United States v. Chandia

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 11-4323
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: January 24, 2012

Decided: April 6, 2012

Before NIEMEYER, MOTZ, and KING, Circuit Judges.

Affirmed by published opinion. Judge King wrote the opin-
ion, in which Judge Niemeyer and Judge Motz joined.
2 UNITED STATES v. CHANDIA
COUNSEL

ARGUED: Marvin David Miller, Alexandria, Virginia, for
Appellant. John T. Gibbs, UNITED STATES DEPART-
MENT OF JUSTICE, Washington, D.C., for Appellee. ON
BRIEF: Neil H. MacBride, United States Attorney, Alexan-
dria, Virginia, for Appellee.

OPINION

KING, Circuit Judge:

This proceeding is Ali Asad Chandia’s latest appeal follow-
ing his convictions in the Eastern District of Virginia for pro-
viding, 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 ter-
rorism 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 govern-
ment by intimidation or coercion, or to retaliate against gov-
ernment 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
 UNITED STATES v. CHANDIA 3
the court finds that Chandia had the requisite intent, it should
identify the evidence in the record that supports its determina-
tion." 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 F. App’x 53 (4th Cir. 2010) ("Chandia II").
Our Chandia II decision reiterated our directive that the sen-
tencing court "make clear that it has made independent find-
ings" 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 influ-
ence or affect government conduct by intimidation or coer-
cion, or to retaliate against government conduct." Id. at 60.

Having carefully reviewed and assessed the sentencing pro-
ceedings 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 ter-
rorism enhancement, plus his other assertions of procedural
error, and we affirm his 180-month sentence.

I.

A.

Chandia’s convictions were the product of a government
investigation of a terrorist support network active in the sub-
urbs 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 ene-
mies of Islam. The FBI believed that several members of the
Center were conducting jihad training with paintball guns.
4 UNITED STATES v. CHANDIA
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 ulti-
mately 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 vari-
ous 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 sepa-
rately, 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.1
1
Section 2339A required "proof that Chandia provided material support
or resources that he knew would ‘be used in preparation for, or in carrying
out, a violation of 18 U.S.C. § 956,’ which prohibits conspiracies to injure
persons or damage property outside the United States." Chandia I, 514
F.3d at 372 (alterations omitted). The statute provides in pertinent part:
Whoever provides material support or resources . . . , knowing or
intending that they are to be used in preparation for, or in carry-
ing out, a violation of [§] 956 . . . , or attempts or conspires to
do such an act, shall be fined under this title, imprisoned for not
more than 15 years, or both . . . .
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 rele-
vant part of that statute provides:
Whoever knowingly provides material support or resources to a
foreign terrorist organization, or attempts or conspires to do so,
shall be fined under this title or imprisoned not more than 15
years, or both . . . .
18 U.S.C. § 2339B(a)(1).
 UNITED STATES v. CHANDIA 5
At Chandia’s trial, the government advanced "two basic sets
of allegations against [him]": (1) "Chandia, at the urging of
Ali Timimi, traveled to Pakistan in November 2001 to attend
an LET training camp"; and (2) "between February 2002 and
April 2003, Chandia provided material support to Mohammad
Ajmal Khan . . . , an LET official whom Chandia allegedly
met while in Pakistan." Id. More specifically, the prosecution
maintained that Chandia provided material support during
Khan’s trips to the United States "to secure high-tech equip-
ment and other materials for LET" by "picking up . . . Khan
at the airport, providing him access to a computer and e-mail
at Chandia’s residence, and assisting [Khan] in shipping pain-
tballs to Pakistan for LET use in military training operations."
Id.

By its verdict of June 6, 2006, the jury acquitted Chandia
of the § 2339A substantive count of providing material sup-
port to terrorists.2 The jury convicted him, however, of the
§ 2339A conspiracy count plus the § 2339B substantive and
conspiracy counts of providing material support to a foreign
terrorist organization (collectively, the "material support con-
victions").

B.

