United States v. Ahmadou

Case: 24-20045 Document: 123-1 Page: 1 Date Filed: 11/25/2025

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

____________ Fifth Circuit

FILED

No. 24-20045 November 25, 2025

____________ Lyle W. Cayce

Clerk

United States of America

Plaintiff - Appellee,

versus

Moctar Ahmadou Gouroudja Ahmadou,

Defendant - Appellant.

______________________________

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:21-CR-396-1

______________________________

Before Smith, Dennis, and Richman, Circuit Judges.

Jerry E. Smith, Circuit Judge:

Moctar Ahmadou appeals his conviction and sentence for possession

of a firearm as an alien admitted under a nonimmigrant visa in violation of

18 U.S.C. § 922(g)(5)(B). He asserts that the federally licensed firearms

dealer misrepresented his eligibility to possess firearms and that he is there-

fore entitled to the defense of entrapment by estoppel. He further contends

that the denial of an acceptance-of-responsibility reduction at sentencing was

procedurally and substantively unreasonable. We disagree on each and

affirm.

Case: 24-20045 Document: 123-1 Page: 2 Date Filed: 11/25/2025

No. 24-20045

I.

According to the Presentence Report (“PSR”), Ahmadou entered the

United States in 2016 from Niger under a nonimmigrant F1 visa to study at

the North American University in Texas. (PSR ¶ 34). On May 21, 2020,

Adam Alsahli, an Islamic extremist and supporter of ISIS, conducted an

attack on the Naval Air Station Corpus Christi (“NASCC”). (PSR ¶ 6). A

search of Alsahli’s phone revealed that he had been in contact with Ahmadou

before the attack. (PSR ¶¶ 7–14). Following the attack, the FBI launched an

investigation into Ahmadou with the assistance of a confidential human

source. (PSR ¶ 15).

In May 2021, Ahmadou visited the Texas Gun Club (“TGC”), where

he rented and fired guns and took shooting courses. He completed a waiver

of liability form that was created by TGC. That form contained a definition

of “Prohibited Person” “as defined by The Gun Control Act of 1968.” But

the definition did not include § 922(g)(5)(B) (prohibiting possession by aliens

admitted under nonimmigrant visa). Ahmadou checked the box stating, “I

understand the definition of a ‘Prohibited Person’ as it pertains to possession

of a firearm and swear and attest that I am in compliance with both federal

and Texas State Law.”

Undercover federal agents were present at the gun range when Ahma-

dou rented the firearms. TGC’s manager testified that the agents were not

“directing [him] on what to do that day”; “[t]hey told [him] business as

usual.” Following the investigation, Ahmadou was arrested, and he admitted

in a custodial interview that his visits to the gun range were in preparation to

commit jihad overseas if there was a need. (PSR ¶¶ 27–28). A search of

Ahmadou’s electronic devices revealed numerous ISIS propaganda videos,

recordings, image files, and at least 100 videos depicting the beheadings of

individuals by ISIS extremists. (PSR ¶ 33).

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Ahmadou filed a pro se motion to dismiss the indictment in which he

contended that he could satisfy the elements of the defense of entrapment by

estoppel because he had been misled to believe that he was eligible to possess

a firearm. The government filed a motion in limine asking the court to deny

the motion to dismiss as unauthorized and to exclude any evidence regarding

an entrapment-by-estoppel defense. At the pretrial conference, the court

granted the motion in limine but stated that it would review caselaw presented

by defense counsel in support of an entrapment-by-estoppel defense.

After jury voir dire, the court again considered the entrapment-by-

estoppel defense and denied it, citing the absence of Fifth Circuit precedent.

The court reserved its right to revisit that issue based on how “the evidence

plays out in this particular presentation.” At the end of the first day of trial,

the court again considered the entrapment-by-estoppel defense and allowed

Ahmadou to reconsider overnight whether he wished to proceed with the

trial. On the beginning of the second day of trial, Ahmadou addressed the

court and presented further arguments regarding the entrapment defense and

indicated that he wished to proceed to trial. Before closing arguments, the

court denied Ahmadou’s proposed jury instruction regarding the entrapment

defense.

The jury found Ahmadou guilty on all counts. The probation officer

prepared the initial PSR, and Ahmadou filed several pro se objections, includ-

ing an objection regarding a lack of a reduction for acceptance of responsibil-

ity. The government filed an objection to the lack of a 12-point terrorism

enhancement under U.S.S.G. § 3A1.4. The final PSR included the terrorism

enhancement. (PSR ¶¶ 45, 54).

At sentencing, the district court denied a reduction for acceptance of

responsibility and declined to apply a 12-point terrorism enhancement under

U.S.S.G. § 3A1.4. The court determined that Ahmadou’s total offense level

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was 22 with a criminal history category of I, resulting in a guideline range of

41 to 51 months. The district court determined that an above-guidelines sen-

tence was appropriate and sentenced Ahmadou to 78 months of imprison-

ment as to Counts One and Two and 24 months as to Count Three, all terms

to be served concurrently for a total of 78 months, and three concurrent

three-year terms of supervised release. 1

Ahmadou raises three issues on appeal: (1) the denial of the entrap-

ment-by-estoppel defense, (2) the denial of a reduction for acceptance of

responsibility, and (3) the procedural and substantive reasonableness of his

sentence.

II.

The court reviews exclusion of evidence for abuse of discretion.

United States v. Okulaja, 21 F.4th 338, 344 (5th Cir. 2021). Abuse-of-discre-

tion review likewise applies to the denial of a proposed jury instruction.

United States v. Hale, 685 F.3d 522, 541 (5th Cir. 2012) (per curiam). And a

“conviction cannot be overturned for failure to instruct the jury on a defense

unless the requested but omitted instruction has an evidentiary basis in the

record which would lead to acquittal.” United States v. Spires, 79 F.3d 464,

466 (5th Cir. 1996).

