United States v. Ramirez

1

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. FRANCISCO JOSEPH ARCILA RAMIREZ, Defendant-Appellant.

No. 22-11190

United States Court of Appeals, Eleventh Circuit

May 16, 2023

DO NOT PUBLISH

Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:19-cr-20036-JEM-1 Before JORDAN, BRANCH, and ED CARNES, Circuit Judges.

PER CURIAM:

Francisco Arcila Ramirez pleaded guilty to one count of providing material support to a foreign terrorist organization, in violation of 18 U.S.C. § 2339B(a)(1). The district court sentenced him to 240 months imprisonment. He contends that the court did not make sufficient factual findings to support a 12-level terrorism enhancement under U.S.S.G. § 3A1.4(a). He also contends that his sentence is procedurally and substantively unreasonable.

I.

The § 3A1.4(a) terrorism enhancement provides for a 12-level increase to a defendant's offense level if he committed a felony "that involved, or was intended to promote, a federal crime of terrorism." U.S.S.G. § 3A1.4(a). A "federal crime of terrorism" is defined by the "meaning given that term in 18 U.S.C. § 2332b(g)(5)." U.S.S.G. § 3A1.4 cmt. n.1. That statute in turn provides a two-part definition. See 18 U.S.C. § 2332b(g)(5)(A)-(B). First, a federal crime of terrorism is "an offense that is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct." 18 U.S.C. § 2332b(g)(5)(A). Second, the offense must be a violation of a specific federal criminal statute listed in 18 U.S.C. § 2332b(g)(5)(B). Id. § 2332b(g)(5)(B). That list includes the material support statute § 2339B, which is the one that Arcila Ramirez was convicted of violating. Id. That means the second requirement is met.

The issue Arcila Ramirez raises is whether the evidence supported the district court's finding that his offense met the first requirement, that it was "calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct." 18 U.S.C. § 2332b(g)(5)(A). We review de novo a district court's interpretation and application of the sentencing guidelines but review its factual findings only for clear error. United States v. Jayyousi, 657 F.3d 1085, 1114 (11th Cir. 2011).

A.

This is the second time we have considered Arcila Ramirez's challenge to the terrorism enhancement part of his sentence. The first time, in UnitedStates v. Ramirez, 16 F.4th 844 (11th Cir. 2021), we clarified that the word "calculated" in § 2332b(g)(5)(A) means that there is "an intent requirement" which must be met for the terrorism enhancement to apply. Id. at 854. To meet that requirement, "the government must show that the defendant's offense was planned to influence, affect, or retaliate against government conduct even ifthatwas not the defendant'spersonalmotive." Id. (emphasis added). The enhancement applies if the government makes that showing by a preponderance of the evidence id. at 855 n.8, and "because a defendant often will not admit his full knowledge or intentions, the district court may find the requisite calculation or intent existed based on circumstantial evidence and reasonable inferences drawn from the facts," id. at 854.

During Arcila Ramirez's first sentence proceeding, the district court "made no fact findings" about whether his offense conduct met the intent requirement, so we remanded for the court to "make an express fact finding" about it. See id. at 854, 855. The parties were permitted to present additional evidence and argument, but we expressed no opinion about whether their stipulated factual proffer and other record evidence from the initial sentence proceeding were enough for the district court to draw "any particular inferences" about the sentence enhancement. See id. at 848, 855.

B.

On remand, Arcila Ramirez filed a sentencing memorandum contending that the terrorism enhancement did not apply to him because he lacked the necessary specific intent, even though he knew the ELN was a terrorist organization. He pointed out that the ELN also trafficked drugs, and for all he knew, they might have bought the weapons to further their drug trade instead of to further their plans to overthrow the Colombian government.

The government responded that Arcila Ramirez's personal motivation did not matter, and the undisputed facts established that he intended to sell weapons to the ELN, a group he knew to be a terrorist organization that aimed to overthrow the government of Colombia. The government pointed out that Arcila Ramirez "was not ELN's Amazon, supplying them with anything and everything under the sun." Instead, he sold them the particular weapons that they wanted - high-powered firearms with high- capacity magazines. And he intended to serve as a pipeline to the ELN for firearms and firearms parts that could be converted into AR-15s and AKs. The government filed exhibits, including reports and agency findings about the ELN, along with a log listing weapons that Ramirez or his straw purchasers had bought.

