OPINION and ORDER
Before the Court is the petition of Mokhtar Haouari (“Haouari”) to vacate his conviction pursuant to 28 U.S.C. § 2255. For the reasons that follow, the petition is denied.
BACKGROUND
I. PROCEDURAL HISTORY
This case involves the so-called “Millennium Plot” to bomb Los Angeles International Airport (“LAX”) in late December 1999. On April 11, 2001, Haouari was charged in seven counts of the fourth superseding indictment filed in connection with this matter. Count One charged Haouari under 18 U.S.C. § 371 with conspiracy to provide material support and resources to terrorists (18 U.S.C. § 2339A), to commit arson and bombing of a building in interstate commerce (18 U.S.C. § 844(i)) and to commit terrorist acts transcending international boundaries (18 U.S.C. § 2332b(a)(l)(B)). Count Two charged him under 18 U.S.C. §§ 2339A and 2 with providing material support and resources to terrorists to be used for arson and bombing of a building in interstate commerce (§ 844(i)) and terrorist acts transcending international boundaries (§ 2332b(a)(l)(B)). Count Three charged him under 18 U.S.C. § 371 with conspiracy to commit bank fraud and fraud involving access devices and identification documents (18 U.S.C. §§ 1028(a)(2), 1028(a)(7), 1029(a)(2), 1029(a)(5) and 1344). Counts Four and Five charged him under 18 U.S.C. §§ 1028(a)(2), 1028(a)(7) and 2 with identification document fraud. Counts Six and Seven charged him under 18 U.S.C. §§ 1029(a)(2), 1029(a)(5) and 2 with access device fraud.
Trial commenced on June 26, 2001. Before the case went to the jury, the Government agreed to withdraw those portions of Counts One and Two that rested on the commission of terrorist acts transcending international boundaries (§ 2332b(a)(l)(B)). The Government also agreed not to proceed on Count Seven. On July 13, 2001, the jury convicted Haou-ari on Count One and Counts Three through Six. He was acquitted on Count *673 Two. 1 On January 16, 2002, the Court sentenced Haouari to the following consecutive terms of imprisonment: 60 months on Count One, 60 months on Count Three, 36 months on Count Four, 36 months on Count Five and 96 months on Count Six. The total sentence was 24 years, or 288 months.
Haouari filed a timely appeal. On January 27, 2003, the Second Circuit affirmed his conviction and sentence.
United States v. Meskini,
II. FACTS
The evidence at trial established that Haouari, Abdelghani Meskini (“Meskini”) and Ahmed Ressam (“Ressam”) conspired to bomb LAX. The plot unraveled on December 14, 1999, when Ressam was caught with explosives in his car at the border station in Port Angeles, Washington. The evidence included the testimony of Ressam and Meskini; the testimony of law enforcement personnel; physical evidence seized from the three conspirators; telephone, credit card and bank records; and recorded conversations between Haouari and Meskini after Ressam’s arrest.
A. Pre-Millennium Plot Activities
In 1994, Haouari met Ressam, a fellow Algerian, in Montréal. (SA 405-09.) 2 Between 1996 and 1997, Ressam sold Haouari stolen identification documents, charge cards and a phony Canadian passport. (SA 410-11, 499-500.) In 1998, Ressam left for Afghanistan to attend terrorist training camps. (SA 415-16.)
Months before Ressam’s departure, Haouari had met up with Meskini, another Algerian, who had arrived in Montréal in October 1997. (SA 87-90.) On various occasions between 1997 and 1999, Haouari provided Meskini with fake Canadian passports and other forms of identification, some of which Meskini used to commit bank and credit card fraud. (SA 111-98, 234-36.) By July 1999, Meskini had settled in Brooklyn, New York. (SA 165.) The next month, Haouari and Meskini conversed about an Algerian man who would be coming to New York to meet some people. Haouаri said that the man “used to be in Bosnia,” which Meskini understood to mean that he had participated in jihad. (SA 229-32.) Haouari asked Mesk-ini if the man could stay with Meskini in his apartment. (SA 229-30.) Meskini agreed, but the visit never came to pass. (SA 231.) The man was Ressam.
