Petition for Writ of Certiorari — Francisco Joseph Arcila Ramirez, Petitioner v. United States

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

FRANCISCO JOSEPH ARCILA RAMIREZ,

Petitioner,

v.

UNITED STATES OF AMER ICA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Ana M. Davide, Esq.

Florida Bar No. 875996

ANA M. DAVIDE, P.A.

420 South Dixie Highway, Suite 4B

Coral Gables, Florida 33146

Telephone: (305) 854-6100

Fax: (305) 854-6197

E-mail: ana@anadavidelaw.com

(Counsel of Record for Petitioner,

Francisco Joseph Arcila Ramirez.)

QUESTION PRESENTED FOR REVIEW

When a defendant has entered a plea of guilty to the offense of providing

material support to a foreign terrorist organization, in violation of 18 U.S.C.

§2339B(a)(1), or has been convicted of that offense after trial, is it permissible for the

Court when determining the appropriate sentencing guideline calculation, to impose

the twelve (12) level so-called “terrorism enhancement” pursuant to U.S.S.G.

§3A1.4(a) and (b), without making specific findings that are supported by evidence

in the record, that the defendant’s actions were calculated (i.e. intended) to influence

or affect the conduct of government by intimidation or coercion, or to retaliate against

government, or that he had the specific intent to do so, or is it sufficient to find that

the defendant provided material support to an organization that he knew was

engaged in terrorist activity or terrorism.

In other words, to justify the application of the harsh twelve (12) level

enhancement provided for in U.S.S.G. §3A1.4(a) and (b), and the criminal history

category of VI, does the fact that a defendant has merely pled guilty to providing

material support to a foreign terrorist organization per se or automatically invoke the

terrorism enhancement.

i

PARTIES TO THE PROCEEDING IN THE COURT WHOSE

JUDGMENT IS SOUGHT TO BE REVIEWED

Francisco Joseph Arcila Ramirez

Defendant/Appellant

United States of America

Plaintiff/Appellee

RELATED CASES

● United States of America v. Francisco Joseph Arcila Ramirez, Case No. 19CR-20036-JEM-1, United States District Court for the Southern District of Florida.

Judgment entered January 29, 2020 (vacated). [Appx. E]

● United States of America v. Francisco Joseph Arcila Ramirez, Case No. 2010564, United States Court of Appeals for the Eleventh Circuit. Judgment entered

November 1, 2021, United States of America v. Francisco Joseph Arcila Ramirez, 16

F.4th 844 (11th Cir. 2021), (District Court Judgment vacated and remanded) [Appx. D]

● United States of America v. Francisco Joseph Arcila Ramirez, Case No. 19CR-20036-JEM-1, United States District Court for the Southern District of Florida.

Judgment entered April 7, 2022 (after remand). [Appx. B]

● United States of America v. Francisco Joseph Arcila Ramirez, Case No. 2211190, United States Court of Appeals for the Eleventh Circuit, Judgment entered

May 16, 2023. United States v. Francisco Joseph Arcila Ramirez, Case No. 22-11190,

2023 WL 3477811 (May 16, 2023) (District Court Judgment affirmed) [Appx. A]

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ……………………………….………………. i

PARTIES TO THE PROCEEDINGS IN THE COURT WHOSE

JUDGMENT IS SOUGHT TO BE REVIEWED ………………………………………… ii

RELATED CASES …………………………………………………………………………... ii

TABLE OF CONTENTS ……………………………………………………….……….. iii-iv

INDEX OF APPENDICES …………………………………………………………………. v

TABLE OF AUTHORITIES …………………………………………………….…..… vi-viii

PETITION FOR WRIT OF CERTIORARI ……………………………………………….. 1

OPINIONS BELOW …………………………………………………………………………. 1

STATEMENT OF JURISDICTION ………………………………………………….……. 2

STATUTORY AND RULES PROVISIONS INVOLVED …………………..………….. 2

.

STATEMENT OF THE CASE ………………………………………………………...…… 4

REASONS FOR GRANTING THE WRIT ……………………………….……………….. 8

In every case brought by the United States of America when someone

has been convicted or has pled guilty to the offense of providing material

support to a foreign terrorist organization, in violation of 18 U.S.C.

§2339B(a)(1), the question arises as to whether or not to apply the very

harsh terrorism enhancements provided for in U.S.S.G. §3A1.4(a) and

(b). Therefore, lower courts are in need of guidance as to what findings

and prerequisites must be present before the terrorism enhancements

provided for in U.S.S.G. §3A1.4(a) and (b) are applied. It is submitted

that it would be appropriate for this Honorable Court to determine this

issue and provide such guidance.

iii

Page

For U.S.S.G. §3A1.4(a) and (b) to apply, it is necessary that the Court

find that the offense is a felony that involved, or was intended to

promote, a federal crime of terrorism, which is defined in 18 U.S.C.A. §

2332b(g)(5) as follows: (5) the term “Federal crime of terrorism” means

an offense that-- (A) is calculated to influence or affect the conduct of

government by intimidation or coercion, or to retaliate against

government conduct; and (B) is a violation of—2339B (relating to

providing material support to terrorist organizations).

CONCLUSION …………………………………………………………………………...… 30

iv

INDEX OF APPENDICES

Decision of the United States Court of Appeals for the Eleventh Circuit,

United States v. Francisco Joseph Arcila Ramirez, Case No. 22-11190,

2023 WL 3477811 (May 16, 2023) ……………………………………………...…. A

Judgment of United States District Court for the Southern District of

Florida imposing sentence on remand United States of America v.

Francisco Joseph Arcila Ramirez, Case No. 19-CR-20036-JEM-1.

(April 7, 2022) …………………………………….………………………….……….. B

Order of the United States Court of Appeals for the Eleventh Circuit,

United States v. Francisco Joseph Arcila Ramirez, Case No. 22-11190,

Denying Rehearing and Rehearing En Banc (February 23, 2024) ……...….... C

Decision of the United States Court of Appeals for the Eleventh Circuit,

United States of America v. Francisco Joseph Arcila Ramirez, 16 F.4th

844 (11th Cir. 2021), Case No. 20-10564, (November 1, 2021) ………………... D

Judgment of United States District Court for the Southern District of

Florida imposing sentence United States of America v. Francisco

Joseph Arcila Ramirez, Case No. 19-CR-20036-JEM-1.

