United States v. Madhatta Haipe

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 18, 2014 Decided October 31, 2014

No. 11-3003

UNITED STATES OF AMERICA,

APPELLEE

v.

MADHATTA ASAGAL HAIPE, ALSO KNOWN AS HATTA HAIPE,

ALSO KNOWN AS USTADZ MADHATTA, ALSO KNOWN AS ABU

ABDULLAH AZIS, ALSO KNOWN AS COMMANDER HAIPE, ALSO

KNOWN AS HAIPE,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:00-cr-00375-1)

Diane S. Lepley, appointed by the court, argued the cause

and filed the brief for appellant.

Chrisellen R. Kolb, Assistant U.S. Attorney, argued the

cause for appellee. With her on the brief were Ronald C.

Machen Jr., U.S. Attorney, and Elizabeth Trosman, Gregg A.

Maisel, and Anthony Asuncion, Assistant U.S. Attorneys.

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Before: ROGERS AND KAVANAUGH, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

WILLIAMS.

WILLIAMS, Senior Circuit Judge: The defendant,

Madhatta Asagal Haipe, pleaded guilty to four counts of

hostage-taking in violation of 18 U.S.C. §§ 1203 and 2 and

was sentenced in 2010. His conviction stems from his

leadership role in a December 1995 kidnapping of 16 civilians

from a recreation area in the southern Philippines, including

nationals of the Philippines and the United States. A factual

proffer agreed on by the parties explains that after Haipe and

his associates seized the hostages, Haipe released four,

demanding that they collect a ransom payment of at least

1,000,000 Filipino pesos (about $38,000 at the time) by 5 PM

the next day. He instructed them not to tell the authorities

about the kidnapping; if they did so, other hostages would be

killed. The released hostages managed to raise over a million

pesos. Despite Haipe’s stricture against contacting officials,

they brought a local mayor into the picture. Before any

ransom was paid, she and Haipe negotiated a deal whereby

Haipe accepted a lesser amount, coupled with a commitment

by the mayor to provide various benefits for the local Muslim

community, including financial support for existing schools

and hiring more Muslims for government jobs.

Haipe’s claims on appeal relate solely to sentencing,

some aspects of which the plea agreement left open. His

primary arguments are that the court should have applied a

part of the Sentencing Guidelines that came into effect after

the offense, and that the court should not have applied the so-

called “terrorism enhancement,” United States Sentencing

Guidelines (“USSG”), § 3A1.4(a). Although the final offense

level computed by the district court under the Guidelines

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yielded a sentence of life imprisonment, the court sentenced

Haipe to concurrent terms of 276 months in prison on each

count. The court also imposed concurrent terms of 60 months

supervised release.

The Guidelines are now advisory, but the first step of the

sentencing court is to calculate the range they prescribe. Gall

v. United States, 552 U.S. 38, 49, 51 (2007). Even though

Haipe’s ultimate sentence of 276 months fell roughly in the

middle of the range his own theories would have produced

(235 to 293 months), a lower range would likely have

benefited him, as the properly calculated range frames the

district court’s exercise of its discretion. United States v.

Rodriguez, 676 F.3d 183, 192 (D.C. Cir. 2012).

We review de novo Haipe’s purely legal claim—that the

district court should have chosen the later Guidelines. As to

the application of the Guideline to the facts, 18 U.S.C.

§ 3742(e) directs us to give the district court “due deference,”

which we have said lies “somewhere between de novo and

‘clearly erroneous.’” United States v. Kim, 23 F.3d 513, 517

(D.C. Cir. 1994). We find no error.

* * *

The district court is normally required to apply the

Guidelines in effect at the time of sentencing. USSG

§ 1B1.11(a). This general rule obviously cannot trump the

Constitution’s ex post facto clause. Art. I, § 9, cl. 3. Thus, if

there is a substantial risk that application of the Guidelines in

effect at sentencing would result in a heavier sentence than

would the Guidelines in effect at the time of the crime, the

court must use the latter. United States v. Terrell, 696 F.3d

1257, 1260 (D.C. Cir. 2012). The Guidelines explicitly

implement that principle. USSG § 1B1.11(b)(1). The

principle is applicable here, as the 2010 Guidelines Manual,

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thanks to a 2003 change under the PROTECT Act, Pub. L.

No. 108-21, § 104, 117 Stat. 650, 653 (2003), recommended a

much higher base offense level for the charged hostage-taking

than did the 1995 Manual. Compare USSG § 2A4.1(a) (2010)

(base offense level of 32 for kidnapping) with USSG

§ 2A4.1(a) (1995) (base offense level of 24 for kidnapping).

The Guidelines also direct that in applying a Guidelines

Manual in effect on a particular date, the court is to apply that

Manual alone, not to mix and match from Manuals of

different dates. USSG § 1B1.11(b)(2). But in applying a

Manual of one vintage, the court “shall consider subsequent

amendments, to the extent that such amendments are

clarifying rather than substantive changes.” Id. Haipe invokes

this provision. He claims that a 1996 amendment to the

Guidelines’ criteria for the “terrorism enhancement” was

clarifying and that the district court should have considered

it—notwithstanding the advantage he gained from using the

1995 Guidelines, with their relatively low, pre-2003 base

offense level for kidnapping. At no point does Haipe explain

how any language in the 1996 amendment could have helped

him.

