United States v. Khan

997 F.3d 242

UNITED STATES of America, Plaintiff—Appellant,

v.Asher Abid KHAN, Defendant—Appellee.

No. 20-20030

United States Court of Appeals, Fifth Circuit.

FILED May 6, 2021

Danielle Sue Tarin, U.S. Department of Justice, Washington, DC, Carmen Castillo Mitchell, Assistant U.S. Attorney, U.S. Attorney's Office, for Plaintiff - Appellant.

David Adler, Bellaire, TX, for Defendant - Appellee.

Before Jolly, Stewart, and Oldham, Circuit Judges.

E. Grady Jolly, Circuit Judge:

In this appeal, we are asked to assess the substantive reasonableness of a below-Guidelines sentence for a defendant who pled guilty to a terrorism charge. This review is the second occasion that this defendant's sentence has been appealed to this court. United States v. Khan , 938 F.3d 713 (5th Cir. 2019) (" Khan I "). Because the district court did not account for a sentencing factor that should have received significant weight, we reverse the defendant's sentence as substantively unreasonable and remand for a second resentencing. And because the sentencing judge seems immovable from his views of the sentence he imposed, and because the judge displayed bias against the government and its lawyers, we sua sponte reassign this case to a different judge.

I.

Asher Abid Khan, originally from Houston, moved to Australia at age nineteen.

Khan I , 938 F.3d at 714.¹ A Muslim, Khan increasingly became radicalized through viewing and discussing jihadist propaganda on the internet. He had decided to move to the Middle East to join ISIS. Id. Around the same time, he got back in touch via Facebook with Sixto Ramiro Garcia, whom he had known from the mosque they had attended in Houston.² Garcia accepted Khan's Facebook friend request on January 6, 2014, and that same day, the two began messaging back and forth. Khan said that he was planning to travel to join ISIS in Syria and invited Garcia to come along with him. Soon they began discussing the travel documents required. Khan also told Garcia he would send him lectures on "fighting for Islam." Garcia said that he wanted to travel with Khan to the Middle East to join ISIS.

Khan then contacted Mohamed Zuhbi, a member of ISIS who lived in Turkey and coordinated travel for ISIS recruits. Id . Zuhbi stated he could help Khan once he had firm plans in place to get to Turkey. Khan and Garcia thus began to solidify their scheme and continued to discuss logistics and their jihadist views. Khan then sought further guidance from Zuhbi. Zuhbi encouraged Khan to fly to Istanbul from Australia (where Khan was then living), take a bus to Antakya near the Syrian border, and meet Zuhbi in Antakya. Zuhbi also gave Khan his phone number and told him to buy a burner phone and SIM card upon arrival in Turkey. Khan relayed this plan to Garcia and also gave him instructions on purchasing a one-way ticket from Houston to Istanbul. They also discussed their cover story that they were tourists.

About a month and a half after Khan and Garcia first reconnected online, both flew to Turkey and met in person. Their plan to travel together to meet Zuhbi, however, was frustrated by Khan's family. After Khan had told them his plans to join ISIS, his family—who still lived in Houston—lied to him that his mother had suffered a heart attack, that death was at the door, and that he needed to immediately fly to Houston before she died. Garcia attempted to convince Khan to continue with him to Syria, but Khan refused. Instead, he provided Garcia with Zuhbi's phone number and cash for his trip to Syria. Khan then flew to Houston.

The next day, Garcia messaged Khan telling him that the phone number he had given him for Zuhbi did not work. Khan proceeded to message Zuhbi about Garcia, and that day, Garcia and Zuhbi made direct contact, messaging each other about when and where to meet. The next day, Garcia messaged Khan that he had met with Zuhbi but was not yet with ISIS.

Although Khan was now in Houston, he and Garcia continued to message each other over the next few months, with Garcia updating Khan as he progressed through some form of boot camp, received an AK-47, and was involved in a skirmish. Khan offered several times to provide Garcia money if he needed it, and he also posted on Facebook in an attempt to raise funds for Zuhbi. In July 2014, Khan advised Garcia that he should try to join ISIS, as Garcia appeared to have joined a different militia. About a month later, Garcia confirmed that he was fighting for ISIS. In September 2014, all communications with Garcia went dead, and in December of the same year, Garcia's mother received a Facebook message from someone using Garcia's account saying that he was believed to have died in Iraq while fighting for ISIS.

