Comment on U.S.S.C. Proposed Priorities
for Amendment Cycle Ending May 2024
Dear Judge Reeves,
The Muslim Legal Fund of America (MLFA) is a 501(c)(3) non-profit legal organization dedicated to defending Muslims’ civil rights and liberties in national security cases through federal litigation. MLFA has a federal criminal defense department that represents clients in federal courtrooms across the country in national security cases (often material support of terrorism offenses, obstruction of justice, false statements in a terrorism investigation, distribution of bomb-making instructions online and others). These cases are selected for the unique constitutional issues they present, including prosecutorial overreach and discriminatory application and enforcement of federal law and sentencing guidelines.
MLFA respectfully submits the following comments on the Commission’s proposed priorities for the amendment cycle ending in May 2024. We will address the Commission’s following proposed priorities:
- To study and reform the career offender guidelines (Proposed Priority #5)
- Reform the Guidelines’ treatment of youthful offenders (Proposed Priority #6)
- Further study and reform of the sentencing differences due to the trial penalty (Proposed Priority #10)
- Continued study regarding recidivism (Proposed Priority #10)
- Promote court-sponsored diversion and alternatives-to-incarceration programs (Proposed Priority #2)
MLFA submits that the study and reform of the career offender guidelines is not complete without discussion of the Terrorism Enhancement. The Terrorism Enhancement (U.S.S.G. § 3A1.4)[1] is ripe for reform and further study as part of each of these proposed priorities (#’s 2, 5, 6, 10 and 11).
The Terrorism Enhancement is currently not addressed in any of the Commission’s Reports or analyses[2] on the Career Offender guidelines, but § 3A1.4 automatically increases an individual’s criminal history category to Category VI (career offender) and raises the offense level by 12 points. The Terrorism Enhancement, more so than the § 4B1.1 (career offender) guideline, does not distinguish between youthful, first-time, non-violent offenders and those with significant violent criminal history and often results in overly severe penalties for the largely Muslim individuals it is applied to. The Terrorism Enhancement does not have any evidentiary basis to support its draconian treatment of Muslims convicted of terrorism-related offenses, and it is discriminatorily applied to Muslims convicted of crimes “calculated to influence or affect the conduct of government.” But the Enhancement is rarely sought for non-Muslim[3] and white individuals and was found inapplicable where it has been sought. Reforming the Enhancement, expanding court diversion alternatives, and studying its discriminatory application and lack of evidentiary basis fits well within the Commission’s proposed priorities.
A. The impact of the Terrorism Enhancement ( 3A1.4) – a career offender guideline
Terrorism-related offenses have been aggressively prosecuted in the United States since 9/11. The leading statute in the anti-terror push is the material support statute, 18 U.S.C. § 2339B, which punishes knowingly providing material support or resources to a designated foreign terrorist organization (“FTO”) or attempting or conspiring to do so. The government frequently uses the material support statute because convictions under the law do not require that the defendant engaged in terrorism, aided or abetted terrorism, or conspired to commit terrorism. This endlessly broad statute, along with many others (false statements, and obstruction of justice)[4], has resulted in unjust convictions and unjustifiably lengthy sentences.
The statutory maximum of a § 2339B conviction is 20 years. The sentences prescribed for material support independently reflect Congress’s intent to deter and punish terrorism-related crimes. If the offense results in the death of any person, the required prison sentence is any term of years or for life. The guideline for material support offenses, USSG § 2M5.3, carries a base offense level of 26. If the offense involved dangerous weapons, firearms, explosives, funds to purchase any of those items, or funds or other support believing they will be used to commit a violent act, 2 levels are added.[5] Assuming a criminal history category I and an offense level of 26, the advisory guideline range is 63 to 78 months; at offense level 28, the advisory guideline range is 78 to 97 months.
But these sentencing ranges are rarely ever the advisory guidelines ranges for individuals convicted under the material support statutes. The Terrorism Enhancement then, on top of the sentencing in § 2339B (and other statutes), increases the sentence for individuals convicted of “a federal crime of terrorism,” i.e., crimes “calculated to influence or affect the conduct of government.” See U.S.S.G § 3A1.4 (adopting the definition of “Federal Crime of Terrorism” in 18 U.S.C. § 2332b(g)(5)). This adds 12 more levels to the offense level, or increases the level to 32, whichever is higher. And regardless of the individual’s actual criminal history, the enhancement assigns them to Criminal History Category VI, usually reserved for career offenders. See United States v. Segura-Del Real, 83 F.3d 275, 277 (9th Cir. 1996) (“Defendants are placed in category VI because they are the most intractable of all defendants.”). The Terrorism Enhancement is the reason that individuals convicted of terrorism-related conduct, no matter how minor, receive abnormally long criminal sentences.
