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United States v. Abu Khatallah

United States District Court, District of Columbia

June 20, 2018

AHMED SALIM FARAJ ABU KHATALLAH, also known as “Ahmed Abu Khatallah, ” also known as “Ahmed Mukatallah, ” also known as “Ahmed Bukatallah, ” also known as “Sheik, ” Defendant.



         After a seven-week trial, Ahmed Salim Faraj Abu Khatallah was convicted of four offenses related to the September 2012 attack on a United States diplomatic compound in Benghazi, Libya. Abu Khatallah's sentencing hearing is set for June 27, 2018. In advance of that hearing, he has raised several objections to the presentence investigation report prepared by the United States Probation Office. In particular, he contends that the report does not correctly calculate his recommended sentencing range under the U.S. Sentencing Guidelines. This opinion explains the Court's ruling on his objections.

         I. Trial Background

         Abu Khatallah was charged with eighteen offenses related to the attacks on the U.S. Special Mission in Benghazi and a nearby intelligence facility known as the Annex.[1] Broadly speaking, the government alleged that Abu Khatallah, as a leader of an extremist militia called Ubaydah Bin Jarrah (“UBJ”), directed the attacks because he objected to the United States' intelligence presence in Benghazi following the overthrow of former Libyan dictator Muammar Gaddafi.

         Abu Khatallah's trial began in early October 2017 and lasted seven weeks. The basic narrative of the attack was not disputed. Beginning at around 9:45 p.m. on September 11, 2012, a group of twenty or more armed men breached the main gate of the Special Mission compound. The Mission housed a contingent of State Department personnel and, that night, U.S Ambassador to Libya J. Christopher Stevens, whose permanent station was in Tripoli but who regularly traveled to Benghazi. The intruders set fire to Mission buildings and the fire spread to Ambassador Stevens's living quarters. He and State Department IT specialist Sean Patrick Smith died of smoke inhalation while trapped there. Hours later, militants used small arms, machine guns, rocket-propelled-grenade launchers, and mortars to attack the Annex about a mile away. Two State Department security officers, Tyrone Woods and Glen Doherty, were killed by the mortar fire at the Annex. Three other U.S. government personnel were injured during the attacks.

         The trial evidence is summarized more extensively in this Court's recent opinion denying Abu Khatallah's motion for a mistrial. See Memo. Op. at 1-11, ECF No. 528 (June 15, 2018). A general summary here will suffice: The government sought to establish Abu Khatallah's responsibility for planning and helping to execute the attacks through testimony from cooperating Libyan witnesses, video surveillance from the Mission, telephone records of calls between Abu Khatallah and other alleged perpetrators, and testimony from FBI agents and officials involved in Abu Khatallah's capture in Libya. The defense attempted to cast doubt on the credibility of the government's Libyan witnesses; it called a witness to dispute the government's timeline and the defendant's purported anti-American bias; and it introduced a series of written stipulations derived from government intelligence information to support a theory that people other than Abu Khatallah were responsible for the attack.

         After five days of deliberation, the jury convicted Abu Khatallah on four counts:

• Count 1: Providing material support to terrorists (a violation of 18 U.S.C. § 2339A carrying a maximum 15-year prison sentence);
• Count 2: Conspiring to do the same (also a violation of 18 U.S.C. § 2339A carrying a maximum 15-year sentence);
• Count 16: Intentionally injuring a federal building-namely, the U.S. Special Mission-where that building was a dwelling or where the life of a person was placed in jeopardy (a violation of 18 U.S.C. § 1363 carrying a maximum 20-year sentence); and
• Count 18: Carrying a semiautomatic assault weapon during and in relation to a crime of violence (a violation of 18 U.S.C. § 924(c) carrying a minimum of 10 years and a maximum of life imprisonment, which the Court must impose consecutively to any other term of imprisonment).

         The jury acquitted Abu Khatallah on the other fourteen charges. Among them were murder and attempted murder of the four U.S. personnel that died during the attacks (Counts 3- 9); killing those four individuals during an attack on a federal facility (Counts 10-13); damaging federal property by fire or explosives at the Mission and Annex (Counts 14-15); and damaging property at the Annex (Count 17).

         The jury also declined to make certain special findings that, if found beyond a reasonable doubt, would have increased Abu Khatallah's statutory maximum or minimum sentences.[2] Most important here, the jury did not find beyond a reasonable doubt that Abu Khatallah's provision of material support (or his conspiracy to provide material support) “resulted in death”-a finding that would have increased his maximum sentence on those charges to life imprisonment. 18 U.S.C. § 2339A(a).