“We review the sentencing court’s determination of acceptance of

responsibility with even more deference than is due under a clearly erroneous

standard because the sentencing judge is in a unique position to assess the

defendant’s acceptance of responsibility and true remorse.” United States v.

Kidd, 127 F.4th 982, 986 (5th Cir.) (cleaned up), cert. denied, 145 S. Ct. 2804

_____________________

1

The district court granted the government’s motion to dismiss Count Four,

which charged Ahmadou with possessing ammunition.

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(2025). Thus, the “court will affirm unless the district court’s denial of a

reduction is without foundation.” Id. (cleaned up).

For Ahmadou’s challenge to the reasonableness of his sentence,

“[t]his court ‘must first ensure that the district court committed no signifi-

cant procedural error, such as . . . failing to consider the § 3553(a) factors,

selecting a sentence based on clearly erroneous facts, or failing to adequately

explain the chosen sentence.’” United States v. Rodriguez, 136 F.4th 258, 269

(5th Cir. 2025) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). If the

sentence is procedurally sound, the court “‘then consider[s] the substantive

reasonableness of the sentence imposed under an abuse-of-discretion

standard.’” Id.

III.

A. Entrapment by Estoppel

Ahmadou asserts that the defense of entrapment by estoppel applies

because the TGC waiver form’s omission of the § 922(g)(5)(B) offense was

an affirmative misrepresentation that he reasonably relied on when renting

firearms. Ahmadou contends that the district court erred by denying his

motion to dismiss based on entrapment by estoppel, denying his request to

assert that defense before and during the jury trial, and denying a jury instruc-

tion on that defense.

“The defense of entrapment by estoppel is applicable when a govern-

ment official or agent actively assures a defendant that certain conduct is legal

and the defendant reasonably relies on that advice and continues or initiates

the conduct.” United States v. Spires, 79 F.3d 464, 466 (5th Cir. 1996). That

defense was first articulated in Raley v. Ohio, 360 U.S. 423 (1959), and Cox v.

Louisiana, 379 U.S. 559 (1965). In Raley, the Court reversed convictions of

failure to testify before a legislative commission because that commission had

previously informed the defendants that the law did not require them to tes-

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tify. The conviction was “an in-defensible sort of entrapment by the State—

convicting a citizen for exercising a privilege which the State had clearly told

him was available to him.” Raley, 360 U.S. at 426. The Court applied Raley

in Cox, where it reversed convictions of demonstrating near a courthouse

because the highest police officials of the city, in the presence of the mayor

and sheriff, had given defendants permission to demonstrate there. Cox,

379 U.S. at 569–71.

Entrapment by estoppel “is a narrow exception to the general rule that

ignorance of the law is no excuse and is based on fundamental fairness con-

cerns of the Due Process Clause.” Spires, 79 F.3d at 466. “The focus of the

inquiry is on the conduct of the government not the intent of the accused.”

Id. “To satisfy the requirements of the defense . . . , a defendant is required

to show reliance either on a federal government official empowered to render

the claimed erroneous advice, or on an authorized agent of the federal gov-

ernment who has been granted the authority from the federal government to

render such advice.” Id. at 466–67.

To succeed on his entrapment-by-estoppel claim, Ahmadou needs to

clear two hurdles. He (1) must show that TGC actively assured him that his

conduct was legal by affirmatively misrepresenting the law and (2) must

establish that TGC (or its employees) are federal officials for purposes of the

entrapment-by-estoppel defense. Ahmadou fails both requirements.

1. TGC did not affirmatively misrepresent the law to Ahmadou.

Ahmadou may invoke entrapment by estoppel only if the TGC

“actively misle[d]” him by an “affirmative misrepresentation.” United

States v. Trevino-Martinez, 86 F.3d 65, 69 (5th Cir. 1996) (quotation omitted).

The TGC likely did not make an affirmative misrepresentation to Ahmadou

about his eligibility to possess a firearm, so the defense is inapplicable.

Entrapment by estoppel applies only when the government “actively

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mislead[s] the defendant by inducing him to rely on an affirmative misrepre-

sentation of the law by [the government official].” Id. (emphasis added). 2 In

contrast, a mere failure to inform does not trigger the defense. Id. at 69–70. 3

Ahmadou asserts that TGC’s waiver form affirmatively misrepresented his

eligibility under § 922(g); the government counters that the form merely

failed to inform Ahmadou of his ineligibility. The government has the better

argument.

TGC presented Ahmadou with its waiver-of-liability form, which

stated,

Definition of ‘Prohibited Person’ as defined by The Gun Con-

trol Act of 1968 and codified at 18 USC 922

“Prohibited Person” Defined: The Gun Control Act (GCA),

codified at 18 U.S.C. § 922(g), prohibits the possession of a

firearm by anyone…

• convicted in any court of a [felony];

• that is a fugitive from justice;

• unlawfully using or addicted to any controlled substance. . . ;

• adjudicated as a mental defective or has been committed to

any mental institution;

• an illegal alien;

• who has been discharged from the Armed Forces under dis-

honorable conditions;

• that has renounced his or her United States citizenship;

_____________________

2

But see Cox, 379 U.S. at 571 (characterizing Raley as holding that the defense

applied because the defendants “relied upon assurances of the [state], either express or

implied”).

3

See also United States v. Cornejo-Flores, 254 F.3d 1082 (5th Cir. 2001) (per curiam)

(unpublished) (holding that failure to inform is not an affirmative representation).

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• subject to a court order restraining the person from harassing,

stalking, or threatening . . . or convicted of a misdemeanor

crime of domestic violence.

Ahmadou checked the form’s box, stating “I understand the definition of a

‘Prohibited Person’ as it pertains to possession of a firearm and swear and

attest that I am in compliance with both federal and Texas State Law.”

Importantly, TGC’s form omitted the § 922(g) offense of which

Ahmadou was convicted: possession of a firearm by an alien admitted under

a nonimmigrant visa. § 922(g)(5)(B). The government contends that that

omission was “at most a mere failure to inform.” Ahmadou insists that the

“selective disclosure constitutes an affirmative misrepresentation.”

