from the United States District Court for the Western
District of Texas
BARKSDALE, GRAVES, and HIGGINSON, Circuit Judges. [*]
STEPHEN A. HIGGINSON, Circuit Judge.
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
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.
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. 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,
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.
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.
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
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
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.
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 ...