United States v. Chandia

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-4529

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ALI ASAD CHANDIA, a/k/a Abu Qatada,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:05-cr-00401-CMH-1)

Argued: December 2, 2009 Decided: September 14, 2010

Before MICHAEL, MOTZ, and KING, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

ARGUED: Marvin David Miller, Alexandria, Virginia, for
Appellant. John T. Gibbs, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee. ON BRIEF: Heather Golias, LAW
OFFICES OF MARVIN D. MILLER, Alexandria, Virginia, for
Appellant. Chuck Rosenberg, United States Attorney, Alexandria,
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Ali Asad Chandia was convicted of three counts of

providing material support to terrorists and a terrorist

organization. We previously affirmed his convictions but

remanded for resentencing. United States v. Chandia, 514 F.3d

365 (4th Cir. 2008). We instructed the district court on remand

to resolve Chandia’s objections to his presentence report

(“PSR”) that were relevant to the sentencing enhancement he

received under U.S.S.G. § 3A1.4 for committing a “federal crime

of terrorism.” Id. at 376. That enhancement applies only if

the government proves that Chandia’s conviction is a “felony

that involved, or was intended to promote, a federal crime of

terrorism.” U.S.S.G. § 3A1.4(a).

Although it may seem at first blush that a terrorism-

related conviction like Chandia’s is naturally a “federal crime

of terrorism,” Congress chose a more narrow, motivation-based

definition. A “federal crime of terrorism” is a violation of

one of many statutorily enumerated offenses and 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). The “calculated to influence or affect”

element of the definition imposes a specific intent requirement

that a sentencing court must find before applying the

2
enhancement. Chandia, 514 F.3d at 376; United States v.

Stewart, 590 F.3d 93, 137-39 (2d Cir. 2009).

At resentencing the district court again concluded

that Chandia deserved the terrorism enhancement, but the court

also again did so without resolving relevant factual disputes in

the PSR and without explaining how the facts it did find related

to Chandia’s motive for providing material support to the

terrorist organization Lashkar-e-Taiba (“LET”). Because the

court did not follow our instructions at resentencing, we again

vacate Chandia’s sentence and remand for further factfinding on

whether Chandia had the intent required for the enhancement.

I.

A.

In June 2006 a jury in the Eastern District of

Virginia convicted Chandia of three counts of terrorism-related

crimes: (1) conspiracy to provide material support to

terrorists, in violation of 18 U.S.C. § 371 and § 2339A; (2)

conspiracy to provide material support to a designated foreign

terrorist organization, in violation of 18 U.S.C. § 2339B; and

(3) provision of material support to a designated foreign

terrorist organization, in violation of 18 U.S.C. § 2339B. J.A.

582.

3
 Chandia’s conviction stemmed from an investigation of

a terrorist support network in the Washington, D.C., suburbs.

Chandia, 514 F.3d at 369. Many of the individuals investigated,

including Chandia, were members of the Dar al-Arqam Islamic

Center in Falls Church, Virginia. Id. Ali Timimi, a lecturer

at the center, advocated violent jihad against perceived enemies

of Islam. Id. In May 2003 the FBI executed warrants to search

six residences, including Chandia’s, on the basis that several

members of the center regularly played paintball to prepare for

violent jihad. Id. The FBI also believed that some of the

individuals targeted, including Chandia, had traveled to

Pakistan to attend military training camps run by LET. Id. The

United States had designated LET as a foreign terrorist

organization in December 2001. Id.

In June 2003 all of the individuals targeted in the

searches, except for Chandia, were indicted for different

offenses arising from the paintball activity. Id. at 370.

Chandia did not participate in paintball. J.A. 596. He was

indicted separately in September 2005 on four counts: one

substantive and one conspiracy count of providing material

support to terrorists, and one substantive and one conspiracy

count of providing material support to a foreign terrorist

organization. Id. The jury acquitted Chandia of the

4
substantive count of providing material support to terrorists

and convicted him on the remaining three counts. Id.

Before Chandia’s first sentencing hearing, the United

States Probation Office prepared a PSR. J.A. 581. The PSR

recommended the “federal crime of terrorism” sentencing

enhancement under U.S.S.G. § 3A1.4(a). J.A. 613. Without the

enhancement, the Guidelines provided a base level of 63 to 78

months. Chandia, 514 F.3d at 370. Application of the

enhancement would have increased Chandia’s Guidelines range to

360 months to life. Id. Chandia’s material support convictions

satisfied the first element required for the enhancement

(conviction of an enumerated felony). Id. at 376. But the PSR

said nothing about the second element -- specific intent. It

simply concluded that Chandia’s material support convictions

“meet the requirements” for the terrorism enhancement, without

any discussion of Chandia’s motive. J.A. 613.

