KING, Circuit Judge:
This proceeding is Ali Asad Chandia's latest appeal following his convictions in the Eastern District of Virginia for providing, and conspiring to provide, material support to terrorists and a foreign terrorist organization. See 18 U.S.C. §§ 2339A, 2339B. For the third time, Chandia challenges the district court's application of the sentencing enhancement for a "federal crime of terrorism" under Guidelines section 3A1.4 (the "terrorism enhancement") and his resultant sentence of 180 months in prison.
In his first appeal, we affirmed Chandia's convictions and remanded for a fresh analysis of whether the terrorism enhancement applies. See United States v. Chandia, 514 F.3d 365 (4th Cir.2008) ("Chandia I"). Specifically, our Chandia I decision directed the sentencing court, to determine whether Chandia had acted with the specific intent required by the terrorism enhancement. Id. at 376 (recognizing that, to satisfy the intent requirement, "the underlying felony [must have been] calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct" (internal quotation marks omitted)). "To make this determination," Chandia I explained, "the court must resolve any factual disputes that it deems relevant to application of the enhancement." Id. We specified that, "[i]f the court finds that Chandia had the requisite intent, it should identify the evidence in the record that supports its determination." Id.
On remand, the district court again applied the terrorism enhancement and resentenced Chandia to 180 months in prison—but without fully resolving the factual disputes or sufficiently explaining how its findings related to Chandia's intent. Hence, in Chandia's second appeal, we again vacated his sentence and remanded for resentencing. See United States v. Chandia, 395 Fed.Appx. 53 (4th Cir.2010) ("Chandia II"). Our Chandia II decision reiterated our directive that the sentencing court "make clear that it has made independent findings" and, "[i]f it again finds application of the enhancement warranted,... explain how specific facts indicate that [Chandia's] motive in providing material support was to influence or affect government conduct by intimidation or coercion, or to retaliate against government conduct." Id. at 60.
Having carefully reviewed and assessed the sentencing proceedings prompting this third appeal, we are satisfied that the court has complied with our mandate. We therefore reject Chandia's contention that the court erred in applying the terrorism enhancement, plus his other assertions of
Chandia's convictions were the product of a government investigation of a terrorist support network active in the suburbs of Washington, D.C. Among others investigated, Chandia, a Pakistani national, attended the Dar al-Arqam Islamic Center in Falls Church, Virginia. A lecturer at the Center, Ali Timimi, advocated violent jihad against the enemies of Islam. The FBI believed that several members of the Center were conducting jihad training with paintball guns. The FBI also believed that some of the suspects, including Chandia, had travelled to Pakistan to attend military training camps operated by Lashkar-e-Taiba ("LET"), a designated foreign terrorist organization. In May 2003, the FBI executed warrants to search six residences, including Chandia's. The search of Chandia's residence and subsequent search of his vehicle "uncovered a significant amount of information ultimately introduced at trial." See Chandia I, 514 F.3d at 369-70.
In June 2003, eleven defendants targeted in the FBI searches—not including Chandia—were indicted for various offenses relating to their participation in the paintball training exercises. Of the eleven indicted, six "ultimately pled guilty, two were acquitted, and three were convicted after a bench trial." Chandia I, 514 F.3d at 370. Because Chandia did not participate in the paintball training, he was indicted separately, in September 2005, on four counts: "a conspiracy and a substantive count of providing material support to terrorists, in violation of 18 U.S.C. § 2339A, and a conspiracy and a substantive count of providing material support to a foreign terrorist organization, in violation of 18 U.S.C. § 2339B." Id.
Prior to Chandia's first sentencing hearing, the probation officer prepared the presentence report (the "PSR"), recommending imposition of the terrorism enhancement.
Chandia objected to the PSR, disputing several of its factual assertions and observing that it failed to adequately address the application of the terrorism enhancement.
