Petition for Writ of Certiorari — Sohiel Omar Kabir, Petitioner v. United States

Supreme Court briefJan 13, 2023

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No. __________

In the

Supreme Court of the United States

SOHIEL KABIR, Petitioner

UNITED STATES OF AMERICA, Respondent

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

Appendix to Petition for a Writ of Certiorari

CUAUHTEMOC ORTEGA

Federal Public Defender

MARGARET A. FARRAND*

Deputy Federal Public Defender

321 East 2nd Street

Los Angeles, California 90012-4202

Telephone: (213) 894-2854

Facsimile: (213) 894-1221

Attorneys for Petitioner

*Counsel of Record

APPENDIX INDEX

Page No(s).

Opinion, United States v. Kabir, 51 F.4th 820 (9th Cir. Oct. 24, 2022) ........ 1a

Transcript of Sentencing Hearing, United States v. Kabir, Case No. 12-cr00092-VAP-1 (C.D. Cal., June 7, 2021) .......................................................... 11a

United States v. Kabir, 51 F.4th 820 (2022)

2022 Daily Journal D.A.R. 11,030

51 F.4th 820

United States Court of Appeals, Ninth Circuit.

UNITED STATES of America, Plaintiff-Appellee,

Sohiel Omar KABIR, Defendant-Appellant.

Procedural Posture(s): Appellate Review; Sentencing or

Penalty Phase Motion or Objection.

West Headnotes (10)

[1]

No. 21-50141

Argued and Submitted September

2, 2022 Pasadena, California

FILED OCTOBER 24, 2022

Synopsis

Background: After defendant was convicted of conspiracy

to provide material support to foreign terrorist organization,

conspiracy to receive military-type training from foreign

terrorist organization, and conspiracy to kill federal officers,

the United States District Court for the Central District of

California, Virginia A. Phillips, J., 2015 WL 631951, denied

defendant's motion for acquittal or new trial, and he appealed.

The Court of Appeals, 828 Fed.Appx. 396, affirmed in part,

reversed in part, and remanded. On remand, the District

Court, Phillips, J., resentenced defendant, and he appealed.

[2]

[3]

Sentencing

Sentencing and Punishment

leaders, managerial role

Organizers,

Sentencing and Punishment

leaders, managerial role

Organizers,

Control, for purposes of two-level “organizer”

or “leader” Sentencing Guidelines enhancement,

requires more than mere facilitation, and

even finding that defendant played central

role in offense is insufficient; however,

defendant need only have some control

over his subordinate's actions, which includes

organizational responsibility. U.S.S.G. §

3B1.1(c).

[2] district court adequately considered defendant's arguments

before declining to exercise its discretion not to apply

terrorism enhancement;

Affirmed.

Criminal Law

To qualify as organizer or leader, for purposes

of sentencing guidelines offense level increase,

defendant must have exercised control over

others. U.S.S.G. § 3B1.1(c).

[1] district court did not abuse its discretion in concluding that

defendant was organizer;

[4] district court did not commit plain error as result of

its purported failure to adequately consider difference in

circumstances between defendant's original sentencing and

resentencing.

Application of guidelines

Court of Appeals reviews district court's factual

findings for clear error, and its application of

Sentencing Guidelines to those facts for abuse of

discretion.

Holdings: The Court of Appeals, Smith, Circuit Judge, held

that:

[3] any error on district court's part in finding that defendant

had not expressed remorse did not rise to level of plain error;

and

Criminal Law

[4]

Sentencing and Punishment

leaders, managerial role

Organizers,

District court did not abuse its discretion

in concluding that defendant convicted of

conspiracy to provide material support to

foreign terrorist organization and conspiracy

to kill federal officers was organizer, thus

warranting two-level sentencing enhancement,

despite defendant's contention that he did

nothing more than suggest what his coconspirators do; defendant recruited his co-

App. 1a 1

United States v. Kabir, 51 F.4th 820 (2022)

2022 Daily Journal D.A.R. 11,030

sentence, then heard policy arguments for

and against applying terrorism enhancement,

interjecting at times to ask questions or comment

on strength of defendant's arguments, and

imposed below-Guidelines sentence. U.S.S.G. §

3A1.4.

conspirators and instructed them to “train and

prepare for jihad,” and to “come on down” to

Afghanistan, co-conspirators proceeded to train

with assault rifles on firing ranges, practice

their skills with paintball activities, and obtain

passports to travel to Afghanistan, and defendant

arranged for co-conspirators to join Taliban or alQaida in Afghanistan. U.S.S.G. § 3B1.1(c).

[8]

[5]

Criminal Law

General

Sentencing and Punishment

Operation

and effect of guidelines in general

District court may vary from Sentencing

Guidelines if it disagrees with them on policy

grounds and Sentencing Commission fails to

exercise its characteristic institutional role in

their development, but there is no obligation

for district court to do so; all that is required

of district court faced with policy arguments

is indication that it understood its authority to

vary from Guidelines on these grounds before

deciding not to do so.

[7]

[9]

Terrorism

Sentencing and Punishment

Sufficiency

District court adequately considered defendant's

arguments before declining to exercise its

discretion not to apply terrorism enhancement

in sentencing him for conspiracy to provide

material support to foreign terrorist organization

and conspiracy to kill federal officers, even

though it did not address specific arguments

he made; district court recognized its discretion

to vary based on policy disagreement,

expressly disagreed with defendant's arguments

that terrorism enhancement effectively created

“separate offense” or “mandatory minimum”

Criminal Law

Sentencing and Punishment

To establish plain error at sentencing, defendant

must demonstrate reasonable probability that he

would have received different sentence if district

court had not erred.

[10]

Sentencing and Punishment

Any error on district court's part at sentencing in

finding that defendant convicted of conspiracy

to provide material support to foreign terrorist

organization and conspiracy to kill federal

officers had not expressed remorse did not rise

to level of plain error; although defendant did

express “regret” and “sorrow” for consequences

of his actions on his family and apologized “to

everybody involved directly and indirectly” in

his crimes, he “blam[ed] his drug use, his bad

friends, his bad choices, [and feeling that] he's

misunderstood” for his actions, and there was no

indication that district court's sentencing calculus

would have meaningfully changed if it had not

stated that defendant did not express remorse.

Necessity of Objections in

“Plain error” is (1) error, (2) that is plain, and

(3) that affects substantial rights, and if these

three conditions are met, Court of Appeals may

then exercise its discretion to grant relief if

(4) error seriously affects fairness, integrity, or

public reputation of judicial proceedings.

[6]

Criminal Law

Sentencing and Punishment

District court did not commit plain error in

resentencing defendant for conspiracy to provide

material support to foreign terrorist organization

and conspiracy to kill federal officers as result

of its purported failure to adequately consider

difference in circumstances between defendant's

original sentencing and resentencing; district

court incorporated statements made and first

sentencing as to nature and circumstances of

offense, discussed defendant's completion of

educational programs in prison, his future goals,

his purported efforts to be kind to other

prisoners, and government's allegations that he

was still involved in extremist activities while

App. 2a 2

United States v. Kabir, 51 F.4th 820 (2022)

2022 Daily Journal D.A.R. 11,030

incarcerated, and engaged substantively with

defendant's claims of rehabilitation and found

them lacking in persuasive force. 18 U.S.C.A. §

3553(a).

*822 Appeal from the United States District Court for the

Central District of California, Virginia A. Phillips, Chief

District Judge, Presiding, D.C. Nos. 5:12-cr-00092-VAP-1,

5:12-cr-00092-VAP

Attorneys and Law Firms

Margaret A. Farrand (argued), Assistant Federal Public

Defender; Gia Kim, Deputy Federal Public Defender;

Cuauhtemoc Ortega, Federal Public Defender; Federal Public

Defender's Office, Los Angeles, California; for DefendantAppellant.

Reema M. El-Amamy (argued), Assistant United States

Attorney, Terrorism and Export Crimes Section; Bram M.

Alden, Chief of Criminal Appeals Section and Assistant

United States Attorney; Tracy L. Wilkinson, United States

Attorney; United States Attorney's Office, Los Angeles,

California; for Plaintiff-Appellee.

BEFORE: MILAN D. SMITH, JR. and RYAN D. NELSON,

CIRCUIT JUDGES, and GERSHWIN A. DRAIN, *

DISTRICT JUDGE.

OPINION

M. SMITH, Circuit Judge:

Defendant Sohiel Omar Kabir was convicted on terrorismrelated charges for his central role in a conspiracy to

travel to Afghanistan and engage in armed conflict against

American soldiers. He was originally *823 sentenced to

300 months in prison, but had to be resentenced after

we reversed two of his convictions. The district court

resentenced him, again imposing a 300-month sentence.

Kabir challenges this resentencing. He first contends that

the district court erred in applying an enhancement to

his sentence after finding that he was an “organizer” or

“leader” of the criminal conspiracy pursuant to the United

States Sentencing Guidelines, U.S. Sent'g Guidelines Manual

(U.S. Sent'g Comm'n 2004) (Guidelines, or USSG). Kabir

also argues that the district court's decision to impose an

additional terrorism enhancement under the Guidelines was

inadequately justified, and that the district court committed

other procedural errors in weighing the statutory sentencing

factors. We have jurisdiction pursuant to 18 U.S.C. § 3742(a),

and we affirm.

LEGAL BACKGROUND

When sentencing a criminal defendant, a district court must

consider a number of statutory factors set forth in 18 U.S.C

§ 3553(a), including the Guidelines. See 18 U.S.C § 3553(a)

(4); United States v. Booker, 543 U.S. 220, 259-60, 125

S.Ct. 738, 160 L.Ed.2d 621 (2005). The Guidelines provide a

framework for sentencing decisions “based on the seriousness

of a defendant's offense and his criminal history.” Hughes v.

United States, ––– U.S. ––––, 138 S. Ct. 1765, 1772, 201

L.Ed.2d 72 (2018); see generally USSG § 1B1.1 (explaining

how terms of imprisonment and other criminal punishments

are determined under the Guidelines). “[T]he Guidelines are

advisory only. But a district court still must consult those

Guidelines and take them into account when sentencing.”

Hughes, 138 S. Ct. at 1765 (cleaned up).

The Guidelines require the district court to calculate (1) a

numerical “offense level” for the defendant that is higher

or lower based on various aggravating or mitigating aspects

of the crime the defendant has committed; and (2) a

“criminal history category,” which is usually based primarily

on the nature and number of the defendant's past criminal

convictions. A higher offense level or a higher criminal

history category translates into a more severe recommended

sentence. See USSG ch. 5, pt. A (sentencing table).

