USA v. Salim, No. 04-2643 (2d Cir. 2008)
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04-2643-cr (Lead), 04-3200 (XAP) USA v. Salim 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2007 (Argued: May 13, 2008 Decided: December 2, 2008) Docket No. 04-2643-cr -----------------------------------------------------x UNITED STATES OF AMERICA, Appellee-Cross-Appellant, -- v. -MAMDOUH MAHMUD SALIM, Defendant-Appellant-Cross-Appellee. -----------------------------------------------------x B e f o r e : NEWMAN, WALKER, and SOTOMAYOR, Circuit Judges. Appeal by Defendant Mamdouh Salim from a 32-year sentence, 24 entered in the United States District Court for the Southern 25 District of New York (Deborah A. Batts, Judge), following a 26 guilty plea to conspiracy to murder and attempted murder of a 27 federal official in violation of 18 U.S.C. §§ 1114 and 1117. 28 United States cross-appeals on the ground that the district court 29 erroneously refused to apply the terrorism sentencing enhancement 30 of section 3A1.4 of the United States Sentencing Guidelines on 31 the basis that the offense conduct did not transcend national 32 boundaries. 33 VACATED and REMANDED. 34 -1- The 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 RICHARD LIND, New York, N.Y., for Defendant-Appellant-CrossAppellee. JONATHAN S. KOLODNER, Assistant United States Attorney, of counsel, (Celeste L. Koeleveld, Assistant United States Attorney, of counsel, on the brief), for Michael J. Garcia, United States Attorney for the Southern District of New York, New York, N.Y., for Appellee-Cross-Appellant. JOHN M. WALKER, JR., Circuit Judge: Defendant-Appellant Mamdouh Mahmud Salim ( Salim ) appeals 17 from the 32-year sentence imposed in the Southern District of New 18 York (Deborah A. Batts, Judge) following his guilty plea to 19 conspiracy to murder and attempted murder of a federal official 20 in violation of 18 U.S.C. §§ 1114 and 1117. 21 the district court erroneously applied several sentence 22 enhancements under the United States Sentencing Guidelines 23 ( U.S.S.G. ), including the enhancements for Obstructing or 24 Impeding the Administration of Justice, U.S.S.G. § 3C1.1, for an 25 Official Victim, U.S.S.G. § 3A1.2, and for Restraint of 26 Victim, U.S.S.G. § 3A1.3. 27 contends that the district court erred in failing to apply the 28 Terrorism enhancement of U.S.S.G. § 3A1.4, on the basis that 29 the offense conduct did not transcend national boundaries. 30 Because we reject Salim s claims but agree with the government 31 that the terrorism enhancement does not require such Salim contends that On cross-appeal, the United States -2- 1 transnational conduct, we remand with directions to the district 2 court to vacate the sentence and resentence. 3 BACKGROUND 4 In 1999, Salim and others were indicted in the Southern 5 District of New York on charges related to the 1998 U.S. Embassy 6 bombings in Kenya and Tanzania. 7 Leonard Sand and Salim was housed in the maximum security wing of 8 the Metropolitan Correctional Center (MCC). 9 The case was assigned to Judge On November 1, 2000, Salim stabbed corrections officer Louis 10 Pepe in the eye with a sharpened comb. 11 this attack were ultimately severed from the underlying 12 proceedings before Judge Sand, and, on April 3, 2002, Salim 13 pleaded guilty to conspiring and attempting to murder officer 14 Pepe in violation of 18 U.S.C. §§ 1114 and 1117 before Judge 15 Deborah Batts. 16 The charges arising from At the ten-day Fatico hearing, see generally United States 17 v. Fatico, 579 F.2d 707 (2d Cir. 1978), the government presented 18 the testimony of seven witnesses, several pieces of forensic 19 evidence, and crime scene photographs to support its theory that 20 Salim and unspecified others had concocted and acted upon an 21 elaborate but ultimately fruitless plan to escape the MCC by 22 taking hostages. 23 24 Inmates at the MCC were rotated between cells every 21 days. On October 25, 2000 (six days before the attack) Salim was moved -3- 1 from Cell One to Cell Six of Unit 10-South, where his cellmate 2 was Khalfan Mohamed, a co-defendant in the embassy bombings case. 3 In a pre-hearing submission, Salim contended that he 4 attacked Pepe in an attempt to escape, not to take hostages. 5 During the Fatico hearing, however, Salim s story changed. 6 direct examination, Salim testified that during the summer of 7 1999, he had planned to escape the MCC with Mohamed Odeh, another 8 codefendant, but ultimately decided that the escape plan could 9 not work and abandoned it. On Instead, Salim claimed, he attacked 10 Pepe to get his keys, unlock a visitation room on 10-South, and 11 attack his attorneys so that they would withdraw from 12 representing him and Judge Sand would have to grant substitute 13 counsel. 