In Chandia I, we observed that the district court had not resolved Chandia's factual objections to the PSR, as Federal Rule of Criminal Procedure 32(i)(3)(B) required. See 514 F.3d at 376. Moreover, we recognized that the PSR failed to provide an explanation for application of the terrorism enhancement, and that the court made no factual findings relating to the specific intent element. Id. We rejected the notion, implicit in those errors, that the terrorism enhancement "automatically applies to a material support conviction." Id. Rather, we emphasized that, unlike cases in which the underlying conviction involves violent terrorist acts, the facts giving rise to Chandia's convictions did not alone yield "an automatic inference of the required intent." Id. Thus, we instructed the court to "resolve any factual disputes that it deems relevant to the application of the enhancement" under Rule 32(i)(3)(B). Id. If the court then concluded that the terrorism enhancement applied, it was to "identify the evidence in the record that supports its determination." Id.
No modifications were made to the PSR after the first remand, and Chandia did not file any new objections. At his second sentencing hearing in April 2008, Chandia nevertheless reminded the district court of his previously filed objections and contended that the terrorism enhancement was unwarranted. The court disagreed, concluding that the enhancement applied regardless of whether the government had to prove specific intent by a preponderance or by clear and convincing evidence. In deciding that the enhancement applied, "the court relied upon the following facts":
Chandia II, 395 Fed.Appx. at 57. "In sum, the court found that Chandia `knew the purpose of the LET organization, clearly he knew it,' and thus the terrorism enhancement applied." Id.
Again, however, the sentencing court failed to address Chandia's objections to the PSR, though in "its accompanying Statement of Reasons the court indicated that it adopted the PSR without change." Chandia II, 395 Fed.Appx. at 57. The court resentenced Chandia to 180 months in prison because the material support convictions "were part and parcel of conduct that was charged in all three offenses." Id. (internal quotation marks omitted).
In Chandia II, we observed that "the court did not fulfill [its duty under Rule 32(i)(3)(B)] when it simply adopted the PSR without change in its Statements of Reasons." 395 Fed.Appx. at 58. Although we explained that the court could adopt the PSR's findings, it was required to "make clear on the record that it has made an independent finding." Id. at 59 (internal quotation marks omitted). That is, the court was obliged to "indicate that it has considered Chandia's objections to the PSR and rejected them," and "then explain how its resolution of Chandia's objections affects" its finding of specific intent
We then explained that it was error for the sentencing court "to have applied the wrong legal standard by equating intent with knowledge." Chandia II, 395 Fed. Appx. at 60. For instance, Chandia's knowledge that LET had a terrorist purpose supported his material support convictions but "that does not automatically yield an inference of the specific intent required for the [terrorism] enhancement to apply." Id. Accordingly, we again remanded, advising the court to "make clear that it has made independent findings in response to Chandia's objections to the PSR" and, "[i]f it again finds application of the enhancement warranted, [to] explain how specific facts indicate that [Chandia's] motive in providing material support" met the specific intent element. Id.
In the second remand proceedings, Chandia filed detailed objections to the PSR. The parties also provided the district court with supplemental briefing on the applicability of the terrorism enhancement and Chandia's PSR objections. During a resentencing hearing on January 28, 2011, the court considered each of Chandia's objections to the PSR, sustaining several of them and ordering the challenged paragraphs amended or deleted. Otherwise, the court overruled the objections and adopted the PSR's findings. The parties then agreed to propose a consent order reflecting the court's PSR amendments and deletions. At the conclusion of the hearing, the court heard argument on the terrorism enhancement.
Subsequently, the district court entered the proposed consent order, and the parties filed separate proposed findings of fact on the terrorism enhancement. Chandia also submitted a position statement on the amended PSR, maintaining, inter alia, that the terrorism enhancement did not apply and that the 18 U.S.C. § 3553(a) factors merited a sentence of less than 180 months. Chandia presented other material support conviction decisions, seeking to show that a 180-month sentence would create an unwarranted disparity. On March 11, 2011, at the outset of another sentencing hearing—Chandia's fourth— the court announced that it would "relate [its] findings in regard to the enhancement that's at issue and then [impose the sentence]." J.A. 844. The court explained that it was still convinced that the "facts support that [Chandia's] motive in providing material support was to influence or affect government conduct by intimidation or coercion or to retaliate against government conduct[, and there were] numerous facts which compel that conclusion." Id.