The parties dispute the proper application of two Guidelines

provisions to the facts of this case. First, USSG § 3B1.1(c)

provides that a defendant's offense level will be adjusted two

levels upward if he “was an organizer, leader, manager, or

supervisor” in a non-extensive criminal activity involving

fewer than five participants. Compare USSG § 3B1.1(a)(b) (providing greater increases for criminal activities

involving “five or more participants” or that were “otherwise

extensive”). Second, USSG § 3A1.4—which the parties refer

to as a “terrorism enhancement”—provides for an upward

adjustment of twelve levels if the offense committed was “a

felony that involved, or was intended to promote, a federal

crime of terrorism.” If the defendant has committed such an

offense, this same Guidelines provision automatically places

him in criminal history category VI, which is the highest

App. 3a 3

United States v. Kabir, 51 F.4th 820 (2022)

2022 Daily Journal D.A.R. 11,030

criminal history category that the Guidelines allow. USSG §

3A1.4(b).

FACTUAL BACKGROUND

Defendant is a naturalized U.S. citizen who was born in

Kabul, Afghanistan. He served in the U.S. Air Force between

2000 and 2001. The government claims that from August

2010 through November 2012, Kabir and three others—

Ralph Kenneth DeLeon, Miguel Alejandro Vidriales Santana,

and Arifeen David Gojali “conspired to provide material

support and resources ... to terrorists, including members

*824 of the Taliban and Al-Qa'ida, in order to engage

in violent jihad against, and to kill, American soldiers and

personnel in Afghanistan and elsewhere.” Specifically, Kabir

is alleged to have indoctrinated DeLeon and Santana with a

militant Islamist 1 ideology through social media and other

online content promoting radical views. He later travelled

to Afghanistan via Germany, from where he continued

to discuss violent jihad with DeLeon and Santana. In

these communications, Kabir indicated that he had made

connections with the Taliban and al-Qaida, and that he

intended for all three men to join these groups.

In February 2012, the FBI sent a confidential source (CS)

to meet with DeLeon and Santana. The CS learned of their

plans to join Kabir in Afghanistan, as well as potential U.S.

military sites that they were considering attacking. Santana

and DeLeon made clear in their communications with the

CS that based on their Islamist beliefs they intended to kill

American and allied soldiers stationed overseas.

In September 2012, DeLeon recruited Gojali to the

conspiracy. The CS recorded conversations with DeLeon,

Santana, and Gojali in which the three men discussed their

plans, including a conversation in which “DeLeon bragged

about having recruited” four additional individuals. Kabir

advised his compatriots of travel plans he had made for

them, indicated that he had made arrangements for them

to join al-Qaida and the Taliban, and urged them “to train

and prepare for jihad.” Along these lines, DeLeon, Santana,

and Gojali took several steps to prepare for their intended

travel to Afghanistan, including physical exercise, paintball,

and firearms practice with M16- and AK-47-style assault

rifles and other weapons at shooting ranges in Los Angeles.

In addition, DeLeon, Santana, and Gojali obtained valid

passports permitting them to travel to Afghanistan.

In November 2012, Kabir told the other men that “he

was leaving on a one-way mission,” implying later in the

conversation that this “mission” might involve C4 explosives.

At this point, the other men made concrete plans to join Kabir

in Afghanistan, purchasing airline tickets and concocting

a cover story that involved travelling through Mexico and

Turkey. The FBI arrested DeLeon, Santana, and Gojali as they

were driving to Mexico. Around the same time, U.S. military

personnel captured Kabir in Afghanistan and turned him over

to the FBI.

PROCEDURAL HISTORY

I. Kabir's Convictions and Original Appeal

Kabir and DeLeon were each eventually charged with five

terrorism-related offenses, namely (1) conspiracy to provide

material support to terrorists in violation of 18 U.S.C. §

2339A; (2) conspiracy to provide material support to a foreign

terrorist organization in violation of 18 U.S.C. § 2339B; (3)

conspiracy to kill, kidnap, and maim persons in a foreign

country in violation of 18 U.S.C. §§ 956(a)(1), (A)(2)(A),

& (a)(2)(B); (4) conspiracy to commit an offense against

the United States in violation of 18 U.S.C. § 371; and (5)

conspiracy to commit murder in violation of 18 U.S.C. § 1117.

The case proceeded to a 26-day jury trial. The jury found

Kabir guilty on all counts other than count 3 (conspiracy

to kill, kidnap, and maim). 2 The district court *825 later

sentenced Kabir to an imprisonment term of 300 months (25

years).

On appeal, we reversed Kabir's convictions on counts 2

and 4 (conspiracy to provide material support to a terrorist

organization and conspiracy to commit an offense against

the United States), remanding with instructions to enter a

judgment of acquittal on these counts. United States v. Kabir,

828 F. App'x 396, 401 (9th Cir. 2020) (mem.) (affirming

Kabir's other convictions). On remand, the district court set

a resentencing hearing for Kabir. Kabir's resentencing is the

focus of the present appeal.

II. Kabir's Resentencing and this Appeal

Before the resentencing hearing, the United States Probation

Office prepared a new Presentence Report that recommended

imposing a 420-month custodial sentence (35 years),

followed by a lifetime of supervised release with several

conditions. This recommendation was based in part on the

Probation Office's determination that, under the Guidelines,

App. 4a 4

United States v. Kabir, 51 F.4th 820 (2022)

2022 Daily Journal D.A.R. 11,030

Kabir's offense level was 43 and his criminal history category

was VI (the highest category). These determinations, in

turn, resulted from: (1) a 2-point increase in Kabir's offense

level based on the Probation Office's determination that he

“was an organizer, leader, manager, or supervisor” in the

terrorist conspiracy, USSG § 3B1.1(c); and (2) a 12-point

increase in his offense level based on the conclusion that

Kabir had committed “a felony that involved, or was intended

to promote, a federal crime of terrorism,” USSG § 3A1.4(a). 4

At the resentencing hearing, the district court used the

Guidelines as its “starting point” and calculated a Guidelinesrecommended sentence of life in prison. It agreed that Kabir

“was the organizer and leader” of the terrorist conspiracy, and

rejected his policy arguments against applying the Guidelines'

terrorism enhancements.

The district court also considered several factors outside

the Guidelines, such as whether Kabir had shown remorse

for his crimes. Kabir submitted a letter ahead of the

resentencing hearing in which he discussed overcoming

substance addiction while in prison, disputed claims by the

government that he was still involved in Islamist activities and

claimed that he was “not the same person” as he was before

going to prison. Kabir also made a statement on his own

behalf at the resentencing hearing that covered substantially

similar ground. During its sentencing pronouncement, the

district court discussed these statements and found that they

“are fairly characterized as not expressing remorse. *826

In fact, the statement [Kabir made in court] today blaming

his drug abuse, his bad friends, his bad choices, that he's

misunderstood, nowhere is there a statement of remorse for

his conduct.”

Ultimately, the district court again imposed a prison sentence

of 300 months plus a lifetime of supervised release. Kabir

timely appealed his sentence. On appeal, he challenges

the district court's Guidelines calculations, as well as: its

application of the Guidelines' terrorism-related provisions; its

finding that Kabir had not expressed remorse; and its alleged

failure to consider a change in circumstances between the

original sentencing and resentencing.

ANALYSIS

I. Whether Kabir was an “Organizer” or “Leader” in

the Conspiracy

[1] Kabir first challenges the district court's finding that he

qualified as an “organizer” or “leader” of a criminal venture

pursuant to the Guidelines. USSG § 3B1.1(c). We review

the district court's factual findings for clear error, and its

application of the Guidelines to those facts for abuse of

discretion. United States v. Gasca-Ruiz, 852 F.3d 1167, 1170

(9th Cir. 2017) (en banc).

[2]

[3]

[4] To qualify as an “organizer” or “leader,”

a defendant “must have exercised ‘control over others.’ ”

United States v. Harris, 999 F.3d 1233, 1235 (9th Cir. 2021)

(quoting United States v. Avila, 95 F.3d 887, 892 (9th Cir.

1996)). “Control” requires more than mere “facilitation,” and

even a finding that the defendant “play[ed] a central role” in

the offense is insufficient. Id. at 1236. However, the defendant

need only have “some control” over his subordinate's actions,

which includes organizational responsibility. United States v.

Smith, 719 F.3d 1120, 1126 (9th Cir. 2013) (quoting United

States v. Whitney, 673 F.3d 965, 975 (9th Cir. 2012)). The

Commentary to USSG § 3B1.1 further explains that facts

which may be indicative of “leader” status include

[T]he exercise of decision making

authority, the nature of participation

in the commission of the offense,

the recruitment of accomplices, the

claimed right to a larger share of

the fruits of the crime, the degree of

participation in planning or organizing

the offense, the nature and scope of

the illegal activity, and the degree of

control and authority exercised over

others.

USSG § 3B1.1(c) cmt. 4. Here, the district court reasonably

concluded that Kabir had “the necessary influence and ability

to coordinate the behavior of others so as to achieve [a]

desired criminal result,” meaning that he was an “organizer”

within the meaning of USSG § 3B1.1(c). United States v. Doe,

778 F.3d 814, 826 (9th Cir. 2015). The district court found that

Kabir told his co-conspirators “what to pack, how to pack,

how to train, what guns to use when practicing, [and] what

sorts of physical training to undertake.”

Though Kabir attempts to characterize these directives as

nothing more than suggestions, the record shows that his coconspirators did what Kabir told them to do. For example,

App. 5a 5

United States v. Kabir, 51 F.4th 820 (2022)

2022 Daily Journal D.A.R. 11,030

Kabir instructed his co-conspirators to “train and prepare for

jihad,” and to “come on down” to Afghanistan. Following

this directive, the co-conspirators proceeded to, inter alia:

train with assault rifles on firing ranges; practice their skills

with paintball activities; and obtain passports to travel to

Afghanistan. Deleon even withdrew from college, obtained a

refund of his tuition money, and sold his car in order to raise

money for travel.

*827 Kabir also arranged for his co-defendants to join

the Taliban or al-Qaida 5 in Afghanistan. Specifically, Kabir

advised them of routes to travel to Kabul and arranged

an apartment for the group to use when they arrived in

Afghanistan. He reassured them that all of the arrangements

for their arrival were taken care of, telling them, “everything's

set up for you guys out here. Now you just gotta come.” Kabir

even told his co-conspirators that he already informed “the

brothers” (members of Taliban/al-Qaida) about “you guys

coming though.”

Finally, Kabir's recruitment efforts are indicative of his

playing a leadership or central organizational role in the

conspiracy. See USSG § 3B1.1(c) cmt. 4 (stating that courts

should consider a defendant's “recruitment of accomplices,”

in imposing enhancement). Kabir not only recruited Deleon

and Santana, but approved Goljai's membership in the group

when Deleon apparently felt the need to consult with him

about the fact.

