*1 owed of the amount for a determination specific orders
Plaintiff in commissions termination. to its
placed prior America, STATES
UNITED
Plaintiff-Appellee,
v. GRAHAM, Defendant-Appellant.
Randy
No. 99-1719. of Appeals, States Court
United
Sixth Circuit. 24, 2001.
Argued Jan. 17, 2001.
Decided Dec. *6 by the sentenced
activity. years in or 55 court to 660 months district appeal his con- challenges on prison. He For the follow- his sentence. viction and reasons, the district we AFFIRM ing two motions denial of Graham’s court’s evidence; court’s de- the district suppress counts; motion to sever nial of his briefed), (argued and Meyer Joan E. 3A1.4 application court’s district Attorney for West- of the U.S. Office Sentencing Guidelines States the United Rapids, Grand Michigan, District ern (“U.S.S.G.”) determining Gra- Manual MI, Plaintiff-Appellee. for sentence; court’s the district ham’s briefed), convictions on two sentencing (argued and consecutive Jeffrey O’Hara J. 924(c)(1); and we VA- MI, Defendanb-Appel- 18 U.S.C. under Rapids, for Grand application of the district court’s CATE lant. quan- sentencing range for a statutory MOORE, Circuit BOGGS and Before: jury be- marijuana not found tity of Judge.* COHN, District Senior Judges; doubt, REMAND a reasonable yond resentencing. J., MOORE, opinion delivered BOGGS, J., joined. court, in which I. BACKGROUND 524-544), delivered a COHN, (pp. D.J. dissenting separate opinion. Activity Drug A. Graham’s old, Graham, years who is now 45 Randy OPINION Creek, where he Michigan, lived in Battle MOORE, Judge. Circuit had and thereafter completed high school In he employment. intermittent Defendant-Appellant This case involves Army. He was joined the United States appeal from Randy direct Army discharged from to com- conspiracy criminal conviction for *7 he held vari- Michigan where and returned to States against the United mit offenses trial, Huggett, jobs.1 ous At William drug-re- and possession weapons several Graham’s, of testified close friend jury in the Western by a lated counts marijuana. user of regular was a a mem- Graham Graham was Michigan. of District be- Huggett, he and Graham According to organization ber of a local militia At that marijuana in 1988. gan to sell targets government planning was to attack time, also raid would Huggett Graham date. Graham unspecified on an future In marijuana patches. people’s other marijuana, part of the and sold grew also 1989, they began to Huggett testified help pay for he used proceeds of which marijuana. Working with own grow militia their to his weapons acquisitions related * Cohn, comply with the ba- unable Graham was "to Senior United The Honorable Avern military and instruc- Judge the Eastern District life requirements States District of sic sitting by designation. Michigan, "unsatisfactoiy” performed tions.” Graham work, discharge "surly,” disrespectful attitude had a Graham received an honorable 1. action commanding authority,” officer initiated essen- "anyone after his and was toward Army’s now-dis- discharge ("J.A.”) him under Appendix tially "untrainable.” Joint Discharge Program. Expeditious continued at 1448. commanding reported that officer Huggett, planted marijuana Graham plants group prepare was to for a “war” with the Huggett’s home; later, indoors in they ultimately to overthrow operation moved their outdoors to nearby government. NAM members advocat- 1994, In swamps. year, they their best ed an offensive “first against strike” forty harvested pounds marijuana, al- government, out of fear that govern- though Huggett many stated that years ment planning was an attack against them. they harvested much less. The war was sometimes referred to as an “Armageddon.” J.A. at 1135. The com- police Local seized Huggett’s and Gra- manding officer of the militia was “Colo- marijuana plants ham’s weap- various Carter, nel” Ken who had organized the ons, which were Huggett’s stored on un- group. J.A. at 1133. Bradford Metcalf property, February cle’s 1995. In early was Carter’s second-in-command. Gra- 1996, Huggett and purchased a Graham ham was not leader, considered a but was in which grow marijuana; trailer it was an active member of NAM. From the sum- up next to set the trailer in which Graham mer of 1996 through 1998, March NAM Huggett lived. they testified that harvest- members met at least twice a month at or 24 pounds marijuana ed 23 in 1996. Speed’s Urbandale, Koffee Shop Michi- In Huggett and planted Graham sev- gan or at a mall in There, Kalamazoo. plots marijuana plants en in nearby members would discuss coordination with swamps. In the summer or fall of other militia groups and political events as Drug Team, the Southwest Enforcement well as coordinate training exercises and drug group, interdiction seized six of the plan their attacks. Various dates for at- patches marijuana seven plants. Hug- selected, tack were beginning with June that, gett testified in 1996 and Gra- 1997, although date each subsequently ham would sometimes carry with him a postponed by Carter. they firearm while tending were their mar- ijuana patches. Huggett also testified that Alcohol, Undercover Tobacco, Bureau of used money Graham drug from his (“ATF”) and Firearms Agent Robert purchase activities to weapons and for liv- Stumpenhaus infiltrated NAM sometime ing expenses. April Agent Stumpenhaus testified at trial that participated he in over ten Activity B. Graham’s Militia meetings Speed’s and at the mall with Graham Huggett were members of various members Stumpenhaus of NAM.2 militia group called Michigan Militia and other witnesses who testified at trial years the early Wolverines of their reported mar- among activities, their NAM ijuana cultivation business. Huggett testi- collected and stockpiled weapons; held that, point fied at some after target practice and conducted paramilitary *8 and others expelled were from the Wolver- training; selected various federal and state they ines because advocating were violence “hard” and targets; “soft” plotted and against government. In the strategy summer for their Stumpenhaus war. re- 1996, those of ported individuals who had left the that strategy Carter’s was to attack formed a Wolverines new militia group targets certain County, Calhoun Michi- called “North American gan, area, Militia” surrounding and the create (“NAM”). The purpose chaos, of the militia attempt and then to “hold on” for Stumpenhaus 2. did meet Graham until 1997. meeting his sixth group with the on June money de- weapons with purchasing in other and militias days while to five
three Notably, marijuana his sales. up against rived from rise country would parts three- of one of the In was the leader at 1063-64. J.A. government. his as- war, and “reconned” person NAM members cells he for their preparation activities, he visited his as- region, meaning such as training signed participated tar- quar- surveyed his “bivouacs;” learning “close attack area and signed on going building meeting, with At one on securing a at 1082. battle;” gets. J.A. and ters building peo- 17, 1997, map Stumpen- of a of he emptying and drew weapons June targets region, marked weapons. assigned J.A. ple and haus’s tar- including four electrical him to attack direction, each member Carter’s Under station, gas a Fort hospital, gets, V.A. assigned to a three- the militia was of station, and Custer, told and a television responsible for “cell” which was person help him to “reconn” him would he and “soft” tar- “hard” “taking out” various made numer- at 1086. He also area. J.A. region. geographical in a certain gets indicating that he was ous statements for at- selected targets “hard” Among the assigned targets; that ready to attack (1) of Inter- the intersection were: tack variety weaponry; a wide possessed he Kalama- 131 near Route 94 and U.S. state kill federal prepared to and that he was (3) facilities; (2) fuel zoo, Michigan; power agents police and officers. (4) stations; communi- and gas depots as a TV station facilities such cation
Kalamazoo, Also mentioned Investigation Michigan. Government C. nearby Fort for attack was a site 30, 1997, July August From Post. NAM’s Army Guard National Custer wiretap agents conducted government electrici- transportation, was to cut off goal telephone. on Carter’s to the area. ty, gas, and communication statements Gra- recorded numerous identified were “soft” Among targets sig- possession indicated his ham which judges, and other fed- prosecutors, federal and his weaponry firepower nificant Carl Levin as Senator officials as well eral agents to use it on federal willingness members of Con- Michigan and other August officers. On police method also Carter established gress. a search warrant agents executed federal members among NAM communication which was NAM’s property, at Metcalfs messages and a tele- beeper involved witness described training site. One tree; beeper codes were certain phone military “a miniature home as Metcalfs battle. ready to start to be alert members There, agents at 1150. compound.” J.A. witness, mem- NAM According to one ap- property, discovered Metcalfs a semi-auto- weapon was preferred bers’ acres, had been fortified proximately 40 rifle, discussed also but members matic that he and foxholes and with bunkers and home- machineguns possession of their range. From his up firing had set Testimony also established made bombs. machineguns; loaded they home seized using a va- NAM members discussed and thou- rifles semi-automatic assault devices, in- riety of attack methods ammunition; assault of rounds sands warfare, bombs, gre- cluding chemical gun rifles; thirty pounds of smokeless *9 nades, and land mines. silencers; feet of time several powder; gre- a live fuse; grenade hulls and four in these activities
Graham’s involvement launchers; fuse; gas flare tear nade and participating attending meetings, included including members, equipment military and combat exercises, recruiting training in vests, helmets, flak gas and They masks. Graham and two co-conspirators, Carter also seized books and manuals on Metcalf, how and were then named in a twelve- weapons, make automatic construct count April 9, indictment on 1998.5 A bombs, and make silencers. Subsequent grand jury returned a fourteen-count su- seizure, to this members of NAM contin- perseding against indictment Graham and regularly Speed’s ued to meet and at 9, July Metcalf on 1998. The superseding through the mall March 1998. indictment alleged that Graham awas Pursuant to a forty-page affidavit sworn member of the North American Militia an ATF agent, magistrate a judge group and that he conspired from the sum- authorized an arrest warrant for Graham mer of 1996 through March 1998 with Car- and a search warrant of Graham’s trailer ter and Metcalf6 “possess machineguns, 17, home on 18, March 1998. On March plan and discuss upon attacks various agents federal from the FBI and federal facilities and instrumentalities of ATF a conducted search of Graham’s trail- interstate commerce and to threaten to er agents home.3 The following seized the assault and murder federal officers and from his home: containing marijuana tins employees.” J.A. at 76. marijuana seeds paraphernalia; and plas- In Count Graham was charged with tic marijuana; containers of marijuana conspiracy to commit offenses against the seedling plants; pistol; Ruger a a .22- States, United in violation of 18 U.S.C. rifle; rifle; caliber a semiautomatic assault § 371. The alleged indictment that Gra- rifle; a sniper carrier; an ammunition willfully ham and knowingly conspired to: magazine and clips; and several video- possess machineguns, in violation of 18 books, tapes, and articles relating to am- 922(o)(l); U.S.C. threaten to assault and munition, combat, and survival. While this officers, murder federal designated in occurring, search was agents performed a 18 U.S.C. with the intent- to im- warrantless search of pickup pede, intimidate, and interfere with these truck they from which seized the following: engaged officers while performance rifle, a semiautomatic pistol, Beretta duties, of official bag marijuana, violation of 18 and U.S.C. several cans of am- 115(a)(1)(B); assault, resist, forcibly op- munition.4 Graham was arrested during intimidate, pose, impede, the search and taken into custody by the interfere agents. with federal they officers when were en- gaged performance in the of their official D. Proceedings Criminal duties, in 111; violation of 18 U.S.C. 20, 1998, maliciously damage On March and destroy Graham was and at- named in a complaint tempt criminal alleging damage destroy by he means of had conspired to marijuana explosive vehicle, manufacture in an any building, or other 841(a)(1) §§ violation of 21 U.S.C. personal and 846. real or property used inter- 3. Carter’s home day, was searched the guilty by same 6.Metcalf jury was found as to he was also 3-8, arrested. Counts and 12 on November forty years custody. and was sentenced to 4. Defense counsel established at trial that it sentence, upheld We his conviction and see illegal possess any was not for Graham to 99-1667, Metcalf, United v. States No. weapons property. seized on his (6th 28, 2000). WL 924171 Cir. June pleaded guilty 5. Carter to Count 1 of the 1, 1998, Indictment on June and he was sen- years custody. tenced to five
500 alone, against all counts trial but on to commerce, of 18 U.S.C. in violation
state him. § 844®. trial, was jury Graham Following alleged that Graham: counts Other 1, 9, 10, 13 and guilty of Counts found Browning-type .30- possessed
knowingly 3, 4, of and acquitted He Counts 14. was 18 in violation of machinegun caliber pre- Report then A was 5. Presentence (Counts 4); 922(o)(l) know- 3 and § U.S.C. probation office. Graham pared by the .50-cali- Browning-type ingly possessed objections the Presen- made to several (Count 5); knowingly pos- machinegun ber hearing, sentencing Report. At the tence user of unlawful as an sessed firearms 13, 1999, court the district January on held 18 U.S.C. in violation of marijuana, objections and of rejected all Graham’s (Count 9); willfully, knowingly, § 922(g)(3) findings and Sentenc- adopted the factual attempted to manufacture unlawfully and report. in the application ing Guidelines U.S.C. marijuana, in violation in Presentence Re- As recommended (Count 10); 841(a)(1) knowing- §§ and applied court U.S.S.G. port, district unlawfully conspired willfully, and ly, promot- to Graham’s sentence 3A1 .4 in marijuana, violation manufacture pro- application of this ing terrorism. The (Count 11); 841(a)(1) §§ U.S.C. history criminal vision increased carried a semiauto- knowingly used His total from level I to VI. category level in rela- during and weapon matic assault 41. Be- calculated to be offense level was charged a crime of violence tion to court consecu- imposed the district cause of 18 U.S.C. in violation Count the firearms convictions sentences for tive 924(c)(1) (Count 13); knowingly 924(c)(1), was U.S.C. Graham under 18 during and a firearm used and carried months or years to 660 sentenced trafficking crime as drug relation to convic- timely appeals from his prison. He 11, in violation 10 and charged Counts tion and sentence. 14). 924(c)(1)(Count 18 U.S.C. II. ANALYSIS mo- trial, filed Graham several Prior First, he court. tions in the district Suppress from Evidence A. Motion to taken the evidence sought suppress Home Trailer He asserted trailer home. from his Probable Cause Lack magistrate judge the affidavit on which error, Graham assignment did In his first search warrant issuing the relied when court’s denial of his challenges the district to believe that probable cause not establish seized from suppress motion to evidence occurring in Gra- activity was criminal That included home. evidence also moved his trailer Graham ham’s trailer home. firearms, ammunition, firearms from his various seized suppress evidence marijuana marijuana parts, plants, and search. The warrantless during truck the affidavit asserts that seeds. both motions.7 Graham court denied district magistrate relied to issue did, however, on which the grant Graham’s district court to estab- defendants, was insufficient although it search warrant motion to sever probable cause drug-relat- lish instrumentalities to sever the his motion denied found a crime would be 10, 11, or evidence of counts, from the ed Counts First, as- trailer home. Graham Thus, proceeded Graham’s counts. firearm custody. This motion suppress after he was taken into made a motion 7. Graham also this court. granted and is not before officers to law enforcement statements made
501 serts that “words alone do no[t] constitute tion items, are durable useful that the a Appellant’s Second, crime.” Br. 24. at crime a long-term was conspiracy and that argues he that the point affidavit does not likely Graham was kept firearms, have any activity given criminal with paranoia associated the his toward government Third, trailer home. argues he that and his statements, noth- other there was still a ing supported affidavit fair probability 17, 1998,” the conclu- as of March illegal sion that weapons agents federal other would evidence find firearms and of a home, crime could be ammunition at found the trailer. Graham’s which were Graham, Id. According to evidence of the affi- Graham’s participation because in the insufficient, illegal conspiracy. davit was J.A. all at 731. fruits of the search of trailer home should have When reviewing district a court’s suppressed. been denial aof motion to suppress, we review
The government counters dis- the district findings court’s of fact for clear trict properly court denied Graham’s mo- error and its conclusions of law de novo. tion to suppress because the affidavit Brown, elab- United 477, States v. 147 F.3d 484 (6th upon orated activity Cir.1998). criminal We consider the evidence with associated Graham’s trailer and that issuing magistrate had before him thereby probable established only for cause to ensure that the magistrate had a search. asserts that the substantial basis for concluding that proba affidavit described Graham’s ble cause criminal ac- existed. See United States v. tivity Jones, 969, (6th including Cir.1998) his 159 participation F.3d 973 detail — in meetings (citing Gates, which targets 213, at Illinois v. for attack 462 U.S. 238- selected, 39, 2317, were (1983)). his 103 surveillance S.Ct. targets, of L.Ed.2d action, and his We findings threats to take defer to probable as well cause plans by magistrate, made carry out those and we will not threats —and set aside information, finding that this such coupled unless it was with the fact arbitrari ly Brown, made. firearms are F.3d at 484. durable and likely were stored at given Graham’s home the con- Gates, In Illinois v. Supreme tinuing nature the conspiracy, estab- Court “totality established the of the cir probable lished cause to search Graham’s cumstances” test for evaluating whether a home for weapons. magistrate properly determined there was court,
The district
in denying
probable
issuing
cause when
a search war
motion, reviewed the relevant
Gates,
case law and
230,
rant.
