IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-50734

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

ABDULLAHI OMAR FIDSE, also known as Abdirahman LNU, 

also known as Abdiraham Fidse, also known as Abdullaho Fidse,

Defendant – Appellant.

Appeal from the United States District Court 

for the Western District of Texas

Before JOLLY, COSTA, Circuit Judges, and ROSENTHAL, District Judge.*

PER CURIAM:

After arriving in the United States from Somalia, Abdullahi Omar 

Fidse lied to government officials in connection with his asylum application

and during a subsequent investigation into his terrorism connections. As a 

result, Fidse pleaded guilty to two obstruction offenses. The issue on appeal 

is whether the district court properly applied a substantial sentencing 

enhancement that applies when “the offense is a felony that involved, or was 

intended to promote, a federal crime of terrorism.” U.S.S.G. § 3A1.4(a). 

* District Judge of the Southern District of Texas, sitting by designation.

United States Court of Appeals

Fifth Circuit

FILED

February 13, 2015

Lyle W. Cayce

Clerk

 

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I.

In December 2012, Fidse pleaded guilty to both counts of an indictment 

charging him with Conspiracy to Obstruct Proceedings Before a Department 

or Agency, in violation of 18 U.S.C. §§ 371 and 1505, and Conspiracy to Make 

False Statements, in violation of 18 U.S.C. §§ 371 and 1001. Fidse’s legal 

troubles began four years earlier when he and his companion, Deka Abdalla 

Sheikh, arrived at the Hidalgo, Texas port of entry claiming that they were 

fleeing Somalia. Fidse, with corroboration provided by Sheikh, claimed that 

he had spent his entire life in Somalia until the Islamic Courts killed his 

father, which caused him to fear for his own life and flee. This story was 

false. Among other things, Fidse had spent significant time in Kenya and his 

father had died of natural causes. As a result of the false statements, Fidse 

was denied asylum, ordered deported to Somalia, and charged with 

conspiring to obstruct asylum proceedings because he coordinated the false 

testimony with Sheikh. 

It turns out that not only was Fidse lying about being persecuted by 

militant Islamic forces in East Africa, but he actually had ties to one of the 

groups engaging in that persecution—al Shabaab. The FBI investigation into 

those connections, which is discussed in more detail below, started two 

months before the order of deportation issued in Fidse’s immigration case. 

Lies that Fidse and Sheikh told when interviewed by the FBI in connection 

with that investigation are the basis for his second conviction. 

The presentence investigation report (PSR) calculated Fidse’s sentence 

by grouping the two offenses and using the guideline for obstruction of 

justice. The PSR applied the terrorism enhancement under United States 

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Sentencing Guidelines § 3A1.4.1 That enhancement yielded a guidelines

range of 292–365 months. Without the enhancement, Fidse’s guidelines

range would have been 46–57 months. The 60-month statutory maximums 

for both of his offenses limited the effect of this vast increase in the guidelines

range, resulting in an effective range of 120 months. 

The district court held a lengthy sentencing hearing over two days at 

which the government offered evidence in support of the terrorism 

enhancement. Mark Wagoner, an FBI special agent specializing in East 

African terrorist groups who worked on Fidse’s case, testified about the 

history of al Shabaab. He explained that following the chaos of the Somali 

Civil War, Islamic Courts were convened to handle criminal complaints and 

other matters; forces aligned with the Islamic Courts eventually invaded 

Somalia’s capital. In response, the Somali Transitional Government asked

the Ethiopian army to invade the country in order to remove the Islamic 

Courts from power. Al Shabaab emerged after the defeat of the Islamic 

Courts and began fighting the Ethiopian forces and the Somali Transitional 

Government. The State Department designated al Shabaab a Foreign 

Terrorist Organization (FTO) in 2008. 

The testimony then turned to Fidse. Another detainee at the 

immigration facility where Fidse was being held provided information that 

Fidse adhered to a radical form of Islam and supported al Qaeda and Osama 

bin Laden. The FBI equipped the detainee, known as “CHS 1” (Confidential 

Human Source 1), with a recording device. After CHS 1 was deported, the 

1 The PSR additionally applied the following offense level increases: three levels for 

substantial interference under § 2J1.2(b)(2); four levels for aggravated role under 

§ 3B1.1(a); and two levels for obstruction of justice under § 3C1.1. The district court 

overruled Fidse’s objections to all the enhancements. Fidse appeals only the terrorism 

enhancement. 