After applying the Terrorism Enhancement, the minimum possible Guidelines range for any offense is 210 to 262 months—that is, 17.5 to 21.8 years.[6] But more typically, the enhancement leads to a sentence of thirty years to life or the statutory maximum, whichever is less. The result: it can put a criminal defendant away for thirty years to life for a crime that would otherwise result in a sentence of around five years.[7]
B. The Terrorism Enhancement does not consider, and actually undermines, the objective factors required under 18 U.S.C. 3553(a).
Courts are required to consider seven factors in developing an appropriate sentence, including the nature of the offense and the characteristics of the defendant. § 3553(a)(1). The Terrorism Enhancement violates 28 U.S.C. § 991(b)(1)(A)—and undermines 18 U.S.C. § 3553(a)—as its express language and application suggests the Commission does not advise courts to follow the § 3553(a) factors for terrorism-related cases. In fact, none of the § 3553(a) factors are encompassed within or referenced by the enhancement at all. Instead, the Terrorism Enhancement automatically increases the level of the offense and the Criminal History Category, neither of which are based on an evaluation of the defendant’s conduct or characteristics or the need for the sentence imposed. See 18 U.S.C. § 3553(a).
In the context of a material support offense under 18 U.S.C. § 2339A or 2339B, the Terrorism Enhancement would not direct a court to consider objective factors, such as the amount or kind of support given, whether the support was choate or inchoate, the defendant’s actual role in the terrorist activity, or the extent of harm caused by the defendant’s support. Rather, the enhancement hinges on a single question: was “the offense a felony that involved, or was intended to promote, a federal crime of terrorism,” with “federal crime of terrorism” defined as an offense calculated to influence or affect the conduct of government. U.S.S.G. § 3A1.4(a); 18 U.S.C. § 2332b(g)(5). If the court finds, by a preponderance of the evidence, that the defendant provided material support to a terrorist or terrorist organization, then the Guidelines oblige the sentencing court to apply the Terrorism Enhancement with no adjustment for mitigating or aggravating conduct. See United States v. Awan, 607 F.3d 306, 317 (2nd Cir. 2010) (citing 18 U.S.C. § 2332(b)(g)(5)(A)).
In reality, the type of criminal conduct subject to the enhancement varies significantly: from planning and participating in a terrorist attack that kills many people (i.e. what would likely be accompanied by life in prison to capital punishment) to making false statements to law enforcement officials (i.e. punishable by a maximum five-year prison sentence). See e.g., United States v. Benkahla, 530 F.3d 300, 304, 307 (4th Cir. 2008) (applying the Terrorism Enhancement, the defendant’s sentence for perjury was increased from approximately three years to 10-12 years, or up to four times the normal length for perjury). This variance in conduct is not accounted for in the Terrorism Enhancement and the resulting Guidelines range is thus often inconsistent with the statutes criminalizing and punishing the conduct. Id.
Moreover, the Terrorism Enhancement directly contradicts the language of the material support statutes, which acknowledge that there are different levels of support requiring different punishments. For example, while § 2339A permits a maximum sentence of fifteen years, if death results from the support provided, the maximum sentence increases to life. Likewise, under § 2339C, if a defendant provides financial support with the intent or knowledge that the funds will be used in an act of terrorism, the maximum sentence is twenty years. But if someone only conceals, rather than provides, financial support, the maximum is just ten years. By contrast, the minimum sentence under the Terrorism Enhancement is 17.5 years, regardless of the type of material support provided.[8] While the material support statutes’ variation in sentencing shows that Congress intended for sentences to be “proportional to the culpability of the conduct, to the injury that can be directly attributed to a defendant’s actions, and to the nature of the organization’s actions,” the Terrorism Enhancement treats an individual who provides any type of material support as harshly as the terrorist who himself commits violent acts.[9],[10]
C. The Terrorism Enhancement functions as a mandatory minimum sentence in terrorism-related cases.
Although the Guidelines were deemed advisory in Booker, because sentencing courts are required to consider them and must provide a sufficient justification for departing from them, they largely continue to act as mandatory.[11] See Rita v. United States, 551 U.S. 338, 366 (2007) (Stevens, J., concurring) (“I am not blind to the fact that, as a practical matter, many federal judges continued to treat the Guidelines as virtually mandatory after our decision in Booker.”). Perhaps nowhere is this more evident than with the Terrorism Enhancement. Sentencing courts start from a place of little experience with terrorism-related cases, like the district judge noted in United States v. Said Azzam Rahim (N.D. Tex. 2019).[12] They rely on the Terrorism Enhancement in the Guidelines based on the assumption that the Commission, with superior knowledge and data, must have created the Terrorism Enhancement for some logical and substantiated reason. See Gall v. United States, 552 U.S. 38, 46 (2007) (explaining that the Guidelines are the “product of careful study based on extensive empirical evidence”). While this assumption is inaccurate[13] , terrorism defendants then receive severe punishments that, when reviewed by an appellate court, are given a “presumption of reasonableness.” See Rita, 551 U.S. at 347.