The form is arguably misleading because it implies that the list of

§ 922(g) offenses is exhaustive. But there is a difference between a mislead-

ing omission and an affirmative misrepresentation. 4 The form merely

implies—it does not affirmatively represent—that the listed categories are

the only ones covered by § 922(g). Nor does the form state that non-

immigrant visa holders may legally possess firearms. TGC did not “actively

assure[] [Ahmadou] that certain conduct is legal,” so he cannot benefit from

the entrapment-by-estoppel defense. Spires, 79 F.3d at 466.

Indeed, TGC did not “actively assure[]” Ahmadou that his conduct

was legal because it made no “affirmative misrepresentation” about his eli-

gibility to possess firearms. Spires, 79 F.3d at 466; Trevino-Martinez, 86 F.3d

at 69. Thus, the entrapment-by-estoppel defense would not entitle Ahmadou

_____________________

4

This court has held that the entrapment by estoppel offense requires the latter.

Trevino-Martinez, 86 F.3d at 69; Spires, 79 F.3d at 466. But see Cox, 379 U.S. at 571 (char-

acterizing Raley as holding that the defense applied because the defendants “relied upon

assurances of the [state], either express or implied”). On these facts, an incomplete form

is an implication by silence rather than an affirmative misrepresentation.

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to relief regardless of whether TGC could be considered a federal “official”

or “agent.” Even so, because this issue of “active assurance” is a closer one

than the question of whether TGC is a federal official, we hold only that TGC

is not a federal official, joining several of our sister circuits.

2. TGC is not a federal official for purposes of entrapment by estoppel.

The Fifth Circuit has “not [yet] decided whether a federally licensed

firearms dealer is a federal official for purposes of the entrapment-by-

estoppel defense.” Uresti-Careaga, 281 F. App’x at 405. Ahmadou asserts

that the defense of entrapment by estoppel “applies when a federally licensed

firearm dealer, acting in coordination with a federal investigation, provides a

defendant with a legal notice that excludes nonimmigrant visa holders from

the list of individuals prohibited from renting firearms at a shooting range.”

This question has been addressed by other federal courts, including the Sev-

enth, Eighth, Ninth, Tenth, and Eleventh Circuits. 5

The Ninth Circuit is the only circuit to hold that a federally licensed

firearm dealer is a federal official. The defendant “received and possessed

firearms in reliance upon the representation of a federally licensed gun

dealer” that affirmatively misstated the law. Tallmadge, 829 F.2d at 774.

The court reasoned that Congress has given licensees the “exclusive right”

to sell firearms and that it concomitantly requires them to ask about pur-

chasers’ criminal backgrounds and to inform buyers about federal re-stric-

tions on firearm purchases. Id. The majority concluded,

Clearly, the United States Government has made licensed fire-

_____________________

5

United States v. Tallmadge, 829 F.2d 767 (9th Cir. 1987); United States v. Austin,

915 F.2d 363 (8th Cir. 1990); United States v. Billue, 994 F.2d 1562 (11th Cir. 1993); United

States v. Howell, 37 F.3d 1197 (7th Cir. 1994); United States v. Hardridge, 379 F.3d 1188 (10th

Cir. 2004).

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arms dealers federal agents in connection with the gathering

and dispensing of information on the purchase of firearms.

Under these circumstances, we believe that a buyer has the

right to rely on the representations of a licensed firearms

dealer[] who has been made aware of all the relevant historical

facts . . . .”

Id.

The dissent criticized the majority for “allow[ing] individuals with

only the most tenuous relationship to the government to bind it with respect

to the interpretation and enforcement of the criminal laws.” Id. at 777

(Kozinski, J., dissenting). A firearm dealer “is not even a federal employee,

much less an official authorized to speak for the government.” Id. “The idea

that the holder of a government license can estop the government’s enforce-

ment of its penal laws has explosive potential.” Id. at 779. 6

Since Tallmadge, four other circuits have confronted the question, and

all of them have sided with the Tallmadge dissent. In Austin, the Eighth Cir-

cuit emphasized that “[f]ederally licensed firearms dealers are private indi-

viduals.” 915 F.2d at 366.

Despite the affirmative duty Congress has imposed upon feder-

ally licensed firearms dealers to enforce federal firearms laws

at the point of sale, we cannot agree that this role, or their fed-

eral license to sell firearms, is sufficient to transform them into

government officials, at least for purposes of the entrapment by

estoppel defense.

Id. at 366–67 (citations omitted); see also United States v. Hullette, 525 F.3d

610 (8th Cir. 2008).

_____________________

6

As an example of such consequences, the dissent theorized that the majority’s

logic might “exonerate a minor who buys liquor illegally” if a store clerk makes a mistake.

829 F.2d at 799.

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The Tenth Circuit followed suit in Hardridge. That court “distin-

guish[ed] between [the licensed dealer’s] duty to comply with the law and an

official responsibility to interpret the law, to see that the law is being properly

administered, or to enforce the law.” 379 F.3d at 1194. “Employees of a

private business licensed by the government are a far cry from the high-

ranking government officials” in the Supreme Court’s entrapment-by-

estoppel cases. Id. at 1193.

The Hardridge court also observed that “[t]he reason to distinguish

between government officials and private persons is not the reasonableness

of reliance.” Id. at 1194. After all, it is often reasonable to rely on, e.g., advice

from an attorney that turns out to be mistaken. The due process rationale for

the entrapment-by-estoppel defense is not the reliance itself, but the identity

of the person on whom the defendant relied: the government cannot pull a

surprise switcheroo by assuring a person that his conduct is legal in one

breath and then prosecuting him for that conduct in the next. See Raley,

360 U.S. at 438. “To allow representations by firearms dealers to estop the

government from prosecuting violations of the firearms law would be to give

private individuals what amounts to a veto over enforcement of the criminal

law.” Hardridge, 379 F.3d at 1194. Finally, Hardridge explained that, in the

context of firearms dealers, “the alleged unfairness to the defendant arises

out of private conduct and not from government action,” so “it is not the

government that has denied due process.” Id.