From about April 1998 until 1999, Res-sam attended terrorist training camps in Afghanistan. He received instruction in light weapons, the making and use of explosive devices, sabotage, target-selection, urban warfare, tactics (including assassina *674 tion), security and the use of poisons and poisonous gas. (SA 418-27, 488-94, 506-07, 550-52.) In early 1999, Ressam returned to Canada. (SA 427.) He carried with him chemical substances, a notebook containing instructions on making explosives and $12,000 in cash. (SA 429.) At this time, Ressam devised his plan for bombing LAX during the Millennium celebration. He secured identification under the alias “Benni Noris,” obtained bomb ingredients and components, and made several powerful explosives and four timing and power units for an explosive device. (SA 438-39, 452-54, 459-65, 469-76, 482-87.) By the summer of 1999, Ressam wanted to obtain a credit card. He contacted Haouari and asked if he could “pretend [to be] working” in Haouari’s store, Artisanat Nord-Sud, in order to qualify for a credit card. Haouari agreed. (SA 431-32.) He filled out an application for Res-sam under the latter’s alias, “Benni Noris.” (SA 431-32, 478-79.) Ressam received the credit card. He was carrying this card on the day that he was arrested. (SA 480-82.)
B. The Planning of the LAX Attack
In October 1999, Ressam discussed with Haouari the possibility of an “operation” against the “biggest enemy,” the United States. (SA 436.) Referring to the bombings of the American еmbassies in Nairobi, Kenya and Dar es Salaam, Tanzania on August 7, 1998, Ressam opined that it would have been preferable to have carried out the bombings inside the United States. (SA 458-59.) Ressam testified that Haou-ari “[generally speaking ... was in agreement.” (SA 459.) In late October or early November 1999, at the request of Haouari and others, Ressam agreed to open a store in Montréal under his alias. Ressam’s store would be used as a source of credit card and bank card information for fraudulent activities. (SA 433-35, 463, 468, 476.) Haouari said that after four to six months of receiving proceeds from this store, he was “interested” in going to Afghanistan, as Ressam had done. (SA 435-36.)
In late October or early November 1999, Haouari told Ressam that he had “a friend” in the United States whо was “very eager to join the jihad.” (SA 434-35.) This was Meskini. Ressam replied that, if Haouari knew the friend very well and trusted him, it would not be a problem to get him a visa. (SA 435.)
At the beginning of November, Ressam told Haouari to give him some money from the store for “some important business” in the United States. (SA 447.) A few days later, Haouari gave Ressam $3000 CAD. (SA 448-49.) Haouari offered to connect Ressam with his “friend” (Meskini). Res-sam replied, “Mokhtar, I’m not going to America for tourism. I am going on some very important and dangerous business.” Haouari told Ressam that it was “no problem,” that his friend was involved in bank fraud and that the friend could help him. Ressam asked Haouari to talk to the friend and explain the matter “very well” to him. (SA 447-49.) Ressam testified at trial that he told Haouari that the work was “dangerous” so that Haouari would “know what kind of work” Ressam would be doing. Ressam conveyed the nature of the work, but he withheld the exact target from Haouari “for security reasons.” (SA 448.) Haouari told Ressam, “My friend Abdelghani [Meskini] will help you.” Res-sam replied, “Mokhtar, did you explain to him well the business in this work?” Haouari assured Ressam that Meskini had been informed about the “business.” (SA 449.)
C. Initial Preparations
Around the time of the foregoing conversation with Haouari, Ressam called *675 friends in Afghanistan and Great Britain in order to obtain visas for Meskini and another friend who helped prepare for the attack. (SA 430, 446, 450, 461, 471-72.) When Ressam received the blank visas, he gave them to Haouari to fill them in and make stamps for them. (SA 450-51.) Haouari then made a phony Québec driver’s license that Ressam said he needed. (SA 452-53, 459, 534-35, 542-43.) Haouari also agreed to provide Ressam with an Algerian passport so that Ressam could return to Algeria after he was “through with America.” (SA 452-54.) Ressam planned to pick up the passport in Montréal upon his return from the United States. (SA 453-54, 475-76, 534-35.)
