he pleaded guilty to conspiracy to obstruct an immigration proceeding and conspiracy to make false statements the f b i the terrorism investigation at sentencing the district court imposed the terrorism enhanced been under three and a one point four the issue on appeal is whether the district court erred in applying that and he answered it three a one point four applies when the off answer involves or was intended to promote a federal crime of terrorism under the commentary it also applies when the the off involved obstructing the investigation of a federal crime of terrorism federal crime of terrorism is debt if it is defined for purposes of the guideline under title eighteen united states code two three three two b five g which has two parts one is what's known as the motivational or intent element whether the  calculated to affect government conduct through intimidation or coercion and that it under be that it be one and a list of the numerated offenses before a district court imposes the enhancement under three a one point four therefore it has to make a determination as to the numerated five federal crime of terrorism it has to make a determination on the motivational whether it was calculated to influence government and it needs to point to the facts  the record that support those findings in this case unfortunately it wasn't handled in exactly that way and so it is a little difficult to know exactly what the basis was for the district court's application of the enhancement this was a very heavily contested the the government put a lot of evidence in the distance the defense did say basically objected to every fact in the pre sentence report he also put on extensive rebuttal evidence in the form of cross examination government witness his own witnesses documentary evidence there were transcripts of conversations that took place at the immigration detention facility that were in somalia and so the government had an interpreter who translated those the defense got an independent interpreter and had those translated as well and put that evidence in the theory for application of the enhancement in this case is that his conduct obstructed the investigation of a federal crime of terrorism the only federal crime of terrorism that the government mentioned in the district court was providing material support to a foreign terrorist organization namely al shabaab in violation of eighteen united states can characterize it to make necessary findings resulting disputed facts to the extent that that is your argument is our state why isn't our standard of review plan given the absence of objection below as i said it was a very extensive sentencing hearing we made very clear in our written objections to the pre sentence report what was required for application of the terrorism and he had spent with the or the hearing yes yes and during the hearing defense counsel was repeatedly cut off by the district court he was expressing quite a bit  of unhappiness with the length of the hearing in fact we had a situation where the first witnesses testifying neighbors i'm sorry your honor i'm gay we're hearing you know i don't actually now i was in our group today it went on for two days yes yes so during  mason moment i'm ready to roll this is before the defense actually got to present rebuttal and explain the evidence that they were putting in we attempted to cross examine the government agent regarding another detain asked me who his name is all over these transcripts and the it was objected to as being not relevant the district court sustained an objection but then the question the prosecutor about it at the very end you're asking sentencing hearing is in the experience of most district were judges your own the country generous amount of time is granted was an unusual sentencing hearing in an unusual procedural and substantive context but  it's still a long hearing for instance and the court did agree with you on a number of points raising other issues but for the purpose of the futility point can you respond to how those aspects of the hearings square with your futility are human i would have to say it was a lengthy hearing but the first entire day of that was the government's evidence so i don't know that that should be counted against us in terms of the amount of time for the hearing where you cross examine the government yes that is correct we were cross examining the witness we had a lot of documentary evidence as well that was being put into the record  i guess my response is it's not the length of time it's the manner with which the evidence is being treated and the seriousness of this is a drug courts have referred to this as a enhanced it increases the defendant's oftens level twelve levels increases the guideline range to a category six we were dealing with alleged statements that were made in a different language we had competing translations of that the district court never even reviewed our translations we had we were not only alleging that the government was wrong that our client had made a number of these statements we were alleging that it was someone else who had in fact these statements and the court allowed us to put in this transcript it's this thick transcript showing that the government agent had testified against this mohamed osman in an immigration hearing and he was president same time that our client was the court never even reviewed that so there was a level of frustration on i think everyone's part as this case was going on and as counsel is attempting and there apparent base in rome there wasn't going to be one of these where where suddenly there's a a flash and it shows the government's completely wrong the defense is right it's it's more legumes it's putting little things together to to to break apart or to build the case and we weren't being allowed to do that and i know there was