In other words, because the sentences are within the Guidelines range, appeals courts typically defer. It seems that the only time appellate courts have stepped in is to overturn sentences as too lenient when district judges vary downward from the Guidelines range created by the Terrorism Enhancement.[14] See United States v. Ressam, 679 F.3d 1069 (9th Cir. 2012); id. at 1106 (Schroeder, J., dissenting) (“The majority’s implicit assumption that terrorism is different . . . flies in the face of the congressionally sanctioned structure of sentencing that applies to terrorism as well as all other kinds of federal criminal offenses.”); United States v. Jayyousi, 657 F.3d 1085, 1117 (11th Cir. 2011) (vacating sentence which varied downward from Guidelines range and remanding with instructions to increase sentence into range of 360 months to life). Thus, to call the Terrorism Enhancement “advisory” is to ignore reality—that no matter the route taken, we end up right back at applying the Terrorism Enhancement’s automatic offense level and Criminal History Category increases without regard for the defendant’s conduct or characteristics.
D. The Sentencing Commission’s analysis of the career offender guideline also applies to the Terrorism Enhancement and should include it in recommended reforms.
The Guidelines classify defendants by Criminal History Category based on their number of past offenses because, according to the Commission, courts should impose a sentence that will “protect the public from further crimes of the defendant” (18 U.S.C. § 3553(a)), and “repeated criminal behavior is an indicator of a limited likelihood of successful rehabilitation.” 18 U.S.C. § 4A1.1, Introductory Comment. “Prior convictions . . . serve under the Guidelines to place the defendant in one of six ‘criminal history’ categories; the greater the number of prior convictions, the higher the category. . . . the Guidelines seek to punish those who exhibit a pattern of ‘criminal conduct.’” Nichols v. United States, 511 U.S. 738, 751 (1994) (Souter, J., concurring). In other words, the Criminal History Category is intended to increase sentences for “career offenders.”
The Sentencing Commission has studied the career offender guideline (§ 4B1.1) which implements a Congressional directive instructing the Commission to set the guideline range for offenders with specified instant and prior convictions at or near the statutory maximum. A defendant qualifies as a career offender if (1) the defendant was at least eighteen years old at the time he or she committed the instant offense of conviction; (2) the instant offense is a felony that is a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
In its analysis, the Sentencing Commission explored concerns that the career offender guideline does not meaningfully distinguish among career offenders. That same concern applies to the Terrorism Enhancement, and the career offender portion of the Terrorism Enhancement is significantly more problematic than section 4B1.1 because it is applied to first-time, non-violent offenders regularly. Unlike § 4B1.1 that at least required a present felony, and two prior felonies for either a crime of violence or a controlled substance offense.
Importantly, the Commission found clear differences between offenders who had drug trafficking only offenses, violent only offenses, and mixed offenses. The Commission found that “career offenders who have committed a violent instant offense or a violent prior offense generally have a more serious and extensive criminal history, recidivate at a higher rate than drug trafficking only career offenders, and are more likely to commit another violent offense in the future.”[15]
Based on its findings, the Sentencing Commission concluded that the career offender directive is best focused on those offenders who have committed at least one “crime of violence.” The Commission recommended that “Congress amend the directive to reflect this principle by no longer including those who currently qualify as career offenders based solely on drug trafficking offenses” and noted that such “reforms would help ensure that federal sentences better account for the severity of the offenders’ prior records, protect the public, and avoid undue severity for certain less culpable offenders.”[16]
The same findings apply to the Terrorism Enhancement, which pretends that first-time offenders are career offenders.[17] There is no evidentiary basis for the harsh impact of the enhancement. In fact the evidence in the aftermath of these prosecutions reveals what the Commission has already learned about “career offenders”—that past crimes of violence are better indicators of recidivism, and non-violence indicates a much lower risk of recidivism.