Around November 17, 1999, Ressam flew from Montréal to Vancouver. (SA 459-60.) He said that he would call Haou-ari and let him know when to contact his friend (Meskini). (SA 461.) Ressam combined the $3000 CAD he had received from Haouari with money he already had. He bought chemicals, instruments and airline tickets with the money. He also rented a car and paid for a hotel room. (SA 461-62, 565-66.) For two weeks, Ressam stayed in Vancouver and prepared the chemical materials for the explosives. (SA 460-61.)
On November 21, 1999, Haouari informed Meskini by phone that he had three visas to Pakistan. Haouari explained that a friend (Ressam) had obtained the visas upon learning from Haou-ari that Meskini wanted to perform jihad in Afghanistan. Meskini wanted the visa. He also needed a passport in order to get to Afghanistan. Haouari agreed to obtain the passport. On or about November 22, 1999, Meskini sent his picture to Haouari. Over the next several days, Meskini made follow-up calls to Haouari about the passport. In early December, Meskini called the Pakistan International Airline for flight information. (SA 232-37.)
D. “The Fire is On and It’s Coming”
By the beginning of December 1999, Ressam had returned to Montréal. On his first day back, he met Haouari at the store they were opening. Ressam said that he wanted to meet Haouari’s friend in Seattle in one week. He directed Haouari to tell the friend that Ressam would use the name “Reda.” He added that upon the friend’s arrival, Ressam would explain the precise nature of the job. (SA 462-63.) Haouari called Meskini and asked him if he remembered his mentioning a man who would be coming to New York. Meskini did. Haouari asked Meskini to meet that man in Seattle and to give him $1500 to $2000. Haouari added that he had told the man that Meskini lived in the United States and committed bank fraud. When Meskini asked the man’s name, Haouari with some trepidation told him to call the man “Reda.” Haouari suggested that Meskini rent a car with his fake driver’s license for “Reda” and drive him around while he was in Seattle. Meskini agreed to do what Haouari asked him. He told Haouari to give “Reda” his pager and cellular phone numbers. (SA 240-46.)
Ressam thereafter visited Haouari at his home. Haouari explained that his friend was named “Ghani.” He showed Ressam a picture of Meskini and gave Ressam Meskini’s contact information. (SA 463-65.) Ressam telephoned Meskini on December 4, 1999. Ressam introduced himself as “Reda, Mokhtar’s friend.” The two agreed to meet in Seattle on December 12, 1999. (SA 252-54, 465.) Meskini related the conversation to Haouari. Meskini said that he would go to Seattle on December 11. Haouari replied that Ressam had said that Meskini “would have a great blessing.” Haouari passed the phone to a fraud *676 co-conspirator, who spoke to Meskini. While making arrangements with this conspirator, Meskini overheard Haouari say, “Tell him the fire is on and it’s coming.” Meskini tеstified that this comment, along with Haouari’s other remarks and discussions about Ressam, led him to conclude that Ressam was coming to the United States “to commit some violent act.” (SA 254-259.)
In a subsequent meeting with Haouari, Ressam used a pay phone to call Abu Doha, his Mend in Great Britain. Ressam had contacted Doha, an important figure in Afghanistan, for the Pakistan visas. (SA 423, 450-52, 465-68, 570.) Referring to Haouari as “Omar” and Doha as “Rachid,” Ressam introduced the two men over the phone. Ressam told Doha, “If I’m not here, if this Mend calls you, it would be the same. He would send you names of people who want to go to Afghanistan.” (SA 466-67, 570.) Ressam previously had told Haouari that this man would know his whereabouts so that Ressam could be contacted and paid his share of the prоceeds from the store. (SA 465-66.)
