U.S. v. Hammoud

381 F.3d 316

UNITED STATES of America, Plaintiff-Appellee, v. Mohamad Youssef HAMMOUD, a/k/a Ali Abousaleh, a/k/a Ali Albousaleh, Defendant-Appellant Center for Constitutional Rights; National Coalition to Protect Political Freedom; National Association of Criminal Defense Lawyers; National Lawyers Guild, Amici Supporting Appellant.

No. 03-4253.

United States Court of Appeals, Fourth Circuit.

Argued: August 2, 2004.

Decided: September 8, 2004.

Appeal from the United States District Court for the Western District of North Carolina, Graham C. Mullen, Chief District Judge.

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Stanley Lewis Cohen, New York, NY; James P. McLoughlin, Jr., Moore & Van Allen, PLLC, Charlotte, North Carolina, for Appellant.

Demetra Lambros, United States Department of Justice, Washington, D.C., for Appellee.

James W. Haldin, Moore & Van Allen, PLLC, Charlotte, NC, for Appellant.

Robert J. Conrad, Jr., United States Attorney, Gretchen C.F. Shappert, United States Attorney, D. Scott Broyles, Assistant United States Attorney, Charlotte, NC; John F. DePue, John Douglas Wilson, Martha Rubio, United States Department of Justice, Washington, D.C., for Appellee.

David D. Cole, Georgetown University Law Center, Washington, D.C.; Nancy Chang, Shayana Kadidal, Center for Constitutional Rights, New York, NY; Lisa

Kemler, National Association of Criminal Defense Lawyers, Alexandria, VA, for Amici Supporting Appellant.

Before WILKINS, Chief Judge, and WIDENER, WILKINSON, NIEMEYER, WILLIAMS, MICHAEL, MOTZ, TRAXLER, KING, GREGORY, SHEDD, and DUNCAN, Circuit Judges.

Affirmed by published opinion. Chief Judge WILKINS wrote the opinion, in which Judges WILKINSON, NIEMEYER, WILLIAMS, TRAXLER, KING, SHEDD, and DUNCAN joined and in which Judge WIDENER joined as to all except Part VII.C.

Judge WILKINSON wrote a concurring opinion.

Judge SHEDD wrote a concurring opinion.

Judge WIDENER wrote a concurring and dissenting opinion.

Judge MOTZ wrote a dissenting opinion, in which Judges MICHAEL and GREGORY joined.

Judge GREGORY wrote a dissenting opinion.

WILLIAM W. WILKINS, Chief Judge.

Mohammed Hammoud appeals the sentence imposed following his convictions of numerous offenses, all of which are connected to his support of Hizballah, a designated foreign terrorist organization (FTO). Hammoud also challenges two of his 14 convictions. The appeal was argued before a three-judge panel, but prior to decision the court voted to hear the case en banc in order to consider the effect of Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), on the federal sentencing guidelines.

Following argument en banc, the court entered an order affirming Hammoud's convictions and sentence. See United States v. Hammoud, 378 F.3d 426, 2004 WL 1730309 (4th Cir. August 2, 2004). We now set forth the reasoning for our judgment.

I. Facts

The facts underlying Hammoud's convictions and sentence are largely undisputed. We therefore recount them briefly.

A. Hizballah

Hizballah is an organization founded by Lebanese Shi'a Muslims in response to the 1982 invasion of Lebanon by Israel. Hizballah provides various forms of humanitarian aid to Shi'a Muslims in Lebanon. However, it is also a strong opponent of Western presence in the Middle East, and it advocates the use of terrorism in support of its agenda. Hizballah is particularly opposed to the existence of Israel and to the activities of the American government in the Middle East. Hizballah's general secretary is Hassan Nasserallah, and its spiritual leader is Sheikh Fadlallah.

B. Hammoud

In 1992, Hammoud, a citizen of Lebanon, attempted to enter the United States on fraudulent documents. After being detained by the INS, Hammoud sought asylum. While the asylum application was pending, Hammoud moved to Charlotte, North Carolina, where his brothers and cousins were living. Hammoud ultimately obtained permanent resident status by marrying a United States citizen.

At some point in the mid-1990s, Hammoud, his wife, one of his brothers, and his cousins all became involved in a cigarette smuggling operation. The conspirators purchased large quantities of cigarettes in North Carolina, smuggled them to Michigan and sold them without paying Michigan taxes. This scheme took advantage of the fact that Michigan imposes a tax of $7.50 per carton of cigarettes, while the North Carolina tax is only 50¢. It is estimated that the conspiracy involved a quantity of cigarettes valued at roughly $7.5 million and that the state of Michigan was deprived of $3 million in tax revenues.