E. The empirical evidence does not support treating and sentencing first-time terrorism offenders like career offenders.
According to the Commission, “the guidelines represent an approach that begins with, and builds upon, empirical data.” U.S.S.G. Part A Introduction and Authority (2021) at 5. Indeed, the Supreme Court has repeatedly claimed that the reason courts should and do look to the Guidelines in imposing fair sentences is because the Commission develops the Guidelines by using empirical data. See Rita, 551 U.S. at 349 (outlining the “empirical approach” that the Sentencing Commission used to structure the Sentencing Guidelines); Kimbrough v. United States, 552 U.S. 85, 108-09 (2007) (The Commission “has the capacity courts lack to ‘base its determinations on empirical data and national experience. . . .’”). Despite this imperative, there was little empirical data on terrorism sentences when the Commission promulgated the Terrorism Enhancement in 1994.[18] Instead, the Terrorism Enhancement was created on the unsubstantiated assumption that terrorism defendants, no matter their individual situation, were so different from other defendants that an extreme increase in Criminal History Category was necessary across the board.[19]
Moreover, the evidence since 1994 strongly discredits the logic of the Terrorism Enhancement’s blanket increase in Criminal History Category, particularly where the defendant is a first-time offender. According to the Commission, individuals with no criminal record have the lowest rate of recidivism.[20] One study cited by the Commission in 2004 determined that 93.2% of first-time offenders did not reoffend.[21] Based on this evidence, for non-terrorism defendants without a criminal history, courts regularly impose sentences below the advisory Guidelines range because they recognize that a lesser prison sentence is nonetheless a significant punishment and deterrent for someone who has never experienced prison.[22] There is no evidence however, that terrorism-related defendants are an exception or reoffend at higher rates. To the contrary, the available data shows that individuals convicted of terrorism-related offenses do not reoffend at higher rates than those convicted of other crimes. Scott Shane, Beyond Guantánamo, a Web of Prisons for Terrorism Inmates, N.Y. TIMES (Dec. 10, 2011), https://www.nytimes.com/2011/12/11/us/beyond-guantanamo-bay-a-web-of-federal-prisons.html.
Of more than 300 prisoners who had completed terrorism sentences since 2001 (up to 2011), “Justice Department officials and outside experts could identify only a handful of cases in which released inmates had been rearrested, a rate of relapse far below that for most federal inmates . . .” Id. Thus, “it appears extraordinarily rare for the federal prison inmates with past terrorist ties to plot violence after their release.” Id. Because the Terrorism Enhancement automatically increases a defendant’s Criminal History Category to VI, the fact that the defendant is a first-time offender with a low likelihood of recidivism is not only ignored but actually erased.
Courts scrutinizing this issue agree that the complete lack of evidence is a weak basis for the Terrorism Enhancement. Senior Judge George O’Toole, Jr., presiding over United States v. Mehanna, Transcript of Disposition, No. 09-10017-GAO (D. Mass. 2012), criticized the mandatory Criminal History Category VI as “too blunt an instrument to have any genuine analytical value” and “fundamentally at odds with the design of the Guidelines” because it “imputes a fiction into the calculus.” Mehanna, Sentencing Transcript (Doc. 480) at 8-9. Moreover, the Court in United States v. Jumaev refused to apply the enhancement because it “is not backed by any empirical evidence” and because “treating all ‘terrorists’ alike is impermissible under our sentencing paradigm.” 2018 WL 3490886, *10, CR 12-0033 JLK (D. Colo. July 18, 2018). And the court explained in United States v. Alhaggagi:
[T]he enhancement’s treatment of criminal history-automatically assigning to all terrorism defendants a criminal history category of VI is inappropriate based on the seriousness of the crime, inappropriate based on assumptions about recidivism, and inappropriate as to this Defendant, warranting a downward departure.
2019 U.S. Dist. LEXIS 37889, 2019 WL 1102991 at *16 (N.D. Cal. March 8, 2019). See also United States v. Khan, No. 4:15-cr-00263, Judgment at Doc. 126 (S. D. Tex. July 2, 2018), rev’d and remanded, 938 F. 3d 713 (5th Cir. 2019), resentenced (sentencing the defendant to 18 months because he had no criminal history and terminated his plans).[23]
Courts applying the Terrorism Enhancement, on the other hand, conspicuously fail to cite any evidence to justify imposing the Guidelines’ harsh sentences in terrorism-related cases.[24] They seek to justify its steep increase by arguing, with no evidence, that “terrorists[,] [even those] with no prior criminal behavior[,] are unique among criminals in the likelihood of recidivism, the difficulty of rehabilitation, and the need for incapacitation.” Jayyousi, 657 F.3d at 1117; see also United States v. Meskini, 319 F.3d 88, 92 (2d Cir. 2003). This belief, “that terrorism is different, maybe even exceptional” is premised on “a type of visceral outrage at all conduct linked to terrorists that can taint the individualized and careful process that is supposed to go into a criminal sentencing” and, despite the lack of evidence, is used to “justif[y] a departure from the normal standards.”[25] Not only is this belief unsupported, its resultant sentencing enhancement also causes harm to the Muslim American community.[26]
The Terrorism Enhancement should be included in the Commission’s analysis and recommend reforms of career offender guidelines, and considered for additional reforms, study, and alternatives-to-incarceration for first-time, youthful, non-violent offenders.
