United States v. Khan Mohammed

 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued October 19, 2023           Decided December 22, 2023

                        No. 22-3072

                UNITED STATES OF AMERICA,
                        APPELLEE

                             v.

                    KHAN MOHAMMED,
                       APPELLANT


        Appeal from the United States District Court
                for the District of Columbia
                   (No. 1:06-cr-00357-1)


    Reedy C. Swanson argued the cause for appellant. With
him on the briefs were Nathaniel H. Nesbitt and Peter S.
Spivack.

     J. Benton Hurst, Trial Attorney, U.S. Department of
Justice, argued the cause for appellee. With him on the brief
was Kaitlin J. Sahni, Trial Attorney. Sonja M. Ralston,
Attorney, entered an appearance.

    Before: SRINIVASAN, Chief Judge, HENDERSON, Circuit
Judge, and ROGERS, Senior Circuit Judge.

    Opinion for the Court filed by Circuit Judge HENDERSON.
                               2
     KAREN LECRAFT HENDERSON, Circuit Judge: In 2008,
Khan Mohammed was extradited from Afghanistan to the
United States, convicted of international drug trafficking and
narcoterrorism and sentenced to two concurrent life sentences.
He has appealed to this Court twice before: the first panel
affirmed his conviction and sentence but remanded for an
evidentiary hearing on his claim of ineffective assistance of
counsel and the second panel found his trial counsel was
constitutionally deficient and remanded to the district court to
assess prejudice regarding the narcoterrorism charge. After
further proceedings, the district court vacated the
narcoterrorism charge and the government declined to re-
prosecute. At resentencing for the drug trafficking charge, the
district court applied Section 3A1.4 of the Sentencing
Guidelines, known as the terrorism enhancement, and imposed
a life sentence.

     Mohammed appeals his new sentence, arguing that the
district court committed legal and factual errors in applying the
terrorism enhancement and found facts under the wrong burden
of proof. As detailed infra, we affirm Mohammed’s sentence.

                    I.   BACKGROUND

    We have described the full history of Mohammed’s
prosecution in his previous appeals and assume familiarity with
our earlier decisions. See United States v. Mohammed, 

 (D.C. Cir. 2012) (Mohammed I); United States v.
Mohammed, 

 (D.C. Cir. 2017) (Mohammed II).
We discuss here only the facts relevant to this appeal.

     A jury convicted Mohammed of (1) distributing heroin
intending or knowing that it would be unlawfully imported into
the United States in violation of 

(a)(1)-(2)
                                3
(2006) 1 (the drug trafficking charge); and (2) distributing
opium and heroin knowing or intending to provide something
of pecuniary value to a terrorist in violation of 21 U.S.C. § 960a
(the narcoterrorism charge). Mohammed I, 

. At
sentencing, the district court applied Section 3A1.4(a) of the
U.S. Sentencing Guidelines (Guidelines), which increases a
defendant’s sentence by 12 levels if the offense is “a felony that
involved, or was intended to promote, a federal crime of
terrorism,” U.S.S.G. § 3A1.4(a). Mohammed I, 

. The court sentenced Mohammed to two concurrent life
sentences. Id.

     Mohammed appealed and raised an ineffective assistance
of counsel claim for failure to investigate possible bias of the
government’s chief witness, Jaweed. Id. After a remand, a
second appeal and an evidentiary hearing, the district court
found that Mohammed had been prejudiced by his trial
counsel’s constitutionally deficient performance as to the
narcoterrorism charge and vacated that conviction. United
States v. Mohammed, 

, at *12 (D.D.C. Dec.
9, 2021). The government declined to re-prosecute that charge.

     The district court resentenced Mohammed on the drug
trafficking charge. The court again applied Section 3A1.4(a),
finding by a preponderance of the evidence that Mohammed
intended to promote federal crimes of terrorism by “using drug
commissions to buy a car to transport missiles to attack the
Jalalabad airport, where U.S. soldiers and others were
stationed” or, alternatively, by intending to provide something
of value to a terrorist in violation of the narcoterrorism statute.
United States v. Mohammed, 

, at *5-7, *10
(D.D.C. July 18, 2022). The court relied on Mohammed’s

    1
       The statute has since been amended. We cite here to the
version in force at the time of Mohammed’s offense.
                                 4
recorded statements, bolstered by testimony from Jaweed,
whom the court found to be credible. 

; see 

 at *6-
8. The district court sentenced Mohammed to a term of life on
the drug trafficking count.

                        II. ANALYSIS

     For a properly preserved appeal of a sentencing decision,
“[p]urely legal questions are reviewed de novo; factual findings
are to be affirmed unless clearly erroneous; and we are to give
due deference to the district court’s application of the
[sentencing] guidelines to facts.” United States v. Bikundi, 

 (D.C. Cir. 2019) (per curiam) (alteration in
original) (quoting United States v. Vega, 

(D.C. Cir. 2016) (per curiam)).