E. The Plot Unravels
On or about December 8, 1999, Ressam left Montréal and headed back to Vancouver. Once there, he began preparing the explosives. (SA 469-72.) He never spoke to Haouari again. On December 11, Meskini — who had purchased a round trip New York-to-Seattle airline ticket under the alias “Eduardo Rocha” — flew to Seattle. (SA 260-62.) Upon his arrival, Meskini called Haouari to alert him that, if “Reda” called, Haouari should tell him that Meskini was waiting in Seattle. (SA 262-63.) Although their meeting was scheduled for December 12, Meskini did not speak with Ressam that day. Meskini had left his pager in New York and thus failed to get the message Ressam had left on it (“Abdelghani, do not be concerned. I am Reda. I will call you later.”). (SA 263-65, 472.) Meskini told Haouari that Reda had not shown. Haouari advised Meskini to “be patient.” (SA 265.)
On December 14, 1999, Ressam called Meskini and said, “This evening, I will be in Seattle. I’ll call you.” (SA 266, 472-73.) Ressam then left Vancouver in a rental car with the explosives loaded in the trunk. He took an auto ferry to Victoria and then another ferry to Port Angeles, Washington. When Ressam arrived in Port Angeles, the border patrol began a search of his car and its trunk. Ressam then fled, but he was chased, caught and arrested. (SA 473-74.) His plan, had he not been arrested, was to meet Meskini, put the explosives into suitcases and take them by train to Los Angeles. Ressam wanted to use a train rather than the car because the explosives were sensitive to impact. (SA 475.) Once in Los Angeles, Ressam and Meskini would “check the airport out.” (SA 474-75.) After the attack, Ressam planned to return to Montréal, pick up the Algerian passport from Haou-ari, and then proceed to Algeria via Europe. (SA 452-54, 475-76, 534-36.)
After Ressam failed to arrive in Seattle, Meskini called Haouari several times on December 14 and 15. Haouari said that he had been calling “Reda” but had only reached voice mail. (SA 267-69.) Meskini returned home to Brooklyn on December 16. (SA 271.) The next day, Meskini spoke by phone with Haouari, who was in Montréal. Haouari instructed Meskini to change his telephone numbers and dispose of his fake identification and credit cards. He added that Meskini should not call him in the foreseeable future, but that if it were truly necessary, Meskini should call a mutual friend in Algeria to get Haouаri’s new telephone number. (SA 272-73.) On December 18, Meskini heard media ac *677 counts of Ressam’s arrest. He did not know, however, that Ressam was “Reda.” He ignored Haouari’s instructions and tried unsuccessfully to reach him by phone. (SA 274-75.)
On December 22, 1999, Meskini made a cellular phone call to Haouari. At 11:27 P.M., Haouari called Meskini on the latter’s residential telephone. (SA 275-79.) The FBI, with court authorization, had just begun to monitor Meskini’s phone. Meskini asked, “Listen. Was that woman your cousin?” (SA 281.) Meskini testified that he and Haouari often spoke in code. (SA 203.) This question was Meskini’s way of asking whether Ressam and “Reda” were the same person. (SA 283.) Haou-ari replied, ‘Tes.” (SA 281.)
Meskini was arrested on December 30, 1999. (SA 70.) He was arraigned in this district on January 20, 2000. After extradition proceedings, Hаouari was arraigned in this district on August 14, 2000. On March 7, 2001, Meskini pleaded guilty to eight counts in the indictment. Approximately one month later, Ressam was convicted at his own trial in the Western District of Washington of nine counts related to terrorism, transporting explosives and other matters. Ressam’s trial was held in Los Angeles due to pretrial publicity concerns in the Seattle area. (SA 402.) Both Ressam and Meskini testified at Haouari’s trial in New York.
DISCUSSION
Haouari supports his § 2255 petition with several “Grounds.” Some of the Grounds contain multiple subparts. Haou-ari concedes on page 2 of his memorandum of law that the Second Circuit decided the following claims on appeal: Ground One, subparts (2) and (4)-(8), and Grounds Three through Seven in their entirety. It is settled that “section 2255 may not bе employed to relitigate questions which were raised and considered on direct appeal.”
