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United States v. Fidse

United States Court of Appeals, Fifth Circuit

July 7, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
ABDULLAHI OMAR FIDSE, also known as Abdirahman LNU, also known as Abdirahman Fidse, also known as Abdullaho Fidse, Defendant - Appellant

         Appeal from the United States District Court for the Western District of Texas

          Before BARKSDALE, GRAVES, and HIGGINSON, Circuit Judges. [*]

          STEPHEN A. HIGGINSON, Circuit Judge.

         Abdullahi Omar Fidse appeals his sentence for conspiring to obstruct an agency proceeding and conspiring to make false statements to the executive branch in a terrorism investigation. See 18 U.S.C. §§ 371, 1001, 1505. Specifically, he argues that the district court erroneously enhanced his Sentencing Guidelines range by applying U.S.S.G. § 3A1.4. This enhancement automatically increases a defendant's base offense level to 32 and criminal history category to the maximum of VI if the defendant's offense "is a felony that involved, or was intended to promote, a federal crime of terrorism." U.S.S.G. § 3A1.4(a). Fidse has appealed his sentence once before. See United States v. Fidse, 778 F.3d 477 (5th Cir. 2015) ("Fidse I"). In that initial appeal, we vacated the sentence and remanded for resentencing. We now affirm.

         I

         In June 2008, Fidse and a companion arrived at the Hidalgo, Texas, port of entry, claiming to have fled persecution in their home country of Somalia and asking for political asylum. Id. at 479. Fidse's story, however, quickly unraveled, and it became clear that he had made numerous false statements in connection with his asylum application. Based on these false statements, Fidse was denied asylum and ordered deported. Id.

         Meanwhile, the FBI began to suspect that Fidse had ties to al-Shabaab, an East African jihadist militant group that the United States designated a foreign terrorist organization in February 2008.[1] While Fidse was in immigration custody, the FBI, through the Joint Terrorism Task Force, opened a terrorism investigation based on a confidential source's tip that Fidse supported al-Shabaab, as well as al-Qaeda and Osama bin Laden, and wanted to commit terrorist acts. Among the evidence collected by the FBI were recorded conversations between Fidse and confidential sources, in which Fidse spoke about a hypothetical attack on the U.S. Ambassador to Kenya and claimed to have paid $100, 000 for an armed technical vehicle used by al-Shabaab fighters in a battle in Idaale, Somalia.[2]

         In 2009, the FBI interviewed Fidse and informed him that they were investigating his terrorist ties and his activities with al-Shabaab. Fidse repeated the false story he gave at the border, denied having ties to terrorism, and made numerous assertions at odds with his recorded statements. He also specifically denied purchasing firearms and an armed technical vehicle for al-Shabaab. Upon learning of the Task Force investigation, Fidse contacted his companion and, in recorded phone conversations, encouraged her to ask contacts in Kenya to destroy evidence. The companion eventually confessed to making false statements to corroborate Fidse's stories. She also admitted to knowing that Fidse belonged to a clan with ties to al-Shabaab.

         In December 2012, Fidse pleaded guilty to one count of conspiring to obstruct an agency proceeding and one count of conspiring to make false statements to the executive branch in a terrorism investigation, in violation of 18 U.S.C. §§ 371, 1001, 1505. Based on Fidse's obstruction of the Task Force investigation, the Pre-sentence Report (PSR) recommended that the district court apply U.S.S.G. § 3A1.4, which enhances a defendant's sentence if "the offense is a felony that involved, or was intended to promote, a federal crime of terrorism." In addition to challenging many of the PSR's factual findings, Fidse objected to the enhancement, arguing that his offense did not "involve, " nor was it "intended to promote, " a federal crime of terrorism. He also argued that the enhancement could not apply because the Government failed to identify the specific federal crime of terrorism encompassed by the obstructed investigation. Instead, Fidse argued, the Task Force investigation was a general, intelligence gathering inquiry, and, therefore, his obstructive conduct could not have been intended to promote any specific federal crime of terrorism.

         After a two-day evidentiary hearing, the district court overruled Fidse's objections, but did not make any factual findings or legal conclusions related to the terrorism enhancement specifically. Fidse I, 778 F.3d at 480-81. The court imposed a prison term of 48 months on each count to run consecutively, a sentence that took into account the two years Fidse spent in immigration custody. Id. at 480-81.

         Fidse appealed his sentence to this court, challenging the district court's application of the terrorism enhancement. Id. at 482. Finding reversible error, we vacated his sentence and remanded for resentencing. Id. at 484. We observed that "uncertainties surrounding both the factual findings below and which federal crime of terrorism the district court relied on as the one under investigation when Fidse lied to the FBI preclude[d] meaningful review of the merits of Fidse's" appeal. Id. at 483. Accordingly, we directed the district court to clarify various factual findings, including any "disputed information on which the current record is ambiguous." Id. at 484. We also emphasized that "[a]ny ruling applying the enhancement should identify which enumerated federal crime of terrorism the defendant intended to promote." Id. (internal quotation marks and citation omitted).

         Following our remand, yet without a new evidentiary hearing, the Government filed "Proposed Sentencing Findings of Fact and Conclusions of Law." Fidse filed a similar document as well as a lengthy sentencing memorandum with attached exhibits. The district court adopted, without change, the Government's document as its factual findings and conclusions of law. Based on its complete acceptance of the Government's proposed findings, the court again concluded that the enhancement applied, sentencing Fidse to the same sentence it had given him originally, two consecutive 48-month terms of imprisonment.

         Fidse again appeals the district court's application of § 3A1.4, challenging the enhancement on two grounds. First, he argues that the record does not support that the Task Force was investigating a specific federal crime of terrorism. He further contends that the record does not support the district court's determination that Fidse's obstructive conduct was intended to promote a federal crime of terrorism. Although this sentencing enhancement is problematic and the absence of tailored factual inquiry and analysis responsive to our remand further ...


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