(January 29, 2020) ………………………………………………………………..…. E

Superseding Indictment ………………………………………………..…………... F

Transcript of Resentencing on Remand ……………………………………....…. G

v

TABLE OF AUTHORITIES

CASES:

Page

Holder v. Humanitarian Law Project,

561 U.S. 1, 130 S.Ct. 2705, 177 L.Ed.2d 355 (2010) …………………..…. 13, 14

United States v. Abu Khatallah,

314 F. Supp. 3d 179 (D.D.C. 2018) ……………………………………..……….. 17

United States v. Alhaggagi,

978 F.3d 693 (9th Cir. 2020) ………………………………………………..……. 23

United States v. Ansberry,

976 F.3d 1108 (10th Cir. 2020) ………………………………………….………. 23

United States v. Arcila Ramirez,

2023 WL 3477811 (May 16, 2023) ………………………………..………… ii, 1, 7

United States v. Arcila Ramirez,

16 F.4th 844 (11th Cir. 2021) ……………………………..……………… ii, 1, 6, 18

United States v. Arnaout,

431 F.3d 994 (7th Cir. 2005) ……………………………………..……………… 19

United States v. Awan,

607 F.3d 306 (2d Cir. 2010) ………………………………… 11, 16, 19, 22-25, 27

United States v. Chandia (Chandia I),

514 F.3d 365 (4th Cir. 2008) …………………………………… 10, 11, 14, 16, 26

United States v. Fidse,

862 F.3d 516 (5th Cir. 2017) ……………………………………….…… 19, 20, 26

United States v. Graham,

275 F.3d 490 (6th Cir. 2001) …………………………………….………….. 19, 20

United States v. Hassan,

742 F.3d 104 (4th Cir. 2014) ………………………………….…………….. 11, 23

vi

Page

United States v. Jayyousi,

657 F.3d 1085 (11th Cir. 2011) …………………………………..……… 20-22, 27

United States v. Mandhai,

375 F.3d 1243 (11th Cir. 2004) …………………………………….…… 19-21, 27

United States v. Mohamed,

757 F.3d 757 (8th Cir. 2014) …………………………………………….….. 11, 23

United States v. Parr,

545 F.3d 491 (7th Cir. 2008) ………………………………………….………… 10

United States v. Salim,

549 F.3d 67 (2d Cir. 2008) …………………………….………………………… 17

United States v. Stewart,

590 F.3d 93 (2d Cir. 2009) ………………………………..………… 11, 12, 14, 15

United States v. Tankersley,

537 F.3d 1100 (9th Cir. 2008) ……………………………..……………….. 10, 11

United States v. Van Haften,

881 F.3d 543 (7th Cir. 2018) …………………………………………………… 16

United States v. Wright,

747 F.3d 399 (6th Cir. 2014) ………………………….………………. 11, 19, 23

STATUTES AND RULES:

18 U.S.C. §§ 371 …………………………………………………………………………. 21

18 U.S.C. §956(a)(1) …………………………………………………………………….. 21

18 U.S.C. § 2332b(g)(5)(A) …………………………………… 10, 12, 14, 16, 17, 22-26

18 U.S.C. § 2332b(g)(5)(B) ………………………………….………… 10, 12, 20, 21, 26

18 U.S.C.A. § 2332b(g)(5) ………………………………...……… 2, 9-11, 19, 21, 22, 24

vii

Page

18 U.S.C. § 2339A ……………………………………………………………………… 21, 24

18 U.S.C. § 2339B …………………………………..…………………………………. 20, 22

18 U.S.C. §2339B(a)(1) …………………………………… i, 3, 4, 8-10, 12, 14, 18, 26, 30

18 U.S.C. §3742 ……………………………………………………………………………… 2

28 U.S.C. §1254(1) ……………………………………………………………………….….. 2

28 U.S.C. §1291 ……………………………………………………………………………… 2

Sup. Ct. R. 13.1 …………………………………………………………………………….… 2

Sup. Ct. R. Part III …………………………………………………………………….……. 2

SENTENCING GUIDELINES:

U.S.S.G., § 3A1.4(a) and (b) ………………………….. i, 3, 8, 9, 12, 14, 18-21, 25-27, 30

U.S.S.G. § 3A1.4 cmt. n.1 …………………………………………………….………… 3, 19

TREATISES AND OTHER AUTHORITIES:

Black’s Law Dictionary (11th ed. 2019) ………………………………………………… 23

Merriam-Webster Online Dictionary,

https://merriam-webster.com/dictionary/calculated ………………………….. 23

Oxford English Dictionary (2d ed. 1989) …………………………………………...….. 23

Random House Webster’s College Dictionary 1042 (2d ed. 1997) …………………. 19

Webster’s Third New International Dictionary Unabridged 315 (1986) ………….. 23

viii

IN THE

SUPREME COURT OF THE UNITED STATES

_________________

PETITION FOR WRIT OF CERTIORARI

__________________

Francisco Joseph Arcila Ramirez respectfully petitions the Supreme Court of the

United States for a writ of certiorari to review the judgment of the United States Court

of Appeals for the Eleventh Circuit, rendered and entered in case number 22-11190 in

that court on May 16, 2023, United States v. Francisco Joseph Arcila Ramirez, 2023

WL 3477811 (11th Cir. 2016), reh’g and reh’g en banc denied on February 23, 2024,

which affirmed the judgment and commitment of the United States District Court

for the Southern District of Florida.

OPINIONS BELOW

A copy of the decision of the United States Court of Appeals for the Eleventh

Circuit, which affirmed the judgment and commitment of the United States

District Court for the Southern District of Florida, is contained in the Appendix at

“A.” (This opinion was not published, however can be found at 2023 WL 3477811

(May 16, 2023).

A copy of the Order denying rehearing and rehearing en banc is contained in

the Appendix at “C.”

A copy of the prior decision of the United States Court of Appeals for the

Eleventh Circuit which vacated and remanded the original Judgment entered in the

United States District Court for the Southern District of Florida is contained in the

Appendix at “D.” (This opinion was published and can be found at United States of

1

America v. Francisco Joseph Arcila Ramirez, 16 F.4th 844 (11th Cir. 2021), (November

1, 2021).

STATEMENT OF JURISDICTION

Jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1) and Part III of

the Rules of the Supreme Court of the United States. The decision of the Court of

Appeals denying the timely-filed petition for rehearing and rehearing en banc was

entered on February 23, 2024. This petition is timely-filed pursuant to Sup. Ct. R.

13.1.

The district court had jurisdiction because petitioner was charged with violating

federal criminal laws. The Court of Appeals had jurisdiction pursuant to 28 U.S.C.

§1291 and 18 U.S.C. §3742, which provide that Courts of Appeals shall have appellate

jurisdiction of all final decisions of United States District Courts.

STATUTORY AND RULES PROVISIONS INVOLVED

18 U.S.C.A. § 2332b(g)(5)

§ 2332b. Acts of terrorism transcending national boundaries

(g) Definitions.--As used in this section—

*******************************************

(5) the term “Federal crime of terrorism” means an offense that-(A) is calculated to influence or affect the conduct of government by

intimidation or coercion, or to retaliate against government conduct; and

(B) is a violation of—

*******************************************

… 2339B (relating to providing material support to terrorist

organizations) ……..;

_____________________________________________________

2

18 U.S.C.A. §2339B(a)(1)

Providing Material Support to a Designated Foreign Terrorist Organization

(a) Prohibited activities.—

(1) Unlawful conduct.--Whoever knowingly provides material support or

resources to a foreign terrorist organization, or attempts or conspires to

do so, shall be fined under this title or imprisoned not more than 20

years, or both, and, if the death of any person results, shall be

imprisoned for any term of years or for life. To violate this paragraph, a

person must have knowledge that the organization is a designated

terrorist organization (as defined in subsection (g)(6)), that the

organization has engaged or engages in terrorist activity (as defined in

section 212(a)(3)(B) of the Immigration and Nationality Act), or that the

organization has engaged or engages in terrorism (as defined in section

140(d)(2) of the Foreign Relations Authorization Act, Fiscal Years 1988

and 1989).