The district court's finding that these facts in the aggregate

proved that Kabir was a “leader” or “organizer” has ample

support in the record.

Kabir relies heavily on United States v. Harris, 999 F.3d

1233, 1235 (9th Cir. 2021), to argue that the actions noted

amounted only to facilitation, not leadership or organization.

Harris, however, is readily distinguishable. The defendant

in Harris pleaded guilty to abusing the daughter of his

girlfriend, in which abuse the latter also participated. 999 F.3d

at 1235. The government argued that the defendant influenced

or controlled his girlfriend's actions because the girlfriend

photographed the abuse and, with the defendant's help, made

lists of people the couple wanted to have sex with (including

the daughter). See id. at 1235-36. We held that USSG §

3B1.1(c) did not apply because there was no evidence that the

defendant “directed” his girlfriend to take the photographs or

make the lists, and because “[m]aking a list is most analogous

to making a suggestion.” Id. at 1236.

The facts here are easily distinguishable from those in

Harris. Most importantly, because only two people were

involved in the crime, we expressly refused to consider

whether the defendant had “organizational authority,” id. at

1235 n.1, focusing exclusively on whether the defendant

had a “leadership” role, id. at 1236. That alone is

enough to distinguish Harris in light of Kabir's significant

organizational role. Moreover, Kabir did far more than help

the defendants make lists; he instructed them in all aspects of

their conspiracy to commit terrorist acts abroad, and he made

concrete arrangements for them to travel to Afghanistan to

fight against American soldiers.

Our opinion in United States v. Doe presents a closer analogy.

The defendant in Doe was sentenced for his involvement in

an illegal drug trafficking conspiracy. 778 F.3d at 817–21.

We upheld the district court's finding that the defendant was

an “organizer” pursuant to USSG § 3B1.1(c) because of his

“efforts to coordinate the procurement and the distribution of

drugs from numerous suppliers, and his role in coordinating

the activities of the other participants to the extent necessary

to complete the transaction.” Id. at 826 (citation and internal

quotation marks omitted). We *828 discussed specific

transactions in which the defendant “put the deal together

by negotiating the type, quantity, and price of drugs for

each transaction, and then ensured the drugs, money, and

participants arrived when and where needed.” Id. (calling the

defendant “the driving force behind the success” of these

transactions). Kabir was similarly “the driving force” behind

his group's efforts, coordinating the group's training and travel

plans as well as providing ideological guidance.

We conclude that the district court did not err in finding that

Kabir was a leader or organizer within the meaning of USSG

§ 3B1.1(c).

II. Kabir's Remaining Claims of Procedural Error

[5] Kabir also raises three claims of procedural error, arguing

that the district court erred (1) in its application of the

Guidelines' terrorism-related provisions; (2) in finding that

Kabir had not expressed remorse; and (3) in not adequately

considering the difference in circumstances between Kabir's

original sentencing and resentencing. The parties agree that

the plain error standard applies, because Kabir did not raise

his procedural objections before the district court. 6 See

United States v. Waknine, 543 F.3d 546, 551 (9th Cir. 2008).

“Plain error is (1) error, (2) that is plain, and (3) that affects

substantial rights. If these three conditions are met, we may

App. 6a 6

United States v. Kabir, 51 F.4th 820 (2022)

2022 Daily Journal D.A.R. 11,030

then exercise our discretion to grant relief if [(4)] the error

seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” Id. (cleaned up).

A. The Terrorism Enhancement

[6] Kabir contends that the district court erred when it

rejected his policy challenges to USSG § 3A1.4's “terrorism

enhancement.” “A district court may vary from the Guidelines

if it disagrees with them on policy grounds and the Sentencing

Commission fails to exercise its characteristic institutional

role in their development. There is, however, no obligation

for a district court to do so.” United States v. Carper, 659

F.3d 923, 925 (9th Cir. 2011) (cleaned up) (emphasis added);

see also Kimbrough v. United States, 552 U.S. 85, 91, 128

S.Ct. 558, 169 L.Ed.2d 481 (2007) (stating that a district judge

may disagree with a Guideline on policy grounds); United

States v. Mitchell, 624 F.3d 1023, 1030 (9th Cir. 2010) (“No

judge is required to sentence at a variance with a Guideline,

but every judge is at liberty to do so.” (quoting United States

v. Corner, 598 F.3d 411, 416 (7th Cir. 2010))). All that is

required of a district court faced with policy arguments is an

indication that it understood its authority to vary from the

Guidelines on these grounds before deciding not to do so. See

United States v. Henderson, 649 F.3d 955, 964 (9th Cir. 2011);

see, e.g., United States v. Pape, 601 F.3d 743, 749 (7th Cir.

2010) (affirming sentence where “the district court was aware

of its discretion to vary based on disagreement[s] with the

Guidelines,” but chose not to do so).

Kabir concedes that the district court “recognized its

discretion to vary based on *829 a policy disagreement,”

but contends that the district court failed to consider the

specific arguments he made or adequately explain its reasons

for rejecting them. Kabir misreads the record. At the outset of

the resentencing hearing, the district court indicated that it had

considered the policy arguments made in Kabir's sentencing

memorandum, and then tentatively declined to accept them.

In doing so, it expressly disagreed with Kabir's arguments

that the terrorism enhancement effectively creates “a separate

offense” or “a mandatory minimum” sentence. The district

court then heard policy arguments for and against applying the

terrorism enhancement, interjecting at times to ask questions

or comment on the strength of Kabir's arguments. After

considering these arguments, the district court declined to

withdraw the terrorism enhancement, though it still imposed

a below-Guidelines sentence of 300 months in prison.

[7] Considering these aspects of the record together, it is

clear that the district court considered Kabir's arguments

carefully and simply found them unpersuasive. Under these

circumstances, the district court was not required to provide

a more extensive explanation of its choice to adhere to the

Guidelines. See, e.g., United States v. Daniels, 541 F.3d

915, 922 (9th Cir. 2008) (“No lengthy explanation” of a

sentencing decision that follows the Guidelines “is necessary

if the record makes clear that the sentencing judge considered

the evidence and arguments.” (cleaned up)); United States v.

Amezcua-Vasquez, 567 F.3d 1050, 1053–54 (9th Cir. 2009)

(“[A] sentencing judge does not abuse his discretion when

he listens to the defendant's arguments and then simply

finds the circumstances insufficient to warrant a sentence

lower than the Guidelines range.” (cleaned up)); Pape, 601

F.3d at 748–49 (holding that it was sufficient that the

district court considered and then “implicitly declined” to

adopt defendant's policy disagreements with the Guidelines).

Moreover, the fact that the district court still imposed a belowGuidelines sentence is suggestive of its reasonableness. See

United States v. Montoya, 48 F.4th 1028, 1038 (9th Cir. 2022)

(“[A] below-Guidelines sentence will usually be reasonable”)

(citing United States v. Bendtzen, 542 F.3d 722, 728 (9th Cir.

2008)). Consequently, the district court did not plainly (or

otherwise) err on this issue.

B. Expression of Remorse

[8] Next, Kabir argues that the district court erred in its

finding that he had not expressed remorse. A review of

the record, however, shows that whether Kabir's statements

amounted to remorse is debatable. On one hand, Kabir did

express “regret” and “sorrow” for the consequences of his

actions on his family (though not his co-conspirators or

potential victims) in his sentencing letter. He also concluded

his allocution by saying “to everybody involved directly and

indirectly” in his crimes—a group that presumably included

his co-conspirators—that “I apologize from the bottom of

my heart.” On the other hand, the district court's explanation

for its finding—that Kabir's statements “blam[ed] his drug

use, his bad friends, his bad choices, [and the feeling that]

he's misunderstood” for his actions—is well-supported by the

record. As a result, any error on the part of the district court

does not rise to the level of plain error. See, e.g., Puckett v.

United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d

266 (2009) (an error is not plain if it is “subject to reasonable

dispute”). 7

*830 [9] Moreover, even if the district court erred, Kabir's

substantial rights were not violated. To make such a showing,

Kabir was required to demonstrate “a reasonable probability

App. 7a 7

United States v. Kabir, 51 F.4th 820 (2022)

2022 Daily Journal D.A.R. 11,030

that he would have received a different sentence if the district

court had not erred.” United States v. Joseph, 716 F.3d 1273,

1280 (9th Cir. 2013) (cleaned up). Here, the district court

explicitly discussed Kabir's arguments that he had deserted

the path of religious extremism and found them unpersuasive.

For example, the court cited evidence that Kabir had “sought

out other prisoners convicted of serious terrorism charges.”

The court also noted that Kabir already had access to social

services and a stable family background before he committed

his crimes. See 18 U.S.C. § 3553(a) (requiring consideration

of a defendant's “history and characteristics”). Ultimately,

the district court found other statutory sentencing factors,

such as deterrence and the seriousness of the offense, to

be more important in this case. See 18 U.S.C. § 3553(a)

(sentencing factors). There is no indication that the district

court's sentencing calculus would meaningfully change if it

had not stated that Kabir did not express remorse. Therefore,

reversal is not warranted on this issue.

C. Changed Circumstances

Finally, Kabir argues that the district court failed to

adequately consider the difference in circumstances between

Kabir's original sentencing and resentencing. Kabir's

argument once again relies on a mischaracterization of

the record. It is apparent that the district court did take

into account developments since its original sentence. In

discussing Kabir's “history and characteristics,” 18 U.S.C. §

3553(a)(1), for example, the district court discussed Kabir's

completion of educational programs in prison, Kabir's future

goals, Kabir's purported efforts to be kind to other prisoners,

and the government's allegations that Kabir was still involved

in extremist activities while incarcerated. As previously

discussed, the district court also engaged substantively with

Kabir's claims of rehabilitation and found them lacking

in persuasive force. That the court began its discussion

by “incorporat[ing] into the record the statements that

were made at the first sentencing in this case as to the

nature and circumstances of the offense,” is unsurprising

and immaterial, as a number of the relevant sentencing

factors were unchanged between Kabir's first and second

sentencings. 8

[10] More importantly, Kabir fails to present an error that

was “clear or obvious,” affected his “substantial rights,”

or implicated “the fairness [and] integrity of judicial

proceedings.” Puckett, 556 U.S. at 135, 129 S.Ct. 1423. Kabir

contends that *831 our prior reversal of his convictions for

conspiring to join al-Qaida fundamentally altered the relevant

sentencing considerations. But all this means is that there

was legally insufficient evidence that Kabir and his group

had conspired to join al-Qaida specifically, as opposed to the

Taliban. See Kabir, 828 F. App'x at 398-99. At sentencing,

the district court's substantive focus was on Kabir's plan to

“engage in violent jihad against and to kill American soldiers

and personnel in Afghanistan and elsewhere,” not his specific

group affiliation. 9 As a result, any error in this regard was

not plain, did not affect Kabir's substantial rights, and did not

malign the integrity of judicial proceedings.

