United States v. Randy Graham

COHN, Senior District Judge,

dissenting.

I. Introduction

I respectfully dissent from Part II.D., Application of U.S.S.G. § 3A1.4 to Sentence, of the majority opinion. I believe it was error to apply the terrorism adjustment under U.S.S.G. § 3A1.4 to defendant’s offense conduct as determined under Chapter Two of the sentencing guidelines. Application of the adjustment added over 250 months to defendant’s *525 sentence. Effectively, defendant was convicted by the district court and not by the jury of a crime not charged in the indictment and not proved at trial. The fundamental error committed by the district court and condoned by the majority is the failure to give full weight to the definition of a “Federal crime of terrorism” in 18 U.S.C.'§ 2332b(g)(5) which § 3A1.4 incorporates.

I disagree particularly with three statements in the majority opinion.

— Noting that there is no applicable case law to assist us, we turn to the language of the Guidelines and analogous provisions for guidance.

As I will describe, the evolution of § 3A1.4, applicable case law as well as the legislative history of 18 U.S.C. § 2332b(g)(5), assists us in deciding on the parameters of a “Federal crime of terrorism.” To look to analogous provisions of the guidelines is unnecessary; § 3A1.4 is explicit in its definition of a “Federal crime of terrorism;” there must be a conviction of one of the enumerated offenses in 18 U.S.C. § 2332b(g)(5)(B) before there can be an enhancement under § 3A1.4.

— In sentencing the defendant under § 3A1.4 we hold that the district court must, however, identify which enumerated “Federal crime of terrorism” the defendant intended to promote, satisfy the elements of § 2332b(g)(5)(A), and support its conclusions by a preponderance of the evidence with facts from the record.

It is not which enumerated “Federal crime of terrorism” the defendant intended to promote that must be identified, but rather of which of the offenses in 18 U.S.C. § 2332b(g)(5)(B) that defendant was convicted. An enhancement under § 3A1.4 is an interpretive exercise only to the extent that conviction of an enumerated crime was motivated by the elements of 18 U.S.C. § 2332b(g)(5)(A). Additionally, in all events, application of a guideline enhancement of some 250 months requires more than a finding by a preponderance of the evidence. At a minimum, the evidence should be clear and convincing if not beyond a reasonable doubt.

— [T]he district court’s determination that the defendant’s § 371 conspiracy was “intended to promote” a federal crime of terrorism, in particular the crime of maliciously damaging or destroying, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce, was not error.

The enumerated offense listed under 18 U.S.C. § 2332b(g)(5)(B) described in this statement is 18 U.S.C. § 844 (i). Defendant was not convicted of violating 18 U.S.C. § 844 (i) or attempting to do so in violation of 18 U.S.C. § 2 . Moreover, a conviction under 18 U.S.C. § 844 (i) only becomes a “Federal crime of terrorism” if 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). The district court’s findings fall woefully short this standard. The district court’s particular findings lack any details from the trial record which would support the additional finding beyond a reasonable doubt.

These are, in summary, the considerations which compel my dissent. They will be discussed in detail below.

*526 II. Background 1

A. The Indictment

Randy Graham, Bradford Metcalf and Ken Carter were indicted on April 9, 1998. The majority opinion describes the various charges against the three and they need not be repeated here. Significant in the language of the indictment is the following:

— Carter was the commanding officer and leader in the formation of the “North American Militia.”

— Metcalf was also a leader.

— Graham “executed various tasks assigned to him by Carter.”

— Thirty Overt Acts are described. Carter is named alone in nine of them. Metcalf alone is named in six. Graham alone is named in two. All three are named in one. Graham and Carter are named in three. The other Overt Acts name Carter and Metcalf. Of the thirty Overt Acts described in the indictment, Graham is named in only six.

B. The Sentences

1. Carter

Carter quickly pleaded guilty to Count One of the Indictment, the 18 U.S.C. § 371 conspiracy count, under a plea agreement which required complete cooperation. Under the plea agreement, the government agreed to dismiss the other counts against Carter. This meant that Carter’s sentence was limited to 60 months, the statutory maximum for a violation of § 371, and this was the sentence Carter received. The plea agreement described in detail, however, the predicted sentencing guidelines for each of the offenses for which Carter was indicted, including the Base Offense Level and increases in this level because of the Specific Offense Characteristics of each offense. Nowhere in the predicted sentencing guidelines is there a reference to an enhancement under § 3A1.4. Apparently at that time, the government did not believe that such an enhancement was appropriate. However, Carter’s Presentence Investigation Report (PSR) and the Guideline Range Determination By The Court part of Carter’s judgment, set the Total Offense Level at 38 and the Criminal History Category at VI. This computation included the § 3A1 .4 enhancement. The Judgment In A Criminal Case stated “The sentence departs from the guideline range because the count of conviction carries a five year maximum statutory penalty” and also stated:

The Court recommends to the Bureau of Prisons that the defendant be placed in a less security facility than may be indicated by criminal history category VI since, in fact, his true criminal history category is I.

2. Graham

Graham initially negotiated a plea agreement substantially similar to that of Carter. On Graham’s plea of guilty to Count One, the 18 U.S.C. § 371 conspiracy count, which of course limited his sentence to 60 months, the remaining counts against him were to be dismissed. Graham’s plea agreement, like Carter’s, included predicted sentencing guidelines for each of the offenses on which he was indicted. The predicted sentencing guidelines made no mention of an enhancement under § 3A1.4. However, on the day scheduled for his plea, Graham declined to plead, thus aborting the plea agreement.

On July 9,1998, the grand jury returned a superceding indictment against Carter *527 and Metcalf. Carter was dropped from the superceding indictment and two counts were added against Graham: Count Thirteen, which charged him with carrying a semi-automatic weapon in relationship to a crime of violence, in violation of 18 U.S.C. § 924 (c)(1), and Count Fourteen, which charged him with carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924 (c)(1). These offenses carried mandatory consecutive sentences of 20 years and 5 years, respectively.

Graham went to trial. The results are described in the majority opinion and need not be repeated here. Importantly, as noted by the majority, the jury returned a general verdict on Count One so there is no way of knowing which of the four objects .of the conspiracy charged in Count One it found were proved beyond a reasonable doubt. Likewise, the jury made no specific findings regarding the number or marihuana plants which were involved in Counts Ten and Eleven.

The first reference to a § 3A1.4 enhancement of Graham’s Offense Level computation on the offenses for which he was convicted appears in his PSR without any discussion or justification for making the adjustment. The PSR recommended application of the § 3A1.4 enhancement to Count One and also recommended it be applied to Counts Nine, Ten and Eleven even though the offenses charged in Counts Nine, Ten and Eleven are not mentioned in 18 U.S.C. § 2332b(g)(5)(B). The government’s sentencing memorandum filed four days before the date sentence was imposed does not contain any reference to the PSR recommendation of the § 3A1.4 enhancement other than to state:

Based on his independent investigation and application of the Sentencing Guideline to the totality of facts in this case, the Probation Officer recommended a sentence of 55 years imprisonment for Mr. Graham. The United States agrees with this recommendation as one necessary to fully meet the policies underlying federal sentencing.

