the terrorism enhancement.
The district court later issued a written order explaining
its decision. The court incorporated its remarks from
sentencing about Alhaggagi’s “dangerousness and stark lack
of empathy for the people of his community, as well as his
understanding of ISIS.” Addressing the provision of social
media and email accounts (the offense conduct), the court
observed that Alhaggagi had admitted to creating these
accounts for members of ISIS who had approached him after
he posted pro-ISIS messages in an ISIS chatroom. The court
concluded that the offense conduct was consistent with
Alhaggagi’s support of ISIS, including its aims of
intimidating and retaliating against hostile governments.
III
Because the issue of intent is highly fact specific, we
must view the record cumulatively and with significant
deference to the district court. See, e.g., United States v.
Stafford, 782 F.3d 786, 792 (6th Cir. 2015); United States v.
Siddiqui, 699 F.3d 690, 709 & n.14 (2d Cir. 2012). “A
district court need not wait for the defendant to confess a
specific intent to influence the government. The court can
find this intent based on circumstantial evidence and
reasonable inferences from the facts presented.” United
UNITED STATES V. ALHAGGAGI 29
States v. Wright, 747 F.3d 399, 419 (6th Cir. 2014). The
cases therefore focus on the defendant’s support of the
terrorist organization and awareness that the offense conduct
works in furtherance of the organization’s goals. See, e.g.,
United States v. Ali, 799 F.3d 1008, 1031–32 (8th Cir. 2015);
Wright, 747 F.3d at 419; United States v. Hassan, 742 F.3d
104, 149–50 (4th Cir. 2014); United States v. El-Mezain,
664 F.3d 467, 571 (5th Cir. 2011); Awan, 607 F.3d at 317–
18.
There was ample evidence from which the district court
could conclude that Alhaggagi intended to support ISIS’s
terrorist activities. Alhaggagi initially tried to recruit the FBI
source to travel with him to fight on behalf of ISIS. After
abandoning that idea, Alhaggagi repeatedly shared a set of
plans for terrorist attacks in the Bay Area. Alhaggagi stated
that the planned attacks were designed to instill fear in
Americans, and cause drastic government reaction.
Alhaggagi also possessed a myriad of ISIS-related material,
including an ISIS-produced bomb-making manual and a
video in which he pledged to fight Americans on behalf of
ISIS. In light of the steps taken to carry out the planned
attacks, the district court did not clearly err in rejecting
Alhaggagi’s contention that he never seriously aligned
himself with ISIS. 1
1
Even assuming that Alhaggagi’s views were in some respect
inconsistent with ISIS’s ideology, that does not preclude a finding that
he supported the organization. See United States v. Van Haften, 881 F.3d
543, 544–45 (7th Cir. 2018); see also United States v. Young, 916 F.3d
368, 378–79 (4th Cir. 2019) (“Other circuits have recognized that
seemingly inconsistent belief in a terrorist group’s ideology does not
preclude a finding by a court that a defendant either supported that group
in a criminal fashion or was predisposed to do so.”).
30 UNITED STATES V. ALHAGGAGI
The district court also reasonably inferred that Alhaggagi
knew that the social media and email accounts would be used
to influence or affect the conduct of government. See Awan,
607 F.3d at 317–18. In the factual basis for his plea,
Alhaggagi explained that he was contacted by two ISIS
supporters to open those accounts after they saw him post
pro-ISIS messages in an ISIS chatroom. Alhaggagi admitted
that he believed that these individuals were ISIS supporters
and “understood that these accounts might be used to
disseminate statements sympathetic to ISIS.” Other
evidence revealed that Alhaggagi was familiar with ISIS
propaganda, as he possessed an issue of ISIS’s Dabiq
magazine, which was replete with praise for ISIS’s fight
against foreign governments. 2 Placed in context, the offense
conduct was consistent with a larger pattern of behavior in
which Alhaggagi supported the most violent aspects of
ISIS’s ideology. 3
I do not dispute that the district court could have reached
a contrary conclusion on this record, but our job is limited—
even in cases involving heightened burdens of proof—to
determining whether a reasonable trier of fact could have
reached the conclusions at issue. See United States v. Gasca-
Ruiz, 852 F.3d 1167, 1173 (9th Cir. 2017) (en banc).
2
Although Alhaggagi now argues that not all of ISIS’s social media
presence relates to its terrorist activity, none of the evidence he offers on
appeal was before the district court. See United States v. Geozos,
870 F.3d 890, 895 (9th Cir. 2017) (explaining that we are typically
limited to the evidence before the sentencing court).
3
Because there was sufficient evidence that Alhaggagi knew the
aims of ISIS included influencing and affecting the conduct of the
government by intimidation and coercion, I do not address the district
court’s conclusion that the offense conduct was also intended to retaliate
against government conduct. See 18 U.S.C. § 2332b(g)(5)(A).
UNITED STATES V. ALHAGGAGI 31
Because the district court’s conclusion was based on
substantial evidentiary support, I respectfully dissent. 4
4
The majority does not address Alhaggagi’s other challenges to his
sentence; I would reject them. The district court did not erroneously
impose an above Guidelines sentence on the non-material support
counts. The district court was required to conduct a combined offense
level calculation and then use that offense level to determine the
appropriate sentence on each count. See United States v. Moreno-
Hernandez, 48 F.3d 1112, 1117–18 (9th Cir. 1995). The sentence on the
material support count was not substantively unreasonable because the
record “reflects rational and meaningful consideration of the” sentencing
factors. United States v. Ressam, 679 F.3d 1069, 1089 (9th Cir. 2012)
(en banc) (cleaned up). While acknowledging the statements from
members of the community on Alhaggagi’s behalf, the district court
analyzed the circumstances of the offense and determined that the
sentence was necessary to protect the public. The district court was not
prohibited from considering uncharged conduct in arriving at a sentence.
See United States v. Fitch, 659 F.3d 788, 795, 797, 799 (9th Cir. 2011).