_____________________________________________________

U.S.S.G., § 3A1.4, 18 U.S.C.A.

§ 3A1.4. Terrorism

(a) If the offense is a felony that involved, or was intended to promote,

a federal crime of terrorism, increase by 12 levels; but if the resulting

offense level is less than level 32, increase to level 32.

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

Chapter Four (Criminal History and Criminal Livelihood) shall be

Category VI.

Application Notes:

1. “Federal Crime of Terrorism” Defined.--For purposes of this guideline,

“federal crime of terrorism” has the meaning given that term in 18

U.S.C. § 2332b(g)(5).

_____________________________________________________

3

STATEMENT OF THE CASE

A.

District Court Proceedings.

The Government filed a Superseding Indictment in the District Court, which

in pertinent part charged Arcila-Ramirez with Providing Material Support to a

Designated Foreign Terrorist Organization, in violation of Title 18, United States

Code, Section 2339B(a)(1). [Pet. Appx. F]

Subsequently, Arcila-Ramirez pled guilty to the charge of providing material

support to a foreign terrorist organization that is, the National Liberation Army

(“ELN”), in violation of 18 U.S.C. §2339B(a)(1).

Arcila-Ramirez’ guilty plea was based on a Factual Proffer that set forth the

relevant facts as follows:

Beginning no later than August 16, 2018, and continuing until on or about

January 11, 2019, in Miami-Dade County, in the Southern of Florida, and elsewhere,

the defendant knowingly provided material support to a foreign terrorist

organization, that is, the National Liberation Army (the “ELN”), knowing that the

organization has engaged in, or engages in, terrorist activity or terrorism.

More specifically, on August 16, 2018, the defendant instructed two persons,

J.S. and G.O., to purchase six (6) firearms in Miami-Dade County, in the Southern

District of Florida, on the defendant’s behalf. These firearms included the following:

four (4) Draco 7.62mm caliber AK-style pistols and two (2) Zastava M92 7.62mm AKstyle pistols. These firearms were then concealed in Husky air-compressors

purchased by the defendant at a Home Depot in Miami-Dade County and shipped to

4

Barranquilla, Colombia. This shipment also contained approximately one hundred

(100) AK-47 ammunition magazines that were also concealed inside the aircompressors.

On August 31, 2018, the defendant took a flight from Miami, Florida to

Barranquilla, Colombia to broker the sale of the aforementioned six (6) firearms and

AK-47 magazines.

On September 5, 2018, the defendant attended a meeting at a restaurant in

Santa Marta, Colombia, where he met with Conspirator-1, a weapons broker, and a

female accomplice to discuss the sale of the six (6) firearms to Conspirator-1. At that

time, the defendant knew Conspirator-1 was a weapons broker for the ELN and other

criminal and paramilitary groups. In addition to agreeing to the sale of the six (6)

firearms to Conspirator-1 for the ELN, the defendant and Conspirator-1 further

discussed the defendant selling other items, to include firearm magazines and

firearm components to Conspirator-1 in the coming months. At the conclusion of this

meeting, Conspirator-1 provided approximately sixty (60) million Colombian pesos to

purchase the firearms.

Between September 7, 2018 and September 11, 2018, the six (6) firearms were

extracted from the Husky air-compressors at a hidden location in Barranquilla,

Colombia and loaded onto a truck, where they were then transferred to a farmhouse

in the jungles of Cucuta, Colombia near the Venezuelan border. The area where the

six (6) firearms were delivered is an area that is under the control and operational

authority of the ELN.

5

On September 11, 2018, the defendant departed Barranquilla, Colombia for

Miami, Florida, where he declared $26,567.00 USD during his entry into Miami

International Airport, falsely claiming the currency was related to the “sale of cars”

in Colombia, when, in fact, most of the money in his possession was instead related

to the aforementioned sale of firearms to Conspirator-1 and the ELN.

Prior to the sentencing hearing, the United States Probation Office filed its

Presentence Investigation Report, therein including the terrorism enhancement

provided for in U.S.S.G. §3A1.4(a) and (b), to wit: a twelve (12) level increase in the

guideline calculation and a criminal history category of VI.

The sentencing hearing was held on January 28, 2020 before the United States

District Court Judge Jose E. Martinez, at which time the District Court applied the

terrorism enhancement and Arcila-Ramirez was sentenced to two hundred forty (240)

months imprisonment and three (3) years supervised release. The Judgment was

entered on January 29, 2020. [Pet. Appx. E]

Arcila-Ramirez appealed his sentence to the Eleventh Circuit Court of Appeals

(11th Cir. Case No. 20-10564).

On November 1, 2021, the Eleventh Circuit Court of Appeals vacated ArcilaRamirez’ sentence and remanded the case for resentencing and fact finding inasmuch

as the trial judge had failed to make the required “calculated” or “specific intent”

findings, and therefore had erred in applying the U.S.S.G. §3A1.4’s terrorism

enhancement. (United States v. Francisco Joseph Arcila Ramirez, 16 F.4th 844 (11th

Cir. 2021). [Pet. Appx. D]

6

A resentencing hearing was held in the District Court on April 6, 2022, at

which time the court again applied the terrorism enhancement and again sentenced

Arcila-Ramirez to two hundred forty (240) months’ imprisonment and three (3) years

supervised release. [Pet. Appx. B]

Arcila-Ramirez filed his timely Notice of Appeal to the Eleventh Circuit Court

of Appeals (11th Cir. Case No. 22-11190).

B.

Court of Appeals Proceedings

On May 16, 2023, the United States Court of Appeals for the Eleventh Circuit

entered its per curiam opinion affirming the District Court Judgment entered after

the resentencing. (United States v. Francisco Joseph Arcila Ramirez, 2023 WL

3477811 (11th Cir. 2023). [Pet. Appx. A]

On June 26, 2023, Arcila-Ramirez filed his Petition for Rehearing En Banc. 1

On February 23, 2024, the Court of Appeals denied Arcila-Ramirez’ Petition for

Rehearing En Banc, therein treating his petition as a petition for rehearing as well.

[Pet. Appx. C]

This timely Petition for Writ of Certiorari follows.

The Eleventh Circuit Court of Appeals had granted a motion for extension of time to

file the Petition for Rehearing En Banc up to and including June 27, 2023.