14 Salim claimed that he had grown increasingly frustrated with 15 counsel s performance and had written a letter to Judge Sand on 16 February 22, 2000 requesting substitute counsel. 17 a hearing and denied the request, telling Salim that it was up to 18 him to solve his problems with his attorneys. 19 Judge Sand held Salim wrote Judge Sand again on September 23 requesting 20 substitute counsel, and on October 2 thanking him for listening 21 to his problems and requesting a hearing before another judge. 22 Judge Sand referred the matter to Magistrate Judge Eaton, who 23 held a hearing on October 26, at which Salim (according to his 24 testimony at the Fatico hearing) insulted his attorneys and asked -4- 1 Are they waiting until I physically assault them? I didn t say 2 physically, but I said assault. 3 defendant expressed concern that he would not receive substitute 4 counsel and that he hadn t been given enough time to express 5 [his] problem with the lawyers. 6 In a letter dated October 27, On October 30, Salim said he received a letter from 7 Magistrate Judge Eaton informing him of his decision in writing, 8 not only verbally, that he will not allow attorney change. 9 then concluded that he only had one recourse, to attack [his He 10 lawyers] physically, and in that instance they will be 11 resigning. 12 help Salim assault his lawyers, in part to atone for his sin of 13 testifying in a way that led to Salim s imprisonment. 14 He complained to his cellmate Mohamed, who agreed to On November 1, according to Salim s testimony, Salim was 15 awakened by Pepe, who informed him that his lawyers were in one 16 of 10-South s visitation rooms. 17 room. 18 Salim said he needed to use the computer, he ended up separated 19 from his attorneys by a screen. 20 some more material from his cell. 21 cell, Salim began singing, which was a prearranged signal to 22 Mohamed to ready himself for the attack. 23 Six, Mohamed grabbed Pepe s walkie-talkie, and Salim struck Pepe took Salim to the visiting He usually met with his lawyers face-to-face, but because Salim then said he needed to get -5- As Pepe escorted him to his On arriving in Cell 1 Pepe s legs from behind and sprayed hot sauce in his eyes.1 2 Pepe on the floor, Salim attempted to turn him over to get his 3 keys. 4 eye with his sharpened comb-knife. 5 corrections officer s eye and entered his brain. 6 locked Pepe in the cell and started back to the visitation room, 7 at which point other corrections officers arrived and subdued 8 him. With Salim says he then became crazy and stabbed Pepe in the The weapon penetrated the Salim then 9 On September 25, 2003, the district court, in a lengthy 10 opinion, rejected the government s theory that Salim s assault on 11 Pepe was motivated by a hostage-taking/escape plan. 12 States v. Salim ( Salim I ), 287 F. Supp. 2d 250, 300-01 13 (S.D.N.Y. 2003). 14 was to attack his attorneys and thereby force Judge Sand to grant 15 his substitution motion. 16 determined that the attack on Officer Pepe was designed to 17 influence or affect by intimidation or coercion Judge Sand s 18 decision whether or not to substitute Defendant s counsel and 19 also was calculated to retaliate against judicial recommendations 20 and orders denying Defendant s applications for substitute 21 counsel. 22 numerous requests for substitution were denied, showing that 1 2 3 United The district court concluded that Salim s plan Id. at 304. As a result, the district court The district court observed that Salim s 1 A commissary request from October 26, the date of Salim s hearing before Magistrate Judge Eaton, showed that Salim requested five bottles of hot sauce and received two on that day. -6- 1 Salim knew Judge Sand had ultimate authority to replace his 2 attorneys. 3 Id. at 303. The district court also found that Salim s alternative 4 explanation, that he only wanted to force the attorneys to 5 resign, and was unconcerned with Judge Sand s actions, was 6 incredible, as [d]efendant clearly did not believe his 7 attorneys could unilaterally withdraw or resign from his case. 8 Id. at 304. 9 In calculating Salim s Guidelines sentence, the district 10 court found, inter alia, that a three-level enhancement applied 11 under U.S.S.G. § 3A1.2(a) (the Official Victim enhancement) 12 because Defendant attacked Officer Pepe while Pepe was 13 performing his official duties, and a two-level enhancement 14 under U.S.S.G. § 3A1.3 (the Restraint enhancement) because Pepe 15 was physically restrained during the attack. Id. at 308-09. 16 The district court declined to apply the terrorism 17 enhancement of U.S.S.G. § 3A1.4, which incorporates the term 18 Federal crime of terrorism defined in 18 U.S.C. § 2332b(g). 