Benkahla v. USA Amici Curiae 2007

8/10/2019 Benkahla v. USA Amici Curiae 2007

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RECORD NO. 07-4778

i Initeh tatez (.Court of Appealz

DEC 6 7007 8 c.oene, _SABRI BENKAHLA, ,._

Z Appellant - D.efendant

c :,

V, :-_ - -_ ,- I


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CASES

Apprendi v. New Jersey,

530 U.S. 466 (2000)

Blakely v. Washington,

542 U.S. 296 (2004)

TABLE OF AUTHORITIES

.................................... 11, 12, 14

...................................... passim

United States v. Belskis,

477 F. Supp. 2d 237 (D. Me. 2007) .............................. 21

United States v. Biheiri,

356 F. Supp. 2d 589 (E.D. Va. 2005) ........................... 3, 10

United States v. Birkett,

_';01 F. Supp. 2d 269 (D. Mass. 2007) ............................. 20

United States v. Booker,

.';43 U.S. 220 (2005) ..... .. ... ... ... .. ... ... ... .. ... ... ... passim

United States v. Ashqar, et. al.,

Crim. No. 03-CR-978 (N.D. Ill. Nov. 21, 2007) ................... 2, 3

Rita v. United States,

127 S. Ct. 2456 (2007) .................................... passim

N.A.A.C.P. v. Claiborne Hardware Co.,

,458 U.S. 886 (1982) ........................................... 6

Cunningham v. California,127 S. Ct. 856 (2007) ..................................... passim


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United States v. Garey,483 F.3d 1159 (llth Cir. 2007) ................................. 10

United States v. Griffin,

494 F. Supp. 2d 1 (D. Mass. 2007) ...................... 11, 20, 21, 22

United States v. Maflahi,

183 Fed. Appx. 13 (2d Cir. 2005) ................................ 10

United States v. Moreland,

.437 F.3d 424 (4th Cir. 2006) ................................... 20

CONSTITUTIONAL AMENDMENTS

U.S. CONST. amend. I ................................................ 5

U.S. CONST. amend. VI ......................................... passim

STAT_UTES

18 U.S.C. 1001 .................................................. 23

18 U.S.C. 1503 .................................................. 23

18 U.S.C. 1623 .................................................. 23

18 U.S,C. 2332b(g)(5) ............................................. 5

18 U.S.C. 2339A .................................................. 8

18 U.S.C. 3553(a) ............................................ passim

4th CIR. R. 29(a) ................................................... 1

FED. R. APP. P. 29(a) ................................................ 1

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GUIDELINES

U.S.S.G. 2A1.1 ................................................... 7

U.S.S.G. 3A1.4 .............................................. passi m

OTHER AUTHORITIES

Testim,any of James F. Jarboe, United States Sentencing Commission2002 Public Hearing (Feb. 25, 2002)

http://vrww.ussc.gov/hearings/2 25 02/0225USSC.htm ................... 8

USA PATRIOT ACT, PL 107-56, 2001 HR 3162 (2001) ................. 7, 8

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STATEMENT OF IDENTITY OF AMICI INTEREST IN CASE, ANDSOURCE OF AUTHORITY TO FILE

MAS Freedom (MASF) is the civic and human rights advocacy entity of the

Muslim American Society (MAS), the largest Muslim grassroots, charitable,

religious, social, cultural, civic and educational organization in America - with 55

chapters in 35 states. The Council on American-Islamic Relations (CAIR) is

America's largest Islamic civil liberties group, with regional offices nationwide

and in Canada and national headquarters in Washington, D.C.

As groups that engage in advocacy for the human rights and civil liberties of

all Americans, including Muslim-Americans, MASF and CAIR are deeply

concerned about the detrimental effect of the United States Sentencing Guideline's

terrorism enhancement on human rights and civil liberties.

Pursuant to Federal Rule of Appellate Procedure 29(a) and Local Rule

29(a), Amici have sought and received permission from both parties, Sabri

Benkahla and the government to file this brief.

ARGUMENT

A mici suggest to this Court that Application Note 2 ( Note 2 ) of United

States Sentencing Guideline 3A1.4 is antithetical to the principles of justice and

liberty espoused by this nation. Like the Sedition Act or the non-Communist


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affidavits of the past, Note 2 was adopted in the name of national security but

results in an abrogation of the civil liberties of the American public. For the

following reasons, Amici respectfully ask this Court to find Note 2

unconstitutional as applied to Mr. Benkahla. _

I. Application Note 2 of U.S.S.G. 3A1.4 Creates Inequitable Results

As of this date, the terrorism enhancement has been applied to enhance the

sentences of two defendants convicted of obstruction offenses. Mr. Benkahla's

case was the first time that the terrorism enhancement has been applied to an

obstruction offense, increasing his sentence from a 15 to 21-month advisory range

to 121 :months, after the District Court departed from a 210 to 262-month range.

On November 21, 2007, the District Court for the Northern District of Illinois

applied the terrorism enhancement to increase the sentence of Abdelhaleem

Ashqar for his conviction for criminal contempt for his failure to testify before a

grand jury. Instead of a 15 to 21-month advisory range, the court imposed a

sentence of 135-months after departing from the recommended 210 to 262-month

guideline range. United States v. Ashqar, et. al., Crim. No. 03-CR-978 (N.D. III.

Nov. 21, 2007).

Under current Sixth Amendment sentencing jurisprudence, Amici is unsure

that Application Note 2 of 3A1.4 could ever be constitutionally applied to anydefendant convicted of an obstruction offense.