See Government’s Sentencing Memorandum, Docket Entry 236, at p. 10.

Earlier, Graham filed several objections to the PSR’s application of the § 3A1.4 enhancement. Graham’s objection relating to the application of U.S.S.G. § 3A1.4 and the PSR’s response are found in the PSR as follows:

Mr. Graham objects to the application of the adjustment for Terrorism. Pursuant to U.S.S.G. § 3A1.4(a) and (b). He argues the Terrorism application is not valid, as he has not been convicted of any crimes set forth in 18 U.S.C. § 2332b(g). Mr. Graham concedes he had private conversations in which he spoke harshly about the government and, at times, vented in a private conversation to a friend. During these conversations, he was exercising his right to hold unpopular believes and harsh views about the federal government. Mr. Graham maintains these private conversations with friends were protected speech, pursuant to the First Amendment of the U.S. Constitution.

Mr. Graham also argues he never acted out violently damaged government property, or attempted to damage government property.

Response

The presentence investigator believes this victim related adjustment has been correctly applied. Mr. Graham, Bradford Metcalf, and Ken Carter conspired to commit offenses against the United States as discussed in Count One of the Superseding Indictment and the Offense Conduct section of this report. Mr. Graham’s jury found him guilty of this *528 offense. Some of those offenses are listed in 18 U.S.C. § 2332b(g).

(JA at 1455)

Graham’s response must be compared to the PSR’s finding under the heading Victim Impact which stated:

There are no specific victims who have suffered the consequences of Mr. Graham’s actions, Mr. Graham and co-defendant were not able to follow through with their plans to disrupt government functions, destroy communications and public highways, and threaten to and/or assault federal officers and employees.

(JA at 1436)

The district court at sentencing did not particularize the facts supporting a finding that the elements of 18 U.S.C. § 2332b(g)(5)(A) were present, stating only

His crime was calculated to influence and retaliate against the United States government.

(JA at 1405)

The district court’s justification for finding the elements of 18 U.S.C. § 2332b(g)(5)(A) were present generally followed the reasoning of the majority opinion with considerably less sophistication. The district court imposed a sentence of 660 months of which 360 months were for the convictions under Count One, Nine, Ten, and Eleven. The details of the sentence, including guideline scoring with and without the § 3A1.4 enhancement are set forth in Appendix A. As noted in Appendix A, the district court exceeded the 60 month statutory maximum under § 371 because the statutory máximums for the convictions on Counts Ten and Eleven were 480 months. Achieving a 360 month sentence for Counts One, Ten, and Eleven in the fashion of the district court is questionable in all events.

3. Metcalf

Metcalf went to trial separately representing himself. He was convicted in all of the counts of the superceding indictment in which he was charged. As in Graham’s case, the PSR recommended the § 3A1.4 enhancement. Metcalf received an aggregate sentence of 480 months, of which 120 months was consecutive because of his conviction on Count 12, carrying a firearm, a semi-automatic assault weapon, during and in relation to a crime of violence, in violation of 18 U.S.C. § 924 (c)(1). Metcalf, again representing himself, appealed his conviction. Metcalfs conviction was affirmed in an unpublished opinion, United States v. Metcalf, No. 99-1667, 2000 WL 924171 (6th Cir. June 28, 2000). There is no mention in this decision of the § 3A1.4 enhancement; apparently Metcalf did not claim error because of application of the enhancement.

4. Overall

Application of the § 3A1.4 enhancement is not supportable on the record of Graham’s case. There is no justification for its application to Graham for any of the offenses of which he was convicted, particularly in light of the district court’s treatment of Carter who was described in the indictment as commanding officer and leader in the formation of the North American Militia. Surely, whatever consideration Carter was entitled to for pleading guilty and fully cooperating, if his offenses involved or were intended to promote a federal crime of terrorism as the Offense Level 38, Criminal History VI in the Guideline Range Determined by the Court stated in his Judgment In A Civil Case, approving a plea agreement which limited his sentence to 60 months was a recognition of the fact that the district court did not believe that Carter committed a “Federal crime of terrorism.” The government *529 also did not consider Carter a terrorist as evidenced by his plea agreement.

Likewise, the government did not view Graham as committing a “Federal crime of terrorism” until it received the PSR, which does not support the enhancement other than simply applying it. Lastly, the district court findings at Graham’s sentencing did not justify application of § 3A1.4. Simply put, applying the § 3A1.4 enhancement did a gross wrong to Graham.

III. Analysis

A. The Legislative History

1.

The legislative history of 18 U.S.C. § 2232b(g)(5) and the Antiterrrorism and Effective Death Penalty Act of 1996, (AEDPA), Pub.L. 104-132, 110 Stat. 1214, which under Section 730, directed the Sentencing Commission to promulgate § 3A1.4, and can be traced at http://thom-as.loc.gov, supports my view that the § 3A1.4 enhancement is offense specific and can only be applied if there is a conviction of one of the offenses enumerated in 18 U.S.C. § 2232b(g)(5)(A). This history shows a particular concern by the Congress that the “Federal crime of terrorism” enhancement is to be applied only in a narrow set of circumstances. This history must be viewed particularly in light of the fact that, until recently, 2 there was no federal law that makes a domestic act of terrorism as such a crime.

As will be explained below, the two statutes from which § 3A1.4 and the term “Federal crime of terrorism” are derived are the Violent Crime Control and Law Enforcement Act of 1994 (Violent Crime Control Act), Pub.L. 103-322, Title XII, § 120004 and Sections 703 and 730 of the AEDPA. Prior to 1994, indeed as early as 1991, Congress was working on amending the Omnibus Crime Control and Safe Streets Act of 1968 to, among other things, provide increased penalties for terrorist crimes. On March 12, 1991, the Senate introduced S. 635, entitled the Comprehensive Violent Crime Control Act of 1991. Under Title VII, Terrorism, Subtitle D-Terrorism Offenses and Sanction, Section 738 contained directions to the Sentencing Commission, as follows:

The United' States Sentencing Commission is directed to amend its sentencing guidelines to provide an increase of not less than three levels in the base offense level for any felony, whether committed within or outside of the United States, that involves or is intended to promote international terrorism, unless such involvement or intent is itself an element or the crime.

See S. 738, 102d Cong. § 738 (1991). The House Bill, H.R. 1400, contained a similar provision.

2.

No further action was taken by Congress until Congress began consideration of the Violent Crime Control Act of 1994, *530 which originated in H.R. 103-3355, introduced October 26, 1993. When the Senate considered H.R. 103-3355 for passage, it amended the bill to incorporate language from the S. 1607, the counter-part to 3355. Senate Bill 1607 contained the language that became § 120004, which reads:

SEC. 120004. SENTENCING GUIDELINES INCREASE FOR TERRORIST CRIMES.