The sentencing court then identified evidence showing that Chandia knew that LET was an organization engaging in acts of terrorism, including the following:
The court then proceeded to identify and describe the evidence supporting the proposition that Chandia knew Mohammad Khan to be an LET leader, including:
The district court concluded by summarizing the significance of its factual findings, observing that
J.A. 853. Consequently, the court deemed the terrorism enhancement "warranted and the guidelines properly assessed at a range of 360 months to life." Id. at 853-54. The court then invited Chandia to the podium and inquired, "Is there anything you want to say at this time?" Id. at 854. Chandia replied, "No." Id. at that point, the court, "considering the factors [required] under Section 3553, [determined] a sentence somewhat less than the lower end of the guidelines range would be appropriate in this case" and thus again imposed the variance sentence of 180 months in prison. Id. Chandia's counsel thereafter responded, "Your Honor, we will obviously, for the record, note our exception to the Court's ruling and finding[s] of fact. We adopt what we filed before." Id. at 855.
Chandia timely noted his appeal on March 19, 2011. We possess jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
We review the reasonableness of a sentence for abuse of discretion. See United States v. Hornsby, 666 F.3d 296, 312 (4th Cir.2012). In undertaking such a review, we ensure that "the district court committed no significant procedural error," such as "failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range." United States v. Diosdado-Star, 630 F.3d 359, 363 (4th Cir.2011) (internal quotation marks omitted).
In assessing a Guidelines enhancement, "we review findings of fact for clear error and legal decisions de novo." United States v. Rooks, 596 F.3d 204, 210 (4th Cir.2010) (internal quotation marks omitted). Under the clear error standard of review, we "will only reverse if left with the definite and firm conviction that a mistake has been committed." United States v. Slade, 631 F.3d 185, 188 (4th Cir.2011) (internal quotation marks omitted).
Chandia advances two sets of contentions in this appeal, both premised on the notion that the district court committed
Second, Chandia contends that, notwithstanding the sufficiency of the factual predicates for the enhancement, its application in this case fails to comport with the purposes of the Guidelines and 18 U.S.C. § 3553(a). Had the court properly evaluated the § 3553(a) factors, Chandia posits, it would have regarded a sentence augmented by the terrorism enhancement as unreasonable. Indeed, he asserts that the court did not assess certain of the § 3553(a) factors, specifically his life history and characteristics and the need to avoid unwarranted sentencing disparities. Finally, Chandia contends that the court committed procedural error by depriving his attorney of the chance to address the appropriate sentence under § 3553(a). As explained below, we reject those contentions.
First, Chandia faults the sentencing court for failing to decide the applicable standard of proof for the terrorism enhancement.
Likewise, we have concluded that, post-Booker, "the due process clause does not require the district court to find uncharged conduct by a heightened standard of proof
Chandia next contends that three of the sentencing court's factual findings underpinning the terrorism enhancement were clearly erroneous. First, he asserts that, contrary to the court's finding, there was no evidence that he intended to participate in jihad training when he quit his job in the United States and travelled to Pakistan in November 2001. The court, however, recited evidence from which it could fairly draw such an inference, not the least of which was the January 12, 2001 email Chandia received "with the subject line `training,'" which stated, "`Brother, you requested some information about training and fighting inshallah,'" and informed Chandia that LET was one of two groups offering "commando training courses." J.A. 844-45.