ham, supported corroborated and one an- The reported affidavit that Graham dis- other. These sources established the killing people cussed “hitting” targets, that probability directly Graham was im- creating the inference that possessed he plicated in the militia group’s conspiracies; weapons that would enable him to actively that he participating was carry objectives. out those For example, offensive; planning of NAM’s and that he at a meeting at Carter’s residence Au- on possessed weapons. certain 15, 1997, gust Carter told the undercover
Although Graham contends that
there
agent
ATF
that Graham had been part of
any
was
evidence that
no
criminal conduct
a
team”
“recovery
that was to attack fed-
home,
was associated with his
and that the
eral law
agents
enforcement
and rescue
government could have done more investi- NAM member Metcalf should
have
he
cause,
gation to
probable
establish
we first
been
when
arrested
his
was
property
government
note
provide
that the
need not
(Affidavit ¶ 39).
searched.
J.A. at 154-55
showing
“an actual
of’
activity
criminal
to Excerpts
taped
conversations between
Gates,
probable
establish
cause.
462 U.S. Graham and Carter reveal Graham’s will-
13,
at 243-44 n.
weapons, only a that was argues there Graham gunpowder and explosives, black to contain that he “probability,” not a “possibility,” stockpiles of am- and chemicals and other conduct. The engaged in criminal was ¶ 68). (Affidavit at 164-65 munition.” J.A. overwhelming weight of the information that, magistrate had Agent easily provided Semear stated Finally, the affidavit training, it finding and there was a experience his a basis for judge based on with unlawfully pos- those who or evi- probability common for that contraband was fair maintain such firearms firearms to found at Gra- sess a crime would be dence of within-their judge in secure locations magistrate and records ham’s home. trailer that, on prob- He asserted based finding residence. also arbitrarily make a did not “survivalists, that he knew experience, cause, order his district court’s and the able members, ter- and domestic militia radical therefore not error. was their onto firearms rorists tend hold long as ten Hear- time—often Provide a Franks
long periods of 2. Failure to at 176. This infor- ing J.A. twenty years.” other mation, with the when considered the affidavit argues also Graham affidavit, more was alleged in facts probable cause to establish was insufficient probability fair create a than sufficient to misleading allegedly it contained because magistrate judge in the mind of the Ac- and material omissions. statements uncov- property would search of Graham’s Graham, 42 and 43 paragraphs cording to conduct. criminal er the evidence of affirmatively misled the affidavit judge. states magistrate Paragraph claims that the Although Graham 10, 1997, contacted affiant on June better established could have affidavit National Registration Firearms and We review the district court’s Transfer Record and found no firearms denial of a Franks hearing under the same registered to It Graham. is followed standard as for the denial of a motion to paragraph which states that also on suppress: the district court’s factual find 10,1997, June Graham told the undercover ings are reviewed for clear error and its ATF agent that he owned a rifle kept conclusions law are reviewed de novo. numerous firearms and ammunition at his Hill, United States v. 142 F.3d home. J.A. at 156. Graham alleges that (6th Cir.1998). A defendant is entitled to the inclusion proximity para- these a hearing challenge validity of a graphs issuing led the magistrate to be- search warrant if he “makes a substantial lieve that Graham illegally possessed preliminary showing that a false statement weapons properly had not been reg- knowingly and intentionally, or with reck istered, when, fact, Graham was in legal less disregard truth, for the was included possession of weapons by the affiant in affidavit, the warrant required register any of them.8 allegedly [ ] false statement is neces
In addition misleading statements, sary to finding probable cause.” argues that the affidavit contained Delaware, v. Franks 155-56, U.S. several material omissions which ar- were (1978). 98 S.Ct. If, L.Ed.2d 667 guably exculpatory and “negat- would have evidentiary hearing, allegation “the probable ed” they had cause been included of perjury or reckless disregard is estab *15 in the affidavit. allegedly material lished preponder defendant a omissions reveal only that NAM mem- evidence, and, ance of the with the affida bers were in attacking interested federal vit’s side, material false set to one targets and agents but they also that held remaining affidavit’s content is insufficient peaceful protests and demonstrations. probable cause, establish the search One statement suggests also that Graham warrant must be voided and the fruits of exaggerated urge his kill federal officers suppressed. 156, search” Id. at 98 destroy federal buildings. S.Ct. 2674. sought Graham but was denied an evi- As to the allegedly misleading state- dentiary hearing before the district court ments, government argues para- that Delaware, under 154, Franks v. 438 U.S. graphs 42 and 43 must be read in the 2674, 98 S.Ct. (1978), 57 L.Ed.2d 667 41, of paragraph context reports validity assess the of the search warrant 7, 1997, on June the Cl was at a given alleged these misstatements meeting Metcalfs home where Metcalf omissions. The district court noted that showed the Cl machinegun .50-caliber as the statements at in paragraphs issue 42 well as ammunition for gun, and in- false, and 43 were not and that the omitted formed the Cl that he intended to mount statements occurred after had the weapon, possibly in the back confessed that phone he believed his had pickup truck, to use an anti-aircraft tapped. been The district court then de- ¶ (Affidavit weapon. 41). J.A. at 155 that, termined if even the omitted material Paragraph 42 then logically states that: included, had been magistrate judge would still probable 10, have had your cause On June affiant contacted issue the search warrant. the National Registration Firearms silencers, Only machineguns, de- Registration other Firearms National and Transfer registered structive devices must be with the Record. 506 Franks, recognized have that an we They [but] conducted Record.
Transfer
exculpato
potentially
omits
registered
affidavit which
found no firearms
search and
present a
subsequent
likely
In a
is less
ry information
to Bradford Metcalf.
search,
Registra-
impermissible official conduct
question
Firearms
the National
affirmatively
false
Record also found no
includes
and Transfer
than one which
tion
Atkin,
to Ken Carter
v.
registered
information.” United States
firearms
(6th Cir.1997). Indeed,
RANDY
GRAHAM.
F.3d
only
in cases of
hearing
Franks
merited
¶ 42).
(Affidavit
Paragraph 43
J.A. at 156
Mays
in “rare instances.”
v.
omissions
then states:
(6th
Dayton, 134 F.3d
City of
10, 1997,
ATF
Also,
under-
on June
denied,
Cir.),
cert.
524 U.S.
S.Ct.
RANDY
met with
GRA-
agent
cover
(1998).
so
home even without those statements. Re I [W]hy would blow die, 42 and 43 would not moving paragraphs people to see innocent don’t want sufficiency freedom, of the affida my have affected the sticking up my I’m for vit. my rights. rights, and friends’ Appellant’s Br. at 29. allegedly to the material
As that the district court did not omissions, We hold we have held that omissions in that these omissions did concluding under err inquiry “are not immune from not merit a Franks hearing. gues Even assum- that the search improper was because ing could Graham such show these there warrant, was no authorizing he re- omissions were made in reckless disregard fused search, to consent to the the officers truth, for the the affidavit along with the did not probable have search, cause for the portions omitted testimony would still exception and no to the warrant require- amply probable establish cause to believe applied. ment activity evidence criminal or contra- At suppression hearing held before band was contained in Graham’s home. court, the district Agent David Smith Viewing this totality, evidence its includ- (“Smith”) testified that part he was ing the fact that several of the statements team that conducted the search of Gra- were uttered after knowledge Graham had ham’s trailer home. Smith had participat- target that he was a government’s ed in monitoring wiretapped conversa- investigation and that his phones were tions and, between Graham and Carter tapped, magistrate judge easily could preparation search, for the Smith testified that, despite have concluded NAM mem- that he had read the forty-page affidavit in activities, legitimate bers’ proba- there was support of the search of the house. Smith ble cause to believe NAM members stated that on March were engaged illegal activity as well. was arrested agents federal pick-
Indeed,
types
both
activity
were consis-
up truck as he
pulling
into his trailer
tent with NAM’s
principles. The
guiding
park. Smith, who arrived after Graham’s
allegedly exculpatory statements do not
arrest, explained that during his search of
“outweigh”
ones,
the inculpatory
such as
home,
the trailer
he found
weapons
several
an intercepted telephone conversation be-
and boxes of ammunition in Graham’s bed-
tween Graham
and Carter on July
room.
agent
that,
noted
in the course
stated,
in which Graham
“If anybody
search,
of his
he found ammunition boxes
wants to
go
kick a door we
... shoot first
for an SKS rifle and an AR-15 rifle in a
questions
and ask
later....
I’m waiting
closet in
bedroom;
for
he
judgment day
stated
they
because
are all
that he also
parts
found
for an
targets to
...
AR-15 or
every
me
fucking one of
¶
them,”
(Affidavit
an M16 in a
53).
gun
closet,
J.A. at
cabinet
There-
fore,
well as on
nearby
shelf. Agent
the district court
did not err
Smith
refus-
testified that
ing
grant
he did not
Franks
corresponding
Graham a
find
hearing,
weapons
and the
denial of
those boxes of
sup-
Graham’s motion to
ammunition or
*17
press
parts.
is
agent
AFFIRMED.
The
also described how he
found several of
“bug-out”
Graham’s
lists
Suppress
B. Motion to
Evidence from
things
to take with him in case he had to
Truck
exit his
quickly,
trailer
and one of the
weapons
In
assignment
error,
his second
mentioned on the list
was an AR-
Gra-
point,
ham
rifle. At
agent testified,
contends the district
this
the
court erred
denying
he believed
suppress
his motion to
that Graham
the items
owned an AR-15
seized
during
agent
the
an M16.
warrantless search of
The
then
his
testified that he
pickup
18, 1998,
truck. On March
found a
when
manufacturer’s box and ammuni-
government
the
searched
tion for a
pistol
Graham’s trailer
Beretta-92
in
gun
the
home,
agents
federal
also
in
closet,
searched
cabinet
Gra-
bedroom
but could
rifle,
ham’s truck and seized an AR-15
a
find the corresponding handgun. The
pistol,
Beretta
a bag
marijuana,
agent
stated that he then checked with
several cans of ammunition.
officers,
Graham ar-
searching
other
and none had
M16,
keys
sympa-
a militia
give the his
was
AR
an
or a
to
locate an
able to
been
finding, the district
Based on this
trailer.
thizer.
Beretta in Graham’s
suppress
motion to
court denied Graham’s
Smith, he then
According
Agent
to
his truck.
weapons recovered from
a
to a search of
to consent
asked Graham
truck;
and his
Gra-
property
on his
shed
to this court that be
argues
Graham
the shed
to the search of
ham consented
presump
searches are
cause warrantless
a
of his
to consent to
search
refused
but
prove
must
tively illegal,
government
gave
a
truck.
then
Smith
pickup
Graham
it
by preponderance
evidence
give
keys
his
and asked Smith
ring of
exception
to an
to the
pursuant
searched
neighbor.
agent
The
stated
keys
to a
then as
requirement.
warrant
Graham
neigh-
recognized the name of
that he
exception to the warrant
serts that no
sympathetic
was
as someone who
bor
At
applies to this case.
requirement
keys and decided to
took the
NAM. Smith
distinguish
v. Car
tempting to
California
missing weapons
the truck for the
search
386, 105
ney, 471 U.S.
S.Ct.
because,
knowledge
on his
of Gra-
based
(1985), and
States v.
L.Ed.2d 406
United
group’s
in the militia
participation
ham’s
(6th
Kincaide,
Cir.1998),
509
automobile;
police
ed,
of an
only
need
in which case the
might
officers
not
probable
have
for the
cause
search. For
have the
to
opportunity
obtain a warrant
proposition,
this
government
relies on
losing sight
car;
without
proba
Maryland
Dyson,
465,
v.
