United States v. Chandia

• Decision Date: 06 April 2012
• Docket Number: No. 11–4323.,11–4323.
• Citation: 675 F.3d 329
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Ali Asad CHANDIA, a/k/a Abu Qatada, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

675 F.3d 329

UNITED STATES of America, Plaintiff–Appellee,

v.Ali Asad CHANDIA, a/k/a Abu Qatada, Defendant–Appellant.

No. 11–4323.

United States Court of Appeals, Fourth Circuit.

Argued: Jan. 24, 2012.Decided: April 6, 2012.

ARGUED: Marvin David Miller, Alexandria, Virginia, for Appellant. John T. Gibbs, United States Department of Justice, Washington, D.C., for Appellee. ON BRIEF: Neil H. MacBride, United States Attorney, Alexandria, Virginia, for Appellee.

Before NIEMEYER, MOTZ, and KING, Circuit Judges.

Affirmed by published opinion. Judge KING wrote the opinion, in which Judge NIEMEYER and Judge MOTZ joined.

OPINION

KING, Circuit Judge:

This proceeding is Ali Asad Chandia's latest appeal following his convictions in the Eastern District of Virginia for providing, and conspiring to provide, material support to terrorists and a foreign terrorist organization. See 18 U.S.C. §§ 2339A, 2339B. For the third time, Chandia challenges the district court's application of the sentencing enhancement for a “federal crime of terrorism” under Guidelines section 3A1.4 (the “terrorism enhancement”) and his resultant sentence of 180 months in prison.

In his first appeal, we affirmed Chandia's convictions and remanded for a fresh analysis of whether the terrorism enhancement applies. See United States v. Chandia, 514 F.3d 365 (4th Cir.2008) (“ Chandia I ”). Specifically, our Chandia I decision directed the sentencing court to determine whether Chandia had acted with the specific intent required by the terrorism enhancement. Id. at 376 (recognizing that, to satisfy the intent requirement, “the underlying felony [must have been] calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct” (internal quotation marks omitted)). “To make this determination,” Chandia I explained, “the court must resolve any factual disputes that it deems relevant to application of the enhancement.” Id. We specified that, “[i]f the court finds that Chandia had the requisite intent, it should identify the evidence in the record that supports its determination.” Id.

On remand, the district court again applied the terrorism enhancement and resentenced Chandia to 180 months in prison—but without fully resolving the factual disputes or sufficiently explaining how its findings related to Chandia's intent. Hence, in Chandia's second appeal, we again vacated his sentence and remanded for resentencing. See United States v. Chandia, 395 Fed.Appx. 53 (4th Cir.2010) (“ Chandia II ”). Our Chandia II decision reiterated our directive that the sentencing court “make clear that it has made independent findings” and, “[i]f it again finds application of the enhancement warranted, ... explain how specific facts indicate that [Chandia's] motive in providing material support was to influence or affect government conduct by intimidation or coercion, or to retaliate against government conduct.” Id. at 60.

Having carefully reviewed and assessed the sentencing proceedings prompting this third appeal, we are satisfied that the court has complied with our mandate. We therefore reject Chandia's contention that the court erred in applying the terrorism enhancement, plus his other assertions of procedural error, and we affirm his 180–month sentence.

I.

A.

Chandia's convictions were the product of a government investigation of a terrorist support network active in the suburbs of Washington, D.C. Among others investigated, Chandia, a Pakistani national, attended the Dar al-Arqam Islamic Center in Falls Church, Virginia. A lecturer at the Center, Ali Timimi, advocated violent jihad against the enemies of Islam. The FBI believed that several members of the Center were conducting jihad training with paintball guns. The FBI also believed that some of the suspects, including Chandia, had travelled to Pakistan to attend military training camps operated by Lashkar–e–Taiba (“LET”), a designated foreign terrorist organization. In May 2003, the FBI executed warrants to search six residences, including Chandia's. The search of Chandia's residence and subsequent search of his vehicle “uncovered a significant amount of information ultimately introduced at trial.” See Chandia I, 514 F.3d at 369–70.