The United States Sentencing Commission is directed to amend its sentencing guidelines to provide an appropriate enhancement for any felony, whether committed within or outside the United States, that involves or is intended to promote international terrorism, unless such involvement or intent is itself an element of the crime. .

Prior to the enactment of § 120004, the Sentencing Guidelines contained a provision under U.S.S.G. § 5K2.15, relating to terrorism, which read:

§ 5K2.15. Terrorism (Policy Statement)

If the defendant committed the offense in furtherance of a terroristic action, the court may increase the sentence above the authorized guideline range.

Terrorism and terroristic action were not defined.

The Sentencing Commission said in the commentary to Amendment 292, Appendix C, which promulgated § 5K2.15:

292. Chapter Five, Part K, Subpart 2, is amended by inserting an additional policy statement as § 5K2.15 (Terrorism (Policy Statement)).

The purpose of this amendment is to add a specific policy statement concerning consideration of an upward departure when the offense is committed for a terroristic purpose. This amendment does not make a substantive change. Such conduct is currently included in the broader policy statement at § 5K2.9 (Criminal Purpose) and other policy statements. See United States v. Kikumura, 706 F.Supp. 331 (D.N.J.1989). 3 The effective date of this amendment is November 1,1989.

However, the Sentencing Commission was directed by § 120004 to provide a new terrorism enhancement, which it did by promulgating § 3A1.4. In the commentary to Amendment 526, Appendix C, which promulgated § 3A1.4, the Sentencing Commission stated:

*531 Section 120004 of the Violent Crime Control and Law Enforcement Act of 1994 directs the commission to provide an appropriate enhancement for any felony that involves or is intended to promote international terrorism. The amendment addresses this directive by adding a Chapter Three enhancement at § 3A1.4 (International Terrorism) in place of the upward departure provision at § 5K2.15 (Terrorism). The effective date of this amendment is November 1, 1995.

The Sentencing Commission was not enthusiastic about the Congressional mandate. In its Analysis Of The Violent Crime Control And Law Enforcement Act of 1994 (H.R. 3355, As Passed By The Senate November 19, 1993 And By The House April 26, 1994), Part II, June 8, 1994, p. 13, the Sentencing Commission said the following about Section 120004:

As a general principle, the Commission has opted for a more flexible guideline departure, rather than a fixed guideline enhancement where a sentencing factor is atypical or when it may arise during the course of a wide range of offenses of varying seriousness or in many forms. In such situations it may be difficult to arrive at a fixed formula in calibrating the seriousness of the fact with that of the underlying offense, although the factor nevertheless may be an important sentencing consideration for the court. The Sentencing Commission solicited

comment on the Congressional mandate, as follows:

24. Issue for Comment: Section 120004 of the Violent Crime Control and Law Enforcement Act of 1994 directs the Commission to provide an appropriate enhancement for any felony that involves or is intended to promote international terrorism (unless such involvement or intent is itself an element of the crime). Considering the existing policy statement in § 5K2.15 recommending an upward departure in such cases, the Commission invites comment on whether, and if so how, the guidelines should be amended to address this directive appropriately. For example, should the Commission add an adjustment to Chapter Three that would apply to all Chapter Two offenses and that would prescribe a specific increase in offense level if the offense involved or was intended to promote terrorism? If so, what level of enhancement would be appropriate? Or, should the Commission amend § 4B1.1 (Career Offender) to enhance the sentences of such defendants under this section as if they were career offenders?

60 Fed.Reg. 2441 (Jan. 9,1996).

The Chair of the Subcommittee on Sentencing Guidelines of the Attorney General’s Advisory Committee of United States Attorneys and the Deputy Assistant Attorney General of the Criminal Division of the Department of Justice responded to the Sentencing Commission’s request:

The Crime Act also requires the Commission to amend the guidelines to provide “an appropriate enhancement” for any felony that involves or is intended to promote international terrorism, unless this factor is an element of the crime. 120004 of the Crime Act. Amendment 24, however, refers to the existence of a current policy statement recommending upward departure in such cases, § 5K2.15. The amendment also inquires whether the guidelines should be amended to address the directive and, if so, how.

Again, a policy statement recommending departure does not meet the statutory directive to the Commission “to amend its sentencing guidelines to provide an appropriate enhancement....” *532 Congress was presumably aware of the current policy statement, yet it mandated an amendment. Congress has thus required a guideline enhancement that specifies the consequences for any felony that involves or is intended to promote international terrorism in order to combat this serious threat to public safety-

In sum, we urge the Commission to follow closely directives enacted by Congress relating to sentencing.

United States Sentencing Commission, Public Comment 1995 Amendment Cycle, March 1995, Statement of Jay P. McClo-sky, United States Attorney District of Maine, Chairman, Subcommittee on Sentencing Guidelines Attorney General’s Advisory Committee of United States Attorneys and Robert S. Litt, Deputy Assistant Attorney General, Criminal Division, March 14, 1995 at p. 19-20 (emphasis in original).

Regardless, the Sentencing Commission promulgated § 3A1.4 to read:

§ 3A1.4. International Terrorism

(a) If the offense is a felony that involved, or was intended to promote, international terrorism, increase by 12 levels; but if the resulting offense level is less than level 32, increase to level 32.

(b) In each such case, the defendant’s criminal history category from

Chapter Four (Criminal History and Criminal Livelihood) shall be Category VI.

Commentary

Application Notes:

1. Subsection (a) increases the offense level if the offense involved, or was intended to promote, international terrorism. “International terrorism” is defined at 18 U.S.C. § 2331 . 4

3-

As to the origin of the term “Federal crime of terrorism” which is found in 18 U.S.C. § 2232b(g)(5) and located in 18 U.S.C. § 2232b, part of Chapter 113B, entitled Terrorism, of Title 18 of the Untied States Code, a section which criminalizes “Acts of terrorism transcending national boundaries,” one must look to the origins of the AEDPA. 18 U.S.C. § 2232b began life in H.R. 104-896, The Omnibus Coun-terterrorism Act of 1995 introduced in the House of Representatives on February 10, 1995, at the request of President Bill Clinton and in the Senate at the same time, as Senate Bill 104-390. This Omnibus Coun-terterrorism Act evolved into what eventually became the AEDPA. Section 101 of H R. 104-896 included an amendment to Chapter 113B of Title 18, United States Code in the form of Sec. 2332b making acts of terrorism which transcend national *533 boundaries a crime. Section 101 contains generally the same language of 18 U.S.C. § 2332b, but did not provide a definition of an act of terrorism. A revised version of H.B. 896 was introduced in the House of Representatives on May 25, 1995 as H.R. 1710. What is now 18 U.S.C. § 2232b was set forth in Sec. 104 of H.R. 104-1710. Again, no definition of terrorism was included. Section 206 of H.R. 1710 did, however, contain a direction to the Sentencing Commission to amend the guidelines so that the adjustment relating to international terrorism under § 3A1.4 also applied to domestic terrorism. Section 315 of H.R. 1710 amended the definition of terrorism in 18 U.S.C. § 2331 , the definitional section of Chapter 113B to read:

(1) the term “terrorism” means the use of force or violence in violation of the criminal laws of the United States or of any State, or that would be in violation of the criminal laws of the United States or of any State if committed within the jurisdiction of the United States or that State that appears to be intended to achieve political or social ends by—

(A) intimidating or coercing a segment of the population;

(B) influencing or coercing a government official or officials; or

(C)affecting the conduct of a government through assassination or kidnapping;

H.R. 1710 was reported out by the House Judiciary Committee on December 5, 1995 in an amended form in H.R. 104-383. Section 104 was not changed in the amended bill and again did not contain a definition of terrorism. Section 206 was also included in the amended bill without change. Section 315, however, contained a new definition of terrorism. It incorporated as the definition Section 212(a)(3)(B)(ii) of the Immigration and Naturalization Act, 8 U.S.C. § 1182 . 5

The House Report in commenting on the definitional change stated:

Title III also establishes a new definition of terrorism that will apply to international and domestic terrorist offenses

It simply categorizes certain existing federal crimes as “terrorist” if motivated to affect the conduct of government or social policy.

H. Rep. No. 104t-383 at p. 53 (1995).

The House Report stated as to Section 206:

This section gives the U.S. Sentencing Commission amendment authority to ex *534 pand the scope of its Chapter 3 enhancement for “international terrorism offenses” under the U.S. Sentencing Guidelines to include all terrorism offenses. In amendments to the Sentencing Guidelines that became effective November 1, 1996 a new provision that substantially increases jail time for offenses committed in connection with a crime of international terrorism. This section of the bill will make that new provision applicable to all terrorist offenses whether international or domestic, without having to wait until November 1996 for the change to become law.

Id. at 109 .

In explaining the new definition of terrorism in Section 315, the House Report stated:

This section provides a statutory definition of “terrorism”, and does so without federalizing any state crimes, and expanding the reach of the federal police power. It does not make any crime “terrorist” over which the federal government does not possess jurisdiction.

First, this definition acts as a significant limitation on the government to prosecute individuals who might violate section 104 of this bill, when enacted. To prosecute someone under that section, the Attorney General would first have to certify that the crime was one of terrorism, as defined under this section.

Secondly, the definition of terrorism is also important in the sentencing phase of a prosecution of federal law. The U.S. Sentencing Guidelines, in calculating the appropriate sentence to be imposed upon a convicted criminal therefore, authorizes the sentencing judge to consider the nature of the offense, and the motivation of the crime.

So, in order to keep a sentencing judge from assigning a terrorist label to crimes that are truly not terrorist, and to adequately punish the terrorist for his offense, it is appropriate to define the term.

Id. at 114 .

Chairman Henry Hyde of the House Judiciary Committee, in introducing a revised bill, H.R. 2706, the same day as the House Report was filed, further revising the bill set forth in the House Report, said:

... today lam... introducing a revised terrorism bill

The new bill does the following

Deletes the overly broad definition of terrorism.

Cong. Rec. December 5, 1995, H 13976. H.R. 2706 included the following:

— Section 104 defining a “Federal crime of terrorism” as now set forth in 18 U.S.C. § 2332b(g)(5)

— Section 206 continued the direction to the Sentencing Commission as set forth in Section 730 of the AED-PA

— Section 315 was deleted

The final form of what was enacted into law as the AEDPA is in Senate Bill 735 which was amended in the House of Representatives as S. 735 Effective Death Penalty and Public Safety Act of 1996 (Engrossed House Amendment). The Conference Report on S. 735, 142 Cong. Rec. H. 3305-01, stated as to Section 730, Directions to Sentencing Commission:

Section 730-Senate recedes to House amendment sections 206 and 207. This section gives the U.S. Sentencing Commission amendment authority to expand the scope of its Chapter 3 enhancement for “international terrorism offenses” under the U.S. Sentencing Guidelines, to apply only to federal crimes of terrorism *535 as defined in section 2332b(g). In amendments to the Sentencing Guidelines that became effective November 1, 1996, a new provision that substantially increases jail time for offenses committed in connection with a crime of international terrorism. This section of the bill mil make that new provision applicable only to those specifically listed federal crimes of terrorism, upon conviction of those crimes with the necessary motivational element to be established at the sentencing phase of the prosecution, without having to wait until November 1996 for the change to become law.

(Emphasis added).

Section 730 reads:

The United States Sentencing Commission shall forthwith, in accordance with the procedures set forth in section 21(a) of the Sentencing Act of 1987, as though the authority under that section had not expired, amend the sentencing guidelines so that the chapter 3 adjustment relating to international terrorism only applies to Federal crimes of terrorism, as defined in section 2332b(g) of title 18, United States Code.

(Emphasis added).

As such, the Sentencing Commission promulgated Amendment 539, Appendix C, which amended § 3A1.4. The commentary states:

This amendment implements section 730 of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, 110 Stat. 1303. That section requires the Commission to amend the sentencing guidelines so that the adjustment in § 3A1.4 (relating to international terrorism) applies more broadly to a “Federal crime of terrorism,” as defined in 18 U.S.C. § 2332b(g), and provides that the Commission shall have the authority to promulgate this amendment as an emergency amendment under procedures set forth in section 21(a) of the Sentencing Act of 1987. The effective date of this amendment is November 1, 1996.

The Sentencing Commission did not explain the distinction, if any, between “a felony involved” and a felony that “was intended to promote” “a Federal crime of terrorism.” If there is a distinction, there is nothing in the legislative history, outlined above, which suggests that Congress intended a distinction.

Amendment 539 was an emergency amendment. It was re-promulgated without change in Amendment 565, Appendix C, effective November 1,1997.

Section 3A1.4, entitled Terrorism, now reads in pertinent part:

(a) If the offense is a felony that involved, or was intended to promote, a federal crime of terrorism, increase by 12 levels; but if the resulting offense level is less than level 32, increase to level 32.

(b) In each such case, the defendant’s criminal history category from Chapter Four (Criminal History and Criminal Livelihood) shall be Category VI.

Commentary

Application Notes:

1. Subsection (a) increases the offense level if the offense level involved, or was intended to promote, a federal crime of terrorism. “Federal crime of terrorism” is defined at 18 U.S.C. § 2332b(g).