527 U.S.
119 ble cause
develop prior
could
to sighting
2013,
(1999),
S.Ct.
instant case.
that search has
house search when
valid
the
given
probable
rise to
cause
search
Pennsylvania
consolidated two
Labron
case,
Hofstatter,
In
v.
8 F.3d
second
car.
United States
argument.
In the
cases for
(6th Cir.1993),
95-1738,
panel
of this court
Pennsylvania
Kilgore,
v.
No.
search which oc-
approved
automobile
approved of warrantless
Supreme Court
curred after an authorized search
pickup truck
of the defendant’s
search
police officers in
home. The
the defendant’s wife defendants’
occurred after
on
farmhouse,
executed a search warrant
entered
truck to a
drove the
Hofstatter
were
where the defendants
drug
transac-
two addresses
the farmhouse to conduct
picking up
defendant,
gone
to have
after
and was arrested
believed
tion with the
drug manufacturing
drug sting.
ingredients
for their
part
as
with the defendant
business;
the officers then searched one
held the
Pennsylvania Supreme Court
The
car,
which had been used
the Fourth Amend-
defendant’s
truck search violated
drug buy
in a
because,
proba-
day
there
before
controlled
although
was
ment
search,
driveway
premis-
parked
no
there were
was
ble cause for
Incriminating evidence was seized
justifying the failure
es.
exigent circumstances
based
upheld
from the car.
the search
Reversing, the Su-
We
a warrant.
obtain
cause,
upon
probable
the officers’
only
that
the truck
preme
determined
Court
circum-
any
exigent
discussion of
police
had without
proper
search was
because
mobility, stating
car’s
drugs
there were
stances or the
probable cause to believe
might have
“[ajlthough
having
truck after
observed
time to secure a warrant to search
walking to and had
defendant and his wife
automobile,
requirement
was no
farmhouse. The
there
from their truck and the
Hofstatter,
it
Carter and had read the search warrant search, day affidavit the of the knew that C. Severance of Counts suspected Graham was of participating in Graham’s third assignment of error is conspiracy and that part as that the district court erred when it failed conspiracy he amassing weapons was and grant to his motion to sever drug- ammunition. In addition to the fact that counts, related 10, 11, Counts and from
Agent Smith had been briefed that mem- the firearm-related pursuant counts to organizations bers militia collect fire- Fed.R.Crim.P. 14. alleged Count 10 that might arms that carry weap- Graham Graham unlawfully attempted to manufac- truck, agent ons his strong found marijuana; ture 11 alleged Count indicating evidence the trailer that an Graham unlawfully to assault manufac- pistol rifle and Beretta were conspired marijuana; ture alleged and Count 14 during unaccounted for the search. J.A. knowingly agent’s at 743-44. The belief that several used carried a fire- weapons during arm reasonable, were relation outstanding was to a drug traf- crime, and there probability ficking fair attempt that those namely and con- weapons spiracy would be found in Graham’s marijuana manufacture truck; therefore, Agent proba- charged Smith had Counts and 11. Graham cause to ble believe that Graham’s truck attempt claims that his conspiracy contained contraband or grow marijuana evidence of a had nothing to do with the case, however, It is govern- 10. not the hand, as the search of the automobile. On the one argued, ment that the affidavit for the search already placed Graham had been in handcuffs warrant to search the pro- home would have agents when the decided to search the truck probable vided cause to search Graham's longer legitimately and could no be consid- truck. Once the officers failed to conduct a ered a Although threat to them. Graham had search of the truck incident to Graham's ar- keys given asked that his truck neigh- to a rest, we only believe the "regained” officers suspected bor who was a sympathizer, militia authority to search they the truck because there is no evidence in the record whether independently developed probable cause in procedure FBI permitted have would the course of their search trailer home. agents give keys neighbor, to the whether the vehicle would have to be im- agent also stated fear for his safe- hand, pounded. On the other we note that ty and that of his officers fellow contributed might multiple keys there have sets of been to his decision to search Graham's truck. Al- truck, might agent have though believed exigent the officers need not have an sympathizing neighbor that a possessed safety circumstance such as one fear for their own gain of those pursuant to conduct sets and a search could access to the to the automo- exception, agent bile truck. prob- it is unclear Because the whether had sufficient agent’s fear exigent would create circum- able cause to search without the "reasonable factor, stance permit sufficient a warrantless fear” we need not resolve this issue.
512 922(g). in violation of 18 U.S.C. other stance in Count or the charged
conspiracy necessarily prove had 3, 4, 5, government and 13 be- The in Counts offenses fi- in marijuana did not use order to estab- of NAM cause the members Graham’s mari- charge. the sale of with the of this nance their activities lish elements juana. affirmed that “[w]hen have We 8(a) provides that two Fed.R.Crim.P. related, joined logically and the counts are charged in the same may be more offenses large overlapping proof, area of there is a indictment: Wirsing, F.2d joinder appropriate.” is of the charged ... are offenses [I]f omitted). case, In this (quotation at 863 are character or based or similar same part Huggett, who was Graham’s William or on two act or transaction on same great in drug trafficking, in testified ner connected acts or transactions or more marijuana history of detail Graham’s about parts a com- constituting together or he ran growing operation and the that use plan. mon scheme or Huggett’s testimony also Huggett. with 8(a). court The district Fed.R.Crim.P. time frame when he and established jury’s in- that, grand on the based found in militia first became involved Graham dictment, to manufacture conspiracy par the extent of activities Graham’s and scheme part of “a common marijuana was NAM, including re ticipation Graham’s drugs to finance violence. plan” to sell members, his cruitment of discussions Moreover, that the the district court found lists, preparation for battle. target drug crimes to the were related firearms noted, Moreover, Hug government or carried they allegedly used in that were government’s testimony about the gett’s drug crimes. J.A. with connection marijuana plants Graham’s seizure of Concluding that introduction at 219. drug helped prove which drug counts relating to the evidence counts, established motive for Gra also Graham, the unduly prejudice
would not
government,
of the
which
ham’s distrust
motion to
denied
court
district
in the
participation
explained Graham’s
counts.
sever the
conspiracy.
broader
under
of the counts
Joinder
testimony, particularly that
8(a)
Other trial
Relying
in this
proper
case.
Rule
Rule,
searched Graham’s resi-
agents
who
we have
language
on the
dence,
kept his
that Graham
“joinder under this subsec
established
that
observed
To
v.
drugs together.
require
United States
guns
permissive.”
tion is
(6th Cir.1983).
separate
trial to
put
on
Wirsing, 719 F.2d
marijua-
conspiracy to manufacture
prove
it
may, to the extent
is
court
The district
na,
marijuana, and
to manufacture
attempt
con
process principles,
with due
consistent
knowingly carrying a firearm relation
“promote the
broadly to
Rule
strue the
crime,
the evi-
drug trafficking
where
effi
judicial
convenience
goals
trial
duplicative
case,
dence for those counts
the indictment
Id.
ciency.”
In this
relating to other
evidence
counts
[of
specifically averred
“members
indictment,
spirit
of Rule
would violate
organiza
their
planned to finance
NAM]
8(a),
goals of trial
“promote
is to
trafficking.”
in narcotics
by engaging
tion
Indictment).
Wirs-
judicial economy.”
convenience
(Superseding
J.A.
Therefore,
hold
ing, 719 F.2d
at 862.
we
Moreover,
of the indictment
Count 9
proper un-
joinder of the counts was
a fire
possession of
charged
with
8(a).
Rule
illegal
sub- der
being a user of
arm while
We
hold
also
the district
that the government was
prove
unable to
court did not
its
abuse
discretion by refus
certain aspect of the conspiracy
does
ing
grant
Graham a severance under
prove that Graham suffered “substantial
Fed.R.Crim.P. 14.
joinder
Even when
is prejudice” from
*22
joinder
of the counts.
8(a),
appropriate under Rule
a district Graham also claims that “when
jury
may,
court
in
discretion, grant
its
the de was presented
guns
with both
and drugs,
fendant a severance if it appears that the
prejudice
actual
resulted to Mr.
in
prejudiced
is
joinder
defendant
the form of a guilty verdict regarding
the offenses. Fed.R.Crim.P. 14. The dis Count 1 even
no
though
threats were made
discretion,
trict court’s
which is due sub
any
violent action
Appellant’s
taken.”
stantial
court,
deference from this
“must Br. at 39. Graham’s argument is no more
light
exercised in
of all the relevant
than that the jury was overwhelmed with
circumstances.
among
Foremost
the rele
evidence of Graham’s bad acts and could
vant circumstances is a balancing of the
not distinguish between the conspiracy
interest
public
avoiding multi
count and
drug
counts. Significantly,
plicity
litigation
and the interest of the
however, Graham does not challenge his
defendant
obtaining a fair trial.” Wirs
conviction on
1
Count
for sufficiency of the
ing,
joined 8(a), under Rule the district court The district court did not abuse its dis- should granted have a severance because cretion by failing grant Graham a sever- attorney defense unprepared ance under Rule 14. The drug counts challenge the complex tax charges. evasion the firearm counts were manifestly relat- See at 865. id. We concluded there ed, and the introduction of evidence on all prejudicial was a “spillover effect” from counts prejudice did not Graham. We the tax evasion charges to the drug con- reject therefore claim of error. spiracy charge due to defense counsel’s unpreparedness, prejudiced which de- Application D. § of U.S.S.G. 3A1.4 to right fendant’s ato fair trial. Id. Sentence case, In contrast, this Graham cannot assignment fourth of er point any specific prejudice he presents suffered ror impression issue of first joinder from the Counts court, and 14 our namely may when a district with the other counts of the indictment. court apply Sentencing §'3A1.4, Guideline argue Graham does that there was no evi- enhancement, domestic terrorism to a dence to marijuana connect his operation defendant’s sentence. There is a paucity with NAM so, activities. if Even this were of case law and scholarly work on this disputes, the fact section of the Guidelines.12 We review a appeals lems, Other courts of have mentioned § adjustment 3A1.4 apply would to de opinions, 3A1.4 in their see United States v. fendant's conviction conspiring to use a Nichols, (10th 169 F.3d n. destruction, weapon Cir. of mass in violation of 18 1999) that, (noting post but for ex prob 2332a, facto U.S.C. an enumerated “Federal in- 1 to the Guidelines note Application applica- interpretation court’s