         II. Sentencing Background

         A. Legal Framework

         The Court must begin the sentencing process by correctly calculating the applicable range under the U.S. Sentencing Guidelines. See Rita v. United States, 551 U.S. 338, 351 (2007). It first decides which particular guideline (as set forth in Chapter 2) corresponds to the offense of conviction. It chooses a “base offense level” among those provided in the applicable guideline and modifies that level based on any “specific offense characteristics.” Next, it considers whether any adjustments apply (as described in Chapter 3) and computes the defendant's “criminal history category” (Chapter 4). With the total offense level and criminal history category in hand, the Court determines the applicable sentencing range using the Guidelines' table (in Chapter 5). Finally, the Court considers whether a departure from that range-either upward or downward-is warranted (using a process also laid out in Chapter 5).

         Throughout this Guidelines calculation process, the Court is not confined to the jury's factual findings or even to the trial record. Rather, the Court may consider all of a defendant's “relevant conduct”-a set of acts defined in Chapter 1 of the Guidelines and discussed in more detail below. Relevant conduct need only be established by a preponderance of the evidence. United States v. Bell, 795 F.3d 88, 103 (D.C. Cir. 2015). So long as that standard is met, “a sentencing judge may consider uncharged or even acquitted conduct in calculating an appropriate sentence.” United States v. Settles, 530 F.3d 920, 923 (D.C. Cir. 2008).

         After determining the proper Guidelines range, the Court must consider factors that Congress set forth in 18 U.S.C. § 3553(a) as bearing on the proper sentence. There is no presumption that a sentence within the Guidelines range is appropriate-rather, it is sometimes necessary, in light of concerns reflected in § 3553, to vary upward or downward from a within-Guidelines sentence. See Rita, 551 U.S. at 351. In arriving at the proper sentence, the Court may consider “any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law.” U.S.S.G. § 1B1.4; see also 18 U.S.C. § 3661.

         The D.C. Circuit has suggested that an appropriate basis for varying downward from a Guidelines sentence is the Court's belief that relying on acquitted conduct is inappropriate in a particular case. See Settles, 530 F.3d at 924 (“[E]ven though district judges are not required to discount acquitted conduct, the Booker-Rita-Kimbrough-Gall line of cases may allow district judges to discount acquitted conduct in particular cases-that is, to vary downward from the advisory Guidelines range when the district judges do not find the use of acquitted conduct appropriate.”); United States v. Bell, 808 F.3d 926, 928 (D.C. Cir. 2015) (Kavanaugh, J., concurring in the denial of rehearing en banc) (“[F]ederal district judges have power in individual cases to disclaim reliance on acquitted or uncharged conduct.”); see also Kimbrough v. United States, 552 U.S. 85, 101 (2007) (“The Government acknowledges . . . that, as a general matter, courts may vary [from Guidelines ranges] based solely on policy considerations, including disagreements with the Guidelines.” (alteration in original)).

         B. The Probation Office's Sentencing Recommendation

         As is standard practice, a probation officer has prepared a comprehensive presentence investigation report to aid the Court at sentencing. The report details Abu Khatallah's personal background and describes his conduct that the probation officer viewed as relevant to the offenses of conviction. It then uses that conduct to calculate a recommended sentence under the U.S. Sentencing Guidelines. The report's calculation runs as follows:

         Abu Khatallah's convictions on Counts 1, 2, and 16 are “grouped together” because they involve “substantially the same harm.” U.S.S.G. § 3D1.2. The total offense level for that group of offenses is the same as that of the most serious offense. Id. § 3D1.3(a). Here, the offense level is the same for all three offenses because the offense level for providing material support (or conspiracy to provide material support) equals that for the offense for which the defendant was convicted of supporting. See id. § 2X2.1; id. comment., n.1.[3] For Abu Khatallah, that underlying offense is Count 16-damaging federal property in violation of 18 U.S.C. § 1363. The report thus calculates identical sentencing ranges for Counts 1, 2, and 16 based on U.S.S.G. § 2K1.4, which is the guideline governing his conviction for damaging federal property.