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FBI placed a second informant, “CHS 2,” in the facility.2 According to the 

FBI’s transcription of these discussions, Fidse outlined a detailed 

hypothetical attack by al Shabaab3 on the U.S. Ambassador in Kenya.4 In 

discussing that plan and in other conversations, Fidse demonstrated an 

extensive knowledge of heavy weapons, including bazookas, AK assault rifles, 

machine guns, and armed technical vehicles. Fidse also said he had paid 

$100,000 for an armed technical vehicle and weapons that were used in a 

battle in Idaale, Somalia.5 Idaale was the site of a 2006 battle between al 

Shabaab and Ethiopian forces. Fidse said that all of the fighters on the 

vehicle were killed and the vehicle and weapons were burned. Fidse said he 

cried when Aden Hashi Ayrow, the leader of al Shabaab, was killed in a U.S. 

airstrike and said that “the infidels must suffer some consequences.” 

The FBI then interviewed Fidse.6 During the interview, Fidse made 

numerous assertions at odds with his recorded statements. The agents then 

confronted Fidse by playing the recordings. Fidse denied making the 

statements on the recordings and denied any ties to terrorism. He conceded, 

however, that he may have made statements supportive of terrorist groups. 

2 CS1 and Fidse conversed in English. CS2 and Fidse conversed in Somali, and 

these conversations were translated by both the government and the defense. 

3 In the recording, CS1 and Fidse use the term “Hizbul Islam” instead of al Shabaab. 

Wagoner testified that, owing to confusion caused by a temporary splintering of al Shabaab 

at the time of the conversation, Fidse and CS1 were actually referring to al Shabaab when 

they used the term Hizbul Islam. 

4 Among other things they discussed while outlining the hypothetical attack, Fidse 

and CS1 discussed how many cars and U.S. Marine guards the Ambassador might have and 

what types of weapons the Marines would carry. Fidse suggested that those carrying out 

the attack could use a military-style weapon called a “PKM” and could put mines in 

strategic locations in the streets and wait in a car nearby, causing the Marines to “blow up.” 

5 This town has been referred to by the parties at various times as Egale, Idaale, and 

Lidaale. All of these names refer to the same place—the village in Somalia where al 

Shabaab fought the Ethiopian forces in 2006. For consistency and clarity, we use Idaale. 

6 A Somali interpreter was used and Fidse was given Miranda warnings, orally and 

in writing.

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The government also introduced evidence obtained from the 

immigration detention facility. Among Fidse’s belongings was a cell phone 

memory card that contained a Kenyan telephone number listed as “Hmohamed.” This corresponded to the number the FBI had on file for 

Mohammed Hamid Suleiman, who had been arrested in Kenya for his role in 

the 2010 al Shabaab bombing in Uganda. 

The defense called one witness, an investigator who had a different 

interpretation of what was said by Fidse during the conversations with CHS 

1 and CHS 2 and attributed the comments about the purchase of the armed 

vehicle to another person. 

At the conclusion of the hearing, before making any factual findings or 

legal conclusions concerning the terrorism enhancement, the district court 

imposed a prison term of 48 months on each count to run consecutively. The 

court reduced what would have otherwise been a Guidelines and statutory 

maximum sentence of ten years by two years because of time Fidse had spent 

in immigration custody that otherwise would not be credited against his 

federal sentence. After the sentence was announced, the following exchange 

took place:

THE GOVERNMENT: Just two points, Your Honor. I take it that the 

Court determined that the PSR was correct and the Court did a 

variance?

THE COURT: Yes. Yes. And the Court overrules all the objections . . . 

ROA. 1252.

II.

Fidse challenges the district court’s application of the terrorism 

enhancement under U.S.S.G. § 3A1.4. Section 3A1.4 provides for a steep

offense level increase and an automatic increase to the maximum criminal 

history category if “the offense is a felony that involved, or was intended to 

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promote, a federal crime of terrorism.” U.S.S.G. § 3A1.4(a); see United States 

v. El-Mezain, 664 F.3d 467, 570 (5th Cir. 2011). The Guidelines rely on the 

definition of “federal crime of terrorism” found in 18 U.S.C. § 2332b(g)(5). See

U.S.S.G. § 3A1.4 cmt. n.1.

Fidse’s relevant offense of conviction—conspiracy to make false 

statements—is not a “crime of terrorism” enumerated in § 2332b(g)(5). Even 

so, a nonenumerated offense qualifies for the enhancement if it was intended 

to promote—that is, “was intended to encourage, further, or bring about”—a 

federal crime of terrorism. See United States v. Awan, 607 F.3d 306, 314–15

(2d Cir. 2010) (joining Sixth, Seventh, and Eleventh Circuits in holding that 

under “intent to promote” provision, the defendant need not have “completed, 

attempted, or conspired to commit [a federal crime of terrorism]; instead the 

phrase implies that the defendant has as one purpose of his substantive 

count of conviction or his relevant conduct the intent to promote a federal 

crime of terrorism” (quotation marks omitted)). Indeed, the Guidelines 

expressly acknowledge that an obstruction offense may support the 

enhancement, stating that an offense that involves “obstructing an 

investigation of a federal crime of terrorism” is deemed to have involved, or to 

have intended to promote, that federal crime of terrorism. U.S.S.G. § 3A1.4 

cmt. n. 2. For example, the Fourth Circuit affirmed the application of the 

terrorism enhancement to an obstruction offense that was not itself a crime of 

terrorism because the defendant lied to the grand jury and FBI about 

attending a jihadist training camp in connection with an investigation into 

whether the defendant had committed the enumerated crime of providing 

material support to a foreign terrorist organization. United States v. 

