MEMORANDUM OPINION
CHRISTOPHER R. COOPER, UNITED STATES DISTRICT JUDGE
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 ...