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United States v. Jumaev

United States District Court, D. Colorado

July 18, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
2. BAKHTIYOR JUMAEV, Defendant.

          MEMORANDUM OPINION AND ORDER ON SENTENCING

          JOHN L. KANE SENIOR U.S. DISTRICT JUDGE.

         After his co-defendant Jamshid Muhtorov informed him that the Islamic Jihad Union (IJU) was in need of financial support, Defendant Bakhtiyor Jumaev mailed Mr. Muhtorov $300. Mr. Jumaev wrote only a single check, and the funds never reached the IJU or any other foreign terrorist organization. Mr. Jumaev had no specific plot or plan and did not intend to further any via his contribution. The idea to aid the terrorist organization was proposed and facilitated entirely by Mr. Muhtorov. Indeed, Mr. Jumaev had no direct contact with the members of any terrorist organization. And, significantly, he never committed any act of violence, nor did he advocate for any particular violent act.

         Mr. Jumaev now comes before me for sentencing after having been found guilty by a jury of two counts in violation of 18 U.S.C. § 2339B, namely (1) conspiring and (2) attempting to provide material support in the form of $300 to the IJU, a designated foreign terrorist organization. Although his actions certainly are sufficient for the jury to have found him guilty of these two very serious crimes, the above summary illustrates how his guilt rests on far less culpable conduct than that of all other defendants of which I have been made aware who have been convicted under the same statute.

         I.

         BACKGROUND

         Mr. Jumaev is a 51-year-old Muslim immigrant. He was born in 1966, in Samarkand, Uzbekistan. At that time, Uzbekistan was part of the Soviet Union and subject to repressive Soviet policies that basically outlawed religion, including Islam, the majority religion in Uzbekistan. In that environment, Mr. Jumaev completed grade school, obtained vocational training in cooking and trading in goods, served as a cook in Ukraine in the Soviet Army, and worked in his relatives‘ tombstone business. He also married and started a family.

         Then, in 1991, Uzbekistan became a sovereign state with Islam Karimov as its President. During Karimov‘s 25-year reign, repressive policies and government controls took on new forms. Individuals were permitted to practice Islam but only as the regime saw fit. Religious figures were persecuted by the government for not adhering to its specifications. Access to information and freedom of the press were greatly restricted as well. In fact, Freedom House, a nonpartisan think tank in Washington, D.C., consistently gave Uzbekistan some of the lowest possible ratings for the existence of democratic freedoms. Trial Tr. at 1007:2-25; ECF No. 1832.

         In the mid- to late-1990s, the economy in Uzbekistan suffered, and a large segment of the population began to migrate to other places in search of employment. Mr. Jumaev likewise suffered from the economic situation and ultimately left his family in Uzbekistan to work in Israel for two and a half years to support them. After he returned to Uzbekistan, in 1999, Mr. Jumaev was found by the Uzbek security service, known as the SNB, to be in possession of cassette tapes of religious leaders who were disfavored by the government. As a result, he was jailed, interrogated, and beaten.

         These circumstances prompted Mr. Jumaev to travel to the United States the following year on a temporary visa. He first came to New York City, but settled in Lehighton, Pennsylvania, and then Philadelphia. Soon after arriving, he was struck by a car when riding a bicycle and was severely injured. He could not work, depended on others for support, and was unable to send money to his family in Uzbekistan during his year-long convalescence. Over the following decade, Mr. Jumaev found steady employment as a gas station attendant and a custodian, living a meager lifestyle so that he could consistently send money to his wife and three sons. He frequently worked night shifts and traveled hours to and from his jobs. Still, he talked with his family on almost a daily basis until his arrest in this case.

         Mr. Jumaev met his codefendant Jamshid Muhtorov in December 2009 when one of his roommates arranged for Mr. Muhtorov to stay in their apartment for a month while Mr. Muhtorov obtained his commercial driver‘s license. Mr. Muhtorov was also from Uzbekistan, and he and his family had moved as refugees to Denver in 2006. He had similarly experienced brutality at the hands of the Uzbek authorities and was exploring his Muslim faith in the United States.