district of terror- crime that a “Federal us structs novo, limit but de of the Guidelines tion 2332b(g). at 18 U.S.C. defined ism” is to deter- findings factual of its review our statute, “Federal the term Turning to the clearly erroneous. they were mine whether con- is defined of terrorism” crime Jeter, F.3d v. States United calculated “an offense that junctive: it is Cir.1999). (6th gov- or affect the conduct influence coercion, toor provides: 3A1.4 intimidation Section ernment conduct,” 18 against government retaliate in- felony that (a) is a offense If the is a violation 2332b(g)(5)(A), U.S.C. promote, volved, intended or was *23 statutory provi- of enumerated of one terrorism, increase crime of federal Gra- 2332b(g)(5)(B).13 §in provided sions resulting offense levels; if the but 12 improp- district court that the argues ham to increase than level is less level he did adjustment erly applied the because 32. level of terrorism” “Federal crime not commit a by the statute. as defined case, (b) the defendant’s In such each the terrorism Chapter applied from court history category The district criminal sentence adjustment Graham’s to Category VI. Four ... shall be lines, sta- of communication terrorism”); Leahy, destruction v. United States of crime injury tions, (relating to systems), 1363 Cir.1999) or (7th (rejecting 446 F.3d 169 special within buildings property to or based on upward departure court’s district jurisdiction of territorial and maritime did not defendant analogy § 3A1.4 because to States), (relating to destruc- 1366 United conduct or affect the "to seek influence (relating to facility), energy 1751 of statute), tion al- required government” as staff assassi- and Presidential Presidential question of though addressed none have assault), nation, kidnapping, and conspiracy, § as in 371 application to its fortifications, injury (relating to of 2152 case. this areas), defenses, sea or defensive harbor national (relating of to destruction 2155 following 2332b(g)(5)(B) lists 13. Section utilities), materials, premises, or defense offenses: defective (relating production of to 2156 (i)section (relating destruction of 32 to materials, or premises, defense national facilities), (relating 37 or aircraft aircraft against utilities), (relating to violence 2280 airports), 81 international to violence (relating to vio- navigation), 2281 maritime special maritime (relating within to arson platforms), against maritime fixed lence (relating 175 jurisdiction), and territorial and (relating certain homicides to 2332 (relating to biological weapons), 351 to na- against States United other violence cabinet, Supreme Court congressional, and the United occurring of outside tionals assault), assassination, kidnapping, and States), weapons (relating use of to 2332a 842(m) materials), (relating destruction), (relating to nuclear 831 to 2332b of mass (n) explosives), (relating plastic transcending to or national acts of terrorism bombings), 2332c, 844(e) boundaries), (relating (relating pro- to certain to 2339A terrorists), 844(f) (i) bombing (relating and support to to viding arson or material 930(c), sup- (relating (relating providing 956 material property), to certain 2339B of organizations), a for- or 2340A injure property port to to conspiracy to terrorist torture); (relating protec- (relating to eign government), 1114 to sabotage nu- (ii) (relating Unit- employees of the 236 and section tion of officers fuel) Energy Atomic States), (relating to murder or clear facilities 1116 ed 2284); (42 officials, 1954 U.S.C. foreign official Act of manslaughter of (relating pira- (iii) to aircraft per- 46502 internationally protected section guests, or 60123(b) (relating to destruc- taking), cy) sons), (relating hostage or section 1203 liquid gas or hazardous tion of interstate injury (relating of Government facility) of title 49. contracts), pipeline (relating to property or conviction on Count a conspiracy in stations); vio (destruction § radio lation of general statute, conspiracy 18 property at an energy facility); § U.S.C. § Graham’s 371 conviction (destruction § 2155 conspiracies premised on the following substantive destroy materials). national defense In possess offenses: to machineguns, in viola determining adjustment that the was prop- tion of 18 922(o)(l); U.S.C. to threaten erly applied to sentence, the dis- to assault and murder federal officers and “[sjection trict court then stated that 3A1.4 employees, in violation of 18 U.S.C. makes adjustment this victim applicable to 115(a)(1)(B); forcibly assault, resist, only the federal crimes of terrorism oppose, impede, intimidate, and interfere listed [in statute] [to] but other of- with federal they officers when were en fenses promote intended to ... com- gaged duties, in their official in violation of mission a list of federal crimes of ter- 111; U.S.C. to maliciously dam rorism.” J.A. at 1405. According to the age and destroy and attempt to damage court, district alleged facts in Gra- destroy by of an explosive means any ham’s trial demonstrated that his partic- vehicle, building, or other personal real or ipation in 371 conspiracy was intend- property commerce, used in interstate *24 ed to promote “the above mentioned 844(i).14 violation § of 18 U.S.C. crimes of terrorism listed in the statute.” At sentencing the hearing, the district J.A. at 1405. conclusion, Based on that court addressed objection Graham’s to the the district rejected court objec- Graham’s terrorism In enhancement. its discussion tion to the adjustment. sentencing provision Guidelines and appli- the Similar the to district statute, analysis, court’s cable the district court cited the government the argues that following enumerated offenses in § § 371 conviction 2332b(g)(5)(B) is sufficiently as relevant analogous to its sentenc- ing to (relat- several determination: § 18 U.S.C. enumerated 32 sections in ing § 2332b(g)(5)(B) to destruction so of aircraft as to or aircraft make the sen- 844(i) facilities); § tencing adjustment (relating to appropriate.15 malicious The destruction of property government used in urges interstate that “[t]he fact that De- by explosives); § commerce fendant (relating charged 1114 of a convicted protection to of officers); § federal conspiracy 1362 commit to these terrorist acts (destruction of communication lines and statutes, under different rather than the way jury Because of the the 844(f)(1) instructions 18 § U.S.C. (maliciously damaging phrased, were only we know jury that or destroying explosive with an government guilty found conspiring of to achieve (3) property); § 18 (killing 1114 U.S.C. or at least objects one of the of the conspiracy attempting to kill an employee officer or indictment, named but we not do know the United States person while that is en- which one. gaged in performing or on account of the performance duties); (4) of official 18 U.S.C. 15. The claims that Graham's § (willfully 1362 maliciously or injuring or conspiracy encompassed following con- destroying destroy or attempting to govern- (but § duct 2332b(g)(5)(B) listed not listed operated ment-owned or cation); means of indictment) communi- in the such that Graham's con- (5) § (knowingly U.S.C. spiracy was promote” "intended to a "federal damaging attempting damage (1) energy or crime to an 844(e) of terrorism:” § 18 U.S.C. (6) facility); (using telephone (willfully mail or U.S.C. willfully to make kill, a concerning injuring attempting injure threat or attempt injure, conspiring an to or to or person injure materials, damage intimidate or to to premises, or de- national defense vehicle, stroy building, utilities). personal or real or or property (2) explosive); means of or fire activity of a criminal or leader organizer in the statute enumerated specific offenses participants or more involved five that not be commentary, should in the cited extensive, by 4 lev- increase was otherwise Ap- guideline.” application fatal to els”). throughout usage on its Based Br. at 61. pellee’s context Guidelines, that we believe to determine task is first Our that hand, signifies “involved” the word to a sen applied may 3A1.4 whether included a federal offense a defendant’s conspir general conviction tence for words, that a terrorism; in other crime statute, not mentioned is acy committed, or con- attempted, defendant Noting that there 2332b(g)(5)(B).16 of terror- crime commit a federal spired to us,17 we assist case law to applicable no 2332b(g)(5). in 18 U.S.C. as defined ism language of the Guidelines to the turn chose to case, court the district our In Sec guidance. provisions analogous promote” lan- the “intended rely on that, for the in order provides tion 3A1.4 Therefore, sentencing Graham. guage the offense apply, adjustment upward prong analysis turn our we “involved” either felony must be assumption begin with We guideline. a federal crime promote” “was intended language promote” “intended to occurs word “involved” of terrorism. the word from something different means Guidelines, both throughout the frequently intends A who defendant “involved.” in the provisions in the substantive has of terrorism crime promote federal employed to typically commentary, and is attempted, or completed, necessarily See, e.g., “included.” U.S.S.G. mean crime; instead to commit conspired (1998) (noting that 1(J) cmt. n. § 1B1.1 *25 has that the defendant implies phrase the “ have injury’ is deemed to bodily ‘serious count of purpose of substantive as one conduct involved if the offense occurred in- conduct the his relevant conviction under sexual abuse constituting criminal terror- of promote federal crime to tent 2242”); § 2A2.2 § § 2241 or 18 U.S.C. of con- the offense reading, this ism. On (“ assault’ means ‘Aggravated cmt. n. crime not a “Federal itself need viction (A) a dan involved that felonious assault of terrorism.” bodily to intent do weapon with gerous “in- (B) phrase of the interpretation This frighten), or (i.e., merely to not harm harmony with the (C) is promote” to to tended an intent bodily injury, or serious 1B1.3, § 2B3.2(b)(l) that, to U.S.S.G. pursuant § fact felony”); another commit ad- may be offense level base of extortion defendant’s that, offense for the (stating not did which the defendant justed for acts an ex force, involved the offense by “[i]f by but were committed death, necessarily commit bodily of implied threat press or undertak- jointly of a in furtherance 2 lev increase others kidnapping, injury, or the defendant activity with 3Bl.l(a) (“If en was criminal els”); the defendant § amendment, adjustment of application the the using was sentenced that note Graham 1, We 16. retroactivity See problems. present Guidelines because not does the November Buckner, (6th date of effect on the version in 9 F.3d the States v. United Cir.1993). the According Appendix C of sentencing. Guidelines, effective Novem- § 3A1.4 became alleged in this conspiracy ber 1996. the dissent discussed in None of the cases 17. continuing offense occurred case was See note 12 question before us. the address through of 1996 summer from the mentioning (explaining that other cases supra crimes August Because 1998. the arrest issues). § involve different 3A1.4 effective date after the continued reasonably were foreseeable to the defen- been convicted of a federal crime of terror- dant in connection with that activity. See ism as defined 18 U.S.C. 2332b(g)(5) lB1.3(a)(l)(B) U.S.S.G. & cmt. n. 2. for the district court to find that he intend- These acts are necessarily not the same as ed his substantive offense of conviction or those for which the may defendant be held his relevant promote conduct such a hable as a principal, accomplice, or con- terrorism crime.18 In sentencing the de- spirator. id., See cmt. n. 1. fendant 3A1.4, under we hold that the must, district court however, identify held,
The district court
aas
which enumerated
law,
“Federal
matter of
crime of
ter-
“[s]ection 3A1.4 makes
rorism” the defendant
adjustment
this victim
intended to pro-
applicable to not
mote,
satisfy
only the federal
elements
crimes
terrorism listed
§ 2332b(g)(5)(A),
[in
support
statute]
but
[to] other
its
offenses in
conclu-
sions
promote
a preponderance
tended
...
commission
aof
evidence
list of
with
federal
facts
crimes of
from
terrorism.”
the record.
J.A.
See United
at 1404-05.
August,
Based on our
States v.
interpretation
(6th
984 F.2d
Cir.1992) (“[T]his
word
“involved” and
phrase
circuit has held numer-
promote,”
“intended to
ous
well as our un
times that
the preponderance of the
derstanding of the relevant
provi
conduct
evidence standard is the correct
ap-
sion, we believe that this
propriate
statement of law
standard for sentencing under
is correct:
the defendant need not have
guidelines.”).19
interpretation
our
Under
"intended
terrorism. The terrorism
ap-
enhancement
promote” prong
3A1.4,
§of
application
plies no
object
matter which
crimes were
of the terrorism
hinge
does
enhancement
verdict,
guilty
assumed
so there is no
upon
object
whether
alleged
crime
in the
beyond
need to determine
a reasonable doubt
conspiracy charge is one of the crimes enu-
conspired
any
commit
one of
Therefore,
§ 2332b(g)(5).
merated in
there is
object
named
particular.
crimes in
no need to find that the
conspired
defendant
19. We
higher
do not believe that a
any
to commit
standard of
object
one
crimes al-
proof
required
simply
leged
1B1.2,
in Count
because the
1. See
enhance
U.S.S.G.
com-
ment would significantly
mentary, applic.
increase the
note 5
defen
(applic. note 4 in
*26
dant's sentence.
Manual).
urges
The
current
dissent
we
Guidelines
that
Section
1.2(d)
approach
adopt
IB
the
provides
taken in United
that
States v.
"[a] conviction on a
Kikumura,
(3rd Cir.1990).
charging
918
count
a
F.2d 1084
conspiracy
commit
Ki
to
more
situations,
held
than one
kumura
that in extreme
offense shall be treated as
where
if the
magnitude
"the
had
of a contemplated departure
defendant
separate
been convicted on a
sufficiently
is
great
conspiracy
of
sentencing
count
that the
for each offense that
hear
the
ing
fairly
can
be
conspired
defendant
characterized
to
as 'a tail which
commit." The com-
”
wags
dog
offense,'
mentary
the
the
cautions
of
that
substantive
findings
district court’s factual
regarding
[p]articular
the
care must be
in applying
taken
satisfy
enhancement
higher
must
(d)
standard
subsection
because there are
in
cases
of proof than
preponderance.
mere
Id. at
plea
which the verdict or
not
does
establish
(quoting
1100-01
Pennsylvania,
McMillan v.
offense(s)
which
object
was the
of the con-
79, 88,
2411,
477 U.S.
106 S.Ct.
cases,
91
spiracy.
L.Ed.2d
(d)
In such
subsection
(1986),
twelve-fold,
67
holding
that
only
330-
applied
should
respect
with
to an
departure
upon promotion
month
based
object
of
alleged
offense
in
conspiracy
the
terrorism could
applied
not be
court,
upon
based
if
count
the
sitting
were it
as a trier
preponderance);
mere
fact,
see also United
of
States
would convict the defendant of con-
(9th
Restrepo,
Cir.1991),
v.