At his re-sentence hearing, Arcila Ramirez again contended that the government had not satisfied the calculation requirement for the terrorism enhancement because it had not proven his specific intent. He reiterated that the ELN did not confine itself to terrorist activities; it also trafficked drugs and engaged in other illegal activities. He emphasized that, although he had purchased the weapons for resale to the ELN, he was not affiliated with the terrorists, he sold the weapons through a broker, and he was "a businessman.

The government responded with additional evidence showing that: the ELN's goal is to overthrow the Colombian government; the ELN uses its drug-trafficking proceeds to fund that objective; and it is widely known in Colombia that the ELN engages in terrorism. The government reminded the court that Arcila Ramirez was born and raised in Colombia, which indicated that he would know about the objectives of the ELN and how the terrorist group pursued its goals. The government also pointed to a transcript of recorded phone calls between Arcila Ramirez and a confidential source in Colombia, during which they spoke in code about continuing to supply the ELN with firearms. Based on that evidence, the government argued that it was reasonable to infer that Arcila Ramirez knew that the firearms he delivered into the hands of the ELN would be used to further its terrorist aims.

In addition to that, the government called as a witness a special agent who had worked in Colombia for more than five years. He testified that it is widely known in Colombia that ELN is a terrorist group. The agent testified: "ELN is not something that's . . . hidden in Colombia. Any normal person, anybody that . . . could breathe knows what ELN does in Colombia. It is a terrorist group that terrorizes the Colombian population, the Colombian police, and now even going after U.S. law enforcement by the things that they do; threats that they put out, so ELN doesn't try to hide itself." He explained that the media often reports about the connection between the ELN's drug trafficking and its acts of terrorism. The ELN is not divided into separate departments: one for drugs and another for terrorism. Instead, "[t]here is one ELN. And that one ELN, their main purpose is to overthrow the Colombian government by any means."

On cross-examination, the agent agreed that ELN is involved in a variety of illegal activities, including trafficking drugs and extorting "taxes" from people, but he emphasized that the profits are used to serve the overarching goal of terrorizing the Colombian government. On redirect the agent testified that the AK-47 style firearms that Ramirez put into the hands of the ELN were the weapon of choice for ELN commanders.

Considering all the evidence presented along with the facts that were stipulated in the factual proffer in support of Arcila Ramirez's plea agreement, the court made these findings:

[Arcila Ramirez] admitted knowing that the guns were going to the ELN. [He] was born in Colombia; and, therefore, more likely than not knows now that, as he knew then, that the ELN's goals are to intimidate, retaliate against, and overthrow the government of Colombia and that ELN did so through violent means.

And [in] the factual proffer he admits that he knew "that the organization has engaged in or engages in terrorist activity or terrorism." [Arcila Ramirez] admitted to knowing the ELN was going to use the weapons he smuggled into Colombia to further the organization's narco trafficking efforts, which in turn fund the ELN's acts of specific terrorism toward the government. [He] uses this fact to argue that because he knows that the guns will be used for narco trafficking purposes, he knew they wouldn't be used to influence or affect the conduct of the government. I don't think that follows. I think quite to the contrary.

[Arcila Ramirez] cannot so easily distinguish between the narco trafficking and its act of terror because it stands to reason that the reason the ELN engages in narco trafficking is to fund its actions against the government of Colombia.

The court also noted that Arcila Ramirez's firearms transaction was "not a one-time deal" and that he "knew that this support would continue to aid ELN in achieving its overarching goals."

The government asked the court to clarify whether it was making a specific finding that Arcila Ramirez's "offense conduct was calculated to influence, affect, or retaliate against" the conduct of the Colombian government. The court agreed that was correct; it was making that specific finding. It stated that the circumstantial evidence and the...