Crоss-Appellant the United States appeals from a judgment of conviction and sentence of the United States District Court for the Eastern District of New York (Charles P. Sifton, Judge) finding the Sentencing Guidelines’ terrorism enhancement, which applies to felonies that “involved, or [were] intended to promote, a federal crime of terrorism,” U.S.S.G. § 3A1.4, inapplicable to all of Cross-Appellee Khalid Awan’s counts of conviction. 1 Because we conclude that the district court misconstrued both prongs of § 3A1.4, we vacate the judgment of the district court and remand for resentencing.
BACKGROUND
At the conclusion of a three-week jury trial in the United States District Court for the Eastern District of New York, the Cross-Appellee Khalid Awan (“Awan”) was convicted of (1) conspiring to provide material support and resources to be used in a conspiracy prohibited by 18 U.S.C. § 956(a), to wit, a conspiracy to commit *310 murder, kidnapping, or maiming outside the United States, in violation of 18 U.S.C. § 2339A; (2) providing material support and resources to be used in such a conspiracy, also in violation of 18 U.S.C. § 2339A; and (3) the international transfer of money with the intеnt to promote specific unlawful activity, to wit, murder and the destruction of property by means of explosive or fire as prohibited by India Penal Code sections 300 and 435, in violation of 18 U.S.C. § 1956(a)(2)(A).
The following facts are drawn from the evidence presented at trial, and are presented in the light most favorable to the government.
See United States v. Ivezaj,
From 1998 through 2001, using a variety of methods, Awan served as a conduit for the transfer of funds from KCF supporters in the United States to Panjwar. In particulаr, Awan told Harjit and admitted to investigators that he had transferred money to Panjwar after meeting with a number of sources on several occasions. Two members of the KCF funding network in the United States who cooperated with the government, Gurbax Singh (“Gurbax”) and Baljinder Singh (“Baljinder”), also testified that they both had delivered money for KCF to Awan on different occasions. Baljinder later spoke to Panjwar on the phone about delivering the money to Awan, and Panjwar told him that Awan was “a good friend” of his and a “trusted person” who had done “this work” already. Trial Tr. 447. Awan told Harjit and investigators that he used the bank accounts of several businesses to transfer the money to Panjwar.
In or around 2003 and 2004, while both were detained at the MDC, Awan attempted to recruit Harjit to travel to Pakistan and receive explosives training at a KCF camp. Awan discussed with Harjit on several occasions traveling to Pakistan to meet with Panjwar and receiving training in bombmaking and military activities. Government investigators also wiretapped phone conversations between Awan and Panjwar in which Awan introduced Harjit to Panjwar and Harjit аnd Panjwar discussed Harjit’s traveling to Pakistan for military training.
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In its proposed calculation of Awan’s Sentencing Guidelines, the Probation Department recommended an adjusted offense level of 45 for Awan’s 18 U.S.C. § 2339A (material support of terrorism) counts, which included the application of a twelve-level terrorism adjustment pursuant to U.S.S.G. § 3A1.4. The Department also recommended an adjusted offense level of 36 for the 18 U.S.C. § 1956 (international money transfer) count, which also included the terrorism adjustment. This yielded an effective Guidelines sentence of 45 yeаrs, the statutory maximum sentence for Awan’s counts.
See United States v. Awan,
No. CR-06-0154,
The terrorism enhancement, U.S.S.G. § 3A1.4, provides as follows:
(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.
(b) In each such case, the defendant’s criminal history category from Chapter Four (Criminal History and Criminal Livelihood) shall be Category VI.
U.S.S.G. § 3A1.4. Application Note 1 provides that the term “federal crime of terrorism” is defined by “the meaning given that term in 18 U.S.C. § 2332b(g)(5),” which provides a two-part definition. First, a federal crime of terrorism is an “offense that ... is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” 18 U.S.C. § 2332b(g)(5)(A). Second, the offense must be a violation of a specific federal criminal statute listed in 18 U.S.C. § 2332b(g)(5)(B). The list includes, inter alia, violations of “[18 U.S.C. § ]956(a)(l) (relating to conspiracy to murder, kidnap, or maim persons abroad)” and “[18 U.S.C. § J2339A (relating to providing material support to terrorists).” Id. § 2332b(g)(5)(B)(i). Awan was convicted of violating § 2339A, and each § 2339A cоunt involved the provision of material support and resources to be used in a conspiracy to violate § 956. Violations of 18 U.S.C. § 1956(a)(2)(A) (the international money transfer crime of which Awan was convicted) are not included in § 2332b(g)(5)(B).