a lot of frustration and the district was repeatedly cutting us off i am saying things like and it's in my saying things like enough i've heard enough and ready to rule you've already said too much this is taking too long i don't want to hear any more so i think that that fits the argument that it would have been futile to then turn around because as  soon at the end of the hearing what the court did was turn to the prosecutor in the ask him is there any evidence that mohamed osman said that statement we don't want to send an innocent man to jail which he's not he pled guilty to two counts but then asking the prosecutor valjean on his oath i mean at this point there really was nothing the defense could do that was going to get this train back on the tracks for the type of of procedure that needed to take place where do you get your knowledge to very case and how would you say you were building dot badat pinpoint by pinpoint could be a little irritating oh yes there's no doubt i've been studying this transcript quite a while now and i have found myself to be quite irritated by it but but but unfortunately that's the way these cases are this isn't a case we have a case where someone who's convicted of obstructing basically a thousand and one counts lying tough conspiracy to lie to a federal agent and he's ending up in court basically being punished for terrorism but there's no conviction for a terrorism these are cases that are built on little facts and rebutted and little facts and as i said this is not the first court in the district in the country to have to face this type of  no you're actually you're absolutely right there i could only find there have been in that i could only find four published cases that have applied the obstruction aspect of this but as i noted in my reply brain district courts have taken months to review the evidence he barely took a breath at the end of the love that at the sentencing and he did not review most of our evidence so i would say that that procedurally  futile for for the defense attorney to then trying to request the court to make specific findings you mentioned all these objections you may both read and at the hearing did you ever point out to the district court that al shabaab was not designated a foreign terrorist organization until two thousand and eight because i mean that's one of the argument you're pressing now you know that was not made in the district court however it was presented by the government's witness f b i agent wagner testified that the bottle  make a finding in our favor on that and said he was disregarding that evidence but it does go to kind of the government's argument and its memorandum does it i mean as i understand it the crime of terrorism that they said was being investigated was government's argument which is even if it wasn't providing material support it still is part of this holistic investigation they repeatedly say into possible past potential present potential future terrorism ties and three a one point four requires more the guideline is very specific and it's helpful to compare it to other guidelines that have these kind of severe increases career criminal career offender those guidelines actually require proof of prior convictions which have been proven beyond a reasonable that we don't have that in three a one point four that we have that type of increase what we have instead is a requirement that there be a federal crime of terrorism which has a very specific definition well what standard would you use when you've got general intelligence gathering at one and you're trying to create this dichotomy between that and a specific terrorism offense i mean here it's it's not just that the government thought he might be involved in some terrorist act when they had him tied to a particular organization and to a particular person through that sim car standard do we use in determining whether it's general intelligence gathering or at an actual specific offense and that is very difficult and i don't know that i'm i can draw a line so much as to say i can say that this case isn't sufficient and it's helpful to compare the cases where they have applied the enhancement the two cases the two published cases where they've applied it are then talat of the fourth circuit and car out of the second seventh circuit and those cases are dramatically different factually and in terms of the reliability of factually both in terms of the evidence that they had and in terms of the federal crimes of terrorism they were investigated both of them involve federal grand jury investigations of individuals linked to particular organizations osgar was hamas and kahlo was last car which i'm probably mispronouncing they were investigating a number of people and a number of purported crimes the defendants were called before the federal grand jury they refused to answer questions they were granted immunity they refused to answer questions they were then prosecuted for obstruction of grand jury proceedings and that syncing they received the and he answered it and the district courts both looked at the specificity of the investigations the fact that the federal grand juries both were and were specifically investigating provision a material support but they were also in ask are they were investigating the murder of a austin in peace activist murder some murders of italians italian israeli named al timimi and col was an associate of his so if you look at the one time and quality of evidence in those two cases and you compare it to this case to apply the and has been in this case is really breaking new ground if your question about that though in this is perhaps an awkward awkwardly framed question that in terms of your ability to answer but let's assume that the district court had not said that he would discount or not consider the evidence of the armed