The Seventh and Eleventh Circuits have also adopted the majority

rule. In Billue, the Eleventh Circuit held that “a federal license to sell fire-

arms does not transform private licensees into government officials, thereby

creating a potential entrapment by estoppel defense.” 994 F.2d at 1569. And

the Seventh Circuit likewise concluded that “the gun dealer . . . is a private

individual; his license to sell firearms does not transform him into a govern-

ment official.” Howell, 37 F.3d at 1206.

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We adopt the lopsided majority rule, that a licensed firearms dealer

“is a private individual” rather than “a government official” for purposes of

the entrapment-by-estoppel defense. Id. The Ninth Circuit is an outlier that

“stretches the holdings of Cox and Raley too far.” Hardridge, 379 F.3d

at 1193. It “runs against the grain of decisions standing for the proposition

that the holder of a government license does not act under color of state law

for purposes of the equal protection clause.” Tallmadge, 829 F.2d at 779 n.3

(Kozinski, J., dissenting). 7 Federal regulations of government contractors

“do not convert the acts of entrepreneurs or of state governmental bodies

into federal governmental acts.” United States v. Orleans, 425 U.S. 807, 816

(1976) (interpreting a statutory waiver of sovereign immunity).

This court has recognized that the entrapment-by-estoppel defense is

a “narrow exception to the general rule.” Spires, 79 F.3d at 466. We there-

fore decline Ahmadou’s invitation to stretch the Supreme Court’s holdings

in Cox and Raley beyond their bounds and against the persuasion of caselaw

in this circuit.

3. TGC is not a de facto government agent.

Even if firearms dealers are not per se government agents, Ahmadou

asserts that the facts of this case render TGC a government agent. But con-

trary to Ahmadou’s contention, there are no facts that transform TGC into a

de facto government agent.

Ahmadou relies almost exclusively on a post-Tallmadge Ninth Circuit

case that he avers is factually similar. In United States v. Batterjee, that court

held that the entrapment-by-estoppel defense applied where the defendant

_____________________

7

For example, a liquor license does not transform a private club’s liquor sales into

state action for Fourteenth Amendment purposes. Moose Lodge No. 107 v. Irvis, 407 U.S.

163 (1972).

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on a nonimmigrant student visa relied on a federal form provided by a feder-

ally licensed firearms dealer. 361 F.3d 1210 (9th Cir. 2004). The firearms

dealer in Batterjee presented the defendant with the Bureau of Alcohol,

Tobacco, and Firearms (“ATF”) Form 4473, which relayed the require-

ments of 922(g). Id. at 1213. But the “ATF did not update Form 4473 to

reflect Congress’s 1998” addition of the nonimmigrant visa exclusion until

“nearly one year after Mr. Batterjee had purchased the pistol.” Id. at 1215.

When he illegally purchased the pistol, Batterjee relied on ATF’s outdated

form and the dealer employees’ representation “that he would be eligible to

purchase the pistol if he produced a government-issued photo identification

and proof of residency.” Id. at 1217–18.

Ahmadou’s analogy to Batterjee fails for two reasons. First, the TGC

waiver form was an internal document created by the firearms dealer—not

the federal government. However plausible it might be that a licensee speaks

as the government’s agent when it adopts the government’s form, it is wholly

implausible to estop the government when the private dealer creates its own

form. Second, unlike Batterjee, Ahmadou does not point to any assurance by

the gun dealer employees that he could legally possess a firearm.

Ahmadou also suggests that the presence of undercover federal agents

at TGC renders the firearms dealer a government agent. In particular, he

points to a federal agent’s comment to TGC’s manager to continue “busi-

ness as usual.” Ahmadou posits that “[w]hen federal agents direct a private

entity to continue normal operations, knowing those operations including

providing misleading information about firearm regulations, the government

effectively authorizes and adopts that misinformation.”

As an initial matter, Ahmadou does not point to any evidence that the

federal agents knew what information was included in TGC’s form. And

Ahmadou takes the “business as usual” statement out of context to suggest

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that the government was directing or controlling business operations. In fact,

the trial transcript reveals that when the TGC manager was asked whether

the federal agents were “directing you on what to do that day,” he answered,

“No. They told me business as usual.” That hardly establishes federal con-

trol over TGC’s operations. To the contrary, it suggests the officers’ non-

interference or non-direction over the TGC manager’s behavior. In any

event, the form Ahmadou signed was the TGC’s usual waiver-of-liability

document; TGC has everyone sign it who “comes in and wants to shoot on

the range.” So, the fact that TGC presented the form to Ahmadou had noth-

ing to do with the federal surveillance. In sum, TGC acted neither as a gov-

ernment official nor as a government agent.

B. Denial of reduction for acceptance of responsibility

Ahmadou avers that the district court erred by denying him a reduc-

tion in his sentence for acceptance of responsibility under U.S.S.G.

§ 3E1.1(a), which provides for a two-level decrease in the offense level “if the

defendant clearly demonstrates acceptance of responsibility for his offense.”

Application Note 2 clarifies that

[t]his adjustment is not intended to apply to a defendant who

puts the government to its burden of proof at trial by denying

the essential factual elements of guilt, is convicted, and only

then admits guilt and expresses remorse. Conviction by trial,

however, does not automatically preclude a defendant from

consideration for such a reduction. In rare situations a defen-

dant may clearly demonstrate an acceptance of responsibility

for his criminal conduct even though he exercises his constitu-

tional right to a trial. This may occur, for example, where a

defendant goes to trial to assert and preserve issues that do not

relate to factual guilt (e.g., to make a constitutional challenge

to a statute or a challenge to the applicability of a statute to his

conduct). In each such instance, however, a determination that

a defendant has accepted responsibility will be based primarily

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upon pre-trial statements and conduct.

U.S.S.G. § 3E1.1, cmt. n.2.