Before sentencing, the government argued that the § 3A1.4 terrorism enhancement applied to all of Awan’s counts because each count was “intended to promote” a federal crime of terrorism, namely a conspiracy to murder, kidnap, or maim persons abroad in violation of 18 U.S.C. § 956. Gov. Sent. Mem. 7. Further, the gоvernment argued that Awan’s money laundering count was “intended to promote” an additional federal crime of terrorism, the provision of material resources and support in violation of 18 U.S.C. § 2339A. Gov. Supp. Sent. Mem. 2. Finally, the government argued that Awan’s substantive and conspiratorial material support crimes in violation of 18 U.S.C. § 2339A “involved” a federal crime of terrorism. Id. at 9-10. Awan challenged the application of the terrorism enhancement to any of his counts of conviction, arguing, inter alia, that his conduct did not satisfy the so-called “motivational еlement” of 18 U.S.C. § 2332b(g)(5)(A), which defines “a federal crime of terrorism” as a statutorily specified offense “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” Def. Obj. to PSR ¶ 24.
The district court declined to apply either the “involved” or “intended to promote” prongs of U.S.S.G. § 3A1.4 to any of Awan’s counts. First, because Awan was
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convicted of a crime listed in 18 U.S.C. § 2332b(g)(5)(B), namely, providing and conspiring to provide material resources and support to be used in a сonspiracy to commit murder, kidnapping, and maiming outside of the United States, in violation of 18 U.S.C. § 2339A, the district court found it unnecessary to consider whether Awan’s third crime, transferring money internationally with the intent to promote unlawful activity in violation of 18 U.S.C. § 1956, was “intended to promote” a federal crime of terrorism. The court reasoned: “[S]ince § 2332b(g)(5)(B) includes § 2339A in the list of crimes whose violation may be a ‘federal crime of terrorism[,]’ there is no need to determine whether the violation of § 1956 is properly deemed a
promotion
of a federal crime of terrorism fоr the purposes of § 3A1.4.”
Awan,
DISCUSSION
We review a district court’s sentence for procedural and substantive reasonableness, a standard “akin to reviеw for abuse of discretion.”
United States v. Cavera,
The government argues that the district court committed two errors in its analysis of § 3A1.4’s applicability. First, the government contends that the district court erred in considering only the “involved” prong of § 3A1.4 in concluding that no terrorism enhancement was warranted in this case, thereby ignoring § 3A1.4’s alternative “intended to promote” prong. Second, the government submits that in applying the “involved” prоng, the district court clearly erred in concluding that Awan’s
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conduct failed to satisfy the requirement set forth in § 2332b(g)(5)(A) that it be “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct” — what the district court termed the “motivational element.”
Awan,
I. The “Intended to Promote” Prong of U.S.S.G. § 3A1.4
A. Interpreting U.S.S.G. § 3A1.4
“Canons of [statutory] construction ordinarily suggest that terms connected by a disjunctive be given separate meanings, unless the context dictates otherwise.”
Reiter v. Sonotone Corp.,
“"When interpreting the Guidelines, we begin with the basic rules of statutory construction, and we give all terms in the Guidelines their ordinary meanings unless there are persuasive reasons not to do so.”
United States v. Mullings,
Turning to the “intended to promote” prong, we “begin with the assumption that the ‘intended to promote’ language means something different from the word ‘involved.’ ”
Graham,
The ordinary meaning of “promote” includes “to bring or help bring into being,” to “contribute to the growth, enlargement, or prosperity of,” or to “encourage” or “further.”
Webster’s Third New International Dictionary
1815 (2002);
see also Arnaout,
The ordinary meaning of the “intended to promote” prong gives that clause a separate meaning from the “involved” prong of § 3A1.4. The “intendеd to promote” prong applies where the defendant’s offense is intended to encourage, further, or bring about a federal crime of terrorism, even though the defendant’s own crime of conviction or relevant conduct may not include a federal crime of terrorism. And this has an important implication: To qualify as a federal crime of terrorism that may serve as a predicate for a § 3A1.4 enhancement, an offense must be listed in 18 U.S.C. § 2332b(g)(5)(B) and, in addition, it must be an “offense that ... is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct,” as provided by 18 U.S.C. § 2332b(g)(5)(A). Under the “intended to promote” prong, however, so long as the defendant’s offense was intended to encourage, further, or bring about a federal crime of terrorism as statutorily defined, the defendant himself does not have to commit an offense listed in § 2332b(g)(5)(B), and the defendant’s offense need not itself be “calculated” as described in § 2332b(g)(5)(A).
See Stewart,
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A narrower reading of § 3A1.4 would defy common sense. If an offense cannot be “intended to promote” a federal crime of terrorism unless the defendant himself committed one of the crimes specified in § 2332b(g)(5)(B) or committed a crime that was itself calculated to influence, affect, or retaliate against government conduct as required by § 2332b(g)(5)(A), § 3A1.4 would not apply to defendants who clearly “intend to promote” federal crimes of terrorism committed by
other persons.
For example, as the government suggests, a dеfendant, motivated solely by pecuniary gain, might sell weapons to a terrorist organization. It would be absurd to conclude that such a defendant’s criminal conduct could not be subject to a § 3A1.4 enhancement because it was not itself a listed offense that is “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” 18 U.S.C. § 2332b(g)(5)(A). To summarize, we confirm what we noted in
Stewart
and join the other Circuits that have held that “[a] defendant who intends to promote a federal crime of terrorism has not necessarily completed, attempted, or conspired to commit the crime; instead the phrase implies that the defendant has as one purpose of his substantive count of conviction or his relevant conduct the intent to promote a federal crime of terrorism.”
