428 F. App'x 570
6th Cir.2011Background
- Assi pled guilty to providing material support to Hizballah (a designated foreign terrorist organization) under 18 U.S.C. § 2339B; district court applied the Terrorism Enhancement § 3A1.4 to his sentence; hearing held on application of the enhancement; evidence showed Hizballah coercive/military activity against Israel in Lebanon; Assi fled to Lebanon and was in custody since return; sentence imposed: 120 months imprisonment and 2 years supervised release; other counts dismissed; issue on appeal is whether § 3A1.4 applies given non-violent support activities.
- The Government sought application of the Terrorism Enhancement based on intent to influence government conduct; district court concluded § 3A1.4 applied; Assi argued the enhancement should not apply because his conduct was not violent and Israel’s actions were unlawful or outside legitimate government activity.
- The panel reviews for reasonableness under an abuse-of-discretion standard, and de novo review for the interpretation of the Guidelines; important to determine if a non-violent offense can be a federal crime of terrorism and whether Israel qualifies as a “government” under § 2332b(g)(5)(A).
- The court held that: (i) § 3A1.4 can apply to non-violent offenses if the offense is intended to influence or retaliate against government conduct under § 2332b(g)(5)(A) and among listed offenses; (ii) the term “government” includes foreign governments such as Israel; (iii) the facts supported a coercive intent against the Israeli government; (iv) international-law doctrines and the Act of State/Comity do not bar the enhancement; (v) the Government has standing in criminal proceedings for applying the enhancement.
- The sentence was affirmed and the district court’s application of § 3A1.4 was upheld.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 3A1.4 can apply to a non-violent offense | Assi: enhancement requires violence or coercion; plain meaning supports violence | Assi: non-violent acts cannot trigger enhancement | Yes, can apply to non-violent offenses. |
| Whether 'government' includes foreign governments (e.g., Israel) | Assi: Israel not a government for purposes of § 2332b | Government includes foreign governments | Israel qualifies as a government under § 2332b(g)(5)(A). |
| Whether facts show intent to influence government conduct | Assi: no calculated coercion against a government | Hizballah’s actions aimed to pressure Israel’s government | Facts show coercive intent toward a government. |
| Whether international law doctrines prevent application of the enhancement | Lambert/Comity arguments apply | International law doctrines are inapplicable here | International-law doctrines do not bar the enhancement. |
| Whether the Government has standing to seek the enhancement in criminal case | Standing not an issue in criminal cases | Not needed for criminal proceedings | Standing not required to apply the enhancement. |
Key Cases Cited
- United States v. Jackson-Randolph, 282 F.3d 369 (6th Cir. 2002) (clear-error standard applies to fact-bound § 3A1.4 determinations)
- United States v. Anthony, 280 F.3d 694 (6th Cir. 2002) (de novo review of guideline interpretation; plain language governs)
- United States v. Christianson, 586 F.3d 532 (7th Cir. 2009) (§ 3A1.4 looks at crime and perpetrator’s motive; includes coercive acts)