Prior to Chandia’s first sentencing hearing, the probation
officer prepared the presentence report (the "PSR"), recom-
mending imposition of the terrorism enhancement.3 Absent
2
As we have observed and the government has conceded, "the acquittal
on the one count serves as a rejection of [the] contention that Chandia
attended an LET training camp while in Pakistan." Chandia I, 514 F.3d
at 370.
3
The terrorism enhancement applies when the "offense is a felony that
involved, or was intended to promote, a federal crime of terrorism." USSG
§ 3A.1.4(a) (2005). As we explained in Chandia I,
[t]he key term, "a federal crime of terrorism," is defined to con-
sist of two elements: (1) the commission of one of a list of speci-
6 UNITED STATES v. CHANDIA
the enhancement, the advisory Guidelines range for Chandia,
who had no criminal history, would have been 63 to 78
months in prison. See Chandia I, 514 F.3d at 370. Application
of the terrorism enhancement, however, elevated Chandia’s
advisory Guidelines range to 360 months to life. Id. Although
the PSR accurately reflected that the material support convic-
tions satisfied the first element required for the enhancement
— conviction of an enumerated felony — it provided no
explanation concerning the second element — specific intent.
Rather, the PSR merely concluded that the material support
convictions "meet the requirements" for the terrorism
enhancement. J.A. 895.4

Chandia objected to the PSR, disputing several of its fac-
tual assertions and observing that it failed to adequately
address the application of the terrorism enhancement.5 During

fied felonies, which includes each of the material support
offenses at issue in this case, and (2) a specific intent require-
ment, namely, that the underlying felony was "calculated to influ-
ence or affect the conduct of government by intimidation or
coercion, or to retaliate against government conduct."
514 F.3d at 375-76 (quoting definition given to "a federal crime of terror-
ism" 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.
4
Citations herein to "J.A.___" refer to the contents of the Joint Appen-
dix filed by the parties in this appeal.
5
We previously summarized Chandia’s objections to the PSR as fol-
lows:
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. [Further], he
maintained that LET also engaged in non-terrorist activity such
as the operation of schools and hospitals. [He] admitted to trans-
porting [Mohammad] Khan, but he denied knowing that Khan
was in the United States on LET business. Chandia argued that
the computer that Khan used to order equipment did not belong
 UNITED STATES v. CHANDIA 7
the first sentencing hearing, conducted in August 2006, the
district court "did not explicitly state that the terrorism
enhancement applied," but utilized the enhancement implic-
itly by determining that the Guidelines range was "properly
assessed at . . . 360 months to life." See Chandia I, 514 F.3d
at 371 (internal quotation marks omitted). The court neverthe-
less varied downward to a below-Guidelines sentence of 180
months in prison, the statutory maximum for a single material
support conviction.

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 enhance-
ment "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 ter-
rorism enhancement applied, it was to "identify the evidence
in the record that supports its determination." Id.

C.

No modifications were made to the PSR after the first
remand, and Chandia did not file any new objections. At his

to Chandia personally but rather was in Chandia’s residence and
was used by multiple family members. Chandia admitted that he
helped Khan ship approximately 50,000 paintballs to Pakistan,
but denied purchasing or "clearing" the shipment.
Chandia II, 395 F. App’x at 56 (citations omitted).
8 UNITED STATES v. CHANDIA
second sentencing hearing in April 2008, Chandia neverthe-
less reminded the district court of his previously filed objec-
tions 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 [visited websites] of LET; he spent time in
Pakistan and visited LET offices in Pakistan; he met
with [Mohammad] Khan, a "known leader of the
LET"; he picked Khan up from the airport and his
phone number served as Khan’s contact; his com-
puter was used to order Kevlar supplies from Can-
ada; he took Khan to the airport to "make
arrangements to buy other goods and military equip-
ment"; and he helped ship paintballs to Pakistan.

Chandia II, 395 F. App’x 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 F. App’x at 57. The
court resentenced Chandia to 180 months in prison because
the material support convictions "were part and parcel of con-
duct that was charged in all three offenses." Id. (internal quo-
tation 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 F.
App’x 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
 UNITED STATES v. CHANDIA 9
(internal quotation marks omitted). That is, the court was
obliged to "indicate that it has considered Chandia’s objec-
tions to the PSR and rejected them," and "then explain how
its resolution of Chandia’s objections affects" its finding of
specific intent for the terrorism enhancement. Id. We dis-
cussed examples of specific factual disputes that could bear
on the application of the terrorism enhancement, including: (i)
whether Chandia knew that Mohammad Khan was a LET
leader; (ii) whether Chandia intended to provide material sup-
port to advance LET’s known terrorist or non-terrorist pur-
poses; and (iii) whether Yong Kwon and Chandia discussed
the training and gear requirements for the LET training camp
in Pakistan.