         Over the months that passed, Mr. Jumaev and Mr. Muhtorov developed a long-distance friendship in which they discussed a wide variety of topics, such as their families, Islam, current events, and the immigrant experience in the U.S. They also conversed about the Islamic Jihad Union and the Islamic Movement of Uzbekistan (IMU), the history of the two foreign terrorist organizations, and related propaganda videos they found online. In speaking about these organizations, Mr. Jumaev and Mr. Muhtorov often used ambiguous code words, like wedding, resort, Switzerland, alpinists, and sportsmen. It is clear from their communications, though, that they both sympathized with the principal goal of the two organizations-to overthrow the regime of Islam Karimov.

         According to Dr. Guido Steinberg, a renowned expert in terrorism, the Islamic Jihad Union spun off from its older sister the Islamic Movement of Uzbekistan around 2001 or 2002 to focus their efforts globally and not just on Uzbekistan. In its heyday, from 2006 to 2009, the IJU had at most 100 to 200 members, but many considered it to be mostly obsolete by 2009 as its numbers dwindled to around a dozen. The organization has been affiliated with al-Qaeda and the Afghan Taliban and has fought U.S. and coalition forces in Afghanistan.

         In February 2010, Mr. Jumaev was detained by U.S. Immigration and Customs Enforcement for overstaying his visa, and his bond was set at $3, 000. In order to be released and to return to work, Mr. Jumaev borrowed various amounts from friends and acquaintances, including $500 from Mr. Muhtorov.

         Mr. Jumaev struggled to manage his and his family‘s debts after his arrest, so he did not pay Mr. Muhtorov back for many months. Mr. Muhtorov routinely hinted to Mr. Jumaev that he was having financial difficulties. And, eventually, in March 2011, Mr. Muhtorov relayed that the IJU, with which he had been communicating over the internet, was in dire need of financial support. Gov‘t Trial Ex. 125A at 2. Mr. Jumaev gathered $300, and used a friend‘s check to send the money to Mr. Muhtorov. A few days later, Mr. Jumaev asked Mr. Muhtorov if he had received the ''wedding gift.'' Gov‘t Trial Ex. 128A at 1.[1] The check was later delivered and used by Mr. Muhtorov‘s wife for their family‘s expenses.

         Mr. Muhtorov bragged to Mr. Jumaev and others for months about his scheme to go to Turkey to study and then to travel to ''the wedding.'' Mr. Jumaev encouraged Mr. Muhtorov and even stated that he was envious. See Gov‘t Ex. 131A at 3. In January 2012, Mr. Muhtorov put his plans into action. He purchased a one-way ticket to Turkey and discussed with his wife the possibility of him not returning. Before boarding the plane, though, Mr. Muhtorov was arrested. He was carrying $2, 865 in cash, two new iPhones, and a new iPad.

         After Mr. Muhtorov‘s arrest, FBI agents interviewed Mr. Jumaev twice at his house. Mr. Jumaev was not fully forthright with the agents during those interviews, specifically as to his use of code words with Mr. Muhtorov, the full scope of their discussions, and his internet activity. On March 15, 2012, Mr. Jumaev was arrested and was interrogated by FBI agents for three and a half hours. He has been in detention since that date.

         Regrettably, the complexities of the evidence and the nature of the charges delayed the commencement of Mr. Jumaev‘s trial until March 12, 2018. The trial was extensive, lasting seven weeks and involving hundreds of exhibits and tens of witnesses. The resources expended-to bring foreign witnesses and experts here, to depose witnesses abroad, to ensure accurate translations, to sift through mountains of evidence, and to exhaustively litigate the relevant issues-were great.

         But Mr. Jumaev was entitled to a fair trial and put forward the type of legitimate defenses that necessitate a trial. He argued that he was only repaying his debt to Mr. Muhtorov, a duty that, in his culture, was incredibly important. He claimed he was oblique about the debt repayment because, according to Uzbek custom, it would have been inappropriate and even offensive to directly discuss debt repayment. Additionally, he presented Mr. Muhtorov as an exaggerator who he thought was full of hot air. And Mr. Jumaev sought to demonstrate that any admissions he made during his post-arrest interrogation were involuntary, equivocal, and inconsistent.