The government asked the court to deny the reduction for acceptance

of responsibility because “the government was forced to produce [evidence]

at trial. [The government] offered to have stipulations to certain portions,

but he did not accept responsibility as to each and every element.” The court

agreed, replying, “Believe me, I remember very well.” 8

The district court acknowledged a post-conviction letter in which

Ahmadou accepted responsibility, but it nonetheless concluded that Ahma-

dou was not entitled to the reduction: “[T]he Court tried this case and the

Court remembers your stance about the charges in this case . . . And up until

[trial] you were vehement that you were not responsible for this.” (citing

U.S.S.G. § 3E1.1, cmt. n.2).

Ahmadou contends that the court clearly erred because his case is one

of the “rare circumstances” in which a defendant accepts responsibility but

still goes to trial. In Ahmadou’s telling, he did not challenge the factual ele-

ments of his offense but, instead, went to trial to assert a purely legal defense.

Ahmadou points to a statement that the district court made mid-trial: “This

is not the typical criminal case where facts are in dispute. I believe that the

vast majority of what the government says factually happened the defense

will agree to or not challenge and that this is more a legal position defense

argument, which I’ve now, again, ruled upon.” Ahmadou contends that the

_____________________

8

The pretrial conference transcripts and trial transcript do not reveal whether the

government is correct in asserting that it offered to stipulate evidence. At one of the pretrial

conferences, Ahmadou’s counsel did note that Ahmadou “chooses to present [entrapment

by estoppel] as his defense at trial, with full agreement that he did the facts, or 99 percent

of the facts that the government is going to probably allege at trial.”

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entrapment-by-estoppel defense does not relate to his factual guilt.

The district court’s denial is not “without foundation.” Kidd,

127 F.4th at 987. First, although the pretrial conference transcripts and the

trial transcript do not indicate whether the government offered to stipulate

its evidence, Ahmadou’s stance did force the government to put on witnesses

to adduce evidence for each element of the offense. That suggests that, even

if he did not falsely deny those elements, Ahmadou did not readily volunteer

all of the conduct comprising the offense. 9

More fundamentally, however, Ahmadou is mistaken that his entrap-

ment-by-estoppel defense is unrelated to factual guilt. In United States v.

Sam, this court explained that “‘guilt’, as used in the Guidelines commen-

tary, is a broader term than ‘offense.’” 467 F.3d 857, 863 (5th Cir. 2006).

“‘Guilty’ is defined as ‘justly liable to or deserving of a penalty,’ and it is

synonymous with ‘blameworthy.’” Id. (citing Webster’s Ninth New

Collegiate Dictionary 542 (1990)). Even if Ahmadou was forth-

coming that he committed the offense, his entrapment-by-estoppel defense

eschews his responsibility—i.e. his blameworthiness—for committing the

offense. Ahmadou blames the government for his conduct by claiming that its

agent misrepresented the law to him and that he relied on that representation.

Ahmadou leans on Spires’s holding that “the focus of the inquiry” in

an entrapment-by-estoppel defense “is the conduct of the government not

the intent of the accused.” Spires, 79 F.3d at 466. That, says Ahmadou, dif-

fers from the entrapment defense because assertion of “an entrapment de-

fense is a challenge to criminal intent and thus to culpability.” United States

v. Brace, 145 F.3d 247 (5th Cir. 1998) (en banc). But even though criminal

_____________________

9

See U.S.S.G. § 3E1.1, cmt. n.1(A) (distinguishing “truthfully admitting” from

“falsely denying”).

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No. 24-20045

intent is not an element of entrapment by estoppel, that defense still hinges

on the defendant’s blameworthiness. The defense of entrapment by estoppel

“is based on the fundamental fairness concerns of the Due Process Clause.”

Spires, 79 F.3d at 466. In other words, the essence of the defense is that it is

not blameworthy where a defendant engages in conduct that the government

has assured him it will not punish.

The district court did not clearly err in denying Ahmadou a reduction

for acceptance of responsibility under U.S.S.G. §3E1.1.

C. Procedural and substantive reasonableness

Ahmadou challenges his sentence as procedurally and substantively

unreasonable. He asserts that the district court “erred in imposing an

upward departure or variance under U.S.S.G. § 3A1.4, Application Note 4

by relying on protected speech, religion, and association without making spe-

cific factual findings.”

The court declined to apply the terrorism enhancement of § 3A1.4

because the government had not shown that Ahmadou’s offense “involved,

or was intended to promote, a federal crime of terrorism.” § 3A1.4. 10 The

court found that the evidence did not demonstrate that Ahmadou’s firearm

offense was intended to promote terrorism, nor that he joined a group that

promoted terrorism.

Nonetheless, the court still imposed an above-guidelines sentence. At

the sentencing hearing, it orally pronounced the reasons:

The Court was made aware early on that part of the subtext of

this case was the associations that this defendant had with a

_____________________

10

U.S.S.G. § 3A1.4 provides for a 12-level guidelines enhancement and a minimum

resulting offense level of 32.

17

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No. 24-20045

known terrorist. . . .

This defendant was here on a student visa . . . The Court takes

issue with the defendant claiming not to have known that he

could possess firearms. It is clearly stated as part of the visa

requirements . . . So from the Court’s point of view, you knew

that you should not have possessed firearms or handled

firearms.

The Court has held the government to task on seeking an en-

hancement for terrorism; and as the Court pointed out, it did

not believe the government had met its burden of proof to get

there. Now the Court undertakes that same evidence for pur-

pose of enhancement, and it is clear that this defendant viewed

some of the most reprehensible and vile subject matter availa-

ble to a person with access to a computer.

While you may not have donated money or participated in the

creation of those videos, you did provide a click to those videos.

You provided an audience for those videos, and the only reason

that those videos are created is for an audience. Without an

audience they become useless. I understand that you’ve told

the Court of your curiosity as you were wading through your

religious understanding and religious training to come to some

understanding as to what your religion required of you; but

along the way you took missteps, specifically in repeatedly ob-

serving those videos. Someone who claims to be a person of

God seeing someone killed on video or having their head

chopped off, I think you only need to see it once, not repeat-

edly, to understand that that’s not part of any religion of love

or faith, yet you went back time and time again to view it.