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 F. App’x at 60. For
instance, Chandia’s knowledge that LET had a terrorist pur-
pose 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.

D.

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 consid-
ered each of Chandia’s objections to the PSR, sustaining sev-
eral of them and ordering the challenged paragraphs amended
or deleted. Otherwise, the court overruled the objections and
10 UNITED STATES v. CHANDIA
adopted the PSR’s findings. The parties then agreed to pro-
pose 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 con-
sent 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 convic-
tion 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] find-
ings 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] numer-
ous 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:

• A January 12, 2001 email Chandia received "with
the subject line ‘training’ . . . said, ‘Brother, you
requested some information about training and
fighting inshallah.[ ] The two groups we have
contact with are [LET and Mujihideen] the initial
training at lashkar is three weeks, after that there
are 3- or 4- month commando training
courses,[’]" J.A. 844-45;

• Husnain Awan’s testimony that he and Chandia
"looked at the websites online which described
 UNITED STATES v. CHANDIA 11
information about LET’s military operations in
the Kashmir," id. at 845;

• Suhail Hafiz’s testimony that Chandia "did
research for him on the mindset of violent
extremists, and in doing so, obtained a significant
amount of material on the LET," id.;

• The testimony of Chandia’s brother that Chandia
"must have accessed the LET websites because
they were talking about Kashmir all the time,"
id.;

• An email sent to Chandia and others on March
22, 2002, forwarded "a link to the Taiba-
Bulletin[,] the official online news site for LET[,]
where LET publicized its attacks against Indian
forces," id.;

• Exhibits "recovered from [Chandia’s] computer
. . . contained selected text about LET’s violent
acts against the government of India," id.;

• A March 9, 2001 document recovered from
Chandia’s computer "read, ‘[LET], the military
wing of the Pakistan-based Markaz Dawa wal
Irshad (MDI), has been behind most of the recent
incidents of terrorism in Jammu and Kashmir,’"
id. at 845-46;

• Posters on the wall in the "LET office in Lahore
where [Chandia visited] depict[ed] Indian and
American flags with daggers going through them
as well as posters with weapons and machine
guns on them," id. at 846; and

• A news story" recovered from Chandia’s com-
puter "reported that the United States government
12 UNITED STATES v. CHANDIA
had designated LET as a foreign terrorist organi-
zation," id.

The court then proceeded to identify and describe the evi-
dence supporting the proposition that Chandia knew Moham-
mad Khan to be an LET leader, including:

• The fact that Chandia twice "went to the same
LET office in Lahore that was used by [Ali]
Timimi’s disciples, [including Khan], as a gate-
way to the LET training camps," J.A. 847;

• Yong Kwon’s testimony that, before Chandia left
the LET office in Lahore, he said "goodbye to
Abu Osama[,] the LET official who facilitated
Kwon’s training with LET and shared a driver
with both Khan and [another man] who was in
charge of the LET office," id.;

• Khwaja Mahmood Hasan’s testimony that he
"had a conversation with [Chandia] and Khan on
the driveway of his parents’ home and . . . that
‘from the conversation I [Hasan] understood that
he [Khan] was here for LET business." During
that same conversation, Hasan "warned Khan to
‘be careful’ because a group of Pakistanis in New
York recently was ‘caught trying to smuggle out
night vision goggles,’" id. at 848;

• The fact that Chandia and Khan "always made
sure to maintain a very low profile in their com-
munications. They never used each other’s real
names. They kept messages short and cryptic.
They wrote in ways that would be hard to deci-
pher," id.;

• A June 9, 2002 email Chandia sent to Khan "with
the subject line, ‘Re: your friend,’ which began,
 UNITED STATES v. CHANDIA 13
‘ . . . Brother, I hope all is well. Where are you?
How are the brothers? How is the situation? I
have heard everything got shut. Is that true? I
hope not,’" id. at 849;

• In assisting Khan with the shipment of paintballs
to Pakistan, "Chandia sent Khan an e-mail in
which he said, ‘Dude, it’s done. Here is response
I received from the guy.’ The response that
Chandia forwarded to Khan[,] an e-mail from . . .
IGS Shipping, reading in part, ‘I just spoke to
Saudi Cargo General Manager. Saudi Washing-
ton Dulles will send immediately to Saudi Lahore
a telex asking them to release the shipment to the
consignee.’ The next day Chandia e-mailed Kahn
to tell him, ‘You will receive the document
today. Just be patient for the next 8 to 9 hours,’"
id. at 853; and

• A computer at the school where Chandia worked
"was used on at least two occasions by username
P-S-I-N-G-H 111@hotmail.com between March
21, 2003, and May 18, 2003. The hotmail
account belonged to Khan, but Khan had already
left the United States to travel to Pakistan by
[March 21, 2003]," id.

