United States v. Dais
| Decision Date | 27 August 2020 |
| Docket Number | Case No. 18-CR-143 |
| Citation | 482 F.Supp.3d 800 |
| Court | U.S. District Court — Eastern District of Wisconsin |
| Parties | UNITED STATES of America, Plaintiff, v. Waheba DAIS, Defendant. |
Gregory J. Haanstad, United States Department of Justice (ED-WI) Office of the U.S. Attorney, Milwaukee, WI, for Plaintiff.
John W. Campion, Federal Defender Services of Wisconsin Inc., Milwaukee, WI, for Defendant.
STATEMENT OF REASONS MEMORANDUM
Defendant Waheba Dais pleaded guilty to attempting to provide material support or resources to a foreign terrorist organization, contrary to 18 U.S.C. § 2339B(a)(1). The case was unlike other material support cases prosecuted in this district and cited by the parties in their submissions, which involved defendants who either provided/solicited funds for terrorist groups or who traveled seeking to offer themselves up as supporters of the terrorist group. This defendant engaged in an array of online activity, which included providing advice on how to make explosive devices and poison, prepare for an attack, and select targets. Fortunately, she was discovered before anyone she inspired and assisted actually completed an attack; nevertheless, her actions did place the community in danger.
Stressing the seriousness of the offense, the government sought a sentence of 20 years in prison, the statutory maximum, followed by life on supervised release. Citing her mental health issues and history of abuse, defendant asked for a sentence of time served (a little over two years). Determining an appropriate sentence was challenging, given the unhelpfulness of the sentencing guidelines in terrorism cases and the absence of comparable cases. For the reasons that follow and those stated on the record at the sentencing hearing, I imposed a sentence of 90 months in prison followed by three years of supervised release.
When sentencing a defendant, the district court begins by calculating the advisory guideline range, and then it applies the sentencing factors set out in 18 U.S.C. § 3553(a) to arrive at an appropriate sentence. United States v. Patel, 921 F.3d 663, 670 (7th Cir. 2019). "After United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), a sentencing judge has the discretion to disagree with a particular provision of the guidelines and to impose a non-guidelines sentence that, in his or her judgment, is more consistent with the statutory sentencing factors set out in section 3553(a)." United States v. Griffith, 913 F.3d 683, 688 (7th Cir. 2019).
The base offense level for a violation of 18 U.S.C. § 2339B is 26. U.S.S.G. § 2M5.3(a). The guideline further provides for a 2-level enhancement if the offense involved the provision of dangerous weapons or funds used to purchase such weapons. U.S.S.G. § 2M5.3(b). Finally, the guideline provides cross references to the murder guidelines if the offense resulted in death, § 2M5.3(c)(1), the attempted murder guideline if the offense was tantamount to that offense, § 2M5.3(c)(2), and the weapons of mass destruction guideline if the offense involved the provision of such materials, § 2M5.3(c)(3). The guideline thus links the offense level to the nature of the assistance provided and the extent of any harm caused by the offense.
However, U.S.S.G. § 3A1.4, the "terrorism" guideline, trumps this carefully calibrated approach. Under § 3A1.4(a), if the offense involved a federal crime of terrorism, the offense level is automatically increased by 12 levels (and if the resulting level is less than 32, increased to level 32). Further, under § 3A1.4(b), in each such case, the defendant's criminal history category is deemed to be category VI. This means that a defendant in a § 2339B case will usually face a range well in excess of the statutory maximum of 20 years, regardless of what he specifically did and regardless of whether he has no prior record or a terrible one. This case was an example: although defendant's offense involved none of the aggravating circumstances set forth in U.S.S.G. § 2M5.3, and despite the fact that she had no prior criminal history, she ended up with an advisory guideline range of 292-365 months, which defaulted to 240 months under U.S.S.G. § 5G1.1(a).
In this sense, U.S.S.G. § 3A1.4 resembles the child pornography guideline, U.S.S.G. § 2G2.2, which has been roundly criticized by the courts, in that it recommends sentences near or above the statutory maximum even in mine run cases. This is contrary to the purposes of sentencing in 18 U.S.C. § 3553(a), including the notion that sentences should be individualized and proportionate, and that we should distinguish between the worst offenders and those who are less dangerous.