As noted in the majority opinion, 18 U.S.C. § 2332b(g) reads in part:

(5) the term “Federal crime of terrorism” means an offense that—

*536 (A) is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct; and

(B) is a violation of—

(i)section 32 (relating to destruction of aircraft or aircraft facilities), 37 (relating to violence at international airports), 81 (relating to arson within special maritime and territorial jurisdiction), 175 (relating to biological weapons), 351 (relating to congressional, cabinet, and Supreme Court assassination, kidnaping, and assault), 831 (relating to nuclear materials), 842(m) or (n) (relating to plastic explosives), 844(3) (relating to certain bombings), 844(f) or (i) (relating to arson and bombing of certain property), 930(c), 956 (relating to conspiracy to injury property of a foreign government), 1114 (relating to protection of officers and employees of the United States), 1116 (relating to murder or manslaughter of foreign officials, official guests, or internationally protected persons), 1203 (relating to injury to buildings or property within special maritime and territorial jurisdiction of the United States), 1366 (relating to destruction of an energy facility), 1751 (relating to Presidential and Presidential staff assassination, kidnaping, and assault), 1992, 2152 (relating to injury of fortifications, harbor defenses, or defensive sea areas), 2155 (relating to violence against maritime fixed platforms), 2332 (relating to certain homicides and other violence against United States nationals occurring outside of the United States), 2332a (relating to use of weapons of mass destruction), 2332b (relating to acts of terrorism transcending national boundaries), 2332c, 2339A (relating to providing material support to terrorists), 2339B (relating to providing material support to terrorist organizations), or 2340A (relating to torture);

(ii) section 236 (relating to sabotage of nuclear facilities or fuel) of the Atomic Energy Act of 1954 (42 U.S.C. 2284); or

(iii) section 46502 (relating to aircraft piracy) or section 60123(b) (relating to destruction of interstate gas or hazardous liquid pipeline facility) of title 49.

4.

This legislative history is best read in the context of the narrative description of what took place in the Congress between introduction of The Omnibus Counterter-rorism Act of 1995, H.B. 896 and S. 390, on February 5, 1995 and the enactment of the AEDPA which became law on April 24, 1996, as set forth in Volume LI (1995) and Volume LII (1996) of the Congressional Quarterly Almanac (Lawmakers Take Aim At Terrorism — 1995) (1995 CQ Almanac 6-18, 6-21) and (President Signs Anti Terrorism Bill — 1996 CQ Almanac 5-18 to 5-25). There was clearly a continuing concern in the House of Representatives over the definition of terrorism not so much as related to the direction to the Sentencing Commission, but for broader reasons-the impact the definition might have on other law enforcement efforts of the government with regard to terrorism and terrorist activity in the United States.

To approve of the action of the district court effectively labels Graham a terrorist and his activity as displayed in the record as terroristic activity, as was done by applying the § 3A1.4 enhancement, and is grossly contrary to the language of 18 U.S.C. § 2332b(g)(5) defining a “Federal crime of terrorism” as well as the Congressional intent to keep the definition narrow: “in order to keep a sentencing judge from assigning a terrorist label to crimes that are truly not terrorist, and to adequately punish the terrorist for his of *537 fense, it is appropriate to define the term.” H. Rep. No. 104-383 (1995), at p. 114

Simply put, the record of the Sentencing Commission’s actions in promulgating § 3A1.4 as a discrete guideline regarding terrorism and the legislative history of the statutes which mandated § 3A1.4 initially and as amended, leads to the conclusion that a conviction of one of the enumerated offenses listed in 18 U.S.C. § 2332b(g)(5) is an absolute condition precedent to the enhancement called for by § 3A1.4. Plainly, the legislative history of the statutes reflects a concern by Congress, much like the concern of the delegates to the Constitutional Convention of 1787 over the definition of “treason,” that “terrorism” being a phrase which carries far-reaching connotations that is not to be used indiscriminately and must be carefully defined. See Rumbold’s Dying Speech, 1685, and Jefferson’s Last Words on Democracy, 1826, William and Mary Quarterly, 3d Ser., IX (1952), 521-531.

5.

This history of the evolution from no guideline on a crime involving terrorism to the present language of § 3A1.4 clearly establishes that its application should be limited to a conviction of one of the enumerated offenses in 18 U.S.C. § 2332b(g)(5)(B), coupled with detailed findings of the presence of the criminal actions of the offender of the motivating elements described in 18 U.S.C. § 2332 b(g)(5)(A). This history makes clear the errors of PSR’s recommendation, the district court’s findings and the majority opinion’s approval of the enhancement called for by § 3K1.4 to the offenses for which Graham was convicted and particularly his conviction of the crime of conspiracy under 18 U.S.C. § 371 . The application of the enhancement to the marihuana involved crimes, found in Counts Nine, Ten, and Eleven, can only be described as gratuitous. It is also worth noting that almost without exception, the statutory penalties for the offenses listed under § 2332b(g)(5)(B) are twenty years to life.

Indeed, as seen above, when Congress directed the Sentencing Commission to amend § 3A1.4 to apply to a “Federal crimes of terrorism,” it did not state that the enhancement applies to offenses that “involved ” or “intended to promote,” rather the Sentencing Commission was directed to amend the guidelines so that the enhancement applies only to ‘Federal crimes of terrorism’ as defined in section 2382b(g). While prior directions to the Sentencing Commission used the language “involved” or “intended to promote” together with the term “international terrorism,” the directions given with the enactment of section 730 of the AEDPA did not contain such language. The directions rather were to apply the enhancement to “Federal crimes of terrorism” as defined under § 2332b. However, when the Sentencing Commission promulgated the new amendment in accordance with section 730, for reasons unknown, the language “involved” or “intended to promote” remained. Thus, the district court and majority’s reliance on the “intended to promote” language to effectively conclude that conspiracy under § 371 is a “Federal crime of terrorism” is problematic. As seen from the Conference Report on Senate Bill 735, Congress intended that the enhancement apply only those crimes set forth under § 2332b(g)(5)(B), which does not include § 371. Indeed, the plain language of Section 730 shows Congress intended that the sentencing enhancement under § 3A1.4 apply only to the “Federal crimes of terrorism” as defined under § 2332b(g)(5). To hold that a conviction under § 371 is also a “Federal crime of terrorism” as that term has been carefully defined, goes against Congressional intent.

*538 B. The Precedents

1.

Contrary to the majority opinion’s view there is case precedent in dealing with § 3A1.4. At least four court of appeals cases deal with the application of § 3A1.4. Two of the cases, United States v. Nichols, 169 F.3d 1255 (10th Cir.1999) and United States v. Fortier, 242 F.3d 1224 (10th Cir. 2001), involve colleagues of Timothy McVeigh in the bombing of the Murrah Federal Budding in Oklahoma City in 1995 and should be read as sui generis because of the enormity of his crime. McVeigh’s crime did lead, however to the enactment of the AEDPA. See 32 Compilation of Presidential Documents 717-721, April 21, 1996 (Remarks and Statement of President Bill Clinton on signing the act).