F. Discriminatory application of the Terrorism Enhancement to Muslim individuals, and court refusal to apply the enhancement to non-Muslim, white offenders where applicable
While the Terrorism Enhancement is written for broad application, it has been largely applied only to Muslim defendants, or offenses involving Muslim organizations.[27] The Terrorism Enhancement is intended to dramatically increase the punishment of offenses that were “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” This can apply to the list of enumerated statutes in § 3A1.4, but Application Note 4 to § 3A1.4 also allows for an upward departure—equivalent to what would result if the enhancement was applied—for any other offense that “was calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” The upward departure can also apply to any of the enumerated statutes where the terrorist motive was to intimidate or coerce a civilian population, rather than influence the conduct of government.
Many of the January 6th convictions, were based on a clear and established intent to “influence or affect the conduct of government by intimidation or coercion, or retaliation,” and would thus qualify for application of the Terrorism Enhancement or the upward departure it provides for in Application Note 4.
On January 6, 2021, a mob of President Donald Trump’s supporters went to the U.S. Capitol, attempting to interfere with the certification of electoral votes from the 2020 presidential election. The rioters assaulted the Capitol police force, and looted and invaded the complex for several hours. They destroyed property and sent members of Congress and their staff into hiding in offices and bunkers. More than 100 members of law enforcement were injured.[28]
The Justice Department however has only sought the Terrorism Enhancement in a couple of the over 900 prosecutions.[29] Courts have not applied the enhancement to any of the January 6th rioters.
The discriminatory application of the Terrorism Enhancement to mostly Muslims, or offenses involving Muslim organizations, has long been established. But in the face of the government’s refusal to seek the enhancement, and courts’ refusals to apply the enhancement to white, non-Muslims whose conduct clearly warrants its application, the enhancement is now on its face discriminatory on the basis of religion.
The Sentencing Commission’s tracking and reported data does not show this clear discrimination however. The Commission only tracks race as commonly tracked in the U.S. Census. There is no category for Arab, Iranian, or Southwest Asian. More than 80% of individuals of Middle Eastern, Southwest Asian, or North African (Egypt, Morocco etc.) background, select themselves as “white.”[30] Indeed, the Sentencing Commission indicates that the Terrorism Enhancement is applied to 50% “white” individuals. This is inaccurate and results in an erasure of the discriminatory impact of the Enhancement on those of Southwest Asian, Arab, and North African descent.
The Commission also does not track religion. As a result, there is currently no data from the Sentencing Commission that would alert a clearly discriminatory application of the Terrorism Enhancement to Muslim Americans. For the reasons discussed above, religion should be clearly tracked for this enhancement and analyzed in the context of discriminatory application.
G. RECOMMENDATIONS
Based on the above, MLFA makes the following recommendations using a three-pronged approach:
a. Revise the Terrorism Enhancement itself (Proposed Priority #2 and #8)
1. The Commission should recommend that the Terrorism Enhancement be amended to remove the automatic criminal history category increase to career offender status, and recommend that the 12 level increase be removed as statutory elements and other enhancements already adequately account for specific types of conduct. The arbitrary 12 level increase ignores these measures, and undoes the purposes of 18 U.S.C. 3553(a).
2. Application Note 1 to § 3A1.4, states that a “federal crime of terrorism” has the meaning given that term in 18 U.S.C. § 2332b(g)(5), which in turn defines a “federal crime of terrorism” as “an offense that (A) is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct; and (B) is a violation of [the enumerated statutes].”
The Commission should recommend that this definition be amended to reduce the list of enumerated offenses to include only offenses which do not already incorporate provisions for aggravating conduct.
The Commission should also recommend that any amended Terrorism Enhancement should only apply to conduct in which there was at least one victim,[31] and that the defendant specifically intended to himself “influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” This would fall under the purview of proposed priority #8 as well, which seeks to resolve circuit splits. The specific intent requirement of the Terrorism Enhancement is the source of a circuit split among various circuits.[32] Conduct in support of a foreign terrorist organization that is indirect and unconnected to any specifically known terrorist activities should not be included (i.e. an online agreement to travel to live in the territory of an FTO, or sending donations for food, clothing, other types of aid to an FTO, providing contact information for travel to the FTO, etc.).
b. Conduct further research on terrorism-related sentencing (Proposed Priority #10)
3. Proposed priority #10 proposes further examination and comparison of sentences imposed in cases disposed of through trial versus plea. The trial penalty in terrorism-related offenses is extraordinary because of the Terrorism Enhancement. The broad applicability of the enhancement and its severe impact, mean that defendants feel enormous pressure to plead guilty with a cap on the potential sentence, rather than facing a statutory maximum recommend sentence after trial because of the enhancement. The Enhancement is also used as a “bargaining chip to strong-arm a desired result” and “prosecutors sometimes seek the Terrorism Enhancement against a formerly cooperative defendant if they default on a cooperation agreement. Rather than determining ‘who is and who is not…a terrorist, the enhancement’s practical utility is often reduced to that of a tool used to punish a lack of cooperation.”[33]
Given that many of these offenses are non-violent, first-time offenders, the impact of the trial penalty in these cases is particularly harmful to the defendants and their communities. The Commission should include a comparison of sentences imposed in terrorism-related cases that went to trial versus plead guilty.