518 in Bat- aircraft; building federal support to six statutes pointed court
The district sta- Creek, and a television Michigan; and held 2332b(g)(5)(B) tle §in enumerated intended, consequence of Kalamazoo, as a J.A. at Michigan. that tion Graham those promote conspiracy, his Graham concluded that court The district of the statutes One of terrorism. crimes to influ- co-conspirators intended and his court, U.S.C. by the district mentioned in the officers federal and intimidate ence “ma- whomever 844(i), punishable makes duties; they con- that of performance their attempts destroys, or damages or liciously other machineguns and possess spired fire or by means of destroy, damage or plans to discussed they weapons; and that vehicle, or other building, any explosive, they weapons the targets with attack their in inter- used property personal or real in furtherance all acquired, had any activi- foreign commerce state or conspiracy. com- foreign interstate or affecting ty hearing, the sentencing At the merce.” record, the review of Based on our “partici- that Graham court found district find district court’s say the we that cannot charged illegal conspiracy in the pated clearly Wit are erroneous. ings of fact objects of the the to achieve attempted that testimony established ness 1404. The at charged.” J.A. conspiracy places targeted these co-conspirators following that the then found court district Moreover, dispute is there no attack. for were known to Graham or targets were by the district mentioned targets the light him in of reasonably foreseeable attributable to Graham and the acts court intersec- the conspiracy: scope conspiracy scope within were 131; power Route of 1-94 and U.S. tion to the reasonably foreseeable and were stations; ground facilities; an A-10 radio nificant, appropriately it was but whether 106 S.Ct. sylvania, All U.S. discre- (1986). the court's guiding' held that as McMillan characterized L.Ed.2d prove required to for the crime government normally is not defendant punishing the tion pre- are doubt facts that beyond long a reasonable As as convicted. which he was for ele- sentencing factors but are statutory scribed alter sentencing factor does' not Court offense. The of the substantive ments noted, by faced the defendant range penalties however, “there are constitutional convicted, McMil- he was crime of which classify facts as power” to to the State's limits by prepon- to be found permits the factor lan than sentencing elements factors rather interpretation This evidence. derance 2411. The Court 106 S.Ct. Id. at crime. recent Supreme Court's supported exceeded were not that those limits found Jersey, 530 U.S. Apprendi v. New decision issue, because Pennsylvania statute (2000), 147 L.Ed.2d 120 S.Ct. having [gave] impression no "[t]he statute any fact increases held that [sentencing permit factor] tailored been statutory max- *27 beyond the penalty for a crime wags dog of the the finding a tail which to be and.proved jury to a must be submitted imum 88, S.Ct. at 106 Id. offense.” substantive Apprendi doubt. The beyond a reasonable conclusion, Court reaching the In this "nothing ... that to note was careful Court the "neither emphasized that the alters statute judges to impermissible suggests it is for that crime penalty the committed for maximum judg- imposing a ... discretion exercise calling for separate offense nor creates a by the stat- range prescribed the within ment solely to limit operates separate penalty; it 481, (emphasis in S.Ct. 2348 Id. at 120 ute." selecting a sentencing discretion in court's adopt the decline to original). We therefore already range available penalty within the as that taken Kikumura insofar approach 87-88, S.Ct. 2411. 106 it...." Id. higher prepon- requires a than standard case misconstrued opinion, Kikumura our In sentencing factors for of the evidence derance apparent Court’s The McMillan McMillan. sentence the maximum not increase do sentencing that fac- was not whether concern sig- the defendant. was faced sentence tor's effect on ultimate
l—i «© defendant. Given our review of the part trial all of one underlying offense. To record, district court’s determination support proposition, this Graham relies on that the § defendant’s 371 conspiracy was one sentence the indictment which alleg- promote” “intended to a federal crime of es that part “[i]t was [§ con- 371] terrorism, in particular the crime of mali- spiracy that its planned members to fi- ciously damaging or destroying, by means nance organization their by engaging in of fire an explosive, any or building, vehi- narcotics trafficking.” J.A. at 79. If the cle, or other personal real or property drug trafficking is part considered used in interstate foreign commerce, or § 371 conspiracy, then, Graham argues, was not Therefore, error. we AFFIRM 924(c)(1) § second conviction, which adjustment district court’s of Graham’s drug used the trafficking convictions as the § sentence under 3A1.4. predicate offenses, is duplicative of the 924(c)(1) first conviction, which used the E. Consecutive Sentencing for Counts § 371 conviction predicate as the offense. 13 14 and words, In other argues Graham that he Graham’s final assignment of error is committed only predicate one offense for the district court improperly sen- 924(c) the purposes of a conviction, but tenced him for his 14, conviction on Count that he was sentenced twice under the which was based on a violation of 18 U.S.C. statute. Graham claims that the district 924(c). Graham received a consecutive court’s refusal to sever weapons five-year sentence on that count carry- for drug-related proof counts is ing a firearm relation to a drug traffick- crimes are so interrelated they consti- ing charged crime 11; Counts 10 and tute one overarching conspiracy. and a consecutive twenty-year sentence on Count for carrying 13 a semiautomatic Jeopardy Double Clause weapon in relation to a crime of violence as of the Fifth prohibits Amendment multiple charged in Count l.20The question for this punishments for the same criminal act or court, as by Graham, framed is whether Sims, transaction. United States v. 975 his conviction on Count 14 is duplicative of (6th F.2d 1233 Cir.1992), cert. de his conviction on Counts nied, U.S. 113 S.Ct. thereby violates Fifth Amendment’s (1993). L.Ed.2d Circuit, “In this it is Jeopardy Double Clause. well-settled that because th[e] [Double Jeopardy claims that conspiracy prohibition multiple Clause’s] [on commit against punishments] crimes States, a court may United impose for which he was convicted of more Count than one upon sentence a defendant the drug crime, trafficking 924(c) for which for he violations of section which relate convicted of Counts 10 and were predicate but one offense.” Id. We 20. Graham was convicted and years.... sentenced un- ten In the case of his second 924(c)(1) (1994), der 18 U.S.C. pro- subsequent conviction under this subsec- vided: tion, person such shall sentenced to im- Whoever, during any and in relation to prisonment twenty years.... crime of drug violence trafficking crime *28 The stipulated statute also that convictions firearm, shall, ... uses or carries a in addi- under the subsection shall not "run concur- punishment tion provided to the for such rently any imprisonment with other term of crime, crime drug of violence trafficking or including imposed for the crime of vio- imprisonment sentenced to for five drug lence or trafficking crime in the which years, and if the firearm is a ... semiauto- firearm used was or carried.” Id. matic weapon, assault imprisonment for
520 pos- or conspire to manufacture tempt or and sen multiple convictions upheld have a con- 924(c)(1) to manufacture the intent long sess with § so 18 U.S.C. under tences act for predicate The separate on trolled substance. based are convictions as such the inchoate conviction is Bur 13 v. the Count States acts. See United predicate it 371, (6th Cir.), § which makes cert. 567, 572 crime at 18 U.S.C. nette, 170 F.3d conspire 253, 908, persons 145 illegal 120 S.Ct. for two more denied, 528 U.S. (“It the (1999) firmly against es United any is now offense to commit 213 L.Ed.2d in furtherance of separate an act imposition and to that the States take tablished 924(c) § of the multiple Notably, none stat- conspiracy. for sentences the consecutive objects crimi during the same named as occurring- were utes which violations lawful.”); v. drug States offenses. United involved episode conspiracy § are nal 371 (6th Cir.), 1351, Nabors, 1357-58 F.2d 901 of dif- Second, proof on relied Count denied, 111 S.Ct. 498 U.S. cert. con- than Count 13. Graham’s facts ferent (1990). for question L.Ed.2d carrying a 14 was for on Count viction upon 14 relies Count court is whether this drug in a crime weapon engaged while 13. act from Count separate predicate a this convic- for trafficking; the evidence Nabors, upheld court panel a of this In testimo- Huggett’s came from William tion 924(c)(1) for use of convictions separate weapon a carried while ny that Graham crime, trafficking during drug firearm In con- patches. tending marijuana his with crack cocaine possession of namely on trast, conviction Count distribute, for use of a intent to engaged weapon while carrying violence, namely during a crime firearm against crimes commit conspiracy in a agent. of a federal attempted murder States; involved this conviction the United part as occurred predicate offenses Both a different carried for weapons different shot activity: Nabors ongoing criminal one Indeed, the for Count purpose than agents broke down agent federal after weapon carried while fact that Graham of his initiating a search door while completely un- marijuana was cultivating inside, agents found apartment. Once § 371 proof for his con- necessary to the We held paraphernalia. drugs and related Moreover, as the district court viction. under convictions the two that because con- out, marijuana properly pointed 924(c)(1) predi- on distinct were based con- than the began earlier spiracy much proof of different required acts and cate a crime of violence.21 to commit spiracy multiplicity. problem of there was no facts Burnette, Thus, similar to this case is Nabors, F.2d at 1358. See under convictions upheld two which we con- 924(c), kidnapping to a relating one Nabors, case,
In this
as
robbery con-
to a
relating
one
viction and
predicate
rely
different
at issue
on
counts
kidnap-
that the
noted
While we
viction.
offenses,
proof of facts
requires
and one
robbery
part
were
ping and
First,
other.
required
affirmed the
we
episode,”
criminal
“same
14 convic
for the Count
offenses
predicate
924(c)
holding that
after
convictions
crimes at 21
are the substantive
tion
and “the
distinct
were
841(a)
predicate offenses
make it
§§
U.S.C.
before,
significantly
kidnapping occurred
intentionally to at-
knowingly illegal
different from
factors
turns on
finding by
sever
the district
that this
21. We note
dupli-
14 are
13 and
inquiry
its refusal to
whether Counts
with
court was not inconsistent
14 from the
.other
sever Counts
cative.
indictment,
inquiry
whether
counts of
*29
521
of,
independent
and
the actual bank rob-
crease the maximum sentence
by
faced
Burnette,
bery.”
more Sentencing Hr’g 3A Wright, Charles Alan Federal Practice at 45. After sentencing, Procedure, (2d but before oral ed.1982). at 338 case, argument on this Supreme Court As Supreme explained, Court has “ Apprendi, decided facts, exceptional circumstances, held ‘[i]n especially convictions, other than prior which in- cases, courts, criminal appellate in the *30 522 issue to raise motion, failure of defense because interest, may, of their own
public
facts,
development of
has
exception
may
no
have influenced
to which
notice error's
obvious,
conflicting
if
theories of
taken,
errors are
involved
if the
and issue
been
law).
the fair-
an
seriously
Therefore,
affect
this is
we believe
they otherwise
judi-
reputation of
ness,
public
sponte
consider-
integrity,
case for sua
appropriate
”
v. United
Silber
proceedings.’
cial
issue.22
Apprendi
ation
1287,
717-18,
717,
82
States,
S.Ct.
U.S.
370
appeal
courts of
power
The
(1962) (holding that defect
798
8 L.Ed.2d
is circumscribed
forfeited claims
to correct
the
either
not raised before
in indictment
plain
for
error.
of review
by the standard
appeals
court of
or the
Supreme Court
Olano,
725,
507 U.S.
v.
States
See United
error) (quoting
plain
noticed as
could be
1770,
L.Ed.2d 508
732,
123
113 S.Ct.
157,
Atkinson,
U.S.
297
v.
States
United
(1993).
the test
summarized
This circuit
(1936)).
391,
555
160,
L.Ed.
80
56 S.Ct.
v. Mar
States
error
United
plain
circuit
and this
Supreme Court
Both the
Cir.2001):
(6th
tinez,
251, 255
253 F.3d
consideration
sponte
found sua
have
remedy
appropriate
plain
(2)
error
be
error;
(1)
the error
there must be
by
imposed
the district
unlawful sentences
(3)
affect
the error must
plain;
be
must
States, 375
v. United
court. See Bartone
Appellants’
rights;
substantial
the
21,
11
11
52, 53,
L.Ed.2d
84 S.Ct.
U.S.
(4)
seriously affect
the error must
(1963)
court’s error
that district
(holding
fairness,
public reputation of
integrity or
day in
ab-
one
increasing sentence
judicial proceedings.
...
plain
so
“was
the defendant
sence of
States, 520
v. United
(citing
Id.
Johnson
by the
dealt with
it
have been
that
should
1544,
461, 467,
L.Ed.2d
117
137
S.Ct.
U.S.
it
not
though
had
Appeals,
Court of
even
(1997)).
error
district court’s
718
error”);
v.
United States
alleged as
been
“ ‘Cur
current
law.
plain
under
must
Cir.1994) (vacat-
(6th
Winston,
Martinez,
The sentence
by the dis
See United States v. Page,
other counts Because fifty years. necessary produce would be extent only limit, plain er- pun- total this to the exceeded equal sentence sentence combined 5G1.2(d). There- therefore satisfied. We test has been ishment.” U.S.S.G. ror if the only found fore, could error court’s sentence the district plain VACATE court ex- by the district imposed resentencing upon consider- sentence *32 REMAND for imposed that be would the sentence ceeds question. Apprendi of ation consecutive- sentenced had been if Graham concurrently, all counts on than
ly, rather III. CONCLUSION 544- F.3d at Page, 232 See of conviction. reasons, we AFFIRM foregoing For the 45. conviction, VACATE the defendant’s of fif a sentence received Graham resentencing sentence, REMAND for above, maxi noted years. As ty-five Apprendi. in light of for each of the permitted mum sentence The charges years.23 is five marijuana two COHN, Judge, District Senior conspiracy for statutory maximum dissenting. 1) (Count imprison years’ is five charge statutory § 371. The 18 U.S.C. ment. I. Introduction by an aof firearm possession for maximum II.D., from Part respectfully I dissent substance a controlled user of unlawful § to Sen- 3A1.4 Application of U.S.S.G. (Count 9) years. 18 U.S.C. is ten I tence, majority opinion. believe mandatory 924(a)(2). also § faces Graham ad- apply the terrorism error to it was years of five consecutive sentences § to de- 3A1.4 justment under U.S.S.G. (posses 13 and for twenty years Counts conduct as determined offense fendant’s crimes with in connection of a firearm sion sentencing Two of the Chapter under trafficking). drug violence of adjustment 1998). Application (West guidelines. 924(c)(1) The § U.S.C.A. 250 months to defendant’s of all added over prison sentences maximum combined expressly Roper, Roper. In the defendant exposed that Graham do not believe We drug objection by statutory his initial maximum withdrew higher to a himself Report, in the Presentence testimony quantity he set forth asserting established that “the agreement government's plants” exchange 50-75 for responsible for between was Report. Roper, objections pursue to the Presentence a firearm enhancement. not to his Roper v. that United States district court asked circuit held in at 532. The This 266 F.3d regarding agreement. express he admit- understood that was defendant's if he defendant sufficient drugs is quantity finding involved quantity and the defendant ting to the contrast, in excess Apprendi a sentence to sustain under Gra- he did. Id. In responded that unspecified statutory for maximum an 526, fifty responsibility for stipulate to ham did (6th drugs. 266 F.3d quantity of merely chal- marijuana plants. He or more Cir.2001). objection constituted If sufficiency of the evidence lenged the responsible agreement he was express standard, preponderance prove, under marijuana plants, the statuto- fifty for or more fifty seventy- than responsibility for more marijuana charges would ry for the maximum in the is no indication plants. five There U.S.C. years. twenty See objec- contemplated his record pre- 841(b)(1)(C). year five maximum § specific quantity, admission to tion as an 841(b)(1)(D) apply in § does not by scribed any consequences was informed that he marijuana involving fifty or more cases position in the to the taken might attach weight. regardless plants, acknowledge responsi- objection. did not He however, court bility quantity before the district this is objection, quantity Graham's to do so. sentencing, was he asked nor present in agreement distinguishable from the sentence. Effectively, defendant was con- rather of which of the offenses 18 U.S.C. by victed the district 2332b(g)(5)(B) court by and not that defendant was con- victed. An jury of a crime not enhancement charged in the 3A1.4 indict- under an interpretive exercise only to ment the extent proved and not at trial. The funda- that conviction of an enumerated crime mental by error committed the district motivated the elements of 18 court and condoned majority is the U.S.C. 2332b(g)(5)(A). Additionally, in failure to give weight full to the definition events, all application of a guideline en- of a “Federal crime of terrorism” in 18 hancement of some 250 months requires U.S.C.'§ 2332b(g)(5) 3A1.4 incor- more than a finding by preponderance porates. minimum, evidence. a At the evidence I disagree should be particularly clear and convincing with three if *33 state- not be- yond a reasonable doubt. ments the majority opinion. —
