[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 05-14631 U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ October 31, 2008
THOMAS K. KAHN
D. C. Docket No. 03-00083-CR-CDL-5 CLERK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDDIE MILTON GAREY, JR.,
a.k.a. Miles Garey, et al.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(October 31, 2008)
Before BIRCH and BLACK, Circuit Judges, and PRESNELL,* District Judge.
PER CURIAM:
*
Honorable Gregory A. Presnell, United States District Judge for the Middle District of
Florida, sitting by designation.
Eddie Milton Garey, Jr., appealed his 360-month sentence for 27 felony
counts arising from his unsuccessful attempts to extort money by threatening to
bomb various buildings in and around Macon, Georgia.1 Garey argued the district
court erred when it (1) found he knowingly and voluntarily consented to represent
himself at trial; (2) enhanced his sentence for terrorism, pursuant to U.S.S.G.
§ 3A1.4; and (3) based the enhancement on its own factual findings. He further
contended (4) his sentence was unreasonable. Our Court, en banc, found Eddie
Milton Garey, Jr., waived his right to counsel. United States v. Garey, 540 F.3d
1253 (11th Cir. 2008) (en banc). It remanded to this panel for consideration of the
sentencing issues. United States v. Garey, __ F.3d __ (11th Cir. 2008) (en banc).
The panel having reviewed the record affirms the sentence.
I.
Garey’s offense level was increased by 12 levels and his criminal history
category from III to VI, pursuant to U.S.S.G. § 3A1.4, based on the conclusion in
the Presentence Report that Garey was convicted of a felony that “involved or was
intended to promote a ‘federal crime of terrorism.’” United States v. Garey, 383
F. Supp. 2d 1374, 1377 (M.D. Ga. 2005). Garey argues this enhancement requires
1
Detailed facts and an explanation of Garey’s objections in the district court to his
sentence are set forth in United States v. Garey, 383 F. Supp. 2d 1374 (M.D. Ga. 2005).
1
the offense conduct to transcend national boundaries because the definition of a
“federal crime of terrorism” is located in 18 U.S.C. § 2332b, which prohibits
“[a]cts of terrorism transcending national boundaries.” See 18 U.S.C. § 2332b; see
also United States v. Salim, 287 F. Supp. 2d 250, 354 (S.D.N.Y. 2003) (“[A]
‘Federal crime of terrorism’ is one that meets the two prongs set forth at 18 U.S.C.
§§ 2332b(g)(5)(A) and (B), and that involves conduct that transcends national
boundaries.”). Garey’s conduct was purely domestic, so he contends the
enhancement should not be applied.
“The district court’s interpretation of the sentencing guidelines is subject to
de novo review on appeal, while its factual findings must be accepted unless
clearly erroneous.” United States v. Jordi, 418 F.3d 1212, 1214 (11th Cir. 2005)
(quotation omitted).
A. Plain Language
“[T]he language of the Sentencing Guidelines is to be given its plain and
ordinary meaning.” United States v. Tham, 118 F.3d 1501, 1506 (11th Cir. 1997).
The Guidelines provide a 12-level enhancement for terrorism if the defendant’s
“offense is a felony that involved, or was intended to promote, a federal crime of
terrorism . . . .” U.S.S.G. § 3A1.4(a). The Guidelines define “federal crime of
terrorism” by referencing 18 U.S.C. § 2332b(g)(5). U.S.S.G. § 3A1.4, comment.
2
(n.1). Thus, “the term ‘Federal crime of terrorism’ means an offense that – (A) is
calculated to influence or affect the conduct of government by intimidation or
coercion, or to retaliate against government conduct; and (B) is a violation of . . .
[18 U.S.C. §] 2332a (relating to use of weapons of mass destruction) . . . .” 18
U.S.C. § 2332b(g)(5).
Based on this plain language, there are only two elements for determining
whether an offense is a federal crime of terrorism. First, the offense must be
intended “to influence or affect the conduct of government.” 18 U.S.C.