In describing the offense conduct, the PSR said that

some time between September 11, 2001, and November 2, 2001,

Chandia quit his job and left the United States for a family

emergency. J.A. 604. The PSR further asserted that Chandia

arrived in Lahore, Pakistan, in November 2001, visited a LET

office, and inquired about the training that occurred at the LET

military camp and what type of clothing was necessary. J.A.

605. However, the PSR did not assert that Chandia actually went

5
to a LET training camp while he was in Pakistan. Chandia, 514

F.3d at 370.

The PSR also said that between February 2002 and April

2003, Chandia provided assistance to Mohammed Ajmal Khan, a LET

leader. J.A. 605-07. In particular, Chandia served as Khan’s

contact and transported him when Khan arrived in Washington,

D.C. from Birmingham, England in February 2002. J.A. 605-06.

Chandia took Khan to the residence of Khwaja Mahmood Hasan,

where Khan allegedly indicated in Chandia’s presence that he was

in the U.S. on LET business. J.A. 606. The PSR indicates that

Khan sent emails during his February 2002 visit to two

technology companies for the purpose of ordering the anti-

ballistic material Kevlar and remote-controlled aircraft

equipment. J.A. 605-07. The PSR notes that fragments of one of

these emails from Khan were recovered from a computer at

Chandia’s residence. J.A. 612. The government contended that

Chandia gave Khan access to Chandia’s computer during Khan’s

visit. Chandia, 514 F.3d at 370. The PSR also said that

Chandia delivered twenty-one boxes of paintballs to an

international shipping company for delivery to Lahore, Pakistan

in March 2003. J.A. 610. Chandia allegedly paid for the

shipment costs. J.A. 610-11.

Prior to his first sentencing, Chandia submitted

detailed objections to the PSR. J.A. 350-62. Among his

6
objections was that the PSR gave no explanation of why the

terrorism enhancement applied other than stating that his

convictions “meet the definition” of a federal crime of

terrorism, thus suggesting that the enhancement applies

automatically to a material support conviction. J.A. 362, 613.

Chandia admitted that he was in Pakistan from November 2001 to

February 2002 but claimed that he was there to care for his ill

father and to prepare for his brother’s wedding. Chandia, 514

F.3d at 370. Although Chandia knew of LET’s terrorist purposes,

he maintained that LET also engaged in non-terrorist activity

such as the operation of schools and hospitals. J.A. 356.

Chandia also admitted to transporting Khan, but he denied

knowing that Khan was in the United States on LET business.

J.A. 360. Chandia argued that the computer that Khan used to

order equipment did not belong to Chandia personally but rather

was in Chandia’s residence and was used by multiple family

members. J.A. 361. Chandia admitted that he helped Khan ship

approximately 50,000 paintballs to Pakistan, but denied

purchasing or “clearing” the shipment. Appellant’s Br. 10.

At Chandia’s first sentencing hearing in August 2006,

the government sought application of the § 3A1.4(a) terrorism

enhancement. The district court did not explicitly say that the

terrorism enhancement applied. Chandia, 514 F.3d at 371.

However, on Chandia’s first appeal, we concluded that the court

7
implicitly applied the enhancement when it determined that the

Guidelines range was properly calculated at 360 months to life.

Id. The court sentenced Chandia to 180 months’ imprisonment,

the statutory maximum for a single material support conviction.

Id. The court did not resolve the factual disputes in Chandia’s

objections to the PSR. Id.

In January 2008 we affirmed Chandia’s convictions but

vacated his sentence and remanded for resentencing because (1)

the PSR provided no explanation as to why the terrorism

enhancement applied and (2) the district court did not resolve

the factual disputes arising from Chandia’s PSR, as required by

Federal Rule of Criminal Procedure 32(i)(3)(B). In particular,

the court did not make any factual findings regarding whether

Chandia committed the offense with intent to “influence or

affect the conduct of government by intimidation or coercion, or

to retaliate against government conduct.” Chandia, 514 F.3d at

376. Most importantly, we rejected the contention that the

§ 3A1.4(a) terrorism enhancement “automatically applies to a

material support conviction.” Id. We emphasized that unlike

cases in which the underlying conviction involves violence, the

facts of Chandia’s conviction (including his assistance to Khan

by shipping paintballs to Pakistan) did not alone “give rise to

an automatic inference of the required intent.” Id. We

instructed the district court to reconsider whether the

8
enhancement applied by determining whether Chandia had the

requisite intent. Id. In making this determination, we

instructed the court to “resolve any factual disputes that it

deems relevant to the application of the enhancement” under

Federal Rule of Criminal Procedure 32(i)(3)(B). Id. If the

court remained convinced that the enhancement applied, we asked

the court to “identify the evidence in the record that supports

its determination.” Id.

