*1 America, States of United VI. Plaintiff-Appellant, affirm the foregoing, we light of the of motion v. denial Sudan’s court’s district jurisdic- subject matter for lack dismiss Abdur-Raheem, Hammad of Sudan’s the remainder and dismiss tion Defendant-Appellee. jurisdiction. appellate for lack of appeal 04- 04-4519 No. 04-4520 No. Nos. AND IN PART DIS- AFFIRMED No. No. 05-4818 05-4811 IN PART. MISSED No. 05-4893. of Appeals, States Court
Fourth Circuit. Argued: May 2006. Sept. Decided: America, STATES of UNITED
Plaintiff-Appellee,
v. KHAN, Defendant-
Masoud Ahmad
Appellant. America,
United States
Plaintiff-Appellee,
v. Chapman, Defendant-
Seifullah
Appellant. America,
United States
Plaintiff-Appellee,
v. Abdur-Raheem, Defendant-
Hammad
Appellant. America,
United States
Plaintiff-Appellee,
v. Khan, Ahmad Defendant-
Masoud
Appellant. America,
United States
Plaintiff-Appellee, Chapman, Defendant-
Seifullah
Appellant.
ARGUED: John Kenneth Zwerling, Zwerling, P.C., Leibig Moseley, & Alexan- dria, Virginia; Jonathan Shapiro, Alexan- dria, Virginia; Cummings, William B. Al- exandria, Virginia, for Appellants. Gordon Kromberg, Dean Assistant United States Attorney, Office of the United States At- Alexandria, torney, Virginia, Appellee. ON BRIEF: McNulty, Paul J. United Alexandria, and Virginia, procedural history scribe the facts Attorney, States applicable to all of defen- generally Appellee. Facts to each specific dants. defendant DUNCAN, and Before WIDENER in the will be set forth discussion of the R. Judges, and JOSEPH Circuit arguments of each. GOODWIN, Judge District United States Virginia, for the Southern District of West I. sitting by designation. 11, 2001, September and Between 1999 Khan, Chapman in and Hammad attended part; part in remanded Affirmed Judge Duncan wrote published opinion. Arqam al Islamic in Dar Center Falls Judge in majority opinion, (“Timi- which Church, Virginia where Ali Timimi Judge a joined. Goodwin wrote Widener mi”), lecturer, spoke of the ne- primary part in concurring separate opinion cessity jihad1 against engage violent part. dissenting of time” the enemies Islam and the “end Muslims and non-Muslims. battle between OPINION attendees, Chap- including of the Several DUNCAN, Judge: Circuit Hammad, organized group man and (“Khan”), ji- Khan Sei- engage Defendants Masoud preparation activities (“Chapman”), and Ham- Chapman fullah had. (“Hammad”) appeal mad Abdur-Raheem spring members a bench trial after their convictions through combat group began simulating conspiracy related
various counts firing at practices exercises2 paintball against conflict United wage armed summer, the ranges. By early group wage armed conspiracy to and a every Chapman, other weekend. meeting country with whom conflict Hammad, style brought AK-47 others peace. Khan States is prac- training and also paintball rifles to portions those appeal also marksmanship. were re- ticed Members multiple viola- sentences related their three rules: don’t tell quired to follow 924(c). The govern- tions of 18 U.S.C. *7 anyone, and invoke the anyone, bring don’t de- cross-appeals the district court’s ment self-in- right against Fifth Amendment significantly Hammad cision to sentence by police. questioned if the crimination by the Sen- range the recommended below tencing Guidelines. had Chapman Hammad and Because they assisted in military experience, prior below, we explained
For the reasons conducting and paintball the drills leading of defen- convictions all three affirm the eventually took training. Chapman and the as as sentences of Khan well dants intensity. However, Ham- the drills’ we reverse over increased Chapman. and and re- unreasonable mad’s sentence as that members Chapman group told the to district court for re-sentenc- mand to enforced fight; to learn he going were ing. physical training imposed Draconian and infractions rules for punishment complex lengthy of the
Because case, recreational initially de- were out-of-character we background of this military game is that simulates holy 2. Paintball undertaken as a sacred Jihad is “a war try players one team combat in which Unabridged duty by Webster’s Muslims.” players opposing team on the eliminate ed.2001). (2nd. Dictionary 1029 dye capsules shooting of water-soluble air rifles. powered them from paint-ball pastime. example, being purchase For over the internet a wireless video push in neutral made to a car was module and a in an control module for use punishment meted out tardiness. The (“UAV”). unmanned aerial Singh vehicle skills, group also learned combat such as an system selected video airborne with a attack, helicopter ap- how to avoid a camera and transmitter able to transmit pear pur- inconsistent with recreational images video from a UAV back to a receiv- suit. er from as far 15 miles away. had Lash- group Members ties to military video camera could be used in (“LET”), military wing kar-e-Taiba helping artillery reconnaissance and in aim organization initially Pakistani founded weaponry other across enemy lines. jihad against to conduct in Af- Russians placed Singh his from England, order but ghanistan. 2003, LET Between 1999 and vendor unable confirm the over- primarily focused on from expelling India Chapman seas credit card. and Khan as- through Kashmir. Both its website and Singh completing sisted purchases. through means, other LET proclaimed its 2002, In Singh the summer of visited Vir- in a number involvement ginia, staying first with and then acts, particularly against violent India. with Khan. addition, In LET that it provid- advertised jihad ed training camps free in Pakistan. 