Cabrera v. United States,
Haouari also attacks the constitutionality of his sentence in light of
Apprendi v. New Jersey,
I. INEFFECTIVE ASSISTANCE OF COUNSEL
Haouari raises “new matters” concerning ineffective assistance of counsel that “require[] examination of matters that were outside the District Court record.” (Pet. Mem. of Law at 10.) He seeks “to supplement the record with documentation not previously presented either at trial or on appeal.” (Id.) Haouari characterizes the new grounds as follows:
(1) Trial counsel’s misadvice and coercion of Haouari not to testify at trial, thereby waiving his constitutional right to testify on his own behalf at trial, see Petition Ground One (1); and
(2) Trial counsel’s concession and failure to contest at trial Haouari’s guilty [sic] of the fraud-related offenses charged in the Indictment, all without Haouari’s consent, see Petition Ground One (3).
(Id. at 11.) These are Ground One, sub-parts (1) and (3). Haouari contends in Ground Two that his appellate counsel was ineffective for failing to raise Ground One, subparts (1) and (3) on appeal. (Id. at 14.) *678 He claims that a hearing is necessary to resolve these issues. {Id. at 12,14.)
A defendant may raise an ineffective assistance of counsel argument for the first time on collateral attack.
See
Massa
ro v. United States, 538
U.S. 500,
509, 123
S.Ct. 1690, 1696,
A. Haouari’s Failure to Testify
Haouari argues that he wanted to testify at trial, but his counsel, Daniel Ol-len, Esq., forced him to stay off the witness stand. Haouari has submitted an affidavit with his moving papers. He claims:
In the days and weeks before my trial and during the trial itself, I told my lawyer that I wanted to testify on my own behalf.
Mr. Ollen told me that was O.K., but he never did anything to prepare me for my testimony.
At the close of the Government’s case, I again told Mr. Ollen that I wanted to testify.
Mr. Ollen told me that I must not testify because he was sure that we had already won the case on Counts One and Two (the terrorism counts).
He assured me very strongly that there was no way the jury could find me guilty on those counts.
As a result of his insistence, I did not testify.
(Haouari Aff., Oct. 21, 2004, ¶¶ 3-8.) Mr. Ollen has submitted his own affidavit in response to Haouari’s. Mr. Ollen states:
I ... had extensive pre-trial conversations with Haourai [sic] 3 with regard to whether he should testify. I advised him that, in my view, testifying on his own behalf was not a good idea. As I explained to Haourai, given the volume of fraud-related evidence that the Government had, it would be difficult for the jury to see Haourai as a credible witness. I explained all this to Haourai, and he аgreed that he should not take the stand in his defense.
(Ollen Aff., Feb. 7, 2005, ¶ 3.) Haouari disputes Mr. Ollen’s account, claiming that his counsel’s “repeated exhortations for [Haouari] not to testify crossed the line and were coercive.” (Pet. Reply Mem. of Law at 14-15.)
Assuming that Haouari’s affidavit is true, there has been no demonstration of coercion or incompetence on Mr. Ollen’s part. The affidavit shows only that (1) Haouari discussed with counsel whether or not he should testify, (2) counsel strongly advised him against it and gave reasons for this advice, and (3) Haouari made the decision not to testify as a result of counsel’s “insistence.” Mr. Ollen’s advice to Haouari was a plausible strategic choice and not coercive. Even though the ultimate deсision lies with the defendant, “counsel should always advise the defendant about the benefits and hazards of testifying and not testifying, and may
*679
strongly advise the course that counsel thinks best.”
Brown v. Artuz,
In addition, as the Government recognizes, Haouari shows no prejudice resulting from his failure to testify.
See Brown,
To the extent that there are factual differences between Haouari’s affidavit and Mr. Ollen’s affidavit, a hearing is not necessary to resolve them. Section 2255 requires the Court to hold a hearing “[u]n-less the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255. In this case, further testimony at a hearing would add nothing to the affidavits or other written submissions and would waste the time and resources of the Court, the Government and Haouari’s trial counsel.