The district court concluded by summarizing the signifi-
cance of its factual findings, observing that

it is clear that [Chandia] knew LET was an organiza-
tion that engaged in repeated acts of violence against
the government of India, that [Chandia] knew that
Mohammad Khan was an LET leader, that
[Chandia], in his actions here and his support,
intended to influence or affect government conduct
by intimidation or coercion or to retaliate against
government conduct.
14 UNITED STATES v. CHANDIA
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 any-
thing 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 sen-
tence 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).

II.

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, fail-
ing to consider the [18 U.S.C.] § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to ade-
quately explain the chosen sentence — including an explana-
tion 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 find-
ings 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 stan-
 UNITED STATES v. CHANDIA 15
dard 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).

III.

Chandia advances two sets of contentions in this appeal,
both premised on the notion that the district court committed
procedural errors at sentencing. First, he contends that the
court erroneously applied the terrorism enhancement. In par-
ticular, Chandia asserts that the court should have utilized the
more defendant-favorable clear and convincing standard of
proof. He also maintains that certain of the court’s factual
findings were clearly erroneous. Otherwise, he argues that the
facts relied on by the court fail to establish the requisite intent
for the terrorism enhancement.

Second, Chandia contends that, notwithstanding the suffi-
ciency of the factual predicates for the enhancement, its appli-
cation 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 his-
tory 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.

A.

1.

First, Chandia faults the sentencing court for failing to
decide the applicable standard of proof for the terrorism
16 UNITED STATES v. CHANDIA
enhancement.6 He maintains that due process requirements
demand a higher standard of proof — clear and convincing
evidence as opposed to a preponderance — because the
enhancement significantly increases his advisory Guidelines
range (from a range of 63 to 78 months to a range of 360
months to life). For this proposition, Chandia relies primarily
on a Third Circuit decision quoting Supreme Court dicta that
a Guidelines enhancement that exponentially increases the
recommended sentence "functions as ‘a tail which wags the
dog of the substantive offense’" and therefore should be
proved by clear and convincing evidence. See United States
v. Kikumura, 918 F.2d 1084, 1100-01 (3d Cir. 1990) (quoting
McMillan v. Pennsylvania, 477 U.S. 79, 88 (1986)). The
Third Circuit has since overruled Kikumura, however, relying
on United States v. Booker, 543 U.S. 220 (2005). In so ruling,
the court of appeals observed that, although "concerns about
the ‘tail wagging the dog’ were valid [in McMillan] under a
mandatory guideline system[, they] were put to rest when
Booker rendered the Guidelines advisory." United States v.
Fisher, 502 F.3d 293, 305 (3d Cir. 2007). "[U]nder an advi-
sory system," the court explained, "facts relevant to enhance-
ments . . . no longer increase the maximum punishment, but
[will] simply inform the judge’s discretion as to the appropri-
ate sentence." Id. (internal quotation marks and alteration
omitted).

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 before
using it as a basis for determining a defendant’s sentence."
United States v. Grubbs, 585 F.3d 793, 802 (4th Cir. 2009).
6
Although the district court did not explicitly identify the standard of
proof, it presumably decided, as it did on the first remand, that the terror-
ism enhancement applied regardless of whether the government had to
prove it by a preponderance or by clear and convincing evidence. We pre-
viously declined to address the question because in the prior appeals we
were not "presented with relevant findings." Chandia I, 514 F.3d at 376
n.4; see also Chandia II, 395 F. App’x at 57 n.1.
 UNITED STATES v. CHANDIA 17
Rather, "[s]entencing courts continue to exercise their long-
standing authority to hear the evidence, and consider any evi-
dence at sentencing that ‘has sufficient indicia of reliability.’"
Id. (quoting USSG § 6A1.3(a)). We are entirely unpersuaded
by Chandia’s attempt to limit Grubbs to its facts, in that
Booker nullified "[w]hatever theoretical validity may have
attached to the McMillan [tail-wagging-the-dog] exception."
Grubbs, 585 F.3d at 801. Accordingly, a preponderance of the
evidence is the appropriate standard of proof for establishing
the requisite intent for the terrorism enhancement. And, as
explained further herein, that standard was satisfied here.