19 so holding, the district court s decision culminated in the 20 following conclusions: 21 22 23 24 25 26 27 28 In From the plain text of 18 U.S.C. § 2332b, the following is clear: 1.) Section 2332b(g), which inter alia, sets forth a definition for Federal crime of terrorism, explicitly directs this definition to be construed As used in this section; 2.) Section 2332b(f), wherein the term Federal crime of terrorism is used, vests the Attorney General with authority to investigate Federal crimes of terrorism, with such authority being in addition to that already available -7- 1 2 3 4 5 6 7 8 9 10 11 12 13 under Title 18; 3.) the Attorney General already has broad authority to investigate crimes under Title 18; 4.) Section 2332b is entitled and addresses Acts of terrorism transcending national boundaries (emphasis added); and 5.) Section 2332b(g)(1) recites that conduct transcending national boundaries means conduct occurring outside of the United States in addition to the conduct occurring in the United States. From the foregoing, it is apparent that a Federal crime of terrorism is one that meets the requirements at § 2332b(g)(5) and involves conduct transcending national boundaries. Id. at 339. 14 the latter requirement, the district court held that the 15 terrorism enhancement did not apply. 16 Because Salim s assault on Officer Pepe did not meet Id. at 354. The district court initially declined to impose an 17 obstruction of justice enhancement under U.S.S.G. § 3C1.1 based 18 on inconsistencies between Salim s testimony at the Fatico 19 hearing and his pre-hearing submissions to the court. 20 315. 21 government s motion for this enhancement based on a different 22 theory, concluding that Defendant testified untruthfully under 23 oath about a material fact with the specific intent to impede or 24 obstruct justice. 25 ( Obstruction Order ), No. 01-cr-002 (S.D.N.Y. Apr. 7, 2004). 26 Id. at On reconsideration, however, the court granted the Order at 7, United States v. Salim After applying the relevant enhancements, the district court 27 calculated Salim s guidelines range at 262-327 months 28 imprisonment. 29 § 5K2 and imposed a 32-year sentence. 30 United States v. Crosby, 397 F.3d 103 (2d Cir. 2005), the It then applied an upward departure under U.S.S.G. -8- On a Crosby remand, see 1 district court decided not to resentence. Salim filed the 2 instant appeal claiming the district court improperly enhanced 3 his sentence, and the government cross-appealed the district 4 court s decision not to apply the terrorism enhancement. DISCUSSION 5 6 We review a district court s imposition of sentence under 7 an abuse-of-discretion standard. 8 S. Ct. 586, 597 (2007). 9 incorporates de novo review of questions of law (including 10 interpretation of the Guidelines) and clear-error review of 11 questions of fact. 12 (2d Cir. 2008). 13 Guidelines range constitutes a significant procedural error 14 warranting remand for resentencing under this standard. 15 Gall, 128 S. Ct. at 597. 16 Gall v. United States, 128 The abuse-of-discretion standard United States v. Legros, 529 F.3d 470, 474 [I]mproperly calculating the applicable See Salim argues that the district court improperly calculated 17 the applicable Guidelines range by erroneously applying the 18 obstruction of justice, official victim, and restraint of victim 19 enhancements. 20 erred by refusing to apply the terrorism enhancement on the basis 21 that a Federal crime of terrorism must involve transnational 22 conduct. 23 I. 24 The government argues that the district court We address each argument in turn. The Obstruction of Justice Enhancement [T]o base a § 3C1.1 enhancement [for Obstructing or -9- 1 Impeding the Administration of Justice ] upon the giving of 2 perjured testimony, a sentencing court must find that the 3 defendant 1) willfully 2) and materially 3) committed perjury, 4 which is (a) the intentional (b) giving of false testimony (c) as 5 to a material matter. 6 329 (2d Cir. 1997). 7 willfully gave perjured testimony at the Fatico hearing regarding 8 his motive for his scheme to assault his lawyers. 9 Salim falsely claimed that he did not intend to affect Judge 10 Sand s determination to grant substitute counsel, and stated 11 that he only wanted to force his lawyers to resign of their own 12 volition. United States v. Zagari, 111 F.3d 307, The district court found that Salim Specifically, See Obstruction Order at 6. 13 A. Material and False Statements 14 Salim first contends that his motive for attempting to 15 attack his lawyers was not material because he only pleaded 16 guilty to attacking Pepe and not to any offense based on his 17 alleged plan to assault his lawyers. 