Benkahla, 530 F.3d 300, 312–13 (4th Cir. 2008).

Although the terrorism enhancement thus may apply when the offense 

of conviction is not itself a “federal crime of terrorism,” this situation requires 

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findings at the sentencing hearing. Our sister circuits have stated that 

before applying the enhancement to a defendant’s sentence when the offense 

of conviction was not itself a federal crime of terrorism, the district court 

“must identify which enumerated federal crime of terrorism the defendant 

intended to promote, satisfy the elements of § 2332b(g)(5)(A), and support its 

conclusions by a preponderance of the evidence with facts from the record.” 

United States v. Arnaout, 431 F.3d 994, 1002 (7th Cir. 2005); see also United 

States v. Ashqar, 582 F.3d 819, 826 (7th Cir. 2009); United States v. Graham, 

275 F.3d 490, 517 (6th Cir. 2001); cf. United States v. Chandia, 514 F.3d 365, 

376 (4th Cir. 2008); cf. El-Mezain, 664 F.3d at 571; cf. Benkahla, 530 F.3d at 

313. 

What was the “federal crime of terrorism” under investigation that the 

district court relied on to support the enhancement in Fidse’s case? The 

district court did not expressly identify one, summarily stating after imposing 

the sentence that it was adopting the PSR. The PSR listed the relevant 

federal crime of terrorism as “providing material support to a terrorist 

(2339[A] and [B])”7 and listed Fidse’s statements concerning the armed 

vehicle, the hypothetical attack on the U.S. Ambassador, and his

terrorism-supporting views as the factual bases for the enhancement. On 

appeal, Fidse identifies two problems with using his conduct in providing the 

armed technical vehicle to al Shabaab for use in the 2006 battle as the federal 

7 Although the PSR enumerated both 18 U.S.C. § 2339A and § 2339B as potential

“federal crimes of terrorism” under investigation, the government relied only on § 2339B to 

support the enhancement. The provisions constitute two different offenses. Section 2339A 

prohibits providing material support or resources or concealing or disguising the nature, 

location, source, or ownership of material support or resources, knowing or intending that 

they are to be used in preparation for, or in carrying out, a violation of certain enumerated 

offenses (or attempting or conspiring to do so). By contrast, Section 2339B prohibits 

knowingly providing material support or resources to a foreign terrorist organization

specifically (or attempting or conspiring to do so). The statute defines “terrorist 

organization” by reference to Section 219 of the Immigration and Nationality Act (INA). 

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crime of terrorism that was under investigation. For one thing, al Shabaab 

had not been designated a Foreign Terrorist Organization in 2006.8 See

http://www.state.gov/j/ct/rls/other/des/123085.htm (listing al Shabaab’s date 

of FTO designation as 3/18/2008). The government responds by arguing that 

providing an armed vehicle to al Shabaab prior to 2008 would nonetheless 

still be relevant to an ongoing conspiracy to provide support to group after it 

was designated a terrorist organization. But this conspiracy offense was not 

identified in the district court as the “federal crime of terrorism” that the FBI 

was investigating, either in the PSR or in any government filing or argument. 

It also suffers from a second challenge Fidse raises: the record is inconsistent 

concerning whether the district court made a factual finding that Fidse was 

involved in this alleged conduct.

The district court treated the terrorism enhancement with the 

seriousness that was warranted given the stakes to both the government and 

Fidse. It held a two day sentencing hearing, during which it had to cope with 

an extensive record complicated by language difficulties and rule on an 

enhancement on which we have not provided guidance. The district court 

admirably confronted these challenges, but the lengthy record that resulted 

poses a dilemma for our review. Although the district court stated after 

imposing the sentence that it was generally adopting the PSR, which recited

the government’s evidence related to the purchase of the armed vehicle, it 

made other comments during the hearing that discounted Fidse’s connection 

to those events. During the testimony of Juan Hernandez, the defense

investigator who testified about his review of the recordings and transcripts,

8 Fidse did not raise this argument below in either his objections to the PSR or at the 

sentencing hearing, focusing instead on his argument that it was not his voice, but a third 

party’s, making the statements the government attributed to him regarding the armed 

technical vehicle. 

