Appellee-Cross-Appellant the United States of America appeals from a judgment of conviction and sentence of the United States District Court for the Eastern District of New York (Charles P. Sifton, Judge) in which the district court denied the United States's request for imposition of the terrorism enhancement, which applies to felonies that "involved, or [were] intended to promote, a federal crime of terrorism," U.S.S.G. § 3A1.4, to each of Defendant-Appellant-Cross-Appellee Khalid Awan's three counts of conviction. We conclude that the district court committed legal error by failing to consider application of the "intended to promote" prong of Section 3A1.4 and by misconstruing the "involved" prong, as both apply to Awan's conduct. Accordingly, we vacate Awan's sentence and remand for further proceedings in the district court.
The opinion of the court was delivered by: Debra Ann Livingston, Circuit Judge
Argued: December 10, 2008
Before: POOLER, RAGGI, and LIVINGSTON, Circuit Judges.
Cross-Appellant the United States appeals from a judgment of conviction and sentence of the United States District Court for the Eastern District of New York (Charles P. Sifton, Judge) finding the Sentencing Guidelines' terrorism enhancement, which applies to felonies that "involved, or [were] intended to promote, a federal crime of terrorism," U.S.S.G. § 3A1.4, inapplicable to all of Cross-Appellee Khalid Awan's counts of conviction.*fn1 Because we conclude that the district court misconstrued both prongs of § 3A1.4, we vacate the judgment of the district court and remand for resentencing.
At the conclusion of a three-week jury trial in the United States District Court for the Eastern District of New York, the Cross-Appellee Khalid Awan ("Awan") was convicted of (1) conspiring to provide material support and resources to be used in a conspiracy prohibited by 18 U.S.C. § 956(a), to wit, a conspiracy to commit murder, kidnapping, or maiming outside the United States, in violation of 18 U.S.C. § 2339A; (2) providing material support and resources to be used in such a conspiracy, also in violation of 18 U.S.C. § 2339A; and (3) the international transfer of money with the intent to promote specific unlawful activity, to wit, murder and the destruction of property by means of explosive or fire as prohibited by India Penal Code sections 300 and 435, in violation of 18 U.S.C. § 1956(a)(2)(A).
The following facts are drawn from the evidence presented at trial, and are presented in the light most favorable to the government. See United States v. Ivezaj, 568 F.3d 88, 90 (2d Cir. 2009). The Khalistan Commando Force ("KCF") is a Sikh terrorist organization responsible for carrying out murders and bombings in India. The organization seeks to compel the Indian government to allow the creation of an independent Sikh state in the Punjab region of India. The KCF has engaged in bombings of Indian security forces, buses, trains, and civilian economic targets resulting in the deaths of thousands in India since the beginning of the organization's existence. The KCF is funded by means of illegal activities, such as bank robbery and kidnapping, as well as through contributions of supporters in North America and Europe. Since 1989, the KCF has been led by Paramjit Singh Panjwar ("Panjwar"). Awan stated to others on several occasions that he was a close friend of Panjwar and that he knew Panjwar was a leader of the KCF. Awan was also wiretapped by the government making phone calls to Panjwar from the Metropolitan Detention Center ("MDC") in Brooklyn, New York.*fn2 Awan told a fellow inmate at the MDC, Harjit Singh ("Harjit"), that he knew that Panjwar was involved in several hundred bombings, a plot to attack Indian Prime Minister Indira Gandhi in 1984,*fn3 and attacks on Indian security forces in India, and that the KCF received training at camps in Pakistan run by the Pakistani intelligence service.
From 1998 through 2001, using a variety of methods, Awan served as a conduit for the transfer of funds from KCF supporters in the United States to Panjwar. In particular, Awan told Harjit and admitted to investigators that he had transferred money to Panjwar after meeting with a number of sources on several occasions. Two members of the KCF funding network in the United States who cooperated with the government, Gurbax Singh ("Gurbax") and Baljinder Singh ("Baljinder"), also testified that they both had delivered money for KCF to Awan on different occasions. Baljinder later spoke to Panjwar on the phone about delivering the money to Awan, and Panjwar told him that Awan was "a good friend" of his and a "trusted person" who had done "this work" already. Trial Tr. 447. Awan told Harjit and investigators that he used the bank accounts of several businesses to transfer the money to Panjwar.
In or around 2003 and 2004, while both were detained at the MDC, Awan attempted to recruit Harjit to travel to Pakistan and receive explosives training at a KCF camp. Awan discussed with Harjit on several occasions traveling to Pakistan to meet with Panjwar and receiving training in bombmaking and military activities. Government investigators also wiretapped phone conversations between Awan and Panjwar in which Awan introduced Harjit to Panjwar and Harjit and Panjwar discussed Harjit's traveling to Pakistan for military training.
In its proposed calculation of Awan's Sentencing Guidelines, the Probation Department recommended an adjusted offense level of 45 for Awan's 18 U.S.C. § 2339A (material support of terrorism) counts, which included the application of a twelve-level terrorism adjustment pursuant to U.S.S.G. § 3A1.4. The Department also recommended an adjusted offense level of 36 for the 18 U.S.C. § 1956 (international money transfer) count, which also included the terrorism adjustment. This yielded an effective Guidelines sentence of 45 years, the statutory maximum sentence for Awan's counts. See United States v. Awan, No. CR-06-0154, 2007 WL 2071748, at *1 (E.D.N.Y. July 17, 2007).
The terrorism enhancement, U.S.S.G. § 3A1.4, provides as follows:
(a) If 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 ...