         Section 2K1.4 sets a base offense level of 24 when the offense “created a substantial risk of death or serious bodily injury, ” or if it “involved the destruction or attempted destruction of a dwelling.” U.S.S.G. § 2K1.4(a)(1). “If death resulted, ” however, or if “the offense was intended to cause death or serious bodily injury, ” the guideline directs courts to “apply the most analogous guideline from Chapter Two, Part A (Offenses Against the Person) if the resulting offense level is greater than that” otherwise determined. Id. § 2K1.4(c)(1). The report states that death did indeed result from Abu Khatallah's offense, and that the most analogous guideline is that for second-degree murder. So the report cross-references that guideline, id. § 2A1.2(a), which establishes a base offense level of 38.

         With that base offense level in hand, the report recommends that Abu Khatallah receive two Chapter 3 enhancements: a twelve-level increase under § 3A1.4 because the offense “involved, or was intended to promote, a federal crime of terrorism” and a four-level increase under § 3B1.1(a) for his “aggravating role” in the offense as an “organizer or leader of a criminal activity that involved five or more participants.” As a result of the terrorism enhancement, Abu Khatallah's criminal history-which otherwise would be classified as Category I-jumps to the maximum, Category VI. See id. § 3A1.4(b).

         With a base offense level of 38 and a total enhancement of 16 levels, the report recommends a total offense level of 54. That offense level, when combined with a criminal history of Category VI, results in a recommended sentence of life imprisonment. On Abu Khatallah's fourth offense of conviction-carrying a semiautomatic rifle during a crime of violence, in violation of 18 U.S.C. § 924(c)-the Guidelines provide for a sentence equaling the ten-year statutory minimum, with no adjustments based on conduct or criminal history. U.S.S.G. § 2K2.4(b). Section 924(c) requires that its sentence run consecutively to any other sentence.[4]

         Abu Khatallah has raised various objections to the content of the presentence investigation report. The Court held a hearing over two days to resolve legal and factual disputes underlying Abu Khatallah's objections. On June 4, it heard testimony from a government witness, FBI Special Agent Michael Clarke, who relayed information the government had received from a Libyan witness referred to as “W-61” who did not testify at trial. And on June 7, the Court heard the parties' legal arguments.

         III. Analysis

         Abu Khatallah raises two main objections to the presentence investigation report. He first contends that his conduct did not result in death, nor did he intend death or serious bodily injury, and therefore his convictions on Counts 1, 2, and 16 should carry a lower base offense level of 24 rather than 38. Second, he argues that his relevant conduct does not support enhancements for terrorism or for a leadership role in the offense. The Court takes these challenges in turn. It then summarizes its calculation of Abu Khatallah's Guidelines range.[5]

         A. Base Offense Level

         Abu Khatallah first contends that the presentence report incorrectly proposes a base offense level of 38 for his convictions on Counts 1, 2, and 16 by cross-referencing the guideline for second-degree murder. He argues that the proper base offense level for those charges is 24 because his conduct did not result in death and he did not intend death or serious bodily injury. See U.S.S.G. § 2K1.4(a)(1). In his view, the jury's acquittal on all counts related to the deaths during the attack-and the jury's refusal to make a special finding that his material support resulted in death-necessarily foreclose the Court at sentencing from finding that death resulted or was intended. And even if that were not so, he argues, there is insufficient evidence from which the Court could tie his conduct to any deaths or infer an intent to kill. The Court disagrees with both contentions.

         1. Scope of Relevant Conduct

         Again, at sentencing the Court may rely on facts for which a defendant was expressly acquitted by a jury. This practice is controversial, but courts have repeatedly upheld it as constitutional. See United States v. Watts, 519 U.S. 148, 154-55 (1997). In fact, it would likely be a procedural error for the Court to outright refuse to consider conduct for which Abu Khatallah was acquitted when calculating his Guidelines range. See id. at 156 (reversing court of appeals decision that had vacated a sentence relying on acquitted conduct); Bell, 808 F.3d at 928 (Kavanaugh, J., concurring in the denial of rehearing en banc) (noting that “when calculating the advisory Guidelines range, district judges may have to factor in relevant conduct, including acquitted or uncharged conduct”).

         Accepting that the Court may not categorically disregard acquitted conduct, Abu Khatallah contends instead that in this case the Court cannot properly consider any deaths that resulted from the attack as “relevant conduct” under the Guidelines.

         The Guidelines define “relevant conduct” broadly to include:

(1)(A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and
(B) in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a ...

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