Graham,
B. Application
As our explication of the “intended to promote” prong of § 3A1.4 indicаtes, the district court erred in concluding that, because Awan was convicted of a crime listed in 18 U.S.C. § 2332b(g)(5)(B),
ie.,
violations of 18 U.S.C. § 2339A, there was “no need to determine whether the violation of § 1956 [or Awan’s violations of § 2339A] [are] properly deemed a
promotion
of a federal crime of terrorism for the purposes of § 3A1.4.”
Awan,
The government argued before the district court (1) that each of Awan’s counts of conviction was intended to promote a conspiracy to commit murder, kidnaping, or maiming outside the United States in violation of 18 U.S.C. § 956(a), a federal crime of terrorism, and (2) that Awan’s international money transfer conviction was also intended to promote another federal crime of terrorism, to wit, the provision of material support and resources to be used in a conspiracy to commit murder, kidnaping, or maiming outside the United States as prohibited by 18 U.S.C. § 956(a), in violation of 18 U.S.C. § 2339A. Although we express no views on the merits of these factual contentions, we note that the application of § 3A1.4 in such circumstances does not require a finding that
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Awan was personally motivated by a desire to influence or affect the conduct of government. Rather, the government need only demonstrate that Awan intended to promote a crime calculated to have such an effect,
ie.,
that his offenses were intended to promote a federal crime of terrorism as defined in § 23S2b(g)(5), whatever Awan’s reason for committing them.
See infra
Part II. The district court erred in not considering the government’s arguments relating to the “intended to promote” prong and, more generally, by in effect requiring the government to establish proof of Awan’s motive.
See Awan,
II. The “Involved” Prong of U.S.S.G. § 3A1.4
The government also challenges the district court’s determination, pursuant to the “involved” prong of § 3A1.4, that there was insufficient evidence to find that Awan’s conduct was “calculated to influence or affect the conduct оf government by intimidation or coercion, or to retaliate against government conduct” under 18 U.S.C. § 2332b(g)(5)(A).
Awan,
The district court reasoned as follows: While the evidence at trial establishes that defendant provided funds to the KCF and that he knew what the KCF was likely to do with those funds, it is speculative to conclude that the defendant had any particular motive in mind and, in particular, that he was motivated by a desire to influence the policies of the Indian government or retaliate for some unspecified wrong. On the contrary, the evidence supports ... a factual finding that the defendant had private purposes in mind, that he enjoyed associating with terrorists[, and enjoyed] the prestige or potentiаl influence obtained by associating with Panjwar, a leader of the KCF, and with the Pakistani intelligence services, the so called ISI. Indeed, the government itself has previously referred to this motivation. When defendant raised the issue of motivation in his Rule 29 motion, the government first argued (correctly) that there was no need to establish motive to establish criminal intent and then further argued that based on defendant’s statement that he wanted to associate with “terrorists,” “one motive for supporting Panjwar was a desire to associate with peoplе he considered influential and important.” Government’s Rule 29 Brief, p. 34. Since I cannot find from the evidence before me that defendant was motivated by a desire to influence or retaliate against the Indian government, the motivational element of a “federal crime of terrorism” is not demonstrated by a preponderance of the evidence and the terrorist enhancements will not be applied.
Id. (emphasis added) (footnotes omitted).
The district court’s analysis, however, addresses the wrong question.
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Though § 2832b(g)(5)(A) has been referred to as encompassing a “motivationаl element” or requirement,
see, e.g.,
142 Cong. Rec. H3305-01, H3337 (Apr. 15, 1996), that characterization is more confusing than helpful. Section 2332b(g)(5)(A) does not require proof of a defendant’s particular motive. “Motive” is concerned with the rationale for an actor’s particular conduct.
See, e.g., United States v. Aguilar,
Here, whatever Awan’s motive might have been in committing the crimes for which he was convicted, commission of crimes listed in § 2332b(g)(5)(B) satisfies the “involved” prong of the terrorism enhancement so long as the government shows by a preponderance of the evidence that Awan had the “specific intent,”
Stewart,
The government correctly points out that there is little doubt that Awan (1) knew that the objective of Panjwar and the KCF was to influence the Indian government through violence, and (2) knew that the money he provided to the KCF would be used toward that end. Awan may not have been personally motivated by that objective. Awan may have been motivated, as the district court found, by a desire for the prestige and potential influence obtained by associating with a terrorist like Panjwar, while lacking “any political motivation and, in particular, any motivation having to do with India.”
Awan,
III. Conclusion
Because the district court failed to consider the application of the “intended to promote” prong of U.S.S.G. § 3A1.4 to Awan’s conduct and misconstrued the “involved” prong, we VACATE the sentence imposed by the district court and REMAND for further proceedings consistent with this opinion.