U.S. v. Mandhai

• Decision Date: 02 July 2004
• Docket Number: No. 02-15933.,02-15933.
• Citation: 375 F.3d 1243
• Parties: UNITED STATES of America, Plaintiff-Appellee Cross-Appellant, v. Imran MANDHAI, Defendant-Appellant Cross-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

375 F.3d 1243

UNITED STATES of America, Plaintiff-Appellee Cross-Appellant, v. Imran MANDHAI, Defendant-Appellant Cross-Appellee.

No. 02-15933.

United States Court of Appeals, Eleventh Circuit.

July 2, 2004.

COPYRIGHT MATERIAL OMITTED

Leonard P. Fenn (Court-Appointed), DeFabio & Fenn, P.A., Coral Gables, FL, for Mandhai.

Dawn Bowen, Anne R. Schultz, U.S. Atty., Miami, FL, for U.S.

Appeals from the United States District Court for the Southern District of Florida.

Before BIRCH, KRAVITCH and FARRIS^*, Circuit Judges.

FARRIS, Circuit Judge:

Imran Mandhai appeals the 140-month sentence imposed following his guilty plea to conspiring to destroy buildings affecting interstate commerce by means of fire or explosives. Mandhai contends that the district court erred in imposing the terrorism enhancement of U.S.S.G. § 3A1.4 (2001) and the role enhancement of U.S.S.G. § 3B1.1(c) (2001). The government cross appeals the district court's decision to grant a three-level downward departure based on Mandhai's commission of an inchoate crime.

Mandhai's felony involved or was intended to promote a federal crime of terrorism as defined in 18 U.S.C. § 2332b(g)(5)(A) and (B). There was evidence that he was an organizer. The reason the district court gave for its downward departure was erroneous although the record reflects that this case falls outside of the Guidelines "heartland." We therefore affirm the enhancement but reverse and remand for resentencing with instruction to consider other reasons for a downward departure. In so doing, we do not ignore the fact that reasons were advanced and rejected in the earlier sentencing proceeding. But since the Court granted a downward departure, there was no reason or opportunity to advance other grounds that are available. Reasonable minds may differ over whether to consider the trial court's speculation on what might have happened to be a finding of fact. While what might have happened under different circumstances is certainly relevant in the sentencing context, it is rarely the driving force.

Background

In November 2000, 18-year-old Imran Manda met undercover FBI operative Howard Gilbert, who was posing as "Saif Allah," a disgruntled ex-Marine who had converted to Islam and was interested in waging jihad against the United States. After hearing Gilbert speak about his desire to train people for jihad, Mandhai began training with Gilbert. Gilbert suggested that an effective way to harm the U.S. government was to bomb electrical substations. Gilbert was terminated as an FBI source in early 2001. However, despite admonishment from the FBI to cease his covert activities, Gilbert continued to meet and train with Mandhai through late March 2001.

In early March 2001, Mandhai was introduced to "Mohammed," another FBI cooperating individual who was posing as a terrorist with ties to Osama Bin Laden. Mohammed told Mandhai that he was planning to establish a local center for training Muslims to wage jihad in Florida. The next day, Mandhai asked Mohammed to provide financial support to his group, which was planning to bomb electrical transformers in Florida in retaliation for the U.S. government's support of Israel and other countries that oppress Muslims. Mandhai stated that he planned to contact the government after the attack and demand that it cease supporting countries that oppose Muslims. Mohammed agreed to help Mandhai.

On March 13, Mandhai and Gilbert took Mohammed to view two electrical substations in Florida. On the drive there, Mandhai claimed that he was in charge of the operation. After Mohammed indicated that he had ties with Bin Laden, Mandhai requested money and stated that he was concerned that Gilbert might be working for the FBI.

On March 16, Mandhai again met with Mohammed and Gilbert. During the encounter, Mandhai backtracked on his earlier claim that he was the leader of the bombing plot. Instead, Mandhai stated that the idea to bomb transformers had originated with Gilbert. He stated that he was in charge of recruiting and operations. The next day, Mandhai indicated an unwillingness to proceed with the bombing plot.

After an apparent change of heart on March 23, Mandhai requested Mohammed's help in freeing Hakki Aksoy, an associate who had been arrested on visa fraud and firearm charges, stating that Aksoy could be of assistance in their bombing plot. On March 27, Mandhai told Mohammed that he wanted to recruit 25 to 30 people to train for Jihad and asked Mohammed to acquire firearms.

On April 4, Mohammed showed Mandhai a collection of weapons and explosive that he was willing to provide. Mandhai stated that he was suspicious of Mohammed and that he wanted out of the plot.