§ 2332b(g)(5)(A). In this case, Garey’s offense conduct meets this element
because he made numerous bomb threats intending to influence the government
such that it would pay him money in order to stop making bomb threats. Second,
the offense must be in violation of one of the enumerated offenses, including a
violation of 18 U.S.C. § 2332a. 18 U.S.C. § 2332b(g)(5)(B)(i). Here, this element
is met because Garey was convicted on several counts of threatening to use a
weapon of mass destruction, in violation of 18 U.S.C. § 2332a(a)(2).
Although Garey attempts to incorporate a third element into the definition
of “federal crime of terrorism,” namely that the offense conduct transcend national
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boundaries,2 this element is not included in § 2332b(g)(5)’s definition. “[T]he
1996 and 1997 amendments to the sentencing guidelines removed any requirement
that international terrorism be implicated by the offense of conviction.”3 United
States v. Hale, 448 F.3d 971, 988 n.1 (7th Cir. 2006); see also United States v.
Nichols, 169 F.3d 1255, 1270 n.3 (10th Cir. 1999) (noting that but for ex post
facto concerns, § 3A1.4 would have applied to a purely domestic conspiracy to
bomb the Alfred P. Murrah building in Oklahoma City).
We are further convinced an international element is not present in § 3A1.4
by the anomaly that would result from its imposition. Currently, Application Note
4 allows for an upward departure even if only one of the two elements of the
definition is met. U.S.S.G. § 3A1.4, comment. (n.4); 18 U.S.C. § 2332b(g)(5). If
an international element was imposed, a defendant whose offense conduct meets
both elements of the definition of “federal crime of terrorism” but does not
transcend national boundaries would not be eligible for an enhancement.
2
Although a defendant’s conduct must transcend national boundaries to sustain a
conviction under § 2332b, “the Sentencing Guidelines do not predicate an upward adjustment on
a violation of section 2332b.” United States v. Harris, 434 F.3d 767, 773 (5th Cir. 2005).
3
Section 730 of the Antiterrorism and Effective Death Penalty Act of 1996, 110 Stat.
1303, required the Commission to amend the Sentencing Guidelines so that the adjustment in
§ 3A1.4 (formerly relating to “international terrorism”) applied more broadly to “federal crimes
of terrorism,” as defined in 18 U.S.C. § 2332b(g)(5). The Commission promulgated this
amendment as an emergency amendment in 1996, then re-promulgated it as a permanent
amendment in 1997. See Guidelines Manual app. C, amends. 525, 565
4
B. This Court’s Precedent Analyzing U.S.S.G. § 3A1.4
This Court has twice considered U.S.S.G. § 3A1.4, and both times affirmed
its application to purely domestic conduct. In United States v. Mandhai, 375 F.3d
1243 (11th Cir. 2004), the defendant planned “to bomb electrical transformers in
Florida in retaliation for the U.S. government’s support of Israel and other
countries that oppress Muslims. . . . [and] to contact the government after the
attack and demand that it cease supporting countries that oppose Muslims.” Id. at
1246. Mandhai pled guilty to conspiracy to damage and destroy electrical power
stations by means of fire and explosives, in violation of 18 U.S.C. §§ 844(i) and
(n). Id. at 1246-47. On appeal, this Court affirmed the district court’s imposition
of the terrorism enhancement under § 3A1.4 even though there was no indication
the defendant’s conduct transcended national boundaries. See id. at 1250.
In United States v. Jordi, 418 F.3d 1212 (11th Cir. 2005), the defendant
pled guilty to attempted arson, in violation of 18 U.S.C. § 844(i), based on his plan
to destroy abortion clinics using explosive devices. Id. at 1213-14. The
government moved for an upward sentence departure, arguing “Jordi’s crime
involved planned terrorist acts intending to intimidate or coerce a civilian
population.” Id. at 1214; U.S.S.G. § 3A1.4, comment. (n.4). The district court
denied the motion, finding that “‘terrorism as referred to in section 3A1.4(a) of the
5
Guidelines Manual requires a showing that the defendant’s crime transcended
national boundaries.’” Jordi, 418 F.3d at 1214.
Addressing that finding on appeal, this Court cited Mandhai and said it “has
arguably answered that question.” Id. at 1216 n.2. We nevertheless declined to
address the argument, noting that the determination of whether an upward
departure is warranted under “Application Note 4 . . . does not require an
interpretation of the term ‘federal crime of terrorism’ at all.” Id. at 1216. This
Court held “the district court was authorized to depart pursuant to the application
note,” which did not require that the offense conduct transcend national
boundaries. Id. at 1217.
