United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER ON SENTENCING
L. KANE SENIOR U.S. DISTRICT JUDGE.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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
The check was later delivered and used by Mr.
Muhtorov‘s wife for their family‘s expenses.
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.
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.
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.
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.
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.
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.
U.S. SENTENCING GUIDELINES RANGE
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).
Calculation of the Guidelines Range
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. 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‘
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).
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
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.
§ 3A1.4: Terrorism Enhancement
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
(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.
government‘s argument regarding application of the
Terrorism Enhancement is disappointing. For such a
''draconian'' enhancement,  I would expect
the government to muster more than a single paragraph
justifying its application. The government‘s entire
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.
Am. Sentencing Statement at 10-11, ECF NO.
1884. 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.
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.
''[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.
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.
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
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. 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
§ 3C1.1: Obstruction of Justice Enhancement
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.''
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.
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] 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.
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. 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
§ 3B1.2: Mitigating Role Adjustment
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
§ 5K2.20: Aberrant Behavior Departure
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
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 §
§ 4A1.3: Criminal History Departure
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
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
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. 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
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,