In United States v. Wells, 163 F.3d 889 (4th Cir.1998), the defendant was convicted of a variety of offenses including mail fraud, conspiracy to commit bank fraud, interference with the Internal Revenue Service and conspiracy to commit interstate transportation of stolen property.. In particular, the defendant, in resisting an IRS investigation, threatened IRS agents and created and sent to the agents a variety of bizarre documents captioned “Non-Statutory Abatement” and also documents that were labeled as comptroller warrants. Defendant was either a participant in or a member of a group known as the Free Men. At sentencing “based on defendant’s involvement with the terrorist activities of the Free Men,” 163 F.3d at 893-94 , the district court increased defendant’s offense conduct 15 levels. At the time of defendant’s crimes, § 3A1.4 applied only to international terrorism. As noted above, the 1996 amendment to the Sentencing Guidelines as mandated by Section 730 of the AEDPA, included domestic terrorism. While rejecting application of § 3A1.4 because it could not be given retroactive effect, the Court of Appeals for the Fourth Circuit approved the upward departure under 18 U.S.C. § 3553 (b) (sentencing court can deviate to take into account aggravating circumstances the guidelines did not adequately consider). In upholding a finding by the district court that the defendant involved himself in domestic terrorist activities, the Fourth Circuit rejected defendant’s argument that he did not commit any violent acts and hence could not be considered a terrorist. The Court of Appeals said:

However, there is ample evidence that shows that Wells’ plans and activities support the upward departure. First, he agreed to participate in the grand jury of “our one Supreme Court,” the “court” that the Freemen established to try officials. That court was also the forum of Wells’ “trial” of IRS agents Smith and Vernell. Second, Wells bought a Chevrolet Suburban that he brought to Montana. The plan, as articulated by Schweitzer to the seminar attendees, was to use the Suburbans to abduct government officials, who would later be hanged. He intended to “bring a lot more of 'em out here.” Third, Wells otherwise actively participated in the group, despite knowing its violent goals, and even helped the group prepare. Finally, he has not challenged the district court’s finding that the group engages in terrorist activities.

These facts counter balance Wells’ contention that he neither knew of the Freemen’s plans nor was involved in them. His use of the “court” for his own dispute with IRS officials, given the intention of the Freeman *900 to injury or kill government officials, can be considered a “terrorist” act. In addition, as the only supplier of the vehicles that were to be used in a violent plan about which everyone knew, it is unlikely that *539 Wells neither knew nor had reason to know of the Freemen’s activities. Since, as Wells points out, the Guidelines permit a defendant to be held responsible for the conduct of associates if that conduct was reasonably foreseeable, see U.S. Sentencing Guidelines Manual § 2B1.3(b), his participation in the planning of violence may properly give rise to liability. Hence, the district court did not abuse its discretion by departing from the guidelines.

163 F.3d at 899 .

United States v. Leahy, 169 F.3d 433 (7th Cir.1999), is even more instructive. In Leahy , the defendant pled guilty to possession of a deadly toxin for use as a weapon in violation of 18 U.S.C. § 175 (a). The toxin was highly lethal and defendant had threatened to use it. The district court, because no guideline had been promulgated by the Sentencing Commission for a violation of § 175(a), looked to an analogous guideline, which in its view was § 3A1.4. In so doing the district court rejected the government’s recommendation that it looked to § 2K2.1 which covers “unlawful receipt, possession, or transportation of firearm of ammunition.” This guideline calls for a sentencing range of 42 to 51 months. The district court departed 10 levels upward because in its view § 2K2.1 did not adequately capture the seriousness of defendant’s offense conduct. While it looked to § 3A1.4, the district court did not depart upward the 12 levels called for because it recognized defendant did not engage in “an actual act or attempted act of terrorism,” 169 F.3d at 438 (emphasis added). The Court of Appeals vacated the sentence finding that the district court erred in looking to § 3A1.4 to determine the proper extent of departure. The Court of Appeals said:

In order for the district court’s analogy to the Terrorism guideline to be appropriate, Leahy must have committed an offense “that involved, or was intended to promote, a federal crime of terrorism.” See U.S.S.G. § 3A1.4. The term “federal crime of terrorism” is defined as an offense that is “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct” and is a violation of, among other provisions, 18 U.S.C. § 175 (relating to biological weapons). See 28 U.S.C. § 2332b(g)(5). While Leahy did violate 18 U.S.C. § 175 (a), there is absolutely no evidence in the record that Leahy sought to influence or affect the conduct of the government. In fact, the district court itself readily concluded that Leahy did not engage or attempt to engage in any act of terrorism, the court elects to depart upward only ten levels ... [and][f]or the same reason, the Court does not increase the Criminal History Computation. Thus, we must conclude here, as we did in [United States v.] Horton [ 98 F.3d 313 (7th Cir.1996)], that the district court, in selecting U.S.S.G. § 3A1.4, chose an inappropriate analogy for determining the extent of the upward departure in this case.

169 F.3d at 446. The Court of Appeals concluded by stating:

Because there was no evidence showing that Leahy engaged in an actual act or attempted act of terrorism, we conclude that the district court, in selecting U.S.S.G. § 3A1.4, chose an inappropriate analogy for determining the extent of the upward departure in this case.

169 F.3d at 447 (emphasis added).

Two additional cases also call for comment. First, United States v. Hicks, 997 F.2d 594 (9th Cir.1993), involved an upward departure to 10 years under § 5K2.15 in the sentencing of an offender who was responsible for launching mortar *540 attacks and placing car bombs designed to damage government buildings in an effort to disrupt the functions of the Internal Revenue Service. The Court of Appeals vacated the sentence and remanded for resentencing because of the district court’s failure to explain the extent of the departure. The Court of Appeals noted:

The term “terrorism” does not seem to have a precise definition in the context of the Guidelines. The plain meaning of the term is “the systematic use of terror as a means of coercion.” Webster’s Third New International Dictionary 2361 (1986). The United States Code defines “terrorism” in context completely different than sentencing — that of State Department reporting requirements-as “premeditated, politically motivated violence perpetrated against noncombatant targets by substantial groups or clandestine agents.” 22 U.S.C. § 2656f(d)(2).

997 F.2d at 598 .

Second, in United States v. Barr, 963 F.2d 641 (3d Cir.1992), the Court of Appeals for the Third Circuit noted that “grounds for departure listed in § 5K2.1 through § 5K2.15 generally involved actual conduct or tangible consequences as justification for an upward departure.” 963 F.2d at 653-654 .

2.

The precedential history also supports my view that for the § 3K1 .4 enhancement to apply, there must be a conviction of one of the enumerated offenses in 18 U.S.C. § 2332b(g)(5)(B) and that there must be actual conduct or attempted conduct calculated to influence or affect the conduct of government by intimidation or coercion or to retaliate against government conduct.

3.

The circumstances of the application of § 3A1.4 to other sentences further supports my view that there was an aberrational application of the enhancement to Graham. Sentencing Commission statistical reports state its application six times in 1999 and 2000 exclusive of the application to Carter, Metcalf and Graham. See 1999 and 2000 Sourcebook of Federal Sentencing Statistics, Table 18. In five of the six cases in which it was applied, the offense of conviction was enumerated in 18 U.S.C. § 2332b(g)(5)(B). 6

C. The Standard of Proof

1.

