United States v. Garey

[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.

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

3
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.