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As the District Court for the Eastern District of Virginia has noted and as

demon;_trated by the operation of the terrorism enhancement in these cases, the

effect of 3A1.4 is draconian. See United States v. Biheiri, 356 F. Supp. 2d

589, 598 (E.D. Va. 2005). Even with the departures granted in both cases, 2 the

actual sentences imposed were approximately 600-percent greater than the

sentences that the defendants would have received save for the judicial finding

that the; terrorism enhancement applied.

While this enhancement has only been applied in two cases thus far, the

possibility for abuse of Application Note 2 by the government is readily apparent.

First, as demonstrated by both the instant case and Ashqar, Application Note 2 has

the effect of granting the government two bites of the proverbial apple- unable to

prove s, terrorism crime beyond a reasonable doubt, the government gets a second

chance at sentencing, with a lesser standard of proof, to accomplish before the

judge what it could not do before the jury. In Ashqar, the government was unable

to prove that the defendant was involved in a R/CO conspiracy to fund the

2 In both the case at bar and Ashqar the courts found that a criminal history

category of VI substantially overrepresented the criminal backgrounds of thedefendants, as both of the defendants had absolutely no criminal behavior save for

the instant obstruction offenses. As such, the courts applied a criminal historycategory of I, and with an offense level of 32, chose a range between 121 and 151months.


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terrori.,;t activities of llamas, but was able to obtain a conviction for the

defendant's refusal to testify before a grand jury 3. Despite the acquittal on the

underlying terrorism charge, the judge found that the terrorism enhancement

applied by a preponderance of the evidence at sentencing. In the instant case, Mr.

Benkahla was acquitted at the first trial of lending support to the Taliban.

Promptly following the acquittal, the government called Mr. Benkahla before a

grand jury, resulting in an indictment and conviction for giving misleading

answer's. At the sentencing hearing, the government was able to obtain a sentence,

through proving that Application Note 2 applied by a preponderance of the

evidence, that was roughly equivalent to the sentence that would have imposed

with a finding of guilt at the first trial. While a formalistic reading of double

jeopardy jurisprudence permits such a result, as the sentencing hearing is based on

a preponderance of the evidence and the trials were based upon guilt beyond a

reasonable doubt, the reasonable perception is that such a result is fundamentally

unfair and unjust.

Furthermore, Note 2 can be used as an underhanded tool to disrupt

legitimate but unpopular political and social activity. Any supporter of a

rrhe government had argued to the jury that Ashqar's obstruction andcontempt were part of and in furtherance of the RICO conspiracy. The juryrejected this argument.


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legitimate political or social movement exercising his or her First Amendment

rights elm fall within the gambit of Note 2 s enhancement scheme. Every

historical and current political or social movement has involved legitimate and

lawful activities along with a militant segment of potentially radical, violent

membersJ At the heart of every social movement is the attempt to affect,

influence, and change the conduct of government, which in some cases oppresses

its people, and the attempt to influence and change the conduct of government is

exactly 'what determines whether a particular social movement is labeled as

terrorists.

Where the actual conduct is criminal as in the case of specifically

enumerated crimes under 18 U.S.C. 2332b(g)(5), the government can

legitimately investigate and punish such actions. However, Application Note 2

would not affect the segment of the movement engaging in criminal activity, but

rather would punish those engaged in legitimate First Amendment political

activity. In its investigation, the government can call a member of the social

4 This argument should not be read as conceding that the violent members of

social movements are in fact terrorists. Amici submit that the term terrorismhas been applied with an extremely broad stroke following the tragedy onSeptember 1 lth, and groups that were once labeled as radicals, freedom-fighters,: and revolutionaries now carry the stigma of the terrorist label.However, such an issue is not at bar in this case.


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movement to testify before a grand jury. As an act of protest, a member of a

movement who has engaged in no illegal activity, may choose to remain silent.

Such a person can legitimately be prosecuted for obstruction or contempt, but

through Note 2, her sentence will be enhanced exponentially, leaving her in jail for

decades for an act of civil disobedience and association with a legitimate political

movement. Such a result is more readily identifiable with the Apartheid regime in

South Africa and the imprisonment of Nelson Mandela than any connection to

values that this nation holds dear. Under such a sentencing regime, for his acts of

civil disobedience, Martin Luther King, Jr. would have spent eleven years, instead

of eleven days in Birmingham Jail.

Seemingly, Note 2 of the terrorism enhancement was adopted in direct

contradiction of the Supreme Court's holding in N.A.A.C.P.v. Claiborne

Hardware Co., 458 U.S. 886, 908 (1982), that It]he right to associate does not

lose all constitutional protection merely because some members of the group may

have paa'ticipated in conduct or advocated doctrine that itself is not protected.

The aforementioned arguments present the terrorism enhancement in its

proper _draconian' context, permitting the government two bites of the apple and

infringing upon legitimate dissent.


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II. History of Application Note 2 of U.S.S.G. 3A1.4

Even though the above concems are obvious on the face of Note 2 of the

terrorism enhancement, the Sentencing Commission omitted any discussion of

these problems. In fact, the legislative reasoning for its enactment is non-existent.

Thus, Application Note 2 of 3A1.4 was not a studied and well thought out

amendment by the Sentencing Commission.