Consequently, Kabir has failed to demonstrate a plain error

warranting reversal with respect to his remaining claims of

procedural error.

AFFIRMED.

All Citations

51 F.4th 820, 2022 Daily Journal D.A.R. 11,030

Footnotes

The Honorable Gershwin A. Drain, United States District Judge for the Eastern District of Michigan, sitting

by designation.

This term—as opposed to terms such as “Islamic” or “Muslim” that refer generally to Islam as a religion—

indicates a connection with a radical political ideology based on fundamentalist forms of Islam. See, e.g.,

Islamist, dictionary.com/browse/islamist.

DeLeon was found guilty on counts 1, 3, and 5.

App. 8a 8

United States v. Kabir, 51 F.4th 820 (2022)

2022 Daily Journal D.A.R. 11,030

The Probation Office considered Kabir's offenses together because they involved the same conduct. See

USSG § 3D1.2(b). Kabir was assigned a base offense level of 33 pursuant to two Guidelines provisions

governing conspiracy to commit murder and aiding and abetting. See USSG §§ 2A1.5, 2X2.1. These aspects

of the sentence level calculation are undisputed. It is also undisputed that, following the ordinary Guidelines

method of calculating Kabir's criminal history category based on his past criminal behavior, Kabir would have

been placed in criminal history category V. The recommended sentence for an offender with an offense level

of 33 and a criminal history category of V is between 210 and 262 months in prison. USSG ch. 5, pt. A. But

as explained infra, the PSR included a 14-point increase from two sentencing enhancements. This resulted

in Kabir's receiving an offense level calculation of 47, but the Guidelines provide for a maximum offense

level of 43. See USSG ch. 5, pt. A, note 2 (“An offense level of more than 43 is to be treated as an offense

level of 43.”).

The latter terrorism enhancement also resulted in Kabir's criminal history category being increased from V

to VI. See USSG § 3A1.4(b).

Our previous decision in this case held that the evidence indicated “Kabir was open to joining either

organization,” and that Kabir left it to the group to decide which organization they preferred. Kabir, 828 F.

App'x at 399. Though both options were discussed, the group's plans to join the Taliban were more concrete

than any plans to join al-Qaida. See id.

Although Kabir applies the plain error standard throughout his brief, it is possible that the harmless error

standard actually applies to his arguments concerning application of the terrorism enhancement because

Kabir did contest its applicability before the district court. We are, however, bound by the parties' framing of

the issues. See United States v. Sineneng-Smith, ––– U.S. ––––, 140 S. Ct. 1575, 1579, 206 L.Ed.2d 866

(2020). Moreover, as discussed infra, it is immaterial whether the harmless error or plain standard applies to

Kabir's argument on this point because he has failed to demonstrate any error at all.

Regardless, even if it was technically incorrect to say that Kabir's statements were not “fairly characterized”

as expressing any remorse, such an error did not affect “the fairness, integrity, or public reputation of judicial

proceedings.” Waknine, 543 F.3d at 551. Again, while Kabir said many times at his resentencing hearing that

he had made a “mistake” and was now reformed, these statements were all made in the context of blaming

his background for his actions. Apart from the generalized, one-sentence apology quoted above, nowhere did

Kabir say anything resembling a feeling of regret for planning to kill American soldiers or upending the lives

of his compatriots by recruiting them into a terrorist conspiracy. Even assuming the district court misused the

term “remorse” (as opposed to a similar term like “responsibility”) the thrust of its comment—that Kabir had

failed to take full responsibility for his actions and express a sincere form of regret—is supported by the record.

These include factors such as “the nature and circumstances of the offense,” “the seriousness of the offense,”

the need to “afford adequate deterrence to criminal conduct,” and the relevant Guidelines provisions. 18

U.S.C. § 3553(a).

Though the district court mentioned the group's plans to join both “the Taliban and al-Qaeda,” Kabir provides

no explanation as to why he might have received a more lenient sentence had the district court concluded

(for example) that he intended to kill American soldiers only while flying the Taliban's flag, rather than alQaida's. Though Kabir notes that only al-Qaida was designated by the State Department as a foreign terrorist

organization at relevant times, the district court did not mention Kabir's affiliation with such an organization

as an aggravating factor when imposing its below-Guidelines sentence. More importantly, while there are

important differences between them, the fact remains that both groups were engaged in a violent conflict with

the United States when Kabir left for Afghanistan. In fact, we reversed Kabir's al-Qaida-specific convictions

App. 9a 9

United States v. Kabir, 51 F.4th 820 (2022)

2022 Daily Journal D.A.R. 11,030

in part because he seemed ambivalent as to which organization would better further his plans to attack U.S.

military personnel. See Kabir, 828 F. App'x at 398-99.

End of Document

App. 10a 10

Case 5:12-cr-00092-VAP Document 913 Filed 07/10/21 Page 1 of 39 Page ID #:15311

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION

HONORABLE VIRGINIA A. PHILLIPS, U.S. DISTRICT JUDGE

UNITED STATES OF AMERICA,

)

Plaintiff,

) CASE NO.

) CR 12-00092-VAP-1

vs.

)

SOHIEL OMAR KABIR,

)

Defendant.

)

________________________________________)

REPORTER'S TRANSCRIPT OF RESENTENCING

MONDAY, JUNE 7, 2021

10:00 A.M.

LOS ANGELES, CALIFORNIA

________________________________________________________

MAREA WOOLRICH, CSR 12698, CCRR

FEDERAL

350

WEST

LOS

OFFICIAL

FIRST

ANGELES,

COURT

STREET,

REPORTER

SUITE

CALIFORNIA

4311

90012

mareawoolrich@aol.com

UNITED STATES DISTRICT COURT

App. 11a

Case 5:12-cr-00092-VAP Document 913 Filed 07/10/21 Page 2 of 39 Page ID #:15312

APPEARANCES OF COUNSEL:

FOR PLAINTIFF:

OFFICE OF THE UNITED STATES ATTORNEY

BY: CHRIS GRIGG

Assistant United States Attorney

312 North Spring Street

Los Angeles, CA 90012

FOR DEFENDANT:

FEDERAL PUBLIC DEFENDER'S OFFICE

BY: ANGELA VIRAMONTES

Deputy Federal Public Defender

3801 University Avenue, Suite 700

Riverside, CA 92501

UNITED STATES DISTRICT COURT

App. 12a

Case 5:12-cr-00092-VAP Document 913 Filed 07/10/21 Page 3 of 39 Page ID #:15313

LOS ANGELES, CALIFORNIA; MONDAY, JUNE 7, 2021

10:00 A.M.

-oOo-

THE COURTROOM DEPUTY:

Calling Item 2,

ED CR 12-00092-VAP-1, United States of America versus

Sohiel Omar Kabir.

THE COURT:

Can you tell the family members they are

permitted to come in if they are --

THE COURTROOM DEPUTY:

MR. GRIGG:

for the United States.

Agent Randy Plotkin.

THE COURT:

MS. VIRAMONTES:

I'll bring them in.

Good morning, Your Honor.

Chris Grigg

With me at counsel table is FBI Special

Thank you.

Good morning.

Good morning, Your Honor.

Angela

Viramontes on behalf of Sohiel Kabir who is present in custody.

Your Honor, is it your preference at this time that

we stay seated or that we stand at the lectern?

sure what --

THE COURT:

I'm never

At the lectern when you are speaking.

But you can remain seated until -- I'm going to go through my

tentative ruling.

then.

whether you keep your mask on or not.

MS. VIRAMONTES:

You can remain seated at the table until

And when you are speaking at the lectern, it's up to you

Thank you, Your Honor.

UNITED STATES DISTRICT COURT

App. 13a

Case 5:12-cr-00092-VAP Document 913 Filed 07/10/21 Page 4 of 39 Page ID #:15314

THE COURT:

This matter is on the Court's calendar

for resentencing following the mandate from the Ninth Circuit

Court of Appeal.

The presentence report -- well, in addition to the

presentence reports which were initially disclosed for the

resentencing, there was a presentence report issued on

March 8th, 2021, with an addendum on June 2nd.

Miss Viramontes, have you reviewed those with your

client?

MS. VIRAMONTES:

THE COURT:

presentence reports in your case?

Mr. Kabir, have you seen the updated

THE DEFENDANT:

THE COURT:

Yes, Your Honor.

Yes, ma'am.

Have you discussed them with your

lawyer?

THE DEFENDANT:

Yes.

THE COURT:

Thank you.

All right.

In addition to the presentence reports,

the updated presentence reports, I have reviewed the

government's sentencing -- well, both sides filed their

sentencing memoranda on May 17th, 2021, and the government

filed a reply on June 1st.

sentencing -- a new sentencing letter on June the 2nd, 2021.

Is this everything the parties have submitted for

The defendant also submitted a

the resentencing?

UNITED STATES DISTRICT COURT

App. 14a

Case 5:12-cr-00092-VAP Document 913 Filed 07/10/21 Page 5 of 39 Page ID #:15315

MR. GRIGG:

As far as the government is aware, yes,

Your Honor.

MS. VIRAMONTES:

THE COURT:

Yes, Your Honor.

All right.

Does either side have any

objections to the presentence report other than what you set

forth in the papers?

MR. GRIGG:

Nothing from the United States,

Your Honor.

MS. VIRAMONTES:

THE COURT:

No, Your Honor.

All right.

The defense raised various

objections to the updated presentence report.

defense objects to the 12-level adjustment for terrorism under

United States Sentencing Guideline 3.11.4(a) on the basis that

the enhancement is not based on empirical data and national

experience, that it creates a separate offense, and that it's

overly broad and unreliable, that it creates, in effect, a

mandatory minimum and it artificially inflates the defendant's

criminal history.

First, the

As I believe I just stated, there's no objection

from the defense that it does not apply because under the terms

of the sentencing guidelines, it does apply.

argument is that the Court should not apply it based on a

policy disagreement, and I decline to do that.

apply.

Rather, the

I find it does

It does not create a separate offense.

And as to the argument that it creates a mandatory

UNITED STATES DISTRICT COURT

App. 15a

Case 5:12-cr-00092-VAP Document 913 Filed 07/10/21 Page 6 of 39 Page ID #:15316

minimum, I would reject that argument.

that it artificially inflates the defendant's criminal history,

he's already in Criminal History Category 5.

this adjustment means he's in Criminal History Category 6.

there's a separate objection that Criminal History Category 6

overstates the seriousness of his past criminal history and

likelihood of recidivism which I will address in more detail.