18 This argument relies on an impermissibly narrow notion of 19 materiality. Material, for the purposes of the obstruction 20 enhancement, means evidence, fact, statement, or information 21 that, if believed, would tend to influence or affect the issue 22 under determination. 23 The issue under determination was whether the terrorism 24 enhancement applied, i.e., whether the attempted murder of Pepe U.S.S.G. § 3C1.1 n.6 (emphasis added). -10- 1 was calculated to influence or affect the conduct of government 2 by intimidation or coercion, or to retaliate against government 3 conduct. 4 had to determine the purpose of Salim s attack. 5 F. Supp. 2d at 290 ( The purpose of the Fatico hearing was to 6 adduce facts sufficient to establish Defendant's intent in 7 attacking Officer Pepe on November 1, 2000. ). 8 9 18 U.S.C. § 2332b(g)(5). In short, the district court See Salim I, 287 Absent Salim s statements, the district court could have concluded, for example, that the assault on Pepe was an isolated 10 incident, fueled by anger at Magistrate Judge Eaton s recent 11 adverse recommendation and Judge Sand s prior refusal to 12 substitute counsel. 13 larger plan and statements alleging a credible motive for such a 14 plan would, if believed, undoubtedly make the district court less 15 likely to draw this conclusion, and therefore less likely to 16 conclude that Salim attacked Pepe in retaliation for government 17 conduct (a motive warranting application of the terrorism 18 enhancement). 19 20 21 22 23 24 25 26 27 28 29 Testimony that the assault was part of a They are therefore material. As to the element of falsity, the district court found that Defendant s testimony that he believed substitution of counsel would have occurred but for the lawyers themselves is incredible. Defendant clearly did not believe his attorneys could unilaterally withdraw or resign from his case Defendant sent letters to Judge Sand, requesting substitution of counsel . . . and Defendant repeatedly interrupted proceedings in 98-CR-1023 [the embassy bombings proceeding] to address his requests to substitute counsel to Judge Sand. -11- 1 Salim I, 287 F. Supp. 2d at 304. 2 findings of fact on the falsity of Salim s statements. 3 can only reverse them if they are clearly erroneous. 4 States v. Agudelo, 414 F.3d 345, 348 (2d Cir. 2005). 5 These conclusions represent Thus, we United Salim contends that his testimony at the Fatico hearing was 6 consistent, rather than evasive and contradictory, 7 Order at 7. 8 court s characterization of falsity: Salim knew that Judge Sand 9 had the authority to change his lawyers but had denied Salim s 10 request to do so, and that Judge Eaton had recommended denying 11 Salim s most recent request. 12 that the judge would have no choice but to appoint new lawyers if 13 Salim attacked them. 14 to attack his lawyers in order to obtain substitute counsel, but, 15 during re-direct, he stated that he would never have attacked his 16 lawyers in a hostage-taking scheme because [i]n Islam it is not 17 permissible for me to attack any lawyer as long as he represents 18 me. 19 it would not be clearly erroneous for the district court to 20 conclude that, for example, Salim made a false statement when he 21 stated his belief that Judge Sand had no problem giving me other 22 lawyers, but the problem was the lawyers themselves, they didn t 23 want to resign. Salim I, 287 F. Supp. 2d at 287. We disagree. Obstruction The record supports the district However, Salim denied believing Moreover, Salim testified that he planned Faced with such conflicting indicia of motive and belief, 24 -12- 1 In his reply brief, Salim argues that his testimony on the 2 issue of attorney substitution or withdrawal was certainly 3 plausible in light of both the chronology of court proceedings 4 in the Embassy Bombing case, and an examination of a court 5 transcript containing language by Judge Sand that if remedial 6 attempts by the court to ameliorate the relationship between 7 Salim and his attorneys was not working, the court would consider 8 whether new counsel should be appointed. 9 at 8. Appellant s Reply Br. Even if we accept this contention, it would not establish 10 clear error. Where there are two permissible views of the 11 evidence, the factfinder s choice between them cannot be clearly 12 erroneous. 13 Accordingly, this argument fails. Anderson v. Bessemer City, 470 U.S. 564, 574 (1985). 14 B. Guidelines Section 3C1.1 and blatant perjury 15 Citing United States v. Williams, 79 F.3d 334 (2d Cir. 16 1996), and United States v. Catano-Alzate, 62 F.3d 41 (2d Cir. 17 1995), Salim contends that this court will not uphold an 18 obstruction enhancement where a district court made no findings 19 that the allegedly false statement constituted blatant perjury. 