The Sentencing Commission promulgated Note 2 on November 1, 2002

without express authority from Congress. The Sentencing Commission explains

that thi.s amendment to the sentencing guidelines was enacted in response to

Congress passing the USA PATRIOT Act of 2001. U.S.S.G. 2A 1.1, Historical

Notes 1:o2002 Amendments. The Commission writes that [a]mong [the 2002

amendment's] many provisions are appropriately severe penalties for offenses

against mass transportation systems and interstate gas or hazardous liquid

pipelines. The amendment also increases sentences for threats that substantially

disrupt governmental or business operations or result in costly cleanup measures.

ld. The Sentencing Commission further writes that [t]he amendment adds an

application note to 3A1.4 regarding harboring and concealing offenses to clarify

that 3;A1.4 may apply in the case of offenses that occurred after the commission

of the t_deral crime of terrorism (e.g., a case in which the defendant, in violation


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of 18 U.S.C. 2339A, concealed an individual who had committed a federal crime

of terrorism). ld. Any explanation of or reference to the obstruction section of

Application Note 2 is conspicuously absent.

Interestingly, even though the Sentencing Commission points to the

PATRIOT ACT as its 'authorization' for amending the sentencing guidelines,

Congress never mentions the need to have all obstructions of federal terrorism

investigations warrant increased punishment. See USA PATRIOT ACT, PL 107-

56, 2001 HR 3162. In fact, just like the Historical Notes, all that the PATRIOT

ACT responds to is the need to punish the harboring and concealing of terrorists.

]?he only suggestion of the need for such an application note dealing with

obstruction of justice comes from an agent with the Federal Bureau of

Investijgations, who testified in front of the Commission. The agent testified:

Let me single out, in particular, the need for severe punishments for personswho lied to FBI agents, who falsified documents or otherwise obstruct theinvestigation or prosecution of a terrorist offense. Offenders who engage in

tJhis type of behavior are accomplices to terrorism and undermine our effortto prevent and punish terrorist attacks. They should be treated accordingly.

Testimony of James F. Jarboe, United States Sentencing Commission 2002 Public

Hearing, p. 121 (Feb. 25, 2002), available at http://www.ussc.gov/hearings

/2 25 02/0225USSC.htrn. This statement, however, should be viewed in the

overall context of the FBI agent's testimony and his suggestion that all crimes,


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even those tangentially related to terrorism, should be uniformly severely

punished, whether the crime involved a hoax concerning a terrorist attack, the

provision of a driver license to a possible terrorist, or the use of a nuclear weapon.

Id. at 112-26. The Sentencing Commission engaged in no other discussion

regardi:ag the pros and cons of the obstruction section of Note 2.

This history of the development of Note 2 demonstrates that its inclusion in

the terrorism enhancement guideline was neither well researched or fully

discussed, but resulted from a blind rush to do something following 9/11. While

the Sentencing Commission has the authority to make amendments and submit

them to Congress as necessary, Note 2 was the result of the failure of the

Sentenc:ing Commission to responsibly use that authority.

The record reveals no evidence of any discussion about the actual effect of

Note 2, constitutional or practical. The Sentencing Commission failed to explain

the fact that Note 2 may create impermissible contradiction with the main text of

the terrorism enhancement, in that some obstructions may not involve or be

intended to promote a federal crime of terrorism, yet Note 2 would require that a

defendant's sentence be enhanced anyway.

Thus, Note 2 as drafted raises a host of possible constitutional problems.

This is one of the main reasons why courts have shied away from using Note 2 by


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finding that it is unconstitutional or does not apply to the specific facts of the

cases. See United States v. Garey, 483 F.3d 1159 (1 lth Cir. 2007) (refusing to

apply the terrorism enhancement because of Sixth Amendment violations); United

States v. Maflahi, 183 Fed.Appx. 13 (2d Cir. 2005) (treating the entire guidelines

as unconstitutional as applied to the case); Biheiri, 356 F. Supp. 2d at 598

(refusing to apply the terrorism enhancement to the offense of making false

statements to law enforcement officers because there was no actual obstruction).

The main constitutional infirmity of Note 2 is that as-applied in this case

(and practically any other obstruction case) it violates the Sixth Amendment by

increasing Mr. Benkahla's sentence beyond the maximmaa sentence authorized by

the jury's verdict.

IlL Enhancing Mr. Benkahla s Sentence through Application Note 2 of

U.S.S.G. 3A1.4 Is a Violation of the Sixth Amendment Under Rita v.United States s Substantive Reasonableness Review Standard

Amici suggest to this Court that where the reasonableness of a sentence is

predicated upon the finding of some disputed judicial fact, not found by the jury or

admitted by the defendant, the sentence violates the Sixth Amendment. Mr.

Benkahla's sentence of 121-months was increased from a range of 15 to 21

months based upon the judicial fact-finding that his offenses of conviction actually

obstructed an investigation of a federal crime of terrorism, a fact not found by the

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jury or admitted by the defendant. Thus, Amici believe that such a sentence is a

violation of Mr. Benkahla's Sixth Amendment rights, and the Court should find

that it is unreasonable and remand for resentencing with instruction to the district

court that any sentence imposed cannot exceed the statutory maximum authorized

by the jury's verdict. See Rita v. United States, 127 S. Ct. 2456 (2007) (Scalia, J.,

concurring in part, concurring in judgment). Accord Cunningham v. California,

127 S. Ct. 856 (2007) (Alito, J., dissenting); United States v. Griffin, 494 F. Supp.

2d 1 (D. Mass. 2007).

A brief review of sentencing law and the Sixth Amendment is necessary to

see how such a result is necessitated. The Sixth Amendment's recent connection

with sentencing procedures began with Apprendi v. New Jersey, 530 U.S. 466

(2000), which involved a New Jersey sentencing scheme. From Apprendi arose

the constitutional maxim that [o]ther than the fact of a prior conviction, any fact

that increases the penalty for a crime beyond the prescribed statutory maximum

must be: submitted to a jury, and proved beyond a reasonable doubt. ld. at 490.