— [T]he district court’s determination Noting that there is applicable no that the § defendant’s 371 conspir- us, case law assist turn to we acy was promote” “intended to a language of the Guidelines and anal- federal terrorism, crime of in par- ogous provisions for guidance. ticular the crime of maliciously I describe, As will the evolution of damaging or by destroying, means 3A1.4, § applicable case law as well as the of fire or an explosive, any building, legislative history vehicle, 18 U.S.C. or other personal real or § 2332b(g)(5), used in property assists us in deciding or for- on the interstate eign commerce, was parameters not error. aof “Federal crime of terror- ism.” To analogous look to provisions of The enumerated offense listed under 18 guidelines § is unnecessary; 3A1.4 is § 2332b(g)(5)(B) U.S.C. described this explicit in its definition of a “Federal crime 844(i). statement § is 18 U.S.C. Defen- terrorism;” there must abe conviction dant was not convicted of violating 18 of one of the enumerated offenses in 18 844(i) § U.S.C. or attempting to do so in § 2332b(g)(5)(B) U.S.C. before there can § violation of Moreover, 18 U.S.C. 2. be an § enhancement under 3A1.4. 844(i) conviction under 18 U.S.C. only becomes a “Federal crime of terrorism” if
— In sentencing the defendant under it was “calculated to influence or affect the § 3A1.4 we hold district conduct by intimidation or must, court however, identify which coercion, or retaliate against govern- enumerated “Federal crime of ter- conduct,” ment 18 U.S.C. 2332b(g)(5)(A). rorism” the defendant intended to The district findings court’s woefully fall promote, satisfy the elements of short this standard. The district court’s § 2332b(g)(5)(A), support its particular findings any lack details from conclusions preponderance the trial record which support would the evidence with from facts finding additional beyond a reasonable record. doubt. It is not which enumerated “Federal are, These summary, the consider- crime of terrorism” the defendant intended ations compel my They dissent. will promote identified, that must be but discussed detail below. of- of each Characteristics Specific Offense Background1
II. sentenc- predicted in the Nowhere fense. Indictment The A. is there reference ing guidelines Graham, Metcalf and Bradford Randy Apparently under 3A1.4. enhancement April on indicted Ken Carter were time, not be- government did various majority opinion describes The appro- was that such an enhancement lieve they need the three charges against However, Presentence Carter’s priate. in the Significant repeated here. not be (PSR) the Guide- Report Investigation following: is the indictment language of the By The Court Range Determination line — commanding officer Total was set the judgment, Carter part of Carter’s in the formation His- and the Criminal leader Level at 38 Offense Militia.” in- computation American
“North at VI. This tory Category — .4 cluded the 3A1 enhancement. also a leader. Metcalf A Case stated “The Judgment In Criminal — as- tasks “executed various range guideline from the departs sentence him Carter.” signed to carries of conviction the count because — Acts are described. Thirty Overt statutory penalty” and year five maximum in nine of is named alone Carter also stated: is named in alone them. Metcalf *34 to the Bureau recommends The Court in two. alone named is six. Graham placed in the defendant be Prisons that in one. Gra- All are named three may indi- security facility than be a less in three. are named ham and Carter category history VI cated criminal name Carter Overt Acts The other history since, fact, his true criminal thirty Overt Of Metcalf. category is I. indictment, in the Acts described only named in six. Graham
2. Graham The Sentences B. plea agree- initially negotiated Graham to that of Car- substantially similar ment
1. Carter plea guilty Count ter. On Graham’s to Count pleaded guilty quickly Carter count, One, conspiracy § 371 the 18 U.S.C. § Indictment, the 18 U.S.C. of the One limited his sentence which of course count, agreement plea under a conspiracy months, against him remaining counts cooperation. Un- complete required which plea dismissed. Graham’s were to be agreement, plea der the Carter’s, predict- included agreement, like against the other counts agreed to dismiss for each sentencing guidelines ed sentence that Carter’s meant Carter. This indicted. he was offenses on which months, statutory to 60 was limited made sentencing guidelines no predicted § and this maximum for a violation § under 3A1.4. enhancement mention of an received. The was the sentence Carter However, day scheduled on the detail, howev- described in plea agreement plead, thus abort- declined plea, Graham er, guidelines for predicted sentencing ing plea agreement. for which Carter of the each offenses jury July 9,1998, grand returned On indicted, Level including the Offense Base against Carter indictment superceding in this level because and increases district are found in the to doc- such materials refers 1. To the that this dissent extent Appendix, court's record. in the Joint uments not contained and Metcalf. Carter was dropped from mended a years sentence of 55 imprison- the superceding indictment and two counts ment for Mr. Graham. The United against were added Graham: Thir- Count agrees States with this recommendation teen, charged him carrying with necessary one fully meet the poli- weapon semi-automatic in relationship to a underlying cies federal sentencing. violence, crime of in violation of 18 U.S.C. See Government’s Sentencing Memoran- 924(c)(1), § Fourteen, and Count which dum, Entry Docket p. at charged him with carrying a firearm dur- Earlier, Graham filed objections several ing drug relation to a trafficking to the PSR’s application 3A1.4 crime, 924(c)(1). violation of 18 U.S.C. enhancement. objection relating These offenses carried mandatory consecu- application to the U.S.S.G. 3A1.4 tive years of 20 years, sentences and 5 the PSR’s response are in the found PSR respectively. as follows: Graham went to trial. The results are Mr. objects to the application of described in majority opinion and need adjustment for Terrorism. Pursu- repeated here. Importantly, as 3A1.4(a) (b). ant to U.S.S.G. He noted the majority, jury returned a argues the application Terrorism is not general verdict on Count One so there is valid, as he has not been convicted of way no of knowing which of the four ob- any crimes set forth in 18 U.S.C. jects .of the conspiracy charged Count § 2332b(g). Mr. Graham concedes he One it found proved beyond were a reason- private had conversations in which he Likewise, able doubt. jury made no spoke harshly about the government specific findings regarding the number or and, times, private vented in a conver- plants marihuana which were involved in sation to a friend. During these conver- *35 Counts Ten and Eleven. sations, he was exercising right his
The first § to a reference 3A1.4 unpopular en- hold believes and harsh views hancement of Graham’s Offense about the government. Level federal Mr. Gra- computation on the offenses for which he ham private maintains these conversa- was convicted appears in his PSR without tions with friends protected were any justification discussion or speech, for making pursuant to the First Amend- adjustment. The PSR recommended ment of the U.S. Constitution. application § of the 3A1.4 enhancement to Mr. argues Graham also he never acted Count One and also recommended it be out violently damaged government prop- applied Nine, to Counts Ten and Eleven erty, attempted to damage govern- even though the offenses charged in property. ment Nine, Counts Ten and Eleven are not men- Response §
tioned in 18 U.S.C. 2332b(g)(5)(B). The government’s sentencing memorandum presentence investigator believes filed four days before the date sentence adjustment this victim related has been was imposed any does not contain refer- correctly Graham, applied. Mr. Brad- ence to the PSR of recommendation Metcalf, ford conspired and Ken Carter § 3A1.4 enhancement other than to state: to commit against offenses the United
Based on independent investiga- States as discussed Count One of the tion and application of Sentencing Superseding Indictment the Offense and Guideline totality to the of facts in this Conduct of report. section this Mr. case, the Probation Officer recom- jury Graham’s him found of guilty this 3. Metcalf are list- offenses of Some those
offense. 2332b(g). § in 18 U.S.C. ed repre- separately trial Metcalf went in all of convicted himself. was senting He 1455) (JA at indictment superceding the counts compared to must be response charged. As Graham’s he was in which heading Vic- finding under the PSR’s § 3A1.4 case, the PSR recommended stated: Impact which tim aggre- received Metcalf enhancement. months, of which sentence of gate have victims who specific no There are con- of his consecutive because months was Mr. Gra- consequences of suffered firearm, carrying a on Count actions, co-de- viction Mr. Graham ham’s during weapon, semi-automatic assault through follow not were able fendant violence, in viola- to a crime relation disrupt government plans to with their 924(c)(1). Metcalf, § tion of 18 U.S.C. functions, destroy communications himself, appealed his again representing and threaten highways, public and/or was af- Metcalfs conviction conviction. employees. assault federal officers unpublished opinion, United in an firmed 1436) (JA at 99-1667, 2000 WL Metcalf, v. No. States 2000). (6th sentencing did There is court The district Cir. June finding supporting facts 3A1.4 particularize the in this decision no mention enhancement; 18 U.S.C. did not apparently elements Metcalf stating only present, application of 2332b(g)(5)(A) were claim error because enhancement. to influence His crime calculated States against the United and retaliate 4. Overall government. enhancement 3A1.4 Application 1405) (JA at record of Gra- supportable on the is not justification for There is no ham’s case. justification for find- The district court’s any of application its 18 U.S.C. elements ing convicted, partic- of which was offenses he present generally 2332b(g)(5)(A) were court’s treat- ularly light of the district majority reasoning of the followed *36 in the was described of Carter who considerably sophistica- ment less opinion with officer commanding indictment as imposed a sen- district tion. The court the North Amer- in the formation of leader of which 360 months of 660 months tence One, Surely, whatever consider- Militia. ican under Count were for the convictions for pleading entitled to ation Carter was Nine, Ten, The details of the and Eleven. if his offenses fully guilty cooperating, sentence, scoring with including guideline promote intended involved or were § enhancement are 3A1.4 and without as the Offense crime of terrorism Ap- federal A. As noted Appendix set forth 38, History VI the Level Criminal A, court exceeded the district pendix by the Court Range § Determined under 371 Guideline statutory maximum 60 month Case, In A Judgment Civil stated his statutory máximums for the because limited plea which approving agreement and Eleven on Counts Ten convictions recogni- 60 months was sentence to a 360 month his Achieving months. were 480 court the district did One, Ten, of the fact that and Eleven tion sentence for Counts a “Fed- committed not believe that Carter ques- is of the district court the fashion government The of terrorism.” eral crime in all events. tionable did not below, also consider Carter a terrorist as explained As will be the two stat- by plea § evidenced utes from agreement. which 3A1.4 and the term “Federal crime of terrorism” are derived Likewise, did not view are the Violent Crime Control and Law committing Graham as a “Federal crime of (Violent Enforcement Act of 1994 Crime PSR, until it terrorism” received the which Act), Control 103-322, XII, Pub.L. Title not support does the enhancement other § 120004 and Sections 703 and 730 of the simply applying Lastly, than it. the dis- 1994, AEDPA. Prior to early indeed as findings court trict at sentencing 1991, Congress working on amending not justify application § did of 3A1.4. Sim- the Omnibus Crime Control and Safe ply put, applying 3A1.4 enhancement to, Streets Act of 1968 among things, other gross wrong did a to Graham. provide penalties increased for terrorist 12, 1991, crimes. On March the Senate Analysis III. 635, introduced S. entitled Comprehen- Legislative A. The History sive Violent Crime Control Act of 1991. VII, Terrorism, Under Title Subtitle D-
1. Sanction, Terrorism Offenses and Section The legislative history of 18 U.S.C. 738 contained Sentencing directions § 2232b(g)(5) and the Antiterrrorism and Commission, as follows: 1996, Penalty Effective Death Act of The United' Sentencing States Com- (AEDPA), 104-132, Pub.L. 110 Stat. mission is directed to amend its sentenc- under Section directed the Sen- ing guidelines provide an increase of tencing Commission promulgate not less than three levels in the base 3A1.4, can http://thom- be traced offense level any felony, whether as.loc.gov, supports my view that committed within or outside of the Unit- § 3A1.4 enhancement is specific offense States, ed that involves or is intended to only can applied if there is a convic- promote terrorism, international unless tion of one of the offenses enumerated in such involvement intent itself U.S.C. 2232b(g)(5)(A). This history element or the crime. particular shows a concern the Con- See S. (1991). 102d Cong. gress that the “Federal crime of terror- Bill, House H.R. contained a similar ism” applied enhancement is only to be in provision. a narrow set of circumstances. This histo- must
ry particularly be viewed in light of that, fact recently,2 until there was no No further action was taken Con- law that federal a domestic act gress makes until Congress began consideration as such a terrorism crime. Violent Crime Control Act of *37 11, Prompted by 2. September the systems," events of prescribing penalty tation a of 20 2001, Congress (if Uniting years the imprisonment, enacted life the offense was Strengthening by Providing Appro- defined). "aggravated American an as further offense” priate Required Intercept Tools and Ob- Section 803 contains new crime for "Har- (USA PATRIOT) terrorist,” struct boring Terrorism Act concealing of 2001. prescribing The USA PATRIOTAct penalty years added to the criminal imprisonment. of 10 As further code relating two new federal infra, crimes to ter- stated this ap- case was submitted on 801, rorism. Chapter 11, Under section peal prior 97 of September to the events 18, Code, title United States was amended to depict grossly 2001 and Graham's actions less offensive, different, include a crime for qualitatively "Terrorist attacks and conduct against 11, other acts transpor- of violence displayed September mass than that on 2001. action were and terroristic 103-3355, Terrorism intro- in H.R. originated which the Senate defined. When 1993. October duced it passage, for H.R. 103-3355 considered in the Sentencing said The Commission language incorporate the bill amended 292, Appendix commentary to Amendment counter-part to 3355.
from the S. the C, § 5K2.15: promulgated which language the Bill 1607 contained Senate K, Five, Subpart Part Chapter 292. § which reads: that became additional by inserting an amended is SENTENCING SEC. (Terrorism § 5K2.15 policy statement as FOR INCREASE GUIDELINES Statement)). (Policy CRIMES. TERRORIST is to of this amendment purpose The Sentencing Com- States The United concern specific policy statement add to amend its sentenc- directed mission is upward depar of an ing consideration appropriate ing guidelines provide for a is committed the offense ture when any felony, whether for enhancement amendment purpose. This terroristic the United or outside within committed change. not make a substantive does States, or is intended involves currently included is Such conduct terrorism, unless international promote § 5K2.9 policy broader statement is itself an or intent such involvement (Criminal policy other Purpose) and . of the crime. element v. Kiku States statements. See United (D.N.J.1989).3 mura, F.Supp. 331 §of enactment to the Prior this amendment effective date of provi- The contained Sentencing Guidelines 1,1989. 5K2.15, relating § November sion under U.S.S.G.