And as to the argument

Application of

And

And that's the next argument that the defense makes.

This argument is somewhat internally contradictory.

defense points out that four of the points that resulted in the

defendant's placement in Criminal History Category 5 are for

driving on a suspended license.

relies on the defendant's self-reported epilepsy and seizure

disorder as a grounds for the Court to show mercy.

The

At the same time, the defense

But there's a very serious danger that's presented

by one who is driving an automobile when he has a seizure

disorder.

the driving on a suspended license in the defendant's condition

is quite serious.

So more than in some cases, I would say here that

The defense objects that there should not be a

two-level adjustment for being an organizer or a leader under

Guideline Section 3B1.1(c).

went back and I read not the entire trial transcript but large

portions of it to make sure that my memory was correct about

the defendant's role in this case.

In preparing for this hearing, I

And I think it's

UNITED STATES DISTRICT COURT

App. 16a

Case 5:12-cr-00092-VAP Document 913 Filed 07/10/21 Page 7 of 39 Page ID #:15317

unquestionably true that this defendant was the organizer and

leader, perhaps, along with Mr. DeLeon, his codefendant.

Mr. Kabir initially recruited the others.

was the one who introduced them to the violent videos of

Anwar al-Awlaki.

Afghanistan.

bring.

the teachings of al-Awlaki.

He urged the others to join him in

He gave them advice about training, what to

He is the person who introduced Santana and DeLeon to

In fact, it's significant that both Santana and

DeLeon complained that the leaders at their mosque disapproved

of al-Awlaki's teachings.

sorry.

recorded conversations between the defendants, Mr. DeLeon is on

record as saying that Kabir was the Amir and that DeLeon was

the acting Amir in the United States.

him in Afghanistan, Kabir was again -- would again be the Amir.

He was the role model.

And DeLeon described him as mujahid walking the streets of

Los Angeles.

Mr. DeLeon testified that -- or I'm

It was not that he testified to this, but in the

But when they rejoined

He was the hero for Santana and DeLeon.

Mr. Kabir instructed the others about routes to take

to Afghanistan, not to come directly.

And, of course, they

were apprehended on their way to take a flight out of Mexico.

It was sort of a roundabout route.

how to pack, how to train, what guns to use when practicing,

what sorts of physical training to undertake.

He told them what to pack,

UNITED STATES DISTRICT COURT

So he clearly

App. 17a

Case 5:12-cr-00092-VAP Document 913 Filed 07/10/21 Page 8 of 39 Page ID #:15318

was an organizer or leader.

objection.

So I would overrule that

I would adopt the factual recitations in the

guideline calculations.

a starting point but doesn't presume that a guideline

sentence is reasonable.

18 United States Code Section 3553 that the Court considers in

arriving at an appropriate sentence.

The Court considers the guidelines as

It is one factor among others under

Here, of course, we are only talking about Counts 2

and 5.

On -- let's see.

to life supervised release on Count 1 and a two- to five-year

period of supervised release on Count 5.

between $25,000 and $250,000.

level of 43.

The guideline range on Count 5 is a life sentence.

On Count 1 it's 180 months and plus one year

It's a fine ranging

That is based on an offense

Counts 1 and 5 are grouped together because

they are part of a common scheme or plan under Guideline

Section 3D1.2(b).

level in any event.

Guideline Section 2X2.1 because of the underlying offense which

is a conspiracy to kill, kidnap, or maim and killing,

attempting to kill, or conspiring to kill.

Both counts produce the same total offense

The base offense level is 33 under

Because the offense conduct charged in Count 1 is

conspiracy to commit murder, it's the most applicable guideline

section under Guideline Section -- under 2A1.5.

UNITED STATES DISTRICT COURT

App. 18a

Case 5:12-cr-00092-VAP Document 913 Filed 07/10/21 Page 9 of 39 Page ID #:15319

Then 12 levels are added under Guideline Section

3A1.4(a) because the felony that was involved or was intended

was intended to promote a federal crime of terrorism that

automatically increases the defense criminal history level to

along with DeLeon were the organizers and leaders in the

offense under Guideline Section 3B1.1C.

offense level of 47, but it's capped at level 43.

And then an additional two levels because this defendant

So that would yield an

Going back to the arguments that were made by the

defense as to the 12 levels added, because this is a terrorism

offense, even if -- as the government points out, even if you

did not add those 12 levels under 3A1.4, the offense level

would be 35.

be 292 to 365 months.

be 235 months to 293 months.

the objection to the adjustment for a crime of terrorism.

The defendant's Criminal History Category is 6.

And at a Criminal History Category of 6, it would

At Criminal History Category 5, it would

But, of course, I did overrule

The

government points out that the defendant has suffered various

disciplinary charges since he's been in custody but those -- of

course, they are not counted for purposes of the criminal

history, and the defendant is in Criminal History Category 6 in

any event.

charge that was pointed to was back in 2014.

recent.

But I believe that the last such disciplinary

So nothing

The defendant's sentencing request is a sentence of

UNITED STATES DISTRICT COURT

App. 19a

Case 5:12-cr-00092-VAP Document 913 Filed 07/10/21 Page 10 of 39 Page ID #:15320

15 years and 5 years of supervised release.

sentencing request is a sentence of 25 years or 300 months with

a lifetime period of supervised release.

The government's

So the Court now turns to the 3553(a) factors.

Starting with the nature and circumstances of the offense and

of course I can -- I will incorporate into the record the

statements that were made at the first sentencing in this case

as to the nature and circumstances of the offense.

But beginning in 2010, this defendant conspired with

codefendants to provide material support and resources to

terrorists including themselves and members of the Taliban and

al-Qaeda to engage in violent jihad against and to kill

American soldiers and personnel in Afghanistan and elsewhere.

Mr. Kabir influenced his codefendants.

introduced them to radical violent doctrines by posting content

online.

from himself and others urging violent conduct against the

military and Americans.

I believe he posted himself between 50 and 60 messages

He traveled from the United States to Germany and

then to Afghanistan and continued while he was out of the

country to communicate with his codefendants.

that they would join the Taliban and then al-Qaeda when they

joined him in Afghanistan.

He discussed the teaching of

Anwar al-Awlaki at length.

All four of the defendants

continued to have telephone conversations where they discussed

UNITED STATES DISTRICT COURT

He told them

App. 20a

Case 5:12-cr-00092-VAP Document 913 Filed 07/10/21 Page 11 of 39 Page ID #:15321

their plans to travel to Afghanistan to commit violent jihad.

The history and characteristics of the defendant:

He is now 43 years old.

He immigrated to the United States

with his family in childhood, has two older brothers.

parents worked hard in the United States to survive and to

support their children and eventually successful small business

owners.

His

The defense argues that the defendant suffered from

what it initially called a chaotic early childhood with health

problems.

immigrants at a very violent and turbulent time in Afghanistan.

But now the defense takes the position that Mr. Kabir was the

product of a, quote, stable and happy family.

somewhat contradictory.

There was chaos in the sense that they were

That's, again,

His brother testified at trial that Mr. Kabir

frequently came up with ideas but had no follow-through, that

he was completely unmotivated.

to what the defense is now arguing about his plans for the

future.

So that's somewhat in contrast

And to the extent that the defense is arguing for a

lower sentence because he has a stable and supportive family,

first of all, that's not really an argument in mitigation

because, of course, many defendants who come before the Court

have not had the advantage of a supportive family.

moreover, he had the same family at the time that he was

UNITED STATES DISTRICT COURT

But

App. 21a

Case 5:12-cr-00092-VAP Document 913 Filed 07/10/21 Page 12 of 39 Page ID #:15322

conspiring to commit violent crimes.

that's just not a persuasive argument.

So I suppose just --

At this time the defendant is arguing that he has

changed after nine years in prison.

he points to the educational programs he's completed and his

statements about what his goals are and how he displays

kindness to other prisoners and shares resources with them.

And as evidence of that,

The government has produced evidence that he sought

out other prisoners convicted of serious terrorism charges.

They provided one or two photographs.

letter to the Court submits that it's not that he was seeking

out others convicted of serious crimes such as the photograph

of him with one of the World Trade Center bombers and John

Walker Landon.

that he was simply seeking out others of his faith.

The defendant in his

I can't remember who the third person is.

But

The argument that 15 years is enough to deter him

from re-offending because, of course, one of the 3553(a)

factors is a need for deterrence -- that's one -- it is one

factor.

the seriousness of the offense.

But there's other also many other factors including

The defense argues that rather than incarceration,

the defendant is in need of services.

And the problem I have

with that argument is that he's never been in a position where

services weren't available to him either because of his

family's resources or because of his status as a veteran after

UNITED STATES DISTRICT COURT

App. 22a

Case 5:12-cr-00092-VAP Document 913 Filed 07/10/21 Page 13 of 39 Page ID #:15323

serving a short time in the military before he was discharged

because of an unrelated automobile accident.

suffered from resources that prevented him from getting

services.

So he hasn't

The need for the sentence to reflect the seriousness

of the offense, promote respect for the law and provide just

punishment.

engage in jihad in Afghanistan.

evidence at trial where, among others things, he posted between

50 and 60 videos advocating violent jihad against the West.

The defense argues that he did not intend to

That's contradicted by the

He discussed with the codefendants including Santana

that he intended to go to Afghanistan to engage in violent

conduct and specifically told the others that he was going to

go to Afghanistan first to figure out their living situation

and gather information so that they could join the Taliban or

eventually al-Qaeda.

As to a sentence that deters this kind of criminal

conduct, of course I've addressed that briefly.

not only specific deterrence with this defendant but general

deterrence.

convicted are among the most serious, a conspiracy to commit

murder.

It applies to

And the crimes with which the defendant stands

The need to protect the public from further crimes

of the defendant.

The defense argues here that the -- as I

said earlier, that the defendant has changed during his

UNITED STATES DISTRICT COURT

App. 23a

Case 5:12-cr-00092-VAP Document 913 Filed 07/10/21 Page 14 of 39 Page ID #:15324

nine years incarceration and that he has matured as shown by

his conduct in prison.

Looking at the conduct for which the defendant was

convicted, what is especially troubling is he lured the younger

men, his codefendants, into this plot.

dreams of jihad.

radical jihad against the West.

He inspired them with

He introduced them to al-Awlaki's version of

And it seems entirely likely to me based on all the

evidence at trial that, if they had not met him in the hookah

bar in Ontario or Pomona, their lives would not have been

affected with lengthy terms of incarceration.

the person who came up with this plot and urged the others to

participate in it throughout the whole length of the

conspiracy.