This seems like a bright-line rule, but in application is anything but. The

definition of what the 'statutory maximum' means has evolved over time.

Next, the Supreme Court applied the Apprendi rule to the state of

Washington's sentencing procedures in Blakely v. Washington, 542 U.S. 296

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(2004). In Blakely, a Washington statute provided a maximum sentence often

years, while the state's sentencing procedures provided a sentence range between

49 and :53 months, allowing upward departures if the judge found substantial and

compelling reasons. ld. at 299. The sentencing court, outside of the jury's

verdict, found that the defendant acted with deliberate cruelty and sentenced him

to 90-months imprisonment, ld. at 300. The United States Supreme Court

invalidated the sentence as a violation of the Sixth Amendment according to

Apprendi, finding that the relevant 'statutory maximum' is not the maximum

sentence a judge may impose after finding additional facts, but the maximum he

may impose without any additional findings. ''s Id. at 303-304. Therefore, in light

of the mandatory nature of the guidelines, a Sixth Amendment violation would

occur artytime that a district court would increase a defendant's sentence above the

top limit of the mandatory sentence range, as calculated by turning to facts found

by the jury, without regard to the explicitly prescribed statutory maximum.

In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court

extended the Apprendi/Blakely holding to the federal sentencing guidelines,

finding that [a]ny fact (other than a prior conviction) which is necessary to

]?he Blakely Court found that the facts admitted to by the defendant onlysupported a maximum sentence of 53 months. Id. at 305.

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support a sentence exceeding the maximum authorized by the facts established by

a plea of guilty or a jury verdict must be admitted by the defendant or proved to a

jury beyond a reasonable doubt. Booker, 543 U.S. at 244.

However, the Booker Court did not stop there. In the remedial portion of

Booker, the Supreme Court threw the federal sentencing guidelines into disarray,

finding that the Guidelines could be saved by making them advisory, rather than

mandatory, ld. at 245. Furthermore, the Booker Court delineated the appropriate

standard of review of sentences under the advisory guideline scheme, whether the

district court's sentence is reasonable with regard to [the] 3553(a) [factors].

ld. at 261.

After Booker, the question becomes what is the sentence that is the

maximum authorized by the facts established by a plea of guilty or a jury verdict.

If the Supreme Court simply made the sentencing guidelines advisory, the answer

to this question would be easy. A court would be able to sentence a defendant

anywhere between the explicit statutory minimum and statutory maximum, taking

into account the 3553(a) statutory factors, with the advisory guidelines being

one of those factors. The maximum authorized by the facts established by a plea

of guilty or a jury verdict would be the explicit statutory maximum in the federal

statute that the jury convicted the defendant of violating or that the defendant

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pleaded guilty to. However, Booker went further and set up the practice of

substantive reasonableness review of a sentence imposed by a district court.

Before the effect of reasonableness review upon defining the maximum

sentence authorized by facts found by a jury is discussed further, it must be

highlighted that the next significant case that the Supreme Court decided aRer

Booker' was Cunningham v. California, 127 S. Ct. 856 (2007). Cunningham

involw_'d a California sentencing scheme by which after a guilty verdict or plea, a

defendant was sentenced to a lower, middle or upper term sentence, ld. at 860.

The Court found that this sentencing scheme was unconstitutional because to

sentence a defendant to an upper term sentence, the sentencing judge had to find

enhancing facts, not determined by a jury, by a preponderance of the evidence, ld.

The Court reaffirmed the holding of Apprendi/Blakely/Constitutional Booker,

holding that the Sixth Amendment proscribes a sentencing scheme that allows a

judge to impose a sentence above the statutory maximum based on a fact, other

than a prior conviction, not found by a jury or admitted by the defendant. and

the relevant 'statutory maximum'.., is not the maximum sentence a judge may

impose after finding additional facts, but the maximum he may impose without

additional finding. ld. (citations omitted). While this decision would seemingly

invalidate the remedial Booker decision, instead focusing on Constitutional

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Booker', the majority in Cunningham, in dicta, distinguished the California

sentencing scheme from the federal sentencing guidelines, ld. at 870. However,

in his dissent, Justice Alito states that [t]he Califomia sentencing law that the

Court strikes down today is indistinguishable in any constitutionally significant

respect from the advisory Guidelines scheme that the Court approved in United

States v. Booker. Cunningham, 127 S. Ct. at 873 (Alito, J., dissenting).

Therefore, even though the Court found that for Sixth Amendment purposes

the 'statutory maximum' must be determined by jury-found facts, the holding had

not been applied to the federal sentencing scheme. Then, into this muddled mess

comes Rita v. United States, 127 S. Ct. 2456 (2007). While on the surface Rita

dealt with the appellate standard of review for sentencing decisions, implicit in

upholding a reasonableness standard of review, the Court created a new variation

of what should be considered to be a 'statutory maximum' for Sixth Amendment

purposes. In Rita, the Court found that sentences within an advisory guideline

range m'e afforded a rebuttable presumption of reasonableness, ld. at 2464. The

Court found that a rebuttable presumption of reasonableness does not

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automatically create Sixth Amendment problems. 6 ld. at 2465-66. However, the

majority and concurring opinions recognized that this holding may have certain

Sixth Amendment problems that were not presented in this case, but the majority

stated that the Sixth Amendment concerns [Justice Scalia] foresees are not

presented by this case. And his need to rely on hypotheticals to make his point is

consistent with our view that the approach adopted here will not 'raise a multitude

of constitutional problems.' Similarly, Justice Scalia agrees that we have never

held that the Sixth Amendment prohibits judges from ever finding any facts'

relevant to sentencing. /d.