B.

On remand Chandia’s PSR remained unchanged and Chandia

did not file a new set of objections. J.A. 581. At the

resentencing hearing in April 2008, Chandia’s counsel did,

however, remind the district court of his previously filed

objections and went on to argue why the enhancement should not

apply. J.A. 547-57, 566-72. The court concluded that

regardless of whether the government had to prove Chandia’s

specific intent by a preponderance or by clear and convincing

evidence, the enhancement applied. 1 J.A. 573. The court relied

upon the following facts in deciding that the enhancement

1
As in our first decision in this case, we leave open the
question of whether the government’s burden of proof for the
intent requirement under § 3A1.4 is a preponderance or clear and
convincing. Chandia, 514 F.3d at 376 n.4.

9
applied: Chandia watched videos 2 of LET; he spent time in

Pakistan and visited LET offices in Pakistan; he met with Khan,

a “known leader of the LET”; he picked Khan up from the airport

and his phone number served as Khan’s contact; his computer was

used to order Kevlar supplies from Canada; he took Khan to the

airport to “make arrangements to buy other goods and military

equipment”; and he helped ship paintballs to Pakistan. J.A.

573. 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.

The court did not address Chandia’s PSR objections in

its oral disposition. In its accompanying Statement of Reasons

the court indicated that it adopted the PSR without change.

J.A. 642. Although the court applied the terrorism enhancement,

it again sentenced Chandia to 180 months’ imprisonment because

the three counts of conviction were “part and parcel of conduct

that was charged in all three offenses.” J.A. 574.

2
Although the district court used the word “videos,” it
appears that the court was referencing LET websites that Chandia
allegedly visited. J.A. 294. Defense witness Husnain Awan
testified that he and Chandia looked at websites containing
information about LET’s military operations in Pakistan. J.A.
293-94.

10
 II.

“If the district court makes adequate findings as to a

controverted [sentencing] matter, this court must affirm those

findings unless they are clearly erroneous.” United States v.

Morgan, 942 F.2d 243, 245 (4th Cir. 1991). However, the “review

process cannot take place without the district court first

resolving all the disputed matters upon which it relies at

sentencing.” Id. In this case, the district court did not

follow our instruction to resolve factual disputes governing the

terrorism enhancement it imposed. Nor did it “identify the

evidence in the record that support[ed] its determination.”

Chandia, 514 F.3d at 376.

Federal Rule of Criminal Procedure 32(i)(3)(B)

requires a sentencing court “ -- for any disputed portion of the

presentence report or other controverted matter –- [to] rule on

the dispute or determine that a ruling is unnecessary either

because the matter will not affect sentencing, or because the

court will not consider the matter in sentencing.” A district

court may satisfy Rule 32(i)(3) by “simply adopt[ing] the

findings contained in a PSR, provided that [the court] makes

clear ‘which disputed issues were resolved by its adoption.’”

Bolden, 325 F.3d at 497 (quoting Walker, 29 F.3d at 911). The

court may adopt “the PSR’s findings in toto” if “the context of

the ruling makes clear that the district court intended [by the

11
adoption] to rule on each of the alleged factual inaccuracies.”

Walker, 29 F.3d at 911 (holding that the district court’s

statement from the bench that it overruled the objections filed

by the defendant, taken together with the court’s Statement of

Reasons form, satisfied Rule 32 because it demonstrated that the

court was “adopting each of the PSR’s findings”) (emphasis

added) (internal quotations omitted); see also United States v.

Sykes, 357 F.3d 672, 674 (7th Cir. 2004) (holding that

sentencing court may satisfy Rule 32(i)(3) by “adopting the

proposed findings in the [PSR], even as to contested facts, so

long as the PSR indicates a sufficiently clear basis for the

sentence”). Compare United States v. West, 550 F.3d 952, 974

(10th Cir. 2008) (holding that simply adopting the PSR “without

change” does not satisfy Rule 32); United States v. White, 492

F.3d 380, 415 (6th Cir. 2007) (holding that once a defendant

“calls the [disputed] matter to the court’s attention, the court

may not merely summarily adopt the factual findings in the [PSR]

or simply declare that the facts are supported by a

preponderance of the evidence”) (internal quotations and

citations omitted).