11, The terrorist attacks of September paintball One member of Mr. group, 2001, affected paint- both the focus of the Hamdi, openly go wanting discussed group relationship ball and the of its mem- fight ultimately in Kashmir and as a die Argam bers to the Dar al Islamic Center. martyr combat. Hamdi traveled night, argued That Timimi that the attacks in August Pakistan 2000 and was admitted should be condemned. He was there- camps. there, to the LET While he fired after not invited to lecture at al Dar Ar- positions on Indian in Kashmir. Upon his gam, and the tapes speeches return, rejoined paintball he group However, destroyed. on September informed others mission about LET’S paintball Timimi met group, India, Israel, destroy and the United including Hammad, Khan and at a mem- States. Chapman, ber’s house. still at LET FBI September agents visited camps, was not present. Timimi said Chapman and asked him paint- about the the September justified 11 attacks were ball interview, activities. After this mem- and that it obligatory religious was the group bers of the they discussed whether duty present of those to defend the Tali- light should continue in govern- *8 against ban the troops American that were knowledge They ment’s of their activities. expected Afghanistan to invade in pursuit so, decided to do heightened but with se- Al-Qaeda. of The discussion focused crecy. training at the camps necessary LET Seeking more and fight- intense realistic preparation fight with the Taliban ing experience 2001, in the summer of against the United of States. Several Chapman traveled to the LET camps in members, Khan, including expressed their there, Pakistan. While he participated in intent to train at LET camps and training and fired various hand- rifles and fight Afghanistan in after training their guns, including at least one automatic complete. purposes was For weapon. time, their trav- During that Chapman also el, they agreed met an LET official in Pakistan that Khan would their be 2002, Singh. name of In Singh “emir,” tried or leader. Caliph him. the FBI from told camps LET statement
Khan trained During jihad that training six paintball weeks. that was used approximately different time, through four he traveled that reason the trainees had ac- and training in commando and received camps AK-47-style they rifles quired was reconnaissance, tactics, hand-to-hand com- type weapon used overseas. were He in- bat, skills. received survival and admissions’, Hammad learned of the When including weapons, on and used structions colleague he called a with the “bad news” rifles, guns, machine automatic AK-47 Caliph had “cracked.” rocket-propelled gre- guns, anti-aircraft a investi- government’s As result sentry nades, performed and mines. He Hammad, Khan, and gation, Chapman, tasks for and routine maintenance duty Donald along eight Caliph, with others — time, Khan left During this LET. II, Kwon, Yong Surratt Ki Muhammed least once personal business at camps on Hasan, Khwaja Randall Todd Aatique, shortly thereafter. returned Al-Hamdi, and Royer, Ibrahim Ahmed Sa- a war troops began ground American bri Benkhala —were indicted in June 2003 the Taliban on or October against about concerning conspira- offenses various 2001, 20, mid-November Ameri- By cy military expeditions engage defeating troops were Tali- can and allied against India and the United States. Afghani- throughout northern ban forces 13, 2001, the Taliban stan. On November Surratt, Kwon, Aatique, Hasan all of Ka- Afghan capital withdrew from the cooperated pleaded guilty before trial and bul, with the United and forces allied government. with the As result their By city. No- took control of assistance, superseding indictment was had retreated to Taliban forces vember remaining seven de- against returned 2001, while at In November Kandahar. 2003.3 Because of September fendants through camp, Khan radio LET learned Taliban, attempts to with the fight quickly forces that American were reports charged conspiracy Khan was with defeating Afghanistan. the Taliban States, a con- levy war Further, that Pakistan had he learned to Al- spiracy to provide material Afghanistan and its border with closed Qaeda, conspiracy and a contribute ser- his travel LET not facilitate would Neither vices to the Taliban. Moreover, Pakistani authorities there. these con- charged nor Hammad foreigners aggressively removing spiracies. result, Khan left camps. As a from 2004, Royer and Hamdi January fall ever camps in the without sepa- was tried pleaded guilty. Benkhala Afghanistan. having reached government The rately acquitted. investigation into the government’s Ham- Caliph, Chapman, proceeded against Hammad, Khan, Chapman, activities Hammad mad, Chapman and and Khan. colleagues public their became Feb- trial from to have their severed moved a search warrant was ruary when Khan’s, that would that evidence arguing March at Timimi’s house. On executed *9 preju- against Khan would presented be approached Caliph Abdur the FBI to a trial. The district right dice their fair paintball of (“Caliph”), one Raheem severance. the motion for court denied in with who was tried defendants members Hammad, then moved and Khan Chapman, acquitted, and obtained case and this indictment, every of the in- against count government proceeded count 3. Because the thirty-two applied to each defendant. single dictment in a all seven defendants (18 trial, 960); for which Neutrality § a bench the district court late the Act U.S.C granted.4 (2) conspiracy one count of to contribute LET, support material to and knowing trial, government presented
At
it
intending that was to be used in prepa-
by
to the
Caliph
statements made
FBI
ration
in carrying
for and
out a conspiracy
paintball
that the
activities were intended
training
jihad,
injure
to
and that the train-
to kill
persons
foreign
be
or
in a
coun-
style weapons
ees had obtained AK-47
try with which the
is at
United States
type weapon
because that was the
of
used
peace
2339A;
§
in violation of 18 U.S.C.
govern-
in
After the
combat overseas.
(3)
conspiracy
and
three counts of
to use
presentation
against
ment’s
of evidence
in relation
firearms
to a crime of violence
him, Caliph
pursu-
for an acquittal
moved
§
in
of
violation
924. Hammad
U.S.C.
ant
Federal Rule of
to
Criminal Procedure
counts,
acquitted
was
on four
but convicted
granted
29. The
district court
mo-
(1)
following
on the
three counts:
one
result,
testified,
tion. As a
Caliph never
conspiracy
count of
to violate the Neutrali-
opportunity
and
co-defendants had no
(18
(2)
ty
960);
§
Act
U.S.C
one
of
count
to cross-examine him concerning his state-
conspiracy to
contribute material
ments.
LET,
to
knowing and intending that it was
trial,
At the conclusion of the bench
to
preparation
be used in
in carry-
and
court
a comprehensive opin-
district
wrote
ing out
conspiracy
injure per-
to kill or
detailing
ion
against
the evidence
the three
foreign
sons in a
country with which the
remaining
referencing
defendants and
peace
United
is at
in
States
violation of 18
of
wealth
cumulative
evidence
record.