4. Proposed priority #10 also proposes continued studies regarding recidivism. As discussed above, there is no empirical evidence to support the Terrorism Enhancement and the data that exists demonstrates that contrary to the idea that terrorism-related defendants are different, and intractably incapable of rehabilitation, they have some of the lowest recidivism rates. The Commission should study the recidivism rates of those convicted of terrorism-related crimes to gather empirical evidence on whether there is any evidentiary justification for the Terrorism Enhancement.
5. The Commission should also study and track the discriminatory application of the Terrorism Enhancement by accounting for the fact that those of Arab, North African, and Southwest Asian descent self-select as “white” for racial identification because of a lack of other options.
6. The Commission should study and track individuals’ religion for those who receive the Terrorism Enhancement as an analysis of material support convictions and those who receive the Terrorism Enhancement indicate a distinct discriminatory application on the basis of religion.
c. Expand court-sponsored diversion and alternative-to incarceration programs for first-time terrorism-related offenders (Proposed Priority #2)
The Commission should expand court-sponsored diversion and alternative-to-incarceration programs for young, non-violent terrorism-related offenders. The District of Minnesota has had great success with their program and additional study of their program and expansion of either the program, or access to the program from other districts would present a better alternative to the draconian sentences we have seen in other districts.
In the District of Minnesota, first-time non-violent offenders, convicted of terrorism-related crimes, receive sentences far less severe. As of the end of 2018, the District of Minnesota has dealt with 59 foreign terrorism related cases. See Kevin D. Lowery: Responding to the Challenges of Violent Extremism/Terrorism Cases for United States Probation and Pretrial Services, Journal for Deradicalization, Nr. 17 (December 28, 2018).
The District of Minnesota is home to a large Somali immigrant population. Mr. Lowery’s study points out that some of these young Somali men have become disillusioned with America, and thus were especially vulnerable to ISIS propaganda. Several of these cases thus appeared after ISIS proclaimed the caliphate and the atrocities perpetrated by al-Assad in Syria.
Because many of these young men charged with attempting to join ISIS didn’t have a criminal record and were facing extraordinary prison time, Senior Judge Michael J. Davis worked with the U.S. Attorney’s office and the Federal Public Defender to deal with this modern phenomenon.
It was determined through extensive research that there were no other federal agencies, state or local jurisdictions, or nongovernment organizations in the U.S. that had specialized evaluation and assessment practices or intervention programming for radicalized defendants and offenders. This imminent issue required further initiatives to provide for public safety on a number of levels. Therefore, the District conducted further research to evaluate international programs for possible solutions. The focus of this research was to identify components of other countries’ extremism/terrorism intervention programs claiming success, which could be useful to the circumstances in Minnesota and the U.S.
Id. at 41.
Mr. Lowery continues:
The scarcity of civil prevention and intervention programs in the U.S. has unfortunately resulted in criminal prosecutions being the nation’s almost exclusive intervention response to extremism thus far. The District of Minnesota’s justice system model team process for intervention starts at the point of arrest or criminal charges. Although the federal justice system has worked with domestic terrorism cases such as white supremacists for many generations, this new brand of jihadist extremist involved with foreign terrorist organizations has brought new challenges. …Included in the justice system team decision-making process is a more elaborate consideration of the underlying motivating factors and levels of radicalization, which is in addition to assessing the motivations or circumstances for other types of criminal behavior. Id. at 58-59.
The District of Minnesota, overwhelmed with material support to foreign terrorist organizations cases, understood that to treat this new class of defendant fairly, they needed to look beyond just the federal sentencing guidelines. The young people who have attempted to leave the United States to join ISIS resulted from a combination of the Syrian Civil war, and ISIS’ unprecedented success in using the internet to lure vulnerable, young Muslims.
The District of Minnesota and many other criminal justice professionals are committed to developing effective alternative solutions to lengthy incarceration alone to best deal with extremism/terrorism-related cases. There is no need to debate on how critical it is to incapacitate radicalized individuals involved in and committed to carrying out terrorism related offenses. However, in terrorism-related activities, there are a number of differing types of offenses and levels of involvement. Failing to develop sentencing and supervision practices at the appropriate, varying levels for these defendants and offenders could have catastrophic future consequences.