In this case, after we vacated Chandia’s original

sentence and remanded for resentencing, the PSR remained

unchanged. Therefore, the district court was left with a PSR

that, as before, “stated that the terrorism enhancement applied

12
but gave no explanation for the conclusion.” Chandia, 514 F.3d

at 376. The PSR “did not contain any factual assertions . . .

related to the intent element” of the terrorism enhancement.

Id. The PSR’s silence on intent triggered the sentencing

court’s factfinding duty under Rule 32(i)(3). At resentencing

the court did not fulfill this duty when it simply adopted the

PSR without change in its Statement of Reasons. This step did

not satisfy our instruction (1) to “resolve any factual disputes

that it deems relevant to application of the enhancement” and

(2) if Chandia is found to “ha[ve] the requisite intent, [to]

identify the evidence in the record that supports [that]

determination.” Id. Because it did not follow our instruction,

the district court did not properly apply the enhancement. 3

3
We reject the government’s suggestion that before his
resentencing, Chandia should have requested a new PSR or should
have stated more particularly why the PSR failed to support the
terrorism enhancement. Chandia’s counsel did not focus on the
PSR during argument at resentencing but, as the hearing began,
counsel reminded the court of Chandia’s previously filed
objections to the unchanged PSR. J.A. 547. In Walker we
addressed whether the defendant objected to the PSR’s
recommendation that he be denied an adjustment for acceptance of
responsibility in a manner sufficient to trigger the sentencing
court’s factfinding duty under Rule 32. 29 F.3d at 911. We
noted that Walker filed several written, specific objections,
even though at argument his counsel did not explicitly challenge
the PSR’s recommendation regarding acceptance of responsibility.
Id. at 912. We held that it was Walker’s prior “specific
objections to the factual findings underlying the PSR’s
recommendation” that triggered the sentencing court’s
factfinding duties under Rule 32, not counsel’s arguments at
resentencing. Id. Here, our specific remand instructions
(Continued)
13
 The district court’s oral remarks at resentencing on

April 25, 2008, do not provide a sufficient basis for us to hold

that a week later, when the court adopted Chandia’s PSR in toto

“without change,” the court intended “to rule on each of

[Chandia’s] alleged factual inaccuracies.” Walker, 29 F.3d at

911. The district court did not mention the substance of the

PSR in its remarks at resentencing; after a week passed, on May

2, 2008, the court simply adopted the PSR in toto in its

Statement of Reasons form attached to the judgment. J.A. 648.

We cannot call this a Rule 32(i)(3) determination, given the

PSR’s lack of discussion on the terrorism enhancement. Although

the district court may adopt the PSR’s findings, it must “make

clear on the record that it has made an independent finding and

that its finding coincides with the recommended finding in the

presentence report.” Morgan, 942 F.2d at 245 (emphasis added).

This means that the court must indicate that it has considered

Chandia’s objections to the PSR and rejected them, or that a

given objection will not affect sentencing. The court must then

explain how its resolution of Chandia’s objections affects its

conclusion on whether Chandia provided material support with the

coupled with defense counsel’s reference to Chandia’s previously
filed objections put the district court on notice at
resentencing that it had to resolve those objections in a way
that complied with Rule 32(i)(3).

14
intent to retaliate against government conduct, or to influence

the government’s conduct by intimidation or coercion.

For example, Chandia objected to paragraph 100 of the

PSR, which asserted that in February 2002 Chandia transported

Mohammed Khan to Khwaja Hasan’s residence and that Khan told

Hasan in Chandia’s presence that he was in the United States on

LET business. J.A. 606. Chandia maintained that Hasan did not

testify that Khan stated that he was in the United States on LET

business. J.A. 360. The probation officer reported the

government’s response: the trial transcript, which was

unavailable when the PSR was prepared, would be necessary to

resolve the controversy. J.A. 639. The transcript, now

available, reveals that Hasan testified as follows: he knew Khan

was associated with LET, and he assumed Khan was in the United

States on LET business. J.A. 246, 248. Hasan did not testify

that Khan said in Chandia’s presence that Khan was in the United

States on LET business. 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.

