U.S. v. Mohamed, No. 05-50253.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Betty B. Fletcher
• Citation: 459 F.3d 979
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Zameer Nooralla MOHAMED, aka Al, aka Samier Hussain, aka Zameer Mohamed, Defendant-Appellant.
• Docket Number: No. 05-50253.
• Decision Date: 11 August 2006

459 F.3d 979 UNITED STATES of America, Plaintiff-Appellee,
v.
Zameer Nooralla MOHAMED, aka Al, aka Samier Hussain, aka Zameer Mohamed, Defendant-Appellant. No. 05-50253. United States Court of Appeals, Ninth Circuit. Argued and Submitted February 17, 2006. Filed August 11, 2006.

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Michael Tanaka, Deputy Federal Public Defender, Los Angeles, CA, for the defendant-appellant.

Erik M. Silber and Craig H. Missakian, Assistant United States Attorneys, Los Angeles, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California; Percy Anderson, District Judge, Presiding. D.C. No. CR-04-00609-PA.

Before BETTY B. FLETCHER, A. WALLACE TASHIMA, and CONSUELO M. CALLAHAN, Circuit Judges.

BETTY B. FLETCHER, Circuit Judge.

On April 23, 2004, Zameer Nooralla Mohamed telephoned the Department of Homeland Security from a hotel room in Calgary, Canada, and made a phony bomb threat, claiming that four of his acquaintances were terrorists involved in a plot to bomb several shopping malls near a federal building in Los Angeles, California. After expending considerable resources to protect against the threat and identify its perpetrator, law enforcement officials located and arrested Mohamed. A district court sentenced him to a prison term of five years for violating 18 U.S.C. § 844(e), which prohibits the use of a telephone to "make[] any threat" or "maliciously convey[] false information knowing the same to be false" regarding an attempt to "destroy any building, vehicle, or other real or personal property by means of fire or an explosive." Mohamed now appeals his sentence. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.

I

Mohamed is a native and citizen of Tanzania. He entered the United States on a tourist visa in 1999. He overstayed his visa and spent four years living and working in Los Angeles, Houston, and Detroit. During this time, he became the subject of an FBI investigation as the result of alleged criminal activities including theft and fraud. This investigation produced evidence connecting him to the fraudulent use of identification cards in Texas and California, the fraudulent use of social security numbers to open bank accounts, and the theft of approximately $13,000 from various individuals, including a former roommate and a former employer. Mohamed eventually left the United States in January of 2003 and crossed the border into Canada, where he worked first in Montreal as a telemarketer and then in Toronto as a customer service agent for the Royal Bank of Canada.

In April of 2004, Mohamed used a telephone calling card to place a call to the Department of Homeland Security. He provided a false name and stated that he was a former member of an al Qaeda cell.

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He reported that a terrorist group with ties to India and Pakistan was planning an attack on the United States. He named four purported attackers — all acquaintances of his — and said they would be traveling to the United States from Canada on fake passports. He stated that the targets of the attack were several shopping malls near the UCLA campus, close to a federal building in the Westwood area of Los Angeles. Mohamed indicated that the attacks would take place within one week, on April 29, 2004. He claimed he was providing this information to improve his chances of becoming a United States citizen.

In fact, Mohamed knew that the information was false and that there was no planned attack. He later admitted that the hoax was an attempt to impose retribution on the four individuals he named, including a colleague at Royal Bank who owed him money. He explained that he chose Los Angeles as a target because he was familiar with that location from time spent in Los Angeles. He admitted that neither he nor any of the four individuals he named had ever been a member of a terrorist organization. He further confessed that he got the idea for the hoax when, following a confrontation with his colleague, he spotted a government poster with a terrorist-tip hotline at a bus station in Calgary. Although he contends that he had no intention of committing any act of terrorism, he admits that he wanted the threat to be taken seriously because he was angry at his acquaintances and wanted them to "go to jail."