vehicle purchase for what later became an f o and would not could would either discounter not consider the evidence that your client knew a whole lot about weapons that most don't and the evidence that he had this memory had was his statement at the end of the hearing a finding that the p s r was correct and adopting would your argument on sufficient evidence be a whole lot weaker that is how much does it depend on what the disk records said even though what he said was in part happen consistent i would still be making the argument and would it be a weaker argument yes in it i still believe that the evidence would not be sufficient for the enhancement when you compare it to the other cases in which this and has been had that has been applied in my time i investigated what we were looking at all along was conspiracy to provide material support to a foreign terrorist organization you do with the fact that the provision of the vehicle didn't occur when it was a nifty oh that's correct so when he purchased the armored vehicle and everyone died when i show up with the opens it was not a foreign terrorist organization it was still conspiracy and the conspiracy continues by the time he came to the united states recall ever talking about directly whether it was a conspiracy though i was talking i do believe that what i discussed was he committed the crime of purchasing the arm technical he had never withdrawn from the conspiracy in fact he obstructed the investigation and that he made other statements that showed his continued an active support of al shabaab so whether or not it came right out and stated that terrorism what do you do with this record statement that it was discounting or not relying on the purchase of the armed vehicle or what later became you know the district court said many things but what do we chip mohamed that he parked up blowing up the ambassador he didn't make any findings of fact i would even submit that when he said that given a choice between believing agent wagner and abraham a in custody no so the district court says on his own without prompting from the usa i'm discounting this i'm not taking this into account very specifically identifying what areas what evidence the court found and persuasive and then at the end obviously ready to wrap up the usa says in an effort to make sure the record will withstand the pellet scrutiny said judge don't you want to fine or don't you want to say this and the judge says oh yeah and that's a sense so your argument is that the oh yeah is the source of a lot of implicit findings and conclusions whereas the more specific statements we should essential leave us off the scent of the specific statements went both ways so multiple times throughout the hearing the judge said look on the killing of the ambassador it's in english is there any doubt to defense counsel that he did this that he said this no he didn't do it that he didn't do anything and that was a hypothetical throughout there was testimony time and again about the arm technical and the court would say yes we've been through it i get it he bought the arm technical maximum brought it down to one hundred twenty months and the court because of the time the defendant spent in immigration customs would not get credit for by p o p c determined that he would give a downward variance of two more years he got twice as much with the enhancement he could've potentially looked at more but when we look at the detail p s r there were both my sensing memorandum filed two sets of objections followed by the defendant all of these were before the court it took a day and a half of sensing where the case agent laid out the transcripts of the defendant's own words in english we had the undercover informant who came in and talk about this is what the defendant said he did say he bought the arm technical he did say it cost one hundred thousand dollars he did say that everyone that he or were killed fighting the ethiopians were not going to pay attention to that and that's at one point he does say that and the length of the hearing cut against you in the sense that you know typical sentencing ten fifteen minutes there's not much dispute or there's not much for the district court to decide to rule want to make factual findings on here after two days there was a lot in dispute it seems having even just ten minutes of the end to summarize the district court's findings given the the link fee and disputed testimony is is more necessary reporting over one of the defense objections after a day and a half the court had heard more than enough and had been telling defense counsel we've been over this we're going over this repeatedly i've heard your argument and did he say i'll grant you that like it did in an earlier time when he really said i've heard what you've said are just french that not really giving away anything i would say on this because he over would be objections after seeing all of  he didn't discuss that you pick it believes the special agent he could believe the source he couldn't believe what the defendant was putting forth i think that fully supports that there is a sufficient record to show that this was appropriate in this case given all of the facts that came out in the pre sentence report all the facts and testament yes ma'am are you in a way asking us to assume as you are that if we send it back it will come up again basically better explain but with no different result and rather than make that occur we should fill in some of the blanks that you given that there was a variance in this case and implicitly making that thirty five fifty five thirty five fifty three higher order to continue to make proper guideline calculations short even if there are thirty five fifty three eight conclusions may be quite favorable to defendant but the standard of the you would still be plain and i think in this case