2339A;
(3)
U.S.C.
one count of con-
Khan was
on
acquitted
four counts and
spiracy
use
in
to
firearms
to a
relation
(1)
following
convicted on the
eight counts:
crime of violence in violation of 18 U.S.C.
one count of
in
conspiracy to enlist
armed
§ 924. The district
it
court noted that
against
conflict
the United
in viola-
opinion only
included in its
fraction
2390; (2)
§§
tion
U.S.C.
one
the facts supporting the
convictions
of conspiracy
levy
count
to
war
have,
time,
that it could
included four
States in
violation of 18 U.S.C.
many
times
(3)
opinion
facts in its
in
2384;
sup-
conspiracy
one count of
port of
its conclusions.
contribute services
Taliban
viola-
(4)
1705;
tion of 50 U.S.C.
one count of
appeals
Before the initial
con
these
conspiracy to contribute material support
briefed,
victions were
the case
re
was
LET,
knowing and
that it
intending
was
manded for
re-sentencing
light of Unit
in preparation
be used
in carry-
Booker,
220, 125
ed States v.
543 U.S.
S.Ct.
ing
conspiracy
injure
out a
per-
kill or
(2005).
487 engage or the Khan, Hammad now enlist within United States Chapman, and their and sen- timely appeal convictions subject any place jurisdiction or to the govern- grounds. tences various thereof, (3) with intent to serve armed cross-appeals Hammad’s timely ment hostility against the United States. sentence, arguing that it constitutes an 371, §§ 2390. The ele- U.S.C. essential the recom- variance from unreasonable (1) conspiracy ments of Count Two are Sentencing range. Guidelines mended (2) down, over-throw, put destroy to or to each defendant’s indi- We first address the of the by force Government that, respect to one argument vidual them, States, levy against to war or to or indictment, there or more counts thereof, by authority the or oppose force to his support was insufficient evidence hinder, by prevent, delay force to or the argu- address the conviction. We next States, any execution of law of the United apply that to defendants as ments seize, take, any or possess or force to validity concerning the of their group property contrary of the United States to We conclude and sentences. convictions by addressing government’s cross-ap- authority 2384. thereof. U.S.C. peal. Four are The essential elements of Count (1) (2) willfully or conspiracy to make
II. funds, or any goods, of receive contribution first chal Each of the defendants services, to or for the of the Tali- benefit convictions, they arguing lenges 1705(b); ban. 50 U.S.C. C.F.R. supported by sufficient evidence. § 545.201-545.208. sufficiency we evi When assess of a criminal conviction on direct dence sufficient evidence to There was review, jury must verdict be “[t]he [the] findings guilt court’s support the district evidence, if there is sustained substantial group on all these counts. When taking the view most favorable to Gov meeting discussing go members were ernment, it.” to Glasser v. United Afghanistan to aid the Taliban ing to States, 315 U.S. 62 S.Ct. States, against the United Khan exhorted (1942). argu L.Ed. 680 We address each Afghanistan to with him to go others in turn. ment weak heart- because “the cowards and the J.A,
A. Khan’s Convictions away.” 1013. are the first to run ed fact, did, in to Pakistan to Khan travel camps, and training in the LET engage in Khan that there was argues to that Khan intended there was evidence presented at trial sufficient evidence fight with the Taliban go Afghanistan (1) One, support his convictions for Count training. the United States after against conflict to enlist in armed conspiracy also as the leader of Khan was selected against in violation of 18 the United States All in Pakistan. group they when arrived (2) 371, 2390; Two, §§ Count con U.S.C. di members that Khan led group levy against the United spiracy war en rectly they intended to testified 2384 and violation of U.S.C. (3) Four, hostilities the Unit conspiracy gage contribute armed Count in violation of 50 services to Taliban found their The district court ed States. 1705(b). disagree. U.S.C. We indeed, credible; it was testimony to be evi conclude that this unrebutted. We One, of Count The essential elements (1) (2) Khan, supports finding conspiracy amply dence applied to are *11 One, Two, guilty Khan was of Counts before in training camps, its he cer- was Four.5 tainly it by aware of the time he returned
to them leaving after temporarily because 2. LET camps were full descriptions of Khan argues exploits. next there LET’S violent was con- We therefore insufficient to support evidence his convic clude sufficient evidence intro- Five, tion conspiracy under Count to con duced a rational trier of fact to find the LET, support knowing tribute material to necessary essential elements for Khan’s intending that it was to be in used conviction under Count Five.6 preparation carrying for and in out a con
spiracy injure to kill in persons or a for Chapman’s B. Convictions eign country with which the United States is peace, in violation of 18 U.S.C. 1. § 2339A. While he concedes he pro The district court found LET, vided material support to Khan con One, guilty Count conspiracy to violate tests that there was sufficient to evidence Act, Neutrality which makes it a crime he demonstrate that knew that LET was to committing intent on acts of or murder
injury to others. We disagree. knowingly begin[] or on or set[] foot broadly
The evidence reflects that LET provide[] prepare[] or a means for or disseminated goals for, its the destruction money part furnish[ ] the or take[ ] India, America, in, and Israel on any military its web or expedition naval or site and personally elsewhere. Khan was enterprise be to carried from thence acquainted Singh, official, an LET against territory any or dominion of whom he in purchasing assisted paramili- foreign prince state, or any colony, or of tary equipment. district, Even if Khan remained people or with whom the United unaware the nature of LET’S activities is at peace. challenges
5. Khan also
hostility,
his conviction under
Compare
but Count
did
Eleven
not.
Count One
ground, arguing
on an additional
924(o).
§
§
18 U.S.C.
2390 with
U.S.C
that,
him,
applied
Count Eleven and
firearm,
required
Count Eleven
use
of a
Count One were identical offenses. A defen
Compare
but Count One did not.
18 U.S.C.
cannot,
course,
dant
punished
be
two
924(o).
§
2390 with 18 U.S.C
Because
crimes that constitute the "same offense."
required proof
each Count
of a fact that the
States,
292, 297,
Rutledge v. United
517 U.S.
not,
offense,
they
did
other
are not the same
(1996).