He was really

So even if he was, in the words of some of his

family members who testified at trial, unmotivated and

disorganized, so even if he would not have carried out those

plans himself, he certainly motivated the others to do his

bidding.

And finally, the need to avoid unwarranted

sentencing disparity.

As the first sentencing in this case as

well as for resentencing, the defense has submitted a great

deal of information about other cases.

sentences that were imposed in the cases that the defense

refers to.

And I've considered the

UNITED STATES DISTRICT COURT

App. 24a

Case 5:12-cr-00092-VAP Document 913 Filed 07/10/21 Page 15 of 39 Page ID #:15325

Some of the cases that the defense relies on are

cases where the defendant pled guilty, and they aren't really

comparable.

In this case the defendant went to trial.

The defense points out that the defendant was a

refugee, came from a chaotic situation in Afghanistan to the

United States which is certainly a factor that could be

mitigating.

received asylum in the United States where he had access to a

free public education.

provide him with a middle class life.

But on the other hand, his family sought and

He had parents who worked hard to

He had -- he was the youngest sibling.

advantages that his older siblings did not have.

But his whole

family obtained citizenship in the United States.

His family

members, his brothers and his parents, were refugees and

immigrants who despite the hardships they suffered of exile

from their homeland, came to the United States, worked hard,

made contributions to this country.

He had

But Mr. Kabir took another path where he -- and he

does have lingering effects from the automobile accident he was

in that caused him to separate from the military.

nevertheless, he didn't have stable employment but rather ended

up spending his time and energy in planning for violent jihad

and recruiting others.

But

So my intended sentence is a sentence of 300 months

in custody, a lifetime period of supervised release.

UNITED STATES DISTRICT COURT

App. 25a

Case 5:12-cr-00092-VAP Document 913 Filed 07/10/21 Page 16 of 39 Page ID #:15326

Miss Viramontes?

MS. VIRAMONTES:

Thank you, Your Honor.

In terms of the arguments

that the defense made about the terrorism enhancement, much of

that information is also relevant to what is the just

punishment here.

And not to belabor the point, Your Honor, but the

studies that the defense cited discuss the very low recidivism

rates.

because that goes to a person's criminal history whether they

are likely to recidivate as well as the deterrence factor.

And the defense believes that is an important point

What the studies found that the defense cited, one

of which was a U.S. military publication, was that the

recidivism rate was roughly 6.5 percent.

the pool of cases that they looked at were people who had been

convicted of plotting an attack.

the recidivism rate was 6.5 percent.

And in that study,

And there what they found was

And the other study that the defense cited that was

a study from the Hague, the rate was even lower, 1.6 percent.

And of the four offenders who did recidivate upon release, one

recidivated by violating the plea agreement by using the

Internet.

with food stamps.

fourth committed a parole violation due to drug possession.

In that study they also cite a 2016 United States

Another committed fraud by illegally buying food

The third was convicted of forgery, and

UNITED STATES DISTRICT COURT

App. 26a

Case 5:12-cr-00092-VAP Document 913 Filed 07/10/21 Page 17 of 39 Page ID #:15327

Sentencing Commission report that found within eight years of

release, half of offenders were rearrested, a third

reconvicted, and a fourth reincarcerated.

And yesterday, Your Honor, I found another

study from the Center -- the Combatting Terrorism Center at

West Point.

Terrorist Recidivism and Evidence.

military publication, it also found looking at 557 jihadi

terrorists in Belgium, that five percent reengaged in terrorist

attacks.

Overblown, Exploring the Gap Between the Fear of

And in that study in the

The defense points the Court to these studies for

the purpose of pointing out to the Court that the recidivism

likelihood is not greater in terrorism cases than in regular

cases.

deserving of a greater sentence based on that reason.

And the defense position is that Mr. Kabir is not

The defense would also point out, Your Honor, that

the cases that the government largely relied on don't address

the lack of empirical data, that the Courts cite each other for

the proposition that there are unique difficulties in deterring

and rehabilitating persons convicted of terrorism offenses.

And that's just simply not borne out by the recent studies

looking at this phenomena, Your Honor.

THE COURT:

Well, let me ask a question.

And that

is you have to -- you have to consider whether those studies

deal with persons who have received the -- who have committed

UNITED STATES DISTRICT COURT

App. 27a

Case 5:12-cr-00092-VAP Document 913 Filed 07/10/21 Page 18 of 39 Page ID #:15328

the most serious conduct and received lengthy sentences because

there couldn't really be a study of recidivism rates amongst

those who have gotten life sentences or 25-year sentences.

that's one point.

Also, the government -- and I'm not suggesting that

anecdotal evidence is superior in any way to the sorts of

studies that you've cited, but I think it is a valid point the

government makes that this Court has already dealt with at

least one person who was in prison on terrorism charges,

Mr. Kurbanov, who recidivated by attacking the warden at the

prison and slicing him open in a most serious wound.

So those are two factors or two points that weigh

against the argument you are making about the studies that

you've submitted.

MS. VIRAMONTES:

Yes, Your Honor.

And certainly the

anecdotal evidence that the government cited is disturbing.

The defense's argument here, Your Honor, is that the

United States Sentencing Commission found that, you know, half

of offenders rearrested, a third reconvicted, a fourth

reincarcerated.

And the argument that the United States Sentencing

Commission seemed to rely on in creating the terrorism

enhancement was that terrorism -- persons convicted of

terrorism offenses were somehow different, that they were more

dangerous.

So they deserved a much more harsher sentence.

UNITED STATES DISTRICT COURT

App. 28a

And

Case 5:12-cr-00092-VAP Document 913 Filed 07/10/21 Page 19 of 39 Page ID #:15329

that doesn't seem to be bore out by the evidence as more people

are released from prison after serving these sentences.

The defense is by no means trying to argue to the

Court that there's no risk of recidivism.

silly argument to make.

this belief that there needs to be a much more draconian

sentence is not bore out by the empirical data.

That's just simply a

But the defense's position is that

And I would point out that the study, the

Examination of Jihadi Recidivism Rates in the United States,

looked at 189 individuals.

convictions that involved attack plotting rather than all

jihadi offenders which is what the authors of the study the

Terrorism Recidivism study did.

And those individuals all had

And then finally, Your Honor, in terms of

Mr. Kabir's post-sentencing conduct, the Court has the benefit

of seeing him seven years later.

actually predates the trial in this case.

And trial was in August and September of 2014.

His last disciplinary conduct

It was May of 2014.

The government points to three incidents over

roughly the last seven years --

THE COURT:

Well, Miss Viramontes, excuse me for

interrupting you.

too remote in time to really have an effect on my analysis of

the 3553(a) factors.

But I'm persuaded that those incidents are

MS. VIRAMONTES:

Thank you, Your Honor.

UNITED STATES DISTRICT COURT

App. 29a

Case 5:12-cr-00092-VAP Document 913 Filed 07/10/21 Page 20 of 39 Page ID #:15330

What I also think is important here, Your Honor, is

what he has said in his own words about the changes that he has

made.

are aware of what has gone on.

They've been supporters of him over the last seven years.

they are aware of the facts of the case.

he's incarcerated, and they still want to support him, and they

still want to see him change when he is released.

I do think the family support is important because they

They sat through the trial.

And

They are aware that

And I think that's important when he is released,

that they are not going to enable him, that they are aware of

the difficulties and challenges he will face and he has faced.

And that having a supportive family is sort of a protective

function when someone is released from custody.

He has 14 family members here in court today

including his mother, his brother, numerous aunts, a

sister-in-law, and many cousins.

to know that they believe Mr. Kabir has changed.

support him in the future whenever he is released.

And they would like the Court

And they will

And I believe, Your Honor, Mr. Kabir would like to

read his letter to the Court.

the Court hear him speak today.

THE COURT:

Mr. Kabir, you have the right to speak at this time.

THE DEFENDANT:

It was important for him that

Thank you, Your Honor.

Thank you.

First of all, I would like to say

good morning to everybody and thank my family for coming and

UNITED STATES DISTRICT COURT

App. 30a

Case 5:12-cr-00092-VAP Document 913 Filed 07/10/21 Page 21 of 39 Page ID #:15331

showing support.

You know, these last ten -- nine years, ten years

have been real hard, and I wouldn't even wish it upon my enemy.

I know before I got incarcerated, I had no goals in life.

had no motivation.

turned to drugs and hanging around with the wrong crowd.

that was a big factor in the decisions I made in my life.

Technically I was giving up on life.

coming into prison my first two -- two-plus years, I did in

solitary confinement.

time right there not only from recovering from my injuries but

to reflect on everything in my life.

So I was real depressed.

So, you know, I

And

And, you know,

And, you know, that gave me a lot of

And I was a big disappointment to my family.

So,

you know, being outside and making mistakes, I know my family

had my back.

run to them for anything.

So I didn't take nothing serious.

I know I could

But coming to prison was a blessing because my whole

intention before this was -- my whole intention was to change

for the better.

long, being unhappy for so long.

I was tired of being a disappointment for so

Not worth living.

So these last nine years being in prison I have a

lot of self-reflection.

You have to, as they say, man up.

had to learn along the way.

it was very difficult in prison, from the living conditions to

everything.

And it was hard.

UNITED STATES DISTRICT COURT

You

Psychologically

App. 31a

Case 5:12-cr-00092-VAP Document 913 Filed 07/10/21 Page 22 of 39 Page ID #:15332

But I knew I needed that because I used to walk

around with a false sense of pride.

had a lot of hatred in my heart for a lot of people, even

myself.

Everything I tried to contain or tried to control it by doing

drugs.

I'd wake up miserable.

I used to judge people.

I'd go to sleep miserable.

I'm not here to make excuses.

But I'm just here to

let you know this was -- what was going on in my personal life.

I know I made a lot of bad decisions.

bad people.

I was around a lot of

So even being in prison I didn't learn right away.

I had to go through what I had to go through to chip away at a

heart that was already hardened.

go through it in order for it to break off so that it could

become soft again, so I could work on myself these last nine

years.

So I needed to -- I needed to

And where I'm at today, I could say I'm happy with

myself at who I became because of what I went through.

all that stuff that I'm in prison for -- I know it reflects --

it looks real bad upon me and my family.

that, and I'm not like that.

I know

My family is not like

I'm just misunderstood.

I remember a scholar a long time ago, he had some

issues.

And people were talking bad about him.

And then when

his name got cleared, everybody came to him and apologized to

him.