1

7

REASONS FOR GRANTING THE WRIT

In every case brought by the United States of America when someone has been

convicted or has pled guilty to the offense of providing material support to a

foreign terrorist organization, in violation of 18 U.S.C. §2339B(a)(1), the

question arises as to whether or not to apply the very harsh terrorism

enhancements provided for in U.S.S.G. §3A1.4(a) and (b). Therefore, lower

courts are in need of guidance as to what findings and prerequisites must be

present before the terrorism enhancements provided for in U.S.S.G. §3A1.4(a)

and (b) are applied.

It is submitted that there are compelling reasons for this Honorable Court to

exercise its discretionary authority, since the issue raised herein has application to

all individuals who have been convicted or have pled guilty to the offense of

providing material support to a foreign terrorist organization, in violation of 18

U.S.C. §2339B(a)(1). In other words, the issue has great importance beyond the

particular facts and parties involved.

Additionally, lower courts are in need of guidance as to what findings and

prerequisites must be present before the terrorism enhancements provided for in

U.S.S.G. §3A1.4(a) and (b) are applied, and this case is a good vehicle through which

to provide such guidance.

In this case, Arcila-Ramirez had neither the specific intent to commit a crime

that was calculated to influence, affect, or retaliate against a government, nor did he

have the intent to promote another‘s federal crime of terrorism. He was only

interested in selling firearms to make money, even perhaps knowing that some of the

firearms may end up in the hands of a Colombian terrorist organization. Further,

there was no evidence that Arcila-Ramirez intended to promote any plan by the ELN

(terrorist organization) to commit a politically-motivated crime of terrorism. This is

8

underscored in-part by the fact that he never had any direct contact with the ELN

and only dealt with a Colombian firearms broker who had contacts within the ELN.

The key term, “a federal crime of terrorism,” is defined to consist of two

elements: (1) the commission of one of a list of specified felonies, which includes the

material support offense at issue in this case, and (2) a specific intent requirement,

namely, that the underlying felony was “calculated to influence or affect the conduct

of government by intimidation or coercion, or to retaliate against government

conduct.” 18 U.S.C. §2332b(g)(5).

In this case it is quite clear that Arcila-Ramirez, when he committed the

offense of providing material support to a foreign terrorist organization, in violation

of 18 U.S.C. §2339B(a)(1), did not have the specific intent to influence or affect the

conduct of government by intimidation or coercion, or to retaliate against government

conduct. Therefore, by definition, his offense was not a felony that involved, or was

intended to promote, “a federal crime of terrorism,” and the twelve (12) level

enhancement should not have been applied in this instance, nor should he have

received a category VI criminal history designation.

I. Distinguishing the terrorism enhancement from the elements of the underlying

crime.

The terrorism enhancement, U.S.S.G. § 3A1.4, imposes a significantly harsher

punishment

on

those

who

commit

certain

types

of

crimes

of terrorism.

The enhancement increases a defendant's offense level to a minimum of 32 and

designates a defendant's criminal history category as Category VI, regardless of

whether the defendant has previously committed a crime. U.S.S.G. § 3A1.4. To

9

trigger this enhancement, the government must prove elements distinct from those

of the crime of conviction. Specifically, that the offense that was committed “involved,

or was intended to promote, a federal crime of terrorism.” Id.

The term “federal crime of terrorism” is defined as “an offense that is ...

calculated to influence or affect the conduct of government by intimidation or

coercion, or to retaliate against government conduct,” 18 U.S.C. § 2332b(g)(5)(A), and

that “is a violation of” certain enumerated statutes, 18 U.S.C. § 2332b(g)(5)(B). Both

parts of § 2332b(g)(5) must be satisfied for there to be a “federal crime of terrorism”

and to make the enhancement apply. See United States v. Tankersley, 537 F.3d 1100,

1113 (9th Cir. 2008); United States v. Parr, 545 F.3d 491, 504 (7th Cir. 2008).

The material support statute, by contrast, requires proof that a defendant

attempted to, conspired to, or did provide “material support or resources to a foreign

terrorist organization,” knowing “that the organization is a designated terrorist

organization” or “that the organization has engaged or engages in terrorism.” 18

U.S.C. § 2339B(a)(1). It is possible for a defendant to provide material support to a

terrorist group in violation of 18 U.S.C. § 2339B(a)(1) without intending that the

support or resources would influence, affect, or retaliate against government conduct

to satisfy the first prong of the definition of federal crime of terrorism. See,

e.g., United States v. Chandia (Chandia I), 514 F.3d 365, 376 (4th Cir. 2008).

The enhancement, therefore, does not automatically apply to all material

support offenses. Congress created this distinction in order to punish certain

dangerous terrorists more severely than persons who committed non-violent

10

crimes. See Tankersley, 537 F.3d at 1113. Thus, to warrant a substantial increase in

punishment pursuant to the terrorism enhancement, a defendant must have the

requisite intent necessary to satisfy the definition of “federal crime of terrorism,”

beyond the intent required to establish a violation of the material support statute.

II. The terrorism enhancement requires examining the specific intent with respect

to the offense of conviction.

Various

circuits

that

have

addressed

the

issue,

have

held

that §2332b(g)(5)(A) imposes a specific intent requirement. See, e.g., United States v.

Hassan, 742 F.3d 104, 148–49 (4th Cir. 2014); United States v. Wright, 747 F.3d 399,

408 (6th Cir. 2014); United States v. Mohamed, 757 F.3d 757, 760 (8th Cir.

2014); United States v. Stewart, 590 F.3d 93, 138 (2d Cir. 2009) (“[C]omission of a

federal

crime

of terrorism ...

incorporates

a

specific

intent

requirement.”)

(quoting Chandia I, 514 F.3d at 376 ). Arcila-Ramirez agrees with this interpretation

of § 2332b(g)(5) and the reasoning of the various circuits in adopting it. As the Second

Circuit explained, § 2332b(g)(5) “does not require proof of a defendant's particular

motive,” which is “concerned with the rationale for an actor's particular

conduct.” United States v. Awan, 607 F.3d 306, 317 (2d Cir. 2010). Rather,

“‘[c]alculation’ is concerned with the object that the actor seeks to achieve through

planning or contrivance.” Id. The appropriate focus thus is not “on the defendant, but

on his ‘offense,’ asking whether it was calculated, i.e., planned—for whatever reason

or motive—to achieve the stated object.” Id. In other words, 2332b(g)(5) “is better

understood as imposing a requirement ‘that the underlying felony [be] calculated to

influence or affect the conduct of government by intimidation or coercion, or to

11

retaliate against government conduct.’ ” Id. (quoting Stewart, 590 F.3d at 138).

Stated another way, it is required that the underlying offense—the offense

that violates one of the enumerated crimes in the second prong—be calculated to

influence or affect government conduct. See 18 U.S.C. § 2332b(g)(5)(A). Thus, in

determining whether the terrorism enhancement applies here, the court must

analyze whether Arcila-Ramirez provided material support with the specific intent of

influencing or affecting government conduct. See 18 U.S.C. § 2332b(g)(5)(A).

Now we shall consider whether the evidence supported a finding that ArcilaRamirez’ conduct met the definition of a federal crime of terrorism required

for §3A1.4 to apply.