See Chang v. United States,
B. Haouari’s Failure to Contest the Fraud Charges
Haouari’s second ineffective assistance argument is that his trial counsel “never obtained [Haouari’s] consent to undertake a defense in which counsel conceded and failed to contest at trial [Haouari’s] guilt of fraud-related offenses in the Indictment.” (Pet. Mem. of Law at 12.) Haouari contends that Mr. Ollen “never discussed ... that he was going to concede my guilt on the fraud charges.” (Haouari Aff., Oct. 21, 2004, ¶ 9.) Haouari claims that he was “shocked” when his counsel told the jury that they should convict on the fraud charges. (Id. ¶ 10.) Mr. Ollen’s recollection of the events, not surprisingly, is somewhat different:
Prior to trial, I had extensive discussions with Haourai with regard to strategic issues. In particular, I explained to Haourai that, in my view, the wisest course for him was not to contest the Government’s fraud charges — and to focus only on the Government’s terrorism-related charges. As I explained to Haourai, the Government’s evidence as to the fraud charges was much stronger than its evidence on the terrorism charges. Moreover, the terrorism charges carried much more serious possible sentencing consequences than the fraud charges. In these circumstances, I believed that it was important that Haourai pick his battle — and contest only the terrorism-related charges. I explained all this to Haourai, and he agreed that I should concede his guilt on the fraud charges, and focus on defending against the terrorism charges.
(Ollen Aff., Feb. 7, 2005, ¶ 2.) Again, the Court finds that a hearing is not necessary to resolve the factual inconsistencies between the two affidavits. Mr. Ollen’s detailed affidavit is far more credible than Haouari’s generic assertions.
Mr. Ollen’s advice to Haouari was not unreasonable. As the Government points out, the evidence of fraud against Haouari was overwhelming. The evidence on the terrorism counts arguably was less so. (Gov’t Mem. of Law at 56.) In fact, Haouari was acquitted of Count Two, one of the terrorism charges. Mr. Ollen em
*680
ployed a plausible trial strategy in conceding guilt on the fraud counts, and the Court will not second-guess it.
See Farrington v. Senkowski,
C. Appellate Counsel’s Failure to Raise Trial Counsel’s Alleged Ineffectiveness
In Ground Two of his § 2255 motion, Haouari claims that his appellate counsel, Martin C. Goldberg, Esq., was ineffective for not raising on appeal the ineffectiveness of Mr. Ollen with respect to Haouari’s failure to testify and the concession of guilt on the fraud charges. This argument became somewhat lost in the shuffle of the briefing on this motion. It is mentioned once in Haouari’s memorandum of law (p. 14), but not at all in the Government’s brief or Haouari’s reply brief.
The Court already has found merit-less Haouari’s contention that Mr. Ollen was ineffective for persuading him not to testify and concеding guilt on the fraud charges. It would be illogical for the Court to order a hearing to gather evidence on whether appellate counsel was ineffective for not raising these meritless arguments on appeal. In the appellate context, “only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome.”
Mayo v. Henderson,
Haouari also fails to show prejudice from the alleged ineffectiveness. “To establish prejudice in the appellate context, a petitioner must demonstrate that ‘there was a “reasonable probability” that [his] claim would have been successful before the [appellate court].’ ”
Mayo,
The Court thus rejects Haouari’s arguments that his trial and appellate counsel were ineffective.
II. SENTENCING
Pursuant to Section 3A1.4 of the Sentencing Guidelines (the “terrorism enhancement”), the Court increases the offense level by 12 and assigns the defendant Criminal History Category VI “[i]f the offense is a felony that involved, or was intended to promote, a federal crime of terrorism.”
