United States v. Alhaggagi

• Decision Date: 08 March 2019
• Docket Number: Case No. 17-cr-00387-CRB-1
• Parties: UNITED STATES of America, Plaintiff, v. Amer Sinan ALHAGGAGI, Defendant.
• Court: U.S. District Court — Northern District of California

372 F.Supp.3d 1005

UNITED STATES of America, Plaintiff,

v.Amer Sinan ALHAGGAGI, Defendant.

Case No. 17-cr-00387-CRB-1

United States District Court, N.D. California.

Signed March 8, 2019

S. Waqar Hasib, U.S. Attorney's Office Northern District of California, San Francisco, CA, for Plaintiff.

Mary Geraldine McNamara, Swanson & McNamara LLP, San Francisco, CA, for Defendant.

ORDER RE TERRORISM ENHANCEMENT

CHARLES R. BREYER, United States District JudgeIn 1994, Congress directed the Sentencing Commission to create a sentencing enhancement for any felony involving or intending to promote terrorism. See Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 120004, 108 Stat. 1796, 2022. The Sentencing Commission did so, and over time, that enhancement evolved into its current form. See James P. McLoughlin Jr., Deconstructing United States Sentencing Guidelines Section 3A1.4: Sentencing Failure in Cases of Financial Support for Foreign Terrorist Organizations, 28 Law & Inequality 51, 51–52 (2010) (explaining evolution of terrorism enhancement); U.S.S.G. § 3A1.4(a) (2018). When it applies, the enhancement dramatically increases the sentences imposed on individuals convicted of federal crimes of terrorism. See McLoughlin (describing enhancement as "draconian"). It does so in an unusual way—increasing not only the offense level, but also a defendant's criminal history category, automatically, to the highest possible number (VI). See U.S.S.G. § 3A1.4(a).

The terrorism enhancement provides that:

(a) If the offense is a felony that involved, or was intended to promote, a federal crime of terrorism, increase by 12 levels; but if the resulting offense level is less than level 32, increase to level 32.

(b) In each such case, the defendant's criminal history category from Chapter Four (Criminal History and Criminal Livelihood) shall be Category VI.

U.S.S.G. § 3A1.4(a). Application Note 1 to that Guideline explains that a "federal crime of terrorism" is defined in 18 U.S.C. § 2332b(g)(5), and that statute has a two-part definition. First, a federal crime of terrorism means 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). Second, the offense must be a specific violation of a statute listed in 18 U.S.C. § 2332b(g)(5)(B). Id.

Defendant Amer Sinan Alhaggagi, a 23-year old Berkeley High School graduate with "zero" criminal history, see Presentence Investigation Report ("PSR") (dkt. 84) at 3, 14, 99, pled guilty to all of the counts in the Indictment in this case, including Count 1, violation of 18 U.S.C. § 2339B(a)(1), Attempting to Provide Material Support of Resources to Designated Foreign Terrorist Organization. See Indictment (dkt. 33)¹ ; Change of Plea Hearing (dkt. 76); Plea Application (dkt. 77). In approaching sentencing, the parties took vastly divergent positions: while Defendant urged a sentence of 48 months, the government urged a sentence of 396 months. See D. Sentencing Memo. (dkt. 87) at 29; Gov. Sentencing Memo. (dkt. 90) at 61. Much of what drove the difference in the parties' proposed sentences was their views of the Defendant—whether he was merely "an immature prankster," D. Sentencing Memo. at 1, or "a violent threat to the community, whose imagination and appetite for evil knows no bounds," Gov. Reply (dkt. 101) at 1. And much of what drove the parties' disparate sentencing recommendations was their views of the terrorism enhancement.

Unsurprisingly, Defendant argued that the terrorism enhancement should not apply to his case, see D. Sentencing Memo. at 25; D. Reply (dkt. 100) at 13–21, while the government argued that it should, see Gov. Sentencing Memo. at 51–57; Gov. Reply at 7.² Because the list of violations in 18 U.S.C. § 2332b(g)(5)(B)(i) includes the material support statute to which Defendant pled guilty, see 18 U.S.C. § 2332b(g)(5)(B)(i) (including 18 U.S.C. § 2339B ); Change of Plea Hearing; Plea Application, the parties' disagreement centered on whether Defendant'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." See D. Sentencing Memo. at 25; D. Reply at 13–21; Gov. Sentencing Memo. at 51–57; Gov. Reply at 7; 18 U.S.C. § 2332b(g)(5)(A). The parties focused more on the first, "influence of affect," prong of 18 U.S.C. § 2332b(g)(5)(A), and so the Court requested and received additional briefing on, among other things, the second, "retaliation," prong of that section. See Transcript of 12/17/2018 (dkt. 116) at 4–5; Gov. Supp. Memo. (dkt. 123) at 2–7; D. Supp. Memo. (dkt. 124) at 5–11.