Back to Houston: Khan was arrested in May 2015 and indicted in the Southern District of Texas. He pled guilty before Judge Lynn Hughes to providing material support to a designated foreign terrorist organization in violation of 18 U.S.C. § 2339B on December 4, 2017. At sentencing, the judge took issue with the prosecutors’ attempt to include U.S.S.G. § 3A1.4 ’s terrorism enhancement in Khan's sentencing guideline calculations and refused to include the enhancement. The judge also overruled prosecutors’ request to apply U.S.S.G. § 2M5.3(b)(1)(E) to Khan because he declined to find that that Khan's contact with Garcia qualified as "material support" to "commit or assist in the commission of a violent act." The government objected to these rulings and argued that a 180-month sentence was necessary to deter others from joining ISIS or recruiting others to join ISIS. Khan, through counsel, asked for a 12-month sentence. He argued that he was young and stupid, had left the jihadist world behind, and now was working, studying, and volunteering to educate others about the dangers of radical jihadism. The court, noting that Khan's crime was "helping a friend do what you were doing," sentenced Khan to 18 months in prison and 3 years of supervised release.

The government appealed. Khan I , 938 F.3d at 713. This court, after reviewing the district court's application of the guidelines de novo and its factual findings for clear error, determined that the district court's sentence was procedurally unreasonable for concluding that the terrorism enhancement did not apply. Id. at 717–19. It did not reach the issue of the sentence's substantive reasonableness or whether the § 2M5.3(b)(1)(E) enhancement should apply. Id. at 714.

At resentencing upon remand, the government again sought a 180-month sentence, which was the statutory maximum. Khan asked the court to reimpose the same sentence as before, given that he had already served his prison time without disciplinary issues and was continuing his education; he also was volunteering with a Department of Homeland Security-sponsored program to train community leaders to recognize signs that a young person might be susceptible to extremism or gang recruitment. Khan's youth was again emphasized.

Judge Hughes then sentenced Khan to the same 18-month sentence, but with more explanation than earlier. After finding the terrorism enhancement applicable, the judge stated on the record that there were reasons to depart downward. Khan's lack of criminal history, studies, work, volunteering, steps toward rehabilitation, and age were all reasons to decrease the sentence. The judge also found that Garcia "was not recruited" by Khan; instead, they were "equally enthusiastic" about it, "both wanted to do it," and "encouraged each other." The fact that Khan now had friends and family that were good influences on him was also important to the court. In addition, the judge noted that Khan spoke with law enforcement after his guilty plea in an attempt to cooperate with them. Judge Hughes also found that Khan didn't "need a lot of retribution because what he did do was so miniscule," and he questioned the materiality of the support that Khan provided. To the judge, there was no "reason to further protect the public" from Khan's crimes. Khan's attorney asked that the court note that part of its decision was based on a policy disagreement with the sentencing guidelines calculations, which the judge affirmed. The government objected to Khan's sentence, this time as being substantively unreasonable, and this appeal followed.

II.

"We review a preserved objection to a sentence's substantive reasonableness for an abuse of discretion, examining the totality of the circumstances." United States v. Warren , 720 F.3d 321, 332 (5th Cir. 2013). "A district court abuses its discretion if it bases its decision on an error of law or a clearly erroneous assessment of the evidence." United States v. Teuschler , 689 F.3d 397, 399 (5th Cir. 2012). Errors of law are reviewed de novo, but factual findings must only be "plausible," United States v. Cisneros-Gutierrez , 517 F.3d 751, 764 (5th Cir. 2008), and are not clearly erroneous unless—viewing the record as a whole—this court is "left with the definite and firm conviction that a mistake has been committed." United States v. Hebert , 813 F.3d 551, 559 (5th Cir. 2015).

District courts must consider the seven sentencing factors found in 18 U.S.C. § 3553(a) in the light of the parties’ arguments for a sentence to be substantively reasonable. United States v. Mondragon-Santiago , 564 F.3d 357, 360–61 (5th Cir. 2009) ; United States v. Williams , 517 F.3d 801, 809–10 (5th Cir. 2008). After selecting a sentence, the district court must adequately explain it; if the court choses to vary from the Guidelines, it must "more thoroughly articulate its reasons," which should be "fact-specific and consistent" with the § 3553(a) sentencing factors. Hebert , 813 F.3d at 562. The further a sentence varies from the Guidelines, the more compelling the justification must be, but a "significant variance" from the Guidelines is allowed where it reflects the district court's individualized, case-specific reasons. United States v. Nguyen , 854 F.3d 276, 283 (5th Cir. 2017) ; H...