J.A. 275. Although the district court characterized Khan as a

known LET leader, whether Khan was a known LET leader to Chandia

may bear on whether Chandia provided material support with the

intent to retaliate against government conduct, or to affect the

government’s conduct by intimidation or coercion. We are not

15
foreclosing the possibility that Chandia knew Khan was a LET

leader when he assisted him, but the district court must resolve

the dispute and indicate how the resolution affects its

determination regarding Chandia’s motive for providing support.

Chandia also objected to the PSR’s description of LET

as an organization whose “primary” focus is “conducting violent

jihad against the Government of India.” J.A. 593. Chandia

contended that LET is a popular organization in Pakistan that

operates schools and hospitals and provides vocational training.

Which of LET’s purposes Chandia intended to serve by providing

material support is relevant to the terrorism issue. J.A. 356.

At resentencing the district court underscored that Chandia

“clearly knew” of LET’s purpose and “was clearly involved in

assisting it.” J.A. 573. Indeed, Chandia’s knowledge of LET’s

terrorism-related purpose was necessary to his conviction for

providing material support to a designated terrorist

organization under 18 U.S.C. § 2339B. A conviction under

§ 2339B requires the government to prove the defendant’s

“knowledge that the organization is a designated terrorist

organization, that the organization has engaged or engages in

16
terrorist activity, or that the organization has engaged or

engages in terrorism.” 18 U.S.C. 2339B(a)(1). 4

Chandia’s knowledge of LET’s terrorist purposes was

thus part of his conviction, but it does not alone show that he

had the intent required for the terrorism enhancement. The

government failed to prove that he attended a LET military

training camp while in Pakistan. Chandia, 514 F.3d at 370.

Chandia objected to the PSR’s allegation that he discussed with

Kwon the training and gear requirements at the LET camp. J.A.

360, 605. Kwon testified, however, that this discussion

occurred. J.A. 122-23. The district court should resolve this

factual dispute and explain whether the resolution leaves

motives attributable to Chandia under the terrorism enhancement.

We have provided guidance on what sort of intent

justifies that enhancement for a material support crime. See

United States v. Hammoud, 381 F.3d 316, 356 (4th Cir.

2004)(upholding district court’s application of § 3A1.4

terrorism enhancement where defendant had “close connections

with Hizballah officials” and his own testimony indicated that

4
The Supreme Court recently upheld the constitutionality of
§ 2339B against a First Amendment challenge. Holder v.
Humanitarian Law Project, 130 S. Ct. 2705 (2010). The Court
rested its holding in part on the statute’s mental state
component, requiring that the defendant have knowledge that the
organization receiving material support is a designated
terrorist organization.

17
he was “well aware of Hizballah’s terrorist activities and goals

and that he personally supported this aspect of Hizballah”

(emphases added)), vacated on other grounds, 543 U.S. 1097

(2005); United States v. Benkahla, 530 F.3d 300, 313 (4th Cir.

2008) (holding that enhancement was proper because defendant

“attended a jihadist training camp abroad, was acquainted with a

network of people involved in violent jihad and terrorism, and

lied about both”; distinguishing Chandia on the ground that the

district court made “extensive factual findings” and

appropriately applied the enhancement to serve its purpose of

punishing defendants “more harshly” when their “wrongs served an

end more terrible than other crimes”).

Based on our review of the record and the district

court’s analysis to date, we are not comfortable holding that

Chandia is a defendant who warrants the harsh enhancement. The

district court began resentencing by reciting the two elements

required to apply the terrorism enhancement. J.A. 572. In its

subsequent recitation of facts that would support the

enhancement, however, it appears to have applied the wrong legal

standard by equating intent with knowledge.

The facts that the district court relied upon

essentially restate the facts underlying Chandia’s material

support conviction, without explaining how these facts speak to

Chandia’s motive for providing the support. The court concluded

18
that Chandia “clearly knew” that LET had terrorist purposes and

that he was “clearly involved in assisting” LET. J.A. 573. But

Chandia’s knowledge of LET’s purpose was part of his conviction

and that does not automatically yield an inference of the

specific intent required for the enhancement to apply.

On remand, the district court must make clear that it

has made independent findings in response to Chandia’s

objections to the PSR. If it again finds application of the

enhancement warranted, it must explain how specific facts

indicate that his motive in providing material support was to

influence or affect government conduct by intimidation or

coercion, or to retaliate against government conduct.

III.

For the foregoing reasons, we vacate Chandia’s

sentence and remand for resentencing in accordance with this

opinion.

VACATED AND REMANDED

19