Sentencing in this case took place on February 26, 2019. See Minutes of 2/26/2019 (dkt. 133). In calculating the appropriate guidelines range, the Court held that the terrorism enhancement applied. That holding resulted in an offense level of 36 and a criminal history category of VI, making Defendant's guideline range 324 to 405 months. The Court then departed downward, concluding that Defendant's criminal history should be I, rather than VI, pursuant to U.S.S.G. § 4A1.3(b)(1) (over-representation of the seriousness of Defendant's criminal history). That resulted in a sentencing guidelines range of 188 to 235 months. The Court sentenced Defendant to a total sentence of 188 months on Counts 1, 2, 3 and 4 of the Indictment. See Minutes of 2/26/2019. At the sentencing hearing, the Court provided its reasoning for the 188 month sentence, and the Court will not repeat those remarks here. The Court writes now, as it indicated that it would, to explain both its application of the terrorism enhancement, and its decision to depart from the enhancement's automatic criminal history category of VI.

A. Application of the Enhancement

Having carefully reviewed the parties' arguments, the facts of this case, and the controlling law, the Court concludes (1) that Defendant's material support offense was "calculated to influence or affect the conduct of government by intimidation or coercion," and, in the alternative, (2) that it was calculated "to retaliate against government conduct." See 18 U.S.C. § 2332b(g)(5)(A).

1. "Influence or Affect"

The Indictment charged Defendant in Count 1 with "opening social media accounts understanding and intending that such accounts were to be used by, and for the benefit and promotion of, ISIS, and personnel, in the form of himself, to a foreign terrorist organization, namely, ISIS, knowing that ISIS was a designated foreign terrorist organization and that ISIS engages and has engaged in terrorist activity and terrorism...." Indictment ¶ 6. In pleading guilty to that Count, Defendant admitted that he participated in several Arabic and English language chat rooms on Telegram. Plea Application (Factual Basis) at 2. One of those chats "was a pro-ISIS chat entitled (in Arabic) ‘Allah is with those who endure.’ " Id. Defendant "re-posted pro-ISIS messages that [he] had found on other Telegram chats to this chat." Id. He was then approached by two individuals, whom he believed were (and apparently actually were) supporters of ISIS. Id. They asked him to set up social media accounts for ISIS. Id.

On October 31, 2016, Defendant had a one-on-one conversation with the first individual, and told that individual that he was "ready to create accounts." Id. The individual asked him to create and send two accounts. Id. Defendant sent the individual usernames and passwords for two Facebook accounts and two Gmail accounts. Id. The individual asked Defendant if Defendant "supported the Caliphate" and Defendant admits, "I told him that I did." Id. On November 14, 2016, a second individual approached Defendant with a private message on Telegram, telling Defendant that he had been referred by an individual with the username "Supporter of the Caliphate." Id. The second individual asked Defendant to open Twitter accounts, which Defendant understood "might be used to disseminate statements sympathetic to ISIS using the Twitter app." Id. Defendant sent him usernames and passwords for three Gmail accounts and usernames for three Twitter accounts. Id. Defendant later sent the second individual usernames and passwords for two more Gmail accounts and two more Twitter accounts. Id. at 2–3. He agrees that opening those social media accounts for individuals whom he believed were ISIS sympathizers constituted the provision of a "service" within the meaning of 18 U.S.C. § 2339A(b)(1). Id.

The government notes that the chatroom Defendant admitted to participating in, "Allah is with those who endure," "is replete with posts from other users declaring hatred and violence towards the United States, the Syrian government, the Iraqi government and a host of other enemies of the Islamic States, and seeking to affect [ ] the conduct of those governments." Gov. Sentencing Memo. at 54–55. It provides two examples of posts in the chatroom. Id. One is from an individual named Migration Commando, who posted on November 11, 2016: "A letter to the brothers: To the owners of the invasion channels, we want Tweets in English on American hashtags that are against or pro-Trump.... Let us kindle strife and chaos in their country.... Let us turn the next week into hell on America.... You never know, o supporter, a Tweet from you could cause a divine conquest for your State." Id. A second is from an individual named Publisher, who posted on November 13, 2016: "Brothers ... Open accounts in Twitter ... And invade the American tags.... Spread disorder! And intensify the spark[.] Allah bless you!" Id. at 55.

Defendant responds that there is no evidence that he ever saw these particular posts, and that they could not have inspired him because he had already opened accounts for the first ISIS sympathizer on October 31, before these posts appeared on November 11 and 13. D....