In their concurring opinion, Justice Stevens and Ginsburg also

acknowledged that the Rita holding may cause Sixth Amendment problems in the

6The Court reasoned that:

the presumption, even if it increases the likelihood that the judge, not thejury, will find 'sentencing facts,' does not violate the Sixth Amendment.The Court's Sixth Amendment cases do not automatically forbid a

sentencing court to take account of factual matters not determined by a juryand to increase the sentence in consequence. Nor do they prohibit thesentencing judge from taking into account of the Sentencing Commission's

_etual finding or recommended sentences.

Id. at 2465-66. The Court continues: The Sixth Amendment question.., iswhether the law forbids a judge to increase a defendant's sentence unless the judgefinds facts that the jury did not find (and the offender did not concede). ld. at

2466 (citing Blakely, 542 U.S. at 303-04).

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future, but even if some future unusually harsh sentence might violate the Sixth

Amendment because it exceeds some yet-to-be-defined judicial standard of

reasonableness, Justice Scalia correctly acknowledges this case does not present

such a problem. ld. at 2473 (Stevens, J. and Ginsburg, J., concurring).

Here is how substantive reasonableness review can create Sixth Amendment

problems, even for sentences that are within the prescribed statutory maximum.

Consider an offense that has a prescribed statutory maximum often years. A

correctly calculated guideline sentence for this offense would be 15 to 21 months.

No 3553(a) statutory factors justify a variance sentence above the 21 month

upper guideline range. Notwithstanding this, the court sentences the defendant to

80-months imprisonment. An appellate court will undoubtedly reverse such a

sentence because it is unreasonable, despite the 80 months being within the

prescribed statutory maximum. Now consider another defendant who is convicted

of the sanae offense. There are no 3553(a) statutory factors that suggest that an

enhanced sentence is necessary. However, in this case the sentencing court makes

a finding of fact, not found by the jury, to apply a guideline enhancement, which

raises hJ.s sentencing range to between 78 and 97 months. The court imposes the

same 813,-month sentence. An appellate court, applying the presumption of

reasonableness, would affirm the sentence as reasonable. The only thing that

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makes such a sentence reasonable is a judge s factual finding that goes beyond the

facts found in the jury's verdict- an explicit violation of the Sixth Amendment.

J,astice Scalia's opinion fully fleshes out this Sixth Amendment problem

inherent in the Rita decision. Justice Scalia stated that because there is a

reasonableness standard with a rebuttable presumption of reasonableness for a

guideline sentence some sentences reversed as excessive will be legally

authorized in later cases only because additional judge-found facts are present; and

as Justice Alito argued in Cunningham, some lengthy sentences will be affirmed

(i.e., held lawful) only because of the presence of aggravating facts, not found by

the jury. that distinguish the case from the mine-run. The Court does not even

attempt to explain how this is consistent with the Sixth Amendment. ''7 ld. at

2475-76 (Scalia, J., concurring in part, concurring in judgment).

/d. at

7 Justice Scalia argues that:

Nothing in the Court s opinion explains why, under the advisory Guidelines

scheme, judge-found facts are never legally necessary to justify thesentence. By this I mean the Court has failed to establish that every

sentence which will be imposed under the advisory Guidelines schemecould equally have been imposed had the judge relied upon facts other thanthose found by the jury or admitted by the defendant. In fact, the Court

implicitly, but quite plainly, acknowledges that his will not be the case, bytreating as a permissible post-Booker claim petitioner's challenge of his

within-Guidelines sentence as substantively excessive.

2475-76 (Sealia, J., concurring in part, concurring in judgment).

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3ustice Scalia describes two hypotheticals that illustrate how substantive

reasonableness review produces, in violation of the Sixth Amendment, sentences

whose legality is premised on a judge's finding some fact (or combination of facts)

by a preponderance of the evidence. ld. at 2476 (Scalia, J., concurring in part,

concurring in judgment).

l?irst, consider two brothers with similar backgrounds and criminal histories

who are convicted by a jury of respectively robbing two banks of an equal

amount of money. Next assume that the district judge finds that one brother,fueled by racial animus, had targeted the first bank because it was owned

and operated by minorities, whereas the other brother had selected the,;econd bank simply because its location enabled a quick getaway. Furtherassume that the district judge imposes the statutory maximum upon bothbrothers, basing those sentences primarily upon his perception that bank

robbery should be punished much more severely than the Guidelines baselevel advises, but explicitly noting that the racially biased decisionmakingof the first brother further justified his sentence. Now imagine that the

appellate court reverses as excessive only the sentence of the nonracistbrother. Given the dual holdings of the appellate court, the racist has a valid

Sixth Amendment claim that his sentence was reasonable (and hencelawful) only because of the judicial finding of his motive in selecting hisuictim.

Second, consider the common case in which the district court imposes a

s.entence within an advisory Guidelines range that has been substantiallyenhanced by certain judge-found facts. For example, the base offense level

tbr robbery under the Guidelines is 20, which if the defendant has a criminalhistory of I, corresponds to an advisory range of 33-41

months. If, however, a judge finds that a firearm was discharged, that avictim incurred serious bodily injury, and that more that $5 million was

stolen, then the base level jumps by 18, producing an advisory range of 235-293 months. When a judge finds all of those facts to be true and then

imposes a within-Guidelines sentence of 293 months, those judge-found

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facts, or some combination of them, are not merely facts that the judge findsrelevant in exercising his discretion; they are the legally essential predicatefor his imposition of the 293-month sentence. His failure to find themwould render the 293-month sentence unlawfUl. That is evident because,were the district judge explicitly to find none of those facts true andnevertheless to impose a 293-month sentence (simply because he thinksrobbery merits seven times the sentence that the Guidelines provide) thesentence would surely be reversed as unreasonably excessive.