III. The terrorism enhancement does not apply in this case.

It is undisputed that Arcila-Ramirez’ conviction satisfies the second prong of

the definition of federal crime of terrorism. The crime of conviction here—providing

material support in violation of 18 U.S.C. § 2339B(a)(1)—is one of the enumerated

statutes in 18 U.S.C. § 2332b(g)(5)(B).

The remaining question is whether Arcila-Ramirez’ conduct satisfies the first

prong: whether his providing material support to a terrorist organization by selling

firearms to a Colombian firearms broker who had among his customers a Colombian

terrorist organization was “calculated to influence or affect the conduct of government

by intimidation or coercion, or to retaliate against government conduct.” 18 U.S.C. §

2332b(g)(5)(A).

It was the Government's burden to prove that element by a

preponderance of the evidence.

12

It is respectfully submitted that the District Court erred in applying

the terrorism enhancement because it centered its analysis on the ELN (the terrorist

organization), not on Arcila-Ramirez’ conduct or specific intent in committing the

charged offense. It is Arcila-Ramirez’ position that it was required that the District

Court consider the latter, whereas the offense itself implicates the former.

Specifically, Arcila-Ramirez argues in-part that because the District Court failed to

determine whether he knew how the firearms sold to the Colombian firearms broker

were to be used, it could not find that he specifically intended that the firearms would

be used to coerce or intimidate a government.

A. Calculated to influence or affect the conduct of government by intimidation or

coercion.

Arcila-Ramirez pled guilty to providing material support to a terrorist

organization. His offense conduct involved in-part the selling of firearms to a

Colombian firearms broker who had among his customers a Colombian terrorist

organization (the ELN).

The District Court concluded that this conduct was

calculated to influence or affect government conduct by intimidation or coercion

because Arcila-Ramirez had “expressed his motives or his knowledge in the factual

proffer in support of the plea agreement, and that the circumstantial evidence in this

case is far beyond a preponderance of the evidence.”

The District Court's logic holds true in the broadest sense—any support given

to a terrorist organization ultimately inures to the benefit of its terrorist

purposes. See Holder v. Humanitarian Law Project, 561 U.S. 1, 29, 130 S.Ct. 2705,

177 L.Ed.2d 355 (2010). However, it is submitted that this reasoning misses the

13

mark in the context of the terrorism enhancement because it fails to properly

differentiate between the intent required to sustain a material support conviction

pursuant

to 18

U.S.C.

§

2339B(a)(1) and

the

intent

required

to

trigger

the terrorism enhancement pursuant to U.S.S.G. § 3A1.4.

As explained above, the material support statute requires only that the

defendant have “knowledge of the foreign group's designation as a terrorist

organization or the group's commission of terrorist acts.” Id. at 12, 130 S.Ct.

2705. U.S.S.G. Section 3A1.4, in contrast, requires the defendant's specific intent

that the offense “influence or affect the conduct of government by intimidation or

coercion.” 18 U.S.C. § 2332b(g)(5)(A).

In cases involving violent acts of terrorism, specific intent is relatively easy to

identify, either from the statements or admissions of the defendant or the nature of

the offense. But, where the conduct underlying the conviction does not involve violent

terrorist acts, as is true in many material support cases, those “acts cannot, standing

alone, support application of the terrorism enhancement.” Chandia I, 514 F.3d at

376. In such cases, evidence beyond the facts underlying the offense conduct must

reflect that the defendant had the enhancement's requisite intent.

The Second Circuit's decision in United States v. Stewart is instructive. 590

F.3d at 93. In Stewart, defendant Mohammed Yousry served as a translator between

a convicted terrorist and his legal team. Some of these translated messages concerned

the terrorist's support for the termination of a cease-fire and a return to violence

between al-Gama'a, a terrorist organization in Egypt, and the Egyptian

14

government. Id. at 103–07. Yousry was ultimately convicted of providing and

concealing material support to that conspiracy in violation of 18 U.S.C. §

2339A. Id. at

108.

The

district

court,

however,

did

not

apply

the terrorism enhancement to Yousry's conviction, finding that “he did not act with

the requisite state of mind.” Id. at 136. On appeal, the Second Circuit agreed. Id. at

136–37. The court held that, despite Yousry's proximity to the messaging scheme and

the scheme's role in benefiting al-Gama'a, the government failed to show that Yousry

sought to influence or affect the conduct of government. Id. at 138.

Similarly, Arcila-Ramirez’ actions—even though selling of firearms to a

Colombian firearms broker who had among his customers a Colombian terrorist

organization may ultimately inure to the benefit of the ELN and its terrorist purpose

in the long run—such is not accompanied by the necessary mental state to trigger

the enhancement. In this instance, the District Court abused its discretion in

concluding otherwise.

The District Court's conclusion rests on the erroneous assumption that when

Arcila-Ramirez sold firearms to the Colombian firearms broker in this instance, he

necessarily understood and intended that the sale of those firearms was to bolster

support for ELN terrorist attacks on government. Unlike conspiring to bomb a federal

facility, planning to blow up electrical sites, attempting to bomb a bridge, or

firebombing a courthouse—all of which have triggered the enhancement— selling of

firearms to a Colombian firearms broker who had among his customers a Colombian

terrorist organization does not inherently or unequivocally constitute conduct

15

motivated to “affect or influence” a “government by intimidation or coercion.” 18

U.S.C. § 2332b(g)(5)(A). In other words, one can sell firearms without knowing how

those firearms will be used; whereas it is difficult to imagine someone bombing a

government building without knowing that bombing would influence or affect

government conduct.

The District Court's “cause and effect” reasoning is insufficient because the

cause—selling firearms—and the effect—influencing government conduct by

intimidation or coercion—are much too attenuated to warrant the automatic

triggering of the enhancement. Instead, to properly apply the enhancement, the

District Court had to determine that Arcila-Ramirez knew the firearms would

ultimately be used to intimidate or coerce government conduct and that he had that

specific intent. See Awan, 607 F.3d at 317–18; Chandia I, 514 F.3d at 376.

In the case at bar, the District Court did not make sufficient factual findings

concerning Arcila-Ramirez’ knowledge of how the firearms that he sold were to be

ultimately used, nor were there any facts upon which to base a conclusion that he had

the specific intent to intimidate or coerce government conduct.

B. Calculated to retaliate against government conduct.

Further, Arcila-Ramirez disputes any conclusion that in selling of firearms to

a Colombian firearms broker who had among his customers a Colombian terrorist

organization, he had the specific intent to retaliate against government conduct.

Cases applying the retaliation prong rely on evidence that the defendant

intended to respond to specific government action. For example, in United States v.