In June 2003, eleven defendants targeted in the FBI searches—not including Chandia—were indicted for various offenses relating to their participation in the paintball training exercises. Of the eleven indicted, six “ultimately pled guilty, two were acquitted, and three were convicted after a bench trial.” Chandia I, 514 F.3d at 370. Because Chandia did not participate in the paintball training, he was indicted separately, in September 2005, on four counts: “a conspiracy and a substantive count of providing material support to terrorists, in violation of 18 U.S.C. § 2339A, and a conspiracy and a substantive count of providing material support to a foreign terrorist organization, in violation of 18 U.S.C. § 2339B.” Id.¹ At Chandia's trial, the government advanced “two basic sets of allegations against [him]”: (1) “Chandia, at the urging of Ali Timimi, traveled to Pakistan in November 2001 to attend an LET training camp”; and (2) “between February 2002 and April 2003, Chandia provided material support to Mohammad Ajmal Khan ..., an LET official whom Chandia allegedly met while in Pakistan.” Id. More specifically, the prosecution maintained that Chandia provided material support during Khan's trips to the United States “to secure high-tech equipment and other materials for LET” by “picking up ... Khan at the airport, providing him access to a computer and e-mail at Chandia's residence, and assisting [Khan] in shipping paintballs to Pakistan for LET use in military training operations.” Id.

By its verdict of June 6, 2006, the jury acquitted Chandia of the § 2339A substantive count of providing material support to terrorists.² The jury convicted him, however, of the § 2339A conspiracy count plus the § 2339B substantive and conspiracy counts of providing material support to a foreign terrorist organization (collectively, the “material support convictions”).

B.

Prior to Chandia's first sentencing hearing, the probation officer prepared the presentence report (the “PSR”), recommending imposition of the terrorism enhancement.³ Absent the enhancement, the advisory Guidelines range for Chandia, who had no criminal history, would have been 63 to 78 months in prison. See Chandia I, 514 F.3d at 370. Application of the terrorism enhancement, however, elevated Chandia's advisory Guidelines range to 360 months to life. Id. Although the PSR accurately reflected that the material support convictions satisfied the first element required for the enhancement—conviction of an enumerated felony—it provided no explanation concerning the second element—specific intent. Rather, the PSR merely concluded that the material support convictions “meet the requirements” for the terrorism enhancement. J.A. 895.⁴

Chandia objected to the PSR, disputing several of its factual assertions and observing that it failed to adequately address the application of the terrorism enhancement.⁵ During the first sentencing hearing, conducted in August 2006, the district court “did not explicitly state that the terrorism enhancement applied,” but utilized the enhancement implicitly by determining that the Guidelines range was “properly assessed at ... 360 months to life.” See Chandia I, 514 F.3d at 371 (internal quotation marks omitted). The court nevertheless varied downward to a below-Guidelines sentence of 180 months in prison, the statutory maximum for a single material support conviction.

In Chandia I, we observed that the district court had not resolved Chandia's factual objections to the PSR, as Federal Rule of Criminal Procedure 32(i)(3)(B) required. See 514 F.3d at 376. Moreover, we recognized that the PSR failed to provide an explanation for application of the terrorism enhancement, and that the court made no factual findings relating to the specific intent element. Id. We rejected the notion, implicit in those errors, that the terrorism enhancement “automatically applies to a material support conviction.” Id. Rather, we emphasized that, unlike cases in which the underlying conviction involves violent terrorist acts, the facts giving rise to Chandia's convictions did not alone yield “an automatic inference of the required intent.” Id. Thus, we instructed the court to “resolve any factual disputes that it deems relevant to the application of the enhancement” under Rule 32(i)(3)(B). Id. If the court then concluded that the terrorism enhancement applied, it was to “identify the evidence in the record that supports its determination.” Id.

C.

No modifications were made to the PSR after the first remand, and Chandia did not file any new objections. At his second sentencing hearing in April 2008, Chandia nevertheless reminded the district court of his previously filed objections and contended that the terrorism enhancement was unwarranted. The court disagreed, concluding that the enhancement applied regardless of whether the government had to prove specific intent by a preponderance or by clear and convincing evidence. In deciding that the enhancement applied, “the court relied upon the following facts”:

Chandia [visited websites] of LET; he spent time in Pakistan and visited LET offices in Pakistan; he met with [Mohammad] Khan, a “known leader of the LET”; he picked Khan up from the airport and his phone number served as Khan's contact; his computer was used to order Kevlar supplies from Canada; he took Khan to the airport to “make arrangements to buy other goods and military equipment”; and he helped ship paintballs to Pakistan.

Chandia II, 395 Fed.Appx. at 57. “In sum, the court found that Chandia ‘knew the purpose of the LET organization, clearly he knew it,’ and thus the terrorism enhancement applied.” Id.

Again, however, the sentencing court failed to...