The majority opinion’s position that the district court need only find the conduct which supports § 3A1.4 enhancement by a preponderance of the evidence is also wrong. The standard appears to find support in the Commentary to U.S.S.G. § 6A1.3, Resolution of Disputed Factors (Policy Statement) which states:

The Commission believes that use of a preponderance of the evidence standard is appropriate to meet due process requirements and policy concerns in resolving disputes regarding application of the guidelines to the facts of the case.

This statement should, however, be considered in conjunction with what the Sentencing Commission says in § 1B1.2, Application Note 4, discussed supra. When the district court increases a sentence by 250 months more than what the offense level and criminal history associated with the crime of conviction call for, the facts in support of the enhancement should surely be established beyond a reasonable doubt or at least by clear and convincing evi *541 dence. The Third Circuit in Kikumura, supra said that

a sentencing hearing that functions as “a tail which wags the dog of the substantive offense” [citations omitted] ... a court cannot reflexively apply the truncated procedures that are perfectly adequate for all of the more mundane, familiar sentencing determinations.”

918 F.2d at 1100-01.

United States v. Farese, 248 F.3d 1056 (11th Cir.2001), involved a prosecution for conspiracy to participate in the affairs of an enterprise through a pattern of racketeering in violation of 18 U.S.C. § 1962 . The Court of Appeals for the Eleventh Circuit required the district court to find beyond a reasonable doubt that defendants conspired to commit a particular object of the offense. In United States v. Ross, 131 F.3d 970 (11th Cir.1997), because the verdict did not establish which offense was the object of the charged conspiracy, the Court of Appeals held that the district court was required to make a determination as to which offense as if it was sitting as a trier of fact. Lastly, in United States v. Jordan, 256 F.3d 922 (9th Cir.2001), the Court of Appeals for the Ninth Circuit held that a sentencing enhancement which yielded prolonged imprisonment required proof by clear and convincing evidence.

The majority, however, rejects Kikumu-ra to the extent that it holds that a higher standard of proof is not required for sentencing factors that do not increase the maximum sentence faced by the defendant, finding that interpretation inconsistent with the Supreme Court holdings in McMillan v. Pennsylvania, 477 U.S. 79 , 106 S.Ct. 2411 , 91 L.Ed.2d 67 (1986) and Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000). Even if I agree with the majority’s interpretation, I still find error in application of the preponderance standard in applying § 3A1.4 to Graham because the statutory maximum for violating § 371 is five years. Applying the terrorism enhancement, Graham’s sentencing range was increased to 360 months to life. Because the majority finds that application of § 3A1.4 to Graham’s conviction under § 371 was proper because it pertained to a conspiracy that “involved” or “intended to promote” a “federal crime of terrorism,” and because application of § 3A.1.4 increased Graham’s sentencing range beyond the statutory maximum, I believe that even under the majority’s approach, a higher standard of proof is required.

2.

Here, even if I am wrong on my view that the § 3A1.4 enhancement does not apply, the sentence should be vacated and the case remanded resentencing for the reason that the district court failed to articulate the evidentiary standard on which the finding the § 3A1.4 enhancement applied and also failed to articulate the specific facts on which it found that the enhancement applied. On remand, the district court should at least be required to do is to make findings based on a detailed articulation of facts found beyond a reasonable doubt in justification of any enhancement. Indeed, the majority notes that because the jury returned a general verdict on the § 371 charge, there is no way of knowing of what substantive crimes the jury found Graham guilty of conspiring.

IV. Conclusion

My disagreement with the majority opinion’s approval of the district court’s enhancement of Graham’s sentence should not be considered in any way a denigration of Graham’s crimes or in any way an attempt to simply ameliorate the severity of his sentence of 660 months. Graham was *542 foolish in light of the trial record for rejecting the government’s willingness to limit his sentence to 60 months if he pleaded guilty. However, there is no suggestion on the record that on the day Graham changed his mind and opted for trial there was any reason for him to think that the government would go back to the grand jury and obtain a superceding indictment which included charges which had the potential of adding 25 years to whatever sentence he might receive if found guilty of the charges contained in the original indictment. There was certainly no reason for him to believe the district court would find that the § 3A1.4 enhancement was appropriate to his offenses of conviction.

What is significant in the majority’s approval of the § 3A1.4 enhancement to Graham’s offense level and criminal history is its condoning a definition of a “Federal crime of terrorism” broader than that contemplated by the Congress in its enactment of 18 U.S.C. § 2332b(g)(5). What the majority approves of is a breadth of discretion in the district court inappropriate to the dictates of 18 U.S.C. § 2332b(g)(5) and of § 3A1.4 based on con-clusionary findings of fact more likely than not. This simply allows for a soft definition of terrorism. As seen from the legislative history, “terrorism” involves discrete acts-as defined under § 2332b(g)(5).

Beyond the definition of a “Federal crime of terrorism” in 18 U.S.C. § 2332b(g)(5) and the other definition considered by the Congress including the definition in Section 212(a)(3)(B)(ii) of the Immigration and Naturalization Act, 8 U.S.C. § 1182 , there are at least two additional definitions found in federal law. 7 22 U.S.C. § 2656f, which is part of Chapter 38 of Title 22 of the United States Code governing the Department of State, defines “terrorism” as follows:

(2) the term “terrorism” means premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents; ...

The Federal Bureau of Investigation, which has as part of its responsibilities, the responsibility for crimes which involve terrorist activities, has a particular definition of terrorism. 28 C.F.R. 0.85(i). The definition reads:

Terrorism includes the unlawful use of force and violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives.

The FBI, through the Counterterrorism Threat Assessment and Warning Unit of its National Security Division issues annually a report of terrorism in the United States available at http://www.usdoj.gov. Review of the last four reports on Terrorism in the United States, dated 1996, 1997, 1998, and 1999, contains no reference to the group of which Graham was a part and only a brief reference to militia groups in general as terrorist organizations. Likewise, review of the several articles on terrorism in the FBI’s Law Enforcement Bulletin, a monthly publication, contains no articles on militia groups as terrorist organizations. This review of FBI published materials calls into question even more than the eleventh hour assertion by the government that the § 3A1.4 enhancement should apply in sentencing Graham and its willingness to agree with Carter to a 60 *543 month maximum sentence the credibility of the government’s position here.

Others have noted the difficulties associated with defining terrorism. See Philip B. Heymann, Terrorism and America: A Commonsense Strategy For A Democratic Society, 3-7 (paperback ed.2000) (discussing the global efforts to define terrorism); see also The Terrorism Research Center— Next Generation of Terrorism Analysis, at http://www.terrorism.com/terrorism/def.shtml (stating “Terrorism by nature is difficult to define” and “even the government cannot agree on one single definition” and listing several definitions of terrorism). 8

Perhaps a law review writer back in 1987 stated it best when in discussing the definition of terrorism observed: “Finding a suitable definition for terrorism ... is a quagmire.” Patrick L. Donnelly, Extraterritorial Jurisdiction Over Acts of Terrorism Committed Abroad: Omnibus Diplomatic Security And Antiterrorism Act of 1986, 72 Cornell L.Rev. 599, 607, n. 56 (1987). This observation hold true today.