     If an argument was not raised “with sufficient precision to
indicate distinctly [Mohammed’s] thesis” in district court, we
have discretion to notice and correct “plain error.” Al Bahlul
v. United States, 

 (D.C. Cir. 2014) (en banc)
(quoting Miller v. Avirom, 

 (D.C. Cir. 1967)).
Plain error review is “highly circumscribed” and requires (1)
error (2) that is plain, (3) that affects substantial rights and (4)
that “seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id. at 9-10 (first quoting
United States v. Brinson–Scott, 

 (D.C. Cir.
2013); then quoting Johnson v. United States, 

 (1997)).

                                A.

     Mohammed argues that the district court erred by relying
on the “intent to promote” prong of Section 3A1.4 because the
language has been abrogated by statute: the terrorism
enhancement, Mohammed contends, applies only to
convictions of federal crimes of terrorism. His argument turns
                                5
on the history of the guideline. The Congress directed the U.S.
Sentencing Commission (Commission) to adopt the
enhancement in 1994:

       The United States Sentencing Commission is
       directed to amend its sentencing guidelines to
       provide an appropriate enhancement for any
       felony, whether committed within or outside the
       United States, that involves or is intended to
       promote international terrorism, unless such
       involvement or intent is itself an element of the
       crime.

Violent Crime Control & Law Enforcement Act of 1994, 

, 

, 2022 (1994). The
Commission adopted its first version of the terrorism
enhancement in 1995:

       If the offense is a felony that involved, or was
       intended to promote, international terrorism,
       increase by 12 levels . . . .

U.S.S.G. § 3A1.4(a) (1995). “International terrorism” as used
in the Guidelines referred to “terrorist acts occurring ‘primarily
outside the territorial jurisdiction of the United States’ or
transcending ‘national boundaries.’” United States v. Haipe,

 (D.C. Cir. 2014) (quoting 

(1)(C)).

    The Congress issued a new directive in 1996 instructing
the Commission to amend the terrorism enhancement:

       The United States Sentencing Commission shall
       forthwith, in accordance with the procedures set
       forth in section 21(a) of the Sentencing Act of
       1987, as though the authority under that section
                               6
       had not expired, amend the sentencing
       guidelines so that the chapter 3 adjustment
       relating to international terrorism only applies
       to Federal crimes of terrorism, as defined in
       section 2332b(g) of title 18, United States Code.

Antiterrorism and Effective Death Penalty Act of 1996, 

, 

, 1303 (1996). The
Commission responded by replacing the phrase “international
terrorism” with “federal crime of terrorism”:

       If the offense is a felony that involved, or was
       intended to promote, a federal crime of
       terrorism, increase by 12 levels . . . .

U.S.S.G. § 3A1.4(a) (1996). “Federal crime of terrorism” is
defined in the Guidelines commentary by reference to 18
U.S.C. § 2332b(g)(5), which “lists acts that combine
intimidation of government with violation of various criminal
provisions, many of which apply inside as well as outside the
United States.” Haipe, 

. The 1996 text
remains in force today.

     Mohammed argues that the Congress’ use of the word
“only” in its 1996 directive indicates that the scope of Section
3A1.4 should have been amended to narrow its applicability in
some respect and therefore the Commission erred when it
substituted “federal crime of terrorism” for “international
terrorism” because the amended guideline broadened the
enhancement’s coverage to apply to both domestic and
international crimes of terrorism. See United States v. Garey,

, 1362 n.3 (11th Cir. 2008) (Section 3A1.4
applies “more broadly” after 1996 amendment); U.S.S.G. App.
C, amends. 539, 565 (Nov. 1, 1997) (same). He maintains that
in order to comply with the statute and give effect to the word
“only,” the enhancement should have been amended to omit
                                7
the “intended to promote” prong, with the result that the
enhancement would apply only to convictions of federal crimes
of terrorism.

     Because Mohammed did not raise this argument in district
court, we review for plain error only. See Al Bahlul, 

; United States v. Breedlove, 

, 270 (D.C. Cir.
2000). Mohammed contests forfeiture and points us to his
sentencing memorandum but that memorandum referred only
to unsettled authority as to when Section 3A1.4 can be applied
in the absence of a conviction of a federal crime of terrorism.
Because he challenged the application rather than the validity
of Section 3A1.4, he failed to put the district court on notice of
the argument he now raises before us.

     We find no plain error in the district court’s application of
Section 3A1.4 because there was no plain error in the
Commission’s 1996 amendment. The Commission must “bow
to the specific directives of Congress” but has “‘significant
discretion in formulating guidelines.’” United States v.
LaBonte, 

 (1997) (quoting Mistretta v. United
States, 

 (1989)).

