Section 3A1.4 of the U.S. Sentencing Guidelines authorizes a steep increase in a defendant’s offense level and an automatic increase in his criminal history category if his offense “is a felony that involved, or was intended to promote, a federal crime of terrorism.” A “federal crime of terrorism” is defined by Section 2332b (g) (5) of Title 18, United States Code.


At least five Federal circuits—Second, Fourth, Sixth, Seventh and Eleventh—have expanded the Section 2332b definition of federal crime of terrorism to include any offense “intended to encourage, further, or bring about” a federal crime of terrorism. This expansion does not require a showing that the defendant “completed, attempted, or conspired to commit” a federal crime of terrorism. Rather, the only showing that must be made is that the defendant had one purpose in committing his predicate offense—to promote a federal crime of terrorism.


In effect, the Guidelines expressly provide that any offense which involves at least the obstruction of a federal crime of terrorism investigation is sufficient to show an intent to promote a federal crime of terrorism.


For example, the Fourth Circuit in 2008 upheld the application of the Section 3A1.4 enhancement to an obstruction offense that was not a federal crime of terrorism. In that case, United States v. Benkahla, the defendant lied to a grand jury and the FBI about attending a “jihadist training camp” during an investigation about whether he had provided “material support” to a terrorist organization in violation of Section 2332b.


On February 13, 2015, the Fifth Circuit Court of Appeals in United States v. Fidse moved to clarify the Section 3A1.4 enhancement provision. The court said that while the provision may apply to an offense of conviction which itself is not a federal crime of terrorism, “this situation requires findings at the sentencing hearing. Our sister circuits have stated that before applying the enhancement to a defendant’s sentence when the offense of conviction was not itself a federal crime of terrorism, the district court ‘must identify which enumerated federal crime of terrorism the defendant intended to promote, satisfy the elements of § 2332b (g) (5) (A), and support its conclusions by a preponderance of the evidence with facts from the record.’”


In the Fidse case, the defendant was convicted (through a guilty plea) of two counts of conspiracy to obstruct a federal investigation and making false statements on his asylum application.


The factual basis for the charges arose from Fidse’s 2008 entry into this country at the Hidalgo, Texas port of entry. With corroboration from an associate, Fidse lied about living in Somalia all his life until “the Islamic courts killed his father, which caused him to fear for his own life and flee.” In truth, his father died of natural causes and he had spent “significant time” in Kenya. He was denied asylum, and ultimately “charged with conspiring to obstruct asylum proceedings because he coordinated the false testimony” with an associate.


An ensuing FBI investigation discovered Fidse had ties to the East Africa terrorist group—al Shabaab. It was during this investigation that Fidse made false statements about his ties to al Shabaab. A confidential informant held in the detention facility where Fidse was awaiting deportation provided the FBI with information that the defendant “adhered to a radical form of Islam and supported al Qaeda and Osama bin Laden.


The Set Up


The FBI put a “recording device” on the informant who engaged Fidse in conversations about “a detailed hypothetical attack by al Shabaab on the U.S. Ambassador in Kenya.” Fidse also claimed to the informant that he had given $100,000 “for an armed technical vehicle and weapons that were used” in a 2006 battle between al Shabaab and Ethiopian forces.


When asked by the FBI about these recorded statements, Fidse denied making them or having any ties to terrorism.


A presentence investigation report grouped these two false statement offenses under the Guideline for obstruction. This triggered the Section 3A1.4 enhancement provisions which recommended a sentence of 292-365 months in prison. Absent this enhancement, Fidse would have faced a sentence of 46-57 months. Fidse appealed his sentences.


The Fifth Circuit opened its analysis with two critical observations. First, Fidse’s offense of conviction—conspiracy to make false statements—is not a “crime of terrorism” as defined in Section 2332b (g) (5). Second, the State Department did not designate al Shabaab as a “terrorist organization” until 2008—some two years after Fidse reportedly provided “material support” to the group. With respect to the second observation, the Fifth Circuit said,


“ … The government responds by arguing that providing an armed vehicle to al Shabaab prior to 2008 would nonetheless still be relevant to an ongoing conspiracy to provide support to [the] group after it was designated a terrorist organization. But this conspiracy offense was not identified in the district court as the ‘federal crime of terrorism’ that the FBI was investigating, either in the PSR or in any government filing or argument. It also suffers from a second challenge Fidse raises: the record is inconsistent concerning whether the district court made a factual finding that Fidse was involved in this alleged conduct.”


Despite a two-day sentencing hearing, the district court was forced to rely solely upon the PSR about Fidse’s alleged purchase of the armed vehicle for al Shabaab—a report that did nothing more than recite “the government’s evidence” relative to the purchase of that vehicle. This was not enough for the Fifth Circuit. The appeals court reversed and remanded Fidse’s case for resentencing with instructions that the district court “clarify its factual findings concerning the alleged purchase of the armed vehicle …” Only then can the district court actually determine that Fidse’s false statements “obstructed an investigation into a federal crime of terrorism.”


In short, the district court must identify which enumerated federal crime of terrorism spelled out in Section 2332b (g) (5) (A) that Fidse intended “to promote” before it can apply the Section 3A1.4 enhancement provisions.