In United States v. Alhaggagi, --- F.3d ---, No. 19-10092 (9th Cir. 2020), a divided panel vacated the defendant's sentence.
The defendant pleaded guilty to, among other crimes, attempting to provide material support to a terrorist organization in violation of 18 U.S.C. § 2339B(a)(1). The conviction was based on his opening social media accounts for people he knew sympathized with ISIS.
In imposing sentence, the district court concluded the offense was “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against the government conduct,” and thus triggered application of a terrorism enhancement pursuant to U.S.S.G. § 3A1.4.
The majority determined this was error and reversed:
"The terrorism enhancement, U.S.S.G. § 3A1.4, imposes a significantly harsher punishment on those who commit certain types of crimes of terrorism. The enhancement increases a defendant’s offense level to a minimum of 32 and designates a defendant’s criminal history category as Category VI, regardless of whether the defendant has previously committed a crime. U.S.S.G. § 3A1.4. To trigger this enhancement, the government must prove elements distinct from those of the crime of conviction, specifically that the offense committed 'involved, or was intended to promote, a federal crime of terrorism.'
"The term 'federal crime of terrorism' is defined as 'an offense that is . . . calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct,' 18 U.S.C. § 2332b(g)(5)(A), and that 'is a violation of' certain enumerated statutes, 18 U.S.C. § 2332b(g)(5)(B). Both parts of § 2332b(g)(5) must be satisfied for the enhancement to apply.
"The material support statute, by contrast, requires proof that a defendant attempted to, conspired to, or did provide 'material support or resources to a foreign terrorist organization,' knowing 'that the organization is a designated terrorist organization' or 'that the organization has engaged or engages in terrorism.' 18 U.S.C. § 2339B(a)(1). It is possible for a defendant to provide material support to a terrorist group in violation of 18 U.S.C. § 2339B(a)(1) without intending that the support or resources would influence, affect, or retaliate against government conduct to satisfy the first prong of the definition of federal crime of terrorism."
"The enhancement, therefore, does not automatically apply to all material support offenses. Congress created this distinction in order to punish certain dangerous terrorists more severely than persons who committed non-violent crimes. Thus, to warrant a substantial increase in punishment pursuant to the terrorism enhancement, a defendant must have the requisite intent necessary to satisfy the definition of federal crime of terrorism, beyond the intent required to establish a violation of the material support statute."
In particular, "§ 2332b(g)(5)(A) imposes a specific intent requirement."
"The parties do not dispute that Alhaggagi’s conviction satisfies the second prong of the definition of federal crime of terrorism. The crime of conviction here—attempt to provide material support in violation of 18 U.S.C. § 2339B(a)(1)—is one of the enumerated statutes in 18 U.S.C. § 2332b(g)(5)(B)."
"The remaining question is whether Alhaggagi’s conduct satisfies the first prong: whether his attempt to provide material support to a terrorist organization by opening social media accounts was 'calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.'"
On this prong, the Court held the government did not meet its burden: "Alhaggagi contends the district court erred in applying the terrorism enhancement because it centered its analysis on ISIS, not on Alhaggagi’s conduct or mental state. The enhancement, Alhaggagi argues, specifically requires the district court to consider the latter, whereas the offense itself implicates the former. Alhaggagi concludes that because the district court failed to determine whether he knew how the accounts he opened were to be used, it could not find that he specifically intended that the accounts be used to coerce or intimidate a government. We agree."