In any event, § 1B1.11(b)(2) limits consideration of later

changes to clarifying amendments, and the 1996 change to

which Haipe points is substantive. It followed a congressional

directive to amend the Guidelines so that the “adjustment

relating to international terrorism only applies to Federal

crimes of terrorism, as defined in section 2332b(g) of title

18.” Antiterrorism and Effective Death Penalty Act of 1996,

Pub. L. No. 104-132, § 730, 110 Stat. 1214, 1303 (1996). The

cross-referenced definition of “Federal crime of terrorism”

lists acts that combine intimidation of government with

violation of various criminal provisions, many of which apply

inside as well as outside the United States, e.g., 18 U.S.C.

§ 37 (prohibiting violence at international airports, both within

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and outside of the United States). 18 U.S.C. § 2332b(g)(5). It

represents a substantial shift in focus from 18 U.S.C.

§ 2331(1)(C), the definitional section cross-referenced in the

1995 Guidelines, which covered terrorist acts occurring

“primarily outside the territorial jurisdiction of the United

States” or transcending “national boundaries,” and which

contained no cross-reference to other criminal provisions.

The amendment’s substantive character is clear. United States

v. Wells, 163 F.3d 889, 899 (4th Cir. 1998); see also United

States v. Garey, 546 F.3d 1359, 1361-62 (11th Cir. 2008); see

generally United States v. Smaw, 22 F.3d 330, 333 (D.C. Cir.

1994).

Haipe’s second major claim is that his crime did not

qualify for the enhancement even under the 1995 Guidelines.

Those provide for a 12-level increase if a felony “involved, or

was intended to promote, international terrorism,” USSG

§ 3A1.4 (1995). The Guideline refers to 18 U.S.C. § 2331,

which states that international terrorism means activities that:

(A) involve violent acts or acts dangerous to human life

that are a violation of the criminal laws of the United

States or of any State, or that would be a criminal

violation if committed within the jurisdiction of the

United States or of any State;

(B) appear to be intended–

(i) to intimidate or coerce a civilian population;

(ii) to influence the policy of a government by

intimidation or coercion; or

(iii) to affect the conduct of a government by

assassination or kidnapping; and

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(C) occur primarily outside the territorial jurisdiction of

the United States, or transcend national boundaries in

terms of the means by which they are accomplished, the

persons they appear intended to intimidate or coerce, or

the locale in which their perpetrators operate or seek

asylum . . . .

18 U.S.C. § 2331 (1994). Haipe does not dispute that his

actions met parts (A) and (C) of the definition, but claims that,

contrary to the finding of the district court, they were not

intended, as required by subsection (B)(ii), “to influence the

policy of a government by intimidation or coercion.” His

primary purpose, he argues with some support in the record,

was to raise money for his organization. App. Br. 11.

But Haipe’s money-raising goals obviously do not

preclude a finding of intent to influence government policy.

As the court found, he released the hostages on the condition

that “the government take a host of actions to benefit the local

Muslim community which included fiscal and employment

policy changes,” a finding fully supported by the proffer.

Informing a government official that you will release hostages

on the condition that an official commit to specified policy

changes clearly “appear[s] to be intended” to “influence the

policy of a government” by intimidation and coercion—no

matter how desirable the policy changes may be.

In making the finding supporting the enhancement, the

district court referred to other aspects of the kidnapping

episode as well, such as Haipe’s position as “a high official of

an organization with a sole purpose of establishing an Islamic

government.” We are unsure how this and some other

features mentioned by the court relate to the statutorily

required intent, under subsections (B)(ii) and B(iii), to

influence government policy or affect government conduct.

Further, given that a kidnapping will almost by definition

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intimidate the victims and will typically coerce them and their

relatives or friends to pay ransom, we question whether the

court’s finding that “the kidnapping appeared intended to

intimidate a civilian population or coercive to pay ransom

money” could be thought to meet the standard of subsection

(B)(i). Were it enough, every (or virtually every) kidnapping

would ipso facto qualify for the terrorism enhancement. But

as Haipe conceded that he conditioned the hostage release on

government policy commitments, and such a bargaining

stance falls squarely within the statutory language, the

remoteness of some of the other factors does not require a

remand.

Finally, Haipe claims that the district court erred in

failing to depart downward from the Guidelines based on his

incarceration before his extradition to the United States. But

defense counsel acknowledged in the district court that the

issue of time served was to be addressed by the Attorney

General through the Bureau of Prisons. The concession

accords with the prescription of 18 U.S.C. § 3585(b), as

construed in United States v. Wilson, 503 U.S. 329 (1992).

* * *

The judgment of the district court is

Affirmed.