terrorism, read: which However, Sentencing Commission § 5K2.15. Terrorism (Policy State- provide a new 120004to was directed
ment) enhancement, it which did terrorism commentary In 3A1.4. promulgating the offense If the defendant committed C, 526, Appendix action, the to Amendment terroristic in furtherance of a 3A1.4, Sentencing promulgated sentence above may court increase stated: range. Commission guideline authorized Moreover, Kikumura, the defen- because F.Supp. warranted. States v. 3. United 10, 1989, (D.NJ.1989), February multi- in- intended to cause dant’s bombs were decided sentencing Naples of a member injuries, volved the did the ple deaths captured with Army who was Japanese bomb, Red The greater departure is warranted. found that Ki- explosives. The court district bombs, disruption of dangerousness of the meticulously planned, schemed kumura had con- governmental and extreme function mission attempted to a terrorist execute are obvious. duct guidelines scored in the United States. 1990, subsequent to F.Supp. at 340. In and be- conduct at 18 offense Kikumura’s 5K2.15, Ap adoption the Court history prior criminal had no cause he vacated the sen peals the Third Circuit guideline range offense of conviction for his to the with instruction and remanded tence depart- court months. The district was 27-33 particularly describe more district court to years. court The district upward ed to 30 departure with re upward the basis for explained: directed gard it considered and to the factors fact, con- Guidelines do not point In departure be support the facts to remotely similar or conduct sider terrorism *38 convincing evidence. by clear and established Here, Kiku- because to that of Kikumura. Kikumura, (3d 918 F.2d States v. United death and horrible mura intended cause Cir.1990). guidelines is injury, departure from the a crime). Section of the Violent Crime of the Considering the existing Control and Law Enforcement Act of policy statement 5K2.15 recom- 1994 directs the provide commission to mending upward an departure in such appropriate any enhancement for fel- cases, the Commission invites comment ony that pro- involves or is intended to whether, how, on if so guide- mote international terrorism. The lines should be amended to address this amendment this directive addresses appropriately. directive For example, adding Chapter Three enhancement at should the adjust- Commission add an (International Terrorism) § 3A1.4 Chapter ment to Three that would ap- place upward departure provision ply to all Chapter Two offenses and (Terrorism). §at 5K2.15 The effective prescribe specific would increase 1, date of this amendment is November in offense level if the offense involved or 1995. was intended to promote terrorism? If so, what level of enhancement would be Sentencing The Commission was not en- Or, appropriate? should the Commis- thusiastic about Congressional man- (Career Offender) sion amend 4B1.1 Analysis In its date. Of The Violent to enhance the sentences of such defen- Crime Control And Law Enforcement Act dants under this if (H.R. they section as were of 1994 By As Passed The career offenders? Senate November By 1993 And April 26, 1994), II, House Part (Jan. June Fed.Reg. 9,1996). p. the Sentencing Commission The Chair of the Subcommittee on Sen- following
said the Section about 120004: tencing Guidelines the Attorney Gener- general As a principle, the Commission Advisory al’s Committee of United States opted for has a more guideline flexible Attorneys and Deputy Assistant Attor- departure, rather guideline than fixed ney General of the Division Criminal enhancement a sentencing where factor Department of responded Justice to the atypical is or may when it during arise Sentencing request: Commission’s range the course of a wide of offenses of The Crime Act requires also the Com- varying seriousness or in many forms. mission to guidelines amend the to pro- In such may situations it be difficult to vide “an appropriate enhancement” for arrive at a fixed in calibrating formula any felony that involves is intended to the seriousness of fact with that of promote terrorism, international unless offense, underlying although the fac- this factor is an element of the crime. may tor nevertheless important be an 120004 of the Crime Act. Amendment sentencing consideration for the court. 24, however, refers to the existence of a
The Sentencing policy Commission solicited current recommending statement mandate, comment on the Congressional upward departure cases, in such as follows: § 5K2.15. The inquires amendment also guidelines whether the should be amend- Issue Comment: Section and, so, ed to address the directive if
120004 of the Violent Crime Control how. and Law Act Enforcement of 1994 di- provide
rects Commission to an ap- Again, policy statement recommend- propriate any felony enhancement for ing departure not meet the does statuto- that involves or is promote intended to ry directive to the Commission “to (unless international terrorism such in- sentencing amend its guidelines pro- volvement intent itself an element an appropriate vide enhancement....” *39 (Criminal History Chapter Four aware presumably Congress Livelihood) shall be statement, and Criminal yet it mandat- policy current Category VI. thus Congress has an amendment. ed enhancement guideline required a Commentary any felo- consequences specifies the pro- intended to is ny that involves or Notes: Application to in order terrorism mote international (a) offense increases the 1. Subsection public to safe- threat this serious combat involved, in- or was if the offense level ty- terror- promote, to international tended to sum, the Commission urge In we is de- terrorism” ism. “International by enacted Con- closely directives follow § 2331.4 at 18 U.S.C. fined sentencing. relating to gress Commission, Sentencing States United 3- Cycle, Amendment Comment 1995 Public “Federal origin of the term As to the P. 1995, Jay of McClo- Statement March in found which is crime of terrorism” of Attorney District sky, United States located 2232b(g)(5) and U.S.C. Maine, Chairman, on Sen- Subcommittee 113B, 2232b, Chapter en- part of U.S.C. Ad- Attorney General’s tencing Guidelines Terrorism, the Untied of Title 18 of titled Attor- States United visory Committee of Code, criminalizes which section States Litt, Deputy Assistant S. neys and Robert transcending national terrorism “Acts of Division, General, Criminal Attorney origins boundaries,” to the one must look (emphasis p. 1995 at 19-20 March began § 2232b AEDPA. 18 U.S.C. original). 104-896, The Omnibus Coun- life in H.R. Sentencing Commission Regardless, in the Act of introduced terterrorism to read: promulgated 3A1.4 February on Representatives of House Terrorism International 3A1.4. Bill President Clin- request at the (a) felony in- time, If the offense at the same ton and in the Senate
volved, promote, intended to or was Coun- Bill 104-390. This Omnibus Senate terrorism, by increase international eventu- Act evolved into what terterrorism levels; resulting of- if the but 101 of the AEDPA. Section ally became than level less fense level is to an amendment H 104-896 R. included increase level United States Chapter 113B Title making form Sec. 2332b (b) case, Code the defendant’s such In each national transcend from acts of terrorism which history category criminal (ii) govern- policy of a influence the part: § 2331 4. 18 U.S.C. reads coercion; or by or ment intimidation chapter— As used in this (iii) the conduct of a to affect (1) means terrorism” the term "international kidnapping; assassination or activities that— dangerous (A) (C)occur or acts primarily involve violent acts outside the territorial the crimi- States, life that a violation human are or tran- jurisdiction of the United any or of States nal laws of the United terms of the scend national boundaries State, violation criminal or that be a would accomplished, they are means jurisdiction of the if committed within they persons appear intended intimidate any State: United States or coerce, their locale in which (B) appear intended— asylum; perpetrators operate or seek (i)to pop- a civilian intimidate or coerce ulation; *40 a boundaries crime. Section 101 contains (C)affecting the conduct of a govern- generally language the same of 18 U.S.C. through ment assassination kid- or 2332b, § provide but did not a napping; definition of an act A of terrorism. revised version of reported H.R. 1710 was out by the H.B. was introduced in the House of Judiciary House Committee on December Representatives May on as H.R. 5, 1995 in an amended form in H.R. 104- isWhat now 18 U.S.C. 2232b was 383. Section 104 changed was not in the set forth in Sec. 104 of H.R. 104-1710. amended bill again did not a contain Again, no definition of terrorism was in- definition of terrorism. Section did, cluded. Section 206 of H.R. 1710 how- also included in the amended bill without ever, a contain direction to the Sentencing change. however, Section contained a to amend the guidelines Commission so new of terrorism. definition It incorporat- adjustment relating to interna- 212(a)(3)(B)(ii) ed as the definition Section tional ap- terrorism under also 3A1.4 of the Immigration Act, and Naturalization plied domestic to terrorism. Section 315 8 U.S.C. 1182.5 of H.R. 1710 amended the definition of Report The House commenting on the terrorism 18 U.S.C. the defini- change definitional stated: tional Chapter of section 113B to read: Title III also a establishes new defini- (1) term “terrorism” means the use tion of apply terrorism that will to inter- of or force violence of violation national and domestic terrorist offenses criminal laws of the United States or of State,
any or that would be in violation criminal simply laws the United It categorizes States existing certain any or of if State committed within the federal crimes as if “terrorist” motivated jurisdiction of the United or to affect States the conduct of or appears State that policy. to be intended to social political achieve or social by— ends (1995). H. Rep. No. 104t-383at p. 53 (A) intimidating or coercing segment Report The House stated as to Section population; 206: (B) influencing coercing govern- or This gives section Sentencing U.S. officials;
ment official or or authority Commission amendment to ex- 5. This section reads: tion for release of the individual seized detained. or chapter, As in this used the term "terrorist (III) A upon violent attack an interna- activity” any activity means which is unlawful (as protected person tionally defined under place the laws of the it is com- where 1116(b)(4) 18) section upon of Title or which, (or mitted if committed in the United liberty person. such a States, would be unlawful under the laws of (IV) assassination. An State) any or United States and which (V) any— the use of any following: involves (a) biological agent, agent, chemical (I) or highjacking sabotage The any or device, weapon aircraft, or vessel, nuclear or conveyance (including an (b) (other vehicle). explosive or firearm than or (II) monetary personal gain), mere seizing detaining, in- or with threat- kill, detain, endanger, ening injure, directly indirectly, tent to or or continue safety compel another individual in of one or more order to or to individuals person (including governmental damage property. third cause substantial organization) (VI) threat, doing to do or attempt, conspiracy abstain from A any explicit act as an implicit any foregoing. condi- do Of the the terrorist for adequately punish Chapter 3 enhance- scope of its
pand the offense, appropriate to define *41 of- it is for “international terrorism ment Sentencing the U.S. term. under fenses” of- all terrorism to include Guidelines at 114. Id. the Sentenc- to In amendments fenses. House Henry Hyde of the Chairman effective No- that became ing Guidelines Committee, introducing a re- in Judiciary 1, provision a new
vember 2706, day bill, as the H.R. same vised jail time for of- increases substantially filed, revising further Report was House in connection with fenses committed Report, in the said: set forth House the bill terrorism. This international crime of introducing a revised today ... lam... make that new will section of the bill bill terrorism to all terrorist of- provision applicable or domes- international fenses whether until Novem-
tic, having to wait without following bill does the The new to law. change become 1996 for the ber Id. at 109. overly definition broad Deletes new ter- explaining
In definition terrorism. 315, Report the House in rorism Section stated: 5, 1995, H 13976. Cong. December Rec. statutory defi- provides
This section following: included the H.R. 2706 “terrorism”, so with- and does nition of — a “Federal defining Section crimes, and federalizing any state out set forth of terrorism” as now crime police reach of the federal expanding the § 2332b(g)(5) 18 U.S.C. any make crime does not power. It — the direction continued Section gov- which the federal “terrorist” over Sentencing as Commission to jurisdiction. possess not ernment does of the AED- forth Section 730 set First, signifi- acts as a definition this PA to on the cant limitation — 315 was deleted Section might violate who prosecute individuals into form of what enacted The final was bill, when enacted. of this section 104 Bill 735 the AEDPA is Senate law as under that sec- prosecute someone To Rep- House of amended which was tion, Attorney first General would as S. 735 Effective Death resentatives the crime one of certify that have to Safety Act of 1996 Penalty and Public terrorism, under this section. defined Amendment). The (Engrossed House of terrorism is Secondly, the definition Cong. Report on S. Conference sentencing phase important also 3305-01, stated as to Section Rec. H. The prosecution of federal law. of a Sentencing to Commission: Directions Guidelines, in calculat- Sentencing U.S. be im- sentence to ing appropriate to House 730-Senate Section recedes there- criminal posed upon a convicted 207. This sections 206 and amendment fore, sentencing judge Sentencing authorizes the gives the Com- U.S. section offense, and authority expand consider nature mission amendment of the crime. the motivation scope Chapter of its 3 enhancement offenses” “international terrorism So, sentencing keep in order Guidelines, Sentencing the U.S. under judge assigning from a terrorist label of terrorism terrorist, only to federal crimes apply truly are crimes that 2332b(g). as defined in section In emergency as an pro- amendment under Sentencing 21(a) amendments to the Guide- cedures set forth in section lines that became effective November Sentencing Act of 1987. The effective provision substantially new date of this amendment is November jail time increases for offenses commit- ted in connection with a crime of inter- Sentencing Commission did not ex- national terrorism. This section plain distinction, any, if between “a bill provision appli- mil make that new *42 felony involved” and a felony that “was only cable specifically to those listed promote” intended to “a Federal crime of terrorism, crimes upon con-
federal of distinction, terrorism.” If there is a there viction those crimes with the neces- of nothing in the legislative history, out- sary motivational element to be estab- above, lined suggests which that Congress lished at sentencing phase of the intended a distinction. prosecution, having without to wait until change November 1996 for the to be- Amendment 539 emergency was an come law. amendment. It re-promulgated with- added). (Emphasis change 565, out in Amendment Appendix C, 1,1997. Section 730 effective November reads: Sentencing United States Com- 3A1.4, Terrorism, Section entitled now forthwith, mission shall in accordance pertinent part: reads in procedures with the set forth in section (a) If felony the offense is a in- 21(a) Sentencing Act of volved, or promote, was intended to though authority under section terrorism, federal crime of increase expired, had not amend sentencing levels; 12 but if the resulting offense guidelines so that chapter adjust- 3 level is less than level increase ment relating to international terrorism level 32. only applies to Federal crimes terror- ism, as 2332b(g) section defined (b) case, In each such the defendant’s title United States Code. history criminal category Chapter from added). (Emphasis (Criminal History Four and Criminal Livelihood) such, Category shall be As VI. Sentencing pro- Commission mulgated C, Appendix Amendment commentary amended 3A1.4. The Commentary states: Application Notes: implements This amendment section 730 the Antiterrorism and Effective (a) 1. Subsection increases the offense Penalty