Id. at 2476 (Scalia, J., concurring in part, concurring in judgment).

The only court to address such an issue, the District Court for Massachusetts

has reinforced the implicit decision in Rita, that the statutory maximum for Sixth

Amendment purposes... [is] a judicially determined range based on jury-found or

defendant-admitted facts. United States v. Griffin, 494 F. Supp. 2d i, 17-18 (D.

Mass. 2007). s The court found that [w]hen considering what constitutes a

statutory maximum for Sixth Amendment purposes, the existence of appellate

review based on reasonableness defines the issue. It is clear that what must be

reasonable about a district court's sentence is not merely procedural but also

substantive. ld. at 16 (citing United States v. Moreland, 437 F.3d 424, 434 (4th

Cir. 2006). See also Rita 127 S.Ct. 2456. Booker did not create a pure,

8While Griffin was decided prior to the ruling in Rita, the Griffin court

properly used Booker's presumption of reasonableness standard and correctlypredicted how the Supreme Court would uphold the standard in Rita. Moreover,

in a decision after Rita, the District of Massachusetts upheld the decision in Griffinin light of the holding in Rita. See United States v. Birkett, 501 F. Supp. 2d 269,275 (D. Mass. 2007).

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discretlionary sentencing system, but, because of the appellate review that remains,

simply traded on determinate scheme directed by the sentencing guidelines for a

determinate scheme based on reasonable, reviewable, factual judgments. Griffin,

494 F. Supp. 2d at 16. As a result of such appellate review, the facts of each case

limit the sentence that a judge may reasonably impose. This, in turn, and in light

of Cunningham, implicates the Sixth Amendment. ''9 ld. at 17.

The district court then analyzes three possibilities of what constitutes the

statutory maximum for Sixth Amendment purposes...: (1) the maximum term

allowable by statute; (2) the minimum term required by statute; or (3) a judicially

determined range base on jury-found or defendant-admitted facts. ld. The court

dispenses with option one, finding that reasonableness review and Supreme Court

precedent militates against finding that the maximum term allowable by statute

constitutes the 'statutory maximum.' 10 ld. at 18. Furthermore, the court eliminates

9'The court recognized that It]he failure to recognize that the 'statutorymaximum' is not the maximum allowed under a statute will be the cause for much

of the post-Booker and now post-Cunningham disagreement with this Court's

holding in this case. Id. at 18n.36 (citing United States v. Belskis, 477 F. Supp. 2d237, 241)-41 (D. Me. 2007).

,0The court reasons that:

It]he discussion of reasonableness review, in addition to explicit SupremeCourt precedent, demonstrate that the statutory maximum for Sixth

Amendment purposes cannot be viewed as the maximum term allowed

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the second option of the prescribed statutory minimum sentence because

Booker's remedial structure necessitates at least some range within which a

sentencing judge may exercise the discretion necessary to effectuate

Congressional purposes and policies. ld. at 19. The court then concludes that the

'statutory maximum' must be the third option, It]he upper term of' the sentencing

guideline range determined solely by the facts found by a jury beyond a

reasonable doubt and reflected in its verdict. ld. Thus, as implicitly mandated by

the Rita decision, the District Court for Massachusetts found that because of

trader the applicable statute. * 18 (citing Blakely, 542 U.S. at 303-04 ( Inother words, the relevant 'statutory maximum' is not the maximum sentence

a judge may impose after finding additional facts, but the maximum he mayimpose without any additional findings. )). [L]ogic alone counsels that asentence at the maximum term allowed under a statute would not be

reasonable if only the elements of the offense were proven and no

aggravating facts were considered. Second, Cunningham made this logic itsvery holding. In Cunningham, the Supreme Court held that the applicablestatutory maximum was the middle term of the triad structure because thejudge was required to sentence at that level if only the elements of theoffense were proven. Despite the fact that the judge was legislatively

empowered under the limits of the statute- upon finding additional,aggravating facts- to sentence above the middle term, such an upward

movement pierced the 'statutory maximum.' Finally, to recognize this firstoption as the constitutionally applicable statutory maximum would

contradict the parsimony provision in the Sentencing Reform Act that statesthat a sentencing court, 'shall impose a sentence sufficient, but not greater

than necessary, to comply with the purposes set forth in paragraph (2) ofthis subsection.

Griffin, 494 F. Supp. 2d at 18.

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reasonableness review, the statutory maximum constitutes the upper term of a

judicially determined range, calculated by reference to facts specifically found by

the jury. _l ld. at 19.

While the Sixth Amendment problems were not presented in Rita, Justice

Scalia'.s prescient hypotheticals have come to pass, and the substantive

reasonableness review standard affirmed by the Rita Court has created a sentence

that violates Mr. Benkahla's Sixth Amendment rights. Compare the circumstances

of Mr. Benkahla in this case with another similarly situated defendant. Mr.

