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 reprosecute. 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, 693 

F.3d 192 (D.C. Cir. 2012) (Mohammed I); United States v. 

Mohammed, 863 F.3d 885 (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 21 U.S.C. § 959(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, 693 F.3d at 197. 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, 693 F.3d at 

197. 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, 2021 WL 5865455, 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, 2022 WL 2802353, 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. Id. at *10; see id. 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, 926 

F.3d 761, 796-97 (D.C. Cir. 2019) (per curiam) (alteration in 

original) (quoting United States v. Vega, 826 F.3d 514, 538 

(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, 767 F.3d 1, 9 (D.C. Cir. 2014) (en banc)

(quoting Miller v. Avirom, 384 F.2d 319, 322 (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, 714 F.3d 616, 625 (D.C. Cir.

2013); then quoting Johnson v. United States, 520 U.S. 461, 

467 (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, Pub. 

L. No. 103-322, § 120004, 108 Stat. 1796, 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, 

769 F.3d 1189, 1192 (D.C. Cir. 2014) (quoting 18 U.S.C. 

§ 2331(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, Pub. L. 

No. 104-132, § 730, 110 Stat. 1214, 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, 769 F.3d at 1192. 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, 

546 F.3d 1359, 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, 767 F.3d 

at 9; United States v. Breedlove, 204 F.3d 267, 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, 520 U.S. 751, 757 (1997) (quoting Mistretta v. United 

States, 488 U.S. 361, 377 (1989)). 

The 1996 statutory directive is admittedly ambiguous, as 

the Fourth Circuit recognized in considering a similar 

argument. United States v. Hasson, 26 F.4th 610, 623 (4th Cir.

2022), cert. denied, 143 S. Ct. 310 (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, 26 F.4th at 623 (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, 

26 F.4th at 623-24; United States v. Graham, 275 F.3d 490, 

513-19 (6th Cir. 2001) (affirming application of Section 3A1.4 

over dissenting opinion arguing that enhancement is contrary 

to statute); United States v. Arnaout, 431 F.3d 994, 1001-02 

(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, 328 F.3d 655, 671 (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, 543 

U.S. 220 (2005), and our post-Booker precedent compel this 

conclusion. 

Before the Booker Court rendered the Sentencing 

Guidelines advisory, 543 U.S. at 244-45, 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, 328 

F.3d at 671; United States v. Lam Kwong-Wah, 966 F.2d 682, 

688 (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, 918 F.2d 1084, 1100-02 (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, 463 F.3d 792, 793 (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, 502 F.3d 

293, 305 (3d Cir. 2007); see also, e.g., United States v. Grubbs, 

585 F.3d 793, 801 (4th Cir. 2009); United States v. Vaughn, 

430 F.3d 518, 525 (2d Cir. 2005). But see United States v. 

Staten, 466 F.3d 708, 717 (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, 454 F.3d 366 (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. Id. at 372-73. And in United States v. 

Bras, 483 F.3d 103 (D.C. Cir. 2007), we affirmed a sentencing 

court’s reliance on untried conduct found by a preponderance 

of the evidence. Id. at 108. 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, 83 F.3d 1491, 1496 

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

Sec., 787 F.3d 524, 532 (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, 2022 WL 2802353, 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, 693 F.3d at 201. 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.” Id. The 

court concluded that the district court “drew plausible 
13

inferences” based on “specific statements in the record.” Id. at 

202.

We decline to disturb the district court’s factual findings, 

which have already been upheld on appeal. Under the law-ofthe-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, 87 F.3d 1389, 1393 (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.