16

Van Haften, 881 F.3d 543 (7th Cir. 2018), the defendant, a registered sex offender,

was apprehended while travelling to Turkey to try to join ISIS. His Facebook posts

and notes reflected his belief that the United States government had ruined his life

by placing him on the sex offender registry. Id. at 544–45. The district court

concluded that he “sought to join ISIS, at least in part, because he wanted to retaliate

against the government for its treatment of Muslims in general and specifically for

its treatment of [the defendant] as a designated sex offender.” Id. at 544. See

also United States v. Salim, 549 F.3d 67, 76–77 (2d Cir. 2008) (finding the retaliation

prong satisfied where the defendant's attack “was in retaliation for judicial conduct

denying [the d]efendant's applications or substitution of counsel”); United States v.

Abu Khatallah, 314 F. Supp. 3d 179, 198 (D.D.C. 2018) (finding that the defendant

“joined the attack [on the U.S. Special Mission in Benghazi] in order to retaliate

against the U.S. government for its presence in Libya.”).

While providing support to terrorist groups inevitably strengthens their ability

to retaliate against government conduct, it is not enough that such support will

generally “lead[ ] to” more acts of terrorism. That reasoning does not distinguish

between conduct that satisfies the material support statute and the specific intent

required

to

establish

calculated

retaliation

for

purposes

of

the terrorism enhancement. One should look to whether the offense itself is

“calculated ... to retaliate against government conduct.” 18 U.S.C. § 2332b(g)(5)(A).

In this case there was no evidence whatsoever that Arcila-Ramirez sought revenge

on any particular government or for any specific government conduct.

17

Although it is true that Arcila-Ramirz entered his plea of guilty to the charge

of providing material support to a foreign terrorist organization in violation of 18

U.S.C. §2339B(a)(1), it is submitted that this fact does not per se or automatically

invoke the extraordinarily harsh “Terrorism Enhancement,” that provides for a

twelve (12) level guideline increase and a criminal history category of VI (U.S.S.G.

§3A1.4(a) and (b)).

In United States v. Arcila Ramirez, 16 F.4th 844 (11th Cir. 2021), the first time

this case was before the Eleventh Circuit, that court analyzed the issue at hand, and

concluded that the trial court had erred in imposing the “Terrorism Enhancement,”

when it failed to make the required “findings” as to whether Arcila-Ramirez’ actions

were calculated (i.e., intended) to influence, affect, coerce, intimidate, or retaliate

against a government, and erred when the court failed to make any findings as to

whether Arcila-Ramirez had the specific intent to do so.

U.S.S.G. §3A1.4(a) provides that the terrorism enhancement applies if the

defendant’s “offense is a felony that involved, or was intended to promote, a federal

crime of terrorism.” (Emphasis supplied.) U.S.S.G. § 3A1.4(a). The structure of §3A1.4

establishes two separate bases for applying the enhancement: (1) when the

defendant’s offense “involved” a federal terrorism crime; or alternatively, (2) when

his offense was “intended to promote” a federal terrorism crime. (Emphasis supplied.)

In this case, the key terms are “involved” and “a federal crime of terrorism.”

In examining the “involved” question the Eleventh Circuit noted that it had

already concluded that the term “involved” in this guideline “means to ‘include.’ ”

18

United States v. Mandhai, 375 F.3d 1243, 1247-48 (11th Cir. 2004) (citing United

States v. Graham, 275 F.3d 490, 516 (6th Cir. 2001)); see also United States v.

Arnaout, 431 F.3d 994, 1001 (7th Cir. 2005) (“The ordinary and plain meaning of

‘involved’ means ‘to include.’ ”) (citing Random House Webster’s College Dictionary

1042 (2d ed. 1997)). As the Fifth Circuit explained, an offense “involved” a federal

crime of terrorism if the crime of conviction itself is a federal crime of terrorism or if

the relevant conduct includes such a crime. United States v. Fidse, 862 F.3d 516, 522

(5th Cir. 2017).

Similarly, the Second Circuit concluded that “a defendant’s offense ‘involves’ a

federal crime of terrorism when his offense includes such a crime, i.e., the defendant

committed, attempted, or conspired to commit a federal crime of terrorism ... or his

relevant conduct includes such a crime.” United States v. Awan, 607 F.3d 306, 31314 (2d Cir. 2010); see also United States v. Wright, 747 F.3d 399, 407 (6th Cir. 2014)

(stating “the terrorism enhancement can be applied to inchoate offenses, such as

attempt and conspiracy”); Graham, 275 F.3d at 516 (same).

The Eleventh Circuit noted that as to the other key term, a ‘federal crime of

terrorism,’ the application notes to §3A1.4 state that “[f]or purposes of this guideline,

‘federal crime of terrorism’ has the meaning given that term in 18 U.S.C. §

2332b(g)(5).” U.S.S.G. § 3A1.4 cmt. n.1.

Title 18 U.S.C. § 2332b(g)(5) provides that a “[f]ederal crime of terrorism”

means “an offense that”:

(1) “is calculated to influence or affect the conduct of government by intimidation or

19

coercion, or to retaliate against government conduct,” (Emphasis supplied.) and

(2) “is a violation of” one of the criminal statutes listed in § 2332b(g)(5)(B).

18 U.S.C. § 2332b(g)(5)(A)-(B). This definition is written in the conjunctive, and both

prongs must be satisfied. Fidse, 862 F.3d at 524 & n.6; Graham, 275 F.3d at 514.

Since Arcila Ramirez’s statute of conviction, 18 U.S.C. § 2339B, is one of the

listed statutes and therefore satisfied the “involved” prong, the next question is

whether Arcila Ramirez’s offense or relevant conduct was calculated to influence or

affect the conduct of government by intimidation or coercion, or to retaliate against

government conduct.

The Eleventh Circuit examined its prior precedent, noting that this circuit has

affirmed U.S.S.G. § 3A1.4(a) terrorism enhancements in two previous decisions. See

United States v. Mandhai, 375 F.3d 1243 (11th Cir. 2004); United States v. Jayyousi,

657 F.3d 1085 (11th Cir. 2011).

The Mandhai Court also discussed the first prong of the definition of a “federal

crime of terrorism,” which is an offense “calculated to influence or affect the conduct

of government by intimidation or coercion or to retaliate against government

conduct.” Id.

In that case the court concluded there was substantial evidence

supporting the district court’s fact finding that the object of Mandhai’s crime—

destroying buildings by fire or explosives—was to influence or affect government

conduct, or to retaliate against past government action. Id. The Court emphasized

that “the terrorism enhancement does not hinge upon a defendant’s ability to carry

out specific terrorist crimes or the degree of separation from their actual

20

implementation.” Id. Rather, the terrorism enhancement applied “even though the

record reflects that Mandhai lacked both the means and the ability to carry out” the

planned bombing without help “that was not present.” Id.

In Jayyousi, the defendants were convicted of: (1) conspiring in the United

States to murder, kidnap, or maim persons overseas, in violation of 18 U.S.C.

§956(a)(1); (2) conspiring to provide material support, knowing or intending that they

would be used in carrying out a conspiracy to murder, kidnap, or maim overseas, in

violation of 18 U.S.C. §§ 371 and 2339A; and (3) a substantive 18 U.S.C. § 2339A

offense. 657 F.3d at 1091-92. The trial evidence showed that the defendants, while

ostensibly engaged in charitable fundraising in a Muslim community in Florida,

were, in fact, operating a “support cell” that sent funds, recruits, and equipment

overseas to terrorist groups seeking to create Islamic states through violent jihad

against secular governments. Id. at 1092-1101.