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Fidse disputed that it was his voice on the recording discussing the purchase 

of the armed vehicle for al Shabaab and attempted to provide evidence that a 

third party to the conversation made those statements. In response, the 

district court said that it would be taking the issue “off the table” and would 

“grant [the defense] that one,” implying that the court would not apply the 

enhancement on the basis of any involvement with purchasing an armed 

vehicle for al Shabaab. See ROA. 1202–05; ROA. 1224. But on at least two 

other occasions in addition to its final adoption of the PSR, the district court 

indicated it was accepting the government’s view that Fidse made the 

statements about purchasing the armed vehicle. On the first day of the 

sentencing hearing, the district court stated that: 

[A]t this point in the proceeding the Court—I think this is undisputed, 

that—three things that have come out, talking about Marines and 

ambassadors, talking about armed vehicles and talking about the 

phone number to Mr. Suleiman. And, frankly, the Court is ready to 

make its decision on those three pieces of evidence and the Court’s 

interpretation and inference from that.

ROA. 1092; see also ROA 1189–90 (stating on day two of the hearing that, 

among other things, the district court was considering “the armed vehicles 

and buying armed vehicles”). 

The same inconsistent findings exist with respect to other evidence the 

government relies on to support application of the enhancement. Although 

the statement quoted above indicates the district court was also relying on 

Suleiman’s phone number being found in Fidse’s phone card, the district 

court later said that would give “very light weight, if any” weight to that 

evidence. ROA. 1241. Finally, the district court stated that it would 

“discount” Fidse’s extensive knowledge of heavy weapons because “[t]here are 

a lot of people in the United States who are very knowledgeable about 

various firearms. That doesn’t make them terrorists.” ROA. 1212–13.

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These uncertainties surrounding both the factual findings below and 

which federal crime of terrorism the district court relied on as the one under 

investigation when Fidse lied to the FBI preclude meaningful review of the 

merits of Fidse’s claim. See United States v. Lawal, 810 F.2d 491, 492–93 

(5th Cir. 1987). We know neither the “federal crime of terrorism” benchmark 

against which to evaluate whether the facts support such a finding nor the 

facts that can be relied on in making that assessment. “For this Court to 

resolve the ambiguity created by the district court’s statements would require 

precisely the sort of second-guessing Rule 32[ ] is designed to prevent.” Id.; 

cf. United States v. Zapata-Lara, 615 F.3d 388, 391 (5th Cir. 2010) (vacating 

sentence and remanding for resentencing when district court applied twolevel enhancement and adopted PSR, but record left this Court not “sure 

what rationale the [district] court had in mind to support the enhancement, 

based on its limited statement”). 

The parties dispute the applicable standard of review. But even if plain 

error applied to some of Fidse’s contentions, we would be unable to conduct 

that deferential review given our inability to discern the facts found by the 

district court. Without knowing the specific factual and legal basis for the 

enhancement, we are unable to determine whether error occurred or whether 

any error would have affected the district court’s decision to apply the 

enhancement. See Puckett v. United States, 556 U.S. 129, 135 (2009) (stating 

that plain error review requires a showing of clear error affecting the 

appellant’s substantial rights, “which in the ordinary case means he must 

demonstrate that it affected the outcome of the district court proceedings”)

(internal citation omitted).

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We therefore VACATE Fidse’s sentence and REMAND to the district 

court for resentencing. 9 On remand, the district court of course is free to 

conduct such proceedings as it deems necessary to address our concerns as 

expressed in this opinion. See also United States v. Marmolejo, 139 F.3d 528, 

531 (5th Cir. 1998) (“[T]he resentencing court can consider whatever this 

court directs—no more, no less. All other issues not arising out of this court’s 

ruling and not raised before the appeals court, which could have been 

brought in the original appeal, are not proper for reconsideration by the 

district court below.”). In doing so, it should clarify its factual findings 

concerning the alleged purchase of the armed vehicle, Suleiman’s cell phone 

number, and other disputed information on which the current record is 

ambiguous. After making those Rule 32 findings, it may then determine 

whether the factual record supports a conclusion that Fidse’s false 

statements obstructed an investigation into a federal crime of terrorism. Any 

ruling applying the enhancement should “identify which enumerated federal 

crime of terrorism the defendant intended to promote.” Arnaout, 431 F.3d at 

1002.

9 Because we vacate the sentence on other grounds, there is no need to address 

Fidse’s other argument that the district court considered an “improper factor” when 

sentencing Fidse by asking the prosecutor if he had upheld his oath to do justice. In any 

event, a prosecutor making these statements in response to a question posed directly by the 

court is a quite different situation than engaging in unsolicited “vouching” in front of a jury.

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