         The jury deliberated over 15 hours and recessed for a weekend before returning the verdict. The jurors undoubtedly took their responsibilities seriously and returned the verdict only after careful consideration of the evidence presented and the law given.

         Post-verdict, I have received and reviewed the initial and final Presentence Investigation Reports (ECF Nos. 1885 & 1915), Mr. Jumaev‘s Objections (ECF No. 1910) and the Addendum (ECF No. 1916) to the Presentence Report, the government‘s Amended Sentencing Statement (ECF No. 1884), Mr. Jumaev‘s Sentencing Statement and Motion for a Variant Sentence (ECF No. 1908), Mr. Jumaev‘s Supplement thereto (ECF No. 1917), and Mr. Muhtorov‘s Memorandum Regarding Sentencing Guidelines (ECF No. 1918). Mr. Jumaev additionally submitted a letter he authored to the Court (ECF No. 1919) in which he stands on his innocence and iterates that he has been denied his right to a speedy trial and other arguments as to why he believes he was denied a fair trial. I have considered all of these submissions, including the contents of Mr. Jumaev‘s letter, in reaching the conclusions detailed below.

         II.

         THE U.S. SENTENCING GUIDELINES RANGE[2]

         I have previously notified the parties that I find the U.S. Sentencing Guidelines to be illogical and inadequate for sentencing Mr. Jumaev. I elaborate on that conclusion further below. But, first, I calculate the applicable Guidelines range as required. See Gall v. United States, 552 U.S. 38, 49 (2007). If the following calculation is in error, however, it has no impact on the eventual sentence. See United States v. Sabillon-Umana, 772 F.3d 1328, 1334 (10th Cir. 2014) (acknowledging that remanding for resentencing does not help the defendant or enhance the integrity of judicial proceedings when a district judge analyzes a case under alternative theories and indicates he or she would arrive at the same sentencing conclusion either way); United States v. Gieswein, 887 F.3d 1054, 1062-63 (10th Cir. 2018).

         A. Calculation of the Guidelines Range

         U.S. Sentencing Guideline § 2M5.3(a) sets the Base Level for a conviction under 18 U.S.C. § 2339B at 26. Mr. Jumaev‘s two counts are grouped together under the Sentencing Guidelines because they involve a common criminal objective and constitute part of a common scheme or plan. See U.S.S.G. § 3D1.2.[3] Mr. Jumaev has no known criminal history, making his Criminal History Category I. So, without any adjustments or departures, Mr. Jumaev‘s Guidelines range would be 63 to 78 months‘ imprisonment.

         The Guideline for convictions under 18 U.S.C. § 2339B, however, provides for a two level increase ''[i]f the offense involved the provision of (A) dangerous weapons; (B) firearms; (C) explosives; (D) funds with the intent, knowledge, or reason to believe such funds would be used to purchase any of the items described in subdivisions (A) through (C); or (E) funds or other material support or resources with the intent, knowledge, or reason to believe they are to be used to commit or assist in the commission of a violent act . . . .'' U.S.S.G. § 2M5.3(b)(1).

         The government claims that Mr. Jumaev had a reason to believe that the funds he provided would be used to obtain dangerous weapons or firearms or to commit or assist in the commission of a violent act. As support, it relies on Mr. Jumaev‘s viewing of IJU and IMU terrorist propaganda videos, his discussions with Mr. Muhtorov on their duty to participate in the ''wedding, '' and his comments on YouTube videos in support of violent jihad. Mr. Jumaev was familiar with the IJU‘s purpose and its activities and readily admitted to knowing that it was a foreign terrorist organization. Thus, he necessarily had a reason to believe, at a minimum, that any funds provided to the IJU would have been used to commit or assist in the commission of a violent act. I find the two-level increase under § 2M5.3(b) is applicable. That finding bumps Mr. Jumaev‘s offense level up to 28, resulting in a range of imprisonment of 78 to 97 months.

         That is not the end of the story, though. For crimes related to terrorism, I must evaluate the application of the so-called Terrorism Enhancement in U.S.S.G. § 3A1.4. And, here, I must also address the government‘s suggestion that I apply the Obstruction of Justice Enhancement in § 3C1.1 as well as Mr. Jumaev‘s entreaty that I apply the mitigating role adjustment in § 3B1.2 and the criminal history and aberrant behavior departures in §§ 4A1.3 and 5K2.20, respectively.