116 S.Ct.
we do that firing “only” his five supported dence all convictions for all de- training conspiracy bullets as for the to fendants. Neutrality violate the Act does not consti tute use of a firearm for purposes of III. 924(c), ignores it testimony of Hamdi A. Denial of Motion to Sever and training others about the in and exten Chapman Ham- Defendants sive use of LET camps. firearms argue mad that the district court erred
This evidence amply supports finding denying their motions to their trials sever that Chapman used firearms at the LET They from Khan’s. contend that the evi camp furtherance of conspiracy against dence admitted Khan concerning commit a crime of violence. conspiracies Al-Qaeda to aid and the Taliban, which would not have been admit
C. Hammad’s Conviction
against
ted
Chapman and Hammad in a
Hammad was convicted under
trial,
separate
prejudicial
was so
as
conspiring
Count Five of
ma
contribute
deny
right
them their
to a fair trial. We
terial
to LET in violation of 18
disagree.
U.S.C.
knowingly
2339A because he
trained
through
paintball
individuals
grant
“The
or denial of a mo
military
exercises in
techniques for use
tion for severance ...
is within the trial
with LET.
argues
Hammad
that he did court’s discretion and will not be over
Instead,
knowingly.
not do so
argues,
he
turned absent a clear abuse of that discre
West,
he trained
group
members of the
for re
tion.” United States v.
877 F.2d
(4th Cir.1989).
physical
creation and
fitness and did not
“Generally,
287-88
in
train
group
members of the
for LET
together
after
dividuals indicted
should be tried
challenges
7. Hammad also
his conviction un-
use firearms
in relation to crime of violence
924(o).
der Count
Chap-
One for the same
as
reasons
in violation of 18 U.S.C.
Because
deny
challenge
man. We
his
for the same
evidence
engaged
demonstrates that Hammad
See,
deny Chapman’s.
supra,
reasons we
among
Sec-
sale
and transfer of AK-47s
Finally,
challenges
conspirators,
tion II. B. 2.
Hammad
we find that sufficient evidence
Eleven, conspiracy
supports
conviction under Count
his conviction on this count.
Strickland,
Rights
Trial
Jury
B. Waiver of
together,” United
Cir.2001) (internal
quo-
368, 384
F.3d
having
motion
Their severance
omitted),
defendant is
“[a]
tation
denied,
been
Hammad
merely
sepa-
because
entitled to severance
moved
alternative for a waiver of
likely
in ac-
more
result
rate trials would
trial
to Federal
jury
pursuant
Rule
the evidence
quittal, or because
joined
Khan
Criminal Procedure 23.8
this
strong
not as
is
one defendant
motion,
government agreed
the re
(internal quotation
Id.
against the other.”
waiver,
court
the district
ulti
quested
omitted).
must
“show
A defendant
instead
not,
mately granted
court did
it. The
how
ruling
in order for
court’s
prejudice
*14
ever,
jury trial waiver
signed
obtain a
from
Con-
an abuse of discretion....
constitute
opposed
the defendants as
to their counsel.
may
it
be
be sustained if
victions should
any
The court
not conduct
collo
also did
[fact
the verdicts that
inferred from
with
on the record
quy
defendants
con
meticulously sifted the evidence.”
finder]
cerning the waiver.
Porter,
968, 972
v.
821 F.2d
United States
(4th Cir.1987).
now argue
The three defendants
case, Chapman and Hammad fail
In this
jury
that the
trial waiver was invalid be
from
prejudice resulting
to demonstrate
cause the-
court did not obtain their
district
ruling.
in-
court’s
The record
the district
conduct
col
written waiver or otherwise
factfinder,
judge,
that the
shows
stead
on
that
loquy
the record to determine
their
against
“meticulously sifted
evidence”
voluntary, and
knowing,
waiver was
intelli
all
defendants
did not demon-
See,
States,
gent.
v.
e.g., Adams
United
toward
other defen-
prejudice
strate
269, 277-78,
63 S.Ct.
U.S.
on the
admitted
based
evidence
dants
(1942) (noting
L.Ed. 268
that a defendant’s
with
against
Chapman
charged
Khan.
was
right
must be
jury
compe
waiver
trial
not
guilty
and found
two
seven counts
this
intelligent).
tent and
review
claim
We
charged
seven
Hammad was
them.
Robertson,
v.
de novo.
States
United
guilty
of four of
counts and found
(10th Cir.1995).
1423, 1430
F.3d
was
en-
Caliph
acquitted
Defendant
them.
Federal Rule of Criminal Procedure
findings,
particularized
These
tirely.
23(a) states
that
can
the fact
defendants
along with
jury
in
in
to a
point
no instances
the record which
If the
is entitled
defendant
judge displays
trial,
to-
prejudice
by jury
the district
unless:
trial must be
defendants, indicate that the defen-
ward
(1)
jury
waives a
trial
defendant
fair
on
received a
trial based
dants each
writing;
against
properly
the evidence
admitted
(2)
consents; and
government
not on the evidence admitted
them and
(3)
approves.
the court
co-defendants.
therefore
their
We
23(a).
rely
Defendants
Fed.R.Crim.P.
court
not abuse
hold that the district
did
cases,
notably
heavily
most
United
refusing to
Chapman
sever
its discretion
(10th
Robertson,
States v.
Double “[t]he court must fendant shall given be additional sentences concern underlying itself with whether the each “second or subsequent convic- 924(c) supporting § crimes of violence 924(c)(1)(C); § tion.” U.S.C. see also charges duplicative are under a States, double Deal v. 129, 135, 508 U.S. jeopardy analysis. long underly- As as the (1993)(not- S.Ct. L.Ed.2d 44 ing crimes are not identical under ing that “utterly there is ambiguity” no Blockburger analysis,10 then consecutive meaning of the word “conviction” as 924(c) permissible.” sentences are 924(c)). Id. words, used in In other there is no housekeeping requirement under the
Defendants concede that each of the un-
statute or Luskin obliging
gov-
either the
derlying crimes of
violence
this case
ernment or the district court to present
924(c)
supporting
charges “may
abe
the facts in such a
align
manner as to
separate
purposes
offense for
of a Block-
particular
use of a
firearm
particu-
with a
and,
burger analysis,”
accordingly,
lar predicate offense. The fact that the
they do not run afoul of the Double Jeop-
district court
present
chose to
the facts of
ardy
Appellants’ Reply
Clause.