     The 1996 statutory directive is admittedly ambiguous, as
the Fourth Circuit recognized in considering a similar
argument. United States v. Hasson, 

 (4th Cir.
2022), cert. denied, 

 (2022). But the
Commission could reasonably understand the directive to
operate as a charter to shift Section 3A1.4’s field of operation
to federal crimes of terrorism from international terrorism.
Accord Hasson, 

 (1996 directive “is reasonably
read as instructing the Commission to edit the type of terrorism
to which the adjustment applies by replacing ‘international
terrorism’ with ‘federal crimes of terrorism,’ which the
Commission did”). Under this reading, the word “only” in the
                                8
congressional directive is not surplusage because it instructed
the Commission to apply the guideline to one definition of
terrorism rather than both “international terrorism” and
“federal crimes of terrorism.” The use of “only” in the
directive cannot sustain the weight Mohammed places upon it
as it does not unambiguously direct that Section 3A1.4’s
application requires conviction of a federal crime of terrorism.

     The plain text of the statute does not give us cause to set
aside Section 3A1.4.           And Mohammed’s preferred
interpretation is not embraced by other courts, as no circuit has
accepted it, the Fourth Circuit recently rejected it and the Sixth
and Seventh Circuits have rejected it implicitly. See Hasson,

; United States v. Graham, 

 (6th Cir. 2001) (affirming application of Section 3A1.4
over dissenting opinion arguing that enhancement is contrary
to statute); United States v. Arnaout, 

(7th Cir. 2005) (reversing district court for “ignoring the plain,
unambiguous text of the Guidelines” when it declined to apply
terrorism enhancement on ground Congress intended
enhancement to apply only to federal crimes of terrorism).
Accordingly, the district court did not plainly err by applying
Section 3A1.4 to Mohammed’s sentence. 2

                               B.

     The district court applied the terrorism enhancement after
finding facts under a preponderance-of-the-evidence standard.
Mohammed argues that this was legal error because the court
applied the preponderance standard as an inflexible rule rather
than acknowledging that a higher burden of proof may be
appropriate where there are “extraordinary circumstances.”

    2
      Whether Mohammed’s argument would survive de novo
review is not before us.
                              9
See, e.g., United States v. Long, 

 (D.C. Cir.
2003) (affirming district court’s application of preponderance
standard at sentencing because defendant’s case was not
extraordinary).     He contends that his case presents
extraordinary circumstances because (1) the terrorism
enhancement had a dramatic effect on his sentencing range,
increasing the Guidelines range from 97-121 months to 360
months to life and (2) the district court applied the
enhancement based on conduct that was the subject of the
vacated narcoterrorism conviction, meaning the record was
skewed by his constitutionally deficient counsel.

     Assuming without deciding that Mohammed’s case is
extraordinary, the district court did not err by relying on
vacated conduct proven by a preponderance of the evidence.
The Supreme Court’s decision in United States v. Booker, 

 (2005), and our post-Booker precedent compel this
conclusion.

     Before the Booker Court rendered the Sentencing
Guidelines advisory, 

, we endorsed a
preponderance standard at sentencing but sometimes noted in
dicta that extreme cases might warrant a more exacting
standard than preponderance-of-the-evidence. See Long, 

; United States v. Lam Kwong-Wah, 

 (D.C. Cir. 1992). Other circuits explicitly held that a
higher standard of proof was warranted in extreme cases. See,
e.g., United States v. Kikumura, 

 (3d
Cir. 1990). But after Booker, “there is no need for courts of
appeals to add epicycles to an already complex set of (merely)
advisory guidelines by multiplying standards of proof.” United
States v. Reuter, 

 (7th Cir. 2006). As other
circuits have recognized (with the exception of the Ninth
Circuit), due process concerns about the burden of proof in
extraordinary cases “were put to rest when Booker rendered the
                               10
Guidelines advisory,” as the reasoning underlying earlier case
law is no longer applicable. United States v. Fisher, 

 (3d Cir. 2007); see also, e.g., United States v. Grubbs,

 (4th Cir. 2009); United States v. Vaughn,

 (2d Cir. 2005). But see United States v.
Staten, 

 (9th Cir. 2006) (reaffirming higher
standard of proof for extraordinary circumstances).

     Our post-Booker precedent confirms that the district court
did not err by applying a preponderance standard to conduct
that was the subject of Mohammed’s vacated conviction. In
United States v. Dorcely, 

 (D.C. Cir. 2006), we
upheld the district court’s reliance on acquitted conduct at
sentencing after finding facts under a preponderance standard,
concluding that the sentence did not pose Fifth or Sixth
Amendment concerns. 