         Adjustments

         1. § 3A1.4: Terrorism Enhancement

         The Terrorism Enhancement, when applied, ''takes a wrecking ball'' to the initial Guidelines range. George D. Brown, Punishing Terrorists: Congress, the Sentencing Commission, the Guidelines, and the Courts, 23 Cornell J.L. & Pub. Pol‘y 517, 520 (2014). It functions by both increasing the offense level at least 12 levels and elevating the defendant to the highest Criminal History Category, irrespective of his or her actual criminal history. In full, the Terrorism Enhancement states:

(a) If the offense is a felony that involved, or was intended to promote, a federal crime of terrorism, increase by 12 levels; but if the resulting offense level is less than level 32, increase to level 32.
(b) In each such case, the defendant‘s criminal history category from Chapter Four (Criminal History and Criminal Livelihood) shall be Category VI.

U.S.S.G. § 3A1.4. The ''federal crime of terrorism'' the Enhancement references is that defined in 18 U.S.C. § 2332b(g)(5): ''[A]n offense that-(A) is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct; and (B) is a violation of-[a list of enumerated offenses, including] (i) section . . . 2339B (relating to providing material support to terrorist organizations) . . . .'' If the Enhancement were to apply to Mr. Jumaev‘s offenses, his sentencing range would skyrocket to 360 months‘ imprisonment.

         The government‘s argument regarding application of the Terrorism Enhancement is disappointing. For such a ''draconian'' enhancement, [4] I would expect the government to muster more than a single paragraph justifying its application. The government‘s entire argument is:

The record is replete with evidence that JUMAEV and MUHTOROV intended to retaliate against the actions of both the Uzbek and United States Government. Further, the offense conduct here was plainly one that ''involved, or was intended to promote, '' the crimes listed above. U.S.S.G. § 3A1.4(a). Indeed, violations of 18 U.S.C. § 2339B, the counts of conviction, are specifically listed in the definition of a ''Federal crime of terrorism.'' JUMAEV explained his anger at both the Uzbek and U.S. government to agents during his interview on March 15, 2012. Accordingly, the defendants‘ offense level [sic] should be increased by 12 levels.

         Gov‘t‘s Am. Sentencing Statement at 10-11, ECF NO. 1884.[5] Mr. Jumaev, in turn, spends seven pages presenting the specific standard for application of the enhancement and demonstrating that the record does not fulfill that standard. If I were to base my ruling on the efforts of the parties alone, I would find the enhancement inapplicable. I do not, however, fall into this temptation.

         I base my ruling instead on the standard taken from United States v. Awan, 607 F.3d 306, 313 (2d Cir. 2010). There, the Second Circuit explained that the disjunctive phrase from U.S.S.G. § 3A1.4-if the offense involved, OR was intended to promote, a federal crime of terrorism-''makes clear that the predicate offense must either (1) ‗involve‘ a federal crime of terrorism or (2) be ‗intended to promote‘ a federal crime of terrorism, and that each clause has a separate meaning.'' Awan, 607 F.3d at 313. ''A defendant‘s offense ‗involves‘ a federal crime of terrorism when his offense includes such a crime, i.e., the defendant committed, attempted, or conspired to commit a federal crime of terrorism as defined in 18 U.S.C. § 2332b(g)(5), or his relevant conduct includes such a crime.'' Id. at 313-14. Since Mr. Jumaev‘s convictions are under 18 U.S.C. § 2339B, a crime enumerated in § 2332b(g)(5)(B), I must only find, under that prong, that Mr. Jumaev had the ''specific intent'' to commit offenses that were ''calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.'' See Id. at 316-17. ''‗Calculation‘ is concerned with the object that the actor seeks to achieve through planning or contrivance . . . Section 2332b(g)(5)(A) does not focus on the defendant but on his ‗offense, ‘ asking whether it was calculated, i.e., , planned-for whatever reason or motive-to achieve the stated object.'' Id. at 317.