Br. at 46.
this case as one
allegations
list of factual
however,
They,
attempt
distinguish
Lus-
does not mean that the crimes that derived
kin, arguing that both the indictment and
from those factual allegations
all
opinion
the district court
listed all of the
identical
aas matter of law.11
predicate
general
counts on
same
fac-
distinction, however,
tual allegation. That
924(c)
E. Section
Sentence
emphasizes
irrelevancy.
an
plain
lan-
as Unconstitutional
guage of the statute
not speak
does
“general
allegations”
factual
or a “course
Citing United
v. Angelos,
Instead,
of conduct.”
it states that a de-
(D.Utah, 2004),
F.Supp.2d
deten-
may
fenses,
tions
have arisen from his
may
activities dur-
each
a consecutive
ing single
month in
924(c)
October
this court
requiring
sentence without
the court
expressly
consistently
has
rejected
first to enumerate “uses” of firearms.
notion that the convictions should therefore
*17
single “episode”
be
purposes
considered a
10.
Blockburger analysis,
Under the
multiple
924(c)
underpinning
§
violation. See
statutory provisions describe identical of
Luskin,
372,
United States v.
926 F.2d
376
provision requires
fenses unless “each
proof
(4th Cir.1991) (insisting
'epi-
that “there is no
of a fact which the other does not.” Block
924(c),”
sode'
referring
test under section
States,
299,
burger
304,
v. United
284 U.S.
52
requirement
in some
pre-
circuits that the
180,
(1932).
S.Ct.
495 arguments under Defendants’ lengthy that sentences argue dants Due “count-stacking” provisions Equal Protection and Process by imposed 924(c) long as constitute unavailing. §of are so equally Defen Clauses are equal process, protection, 924(c) of due violation that acknowledge dants violates prohibition Amendment Eighth and the Due Equal Protection and Process punishment. and Unusual against Cruel only they clauses if can demonstrate that opined court In the district Angelos, Appel statute a rational basis. lacks 924(c) are mandate can sentences easily Br. The statute meets lants’ at 77. at Id. “the realm reason.” outside of Discouraging prevent this standard. Notwithstanding personal opin- ing the of firearms the commission use however, concluded ion, judge the district a legiti crimes constitutes of violence- him precedent compelled the relevant v. purpose. mate state See United States by the sentence mandated impose the (10th Cir.2006). 738, Angelos, F.3d 754 Angelos agree Id. We statute. addition, mandatory sentencing ration precedent that we are bound court purpose by ally legitimate relates to this 924(c) constitutionality uphold the incapacitating those who have demonstrat imposed in this case. sentences engage ed a in this behavior willingness (cid:127) argu Eighth Amendment Defendants’ may contemplate who deterring those “Severe, unavailing. man simply ment is Therefore, Id. engaging this behavior. cruel, may they be are datory penalties but 924(c) mandatory § we hold that the sen sense, in the constitutional not unusual imposed tences in this case violate neither forms employed been various having process.12 due equal protection nor Harme history.” Nation’s throughout our 957, 994, 111 Michigan, 501 U.S. lin v. Caliph’s F. The Use of (1991). “The L.Ed.2d 836 S.Ct. Trial Statements a sen has never held that Supreme Court argue that it was The defendants if it years, term of even specific to a tence Amendment’s Con violation of Sixth more than the reason turn out to be might frontation for the district court Clause defendant, con expectancy able life their co-defen admit statements punishment.” cruel and unusual stitutes dant, against them without allow Caliph, Beverly, 369 v. F.3d United States to cross-examine ing opportunity them the (6th Cir.2004). mandatory Even a sen life that the district court They him. contend passes tence constitutional muster. Unit Caliph’s statements improperly considered Kratsas, ed F.3d *18 agents paintball FBI activities that Cir.1995). Accordingly, we that the hold jihad training intended to be were imposed on defen mandatory sentences overseas, obtained the trainees and that case, not lengthy, while do dants in this that was AK-47-style weapons because punishment and unusual constitute cruel in combat type weapon used over- Eighth Amendment. pursuant to discretion.”); sentencing any Rum argue mandatory the courts that also 12. Defendants 263, 274, Estelle, 100 S.Ct. U.S. separation mel v. 445 case violate in this sentences ("[Ojne 1133, (1980) could by placing sentencing deci L.Ed.2d powers principles any by argue of contradiction legislature without fear in the hands of sions for crimes con- decision Court that argument of this been round judiciary. This has felonies, See, cededly and classifiable e.g., classified ly rejected. 467, 1919, actually 453, im States, length the sentence ... 111 S.Ct. 500 U.S. legislative prerog (1991)("Congress posed purely is a matter of power has the L.Ed.2d 524 ative.”). giving punishments define without criminal allowing opportuni- seas without them the testimony,” including er “at least three or ty Caliph on that point. cross-examine four other who essentially witnesses said Specifically, they that argue the district thing.” the same J.A. 3268. The court improperly Caliph’s court used statements expressly Caliph’s also noted that testimo- them, against they even though sup- ny piece was not the main of evidence on posed to be only against Caliph. admitted which it relied for its characterization of reasons, that, For the following we hold paintball group and that “[t]here the extent admission these tons of other evidence besides the state- error, statements was in the error was ment of Caliph.” J.A. 3269. The court harmless. Caliph’s concluded that the admission of statement was in light harmless
The Supreme
recently
Court has
held
that,
“other evidence on
Amendment,
the same issue.”
under the Sixth
Id.