On appeal, the two defendants challenged the district court’s application of

U.S.S.G. § 3A1.4’s terrorism enhancement. Id. at 1114. The district court examined

both prongs of § 2332b(g)(5)’s definition of a “federal crime of terrorism.” Id. at 111415. It determined that the defendants’ crimes were listed in § 2332b(g)(5)(B). Id. at

1115. The district court then explicitly found that “the defendants’ activities were

calculated to influence, affect, or retaliate against government conduct.” Id. at 1114.

As to this fact finding, ample trial evidence established that the defendants “wished

to impose Sharia throughout the Middle East and remove government in the process.”

Id. at 1115. The district court reasoned (1) that the indictment charged that the object

21

of the conspiracy was to advance violent jihad and to commit acts of murder and

maiming for the purpose of opposing existing governments, and (2) thus there was

(within the jury’s verdict) “a finding that the defendants’ actions were intended to

bring about the downfall of governments that were not Islamic or not Islamic

enough.” Id. at 1114-15.

On appeal, the defendants argued that “their benign motive” was to “assist[ ]

the oppressed Muslims” in other countries with humanitarian aid and therefore their

conduct “was not calculated to influence or affect the conduct of any [foreign]

government.” Id. at 1114.

The Eleventh Circuit affirmed the terrorism enhancement. Id. at 1115. As to

§2332b(g)(5)(A)’s requirement that the defendants’ offenses be “calculated” to

influence or affect government conduct, “[t]he record demonstrate[d] that the

defendants’ support activities were intended to displace ‘infidel’ governments that

opposed radical Islamist goals.” Id. The trial evidence included the defendants’

statements “about their desire to impose Sharia, toppling existing governments in

the process.” Id. The Eleventh Circuit emphasized that “what the [defendants’]

activity was calculated to accomplish” was relevant, not “the defendants’ claimed

motivation behind it ....” Id. The defendants’ personal motive “is simply not relevant.”

Id. (quoting Awan, 607 F.3d at 317).

In examining whether Arcila Ramirez’s 18 U.S.C. § 2339B material support

offense is a “federal crime of terrorism” as defined by 18 U.S.C. § 2332b(g)(5) and was

“calculated” to influence, affect, intimidate, or retaliate against government conduct,

22

the Eleventh Circuit went on to explain the meaning of the term “calculated” in the

statutory sense, citing accepted dictionary definitions. See 18 U.S.C. § 2332b(g)(5)(A).

The ordinary and plain meaning of “calculated” is planned to accomplish a purpose

or intended. See Calculated, Merriam-Webster Online Dictionary, https://merriamwebster.com/dictionary/calculated (last visited Oct. 21, 2021) (“Planned or contrived

to accomplish a purpose; Deliberate, intended.”); Calculated, Black’s Law Dictionary

(11th ed. 2019) (“Planned so as to achieve a specific purpose; deliberate.”); Calculate,

Oxford English Dictionary (2d ed. 1989) (“To plan or devise with forethought; to think

out; to frame.”). “[C]alculated” means “planned—for whatever reason or motive—to

achieve the stated object.” United States v. Awan, 607 F.3d 306, 317 (2d Cir. 2010).

“‘Calculation’ is concerned with the object that the [defendant] seeks to achieve

through planning or contrivance.” Id. (citing Calculated, Webster’s Third New

International Dictionary Unabridged 315 (1986)).

The Eleventh Circuit then observed that other circuits have read the phrase

“calculated to” as creating something akin to, or closely resembling, “a specific intent”

requirement. See United States v. Alhaggagi, 978 F.3d 693, 699-700 (9th Cir. 2020);

United States v. Ansberry, 976 F.3d 1108, 1127-28 (10th Cir. 2020); United States v.

Mohamed, 757 F.3d 757, 759-60 (8th Cir. 2014); United States v. Wright, 747 F.3d

399, 408-09 (6th Cir. 2014); United States v. Hassan, 742 F.3d 104, 148 (4th Cir.

2014); Awan, 607 F.3d at 317.

The Eleventh Circuit found the Second Circuit’s Awan decision regarding the

term “calculated” to be instructive. Defendant Awan was convicted of, inter alia,

23

conspiring to provide, and providing, material support (funds) to the KCF, a Sikh

terrorist organization in India, in violation of 18 U.S.C. § 2339A. Awan, 607 F.3d at

309-10. The district court found that there was insufficient evidence that the

defendant’s conduct was “calculated” to influence or affect the conduct of government

or to retaliate against government conduct under § 2332b(g)(5)(A). Id. at 312, 316.

The district court had reasoned that it would be “speculative to conclude that the

defendant ... was motivated by a desire to influence the policies of the Indian

government or retaliate for some unspecified wrong.” Id. at 316. Instead, the district

court made a fact finding that the defendant’s motive in providing the funds to the

KCF was “the prestige or potential influence he obtained by associating with [the

KCF’s leader] and with the Pakistani intelligence services.” Id.

In vacating the denial of the terrorism enhancement, the Second Circuit held,

inter alia, that § 2332b(g)(5) does not require the government to prove the defendant’s

motive for committing the crime of conviction. Id. at 313. The Second Circuit

explained that the word “ ‘[c]alculation’ is concerned with the object the actor seeks

to achieve through planning and contrivance,” rather than with the actor’s particular

motive. Id. at 317. The proper focus of the “calculation element” of § 2332b(g)(5)(A) is

not “on the defendant but on his ‘offense,’ asking whether it was ‘calculated,’ i.e.,

planned—for whatever reason or motive—to achieve the stated object.” Id. The

Second Circuit explained that “a person may intend and may commit an offense that

is so calculated even if influencing or retaliating against government is not his

personal motivation.” Id.

24

As to Awan’s offense, the Second Circuit observed that “there [was] little doubt

that Awan (1) knew that the objective of [the KCF’s leader] and the KCF was to

influence the Indian government through violence, and (2) knew that the money he

provided to the KCF would be used toward that end.” (Emphasis supplied.) Id. The

Second Circuit acknowledged that Awan “may have been motivated, as the district

court found, by a desire for ... prestige and potential influence.” Id. It concluded,

however, that “the government could still prove that Awan’s offenses themselves were

calculated to influence ... the conduct of government ... even if [Awan] lacked a specific

political motive for committing them.” Id. (quotation marks omitted).

Without deciding the issue, the Second Circuit indicated that “if the evidence

showed that Awan engaged in criminal conduct with knowledge that confederates

solicited his actions to effectuate politically motivated bombings in India, or

homicidal attacks on the country’s security forces or its political leaders, such proof

could demonstrate that Awan’s crimes were calculated to influence the conduct of

government even if he was not personally motivated by that object.” Id. at 317-18.