         Alternatively, ''[t]he ‗intended to promote‘ prong applies where the defendant‘s offense is intended to encourage, further, or bring about a federal crime of terrorism, even though the defendant‘s own crime of conviction or relevant conduct may not include a federal crime of terrorism.'' Id. at 314. So, even if Mr. Jumaev‘s offenses were not ''calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct, '' the terrorism enhancement may apply if, with his offenses, he intended to promote another‘s commission of a crime in § 2332b(g)(5)(B) that was. See Id. at 314-15. ''[A]n offense is ‗intended to promote‘ a federal crime of terrorism when the offense is intended to help bring about, encourage, or contribute to'' such a crime. Id. at 314.

         Under both the ''involves'' or the ''intended to promote prong, '' then, the Terrorism Enhancement only applies if I find that Mr. Jumaev had some intent that was not required for the jury to find him guilty. See Jury Instructions at 25, 29, ECF No. 1794-2 (requiring only knowledge for convictions under 18 U.S.C. § 2339B). I struggle to find that Mr. Jumaev had either the specific intent to commit crimes that were calculated to influence, affect, or retaliate against a government or the intent to promote another‘s federal crime of terrorism when the jury‘s conviction of him could rest only on his knowledge. Mr. Jumaev convincingly argues that he both could have intended to repay his debt to Mr. Muhtorov while knowing that the funds would go to support a foreign terrorist organization. I have no reason to believe that Mr. Jumaev would have ever sent money to the IJU if he had not been arrested by ICE and been loaned money by Mr. Muhtorov. Mr. Jumaev‘s offenses are the result of a convergence of factors that I detail throughout this Order, the most significant of which is that he owed a debt. The facts of this case are unique for that reason.

         I cannot and do not find, under the ''involves'' prong, that Mr. Jumaev‘s offenses were ''calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.'' Although Mr. Jumaev may have wished for the overthrow of Uzbek President Islam Karimov or perhaps even for the U.S. government to alter its foreign policy, his offenses were not calculated to achieve that object. See Awan, 607 F.3d at 314. My best justification for that determination is common sense. Mr. Jumaev gave only $300 to a person who himself was short on cash and did not even know how to get the money to the intended organization. If Mr. Jumaev‘s offenses were truly calculated towards a political objective, Mr. Jumaev would have done more, e.g., contributed more money on more occasions via a more reliable conduit to a more robust organization. Simply put, his offenses were not calculated at all.

         To fall within the ''intended to promote'' prong, Mr. Jumaev must have committed his offenses with the intent to help bring about, encourage, or contribute to another person‘s commission of a federal crime of terrorism.[6] Again, I am unable to find that Mr. Jumaev intended anything more than to repay his debt. The record does contain evidence that Mr. Jumaev would have approved of the commission of certain federal crimes of terrorism. But, as Mr. Jumaev asserts, there is no evidence in the record that he knew about, and certainly not that he intended to promote, any plan by the IJU to commit a politically-motivated crime of terrorism. This is underscored by the fact that Mr. Jumaev never had any direct contact with the IJU and that the organization was nearly defunct at that time. Even if it were sufficient for Mr. Jumaev to have intended generally to bring about, encourage, or contribute to federal crimes of terrorism, the government has not conclusively established that he sent Mr. Muhtorov the $300 check with that intent. I, therefore, find that the Terrorism Enhancement is inapplicable to Mr. Jumaev‘s offenses.[7]

         2. § 3C1.1: Obstruction of Justice Enhancement

         The government additionally contends that the two-level Obstruction of Justice Enhancement appears to apply because Mr. Jumaev committed perjury in testifying at trial and provided materially false information to the Court. The enhancement only applies when:

(1) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the obstructive conduct related to (A) the defendant‘s offense of conviction and any relevant conduct; or (B) a closely related offense . . . .

U.S.S.G. § 3C1.1. Application Note 4 to the Guideline provides as examples of qualifying conduct: ''committing, suborning, or attempting to suborn perjury, . . . if such perjury pertains to conduct that forms the basis of the offense of conviction'' and ''providing materially false information to a judge or magistrate judge.''