20 Appellant s Br. at 64. 21 Neither case supports this argument. Williams and Catano-Alzate both interpret United States v. 22 Dunnigan, 507 U.S. 87, 95 (1993), in which the Supreme Court 23 advised that, when imposing the obstruction enhancement, it is 24 preferable for a district court to address each element of the -13- 1 alleged perjury in a separate and clear finding. 2 in Williams, 79 F.3d at 337, and Catano-Alzate, 62 F.3d at 42, 3 were vacated because the district court failed to make specific 4 findings as to the elements of the enhancement. 5 The sentences Here, by contrast, the district court issued a written order 6 citing Dunnigan and explicitly finding that Salim s statements 7 were false, and made intentionally. 8 6. 9 would have impacted the Court s analysis of whether Defendant Obstruction Order at 5- It also found that the statements, [i]f believed[,] . . . 10 intended to influence or affect Judge Sand s decision . . . the 11 very basis for the Court s finding as to the terrorism 12 enhancement. 13 definition of material used in § 3C1.1 n.6, plainly constitutes 14 a separate and clear finding of the materiality element under 15 Dunnigan. See 507 U.S. at 95. 16 elements of perjury, the district court went on to find that the 17 perjury was committed in an attempt to obstruct justice. 18 Obstruction Order at 7. 19 the elements of § 3C1.1 by a preponderance of the evidence, and 20 nothing in Dunnigan, Williams, or Catano-Alzate requires more. 21 22 C. Id. This language, which largely tracks the Finally, having found all of the The district court plainly found all of Intent to Obstruct Justice The district court found that Salim s false statements 23 were provided in an attempt to obstruct justice. 24 Order at 7. This finding was not clear error. -14- Obstruction First, as noted 1 above, we credit the district court s characterization of Salim s 2 statements as evasive and contradictory. 3 court found, in its earlier order following the Fatico hearing, 4 that Salim s attack was motivated, in part, by a desire to 5 retaliate against Magistrate Judge Eaton s recent adverse 6 recommendation regarding Salim s efforts to obtain substitute 7 counsel. 8 correct, Salim s failure to mention this desire when asked to 9 describe his motive strongly suggests that his false testimony 10 11 Salim I, 287 F. Supp. 2d at 304. Second, the district If this finding is was made with the specific intent to obstruct justice. Salim argues that the district court s finding as to his 12 retaliatory motive was erroneous because he did not receive 13 notice of Judge Sand s latest denial of his motion until nine 14 days after he attacked Pepe. 15 finding was that the attack also was calculated to retaliate 16 against judicial recommendations and orders denying Defendant s 17 applications for substitute counsel. 18 This finding plainly refers to Judge Sand s previous denials and 19 Magistrate Judge Eaton s adverse recommendation, and not just to 20 Judge Sand s October 31 denial. 21 orders and recommendation, his alleged ignorance as to the latter 22 order does not render the finding of retaliatory motive clearly 23 erroneous. 24 court s resultant conclusion that Salim testified with an intent 25 to obstruct justice. However, the district court s Id. (emphasis added). Because Salim knew of the former As a result, there was no clear error in the district -15- 1 The fact that the district court applied a theory of the 2 terrorism enhancement different from the one urged by the 3 government does not alter our calculus. 4 supra Part I.A, the issue at the Fatico hearing was whether the 5 enhancement covered Salim s conduct, not whether the government s 6 theory that Salim was attempting to take hostages to escape the 7 MCC was correct. 8 support of the obstruction of justice enhancement, that Salim 9 willfully made false statements was not clearly erroneous. 10 11 II. As suggested above, Accordingly, the district court s finding, in The Official Victim Enhancement The district court granted a three-level upward enhancement 12 under U.S.S.G. § 3A1.2(a) because Salim s victim was a government 13 officer and Salim s offense was motivated by Officer Pepe s 14 official status. 15 Salim I, 287 F. Supp. 2d at 307. Salim first cites United States v. Goolsby, 209 F.3d 1079, 16 1081 (8th Cir. 2000), where a defendant, awaiting sentencing for 17 a drug conviction, assaulted a federal corrections officer during 18 an escape attempt. 19 could not be applied to the drug conviction because the officer 20 was not a victim of the drug offense. 