Ramirez: Vacating Terrorism-Enhancement Sentence and Remanding

In United States v. Ramirez, No.  20-10564 (Nov. 1, 2021) (Wilson, Rosenbaum, Hull), the Court vacated the defendant's sentence and remanded.  

Defendant purchased firearms and firearm parts and components, often through straw purchasers, and sold them throughout Colombia.  Six firearms found themselves into the hands of members of the National Liberation Army ("ELN"), which the U.S. State Department has designated a foreign terrorist organization.  Defendant pleaded guilty to knowingly providing material support to the ELN, in violation of 18 U.S.C. §§ 2339B(a)(1) and 2.  

At sentencing, defendant challenged the application of the terrorism enhancement under U.S.S.G. § 3A1.4.  He argued that § 3A1.4 required that the government prove not only his material support to the ELN, but also that his offense conduct was "calculated" to influence, affect, or retaliate against the Colombian government.  Defendant claimed that his motive was to profit financially, not to retaliate against the Colombian government.  The district court overruled defendant's objections, suggesting that the court believed that the mere fact that defendant pleaded guilty to knowingly providing material support to a known terrorist organization per se satisfied § 3A1.4's "calculated" or specific intent requirement.  

On appeal, the Court vacated the application of the § 3A1.4 enhancement.  The structure of § 3A1.4 establishes two separate bases for applying the enhancement: (1) when the defendant's offense "involved" a federal terrorism crime; or alternatively, (2) when his offense was "intended to promote" a federal terrorism crime.  The Court focused on the first prong--namely on the meanings of "involved" and "federal crime of terrorism"--and whether defendant's offense or relevant conduct was "calculated" to influence, affect, or retaliate against government conduct.  The Court, agreeing with its sister circuits, found that "calculated" imposes an intent requirement.  That is, the government must show that the defendant's offense was planned to influence, affect, or retaliate against government conduct, even if that was not the defendant's personal motive.  

Here, the district court made no factual findings as to the § 3A1.4 enhancement, and erred in assuming that an offense under §2339B(a)(1) necessarily includes the additional requirement found in § 2332b(g)(5)(A) that the defendant's offense be "calculated" to influence, affect, or retaliate against government conduct.  Whether a defendant's offense is "calculated" to influence, affect, or retaliate against government conduct is a highly fact-specific inquiry that requires an examination of the record as a whole.  Because no such fact finding was conducted here, the district court erred in applying § 3A1.4's terrorism enhancement.  As such, the Court vacated defendant's sentence and remanded for resentencing and fact findings.                  

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