2.

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," maintain-
ing 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 plausi-
ble in light of the record viewed in its entirety." See Anderson
v. Bessemer City, 470 U.S. 564, 574 (1985).
18 UNITED STATES v. CHANDIA
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 con-
versation between the three men in February 2002. We previ-
ously 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 F. App’x at 59. In
fact, "Hasan conceded that Khan did not indicate to Hasan his
purpose for being in the United States, nor did Hasan specu-
late on Khan’s purpose in Chandia’s presence." Id. Neverthe-
less, 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 applica-
tion of sentencing enhancement). Put simply, "[w]here there
are two permissible views of the evidence, the [court’s]
choice between them cannot be clearly erroneous." Anderson,
470 U.S. at 574.

3.

Chandia also maintains that the sentencing court’s factual
findings, if not clearly erroneous, were nevertheless insuffi-
cient to establish the specific intent necessary for the terror-
ism 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 con-
victions — facts rejected in the prior appeals as inadequate to
 UNITED STATES v. CHANDIA 19
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 F. App’x 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 sup-
port to Mohammad Khan was to "to influence or affect gov-
ernment 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 F. App’x 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 req-
uisite 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 testi-
mony 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
20 UNITED STATES v. CHANDIA
disputes enabled the court to find "motives attributable to
Chandia under the terrorism enhancement." See Chandia II,
395 F. App’x 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 prepon-
derance 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 defen-
dant had "close connections with Hizballah officials," and his
testimony indicated that he was "well aware of Hizballah’s
terrorist activities and goals and that he personally supported
this aspect of Hizballah"), vacated on other grounds, 543 U.S.
1097 (2005).

B.

Finally, Chandia contends that the district court committed
procedural errors in imposing a sentence amplified by the ter-
rorism 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
 UNITED STATES v. CHANDIA 21
§ 3553(a) factors. Indeed, Chandia’s very able counsel inter-
jected 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) fac-
tors 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 resen-
tencing 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 defen-
dant 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 enhance-
ment, 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 objec-
tions to its factual findings. Cf. Muhammad, 478 F.3d at 250-
51 (concluding defendant was prejudiced by denial of allocu-
tion in post-Booker remand, because court had more discre-
tion 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 fashion-
ing 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, par-
ticularly when imposing a [below]-Guidelines sentence." See
22 UNITED STATES v. CHANDIA
United States v. Powell, 650 F.3d 388, 395 (4th Cir. 2011)
(internal quotation marks omitted). Chandia nevertheless con-
tends that the court failed to consider that he was the least cul-
pable among his coconspirators yet received a greater
sentence on the material support convictions. He relies on
other cases where, according to him, the terrorism enhance-
ment applied but the defendants received lesser sentences
even though their conduct was more egregious. As we have
explained, however, comparing the sentences of other defen-
dants with dissimilar offenses, circumstances, and criminal
histories is unavailing. See United States v. Abu Ali, 528 F.3d
210, 267 (4th Cir. 2008). Indeed, two of Chandia’s cocon-
spirators were convicted after a bench trial of numerous
offenses and sentenced, respectively, to eighty-five years and
life plus sixty-five years. See J.A. 1010-11.7 In any event,
"[e]ven if [Chandia’s] sentence is more severe than average,
that fact does not mean that it was unwarranted." See United
States v. Rivera-Santana, 668 F.3d 95, 106 (4th Cir. 2012).
Notably, although Chandia’s advisory Guidelines range was
360 months to life, the court varied downward by 15 years to
a 180-month sentence. Hence, the court plainly weighed the
mitigating and aggravating factors and decided that the 180-
month sentence served "the § 3553(a) factors, on a whole."
See Gall v. United States, 552 U.S. 38, 51 (2007). In these cir-
cumstances, we are satisfied that the court did not err.

IV.

Pursuant to the foregoing, we reject Chandia’s appellate
contentions and affirm.

AFFIRMED
7
On this record, Mohammad Khan, who was certainly another cocon-
spirator, "is currently serving an 8-year prison term in the United King-
dom," and the United States "is interested in prosecuting [him] should he
be extradited." J.A. 1010.