         In determining what constitutes perjury for the purposes of the Obstruction of Justice enhancement, I rely on the federal criminal perjury statute, 18 U.S.C. § 1621. ''A witness testifying under oath or affirmation violates this statute if she gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory.'' United States v. Dunnigan, 507 U.S. 87, 94 (1993). ''[N]ot every accused who testifies at trial and is convicted will incur an enhanced sentence under § 3C1.1 for committing perjury . . . . [The accused‘s] testimony may be truthful, but the jury may nonetheless find the testimony insufficient to excuse criminal liability or to prove lack of intent.'' Id. at 95.

         I will not speculate from the jury‘s verdict what testimony it rejected and what it accepted, and I cannot conclude, as the government does, that its conviction of Mr. Jumaev establishes that his testimony was false. The government provides as examples of his ''lies'' his testimony ''that his $300 payment to MUHTOROV was repayment of a debt and not intended for the IJU, that he thought MUHTOROV was joking when he told the defendant about his contact with the IJU, and that he did not [believe][8] MUHTOROV intended to travel in order to join the IJU.'' Gov‘t Am. Sentencing Statement at 11. But the jury could have convicted Mr. Jumaev even while finding all of those statements to be true. Perhaps the jurors believed Mr. Jumaev‘s testimony that Mr. Muhtorov was an exaggerator and braggart but thought it was insufficient to counter his knowledge. I will not presume.

         In over forty years of judging I have never imposed a harsher sentence because a defendant asserted his right to trial by jury or to testify at that trial. I am not about to do so now or in the future. I consider any trial ''tax'' or penalty to be contrary to the ages-long values and standards of our legal system.[9] It is more closely associated with the jurisprudence of Russia, as described by Dostoyevsky, than our own tradition as described by Benjamin Cardozo. In that vein, application of the Obstruction of Justice Enhancement here would be a violation of the concepts of justice and of ordered liberty.

         3. § 3B1.2: Mitigating Role Adjustment

         Mr. Jumaev first argues that his offense level should be decreased two to four levels under U.S.S.G. § 3B1.2(a) and (b) because his role in the offense was appreciably less than Mr. Muhtorov‘s. U.S.S.G. § 3B1.2 instructs:

Based on the defendant‘s role in the offense, decrease the offense level as follows: (a) If the defendant was a minimal participant in any criminal activity, decrease by 4 levels. (b) If the defendant was a minor participant in any criminal activity, decrease by 2 levels. In cases falling between (a) and (b), decrease by 3 levels.

U.S.S.G. § 3B1.2. While Mr. Jumaev‘s culpable conduct overall certainly pales in comparison to Mr. Muhtorov‘s, he was not a minimal or minor participant in the crimes with which he was convicted. Mr. Muhtorov made contact with IJU and was to deliver the funds, but the support that was to be provided originated with Mr. Jumaev and he was aware of and a participant in the full scope of the crime.

         Departures

         1. § 5K2.20: Aberrant Behavior Departure

         Moving on to the departures Mr. Jumaev suggests, a downward departure may be warranted under U.S.S.G. § 5K2.20 ''in an exceptional case'' if ''(1) the defendant‘s criminal conduct meets the requirements of subsection (b); and (2) the departure is not prohibited under subsection (c).'' U.S.S.G. § 5K2.20(a). Here, none of the prohibitions in subsection (c) apply. Subsection (b) reads:

The court may depart downward under this policy statement only if the defendant committed a single criminal occurrence or single criminal transaction that (1) was committed without significant planning; (2) was of limited duration; and (3) represents a marked deviation by the defendant from an otherwise law-abiding life.

U.S.S.G. § 5K2.20(b). Application Note 3 to § 5K2.20 permits me to consider ''the defendant‘s (A) mental and emotional conditions; (B) employment record; (C) record of prior good works; (D) motivation for committing the offense; and (E) efforts to mitigate the effects of the offense.''