All of these factors taken in context suggest to the Court that

up [sic] upward departure is appropriate in this case. . . .

The Court, having heard now the defendant stand before it and

read the letter provided about his acceptance of responsibility

and his remorse here today, I do take that into consideration.

The Court again is wholly unsatisfied that a foreign student

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No. 24-20045

came into our country under a student visa . . . and violated that

trust.

The Court is disturbed by the videos that you watched and

despite your reasoning for it, there was no redeeming reason

for you to repeatedly watch those videos. While the Court is

troubled by your association with someone who did, in fact,

commit terrorism on these shores and your expressed interest

in jihad, whatever that may have been formed in your mind to

look like, the Court is troubled by it. And again these are the

reasons and factors the Court has considered for purposes of

its upward departure.

Then, in its written statement of reasons, the court stated that the

above-guidelines sentence was a variance per 18 U.S.C. § 3553(a)—not an

upward departure. At the oral pronouncement, it summarized the reasons:

The Court has a long history with the case and was made aware

early on about the subtext to terrorism. Although the Court

held the Government to the text on the terrorism enhance-

ment, it was clear the defendant viewed reprehensible and vile

subject matter related to terrorism repeatedly under the guise

of religious curiosity. Although the defendant did not contrib-

ute money to terrorist organizations, he did provide an audi-

ence and a “click” in support of the terrorist organizations.

The Court found the defendant violated the United States’

trust and took issue with the defendant’s position that he did

not know he could not possess a firearm. The Court was fur-

ther troubled by the defendant’s association with the person

who did commit terrorism.

1. Ahmadou’s sentence is procedurally reasonable.

Ahmadou contends the sentence is procedurally unreasonable be-

cause the district court applied an upward departure under § 3A1.4, Appli-

cation Note 4, without explaining which departure provision of Note 4

applied and without making factual findings to support either provision.

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No. 24-20045

Ahmadou also alleges procedural error in the “inconsistency” between the

oral pronouncement’s use of the term “departure” and the written state-

ment of reasons’ declaration that the sentence is an upward variance per

§ 3553(a).

“Our court recognizes three types of reasonable sentences: (1) a sen-

tence within the guidelines range; (2) a departure based on the guidelines;

and (3) a non-guidelines sentence or variance based on the § 3553(a) factors.”

United States v. Lavalais, 960 F.3d 180, 189 (5th Cir. 2020).

The record establishes that the sentence was an upward variance per

§ 3553(a)—not an upward departure under § 3A1.4, Application Note 4.

Although the court used the term “departure” in its oral pronouncement,

the context indicates that it did so in reference to a § 3553(a) variance—not

a departure under the guidelines.

The court never said that it was applying Application Note 4. The

oral pronouncement elucidated factors relevant to § 3553(a), and the reasons

the court gave for denying the § 3A1.4 adjustment for terrorism indicate that

it did not depart under Note 4. Note 4 applies when the terrorism adjustment

would otherwise apply but either

(1) the offense of conviction was “calculated to influence or

affect the conduct of government by intimidation or coercion,

or to retaliate against government conduct” but it promoted an

offense other than those enumerated in the guideline cross-

reference; or

(2) the terrorism was against civilians rather than a gov-

ernment.

See § 3A1.4, cmt. n.4. The court made no findings as to either prong. And

its finding—that the evidence did not establish that Ahmadou’s offense was

intended to promote terrorism—further indicates that the court was not

departing under Note 4. Indeed, the court clarified, near the end of the sen-

20

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No. 24-20045

tencing hearing, that “[t]here was no punishment included whatsoever for

terrorism in the Court’s pronouncement.”

The written statement of reasons confirms that the above-guidelines

sentence was a § 3553(a) variance. 11 The written statement recapitulates the

same reasons the court cited in the oral pronouncement, and its denomina-

tion of the sentence as a § 3553(a) variance resolves any ambiguity in the oral

pronouncement. 12

Thus, there was no procedural error. To the extent that any concerns

remain, any procedural error would also have been harmless. 13 The govern-

ment has the burden to show that sentencing error was harmless by

“establish[ing] beyond a reasonable doubt that the district court would have

imposed the same sentence absent the error.” United States v. Mejia-Huerta,

480 F.3d 713, 720 (5th Cir. 2007). Here, it has met that burden because the

written statement of reasons confirms that the district court would have

imposed the same sentence for the same reasons under § 3553(a). 14

2. Ahmadou’s sentence is substantively reasonable.

Ahmadou asserts that his above-guidelines sentence is substantively

_____________________

11

See United States v. Jones, 75 F.4th 502, 512 (5th Cir. 2023) (considering written

statement of reasons in procedural reasonableness challenge).

12

Cf. United States v. Johnson, No. 22-30386, 2023 WL 116722, at *1 (5th Cir. 2023)

(per curiam) (unpublished) (where defendant claimed district court failed to clarify wheth-

er sentence was departure or variance, but record established sentence was a variance).

13

See United States v. McNeal, 102 F.4th 708, 710 (5th Cir. 2024) (holding that

harmless-error analysis applies to procedural reasonableness challenges).

14

See id. (cleaned up) (“We need not consider the propriety of a sentence as an

upward departure because the sentence may be affirmed on the court’s alternate basis as

an upward variance justified by the 18 U.S.C. § 3553(a) sentencing factors.”).

21

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No. 24-20045

unreasonable—whether it’s a departure or a variance—because the district

court’s reasons “implicat[e] First Amendment protections for speech, asso-

ciation, and religion.”

As an initial matter, the court did not punish Ahmadou for his religion.