4
Haouari
*681
contends that the Court should not have applied the terrorism enhancement to him. He has three grounds for his argument: (1) his conduct was not encompassed within the relevant Guidelines language, (2) application of the terrorism enhancement was unconstitutional under
Apprendi v. New Jersey,
A. Section 3A1.4 and Haouari’s Conspiracy Conviction
Haouari claims that Section 3A1.4 should not apply to him because he was not convicted of a “federal crime of terrorism.” He contends that the jury in this case was never charged with deciding if he had committed a “federal crime of terrorism” and that the charges аgainst him did not include that allegation. (Pet. Mem. of Law at 7.) Put more clearly, Haouari was not convicted of violating 18 U.S.C. § 844(i) or 2339A, which are statutorily-defined federal crimes of terrorism. He was convicted of conspiracy to commit those crimes. The conspiracy statute, 18 U.S.C. § 371, is not a statutorily-defined “federal crime of terrorism.” Hence, Haouari argues, the Court erred in applying the Section 3A1.4 terrorism enhancement to him.
The Government’s first argument is that Haouari did not raise this Guidelines claim in the course of his direct appeal. Accordingly, the Government contends, he may press this claim in the § 2255 context only if shows both “cause” for his failure to raise the claim on appeal, as well as “prejudice” that would follow from the Court’s not considering the claim.
See Campino v. United States,
Haouari appears to argue on page 3 of his reply brief that appellate counsel was ineffective for not raising the Section 3A1.4 issue to the Circuit. If this were so, Haouari could raise the issue in his § 2255 petition.
See United States v. Perez,
The terrorism enhancement was set forth in Haouari’s Pre-Sentence Report. Haouari’s trial counsel, Mr. Ollen, did not object to the application of the enhancement based on the language of Section 3A1.4(a). (See Ollen Ltr. to Court (Jan. 11, 2002), Ex. B to Gov’t Mem. of Law). He objected only to the Probation Department’s failure to factor to calculate a three-level decrease to the total offense level (36). See U.S.S.G. § 2Xl.l(b)(2) (three-level decrease for uncompleted conspiracies). Mr. Ollen stated in his letter that he and the Government “agree[d] that level 33 is ... correct.” At sentencing, the Court stаted on the record that “[t]he government and the defense agree with the revised pre-sentence report that, pur *682 suant to Section 2Xl.l(b) subdivision (2) of the sentencing guidelines, the corrected adjusted offense level for Count One is 33.” (Sentencing Tr., Jan. 16, 2002, at 5). Level 33 included the 12-level ■ terrorism enhancement under Section 3A1.4(a).
Under these circumstances, had Haouari pressed his Section 3A1.4 argument on appeal, the Circuit would have reviewed it under a “plain error” standard. See Fed. R.Crim.P. 52(b). The Supreme Court has explained the appropriate analysis:
[Bjefore an appellate court can correct an error not raised at trial, there must be (1) “error,” (2) that is “plain,” and (3) that “affects substantial rights.” ... If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error “seriously affects the fairness, integrity, or public reputation of judicial proceedings”.
Johnson v. United States,
Upon reviewing the appropriate statutes, the Sentencing Guidelines and the sentencing transcript, the Court does not believe that it committed plain error in applying the terrorism enhancement. Section 3A1.4 of the Guidelines provides:
(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.
U.S.S.G. § 3A1.4(a) (emphasis added). The commentary at that time provided thаt “federal crime of terrorism” was defined by 18 U.S.C. § 2332b(g) (now § 2332b(g)(5)). The relevant statutory language is the same now as it was then:
(5) the term “Federal crime of terrorism” means an offense that—
(A) is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct; and
(B) is a violation of—
(i) section ... 844(i) (relating to arson and bombing of property used in interstate commerce), ... 2339A (relating to providing material support to terrorists) ....
18 U.S.C. § 2332b(g)(5). Count Two of the operative indictment charged Haouari with violating Section 2339A, a specifically enumerated federal crime of terrorism. The jury acquitted Haouari on this count. Count One charged Haouari under the conspiracy statute, 18 U.S.C. § 371, with conspiring tо violate 18 U.S.C. §§ 2339A, 844(i) and 2332b(a)(l)(B). The Government withdrew the § 2332b(a)(l)(B) portion of the count. Although the conspiracy statute (18 U.S.C. § 371) itself is not a federal crime of terrorism listed in Section 2332b(g)(5)(B), the two statutes underlying Haouari’s conspiracy conviction are listed as federal crimes of terrorism.
