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United States v. Awan

July 17, 2007

UNITED STATES OF AMERICA
v.
KHALID AWAN, DEFENDANT.



The opinion of the court was delivered by: Sifton, Senior Judge

MEMORANDUM OPINION AND ORDER

After a jury trial, defendant Khalid Awan was found guilty on December 20, 2006 of (1) one count of conspiring to provide material support and resources, knowing and intending that such support would be used in preparation for and in carrying out a conspiracy to murder, kidnap or maim a person or persons outside of the United States, in violation of 18 U.S.C. § 2339A and 18 U.S.C. § 956(a); (2) one count of providing material support and resources, knowing and intending that such support would be used in preparation for and in carrying out a conspiracy to murder, kidnap or maim a person or persons outside of the United States, in violation of 18 U.S.C. § 2339A and 18 U.S.C. § 956(a); and (3) one count of knowingly and intentionally transporting, transmitting and transferring monetary instruments and funds from a place in the United States to a place outside the United States, with the intention of promoting an offense against foreign nation, involving murder and destruction of property by means of explosive or fire in violation of 18 U.S.C. § 1956(a)(2)(A).*fn1 This matter is now before the Court to consider legal and factual objections to the Pre-Sentence Report. What follows are the findings of fact and conclusions of law with the respect to the application of the Sentencing Guidelines.*fn2

Background

The underlying facts of this case have been discussed at length in this Court's previous decisions and familiarity is presumed. Only those facts relevant to defendant's sentencing are discussed herein.

Pre-Sentence Report

The Pre-Sentence Report ("PSR") prepared by the Probation Department recommends an adjusted offense level of 45 with a criminal history category of VI.*fn3 This Guidelines calculation calls for a sentence of life imprisonment. However, since the statutory maximum for the crimes for which defendant was convicted is 45 years,*fn4 the effective Guidelines call for a sentence of 45 years in prison.

The government has requested the effective Guidelines sentence. Defendant objects and argues that the adjusted offense level should be 17 with a criminal history category of II, resulting in an effective Guidelines range of 27 to 33 months.*fn5

Terrorism Enhancement

Section § 3A1.4 states: "(a) If the offense is a felony that involved, or was intended to promote,*fn6 a federal crime of terrorism, increase [the offense level] by 12 levels. (b) In each such case, the defendant's criminal history category from Chapter Four (Criminal History and Criminal Livelihood) shall be Category VI." Thus, under a Guidelines sentence, a defendant convicted of a "federal crime of terrorism" is subject to enhancements impacting both his offense levels and his criminal history category.

Application Note 1 for this section states that a "federal crime of terrorism" has the meaning given that term in 18 U.S.C. 2332b(g)(5), which in turn defines a "federal crime of terrorism" as "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 . . . 2339A (relating to providing material support to terrorists)."

History of the Terrorism Enhancement

Guideline Section 3A1.4 took effect in November, 1995, replacing an older policy statement that allowed for upward departure "[i]f the defendant committed the offense in furtherance of a terroristic action." U.S.S.G. § 5K2.15 (deleted effective Nov. 1, 1995).

There is limited legislative or administrative history discussing how and why this sentencing enhancement came into being. The idea of creating a more formal terrorism enhancement to the Guidelines appears to have been initiated in 1991. On March 12, 1991, the Senate introduced S. 635, entitled the Comprehensive Violent Crime Control Act of 1991. Section 738 of that bill contained the following directions to the Sentencing Commission:

The United States Sentencing Commission is directed to amend its sentencing guidelines to provide an increase of not less than three levels in the base offense level for any felony, whether committed within or outside of the United States, that involves or is intended to promote international ...


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