“testi-
statements,
independent
Our
monial” out-of-court
review of the
such as
record con-
those
during
Caliph’s
made
firms that
police interrogation,
statements were dupli-
are
inadmissible
un-
cative
defendant
of a wealth of other evidence and
less that defendant
opportuni-
has had the
that the defendants’ convictions and sen-
ty to cross-examine the declarant. Craw-
tences would not have differed had Cal-
v. Washington,
68-69,
541 U.S.
iph’s
See,
statements not been admitted.
ford
(2004).
124 S.Ct.
We do not reach the question of
Caliph’s
whether
statements were admit
Chapman testified at trial that he
ted in violation of the Sixth Amendment
attended the LET camps and did not hide
because, to the extent that any error oc his attendance because his motives were
curred, it was harmless.
Lilly
See
v. Vir
innocent.
government
impeached this
116, 139-40, 119
ginia,
527 U.S.
S.Ct.
testimony by introducing un Mirandized
(1999)
The district court expressly against found that him for any purpose. argu This Caliph’s statement was “cumulative of oth- ment fails.
497 confession, accept concerning the so we that state agree parties The (indicating See J.A. 244-80 as true. of Miranda them obtained violation ments attention witness, medical but received that to impeach used can be and interrogation FBI the involuntarily the before from that were made statements force or physical no of at all. indication providing against a defendant used cannot be him). 385, Arizona, physical of force 437 U.S. threats See, Mincey v. e.g., (1978) 2408, L.Ed.2d 98 S.Ct. limits the to be off For statements are involuntary that statements (noting “involuntary,” the to cross-examination prod the not made that were statements they have to that were facts would show will). The issue or rational free uct of of a rational intellect product not “the the statements us is whether before at Mincey, 437 U.S. a free will.” we Though involuntary. were question omitted) (re (internal quotation S.Ct. 2408 an determination independent make “must seriously interrogation the of garding voluntariness, the district the issue on suffering unbearable defendant wounded circum findings of fact on court’s coma, in a on his back lying almost pain, are to surrounding the confession stances care encumbered intensive unit an erroneous.” clearly accepted unless be needles, tubes, breathing apparatus). Cristobal, 293 F.3d will whether a defendant’s “To determine Cir.2002). for self capacity overborne or his has been case, found court the district In this critically impaired, [we] determination that: circum ‘totality of the consider must were statements
although Chapman’s stances,’ including the characteristics constitutional interview, in violation of his procured defendant, the setting Miranda, not they were under rights interrogation.” details of the and the There was involuntary Mincey. under case, Cristobal, F.3d 140. In this at agents government that no evidence indicates totality circumstances through Chapman’s coerced statements volun Chapman’s that statements were threats pressure or imminent physical freely answered some tary. Chapman Moreover, state- harm. physical others. to answer questions declined statements exculpatory were false ments told them joked agents, He admissions, suggests than which rather him, and rights not need his read he did to make Chapman’s, decision them. On this anxious talk with seemed one, and was a calculated statements record, to find district refusal court’s that his rational intellect thereby involuntary statements to be Chapman’s For had not overborne. free will been use of those Accordingly, correct. was reasons, not were statements these app was statements cross-examination impeachment. purposes excluded ropriate.13 3383. J.A. H. Selective Prosecution case in this review of the record
Our
that the
finally argue
Defendants
court did
the district
indicates
dis-
denying them
erred in
findings
district court
clearly
making
err
its factual
question Chapman’s credibil-
many
Chapman reasons
to allow
13. Even if it
error
the false
lack of
basis of
her
ity,
cross-examined on the
and that
conclusions about
be
issue,
error was
exculpatory
solely
even to
credibility
statements
or
"were not based
only
relevant
harmless.
statements
degree
particular false
any significant
on that
Yet,
credibility.
Chapman's
to undermine
exculpatory statement.” J.A.
judge specifically
that she found
district
noted
*20
1996)
eovery on
prosecution
added).
their selective
claim.
(emphasis
Finally, “when
Specifically, they contend that
govern-
we review a district
discovery
court’s
order
ment
investigated
has not
and prosecuted
claim,
of a selective-prosecution
alleged
other
organizations,
terrorist
such
determining
we are
legal adequacy
as the
Fighters
Cambodian Freedom
or
the evidence. We review the legal adequa
Republican Army,
aggressive-
the Irish
cy of evidence de novo.” Id. at 743.
ly as it
investigated
prosecuted
has
case,
In the present
defendants do not
them, leading to an unconstitutional denial
make a showing that
the other alleged
right
their
to “equal protection under
groups
terrorist
about which they com-
the law.”
plain
“similarly
are
situated” to them for
A selective-prosecution claim purposes prosecution.
selective
Defen-
judicial
asks a court to
power
exercise
over dants contend that
only
“the
distinguishing
‘special province’
and,
of the “Executive”
factor between
other alleged
[the
terrorist
accordingly,
pass
high
must
threshold in
groups] and
appellants,
is that
order to succeed. United States v. Arm
appellants are Muslim in
post-9/11
strong,
456, 464,
1480,
U.S.
116 S.Ct.
Appellant’s
world.”
atBr.
88. This conten-
(1996).
499 weight” any relevant factor and must range. cross-appeal This ing Guidelines just at again to consider what a fair and result.” Id. causes once us “effectn “reasonable” af- makes federal sentence 457. Booker, 220, v. 543 States U.S.