_JThe court then delineated the following procedure to follow in sentencingdecisions:

In practice, a sentencing judge would first consider the jury verdict and thefi_cts underlying such a verdict. The judge would calculate the Base

Offense Level in the Sentencing Guidelines from these facts for an advisoryr_mge. Guided by the advisory range and an ever-developing body of

common law, the sentencing judge would determine the statutory maximumsupported by the jury-found facts and the minimum sentence that ought tobe imposed as a result of those facts. The sentencing judge would then

normally sentence within that range based upon the section 3553(a) factorsmad aided by any facts found by a preponderance of the evidence. Thedistrict judge could not enhance the sentence beyond this range without

putting the facts of that enhancement before a jury. On appellate review, thereasonableness of the sentence would be adjudged, first, as to thecalculation of the statutory maximum and minimum and then, second, as to

the weighing of the section 3553(a) factors.

ld. at 20 (citing Blakely, 542 U.S. at 303 and Cunningham, 127 S. Ct. at 863-64).

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Benkahla was convicted of violations of 18 U.S.C. 1001, 1503 and 1623.

Without judicial determination that the terrorism enhancement applied, Mr.

Benkahla s guideline sentence would have been 15 to 21 months, without taking

into account the cross reference to accessory-after-the-fact. _2Instead, the District

Court tbund that the terrorism enhancement applied, and after admittedly

departing drastically, sentenced Mr. Benkahla to 121-months imprisonment. Now

take a hypothetical defendant who is convicted of the same exact offenses as Mr.

Benkahla for misleading a grand jury and the government in an investigation into

providing resources to a designated foreign terrorist organization. However,

assume that this investigation was not actually obstructed, because although the

hypothetical defendant misled the investigators, the investigators had all the

information they needed prior to the defendant s testimony. The resulting

1:..Applying the cross-reference to accessory after the fact, the probationofficer found that the offense that the government was investigating was providingresources to a designated foreign terrorist organization., which has a base offenselevel ot' 26. According to the accessory-after-the-fact guideline, the base offense

level for obstruction is six levels less than the underlying offense, netting anadjusted offense level of 20. With Mr. Benkahla's criminal history category of I,the resulting guideline range is 33 to 41 months. The application of the cross-

reference, encompassing a judicial finding that the underlying investigation wasconcerning material support of a foreign terrorist organization, may very well alsoviolate the Sixth Amendment. However, because the terrorism enhancement

increased the guideline sentence to 210 to 262 months, regardless of whether the

cross-reference applied, the cross-reference was not addressed by the district court.

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guideline range would be 15 to 21 months. Assuming identical facts to Mr.

Benkahl.a s case, the defendant has no prior criminal history and has been a model

citizen except for the instant circumstances. A District Court who imposed a

sentence of 121-months imprisonment, departing upward from the highest

guideline range by about 600-percent, would beyond peradventure be overturned

by an al:,pellate court for imposing an unreasonable sentence. Nothing in the 18

U.S.C. _.3553(a) factors would support such an upward departure. In Mr.

Benkahla s case, the only way that this Court could find his sentence of 121-

months imprisonment reasonable is by relying on the judicially found fact of

actual obstruction of an investigation into a federal crime of terrorism. This

inherently creates a Sixth Amendment problem as the juries in both casesfound

the exact same facts, yet Mr. Benkahla would be sentenced much harsher than the

hypothetical defendant based upon judicially found facts.

Therefore, the lynehpin question is whether Mr. Benkahla s 121-month

sentence would be upheld as reasonable if it was based merely on the facts found

by the jury beyond a reasonable doubt. As stated above, the only thing that makes

such a sentence reasonable would be the finding of judicial facts, mainly that Mr.

Benkahla s actually obstructed an investigation of a federal crime of terrorism.

Essentially, this makes the maximum sentence authorized the highest limit of a

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sentence that would be reasonable, only considering jury-found facts. Once, the

limit is delineated, a judge can find additional facts to impose a term of

imprisonment at or below the maximum authorized sentence. Amici suggests that

the 'ste:tutory maximum' of Mr. Benkahla's sentence should be the highest

guideline range of the guideline range calculated by only considering jury found

facts. Therefore, the statutory maximum should be 21-months.

First, it is obvious that Mr. Benkahla's circumstances differ markedly from

the petitioner in Rita. See Rita, 127 S. Ct. at 2478 (Scalia, J., concurring in part,

concun'ing in judgment) ( Nor is my claim that the Sixth Amendment was violated

in this case, for petitioner cannot demonstrate that his relatively low sentence

would have been unreasonable if the District Court had relied on nothing but jury-

found or admitted facts. ). In Mr. Benkahla's case, the judge found fact of

applical:ion of the terrorism enhancement increased his sentence he would have

received based only on jury found facts from 15 to 21 months to 210 to 262

months. The district court had to depart to come to the still much higher sentence

of 121 months. There is nothing in the facts of this case to suggest that a sentence

of 121 months would have been reasonable without the finding that the terrorism

enhancement applied. All of the circumstances present in this case that reflected

upon 3553(a) factors were mitigating rather than aggravating. Mr. Benkahla has

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absolutely no prior history of criminal behavior, presents little risk of criminal

recidivi.sm, is a model citizen and loving husband and father, had no willful intent

promote a federal crime of terrorism, and Mr. Benkahla's actions did not prevent

the government from carrying out its investigation. 13

r, Relevantly, the District Court held that Mr. Benkahla had no criminalrecord and no evidence of ever having committed an illegal act in his life outside

of the conduct for which he is convicted. Benkahla, 501 F. Supp. 2d at 759.Furthermore,

Sabri Benkahla is not a terrorist. He does not share the same characteristicsor the conduct of a terrorist, and in turn, he does not share the same

likelihood of recidivism, the difficulty of rehabilitation, or the need for

incapacitation .... Defendant has not committed any other criminal acts andthere is no reason to believe he would ever commit another crime after his

release from imprisonment. Defendant has engaged in model citizenry,receiving a Master's degree from The John Hopkins University,volunteering as a national elections officer in local, state, and national

elections, and demonstrating his dedication to his four-year-old son. It isclear that, in the case of the instant defendant, his likelihood of ever

committing another crime is infinitesimal ....