See United States v. Dorvee, 616 F.3d 174, 186-87 (2d Cir. 2010).
It is also contrary to the theory behind the guidelines: that the offense level will reflect the seriousness of the offense, increasing incrementally based on specific aggravating facts, and the criminal history category will reflect the risk to the public, based on the defendant's prior record. As Judge Breyer has noted, the terrorism enhancement "takes a wrecking ball" to this construct. See United States v. Alhaggagi, 372 F. Supp. 3d 1005, 1013 (N.D. Cal. 2019). Terrorism cases are undoubtedly serious, but automatically increasing a defendant's criminal history to reflect the seriousness of the charged offense seems misguided. Id. at 1014. Further, as Judge Kane has noted, material support cases can involve a wide range of conduct, yet § 3A1.4 frequently results in guideline ranges that equal or exceed the maximum statutory sentence, without differentiating between various levels of conduct. See United States v. Jumaev, No. 12-cr-00033, 2018 WL 3490886, at *10-11, 2018 U.S. Dist. LEXIS 119916, at *28-29 (D. Colo. July 18, 2018). Finally, as both Judges have noted, this guideline was enacted pursuant to a congressional directive and absent empirical evidence. See Alhaggagi, 372 F. Supp. 3d at 1014-15. Such guidelines do not exemplify the Sentencing Commission's exercise of its characteristic institutional role, see Kimbrough v. United States, 552 U.S. 85, 109, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), and are generally entitled to less respect. See United States v. Reyes-Hernandez, 624 F.3d 405, 418 (7th Cir. 2010).
Accordingly, the guidelines provided limited guidance in this case.
In imposing sentence, the court must consider the nature and circumstances of the offense, the history and characteristics of the defendant, the needs of the public and any victims, the sentencing guidelines and policy statements, and the avoidance of unwarranted disparity. 18 U.S.C. § 3553(a). The court must then impose a sentence that is sufficient, but not greater than necessary, to comply with the purposes of sentencing: just punishment, deterrence, protection of the public, and rehabilitation of the defendant. Id.
As fully detailed in the pre-sentence report ("PSR"), beginning by at least 2017, defendant used multiple social media platforms and hacked social media accounts to promote ISIS ideology, recruit adherents to ISIS, collect information on how to make explosives and biological weapons and on how to conduct terrorist attacks, and distribute that information to individuals interested in conducting attacks on behalf of ISIS. She did this knowing that ISIS was a terrorist organization and had engaged in terrorist activity.
In order to support ISIS, defendant repeatedly hacked into Facebook accounts, taking them over from unwitting victims and changing the profile picture, friends list, and display name, typically choosing a new display name that was a variant of "Hind Salah Eddin." She pledged her allegiance to ISIS on numerous occasions and engaged in Facebook conversations with others in which she proclaimed her loyalty to ISIS. During one such conversation, she stated that she wanted to leave America for Syria, via Turkey, but that if she tried to leave, she would be arrested for "conspiracy to join."
Defendant also used social media on multiple occasions to promote ISIS and its terrorist agenda and to attempt to recruit others to join ISIS and to commit attacks on its behalf. One such message encouraged ISIS supporters who could not travel to ISIS controlled areas to conduct terrorist attacks in the countries where they reside. Defendant had specific communications with Facebook user "OG" about an attack that OG was planning. OG indicated that he was a 25-year-old Algerian and was planning an attack in France.
Most disturbingly, defendant distributed information about explosives and biological weapons on Facebook and other social media platforms, in the form of videos and conversations about bomb-making and biological weapons materials, for use by people who want to commit violent acts in the name of ISIS. FBI experts analyzed one such video and determined that it demonstrates a viable method of preparing TNT.
During communications with an undercover FBI employee ("UCE"), defendant suggested potential targets for attacks, such as street festivals and celebrations in the summer, or churches. She also advised that the attack should be something that would devastate and kill more than one person. She said, After the UCE said he had no experience making weapons or explosives, defendant responded, She further said, "I advise you to use poisons first," and she again recommended her channel as a place to find an encyclopedia of poisons. She said the easiest poison to make is Ricin, which she claimed is very effective. They also discussed the Boston Marathon bombing, with defendant stating, ...
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