21 readily distinguishable, however, because the underlying offense 22 here is attempted murder of a federal officer, and Pepe is 23 plainly the victim of this offense. The Eighth Circuit held that the enhancement 24 -16- Id. at 1082. Goolsby is 1 Next, Salim asserts that there was no proof that his offense 2 was motivated by Pepe s official status. But Salim s testimony 3 showed both knowledge of Pepe s status and an assault committed 4 to obtain a key that Pepe possessed only as a result of this 5 status. 6 the assault was motivated by the victim s official status was not 7 clear error. 8 (11th Cir. 1992) (finding that robbery was motivated by official 9 status when defendant robbed the postmistress because, as a 10 postal employee, she was in possession of money orders and a 11 money order validation machine ). Given this evidence, the district court s finding that See United States v. Bailey, 961 F.2d 180, 182 12 Finally, Salim argues that this enhancement should not apply 13 to an offense that specifically incorporates an officer s status. 14 In United States v. Padilla, 961 F.2d 322, 327 (2d Cir. 1992), we 15 rejected a similar argument with respect to 18 U.S.C. § 111, 16 which proscribes the assault of a federal officer, because the 17 enhancement, unlike the underlying statute of conviction, 18 required knowledge of the victim s status. 19 conviction, 18 U.S.C. § 1114, while incorporating the victim s 20 official status as an element, does not require proof that the 21 motivation for the attack was the victim s status. 22 applying the enhancement here does not involve impermissible 23 double counting because the guideline enhances for an 24 additional factor that will not be present in every conviction -17- Salim s statute of Thus, 1 under the statute. 2 III. 3 Padilla, 961 F.2d at 327. The Restraint of Victim Enhancement The district court granted a two-level upward enhancement 4 under U.S.S.G. § 3A1.3 because Officer Pepe was physically 5 restrained in the course of the offense. 6 2d at 310. 7 disabled by the stabbing did not add to the basic crime. 8 disagree. 9 he stabbed Pepe with murderous intent. Salim I, 387 F. Supp. Salim argues that any restraint of Pepe after he was We By pleading to attempted murder, Salim admitted that Handcuffing a victim and 10 locking him in a cell after a potentially lethal attack prevents 11 a victim from seeking aid and thereby adds to the underlying 12 offense of attempted murder. 13 F.3d 319, 321 (2d Cir. 1993) (finding that restraint facilitated, 14 rather than constituted, the offense of conviction when the 15 victim could do nothing about [his] situation because of the 16 physical restraint (alteration in original) (internal quotation 17 marks omitted)). 18 IV. 19 See United States v. Rosario, 7 The Terrorism Enhancement Section 3A1.4 of the Sentencing Guidelines provides that 20 [i]f the offense is a felony that involved, or was intended to 21 promote, a federal crime of terrorism, the offense level will be 22 increased by 12 levels (and be no lower than level 32) and 23 defendant s criminal history category shall be Category VI. 24 U.S.S.G. § 3A1.4. The commentary to that section provides that -18- 1 federal crime of terrorism has the meaning given that term in 2 18 U.S.C. [§] 2332b(g)(5). 3 4 5 6 7 8 9 10 11 Id. n.1. In turn, 18 U.S.C. § 2332b(g)(5) provides that the term Federal crime of terrorism means an 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 [certain enumerated sections, including 18 U.S.C. § 1114]. In its sentencing opinion, the district court found that 12 Defendant s attack on Officer Pepe was in furtherance of his 13 intent to affect or influence Judge Sand s decision about 14 substitution of counsel, and was in retaliation for judicial 15 conduct denying Defendant s applications for substitution of 16 counsel, Salim I, 287 F. Supp. 2d at 303, and rejected Salim s 17 claim that there was no evidence of these facts on the record. 18 Id. at 323. 19 offense enumerated at 18 U.S.C. § 2332b(g)(5)(B). Id. It also noted that Defendant was convicted of an 20 Despite its finding that Salim s offense met both elements 21 of the § 2332b(g)(5) definition, the district court nonetheless 22 refused to apply the terrorism enhancement because it discerned a 23 third requirement. 24 that a Federal crime of terrorism is one that meets the 25 requirements at § 2332b(g)(5) and involves conduct transcending 26 national boundaries. Id. at 339 (emphasis added) (quoting 18 27 U.S.C. § 2332b(a)(1)). Because Salim s offense did not satisfy The district court held that it is apparent -19- 1 this third requirement, the district court concluded that the 2 terrorism enhancement was inapplicable. 