Instead, it found that Ahmadou’s stated reason for watching the jihad be-

heading videos—religious curiosity—was pretextual. The court explained

that the defendant’s repeatedly watching the beheading and killing videos

undermined the veracity of his claim that he was merely discerning the re-

quirements of his religion. And that repeated viewing provided an audience

and a “click” for the terrorist videos. 15

To the extent that the district court’s reasons implicated protected

First Amendment beliefs, expression, and association, that does not neces-

sarily invalidate them. “[T]he Constitution does not erect a per se barrier to

the admission of evidence concerning one’s beliefs and associations at sen-

tencing simply because those beliefs and associations are protected by the

First Amendment.” Delaware v. Dawson, 503 U.S. 159, 165 (1992). Admis-

sion of such evidence does not violate the Constitution if it is relevant to the

issues at sentencing. Id. at 165–67. 16 For example, “associational evidence

might serve a legitimate purpose in showing that a defendant represents a

future danger to society.” Id. at 166.

_____________________

15

Nor is it clear that the jihad killing videos are protected speech under the First

Amendment—to maintain that they are so protected, and to maintain that they are neces-

sary for Ahmadou to appreciate his own faith, stretches credulity.

16

See Boyle v. Johnson, 93 F.3d 180, 183 (5th Cir. 1996) (applying Dawson and hold-

ing that the evidence “must be sufficiently related to the issues involved”); United States

v. Simkanin, 420 F.3d 397, 417 (5th Cir. 2005) (quotation omitted) (holding that defen-

dant’s “beliefs and associations may be considered if they were sufficiently related to the

issues at sentencing”).

22

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No. 24-20045

Ahmadou’s interest in jihad was reasonable for the district court to

consider in the context of his firearm offense. Even though the court did not

find that the firearm offense was itself intended to promote terrorism, that

does not render irrelevant at sentencing Ahmadou’s obsessive viewing of

beheading videos and his association with someone who committed terror-

ism. The court’s consideration of Ahmadou’s disturbing preoccupation with

jihad is not constitutionally forbidden because obsession with violent terror-

ism is relevant context to his possession of a violent weapon. 17 Ahmadou’s

sentence is substantively reasonable and does not violate the Constitution.

The judgment of conviction and sentence is AFFIRMED.

_____________________

17

See § 3553(a)(1) (stating that the district court “shall consider” “the nature and

circumstances of the offense and the history and characteristics of the defendant”).

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No. 24-20045

James L. Dennis, Circuit Judge, concurring in part and dissenting in part:

I agree with the majority that the district court did not err by denying

Moctar Ahmadou the defense of entrapment-by-estoppel or by denying him

an acceptance-of-responsibility offense level reduction under U.S.S.G.

§ 3E1.1. But I respectfully disagree that the district court’s above-Guidelines

sentence represented a procedurally proper Guideline variance. The court

orally imposed an “upward departure” on terrorism-related facts while the

Statement of Reasons rebranded the same rationale as a § 3553(a)

“variance.” The record does not rectify this ambiguity. Moreover, under

either reading there is procedural error—the district court either improperly

departed from the Guidelines without issuing § 3A1.4 Application Note 4

findings, or it varied without an adequate § 3553(a) explanation—and the

Government has not met its beyond-a-reasonable-doubt harmless error

burden. Because I would vacate Ahmadou’s sentence and remand for

resentencing, I respectfully concur in part and dissent in part.

* * *

Ahmadou correctly contends that any meaningful appellate review

here “is complicated by variations between the court’s oral pronouncement

of an upward departure and its Statement of Reasons articulating an upward

variance.” Where there is ambiguity between the oral pronouncement and

the written judgment, we examine the whole record to discern the district

court’s intent. United States v. Garza, 448 F.3d 294, 302 (5th Cir. 2006)

(citing United States v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001)). The

majority reads this record as a straightforward § 3553(a) variance rather than

a departure under U.S.S.G. § 3A1.4, Application Note 4. See ante, at 20–

21. I disagree.

The PSR recommended applying a twelve-level terrorism

enhancement under § 3A1.4(a); Ahmadou objected. The PSR also advised

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No. 24-20045

that, “should the Court find the enhancement . . . does not apply,” “factor(s)

which may warrant departure” existed under Application Note 4:

Due to the nature and circumstances of the offense and the

defendant’s involvement with an individual known to have

committed a terroristic act in the United States, as well as the

defendant’s significant indoctrination with ISIS-related

propaganda and the seeking of jihad, an upward departure may

be warranted.

Following argument on Ahmadou’s objection to the § 3A1.4(a) enhancement

at the sentencing hearing, the Government and the district court canvassed

alternatives to applying the enhancement, including departures and

variances:

MR. SCHAMMEL: I’m sorry. One other thing. In some

instances, both in domestic terrorism cases and in international

terrorism cases what we’ve seen is sometimes the judge or the

court will apply the terrorist enhancement and upwardly

depart, but then using 3553 factors, if the court thinks the 12-

level enhancement is too much and Category 6 is too much,

downwardly vary.

THE COURT: That’s an excellent point, and I had just arrived

at that conclusion.

MR. SCHAMMEL: Thank you.

THE COURT: The converse of that is I could sustain the

objection and upwardly depart based upon what you’ve

outlined as the evidence in this case based upon the

recommended sentencing guideline, could I not?

MR. SCHAMMEL: Yes, Your Honor.

The district court then sustained Ahmadou’s objection to § 3A1.4(a). The

Government again urged that Application Note 4 “provides for an upward

departure,” grounding that request in the same terrorism-related facts the

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No. 24-20045

PSR had flagged: Ahmadou’s consumption of ISIS propaganda and

associations with Adam Alsahli, an ISIS terrorist.

Over Ahmadou’s objection, the district court determined “an upward

departure [was] appropriate” based upon the “same evidence” of

Ahmadou’s association with terrorism urged by the Government to support

the § 3A1.4(a) enhancement:

The Court has held the government to task on seeking an

enhancement for terrorism; and as the Court pointed out, it did

not believe the government had met its burden of proof to get

there. Now the Court undertakes that same evidence for

purpose of enhancement, and it is clear that this defendant

viewed some of the most reprehensible and vile subject matter

available to a person with access to a computer. . . .