Second, Chandia disputes the court's description of emails he exchanged with Mohammad Khan as "cryptic," maintaining that the terminology and informal style of the emails are endemic to his generation's electronic communications. We are not convinced by that proposition, however, given the context of those particular exchanges. Even if we "would have weighed the evidence differently," we would not reverse because the "district court's account of the evidence is plausible in light of the record viewed in its entirety." See Anderson v. Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985).
Third, Chandia disagrees with the court's inference that Chandia knew Mohammad Khan was in the United States for LET business, based on Khwaja Hasan's testimony of a conversation between the three men in February 2002. We previously explained that the PSR inaccurately asserted that "Khan told Hasan in Chandia's presence that he was in the United States on LET business." Chandia II, 395 Fed.Appx. at 59. In fact, "Hasan conceded that Khan did not indicate to Hasan his purpose for being in the United States, nor did Hasan speculate on Khan's purpose in Chandia's presence." Id. Nevertheless, as the district court found in the second remand proceedings, Hasan derived his assumption that Khan was in the United States on LET business from the conversation the men had in Chandia's presence. Moreover, the court observed that, during the same conversation, Hasan specifically "warned Khan to `be careful' because a group of Pakistanis in New York recently was `caught trying to smuggle out night vision goggles.'" J.A. 848. In view of the foregoing, we are not left with the definite and firm conviction that the court clearly erred when it inferred from the evidence that Chandia knew Khan was in the United States on LET business. Cf. United States v. Kiulin, 360 F.3d 456, 460 (4th Cir.2004) (concluding that sentencing court's inference from recorded conversation was not clearly erroneous and supported application of sentencing enhancement).
Chandia also maintains that the sentencing court's factual findings, if not clearly erroneous, were nevertheless insufficient to establish the specific intent necessary for the terrorism enhancement. He contends that the court's findings on the second remand were not new, but rather that they were mere restatements of the facts sustaining the material support convictions—facts rejected in the prior appeals as inadequate to demonstrate specific intent. But we did not require the court to make any new factual findings on remand, though it appears to have done so. Rather, we asked the court to make "independent findings in response to Chandia's objections to the PSR" and then "explain how specific facts indicate that [Chandia's] motive in providing material support" constituted the requisite intent for the terrorism enhancement. Chandia II, 395 Fed. Appx. at 60 (emphasis added).
Consistent with Chandia II, the district court resolved each of Chandia's objections, made its own findings, and explained Chandia's motive for providing material support. In short, the court concluded that, because Chandia "knew LET was an organization that engaged in repeated acts of violence against the government of India," and because he knew that "Khan was an LET leader," his motivation in providing material support to Mohammad Khan was to "to influence or affect government conduct by intimidation or coercion or to retaliate against government conduct." J.A. 853. Chandia criticizes the court's explanation as simply reiterating that he knew that LET had terrorist purposes when he assisted Khan, which "does not automatically yield an inference of the specific intent required for the enhancement to apply." Chandia II, 395 Fed.Appx. at 60. In this instance, however, the court was not "equating intent with knowledge." Id. The court instead followed our prescription to first resolve facts that "may bear on whether Chandia provided material support [with the requisite intent]." See id. at 59.