         Until his immigration arrest, Mr. Jumaev had no interactions with law enforcement and held steady employment in the U.S. for almost ten years. His greatest concern in life was and I imagine still is providing for his family. Although his discussions with Mr. Muhtorov regarding the IJU and IMU and his admiration for them spanned years, he wrote only a single check. It is unclear what his motivation was in doing so, but as I found above, it was not a calculated action. He has been in detention for 76 months and has only three disciplinary incidents, all of which related to disagreements with staff. Presentence Report at 4, ECF No. 1915. Considering all the evidence, Mr. Jumaev is most likely to continue with his ''otherwise law-abiding life'' once this case has terminated. I do have some reservation in applying this departure because I am troubled by Mr. Jumaev‘s failure to be fully forthright with law enforcement during their two interviews with them in early 2012 and by his testimony at trial revealing that his asylum application contained exaggerations. Nevertheless, I find that reduction of the offense level by two levels is justified under § 5K2.20.[10]

         2. § 4A1.3: Criminal History Departure

         For many of the same reasons that I depart under that provision, I determine that, if the Terrorism Enhancement were applicable to Mr. Jumaev‘s offenses, his criminal history would be overrepresented and he should benefit from a departure under U.S.S.G. § 4A1.3 as well. Section 4A1.3 provides: ''If reliable information indicates that the defendant‘s criminal history category substantially over-represents the seriousness of the defendant‘s criminal history or the likelihood that the defendant will commit other crimes, a downward departure may be warranted.'' U.S.S.G. § 4A1.3(b)(1). The Terrorism Enhancement would move Mr. Jumaev, a 51-year-old with no criminal history, from a Criminal History Category of I to VI. ''A judge determining that [the Terrorism Enhancement] over-represents ‗the seriousness of the defendant‘s past criminal conduct or the likelihood that the defendant will commit other crimes‘ always has the discretion under § 4A1.3 to depart downward in sentencing.'' United States v. Meskini, 319 F.3d 88, 92 (2003); United States v. Benkahla, 501 F.Supp.2d 748, 758 (2007) (applying the Terrorism Enhancement and then a downward departure under § 4A1.3 to drop the defendant‘s criminal history category from VI back down to I).

         Judge George O‘Toole has eloquently explained the most salient reasons for departing under § 4A1.3 when the Terrorism Enhancement applies:

[T]he automatic assignment of a defendant to a Criminal History Category VI is not only too blunt an instrument to have genuine analytical value, it is fundamentally at odds with the design of the Guidelines. It can, as it does in this case, import a fiction into the calculus. It would impute to a defendant who has had no criminal history a fictional history of the highest level of seriousness.

United States v. Mehanna, No. 1:09-cr-10017-GAO (D. Mass. April 12, 2012), Sentencing Tr. at 69:14-24, ECF No. 439. The assignment of a Criminal History Category of VI via the Terrorism Enhancement is purportedly based on the notion that, ''even terrorists with no prior criminal behavior are unique among criminals in the likelihood of recidivism, the difficulty of rehabilitation, and the need for incapacitation.'' Meskini, 319 F.3d at 92. But:

There is no published statistical data demonstrating that defendants convicted of violating 18 U.S.C. §§ 2339B, 2339C, or other anti-terrorism statutes-and especially those convicted of financing offenses-are any more likely to be recidivists than any other first offenders. Nothing in the history of U.S.S.G. [§] 3A1.4 would indicate that any reliable data was used to determine if a person convicted of a material support offense is more likely to be a recidivist.

James P. McLoughlin, Jr., Deconstructing United States Sentencing Guidelines Section 3A1.4: Sentencing Failure in Cases of Financial Support for Foreign Terrorist Organizations, 28 Law & Ineq. 51, 114-15 (2010) (footnotes omitted). Furthermore, with respect to Mr. Jumaev specifically, there is no indication that he is likely to recidivate or would be difficult to rehabilitate.[11] If the Terrorism Enhancement were applicable to Mr. Jumaev‘s offenses, I would depart under § 4A1.3 to lower him back down to Criminal History Category I.

         Final Guidelines Range

         At long last, I arrive at the appropriate Guidelines range for Mr. Jumaev‘s offenses. The offense level is 26, after applying the enhancement in § 2M5.3(b), finding inapplicable the Terrorism and Obstruction of Justice Enhancements and the Mitigating Role Adjustment, and departing under § 5K2.20. Mr. Jumaev remains at a Criminal History Category I. The Guidelines range is, therefore, ...


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