given the evidence that's in the record and given what was contained in the p which detailed basically what we put on as the evidence all of the transcripts both ours and defense copies with the defendant brags we are terrorists we still have a sufficient record to show that there was nothing that while could have but done been done better i would grant i'm sure when i sit down i remember thirty things that i should have said but we're not perfect i think given a day and a half hearing where there was extensive testimony of the defendant's obstructive conduct in regard to a legitimate investigation in fact that the f b i would have been negligent and they not continued this investigation into his activities without oath before hand and continuing with his comments of making the infidels suffer for children the al shabaab leader for making for killing infidels and terrorizing infidels and killing christians and jews if we didn't if the f b i didn't continue with it they would have been negligent and that's what they were doing and he had a choice and the evidence is clear he could have withdrawn from the conspiracy he could told the truth but instead he made the choice to obstruct the investigation and in this case not only did he lie about his ties to terrorist his past tourist activities he didn't withdraw from the conspiracy didn't talk about h muhammad and wall yes is speculative it's always speculative had he come clean and not obstructed the investigation and said yeah i know this guy there could have been lead sent out and maybe the bombing of the world cup in uganda may have been prevented in this case he didn't just obstruct it himself then he called back a shady and told her to lie to the f b i because he was being used as to get her conspiracy to prevent the government from finding out who he was what his own role in various activities may have been but that's not a conspiracy to provide material support to realization were i would disagree i would say in this case given that he is admission has bought an arm technical and outfitted with weapons for al shabaab which at the time he came here was a foreign terrorist organization that he still said that the infidels must  eight an arab which happened after he well i'm sorry it's while he was there but after two thousand and eight he did come and say they have to suffer for that he did still talk about he still thought a confidential source how to go and buy an arm technical and sell for al shabaab so he hasn't left the conspiracy the conspiracy to provide material support continues to this day in fact i would argue that his obstructive behavior sense was another overt act in this conspiracy keeping the government from trying to find out about his terrorism ties what he did in the past and what he's potentially planning in the future so i think we've clearly shown that he did obstruct a federal crime of terrorism and that he prevented the government from learning about what he had done in the past and what he was currently planning and who his current ties were and one of his current ties w someone who was implicated in the conspiracy to murder seventy four people and wounded seventy it was claimed credit for by shabaab i understand the court's concern that there are discrepancies with what the district court said i would like to say that it was a perfect hearing and that the court what have just said all right i've heard the so many times i'm not going to be anything one point four which should have been applied and was correctly applied and that there was no plane or in that the court had in detail what pre sentence report heard extensive testimony issue was of the enhancement doesn't apply period given the findings that were made if the if this court is not prepared to rule a court ruled that with us on that and i stand by that position then our second request was that one thing i would add i believe that if he reviews the record and makes findings that he may not revisit the findings that he already made and that's under law the case ok i wanted to make that clear the the disk the prosecutor did not object to to the findings that were made when the district court said i'm not going to consider that and specifically with the weapons one he said whether he said i'm not going to consider that fitzy or whoever is knowledgeable about weapons will not lots of people in the united states are knowledgeable about weapons and that doesn't make them terrorists that wasn't just an offhand comment and i wondered if you had a hearing you say you haven't heard for additional ev what other evidence would you introduce there's not been introduced in this flashback in argument that you played the we were unable to cross examine agent wagner regarding his investigation and mohamed  osman who is in fact all over these documents and agent wagner testified at his hearing when he was there he that the the prosecutor objected it wasn't relevant the court sustained that then at the end of the hearing the court asked the prosecutor is there any evidence that mohamed osman is the one who said we are terrorists so we weren't given the opportunity to cross examine on that i believe  it's mentioned and it's mentioned in the in might now might my error was it we erred in applying this in and spent and second of all that he erred in failing to follow rule thirty two which is and i mentioned that which is report is not sufficient when there's been rebuttal evidence put on you have to make specific findings on those disputed matters and the then there are inconsistent statements made by the  there's no doubt when he made that to just determination he knew the defense council was specifically addressing the armed to be able she pointed out that that was the allegation insuperable superseding indictment it's the only one in there on armed vehicle the court said i'll