Death Act of Pub.L. 104- involved, if level the offense level or 132, 110 Stat. 1303. That section re- promote, was intended to a federal quires the Commission to amend the crime of terrorism. “Federal crime sentencing guidelines adjust- so that the of terrorism” is defined at 18 U.S.C. §in (relating ment 3A1.4 to internation- § 2332b(g). terrorism) al applies broadly more to a majority opinion, As noted in the 18 U.S.C. terrorism,” “Federal crime of as defined § 2332b(g) in part: reads in 18 2332b(g), provides U.S.C. (5) that the Commission shall have the au- the term “Federal crime of terror- thority promulgate this amendment ism” means an offense that— 53 (ii) (relating sabotage section 236
(A) or affect to influence is calculated fuel) intimi- Atomic or government nuclear facilities the conduct coercion, against (42 2284); or to retaliate or Energy dation Act of 1954 U.S.C. conduct; and (iii) (relating to aircraft section (B) of— is a violation 60123(b) (relating to or section piracy) (i)section (relating to destruction of gas or hazard- of interstate destruction (relat- facilities), 37 or aircraft aircraft facility) of title 49. liquid pipeline ous airports), at international ing to violence special mar- (relating to arson within jurisdiction), 175 territorial itime and (re- weapons), 351 (relating biological history read in legislative is best This cabinet, and Su-
lating congressional, description of the context of the narrative assassination, kidnaping, preme Court Congress between place took what assault), nuclear (relating to of The Omnibus Counterter- introduction (n) 842(m) materials), (relating to *43 390, 1995, and S. on Act of H.B. 896 rorism 844(3) (relating to explosives), plastic 5, of the February 1995 and the enactment 844(f) (i) (relating bombings), certain April became law on AEDPA which proper- of certain bombing and to arson (1995) LI and as set forth Volume 930(c), conspiracy to (relating to ty), 956 (1996) Congressional LII of the Volume foreign govern- a property of injury (Lawmakers Almanac Aim Quarterly Take ment), (relating protection to 1114 1995) (1995 CQ Almanac 6- At Terrorism — of the employees United officers and 6-21) (President Signs Anti Ter- and States), (relating to murder or 1116 CQ to 5- Bill—1996 Almanac 5-18 rorism officials, official foreign manslaughter 25). clearly continuing con- There was per- internationally protected guests, or over Representatives in the House of cern sons), injury to to (relating 1203 build- not so much as the definition of terrorism special maritime ings property within Sentencing to the direction to the related jurisdiction of the United and territorial Commission, reasons-the States), (relating to destruction of but for broader 1366 (relating to energy facility), 1751 have on other impact might the definition staff as- and Presidential Presidential efforts of the law enforcement assault), sassination, kidnaping, ac- regard to terrorism and terrorist with injury to of fortifi- (relating States. tivity the United defenses, cations, or defensive harbor the district approve of the action of To areas), (relating to violence sea effectively labels Graham a terrorist court platforms), 2332 against maritime fixed record activity displayed and other (relating certain homicides to by ap- activity, as was done as terroristic States nationals against violence United enhancement, § and is plying the 3A1.4 States), occurring outside United language of 18 contrary to the grossly (relating weapons to use of 2332a defining § a “Federal 2332b(g)(5) U.S.C. destruction), (relating to 2332b mass the Con- crime of terrorism” as well as transcending national acts of terrorism keep the definition gressional intent to boundaries), 2332c, (relating 2339A keep sentencing “in order to narrow: support material to terror- providing a terrorist label to judge assigning from ists), providing mate- (relating 2339B terrorist, truly not crimes that are organizations), support rial terrorist for his of- torture); punish the terrorist adequately (relating to or 2340A Ten, fense, Eleven, appropriate it is to define the term.” can only be described as (1995), p. gratuitous. It is also worth Rep. noting H. No. 104-383 exception, almost without statutory Simply put, Sentencing the record of the penalties for the offenses listed under promulgating Commission’s actions § 2332b(g)(5)(B) twenty years are to life. guideline regarding 3A1.4 as a discrete Indeed, above, as seen Congress when legislative history terrorism and the Sentencing directed the Commission to initially statutes which mandated 3A1.4 amend 3A1.4 apply to a “Federal amended, and as leads to the conclusion terrorism,” crimes of it did not state that that a conviction of one of the enumerated applies the enhancement to offenses that 2332b(g)(5) offenses listed 18 U.S.C. ” “involved or “intended to rath- promote,” precedent an absolute condition to the en Sentencing er the Commission was direct- §by Plainly, hancement called for 3A1.4. ed to guidelines amend the so that legislative history of the statutes re applies only enhancement to ‘Federal by Congress, much flects concern like crimes terrorism’ as in section defined delegates the concern of the to the Consti 2382b(g). prior While directions to the tutional Convention of 1787 over the defini Sentencing Commission used language “treason,” being tion of that “terrorism” promote” “involved” or “intended to to- phrase far-reaching which carries connota gether with term “international terror- indiscriminately tions that is not to be used ism,” the given directions with the enact- carefully and must Rum defined. See ment of section of the AEDPA did not Dying Speech, bold’s and Jefferson’s *44 language. contain such The directions Democracy, Last Words on William apply rather were to the enhancement to Ser., (1952), Mary Quarterly, 3d IX “Federal crimes of terrorism” as defined 521-531. However, § under 2332b. when the Sen- tencing promulgated Commission the new 5. amendment in accordance section with history This from of the evolution no 730, unknown, language reasons the guideline involving on a crime to terrorism promote” “involved” or “intended to re- § present language clearly 3A1.4 Thus, mained. the district ma- court and application establishes that its should be jority’s pro- reliance on the “intended limited to a conviction of of the enu- one language effectively mote” conclude merated offenses in 18 U.S.C. conspiracy § under 371 is “Federal § 2332b(g)(5)(B), coupled with detailed problematic. crime of terrorism” is As findings presence of the criminal Report seen from the Conference on Sen- motivating actions of the offender of the 735, Congress Bill intended that ate § elements described in 18 U.S.C. apply only enhancement those crimes set b(g)(5)(A). history This makes clear the 2332b(g)(5)(B), § forth under which does recommendation, errors of PSR’s dis- Indeed, § plain not include 371. lan- majority findings trict court’s and the Congress in- guage of Section 730 shows opinion’s approval of the enhancement sentencing enhancement tended §by called for 3K1.4 to the offenses for § apply only under 3A1.4 to the “Federal particu- which Graham was convicted and crimes of as defined under terrorism” larly conspir- § his conviction of the crime of that a 2332b(g)(5). To hold conviction § acy applica- under 18 371. The U.S.C. under 371 is also a “Federal crime of carefully tion of the enhancement to the marihuana terrorism” as that term has been crimes, Nine, defined, Congressional intent. goes against involved found Counts effect, Fourth Appeals the Court of for the The Precedents
B.
approved
upward departure
Circuit
3553(b) (sentencing
under 18 U.S.C.
majority opinion’s view
Contrary to the
ag-
account
court can deviate to take into
dealing
precedent
with
there is case
guidelines did
gravating circumstances the
court of appeals
3A1.4. At least four
consider).
upholding
In
adequately
application of
3A1.4.
cases deal with the
finding by the district court that the defen-
Nichols,
cases,
v.
United States
Two of the
terrorist
dant involved himself
domestic
Cir.1999)
(10th
and United
attacks buildings an effort damage government of of application The circumstances functions of the Internal disrupt sup- § other further 3A1.4 to sentences Appeals of The Court Revenue Service. ports my view that there was an aberra- and remanded for the sentence vacated application of the enhancement tional court’s resentencing because of the district Sentencing Commission statisti- Graham. depar- explain failure to the extent reports application cal state its six times Appeals of noted: ture. The Court application 1999 and 2000 exclusive of the does not seem to The term “terrorism” Metcalf and Graham. See Carter, precise definition in the context have and 2000 of Federal Sourcebook Sentenc- plain meaning The of the Guidelines. Statistics, In ing Table 18. five of the six systematic the term is “the use terror applied, in which it was the offense cases of coercion.” Webster’s as means enumerated in 18 of conviction was U.S.C. Dictionary New International Third 2332b(g)(5)(B).6 § (1986). The United States Code complete- in context defines “terrorism” C. The Standard of Proof ly sentencing than different —that Department reporting require- State 1. “premeditated, politically ments-as moti- majority opinion’s position that the The against non- perpetrated vated violence only district court need find the conduct targets by groups substantial combatant § supports by a 3A1.4 enhancement agents.” or clandestine U.S.C. preponderance of the evidence is also 2656f(d)(2). § wrong. appears The standard to find sup- 997 F.2d 598. Commentary port to U.S.S.G. Barr, States v. Second, in United 6A1.3, § Disputed Resolution of Factors (3d Cir.1992), Ap F.2d 641 the Court of Statement) (Policy which states: peals for the Third Circuit noted that The Commission believes use of departure listed in 5K2.1 “grounds for preponderance the evidence standard through § involved actual generally 5K2.15 appropriate process re- meet due justi tangible consequences conduct quirements policy concerns in re- upward departure.” fication for an disputes solving regarding application of F.2d at 653-654. guidelines to the facts of the case. should, however, This statement con- be conjunction precedential history supports also sidered in with what the Sen- 1B1.2, my tencing says Ap- .4 view that for the 3K1 enhance- Commission supra. apply, plication ment to must be a conviction discussed there Note When of one offenses in 18 the district court increases a enumerated sentence 2332b(g)(5)(B) and that there 250 months more than what the offense U.S.C. attempted history must actual conduct or con- level and criminal associated with *47 for, in duct calculated to influence or affect the the crime of conviction call the facts government by support surely conduct of intimidation or of the enhancement should against government beyond coercion or to retaliate be a reasonable doubt established convincing conduct. or at least clear and evi- Sentencing 6. This information comes from the files of the United States Commission. Kikumura, statutory § 3A1.4 to Third Circuit in Graham because the dence. The supra § maximum violating years. that for 371 is five said enhancement, Applying the terrorism Gra- as “a sentencing hearing
a
that functions
sentencing range
ham’s
increased
wags
dog
tail which
the
of the substan-
majority
360 months to life. Because the
...
a
omitted]
tive offense” [citations
§
application
finds that
of
3A1.4 to Gra-
reflexively
the trun-
apply
court cannot
proper
§
ham’s conviction under
371 was
perfectly ade-
procedures
cated
that are
mundane,
pertained
it
a conspiracy
because
that
the more
fa-
quate for all of
promote”
“involved” or “intended to
a
sentencing determinations.”
miliar
terrorism,”
“federal crime of
and because
beyond a reasonable doubt
defendants
3A1.4 enhancement does not
particular object
conspired to commit a
of
Ross,
apply,
should
sentence
be vacated
States v.
United
the offense. In
for
(11th
resentencing
and the case remanded
Cir.1997), because the ver-
F.3d 970
the reason that the district court failed to
which offense was
dict did not establish
evidentiary
articulate the
standard on
object
conspiracy,
charged
finding
3A1.4 enhance-
district
Appeals
held
Court
applied
ment
and also failed to articulate
required
court was
to make a determina-
it
specific
facts on which
found that
sitting
tion as
offense as if it was
to which
remand,
applied.
the enhancement
On
States
United
Lastly,
as a trier of fact.
Jordan,
(9th
at least
re-
Cir.2001),
the district court should
v.
543 action credibility The motives for the Con- maximum sentence the month position here. in government’s gress legislative are not disclosed history of either the 1994 or 1996 acts. associ- noted the difficulties Others have Sentencing promulgated The Commission Philip defining terrorism. See ated with initially 3A1.4 to cover “international A Heymann, Terrorism and America: B. terrorism;” Congress added domestic ter- A Strategy For Democratic Commonsense Moreover, rorism with no elaboration. ed.2000) (discuss- Society, (paperback 3-7 nothing in the statute or the terrorism); there is either to define ing global efforts guideline prohibit a district court once it Research Center— see also The Terrorism Analysis, at enhances the offense level to not less than of Terrorism Next Generation (effec- history to http://www.terrorism.com/terror- 32 and the criminal VI by na- (stating tively “Terrorism a minimum of 210 months sentence ism/def.shtml “even the is difficult to define” and departing any ture from downward for agree single on one government cannot Chapter in reasons allowed IV listing several definitions definition” and guidelines.) terrorism).8 substantially completed This dissent was writer back Perhaps a law review acts before the terrorist on the World discussing the best when in 1987 stated it Center, Pentagon, Trade and in Penn- “Finding observed: definition of terrorism sylvania September on 2001. These ... is a definition for terrorism a suitable events, bombings of the horrific like the Donnelly, L. Extra- quagmire.” Patrick Kenya, Embassies in Tanzania and U.S. Ter- Over Acts territorial Jurisdiction Cole, weapons of and the U.S.S. involve Dip- Abroad: Omnibus rorism Committed as instruments of terror- mass-destruction Antiterrorism Act Security And lomatic very conspira- ism and are far outside the 599, 607, 56 L.Rev. n. 72 Cornell conduct of as reflected torial (1987). today. This observation hold true the record of this case. know there is no federal common We above, I For all of the reasons stated v. Hudson and law crime. United States ap- majority opinion’s disagree with (7 Cranch) Goodwin, 32, 3 L.Ed. 11 U.S. of the district court proval of the actions (1812). in its mandate to the Congress 259 increasing sentence over again Sentencing in 1994 and Commission 3A1.4 en- by application months establishing punish in 1996 came close to Iwhy This is dissent. law hancement. ment for a common crime—terrorism. APPENDIX A Guideline Guideline Score Score Including Exclusive Of Adjustment Adjustment Guideline Guideline Statutory For Terrorism Sentence Sentence Maximum For Terrorism Sentence
Count (29+12) 360 months 60 months 87-108 To OL 29 1-Conspiracy years concurrent VI to life I months CH Commit An Offense CH with Against 9, 10, the United States Terrorism, Indeed, Defining Kinsely, heightened the wake of a aware- Michael 5, 2001), (Oct. Washington at A37 and following Post September ness of terrorism Libaw, Do You Terrorism? commentary the diffi- Oliver How 2001 there has been on Define (Oct. 2001). culty defining See ABCNEWS.com the term "terrorism.” *50 (20 14) 10 20 33—41 34 + 262-327 9-Unlawful User of OL 120months years Marihuana In Pos- CHI months CH VI months concurrent with 11 1, 10, session Of Firearms 34(20 14) 20 33-41 + 262-327 10-Unlawful 5^0 OL 360 months years Attempt (100 plants) To CHI months CH VI months concurrent Manufacture with 1, 9, Marihuana 14) (20 5-40 OL 20 33-41 + 262-327 360 months years 11-Conspiracy (100plants) To Manufacture CHI months CH VI months concurrent Marihuana with 1, 9, 13-Carrying A Same Same Same Same 240 months years Semi-Automatic consecutive consecutive in Relation- Weapon ATo Crime Of ship Violence 14-Carrying A Fire- Same Same Same Same 60 months years arm consecutive consecutive Relationship Drug To A Crime KLEIN, Plaintiff-Appellee, B.
David
v. LONG, Township
Paul Blackman Police
Officer; Phillip Rogers, Blackman
Township Sergeant, Police Defen-
dants-Appellants.
No. 00-2235.
United States Court of Appeals,
Sixth Circuit.
Argued Sept. 2001.
Decided Filed Dec.