In 1996, Hammoud began leading weekly prayer services for Shi'a Muslims in Charlotte. These services were often conducted at Hammoud's home. At these meetings, Hammoud—who is acquainted with both Nasserallah and Fadlallah, as well as Sheikh Abbas Harake, a senior military commander for Hizballah—urged the attendees to donate money to Hizballah. Hammoud would then forward the money to Harake. The Government's evidence demonstrated that on one occasion, Hammoud donated $3,500 of his own money to Hizballah.

Based on these and other activities, Hammoud was charged with various immigration violations, sale of contraband cigarettes, money laundering, mail fraud, credit card fraud, and racketeering. Additionally, Hammoud was charged with conspiracy to provide material support to a designated FTO and with providing material support to a designated FTO, both in violation of 18 U.S.C.A. § 2339B (West 2000 & Supp.2004). The latter § 2339B charge related specifically to Hammoud's personal donation of $3,500 to Hizballah.

At trial, one of the witnesses against Hammoud was Said Harb, who grew up in the same Lebanese neighborhood as Hammoud. Harb testified regarding his own involvement in the cigarette smuggling operation and also provided information regarding the provision of "dual use" equipment (such as global positioning systems, which can be used for both civilian and military activities) to Hizballah. The Government alleged that this conduct was part of the conspiracy to provide material support to Hizballah. Harb testified that Hammoud had declined to become involved in providing equipment because he was helping Hizballah in his own way. Harb also testified that when he traveled to Lebanon in September 1999, Hammoud gave him $3,500 for Hizballah.

C. Conviction and Sentence

The jury convicted Hammoud of 14 offenses, only a few of which were particularly relevant to the calculation of Hammoud's sentence under the guidelines: money laundering and conspiracy to commit money laundering, see 18 U.S.C.A. § 1956(a)(1), (h) (West 2000 & Supp.2004); transportation of contraband cigarettes, see 18 U.S.C.A. § 2342 (West 2000); and providing material support to a designated FTO, see 18 U.S.C.A. § 2339B.

Applying the 2002 Guidelines Manual, the presentencing report (PSR) recommended that the base offense level correspond to the amount of tax evaded in the cigarette smuggling operation. See U.S. Sentencing Guidelines Manual § 2S1.1(a)(1) (2002) (requiring application of "[t]he offense level for the underlying offense from which the laundered funds were derived"); id. § 2E4.1(a) (providing that the offense level for a violation of 18 U.S.C.A. § 2342 is the greater of 9 or "the offense level from the table in § 2T4.1 (Tax Table) corresponding to the amount of the tax evaded"). The PSR concluded that the amount of tax evaded was more than $2.5 million, resulting in a base offense level of 24. See id. § 2T4.1(J). The PSR recommended several upward adjustments to this base offense level: two levels for conviction under 18 U.S.C.A. § 1956, see id. § 2S1.1(b)(2)(B); two levels for sophisticated money laundering, see id. § 2S1.1(b)(3); four levels for Hammoud's role as an organizer or leader of criminal activity that involved five or more participants, see id. § 3B1.1(a); and two levels for obstruction of justice, see id. § 3C1.1. Most significantly, the PSR recommended a 12-level enhancement for committing a terrorist act, see id. § 3A1.4(a). The terrorism enhancement also required that Hammoud be assigned to Criminal History Category (CHC) VI, see id. § 3A1.4(b); otherwise, Hammoud had no criminal history points and would have been placed in CHC I. Ultimately, the PSR recommended assignment of an adjusted offense level of 46 (to be treated as offense level 43, see id. Chapter 5, Part A, comment. (n.2)), which required a sentence of life imprisonment regardless of Hammoud's CHC.

Hammoud filed objections to the PSR, in which he challenged the factual basis for several of the upward adjustments. Hammoud also objected to the calculation of his base offense level, asserting that it was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ("Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."). Specifically, Hammoud argued that Apprendi required a jury finding, beyond a reasonable doubt, of the amount of tax loss involved in the offense. Hammoud also challenged the terrorism enhancement under Apprendi, maintaining that the enhancement was invalid without a jury finding that he possessed the requisite mental state. Hammoud made similar arguments against the enhancements for his leadership role and obstruction of justice.

The district court conducted a sentencing hearing at which it rejected all of Hammoud's sentencing challenges. The court therefore concluded that the guidelines provided for a sentence of life imprisonment. Because none of the offenses of conviction carried a statutory maximum of life imprisonment, the district court imposed the maximum sentence on each count and ordered...