And he said, look, I don't need to know your situation

UNITED STATES DISTRICT COURT

App. 32a

Case 5:12-cr-00092-VAP Document 913 Filed 07/10/21 Page 23 of 39 Page ID #:15333

what you did that affected me, but I already forgive you for

everything.

don't want God to punish you because of me.

heavy on me reflecting on my past and looking at everything.

It doesn't matter what it was because, he said, I

So that weighed

And the day I woke up and I realized whatever

happened to me in my life, all the -- whatever I felt towards

anybody at all, I removed it from my heart, and I felt honestly

instantly like a great burden was taken off my shoulders.

after that, that felt so good.

reminder every single day.

And

I carry that with me as a

And I wake up, even though I'm in a prison

environment that I don't wish upon anybody, I could actually

say I wake up with a smile on my face.

I'm back to being who I should have been from the beginning

before I made all the bad choices I made and got affected by

drug use and my surroundings and environment.

I wake up happy because

My parents taught me a lot better than this from the

beginning, but it was me caught up in this environment, like I

said, with bad friends and just being rebellious in nature that

I went against even what they taught me.

point of stealing their car, you know, for various reasons, for

the wrong reasons regardless of what it was.

day I'm ashamed of that.

I even went to the

And until this

But at that time being under the influence of drugs,

just not using it as an excuse but saying it's a factor, I

UNITED STATES DISTRICT COURT

App. 33a

Case 5:12-cr-00092-VAP Document 913 Filed 07/10/21 Page 24 of 39 Page ID #:15334

wasn't in the right state of mind.

My heart was hardened.

all I can say now presently currently speaking, I'm not who I

was when I came in.

again.

religion doesn't teach that.

Nothing more, nothing less.

I don't plan on ever being like that

I'm not an extremist.

I don't believe in that.

I'm just a Muslim.

That's it.

The picture that they brought up, I was put in a

special prison with people with those similar charges.

treat everybody how you want to be treated.

treated them.

their charges of what they are in there for.

them up or anything any of those things.

accordingly so that everybody could function together and be

civilized or control it as much as you can.

And that's how I

A rule goes in prison that you don't ask people

You don't look

You treat everybody

So I know everybody makes mistakes in life, and I

made plenty.

from them.

And you

I can't even count them.

But I just try to learn

And tomorrow, if God willing I make it, I plan on

being better than I am now.

And today I'm planning on being

better than I was yesterday.

And I'll continue striving and

working on myself for the rest of my life.

I want to have opportunity now to start a family.

You know, I have family support.

They even offered me jobs,

the stability.

had that opportunity back then because my mind wasn't even

Something I didn't -- I don't even recall if I

UNITED STATES DISTRICT COURT

App. 34a

Case 5:12-cr-00092-VAP Document 913 Filed 07/10/21 Page 25 of 39 Page ID #:15335

focused.

I didn't even care about any of that stuff.

wanted everything to end.

I just

So, you know, I ask Your Honor to please show me

compassion.

department requests of me, every -- I feel prison shouldn't be

a punishment but should be rehabilitation, as much time as a

person needs change their ways.

I'm not saying this because I'm standing right here.

I'm willing to comply with everything, probation

I honestly feel that way, and

I've seen in the prison there's a lot of people that

have mental -- real serious mental issues that shouldn't even

be in prison.

and should stay in there and shouldn't come out.

other people that they just made a bad choice like myself and,

you know, they learned from their mistakes and God willing they

come out.

And there's other people that do belong there

And there's

You know, to everybody involved directly and

indirectly, I apologize from the bottom of my heart.

I know I

was supposed to be here and read the letter, but I had to speak

from my heart because it's more sincere.

show me mercy and give me a chance to prove what I'm saying and

not let it just be lip service because before it was and now

it's not.

And I just hope you

Thank you.

THE COURT:

Mr. Grigg?

MR. GRIGG:

Thank you.

Thank you, Your Honor.

UNITED STATES DISTRICT COURT

App. 35a

Case 5:12-cr-00092-VAP Document 913 Filed 07/10/21 Page 26 of 39 Page ID #:15336

In preparing for today's hearing, as the Court has

done, the government has gone back and looked over the records

from the beginning of this case up until the present.

rather than recount the hundreds of exhibits, the weeks of

trial testimony that describe Mr. Kabir's actions quoting his

own words and quoting his own deeds and those of his

co-conspirators, I would direct the Court's attention to just

one exhibit.

And

And pardon me for being old fashioned in this new

setting, but I actually have paper copies if the Court would

like to have them.

Perhaps I could --

I have copies for counsel and the clerk.

THE COURT:

Could you put them on the ELMO?

MR. GRIGG:

I probably can, yes, Your Honor.

But my point is I'm happy to submit them.

the Court would allow me to condense my comments, I can do that

with or without the benefit of projecting them if the Court

wants and then submit the copies.

which the Court is already familiar with.

pleases.

But if

I'm sure it's something with

But as the Court

Whichever -THE COURT:

You may argue, and then you can

distribute the copies if that's what you prefer.

MR. GRIGG:

Okay.

Great.

I will just provide a

copy to defense counsel right now since she's close by.

will put my mask on and hand up the copies to the clerk.

UNITED STATES DISTRICT COURT

And I

App. 36a

Case 5:12-cr-00092-VAP Document 913 Filed 07/10/21 Page 27 of 39 Page ID #:15337

THE COURT:

Was this a trial exhibit?

MR. GRIGG:

It was, Your Honor.

It's Exhibit

526(a).

admitted into evidence -- well, the underlying recording was

admitted into evidence on August 20, 2014.

going to talk about the second page only of this exhibit.

And according to the Court's order, Docket 680, it was

And I'm really

This is an October 20, 2014 recording of a

conversation between Mr. Kabir and Mr. Santana.

Court's recollection, this was about four weeks before the

arrests in this case.

THE COURT:

October 20th, 2012.

MR. GRIGG:

That's correct, Your Honor.

And for the

And it was

admitted into evidence in August of 2014.

THE COURT:

Go ahead.

MR. GRIGG:

On page 2 of this recording and this

transcript, Mr. Kabir tells Mr. Santana that he has met someone

with, "connects to AQ" referring to al-Qaeda.

Court recalls, this is after the August 2012 recording in which

Mr. Kabir tells Mr. DeLeon and Mr. Santana and the person who

we've all come to know as the CHS, Mr. Hamad, that he had made

contacts with the students and the professors.

And as the

So this is a couple of months after that

conversation and mere weeks before the codefendants get in

their car and attempt to drive to Mexico.

in his own words is telling his co-schemers that he has

So, again, Mr. Kabir

UNITED STATES DISTRICT COURT

App. 37a

Case 5:12-cr-00092-VAP Document 913 Filed 07/10/21 Page 28 of 39 Page ID #:15338

connections with someone who has connections with al-Qaeda.

This conversation, Your Honor, involves Mr. Santana

informing Mr. Kabir of how the co-conspirators are going to

exit the United States to avoid detection at the airports by

driving over the land border to Mexico.

Mr. Santana to go to the consulate in Mexico because Mr. Kabir

has learned that the codefendants will need visas to enter

Afghanistan.

And Mr. Kabir directs

And this one page sort of brings into focus some of

what the Court has heard today about -- and, quite frankly, the

detailed statements Mr. Kabir made in his recent letter to the

Court which he summed up and expanded on just now.

But in this letter -- in this conversation -- sorry.

In Mr. Kabir's own words, he tells his co-conspirators -- he

directs them to go to the consulate and, "pull tricks"

and "bullshit them to get information out of them" because

Mr. Santana has asked how hard is it to sneak somebody into

Afghanistan.

The problem here, of course, is this is a

willingness to deceive and a willingness to manipulate and a

willingness to direct others to do the same to get what one

wants.

the difference which is the classic difference in every

sentencing between a defendant who is engaged in the offense

conduct and a defendant who appears before the Court for

It is but one of many examples that call into question

UNITED STATES DISTRICT COURT

App. 38a

Case 5:12-cr-00092-VAP Document 913 Filed 07/10/21 Page 29 of 39 Page ID #:15339

sentencing.

Part of why this one page brings together a lot of

these issues is because, as the Court has heard, Mr. Kabir has

represented that he is in the process of changing who he was.

He claims he has already changed.

The government has pointed out that in recorded

conversations from prison with one of his brothers, he

describes his support for the leaders of Isis.

Mr. Kabir would have the Court believe, playing devil's

advocate, where he says in his letter to the Court he was just

trying to get under his brother's skin essentially.

argues directly with his brother who says the entire world

disagrees with you, not just Muslims in the West.

but also Muslims in the East.

And not just as

But he

Not just --

When Mr. Kabir pushes back, it's not just to goad

his brother.

clear.

is in the exhibits to the government's sentencing position

paper for the November 2019 phone call.

seen the proof, and the people who say otherwise are lying.

Just like at my trial.

witnesses who testified against me were lying."

He says, "I have seen the proof, and it's pretty

And the people who say otherwise," in essence -- this

Mr. Kabir says, "I've

The government was lying.

All of those

And the problem, of course, Your Honor, is the trial

evidence and all of the evidence in this case, the exhibits,

the recordings, the extensive written publications online, it's

UNITED STATES DISTRICT COURT

App. 39a

Case 5:12-cr-00092-VAP Document 913 Filed 07/10/21 Page 30 of 39 Page ID #:15340

not the government speaking.

The evidence in the case is about the defendant's own actions.

Those are defendant's own words.

And in this hearing, the defendant makes the

understandable argument that he is a different person, he is

new.

before the Court.

anyone to accept at face value those representations.

We understand why that information is being put forward

But this record makes it very difficult for

The Court is also being asked to disproportionately

allocate weight among the sentencing factors in this case by

focusing on recidivism rates and specifically the factor that

the Court recited, the need to deter -- or sorry.

the public from further offenses by the defendant.

To protect

But the Court is being induced to disproportionately

weigh that to the exclusion of all of the remaining sentencing

factors.

that counsel has put forward as flawed as they are and even if

the Court were to consider the sentencing disparity arguments

that counsel has put forward which the Court has already

distinguished -- the Court distinguished at the last sentencing

hearing that a lot of those cases are not similarly situated.

But there are a couple of cases that the Court can

And even if the Court were to consider the studies

look to that are directly similarly situated.

In this case the

defendant is asking for a sentence lower than what this Court

sentenced Mr. DeLeon to serve.

and a gross weighting of the factors that is not borne out by

That is a fundamental disparity

UNITED STATES DISTRICT COURT

App. 40a

Case 5:12-cr-00092-VAP Document 913 Filed 07/10/21 Page 31 of 39 Page ID #:15341

this record.