Haouari thus was convicted, in the words of Section 3A1.4(a), of a felony offense “intended to promote” a federal crime of terrorism. Accordingly, the Court applied the terrorism enhancement to Count One, as specified in the Pre-Sentence Report. Haouari did not object to the enhancement either before or at sentencing. He does not allege that his trial counsel was ineffective for not objecting. He only contends that his appellate counsel was ineffective for not raising the issue on appeal. The Court is cognizant that the Second Circuit has yet to address
*683
the application of Section 3A1.4(a) to conspiracy convictions. At the time, the one circuit court that had passed on the issue held in a split decision that Section 3A1.4(a) was applicable to a conviction for conspiracy to commit a federal crime of terrorism.
United States v. Graham,
Haouari also relies on
United States v. Arnaout,
In summary, Haouari does not convince the Court that his appellate counsel’s performance was substandard or that he was prejudiced at the Circuit level. Moreover, appellate counsel made a constitutional attack (albeit a different one) on Section 3A1.4. In light of Graham, the only reported circuit decision on the issue at the time, and in light of failure of trial counsel to raise the issue at trial, appellate counsel may have believed that he was leading with his best punch by challenging the double-counting aspect of Section 3A1.4. That appellate counsel was unsuccessful does not mean he was ineffective.
B. Haouari’s Apprendi Argument
Haouari next claims that the Court’s application of the terrorism enhancement pushed his sentence to a higher Guidelines range than would otherwise have been the case. He contends that the enhancement violates the Constitution because, as set forth in
Apprendi v. New Jersey,
Assuming
arguendo
that Haouari is not procedurally barred from making his
Apprendi
argument, his attorneys were not ineffective for not pressing the
Apprendi
claim. This is so because the claim had no merit under Second Circuit law at the time. In
United States v. Garcia,
Haouari’s Apprendi challenge is unsuccessful. He cannot show under either prong of Strickland that his trial counsel and appellate counsel were ineffective for failing to challenge his sentence on Ap-prendi grounds.
C. Haouari’s Booker Argument
Haouari’s final argument is that his sentence was unconstitutional under
Booker,
cited
supra.
Both Haouari and the Government grapple in their respective papers with the issue of whether
Booker
applies retroactively to Haouari’s sentence. (Gov’t Mem. of Law at 43-52; Pet. Reply Mem. of Law at 7-12.) One week after Haouari submitted his reply brief on this § 2255 motion, the Second Circuit decided the question in
Guzman,
CONCLUSION
For the foregоing reasons, Haouari’s § 2255 petition is denied. The Clerk of the Court is directed to close this case.
SO ORDERED.
Notes
. Haouari incorrectly states on page 2 of his memorandum of law that he was convicted only on Counts One, Three and Four.
. Citations are to the Supplemental Appendix filed in connection with Haouari’s direct appeal.
. Haouari's name is misspelled “Haourai” throughout Mr. Ollen's affidavit.
. This provision was identical in the 2001 Guidelines manual, which was in effect at the *681 time of Haouari’s sentencing.
. On Count One, Haouari received 5 years (the statutory maximum); on Count Three, 5 years (same); on Count Four, 3 years (the maximum at the time); on Count Five, 3 years (the maximum at the time); and on Count Six, 8 years (the maximum was 10 years). See 18 U.S.C. §§ '371, 1028(b)(2), 1029(c)(l)(A)(i).
. In
Blakely,
the Supreme Court held that "the ‘statutory maximum' for
Apprendi
purposes is the maximum sentence a judge may impose
solely on the basis of the facts reflected in the jury verdict or admitted by the defendant
.... In other words, the relevant 'statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose
without
any additional findings.”
Blakely,