Law enforcement agencies took the threat seriously, indeed, and devoted substantial resources to investigating and preventing the purported attack. The organizations that investigated the threat and provided additional security on the day of the threatened attack included: the FBI Joint Terrorism Task Force, four divisions of the Los Angeles Police Department (LAPD), the Los Angeles County Sheriff's Department, the Los Angeles City Fire Department, the California Highway Patrol, the United States Border Patrol, and the Royal Canadian Mounted Police. Officials detained and questioned Mohamed's acquaintances in connection with the threatened terrorist strike. In addition, the hoax disrupted business in the targeted areas. Various media outlets broadcast news of the threat, and the LAPD distributed flyers to warn local businesses about the purported impending attack. Business owners at or near the targeted shopping mall reported that the hoax "completely shut down business," with some estimating that the bomb threat reduced sales by as much as sixty-five or eighty-five percent and that it reduced foot traffic in the affected shopping mall by thousands of people.

By tracing the origin of the calling card used to place the threat, as well as records from the hotel from which the call was made, the government identified Mohamed as the perpetrator of the hoax. Border patrol agents ultimately located him on a farm near Scobey, Montana, where he had just reentered the country. The government filed a one-count indictment against Mohamed, alleging a violation of 18 U.S.C. § 844(e), and subsequently amended the indictment to include an allegation that "the offense resulted in a substantial disruption of public, governmental, or business functions or services." Mohamed pled guilty.

The presentence investigation report (PSR) recommended a sentencing range of twelve to eighteen months. First, the PSR started with a base offense level of twelve for the violation of 18 U.S.C. § 844(e). See U.S.S.G. § 2A6.1(a). Next, it added a four-level increase because Mohamed's hoax resulted in "a substantial

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disruption of public, governmental, or business functions or services." Id. § 2A6.1(b)(4). It then subtracted three levels for Mohammed's acceptance of responsibility. Id. §§ 3E1.1(a), (b). These calculations produced a total offense level of thirteen, which, combined with Mohamed's Category I criminal history, yielded a sentencing range under the advisory guidelines of twelve to eighteen months.

In response to the PSR, the government urged the district court to award only two points, rather than three, for acceptance of responsibility. Further, the government sought an upward departure of twelve levels because of the unusually disruptive nature of the hoax. Taking these two calculations into account, the government recommended a sentence of seventy-eight months, at the high end of the applicable guidelines range. Mohamed argued that the PSR's suggested range already included an enhancement for the disruption caused by the hoax and that any additional enhancement based on that aspect of the crime would be inappropriate. He requested the judge to impose a sentence within the PSR's suggested range.

At sentencing, the district court found that the advisory guideline range of twelve to eighteen months did not reflect the seriousness of Mohamed's crime. The judge stated that an enhanced sentence was necessary "because of the significant disruption of governmental functions caused by the Defendant's conduct, the seriousness of the conduct in light of the events of the September 11th [attacks], the importance of deterring others from such reckless behavior, the harm caused to, literally, hundreds, if not thousands, of people, innocent people in this city, and the harm caused ... to the four individuals targeted by this Defendant." Accordingly, the district court applied an eight-level "upward adjustment." This adjustment brought the total offense level to twenty-one, which produced an advisory guidelines range of thirty-seven to forty-six months.

Even with the eight-level upward adjustment, however, the district court still felt that "the circumstances of this case warrant a period of incarceration greater than that contemplated by the advisory guidelines." The district court recited the sentencing considerations set forth in 18 U.S.C. § 3553(a) and stated that it had considered the application of these sentencing goals to the facts of Mohamed's case. In explaining its decision to impose a sentence beyond the guidelines range, the district court pointed to the defendant's personal history and to the extraordinary impact of the threat. The court noted the defendant's past conduct, which included "use of aliases," "money that's turned up missing," and "a history of engaging in little penny-ante [criminal] conduct." The district court concluded that Mohamed was "nothing more than a small-time thief and con man" and that it was necessary to impose a "sufficiently punitive custodial sentence . . . to afford protection to the public." The court also stated that the sentence would have been even higher "but for your lack of criminal history." Finally, the court noted "the heightened gravity and seriousness of this offense in the context of September 11th, and the importance of deterring others from such reckless conduct." Again, it noted that the threat "scared people, disrupted local businesses as well as local and federal law enforcement ... [and] targeted four innocent people." Ultimately, the court decided "that a 60-month sentence...