As the Court will recall, it sentenced Mr. DeLeon to

20 years, Mr. Santana who pleaded guilty to a lesser term and

Mr. Gojali to a lesser term.

a sentence below even his own codefendants in his own case.

But here defendant is asking for

The Court can also look to other examples including

United States versus Badawi and Elhuzayel which is a case tried

and prosecuted before Judge Carter in CR -- I believe

technically it's SA CR 15-00060-DOC which involved a material

support trial for two defendants conspiring to send one of them

overseas to join Isis.

30-year sentences.

in this case.

In that case Judge Carter imposed

So higher sentences than Mr. Kabir received

The problem that the court has is it's being asked

to weigh disproportionately one factor to the derogation of the

others.

forward -- laid out all of its assessments of the various

factors.

supports the findings and the tentative that the Court has laid

out and would ask the Court to impose the same sentence it

initially indicated.

My sense is that the Court understands and has laid

And the government would submit that the record fully

And if the Court has any particular questions, I'm

happy to address them.

THE COURT:

Did you have anything else, Miss Viramontes?

Thank you.

UNITED STATES DISTRICT COURT

App. 41a

Case 5:12-cr-00092-VAP Document 913 Filed 07/10/21 Page 32 of 39 Page ID #:15342

MS. VIRAMONTES:

Your Honor, the defense's

understanding is that Mr. DeLeon is going to be resentenced as

well.

Your Honor, there have not been any reports from SIS within the

prison that Mr. Kabir has been involved with terrorist

activities or --

I would just point that out.

THE COURT:

to Mr. DeLeon.

And once again,

Well, I'm not aware of a resentencing as

I believe his appeal is still pending.

MR. GRIGG:

That's correct, Your Honor.

MS. VIRAMONTES:

If that is the government's

position, then the defense will accept that.

is that there have been conversations that have led our office

to believe that Mr. DeLeon will be resentenced and matters that

I am hesitant to discuss without proceedings being under seal,

Your Honor.

THE COURT:

Well, I checked the docket, of course,

many times during the last week or so.

on the docket.

MR. GRIGG:

My understanding

There's no indication

Your Honor, I would like to just be

clear so that the Court understands.

entirely off base.

is that Mr. Kabir's appellate counsel has contacted the

government.

filed his opening brief yet.

Counsel's point is not

But what counsel is preferring to, perhaps,

The appeal is still pending.

Mr. DeLeon has not

And to the extent that the parties are even

UNITED STATES DISTRICT COURT

App. 42a

Case 5:12-cr-00092-VAP Document 913 Filed 07/10/21 Page 33 of 39 Page ID #:15343

discussing whether the appeal can be resolved or not, quite

frankly, I don't think that has any merit here because the

Court imposed the judgment it imposed upon Mr. DeLeon and

hasn't had occasion to revisit it yet.

THE COURT:

Go ahead, Miss Viramontes, you may --

MS. VIRAMONTES:

THE COURT:

The defendant may stand at the lectern, please, for

All right.

Nothing further, Your Honor.

All right.

Thank you.

imposition of sentence.

I think I've set forth in detail the basis for my

resentencing decision.

that Mr. Kabir made today as well as what -- the sentencing

letter that he submitted, what is striking is that I think they

are fairly characterized as not expressing remorse.

the statement today blaming his drug use, his bad friends, his

bad choices, that he's misunderstood, nowhere is there a

statement of remorse for his conduct.

I would just add that the statement

In fact,

And in one particular area, I guess I find that

troubling.

other three defendants in this case as I believe I said a

few moments ago, it's clear to me that if they had not met

Mr. Kabir, there would have been no occasion for me to sentence

them.

And that is although I imposed sentence on the

He was not only the leader and the organizer and the

UNITED STATES DISTRICT COURT

App. 43a

Case 5:12-cr-00092-VAP Document 913 Filed 07/10/21 Page 34 of 39 Page ID #:15344

planner, but it was his conduct and his recruitment of the

other defendants who are serving or have served prison time.

If they had not met him, their lives would have been vastly

better.

All right.

The Court has considered the sentencing

factors set forth at 18 United States Code Section 3553(a) as

well as the advisory sentencing guidelines and hereby imposes

sentence as follows:

range.

And this is a variance from the advisory

It's ordered that the defendant shall pay to the

United States a special assessment of $200 due immediately.

Any unpaid balance shall be due during the period of

imprisonment at the rate of not less than $25 per quarter

pursuant to the BOP's Inmate Financial Responsibility Program.

Pursuant to Guideline Section 5E1.2(a), all fines

are waived as the Court finds the defendant has established

that he is unable to pay a fine.

Pursuant to the Sentencing Reform Act of 1984, it's

the judgment of the Court that the defendant, Sohiel Omar

Kabir, is hereby committed on Counts 1 and 5 of the second

superseding indictment to the custody of the Bureau of Prisons

for a term of 300 months consisting of 180 months on Count 1

and 300 months on Count 5 to be served concurrently.

The Court recommends that the Bureau of Prisons

conduct a mental health evaluation of the defendant and provide

UNITED STATES DISTRICT COURT

App. 44a

Case 5:12-cr-00092-VAP Document 913 Filed 07/10/21 Page 35 of 39 Page ID #:15345

all necessary treatment.

Upon release from imprisonment, the defendant shall

be placed on supervised release for a life term consisting of a

life term on Counts 1 and 5 of the second superseding

indictment.

term on Count 1 and five years on Count 5.

concurrently under the following terms and conditions:

All terms to run -- oh, I'm sorry.

It's a life

All terms to run

The defendant shall comply with the rules and

regulations of the U.S. Probation and Pretrial Services office

and second amended General Order 20-04.

He shall refrain from any unlawful use of a

controlled substance.

15 days of release from imprisonment and at least two periodic

drug tests thereafter not to exceed eight tests per month as

directed by probation.

He shall submit to one drug test within

He shall participate in an outpatient substance

abuse treatment and counseling program that includes

urinalysis, breath and sweat patch testing as directed by

probation.

He shall abstain from using alcohol and illicit

drugs and from abusing prescription medications during the

period of supervision.

During the course of supervision, the probation

officer with the agreement of the defendant and defense counsel

may place the defendant in a residential drug treatment program

UNITED STATES DISTRICT COURT

App. 45a

Case 5:12-cr-00092-VAP Document 913 Filed 07/10/21 Page 36 of 39 Page ID #:15346

approved by the U.S. Probation Office for treatment of narcotic

addiction or drug dependency which may include counseling and

testing to determine if the defendant has reverted to the use

of drugs.

The defendant shall reside in the treatment program

until discharged by the probation officer and the program

director.

The defendant shall participate in mental health

treatment which may include evaluation and counseling until

discharged from the treatment by the treatment provider with

the approval of probation.

pay all or part of the cost of treating his drug dependency and

psychological or psychiatric disorders during the period of

supervision pursuant to 18 United States Code Section 3672.

And the defendant shall provide payment and proof of payment as

directed by probation.

As directed by probation, he shall

During the period of supervision, the defendant

shall pay the special assessment in accordance with this

judgment's orders regarding such payment.

When not employed or excused from the probation

officer for schooling, training or other acceptable reasons, he

shall perform 20 hours of community service per week as

directed by probation.

a DNA sample from the defendant.

He shall cooperate in the collection of

He shall not associate with anyone known to him to

UNITED STATES DISTRICT COURT

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Case 5:12-cr-00092-VAP Document 913 Filed 07/10/21 Page 37 of 39 Page ID #:15347

be a member of al-Qaeda, the Taliban or any affiliated

organization or others known to him to be participants in

al-Qaeda, the Taliban or any affiliated organizations' criminal

activities with the exception of any family members.

He may not wear, display, use or possess any

insignias, emblems, badges, buttons, caps, hats, jackets, shoes

or other clothing that he knows evidence affiliation with

al-Qaeda, the Taliban or any affiliated organization and may

not display any signs or gestures that he knows evidence

affiliation with al-Qaeda, the Taliban or any affiliated

organization.

As directed by the probation officer, he shall not

be present in any area known to him to be a location where

members of al-Qaeda, the Taliban or any affiliated organization

meet or assemble.

He shall submit his person, property, house,

residence, vehicle, papers, computers, cell phones, other

electronic communications or data storage devices or media,

e-mail accounts, social media accounts, cloud storage accounts

or other areas under his control to a search conducted by a

United States probation officer or law enforcement officer.

Failure to submit to a search may be grounds for revocation.

The defendant shall warn any other occupants that

the premises may be subject to searches pursuant to this

condition.

Any search pursuant to this condition will be

UNITED STATES DISTRICT COURT

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Case 5:12-cr-00092-VAP Document 913 Filed 07/10/21 Page 38 of 39 Page ID #:15348

conducted at a reasonable time and in a reasonable manner upon

reasonable suspicion that the defendant has violated a

condition of his supervision and the areas to be searched

contain evidence of this violation.

Mr. Kabir, you, again, have the right to appeal the

Court's decision as to your sentence.

Defendant may appeal by

filing a notice of appeal with the clerk.

notice of appeal can be filed without paying the fees usually

required, and you have 14 days or two weeks from today's date

to file your notice of appeal or you lose the right to appeal.

You may ask that any

Do you understand?

THE DEFENDANT:

THE COURT:

All right.

MR. GRIGG:

No.

MS. VIRAMONTES:

THE COURT:

(At 11:05 a.m. the proceedings adjourned.)

Yes.

Anything further from either

side?

Thank you, Your Honor.

No, Your Honor.

All right.

Thank you.

UNITED STATES DISTRICT COURT

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Case 5:12-cr-00092-VAP Document 913 Filed 07/10/21 Page 39 of 39 Page ID #:15349

CERTIFICATE OF OFFICIAL REPORTER

I, MAREA WOOLRICH, FEDERAL OFFICIAL REALTIME

COURT REPORTER, IN AND FOR THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA, DO HEREBY CERTIFY

THAT PURSUANT TO SECTION 753, TITLE 28, UNITED STATES CODE

THAT THE FOREGOING IS A TRUE AND CORRECT TRANSCRIPT OF THE

STENOGRAPHICALLY REPORTED PROCEEDINGS HELD IN THE

ABOVE-ENTITLED MATTER AND THAT THE TRANSCRIPT PAGE FORMAT

IS IN CONFORMANCE WITH THE REGULATION OF THE JUDICIAL

CONFERENCE OF THE UNITED STATES.

DATED THIS

10TH

DAY OF JULY, 2021.

/S/ MAREA WOOLRICH

______

MAREA WOOLRICH, CSR NO. 12698, CCRR

FEDERAL OFFICIAL COURT REPORTER

UNITED STATES DISTRICT COURT

App. 49a

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.