3 The district court opined that [t]his definition of a 4 Federal crime of terrorism incorporating a transnational 5 conduct element reconciles the textual directives of the 6 different subsections of 18 U.S.C. § 2332b, as well as the 7 specific and broad context in which the term Federal crime of 8 terrorism occurs. 9 district court s interpretation is irreconcilable with the text 10 of both subsection (g)(5) in particular and section 2332b as a 11 whole. 12 Id. We disagree, and conclude that the Apart from its appearance in subsection (g), which defines 13 the terms used elsewhere in section 2332b, the term Federal 14 crime of terrorism is used only once in the statute. 15 2332b(f) provides in relevant part: 16 17 18 19 20 21 22 23 24 Section In addition to any other investigative authority with respect to violations of this title, the Attorney General shall have primary investigative responsibility for all Federal crimes of terrorism, . . . , and the Secretary of the Treasury shall assist the Attorney General at the request of the Attorney General. 18 U.S.C. § 2332b(f) (emphasis added). The district court concluded that, unless a Federal crime 25 of terrorism only referred to crimes involving transnational 26 conduct, subsection (f) would be meaningless because other 27 sections of Title 18 already give the Attorney General broad -20- 1 authority to investigate violations of that Title. 2 F. Supp. 2d at 338. 3 authority [i]n addition to the Attorney General s existing 4 authority, the extended authority must be in areas not before 5 authorized. 6 investigative authority over purely intra-national offenses under 7 Title 18, this section could not convey any additional authority 8 (despite its obvious intent to do so) unless Federal crimes of 9 terrorism covered only crimes involving conduct transcending 10 11 Id. Salim I, 287 Thus, in order for subsection (f) to convey Because the Attorney General already had national boundaries. This argument cannot be reconciled with the statutory text 12 of subsection (g)(5), in which a transnational conduct 13 requirement is nowhere to be found. 14 deriving such a requirement from its reading of subsection (f). 15 Subsection (f) does not give the Attorney General additional 16 authority to investigate Federal crimes of terrorism, it gives 17 that officer primary investigative responsibility for such 18 crimes. 19 exact meaning of primary investigative responsibility, it is 20 plainly distinct from investigative authority because it 21 envisions an authority expressly superior to that possessed by 22 another actor. 23 officer primary investigative responsibility over a certain 24 category of crimes, even if he has pre-existing authority to 25 investigate the same crimes. The district court erred in 18 U.S.C. § 2332b(f) (emphasis added). Whatever the It is not meaningless to give an executive -21- 1 Prior to the passage of section 2332b, we presume, both the 2 Attorney General and the Secretary of the Treasury had certain 3 investigative authority with respect to violations of Title 18. 4 See, e.g., 18 U.S.C. § 1030(d)(1) (giving the Secret Service, a 5 division of the Treasury Department, authority to investigate 6 offenses involving computer fraud). 7 effective, the Attorney General was given primary investigative 8 responsibility with respect to certain Title 18 crimes 9 (specifically, those offenses that constituted Federal crimes of When subsection (f) became 10 terrorism) over the Secretary of the Treasury. 11 court overlooked the fact that one official s authority may be 12 enhanced by making it superior to that of another official, and 13 not just by increasing the number of crimes to which it extends. 14 As a result, subsection (f) is coherent on its face, and thus 15 undercuts any perceived need to read an extra-textual 16 transnational conduct element into the definition of Federal 17 crimes of terrorism. 18 The district The district court also asserted that its transnational 19 conduct element harmonizes the definition of Federal crime of 20 terrorism with the focus of section 2332b as a whole, which is 21 Acts of terrorism transcending national boundaries. 22 387 F. Supp. 2d at 339 (quoting the title of 18 U.S.C. § 2332b). 23 We recognize that the offenses punished by section 2332b are 24 those involving conduct transcending national boundaries, 18 -22- Salim I, 1 U.S.C. § 2332b(a)(1), but Salim was not charged with or convicted 2 of violating that statute. 3 2332b(g)(5), the particular subsection of section 2332b that the 4 Sentencing Commission cross-referenced in the commentary to 5 U.S.S.G. § 3A1.4. 