ter United understanding enhanced this We later (2005) 264, 738, L.Ed.2d 621 160 125 S.Ct. v. More reasonableness United States (“The appeals sentencing review courts land, (4th Cir.2006), noting F.3d 424 437 unreasonableness.”). For the decisions for that, the district court does not need while below, that, un- we hold discussed reasons 3553(a) the factors checklist discuss Hammad’s sentence precedent, der our fashion, explain the court must reason the downward var- represents an unreasonable sentence, ing any sen particularly behind guideline iance from recommended vary range tences that from the recom and, result, remand for re- range we In by the Guidelines. Id. at 433. mended sentencing.14 particular, we held that farther the “[t]he Green, v. 436 F.3d advisory guideline court from diverges the (4th Cir.2006), held that 455-56 we range, more the compelling the reasons defendant, district courts to sentence at divergence must be.” Id. 434. (1) properly must calculate sentence mind, guidance in we turn With this now Sentencing range recommended parties the sentence this case. The (2) Guidelines; whether a determine agree district.judge cal- properly that and range within that within sentence range as 97- culated Hammad’s Guidelines set statutory limits serves factors imprisonment. The 52-month months 3553(a) and, not, if U.S.C.] forth in [18 him re- imposed sentence on therefore those select a sentence that does serve dis- significant reduction.15 The flected (3) factors; mandatory implement statu- as fol- explained trict court the reduction (4) limitations; tory articulate the and lows: selecting particular sen- reasons the Court is re- Among things why tence, a sen- especially explaining 3553(a) quired to look at under section Sentencing Guide- tence outside arise any disparities might [are] the relevant range line better serves similar records among defendants with forth sentencing purposes set of similar conduct. guilty and found 3553(a). Mr. [Hammad] Mr. and Both Surratt any emphasized Id. also variance We as I military experience, recall. had must range from be based the Guidelines rec- completely clean Both of them had 3553(a) indi- on the further factors ords, partic- I overall think their that, falling cated for sentences outside paintball in the activities ipation court must range, a district Guidelines roughly to their that led convictions adequate reasons provide an statement equivalent. rely permissible the variance which I have are some differences There making factors in the variance. Id. example, For into consideration. that a taken Finally, we noted reason- 456-57. during trial give there was evidence cannot “excessive able sentence prece- does not accord with those sentence that the district court sentenced 14. We note way as any criticism is not meant in July, dents without the bene Hammad on Green, court. district precedent States v. fit of our in United (4th Cir.2006), or United States F.3d Cir.2006). Moreland, was still within sentence Hammad’s F.3d range. statutory Accordingly, that Hammad’s our conclusion *22 heart, necessary independent about between this defen- the review of conversations Royer investiga- 3553(a) dant and about the Mr. all culminating of the factors in a recall, going you tion that on. As was was, instead, independent sentence. It an discussions the de- there about [were] 3553(a) all of review of the factors culmi- computer struction of files and that sort nating in the conclusion Hammad’s thing, suggests perhaps which to me sentence should be similar to Surratt’s. level but slightly higher culpability provided process weight,” This “excessive significantly so. Green, 436 F.3d at to “the need to sentence, I an appropriate think that avoid unwarranted disparities sentence this de- taking into consideration what among defendants with similar records did, background, the fendant and been guilty who have found of similar con- reflecting sentence the needs for the 3553(a)(6). duct.” U.S.C. The vari- the promote seriousness of offense to ance, by focusing exclusively almost also, however, respect for and to be law sentence, Surratt’s give proper did not just punishment, adequate to serve as 3553(a) and, the weight to other factors to those in public, deterrence accordingly, led to an unreasonable sen- protect from harm public further tence. defendant, from the that a sen- proper tence is much closer to that that was Moreover, the facts do not imposed on Mr. Surratt. district court’s conclusion Hammad reasons, And for those it is the sentence similarly and Surratt were situated. Sur- of the that' as to ... Court the three ratt was second of the eleven defen- ... counts conviction the defendant plead guilty, only day dants to one after custody be committed to the of the Bu- the first defendant to do so. Surratt ac- reau of for a period Prisons 52 cepted responsibility cooperated by months. providing information led to a su- J.A. 3448-^9. Surratt had been earlier perseding indictment his co-con- sentenced to 46 months. spirators, and then testifying as a witness
We first that the note variance this at gave trial. district court Surratt a case reduced Hammad’s sentence from his three-level sentence for reduction that ac- by recommended guidelines sentence al- ceptance of responsibility. Accordingly, princi- most half. under the contrast, gave Hammad false state- Moreland,- ples outlined in district investigators destroyed ments to evi- court must present compelling reasons trial, dence before to provid- addition judge the variance. The indicated that she ing testimony “incredible” at trial. As a considered result, judge the district enhanced Ham- did, what this defendant his background, sentencing mad’s two level for ob- and the for the reflecting needs sentence justice. words, In other struction to pro- seriousness offense difference between the also, however, mote recommended sen- respect for law and just tencing ranges to be punishment, to serve as ade- Surratt and Hammad quate public, deterrence to those reflect the fact that accepted Surratt re- protect public from harm further sponsibility provided valuable assis- from the defendant.... government, tance to while Hammad accepted never However, responsibility and ob- J.A. 3448-49. the sentence re- justice imposed duction focused structed both exclusively during almost before not, on Surratt’s It sentence. his trial. of 120 imposition of one sentence sen- significant
By Hammad giving gun for his three convictions. that he was months theory on the reduction tence Surratt, district “similarly situated” *23 ignored primary the impermissibly court I. dif- and had Hammad Surratt
reason in ranges charges Superseding Guidelines Indictment recommended ferent separate fact that the Guidelines violations of 18 U.S.C. first the sixteen place: the 924(c). and accept § Most of the counts responsibility J.A. 151-52. treat those who justice differently. multiple We include the charge defendants and those who obstruct conclu- in loca- the district court’s of different firearms different accept cannot use effect, shotgun- to which, provides no benefit dates. The in tions different sion gov- substantially assisting simply the lists the defen- style Indictment Surratt for dates, to involved, approximate the provides punishment no dants the ernment and obstructing used, general Such location for justice. firearms Hammad for page. determi- than one No ignores Congress’ count in less conclusion both each to the concerning attempt provide how treat obstruction is made to notice nation tied to acceptance responsibility, of as to which counts are justice and defendants of be- In- discourages underlying predicate beneficial offenses. potentially which al- stead, ties sixteen future defendants. the Indictment havior from 924(c) § violations all offenses leged instruc- accordingly remand with We 1-10, troubling which is outlined Counts in accor- Hammad tions re-sentence in the charged not all defendants because in Green principles dance with the outlined first charged each of the gun counts are and Moreland. 151. ten counts. J.A. V. under Khan three convictions received conclusion, all of the we hold that 924(c). con- count Khan was § For each supported case convictions in this were “Khan, of, Roy- lists Indictment victed with- and were obtained sufficient evidence er, as the Chapman, and Abdur-Raheem” con- We affirm those out material error. provide Rather than involved. defendants Khan and the sentences of victions and dates, gun other do most exact as Ham- further hold Chapman. We 24- counts, alleges Counts Indictment an vari- was unreasonable mad’s sentence 2001.” The loca- 27 occurred in “October guideline his recommended ance from rather lists but specific tion is re-sentencing. for range and remand only “Pakistan.” The country of entire PART; REMANDED IN type relates AFFIRMED made distinction charges 24 the use IN PART firearm used'—-Count rifle; 25 the AK-47 automatic Count an concurring GOODWIN, Judge, District gun; and Count of a 12mm antiaircraft use dissenting in part: in part and rocket-propelled grenade. use of a 27 the foot-note, explained court the district except In a majority opinion I concur in the these of Khan’s use of III.D, limited nature sentences which affirms Part evi- 924(c) the defendants’ weapons: accept “We § for Sei- 18 U.S.C. imposed under weapons these was firing Khan. dence Masoud fullah very little ammuni- in that Chap- highly limited affirm Though agree I we should According 8195. 924(c) provided.” J.A. sentences, merge tion was § I would man’s evidence, only fired one bullet Khan 924(c) and remand convictions Khan’s 502 Camps Luskin, weapon target.