. And in United States v.
Bras, 

 (D.C. Cir. 2007), we affirmed a sentencing
court’s reliance on untried conduct found by a preponderance
of the evidence. 

. If a court may use the
preponderance standard to find and rely on acquitted and
untried conduct at sentencing, it follows that the same standard
applies for conduct that was the subject of a vacated conviction.

     We therefore reject Mohammed’s argument that the
district court erred by finding facts under a preponderance
standard, even if his case involved extraordinary
circumstances.

                               C.

     Finally, Mohammed argues that the district court’s factual
findings do not support application of the terrorism
                                11
enhancement. 3 The district court’s application of the terrorism
enhancement rested on two alternative theories: Mohammed
(1) intended to promote the federal crime of terrorism by
purchasing a car with drug-trafficking proceeds to transport
missiles to fire at the Jalalabad airport and (2) intended to
commit the crime of providing something of value to a
terrorist—himself—by trafficking the drugs. Mohammed
contends that there is no record support for the first theory and
that the district court failed to make findings necessary to
support applying the enhancement based on the second.
Because Mohammed challenges the district court’s factual
findings, we review for clear error. 4

    Turning to the district court’s first theory, Mohammed
argues that the record evidence shows that the car he intended
to purchase with the drug proceeds was not the same vehicle



3
   In his opening brief, Mohammed additionally argued that we
should hold this case in abeyance pending the Commission’s
resolution of a proposed amendment regarding the use of acquitted
conduct at sentencing. However, after his opening brief was filed,
the Commission deferred any decision on the amendment to 2024.
In light of the deferral, Mohammed abandoned his argument on
reply. We need not address it here.
4
   The government claims in a footnote that it is “doubtful that
Mohammed preserved” his argument contesting the car theory but
goes on to assume arguendo that there was no forfeiture.
Mohammed correctly responds that the government has forfeited any
forfeiture argument. Fox v. District of Columbia, 

(D.C. Cir. 1996); see also Abdelfattah v. U.S. Dep’t of Homeland
Sec., 

 (D.C. Cir. 2015) (“cursory arguments made
only in footnotes” are “deem[ed] forfeited” (cleaned up)). We
therefore proceed to the merits of Mohammed’s argument.
                                12
that would allegedly be used to transport missiles for the attack,
undermining the court’s factual findings.

     The court’s earlier findings, incorporated by reference in
the July sentencing order, were based on two lines of the
recorded conversations between Mohammed and Jaweed.
Mohammed, 

, at *5. On August 30, 2006,
Mohammed stated that he and Jaweed would “tightly and
firmly load it in our car and bring it.” Trial Ex. 2C. The district
court interpreted “it” to mean missiles for the planned attack.
United States v. Mohammed, No. 06-cr-00357, ECF No. 224-
11, at 15. On September 10, Mohammed stated: “[I]f we get
some money we will buy a car [unintelligible] for business.
Once we have money, then the money would keep coming.”
Trial Ex. 2E. The district court considered these statements in
reverse order, concluding that the car to be purchased would be
used to transport missiles and carry out an attack. Mohammed,
No. 06-cr-00357, ECF No. 224-11, at 15. Mohammed
contends that the record shows that the vehicle meant to be
loaded with missiles was already owned or accessible but the
one to be purchased with drug-trafficking money was not yet
owned and, when owned, was to be used for more drug activity,
not terrorist activity.

     Mohammed made a similar argument in Mohammed I.
Addressing the same recorded statements, he argued that they
“cannot be read to support the conclusion of the district court
that he was referring to the same car that he said earlier would
carry the missiles.” Mohammed I, 

. The
Mohammed I court rejected his argument, finding that,
although the record could support multiple interpretations,
Mohammed’s reading “is far from proof that the district court’s
reading of these conversations is clearly erroneous.” 

 The
court concluded that the district court “drew plausible
                               13
inferences” based on “specific statements in the record.” 

.

     We decline to disturb the district court’s factual findings,
which have already been upheld on appeal. Under the law-of-
the-case doctrine, “decisions rendered on the first appeal
should not be revisited on later trips to the appellate court” “in
the absence of extraordinary circumstances.” LaShawn A. v.
Barry, 

 (D.C. Cir. 1996) (en banc). The
doctrine is appropriately applied here, as the Mohammed I
court addressed the same core factual question now before us
and upheld the findings on clear error review. Mohammed
identifies no cause to set aside law-of-the-case: he urges an
alternative reading of the record but fails to identify any
evidence directly contradicting the district court’s
interpretation.

    Because the district court’s first theory suffices to uphold
the application of Section 3A1.4, we need not reach
Mohammed’s arguments regarding the second.

                              ***

    For the foregoing reasons, we affirm Mohammed’s life
sentence.

                                                     So ordered.