6 of terrorism is not limited to conduct that constitutes an 7 offense under section 2332b; it applies to any conduct that meets 8 the definition of subsection (g)(5). 9 Federal crime of terrorism to include a requirement that the 10 offense conduct transcend national boundaries, but it did not. 11 Instead, it defined two distinct terms, Federal crime of 12 terrorism and conduct transcending national boundaries, and 13 neither term references the other. 14 [C]ourts must presume that a legislature says in a statute what 15 it means and means in a statute what it says there. 16 words of a statute are unambiguous, then, this first canon is 17 also the last: the judicial inquiry is complete. 18 Bank v. Germain, 503 U.S. 249, 253-54 (1992) (internal citations 19 and quotation marks omitted).2 20 transnational conduct element in the definition of Federal crime 1 2 3 4 5 6 Our focus is only on subsection The sentencing enhancement for a federal crime Congress could have defined 18 U.S.C. § 2332b(g)(1),(5). When the Conn. Nat l Our refusal to incorporate a 2 For this reason, Salim s rule of lenity argument also fails. See United States v. Canales, 91 F.3d 363, 367-68 (2d Cir. 1996) ( The rule is inapplicable unless after a court has seized on every thing from which aid can be derived, it is still left with an amiguity. (internal quotation marks and alterations omitted)). -23- 1 of terrorism accords with the judgment of our sister circuits. 2 See United States v. Harris, 434 F.3d 767, 773 (5th Cir. 2005) 3 ( The definition of a federal crime of terrorism . . . 4 encompasses many offenses, none of which has an element requiring 5 conduct transcending national boundaries. ); United States v. 6 Hale, 448 F.3d 971, 988 n.1 (7th Cir. 2006); see also United 7 States v. Dowell, 430 F.3d 1100, 1105, 1110-12 (10th Cir. 2005) 8 (assuming without deciding that the terrorism enhancement applied 9 to domestic terrorist acts involving the destruction of an IRS 10 office in Colorado Springs); United States v. Graham, 275 F.3d 11 490, 496, 513-19 (6th Cir. 2001) (applying the domestic 12 terrorism enhancement to conduct by domestic militia that was 13 planning to attack government targets on an unspecified future 14 date ). 15 Salim contends that the district court s refusal to apply 16 the enhancement was correct for a separate reason: the rulings of 17 a judge do not constitute government conduct under 18 U.S.C. § 18 2332b(g)(5)(A). 19 district court properly observed, it is hardly a novel 20 construction . . . to conclude that the conduct of government 21 embraces judicial rulings, such as the substitution of assigned 22 counsel. 23 reaching a contrary conclusion. 24 government official, United States v. Adelman, 168 F.3d 84, 86 This argument is patently meritless. Salim I, 287 F. Supp. 2d at 329. As the Salim cites no case If a federal judge is a -24- 1 (2d Cir. 1999), it follows that a magistrate judge s 2 recommendations regarding, and a district judge s ruling on, 3 requests to substitute counsel constitute government conduct 4 for the purposes of 18 U.S.C. § 2332b(g)(5) and, by reference, 5 U.S.S.G. § 3A1.4. 6 As we have noted, Salim also argues that while his planned 7 attack on his lawyers may have been calculated to influence the 8 conduct of government, his actual attack on Pepe was not. 9 reject this myopic view of the purpose of the attack. We And even 10 if it were correct, this argument provides no basis for upholding 11 the district court s refusal to apply the enhancement, because of 12 the district court s alternative finding: that the attack on Pepe 13 was calculated to retaliate against judicial recommendations and 14 orders denying Defendant s applications for substitute counsel. 15 Salim I, 287 F. Supp. 2d at 304. 16 Part I.C, Salim has failed to demonstrate that this finding, a 17 second basis for applying the terrorism enhancement, was clearly 18 erroneous. 19 As noted previously, see supra Because the district court fell into legal error by holding 20 that a Federal crime of terrorism must involve conduct 21 transcending national boundaries, we conclude that the sentence 22 imposed was unreasonable based on the procedural failure to 23 calculate the appropriate Guidelines range. 24 at 597. See Gall, 128 S. Ct. As a result, we need not reach the question of whether -25- 1 the district court appropriately departed upward from the 2 applicable Guidelines range under U.S.S.G. § 5K2. 3 considered the remaining arguments made by Salim and his counsel 4 and find them to be without merit. 5 6 7 We have CONCLUSION For the foregoing reasons, we REMAND to the district court 8 with directions to VACATE Salim s sentence and resentence in 9 accordance with this opinion. -26-
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