with each
at some form of
States v.
(4th Cir.1991).
Id.
F.2d 372
In Camps, the
eight
defendant received
convictions under
convictions,
For these three
Khan re-
924(c).
Camps,
F.3d at 105. For
mandatory
ceived
consecutive sentences:
however,
sentencing purposes,
these con-
924(c)
months for
the first
convic-
grouped,
victions were
which resulted
tion,
second,
months
and life
924(c)
only
three
sentences.
Id. The
Judge
prison
the third.
Brinkema ex-
imposed
first sentence was
the use
plained
compelled
that she
to impose
an AK-47
during December
Id. at
She
sentences.
stated
serious,
drug
that these crimes
“but
ambush of a rival
there
boss.
Id. at 103.
*24
murderers
get
are
who
far less time than The second sentence was
a
imposed this,
Al-Qaeda
and I have sentenced
mem-
conviction for
use of an
AK-47
who
planning
bers
were
real attacks on conviction
during
for the use of an Uzi
shores for far
time ...
these
less
and I
January 7,
another ambush on
1990. Id.
you
to tell
sticking my
have
that this is
at 103-04. The third
im-
sentence was
Id.
craw.”
posed for carrying
separate
five
semi-auto-
matic weapons that were seized from a van
II.
using
the defendant was
to flee.
Id.
circuits,*
most
we
multiple
Unlike
allow
at 104.
924(c)
§
convictions for conduct
in the
Judge
court,
Luttig, writing for the
ex-
underlying
same
United
offense.
States v.
plained that
only,
for that case
the court
(4th Cir.1994).
32 F.3d
Camps,
107-08
accepted
government’s
concession that
By allowing
for multiple gun
convictions
multiple firearms carried at one
can
time
uses, even if during the same underlying
924(c)
§
in only
result
one
Id.
sentence.
conspiracy,
comply
congressional
we
at 109 n. 9. I
apply
would
all
this rule to
to harshly punish
intent
the use of guns to
cases where the different firearms relate
felonies,
commit
punish subsequent
and to
objective,
to the same
have the same effect
guns
harshly.
uses
even more
See id. at
predicate crime,
on the
and are
or
used
(1968))
114
(citing
Cong.
108
Rec. 22231
carried
proximately
time.
(“We are also satisfied that this interpreta
924(c)(1)’s
tion best achieves section
un
In Camps, though each grouped “use”
objective
mistakable
‘persuading
the was tied to
underlying drug
conspira-
man who is
commit
tempted to
a federal
cy, each “use” was directed toward a dif-
”).
Felony to leave his
at
g-un
home.’
If
objective
ferent
of the conspiracy, occurred
924(c)
§
multiple
per
convictions were not
at distinctly
times,
different
and had dif-
offense,
for the
underlying
missible
same
ferent effects on the conspiracy. Crimi-
no deterrent would
exist
criminals us
nalizing only the December 1989 use would
ing guns throughout an
conspira
extended
not account for the fact that the defendant
cy-
made the criminal decision to use more
justification
guns
Our rule’s
is apparent from
later to
objectives
further other
examining
924(c)
our
§
decisions in United
v.
the conspiracy.
States
Three
sentences
*
Anderson,
Cir.1992);
Hamilton,
United States v.
were
sentencing purposes.
uses of firearms.
multiple
dant’s
924(c)
majority’s
reasoning,
Under
no
§
Multiple
under
were
sentences
924(c)
boundaries exist for
Luskin,
prosecutions.
justifiable
case
also
is, a drug conspirator
pick
That
could
aup
majority
relies. Luskin hired
which
gun, place it on the table to scratch his
On three distinct
someone
kill wife.
nose, pick
up,
it back
and receive two
occasions,
attempted the mur-
the hitman
924(c)
An itchy
sentences.
nose could
Luskin,
(stating
der.
ber From the it 2001. J.A. 152. firings if impossible
is to determine Khan’s separate objectives,
had different effects conspiracy,
on the or occurred at times not
sufficiently proximate justify multiple
sentences. Evidence does exist firings
record to conclude the constitute
separate sentencing and distinct “uses” for I would
purposes. Accordingly, merge 924(c) sentencing
three convictions for
purposes, and would remand instruc- impose
tions sentence 120 months
for these convictions.
Kay STALEY, Plaintiff-Appellee, *26 COUNTY, TEXAS,
HARRIS
Defendant-Appellant.
No. 04-20667. of Appeals,
United States Court
Fifth Circuit.
Aug.