Terrorism defendants generally fit no set profile. However, many terrorism defendants seen in the District of Minnesota and in other districts have been young, often first exposed to the radicalization process as teenagers, and have little or no history of criminal behavior or actual violence. Dissecting the underlying motivations and understanding the level of radicalization of terrorism-involved defendants are factors criminal justice professionals must consider when recommending an appropriate sentence. Treating this population ineffectively may result in dire, catastrophic consequences that range from freeing a dangerous offender to commit an act of terrorism in the community to unnecessarily over incarcerating very young offenders, possibly creating long-term breeding grounds for terrorists in prisons. Probation and Pretrial Services faces the challenge of determining a defendant’s level of radicalization and intent to pinpoint actual, potential harm to the community through acts of violence in addition to the threat he/she could pose to national and international security. Determining if a sentence within the guideline range of imprisonment greatly increased by the Chapter 3 terrorism adjustment is greater than necessary to accomplish the statutory goals of sentencing is a complex and concerning process.
Id. at 68-69 (emphasis added).
The District of Minnesota decided that hiring an expert consultant that gets involved immediately after these types of cases are charged and who works to assist the Court with issues from bond all the way through sentencing was a good solution.
Thus far, there have been a number of variances and departures from the enhanced sentences in the District of Minnesota, demonstrating that a one-size-fits-all approach was not justified based on U.S. Criminal Code Title 18, Section 3553 sentencing factors. District of Minnesota sentences for the first 30 jihadist-type, terrorism-related cases ranged from 3 years’ probation for cooperators and those with minor involvement to 35 years’ custody with life terms of supervised release to follow for the most serious offenders.
Id. at 75-76 (emphasis added)
Because many of these offenders are young, first-time, non-violent offenders, lengthy sentences are unjust and cause immeasurable damage to the local communities and families. Research has shown that these types offenders can be rehabilitated and have an exceptionally low recidivism rate. MLFA recommends that the sentencing commission study and introduce alternative-to-incarceration programs and other court-sponsored diversions for these offenders. The District of Minnesota’s model is one that has had great success and warrants expansion.
Conclusion
In conclusion, MLFA hopes that these issues regarding the Terrorism Enhancement and sentencing of young, Muslim, first-time offenders are studied and reformed through amendment proposals in the coming amendment cycle. We look forward to submitting additional comments on such proposals.
/s/ Sufia M. Khalid
Lead Counsel
Federal Criminal Defense Department
Muslim Legal Fund of America (MLFA)
100 N. Central Expy.
Suite 1010
Richardson, TX 75080
Charles D. Swift
Director, Federal Criminal Defense Department
Muslim Legal Fund of America (MLFA)
Arshia Ali-Khan
Chief Executive Officer
Muslim Legal Fund of America (MLFA)
[1] Section 3A1.4 is one of five “Victim-Related Adjustments” in the Guidelines. Of the five, the EN is the most severe. It applies to non-violent offenses that do not have any victims.
[2] U.S. Sent’g Comm’n, Primer On Categorical Approach 20 (2022).
[3] Sameer Ahmed, Is History Repeating Itself? Sentencing Young American Muslims in the War on Terror, 126 Yale L. J. 1520, 1560 (2017), https://digitalcommons.law.yale.edu/ylj/vol126/iss5/5.
[4] For example, 18 U.S.C. § 2339A, 18 U.S.C. § 2339C, but the Terrorism Enhancement is also applied to false statements (1001(a)), obstruction of justice, and other conduct that does not warrant the extreme treatment of the Terrorism Enhancement.
[5] § 2M5.3(b)
[6] U.S. Sent’g Guidelines Manual § 2X1.1(b), 406-07 tbl. (U.S. Sent’g Comm’n 2021).
[7] Id.
[8] U.S. Sent’g Guidelines Manual (U.S. Sent’g Comm’n 2021) 406-07 tbl.
[9] James P. McLoughlin, Jr., Deconstructing United States Sentencing Guidelines Section 3A1.4: Sentencing Failure in Cases of Financial Support for Foreign Terrorist Organizations, 28 Law & Ineq. 51, 100, 116 (2010).
[10] Attachment 1 is a table demonstrating the wide ranging sentences for similar types of offenders subject to the Terrorism Enhancement. The result is disparate and dissimilar sentencing for similar offenses.
[11] See United States Sentencing Commission, Federal Sentencing: The Basics, 3 (2015), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-projects-and-surveys/miscellaneous/201510_fed-sentencing-basics.pdf (“[T]he average sentence imposed for all cases has closely tracked the average guideline range—both before and after Booker.”).
