The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge
Defendant YASSIN MUHIDDIN AREF ("Aref") was charged in each of thirty (30) counts in Superseding Indictment 04-CR-402 (N.D.N.Y.) with various violations of 18 U.S.C. §§ 1956(a)(3), 2339A, 2339B, 1546, 1001 & 2. Following a four-week jury trial, Aref was convicted of ten (10) of the thirty (30) counts with which he was charged. The facts underlying the allegations and convictions in this matter are set forth in the Court's February 22, 2004 Memorandum, Decision and Order addressing the defendants' post-trial motions. See 2/22/07 Mem., Dec. & Ord, dkt. # 440; United States v. Aref, 2007 WL 603508 (N.Y.N.D. Feb. 22, 2007). The Court assumes familiarity with that Memorandum, Decision and Order. Aref was sentenced on March 8, 2004, and this Memorandum, Decision and Order constitutes the Court's written decision of reasons for the sentence imposed.
As stated on the record at the time of sentencing, the Court has reviewed and considered all pertinent information including, but not limited to, the Presentence Investigation Report and addendum ("PSR"); submissions by counsel; the factors outlined in 18 U.S.C. § 3553; and the United States Sentencing Guidelines ("U.S.S.G." or "the Guidelines").*fn1 The Court adopts the factual information contained in the PSR and, as also stated on the record at the time of sentencing, gives Aref an exception to the factual content of the PSR.
III. GUIDELINE CALCULATION
The Court starts by addressing the Guidelines' calculation for Aref's convictions on Counts 20, 26, and 27. On these counts, Aref was convicted of one count of conspiracy to provide material support to a designated terrorist organization in violation of 18 U.S.C. § 2339B, and two counts of attempting, or aiding and abetting an attempt, to provide material support to a designated terrorist organization in violation of 18 U.S.C. §§ 2339B and 2. The United States Sentencing Guidelines Manual specifies that for violations of 18 U.S.C. § 2339B, the applicable guideline is U.S.S.G. § 2M5.3.
Under § 2M5.3(a), theBase Offense Level is 26. Section 2M5.3(b)(1), Specific Offense Characteristic, provides that "[i]f the offense involved the provision of . . . (E) funds or other material support or resources with the intent, knowledge, or reason to believe they are to be used to commit or assist in the commission of a violent act, increase by 2 levels." The facts at trial established that the material support in issue, that is, the laundering of funds from the confidential witness's ("CW") purported illegal importation of a Surface-to-Air Missile ("SAM"), was aided and abetted by Aref with the intent, knowledge, and belief that the SAM would be used in an attack on the Pakistani Ambassador in New York City. Thus, the offenses clearly involved the provision of material support with the intent, knowledge, or reason to believe that the material support would assist in the commission of a violent act. Accordingly, two points are added to the offense level.
Section 3A1.4 of the Guidelines, the terrorism enhancement, provides at subsection (a) that "[i]f the offense is a felony that involved, or was intended to promote, a federal crime of terrorism, increase by 12 levels; but if the resulting offense level is less than level 32, increase to level 32." This enhancement provides at subsection (b) that "[i]n each such case, the defendant's criminal history category from Chapter Four (Criminal History and Criminal Livelihood) shall be Category VI."
Pursuant to Application Note 1 of U.S.S.G. § 3A1.4, a "'[f]ederal crime of terrorism' has the meaning given that term in 18 U.S.C. § 2332b(g)(5)." That provision contains a two part definition: (1) the crime must be "an offense that is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct;" and (2) the crime must be listed in § 2332b(g)(5)(B). Both § 2339A, which is addressed next, and § 2339B are listed in § 2332b(g)(5)(B). Further, based upon statements by the CW during the course of the criminal venture, the evidence established that Aref committed the crimes believing that Jaish-e-Mohammad ("JEM"), the group that purportedly received the SAM, was intending to deploy it against the Pakistani Ambassador in order to teach the President of Pakistan a lesson. Thus, the evidence was sufficient to establish that the § 2339B offenses involved a federal crime of terrorism that was calculated to influence or affect the conduct of a government by intimidation or coercion, or to retaliate against government conduct. See United States v. Arnaout, 431 F.3d 994, 1001 (7th Cir. 2005)("where a defendant's offense or relevant conduct includes a federal crime of terrorism as defined in 18 U.S.C. § 2332b(g)(5), then § 3A1.4 is triggered."); United States v. Mandhai, 375 F.3d 1243, 1247 (11th Cir. 2004)("involved" means to "include"); United States v. Graham, 275 F.3d 490, 516 (6th Cir. 2001)(The word "involved" "signifies that a defendant's offense included a federal crime of terrorism; in other words, that a defendant committed, attempted, or conspired to commit a federal crime of terrorism as defined in 18 U.S.C. § 2332b(g)(5)."); see also United States v. Hale, 448 F. 3d 971, fn. 1 (5th Cir. 2005)("The definition of 'federal crime of terrorism' appears within a statutory section entitled 'Acts of terrorism transcending national boundaries,' . . . ." ); United States v. DeAmaris, 406 F. Supp.2d 748, 750 (S.D. Tex. 2005)(The term "government" as used in § 2332b(g)(5) includes both U.S. and foreign governments.). Therefore,12 levels are added under the terrorism enhancement, bringing the offense level to 40.
For the reasons set forth in the Presentence Report at paragraphs 84, 85, and 87, the Court finds that no other adjustments are warranted for the offense level. With regard to an obstruction of justice enhancement pursuant to § 3C1.1 of the Guidelines, the Court does not find that the enhancement applies simply because Aref chose to testify in his own behalf at trial. As evidenced by the guilty verdicts on some but not all of the counts, the jury evidently chose not to credit all of his testimony. However, this does not establish that he gave "false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake or faulty memory." United States v. Dunnigan, 507 U.S. 87, 94 (1993). Accordingly, the total offense level for the § 2339B convictions is 40.
Turning to criminal history, the application of the terrorism enhancement results in a presumptive criminal history category of VI for Aref. While the Second Circuit has held that "Congress and the Sentencing Commission had a rational basis for creating a uniform criminal history category for all terrorists under § 3A1.4(b)," the Circuit also noted in the same case that the district court "always has the discretion under § 4A1.3(b) to depart downward in sentencing." United States v. Meskini, 319 F.3d 88, 92 (2d Cir. 2003). Thus, even where the terrorism enhancement applies, a horizontal departure on criminal history is warranted under § 4A1.3(b) if a criminal history category of VI substantially over-represents the seriousness of the defendant's criminal history or the likelihood that the defendant will commit other crimes.
The Court finds that a criminal history category of VI does substantially over-represent the seriousness of Aref's criminal history. As indicated in the PSR at paragraphs 91-94, Aref has had no prior criminal adjudications and received zero total criminal history points as scored by the United States Probation Department. The credible and reliable evidence indicates that Aref came to this county with his family with a limited understanding of the English language and provided for his family until his arrest through lawful employment in various capacities. The information available to the Court indicates that he has been a good father and husband, and there is no indication that he has engaged in any other criminal activity in this country. Further, as indicated in the Presentence Report, Aref has been an imam at the local mosque in which capacity he has been a spiritual leader for many members of the community in Albany, New York. His positive impact on numerous members of the community is evidenced by ...