Most notably, the sentencing court found that Chandia knew that Khan was an LET leader. In fact, the court explained that "Chandia demonstrated that he knew Khan well and that he was much more than an unwitting assistant to this LET leader." J.A. 849. Over Chandia's objection, the court also adopted the PSR's recitation of Yong Kwon's testimony that "Chandia discussed with Kwon the training that occurred at the LET camp [and the necessary] clothing." See id. at 1024. As we advised, resolution of this and other factual disputes enabled the court to find "motives attributable to Chandia under the terrorism enhancement." See Chandia II, 395 Fed.Appx. at 60. The court surmised from the evidence that Chandia's "intent was to go [to Pakistan] to train and fight[, and] [w]hether he did so or not, he possessed a mindset that would make him a valuable asset to the LET." J.A. 851. Indeed, "almost immediately after returning to the United States," Chandia assisted Mohammad Khan knowing that he was there on LET business. See id. Hence, the court did not repeat the mistake of relying solely on Chandia's knowledge of LET's terrorist purpose; it reasonably inferred by a preponderance of the evidence that Chandia intended to advance that purpose in providing material support to Khan. See United States v. Hammoud, 381 F.3d 316, 356 (4th Cir.2004) (affirming application of terrorism enhancement where defendant had "close connections with Hizballah
Finally, Chandia contends that the district court committed procedural errors in imposing a sentence amplified by the terrorism enhancement without weighing all of the § 3553(a) factors and without providing him an opportunity to address them. Regarding the latter, Chandia acknowledges that the court asked him during the fourth and final sentencing hearing if there was anything he wanted to say before sentence was imposed. He asserts, however, that the court failed to accord his lawyer an opportunity to speak on his behalf See Fed.R.Crim.P. 32(i)(4)(A)(i) (providing that, "[b]efore imposing sentence, the court must [afford] the defendant's attorney an opportunity to speak on the defendant's behalf"). Although the court did not specifically elicit remarks from Chandia's counsel, it is readily apparent that the lawyer had multiple opportunities to address the proper sentence, including the § 3553(a) factors. Indeed, Chandia's very able counsel interjected immediately after sentence had been orally imposed, taking "exception to the Court's ruling and finding[s] of fact [and to] adopt what we filed before." J.A. 855. In context, the lawyer's reference to what was "filed before" is significant.
In his earlier sentencing memoranda, Chandia's counsel had argued for a lower sentence based on the § 3553(a) factors and attached several letters attesting to Chandia's good character. Additionally, the lawyer spoke to the court about Chandia's life history and characteristics during the resentencing hearing of January 28, 2011. Nevertheless, if the court somehow contravened Rule 32(i)(4)(A)(i), Chandia cannot show that such an error affected his substantive rights. See United States v. Muhammad, 478 F.3d 247, 249 (4th Cir.2007) (reviewing unobjected-to denial of allocution by defendant for plain error). Chandia insists that his counsel—if he had spoken—would have reiterated facts that were raised at the January 28, 2011 hearing regarding the terrorism enhancement, he would have pointed out the government's factual errors and omissions, and he would have emphasized that Chandia was convicted of a conspiracy with property damage as its objective, rather than causing harm to individuals. We are entirely unconvinced that the court was oblivious to these points, or that they would have resulted in a lesser sentence. By the final sentencing hearing, the court was fully aware of the mitigating circumstances and of Chandia's various objections to its factual findings. Cf. Muhammad, 478 F.3d at 250-51 (concluding defendant was prejudiced by denial of allocution in post-Booker remand, because court had more discretion and could have imposed a lesser sentence had defendant been permitted to allocute for second time).
Likewise, we are satisfied that the district court, in fashioning its variance sentence, considered the § 3553(a) factors. The court was not required to provide a lengthy explanation or "robotically tick through § 3553(a)'s every subsection, particularly when imposing a [below]-Guidelines sentence." See United States v. Powell, 650 F.3d 388, 395 (4th Cir.2011) (internal quotation marks omitted). Chandia nevertheless contends that the court failed to consider that he was the least culpable among his coconspirators yet received a greater sentence on the material support convictions. He relies
Pursuant to the foregoing, we reject Chandia's appellate contentions and affirm.
18 U.S.C. § 2339A(a). Section 2339B required "proof of an element that [§ 2339A] does not," namely, "that Chandia provided material support to ... a foreign terrorist organization." Chandia I, 514 F.3d at 372. The relevant part of that statute provides:
18 U.S.C. § 2339B(a)(1).
514 F.3d at 375-76 (quoting definition given to "a federal crime of terrorism" in 18 U.S.C. § 2332b(g)(5)(A)). If applicable, "the terrorism enhancement provides a twelve level enhancement—and an automatic criminal history category of VI." Id. at 375.
Chandia II, 395 Fed.Appx. at 56 (citations omitted).