The court likewise was “troubled by [Ahmadou’s] association with someone

who did, in fact, commit terrorism on these shores and [his] expressed

interest in jihad[.]” “All of these factors taken in context,” the district court

reasoned, “suggest to the Court that [an] upward departure is appropriate in

this case.”

Lest there be any doubt, the court would reiterate that its above-

Guidelines sentence of Ahmadou represented an “upward departure” three

more times. At no point did the court invoke “variance,” § 3553(a), or its

factors. That only materialized in the Statement of Reasons, where the court

newly characterized its above-Guidelines “departure” as a “variance” under

§ 3553(a)(1), which conveniently depended upon the same terrorism-related

evidence proffered by the Government.

Relying on what it calls “context,” the majority concludes

Ahmadou’s sentence was an upward variance under § 3553(a), rather than

the district court’s self-described “departure” under § 3A1.4, Application

Note 4. Ante, at 20. But what the majority calls context is really inference

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No. 24-20045

piled on silence. The actual context—the PSR’s recommendation, the

Government’s request, and the court’s own colloquy—shows that the oral

pronouncement was a departure, not a § 3553(a) variance. Put plainly, the

district court did exactly what it said it would: “sustain the objection [to the

terrorism enhancement] and upwardly depart based upon what [the

Government] outlined as the evidence in this case based upon the

recommended sentencing guideline[.]” That the court “never said that it

was applying Application Note 4,” ante, at 20, is beside the point. It invoked

“departure” and relied on the same terrorism-related facts the PSR and

Government identified as grounds for Application Note 4. The only fair

reading of the court’s sentence is an above-Guidelines departure, and the

only departure ever discussed was that of § 3A1.4, Application Note 4.

Moreover, the majority’s emphasis on the district court’s silence is

equally true of § 3553(a). The district court’s Statement of Reasons purports

to justify the “variance” under § 3553(a)(1), i.e., “the nature and

circumstances of the offense and the history and characteristics of the

defendant,” but the court conspicuously omitted referencing that sole factor

in its pronouncement. True, a sentencing court need not recite “robotic

incantations” of each factor. United States v. Smith, 440 F.3d 704, 707 (5th

Cir. 2006) (citation omitted). But the omission of § 3553(a)(1) here does not

clarify; it compounds the ambiguity between the court’s oral “departure”

and written “variance.” Nor does the majority’s fallback—that the

Statement of Reasons merely “recapitulates the same reasons” offered

orally—solve the problem. Ante, at 21. Reciting the same facts in both its oral

and written sentence does nothing to resolve whether the court intended to

upwardly depart or vary. For example, the court reassured Ahmadou that

“there was no punishment included whatsoever for terrorism” in its

pronouncement, yet it grounded its “upward departure” in the very

27

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No. 24-20045

terrorism-related conduct the PSR and Government advanced to support

Application Note 4. This mismatch frustrates meaningful review.

That leaves two paths, and both are procedurally unreasonable. If the

district court intended to upwardly depart under Application Note 4, the

majority concedes that it “made no findings” sufficient to do so. Ante, at 20.

If the court instead meant to vary under § 3553(a), it failed to articulate

reasons adequate to support that choice, much less the extent of the increase.

The Statement of Reasons invokes § 3553(a)(1) and says the court was

“troubled” by Ahmadou’s repeated viewing of “reprehensible and vile”

ISIS propaganda “under the guise of religious curiosity” and his

“association” with Alsahli. But sentencing cannot turn on bare disapproval

of beliefs or associations; such evidence must be “sufficiently related to the

issues at sentencing,” such as demonstrating future dangerousness or a

likelihood of recidivism—considerations that map to § 3553(a). Boyle v.

Johnson, 93 F.3d 180, 183–84 (5th Cir. 1996) (quoting Dawson v. Delaware,

503 U.S. 159, 165 (1992)); Fuller v. Johnson, 114 F.3d 491, 498 (5th Cir. 1997);

United States v. Simkanin, 420 F.3d 397, 417 (5th Cir. 2005); see also 18

U.S.C. § 3553(a)(2)(B)–(C).

Here, the court never drew that line. It did not explain how

Ahmadou’s viewing habits or associations bore on the § 3553(a) factors, and

it offered no rationale tethering those facts to the degree of the above-

Guidelines sentence. See Smith, 440 F.3d at 707 (the statement of reasons

must enable meaningful appellate review); cf. United States v. Fidse, 778 F.3d

477, 483 (5th Cir. 2015). Either way—departure without findings or variance

without an adequate explanation—the sentence is procedurally

unreasonable.

Nor has the Government carried its “heavy burden” to show

harmless error. United States v. Juarez, 812 F.3d 432, 438 (5th Cir. 2016). It

28

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No. 24-20045

must “prov[e] beyond a reasonable doubt that the error did not contribute to

the sentence received.” Garza, 448 F.3d at 301 (emphasis added). The

Government argues that because the Statement of Reasons recites the same

justification the court gave orally, the court would have imposed the same

sentence regardless. That will not do. In United States v. Ibarra-Luna, we

were “convinced that the explanation the district court gave for imposing an

above-Guidelines sentence would have led it to do so even if it had considered

the correct Guidelines range,” yet we could not “state with the requisite

certainty . . . that the district court would have imposed precisely the same

sentence.” 628 F.3d 712, 716 (5th Cir. 2010) (emphasis added). The same

flaw is present here.

At bottom, the ambiguity between the oral pronouncement and the

Statement of Reasons renders the basis for the sentence unclear. And

“unclear or ambiguous sentences must be vacated and remanded for

clarification in ‘the interest of judicial economy and fairness to all concerned

parties.’” Garza, 448 F.3d at 302 (quoting United States v. Patrick Petroleum

Corp., 703 F.2d 94, 98 (5th Cir. 1982)). Because the majority holds otherwise,

I respectfully concur in part and dissent in part.

29