We know there is no federal common law crime. United States v. Hudson and Goodwin, 11 U.S. (7 Cranch) 32 , 3 L.Ed. 259 (1812). Congress in its mandate to the Sentencing Commission in 1994 and again in 1996 came close to establishing punishment for a common law crime — terrorism. The motives for the action by the Congress are not disclosed in the legislative history of either the 1994 or 1996 acts. The Sentencing Commission promulgated § 3A1.4 initially to cover “international terrorism;” Congress added domestic terrorism with no elaboration. Moreover, there is nothing in either the statute or the guideline to prohibit a district court once it enhances the offense level to not less than 32 and the criminal history to VI (effectively a minimum sentence of 210 months from departing downward for any of the reasons allowed in Chapter IV of the guidelines.)

This dissent was substantially completed before the terrorist acts on the World Trade Center, the Pentagon, and in Pennsylvania on September 11, 2001. These horrific events, like the bombings of the U.S. Embassies in Tanzania and Kenya, and the U.S.S. Cole, involve weapons of mass-destruction as instruments of terrorism and are very far outside the conspiratorial conduct of Graham as reflected in the record of this case.

For all of the reasons stated above, I disagree with the majority opinion’s approval of the actions of the district court in increasing Graham’s sentence by over 250 months by application of the § 3A1.4 enhancement. This is why I dissent.

APPENDIX A

Count Statutory Maximum Guideline Score Exclusive Of Adjustment For Terrorism Guideline Sentence Guideline Score Including Adjustment For Terrorism Guideline Sentence Sentence

1-Conspiracy To Commit An Offense Against the United States 5 years OL 29 CH I 87-108 months 41 (29 +12) CH VI 360 months to life 60 months concurrent with 9, 10, 11

*544 9-Unlawful User of Marihuana In Possession Of Firearms 10 years OL 20 CHI 33 — 41 months 34 (20 + 14) CH VI 262-327 months 120 months concurrent with 1, 10, 11

10-Unlawful Attempt To Manufacture Marihuana 5^0 years (100 plants) OL 20 CHI 33-41 months 34(20 + 14) CH VI 262-327 months 360 months concurrent with 1, 9, 11

11-Conspiracy To Manufacture Marihuana 5-40 years (100 plants) OL 20 CHI 33-41 months 34 (20 + 14) CH VI 262-327 months 360 months concurrent with 1, 9, 10

13-Carrying A Semi-Automatic Weapon in Relationship To A Crime Of Violence 20 years consecutive Same Same Same Same 240 months consecutive

14-Carrying A Firearm in Relationship To A Drug Crime 5 years consecutive Same Same Same Same 60 months consecutive

. To the extent that this dissent refers to documents not contained in the Joint Appendix, such materials are found in the district court's record.

. Prompted by the events of September 11, 2001, Congress enacted the Uniting and Strengthening American by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001. The USA PATRIOT Act added to the criminal code two new federal crimes relating to terrorism. Under section 801, Chapter 97 of title 18, United States Code, was amended to include a crime for "Terrorist attacks and other acts of violence against mass transportation systems," prescribing a penalty of 20 years imprisonment, or life (if the offense was an "aggravated offense” as further defined). Section 803 contains a new crime for "Harboring or concealing terrorist,” prescribing a penalty of 10 years imprisonment. As further stated infra, this case was submitted on appeal prior to the events of September 11, 2001 and Graham's actions depict grossly less offensive, and qualitatively different, conduct than that displayed on September 11, 2001.

. United States v. Kikumura, 706 F.Supp. 331 (D.NJ.1989), decided February 10, 1989, involved the sentencing of a member of the Japanese Red Army who was captured with explosives. The district court found that Ki-kumura had meticulously planned, schemed and attempted to execute a terrorist mission in the United States. The guidelines scored Kikumura’s offense conduct at 18 and because he had no prior criminal history the guideline range for his offense of conviction was 27-33 months. The district court departed upward to 30 years. The district court explained:

In point of fact, the Guidelines do not consider terrorism or conduct remotely similar to that of Kikumura. Here, because Kiku-mura intended to cause death and horrible injury, a departure from the guidelines is warranted. Moreover, because the defendant’s bombs were intended to cause multiple deaths and injuries, as did the Naples bomb, greater departure is warranted. The dangerousness of the bombs, disruption of governmental function and extreme conduct are obvious.

706 F.Supp. at 340 . In 1990, subsequent to the adoption of § 5K2.15, the Court of Appeals for the Third Circuit vacated the sentence and remanded with instruction to the district court to more particularly describe the basis for the upward departure with regard to the factors it considered and directed that the facts to support the departure be established by clear and convincing evidence. United States v. Kikumura, 918 F.2d 1084 (3d Cir.1990).

. 18 U.S.C. § 2331 reads in part:

As used in this chapter—

(1) the term "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

(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;

. This section reads:

As used in this chapter, the term "terrorist activity” means any activity which is unlawful under the laws of the place where it is committed (or which, if committed in the United States, would be unlawful under the laws of the United States or any State) and which involves any of the following:

(I) The highjacking or sabotage of any conveyance (including an aircraft, vessel, or vehicle).

(II) The seizing or detaining, and threatening to kill, injure, or continue to detain, another individual in order to compel a third person (including a governmental organization) to do or abstain from doing any act as an explicit or implicit condition for the release of the individual seized or detained.

(III) A violent attack upon an internationally protected person (as defined in section 1116(b)(4) of Title 18) or upon the liberty of such a person.

(IV) An assassination.

(V) the use of any—

(a) biological agent, chemical agent, or nuclear weapon or device, or

(b) explosive or firearm (other than for mere personal monetary gain), with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property.

(VI) A threat, attempt, or conspiracy to do any Of the foregoing.

. This information comes from the files of the United States Sentencing Commission.

. Section 802 of USA PATRIOT Act of 2001 added a new definition of "domestic terrorism” under 18 U.S.C. § 2331 . Section 411 amended 8 U.S.C. § 1182 (a)(3) of the Immigration and Nationality Act to include other definitions relating to terrorism, including a definition of "engage in terrorist activity” and "terrorist organization.”

. Indeed, in the wake of a heightened awareness of terrorism following September 11, 2001 there has been commentary on the difficulty in defining the term "terrorism.” See Michael Kinsely, Defining Terrorism, The Washington Post (Oct. 5, 2001), at A37 and Oliver Libaw, How Do You Define Terrorism? ABCNEWS.com (Oct. 16, 2001).