938 F.3d 713
5th Cir.2019Background
- In 2013–14 Khan, then 19, expressed support for ISIS, attempted to travel to the Middle East, and recruited a mosque acquaintance, Sixto Garcia, to join ISIS. Khan coordinated travel via an ISIS contact in Turkey and provided Garcia with money and the contact’s phone number.
- Garcia traveled to the region, joined an extremist group (later identified as ISIS), and was later believed killed in combat. Khan continued to distribute ISIS propaganda and solicit funds for recruits.
- Khan pleaded guilty to providing material support to a designated foreign terrorist organization in violation of 18 U.S.C. § 2339B (Count Six of a superseding indictment).
- The probation-calculated Guidelines range (after acceptance credit) was 46–57 months (offense level 23, CH I). The § 3A1.4 terrorism enhancement would have added 12 levels and set CH VI, producing the statutory-maximum range (180 months at the time).
- The district court rejected the § 3A1.4 enhancement, citing (1) impermissible double-counting because the crime is “intrinsically terroristic,” (2) belief that the enhancement does not apply to conduct aimed at influencing a foreign government, and (3) the idea of varying "degrees of terrorism." The court imposed an 18‑month sentence after a downward variance.
- The United States appealed; the Fifth Circuit held the district court committed procedural error in construing § 3A1.4 as a matter of law, vacated the sentence, and remanded for resentencing so the district court can make the necessary factual findings regarding the enhancement.
Issues
| Issue | Plaintiff's Argument (United States) | Defendant's Argument (Khan) | Held |
|---|---|---|---|
| Whether § 3A1.4 terrorism enhancement can apply to a material‑support conviction | Enhancement applies: material support to ISIS is an enumerated offense and Khan’s encouragement/funding was calculated to influence or affect government conduct | Enhancement should not apply because material‑support is intrinsically terroristic and applying § 3A1.4 would double‑count | Court: § 3A1.4 can apply; district court erred to treat the enhancement as categorically inapplicable; remand for factual determination |
| Whether application of § 3A1.4 here would constitute impermissible double‑counting | Govt: no categorical prohibition on double‑counting; §§ 2M5.3 and 3A1.4 do not forbid cumulative application | Khan: enhancing would impermissibly double‑count an already terror‑based offense | Court: double‑counting is not per se prohibited; district court erred to rely on that ground |
| Whether the enhancement requires intent to influence U.S. government (i.e., excludes foreign governments) | Enhancement covers conduct calculated to influence or affect the conduct of any government, domestic or foreign; prior precedents applied it to foreign‑government targets | Khan: he intended to fight Assad/foreign actors in civil war and did not intend to influence the U.S.; thus enhancement should not apply | Court: ‘‘government’’ includes foreign governments; district court erred to exclude foreign‑directed conduct as matter of law |
| Whether the district court’s error was harmless or requires remand | Govt: enhancement could have applied; sentence affected by erroneous legal ruling | Khan: district court would have imposed same 18‑month sentence anyway; error harmless | Court: record does not show harmlessness; must remand for resentencing so district court can decide factual application and, if applied, impose sentence considering § 3553(a) factors |
Key Cases Cited
- United States v. Calbat, 266 F.3d 358 (5th Cir. 2001) (Guidelines do not contain a general prohibition on double‑counting)
- United States v. El‑Mezain, 664 F.3d 467 (5th Cir. 2011) (affirming § 3A1.4 where defendants aided Hamas to influence a foreign government)
- Gall v. United States, 552 U.S. 38 (2007) (establishes procedural and substantive reasonableness standard for sentencing review)
- United States v. Ali, 799 F.3d 1008 (8th Cir. 2015) (§ 3A1.4 can apply to a material‑support conviction)