[12] United States v. Said Azzam Rahim, 3:17-cr-00169 (N.D. Tex. 2019), Doc. 180, Transcript of Sentencing Hearing, 69 (“Mr. Rahim, we don’t see many cases like this here. We might do maybe one case a year for the various courts . . .”).
[13] See discussion infra Section VI.C.1.c.i.
[14] See Wadie E. Said, Sentencing Terrorist Crimes, 75 Ohio St. L.J. 477, 525 (2014). See also Said, supra note 8, at 525-27.
[15] U.S. SENT’G COMM’N, REPORT TO CONGRESS: CAREER OFFENDER SENTENCING ENHANCEMENTS 26 (2016).
[16] Id. at 3.
[17] None of the other “Victim-Related Adjustments” result in an automatic Criminal History Category increase. See U.S.S.G §§ 3A1.1-3.
[18] See Brown, supra note 2, at 547.
[19] At the time, neither Congress nor the Commission could have envisioned how a group like ISIS would use the internet to ensnare individuals online into making verbal statements of support, offers of financial support, or discussions about traveling abroad etc., thereby exposing first-time non-violent offenders to statutory maximum sentences.
[20] See Sameer Ahmed, Is History Repeating Itself: Sentencing Young American Muslims in the War on Terror, 126 Yale L. J. (2017), https:// digitalcommons.law.yale.edu/ylj/vol126/iss5/5.
[21] Recidivism and the “First Offender,” U.S. Sent’g Comm’n 26 (May 2004), http://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2004/20040 5_Recidivism_First_Offender.pdf [http://perma.cc/MLD8-RQU8].
[22] See, e.g., United States v. Willis, 479 F. Supp. 2d 927, 937 (E.D. Wis. 2007) (varying downwards because the “sentence provided a substantial punishment for someone . . . who had never before been to jail and who engaged in no violence”).
[23] United States v. Khan (S.D. Tex. 2019) (initial Court did not apply the Terrorism Enhancement to Khan’s sentence), rev’d, 5th Cir. (2021). The government appealed a second time, the Fifth Circuit reversed and remanded again, the original judge was recused, and the new sentencing judge sentenced the defendant to 12 years.
[24] McLoughlin, supra note 6, at 112-15.
[25] Said, supra note 8, at 521.
[26] Ahmed, supra note 15, at 1556. “These [similar] negative effects include (1) increasing discrimination by reinforcing stereotypes of African Americans and Muslims as inherently dangerous, (2) furthering distrust of law enforcement among African Americans and Muslims, . . . and (3) failing to effectively rehabilitate drug and terrorism offenders and reintegrate them into society.” Id.
[27] Trevor Aaronson & Margot Williams, Trial and Terror, The Intercept (last updated June 14, 2023), Trial and Terror (theintercept.com). This online database spotlights 992 terrorism-related prosecutions by the Department of Justice. Of these 992, only ~95 cases are against non-Muslim offenders/non-Muslim organizations.
[28] History.com Editors, U.S. Capitol Riot, History.com (last updated Dec. 20, 2022), https://www.history.com/this-day-in-history/january-6-capitol-riot.
[29] United States v. Reffitt, (D.D.C. 2022) Case number: 1:21-cr-00032 (tried to storm the Capitol while armed with a gun. The judge refused to apply the terrorism enhancement and sentenced Reffitt to just over 7 years.); United States v. McCaughey, III et al (D.D.C. 2023), Case number: 1:21-cr-00040
(Judd launched a lit object at a tightly packed tunnel of law enforcement and the mob in an attempt to clear a path for rioters. The judge did not apply the terrorism enhancement, sentenced to 32 months.).
See also Josh Gerstein, Why DOJ is Avoiding Domestic Terrorism Sentences for Jan. 6 Defendants, Politico (Jan. 4, 2022, 4:30 AM), https://www.politico.com/news/2022/01/04/doj-domestic-terrorism-sentences-jan-6-526407.
[30] Sarah Parvini & Ellis Simani, Are Arabs and Iranians white? Census says yes, but many disagree, Los Angeles Times (March 28, 2019), https://www.latimes.com/projects/la-me-census-middle-east-north-africa-race/. ; See also Abboud, Sarah et al. “The Contested Whiteness of Arab Identity in the United States: Implications for Health Disparities Research.” American journal of public health vol. 109,11 (2019): 1580-1583. (Discussion on how “Arab classification as White leads to their cultural invisibility and perpetuates a cycle of undocumented health disparities.”)
[31] Many of the attempted provision of material support convictions state there were no victims of the offense in the PSR.
[32] See United States v. Amer Sinan Alhaggagi, 978 F.3d 693 (9th Cir. 2020).
[33] Madeline Johl, Activism or Domestic Terrorism? How the Terrorism Enhancement Is Used to Punish Acts of Political Protest, 50 FORDHAM URB. L.J. 465 (2023).