In summary, based on the plain language of U.S.S.G. § 3A1.4 and 18 U.S.C.
§ 2332b(g)(5) and this Court’s prior analysis of U.S.S.G. § 3A1.4, we conclude the
definition of a “federal crime of terrorism” does not require the offense conduct to
transcend national boundaries. Therefore, the district court did not err in applying
the enhancement to Garey’s guideline score.
II.
Garey argues the district court erred in light of United States v. Booker, 543
U.S. 220, 125 S. Ct. 738 (2005), when it enhanced his guideline score for
terrorism because the issue of whether his conduct constituted a “federal crime of
6
terrorism” was based on its own factual findings and was not determined by the
jury.
This Court reviews the sentence for plain error because Garey did not object
on this basis in the district court. See United States v. Rodriguez, 398 F.3d 1291,
1298 (11th Cir. 2005). In order for this Court to correct plain error: (1) there must
be error; (2) the error must be plain; and (3) the error must affect substantial rights.
Id. “If all three conditions are met, an appellate court may then exercise its
discretion to notice a forfeited error, but only if (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” Id. (quotation
omitted).
If the district court applies the Guidelines as advisory, nothing in Booker
prevents the court from making additional factual findings at sentencing. See
United States v. Chau, 426 F.3d 1318, 1323-24 (11th Cir. 2005). In this case, the
district court treated the Guidelines as advisory, so, to the extent the district court
made factual findings regarding whether Garey’s offense conduct was a federal
crime of terrorism, the district court did not err under Booker. United States v.
Garey, 383 F. Supp. 2d 1374, 1377. Accordingly, Garey has not satisfied the plain
error test.
7
III.
Finally, Garey argues his 360-month sentence was unreasonable. After
Booker, a district court must consider the correctly calculated sentencing range
under the Guidelines and the factors set forth in 18 U.S.C. § 3553(a) in
determining a reasonable sentence. See United States v. Winingear, 422 F.3d
1241, 1246 (11th Cir. 2005); United States v. Talley, 431 F.3d 784, 786 (11th Cir.
2005) (per curiam). “[N]othing in Booker or elsewhere requires the district court
to state on the record that it has explicitly considered each of the § 3553(a) factors
or to discuss each of the § 3553(a) factors.” United States v. Scott, 426 F.3d 1324,
1329 (11th Cir. 2005). Instead, indications in the record that the district court
considered facts and circumstances falling within § 3553(a)’s factors will suffice.
Id. at 1329-30; Talley, 431 F.3d at 786.
This Court’s “[r]eview for reasonableness is deferential. . . . and when the
district court imposes a sentence within the advisory Guidelines range, we
ordinarily will expect that choice to be a reasonable one.” Talley, 431 F.3d at
788. “[T]he party who challenges the sentence bears the burden of establishing
that the sentence is unreasonable in the light of both [the] record and the factors in
section 3553(a).” Id.
8
On appeal, Garey claims his sentence is unreasonable because the district
court “gave no weight to the fact that [he] suffers from a recognized mental illness
of paranoid schizophrenia,” and that “[n]ot a single person was murdered, raped,
robbed or assaulted” as a result of his offenses. There is no indication the district
court failed to consider these issues in determining what sentence to impose. By
sentencing Garey to 360 months’ imprisonment, the district court went below the
advisory Guidelines range and, in essence, gave him the equivalent of a 6-level
downward departure from his offense level, from a level 47 to a level 41, and a 3-
category departure in his criminal history category, from a category VI to a
category III, and then sentenced him to the low-end of the resulting Guidelines
range. United States v. Garey, 383 F. Supp. 2d 1374, 1378-80 (11th Cir. 2005).
In doing so, the court explicitly stated on the record that it considered, among
other things, several of the § 3553(a) factors in reaching that decision. Id. at 1379.
Garey has not met his burden of establishing the sentence was unreasonable.
Accordingly, we affirm Garey’s sentence.
AFFIRMED.
9