At a meeting held on April 19, 2002, Mandhai spoke to Mohammed and eight other individuals, including Shueyb Mossa Jokhan, in an attempt to recruit the men for jihad training. Jokhan joined the group and two days later, Mandhai, Jokhan, and Mohammed attended a gun show. There, Jokhan tried to buy a gun but was refused because his credit card was declined. On April 23, Mandhai again met with Mohammed and expressed hesitation about the bombing plot. However, after speaking with Mohammed, Mandhai stated that he was ready to proceed.

On April 24, Mandhai and Mohammed briefed Jokhan of the plan to bomb transformers. But three days later, Mandhai again wavered, expressing distrust of Mohammed. However, he agreed to proceed with the bombing plot once Aksoy was released from jail. Following this, Mohammed challenged Mandhai, questioning the seriousness of his conviction. In response, Mandhai requested bombs from Mohammed so he could complete the plan.

In May 2001, FBI agents interviewed Mandhai, who 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. A year after his interrogation, Mandhai was charged with conspiring to damage and destroy electrical power stations or a National Guard Armory by means of fire and explosives under 18 U.S.C. § 844(i), (n) (Count 1), and inducing Jokhan to damage the property of an energy facility in violation of 18 U.S.C. § 1366 (Count 2). He pled guilty to Count 1 in exchange for dismissal of Count 2, and a government agreement to recommend a three-level downward adjustment for acceptance of responsibility and a sentence at the low end of the standard range.

At sentencing, the district court determined that Mandhai had an offense level of 28 and a criminal history category of VI. In reaching these figures, the court ruled that the terrorism enhancement of U.S.S.G. § 3A1.4 (2001) and the role enhancement of U.S.S.G. § 3B1.1(c) (2001) applied, which, combined with the three level reduction for acceptance of responsibility, brought Mandhai's offense level to 31. Over the government's objection, the district court then granted a three-level downward departure because Mandhai committed an inchoate crime, which, but for the terrorism enhancement, would have allowed him to benefit from the offense level reduction for uncompleted crimes under U.S.S.G. § 2X1.1(b)(2) (2001). The court then imposed 140 months, the low end of the adjusted standard range.

Discussion

1. Terrorism and Role Enhancements.

A challenge to the application of the Sentencing Guidelines is a mixed question of law and fact. The district court's findings of fact are reviewed for clear error while its application of the Guidelines to those facts is reviewed de novo. United States v. Jamieson, 202 F.3d 1293, 1295 (11th Cir.2000). "Interpretation of the Sentencing Guidelines is similar to statutory interpretation and is subject to de novo review on appeal." United States v. Goolsby, 908 F.2d 861, 863 (11th Cir.1990) (citations omitted).

If the crime of conviction "is a felony that involved, or was intended to promote, a federal crime of terrorism," U.S.S.G. § 3A1.4(a) and (b) require the court to increase the defendant's offense level by 12-levels or to 32, whichever is greater, and to increase the criminal history to Category VI. A "federal crime of terrorism" is defined as any offense that: (1) "is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct"; and, (2) is one of the offenses listed in 18 U.S.C. § 2332b(g)(5)(B). 18 U.S.C. § 2332b(g)(5)(A).

The object of Mandhai's conspiracy — destroying buildings used in interstate commerce by fire or explosives under 18 U.S.C. § 844(i) — is specifically listed as a federal terrorism crime in 18 U.S.C. § 2332b(g)(5)(B). But conspiracy to do so under 18 U.S.C. § 844(n) is not. In light of this, Mandhai argues, he did not commit a federal crime of terrorism to which the enhancement applies.

We reject the argument. We utilize traditional rules of statutory construction to interpret a guideline. United States v. Fuentes-Rivera, 323 F.3d 869, 872 (11th Cir.2003). We must interpret a guideline "so that no words shall be discarded as being meaningless, redundant, or mere surplusage." United States v. Canals-Jimenez, 943 F.2d 1284, 1287 (11th Cir.1991). A guideline's meaning is derived first from its plain language and, absent ambiguity, no additional inquiry is necessary. See CBS Inc. v. PrimeTime, 24 Joint Venture, 245 F.3d 1217, 1222 (11th Cir.2001).

Had the Guideline drafters intended that § 3A1.4 apply only where the defendant is convicted of a crime listed in 18 U.S.C. § 2332b(g)(5)(B), they would have included such limiting language. Instead, they unambiguously cast a broader net by applying the enhancement to any offense that "involved" or was "intended to promote" a terrorism crime. The term "involve" means to "include." United States v. Graham, 275 F.3d 490, 516 (6th Cir. 2001). The phrase "or intended to promote" in turn, must have additional meaning. See United States v. Drury, 344 F.3d 1089, 1099 (11th Cir.2003)(statutes must be read so that no words are discarded as meaningless,...