FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 19-10092 Plaintiff-Appellee, D.C. No. v. 3:17-cr-00387-CRB-1 AMER SINAN ALHAGGAGI, Defendant-Appellant. OPINION Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding Argued and Submitted June 10, 2020 San Francisco, California Filed October 22, 2020 Before: MILAN D. SMITH, JR. and ANDREW D. HURWITZ, Circuit Judges, and DAVID A. EZRA, * District Judge. Opinion by Judge Milan D. Smith, Jr.; Dissent by Judge Hurwitz * The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation. 2 UNITED STATES V. ALHAGGAGI SUMMARY ** Criminal Law The panel vacated a sentence and remanded for resentencing in a case in which the defendant was convicted of attempting to provide material support to a terrorist organization in violation of 18 U.S.C. § 2339B(a)(1). The defendant opened six social media accounts for people he knew sympathized with ISIS, an offense the district court concluded was “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against the government conduct,” and thus triggered application of a terrorism enhancement pursuant to U.S.S.G. § 3A1.4. The panel explained that the § 3A1.4 enhancement does not automatically apply to all material support offenses. To trigger the enhancement, the government must prove elements distinct from those of the crime of conviction, specifically that the offense committed involved, or was intended to promote, a “federal crime of terrorism,” as defined in 18 U.S.C. § 2332b(g)(5). Regarding the two prongs of the definition of “federal crime of terrorism,” the parties agreed, and the panel held (1) that 18 U.S.C. § 2332b(g)(5)(A)—providing that the offense was calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct—imposes a specific intent ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V. ALHAGGAGI 3 requirement; and (2) that the defendant’s conviction for violating § 2339B(a)(1) is one of the enumerated statutes in 18 U.S.C. § 2332b(g)(5)(B). Addressing the remaining question whether the defendant’s conduct satisfied § 2332b(g)(5)(A), and noting that it was the government’s burden to prove that element by clear and convincing evidence, the panel held (1) because the district court failed to determine whether the defendant knew how the accounts he opened were to be used, it could not find that he specifically intended that the accounts be used to coerce or intimidate a government; and (2) the district court did not find sufficient facts to indicate that the defendant’s opening of social media accounts was intended to retaliate against government conduct. The panel concluded that the district court therefore abused its discretion in applying the terrorism enhancement. Dissenting, Judge Hurwitz wrote that, reviewing the district court’s factual findings for clear error and its application of the Sentencing Guidelines to ...
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