[Defendant] is an American citizen, born and raised in Northern Virginia.He attended a local high school and college, excelling at both and received a

Master's degree at The John Hopkins University. He has a significantnumber of strong, positive relationships with friends, family, and thecommunity. In fact, the Court received more letters on Defendant's behalf

than any other defendant in twenty-five years, all attesting to his honor,

integrity, moral character, opposition to extremism, and devotion to civicduty.

Id. at 760-61. Furthermore, Mr. Benkahla did not have:

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In total consideration of the 3553(a) factors present in this case, which all

tend to mitigate any sentence imposed rather than aggravate, if the sentence

imposed was solely based upon conduct found by the jury, resulting in a

sentencing range of 15 to 21, a sentence by a District Court of 121 months would

undeniably be overturned as unreasonable. Thus, the only way that the District

Court can justify the imposition of the 121-month sentence is upon reliance upon

judicially found facts, in violation of the Sixth Amendment.

the willful intent to promote an act of terrorism .... As to the motivation forhis untruthfulness, this Court is unsure. Defendant may have been

motivated out of a desire not to be seen as involved with illegal activities.

He may have been concerned about potential hardship he might causeothers. He may have been embarrassed of his own conduct.

Id. at 760. The District Court also found that:

although Defendant 'actually' obstructed the investigation.., the extent ofDefendant's actual obstruction was hardly devastating to the investigation.

Defendant was not the lynchpin in any organization or conspiracy beingin.vestigated, and the Government still achieved successful prosecutions of

multiple persons with whom Defendant was affiliated .... To serve 210months for false statements made by Defendant, without the intent to

promote a crime of terrorism and without any evidence that his obstructioncaused any tangible harm to others, is simply more than necessary toachieve these goals.

ld. at 761.

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CONCLUSION

As created by the substantive reasonableness review standard in Rita, which

d[id] not rule out as-applied Sixth Amendment challenges to sentences that

would not have been upheld as reasonable on the facts encompassed by the juryJ

verdict or guilty plea, Amici suggest that Mr. Benkahla's sentence of 121-months

would not be upheld as reasonable based upon the facts found by the jury, absent

the judicial finding of application of the terrorism enhancement. Rita, 127 S. Ct.

at 2479 (Sealia, J., concurring in part, concurring in judgment). Therefore, this

Court should overtum the sentence of 121-months as unreasonable and remand to

the dista-ict court for resentencing within the confines of the Sixth Amendment.

Respectfully Submitted,

Attorney for CAIR

Zwerling, Leibig, and Moseley, P.C.108 North Alfred Street

Alexandria, VA 22314

Phone: (703) 684-8000

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_ADHIRA F. AL KHALILI

VSB. 46603

StaffAttomeyAttorney for CAIR

435 New Jersey Avenue, S.E.

Washington, D.C. 20003Phone: (202) 646-6034

Attorney for MASF2401 Pennsylvania Avenue, N.W.Suite 320

Washington, District of Columbia 20037

Phone: (202) 955-5559

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CERTIFICATE OF COMPLIANCE

This Brief of Amici Curiae has been prepared using:

Corel WordPerfect;

Times New Roman;

14 Point Type Space.

EXCLUSIVE of the Title Page, Table of Contents, Table of Authorities,

Certificate of Filing and Service, and this Certificate of Compliance, this brief

contains 6,980 words.

I understand that a material misrepresentation can result in the Court's

striking the brief and imposing sanctions. If the Court so directs, I will provide an

electronic version of the brief and/or a copy of the word or line print-out.

Respectfully Submitted,

Attorney for CAIR

Zwerling, Leibig, and Moseley, P.C.108 North Alfred Street

Alexandria, VA 22314

Phone: (703) 684-8000


37/38

_,,..

: } 7

NADHIRA F. AL KHALTLI

VSB. 46603

Staff Attorney

Attorney for CAIR

435 New Jersey Avenue, S.E.Washington, D.C. 20003Phone: (202) 646-6034

Attorney for MASF2401 Pennsylvania Avenue, N.W.Suite 320

Washington, District of Columbia 20037

Phone: (202) 955-5559


38/38

CERTIFICATE OF FILING AND SERVICE

I hereby certify that on this 4th day of December, 2007, I filed with the

Clerk's Office of the United States Court of Appeals for the Fourth Circuit, via

hand delivery, the required number of copies of this Amici Brief, and further

certify that I served, via UPS Ground, the required number of said brief to the

following:

Gordon Dean KrombergOFFICE OF THE U.S. ATrORNEY

2100 Jamieson AvenueAlexandria, VA 22314-5194

Counsel for Appellee

William B. MoffittMOFFITI & BROADNAX

11582 Greenwich Point Road

Reston, VA 20194

Counsel for Appellant

Andrew L. Hurst

REED SMITH LLP

1301 K Street, NW, Suite 1100Washington, D.C. 20005


Jonathan ShapiroGREENSPUN SHAPIRO

DAVIS & LEARY PC

3955 Chain Bridge Road

2nd FloorFairfax, VA 22030


The necessary filing and service were performed in accordance with the

instructions given me by counsel in this case.

lPo?EE, Un ZotSuite 1400

Richmond, Virginia 23219

Documents

Benkahla v. USA Amici Curiae 2007