The Second Circuit remanded for the district court to reconsider whether the evidence

supported the terrorism enhancement. Id. at 318.

With that background, the

Eleventh Circuit then turned to Arcila Ramirez’ case.

The Eleventh Circuit specifically stated that it agreed with Awan and their

other sister circuits, that “calculated” imposes an intent requirement. For U.S.S.G. §

3A1.4 to apply, the Government must satisfy the “calculated” prong of

§2332b(g)(5)(A). To do that, the Government must show that the Defendant’s offense

25

was planned to influence, affect, or retaliate against government conduct, even if that

was not the defendant’s personal motive. (Emphasis supplied.)

The Eleventh Circuit then observed what had happened, or did not happen, in

Arcila Ramirez’ first sentencing hearing with regard to the imposition of the

“Terrorism Enhancement.”

Specifically, the court noted that the district court made no fact findings as to

the § 3A1.4 enhancement. Rather, the district court appeared to believe the mere

fact that Arcila Ramirez had pled guilty to knowingly providing material support to

a known foreign terrorist organization per se triggered the terrorism enhancement.

The Eleventh Circuit repeated that Arcila Ramirez’s § 2339B(a)(1) offense—

providing material support to a foreign terrorist organization—requires that he know

that the ELN is a designated foreign terrorist organization and that the ELN has

engaged in or engages in terrorism or terrorist activity. See 18 U.S.C. § 2339B(a)(1).

But §2339B(a)(1) does not contain the additional requirement found in

§2332b(g)(5)(A), that the defendant’s offense be “calculated” (i.e., planned or

intended) to influence, affect, or retaliate against government conduct. Rather, it is

only the definition of a “federal crime of terrorism” in § 2332b(g)(5)(A) that requires

the defendant’s offense be so “calculated.” (Emphasis supplied.)

To assume an offense listed in § 2332b(g)(5)(B) is per se a “federal crime of

terrorism” without a separate finding as to “calculated” would render the “calculated”

requirement in § 2332b(g)(5)(A) superfluous. Fidse, 862 F.3d at 524; United States v.

Chandia, 514 F.3d 365, 376 (4th Cir. 2008) (vacating and remanding because the

26

district court “did not make any factual findings related to the intent [i.e., calculation]

element.”).

The Eleventh Circuit noted that whether a defendant’s offense is calculated

(i.e., intended) to influence, affect, or retaliate against government conduct is a highly

fact specific inquiry that requires examining the record as a whole. Sometimes, as in

Jayyousi and Mandhai, the record will contain statements by the defendant

expressing an intent to influence, affect, or retaliate against government conduct. See

Jayyousi, 657 F.3d at 1115; Mandhai, 375 F.3d at 1246. However, because a

defendant often will not admit his full knowledge or intentions, the district court may

find the requisite calculation or intent existed based on circumstantial evidence and

reasonable inferences drawn from the facts. As the Second Circuit emphasized, a

defendant’s knowledge that a terrorist organization solicited his actions to attack the

government could demonstrate that a defendant’s crimes were calculated to influence

government conduct, even if the defendant was not personally motivated by the

organization’s object. See Awan, 607 F.3d at 317-18. Personal motive is not relevant.

Jayyousi, 657 F.3d at 1115; Awan, 607 F.3d at 317.

In remanding this case for resentencing and fact finding, the Eleventh Circuit

stated that with no “calculated” or specific intent finding at all, the district court erred

in applying § 3A1.4’s terrorism enhancement.

When this case was before the district court for a resentencing hearing, the

trial court again failed to adequately make the requisite findings pertaining to the

term “calculated,” nor make findings as to the Defendant’s “specific intent,” nor did

27

it base its so-called findings upon any facts in the record.

Rather, at Page 44, Lines 19-24, of the resentencing transcript the court stated:

[Resentencing Transcript - Pet. Appendix G.]

“I think there was ample evidence at the prior hearing that would

have sustained a finding, but I did not make a finding. And I,

therefore, make a finding that the defendant did, in fact, know that

this was a terrorist organization that was intended to intimidate,

retaliate against, and overthrow the government of Colombia.”

(Emphasis supplied.)

The trial court had missed the point again. The trial court again did not make

findings as to whether the Defendant’s actions were calculated (i.e., intended) to

influence, affect, or retaliate against government, and whether the Defendant had

the specific intent to influence, affect, or retaliate against government.

However and as noted above, at page 53, beginning on line 11, to page 54, line

15, of the resentencing transcript, the Government mentioned that the defense would

be taking an appeal, and knowing that the “findings” of the court were wholly

insufficient, then proceeded to spoon-feed the language the Government wanted to

hear from the trial court, even though the court had already made its “findings,” and

the following ensued: [Resentencing Transcript - Pet. Appendix G.]

THE COURT: Thank you, sir. Anything further from either side?

MR. HUMMEL: Your Honor, I don't want to belabor things here.

THE COURT: Then don't.

MR. HUMMEL: I just want to make sure of one thing, because I know

that Ms. Davide will be taking an appeal on this.

THE COURT: Of course.

28

MR. HUMMEL: I just want to make sure that I heard that the Court

was specifically making a finding that the second prong of this was met

by the government's evidence in this case; that, in fact, his offense

conduct was calculated to influence, affect, or retaliate against

government conduct that is of the Colombian government.

THE COURT: That is correct. I am making a finding that in addition to

the findings that I made earlier, that the offense was calculated to

influence, affect, or retaliate against the government conduct, that

government being the government of Colombia. And I think it's

important to note that it was the underlying offense that was calculated

to influence, affect, or retaliate against government conduct and not

necessarily the defendant's motives; but that he has expressed his

motives or his knowledge in the factual proffer in support of the plea

agreement, and that the circumstantial evidence in this case is far

beyond a preponderance of the evidence. Yes, ma'am.

MS. DAVIDE: No. No, sir. That's it.

THE COURT: Anything further from either side?

MS. DAVIDE: No, sir. Thank you.

MR. HUMMEL: No, Your Honor.

It is very clear that the trial judge merely parroted back what was fed to him

by the Government and did not apply any considered thought and judgment

whatsoever. It is respectfully submitted that these cannot be considered to be

“findings” of the court when they were generated in this manner. Additionally, the

district court’s newly found “findings” were not at all supported by any facts

whatsoever. Arcila Ramirez was merely trying to make money sell the guns to the

Colombian firearms broker, and very frankly, did not care who the Colombian

firearms broker sold the firearms to.

Therefore, before the Government intervened to try to rehabilitate the faulty

“findings” of the trial court, the very same deficiencies that existed the first time the

29

Eleventh Circuit considered this case remained. It is interesting to note, that even

with the Government’s proposed script for the trial court, there still was no finding

as to the “specific intent” of the Defendant to influence, affect, or retaliate against the

Colombian government.

The District Court erred in imposing the “Terrorism Enhancement,” U.S.S.G.

§3A1.4, where the Government failed to prove by a preponderance of the evidence

that said enhancement applied, nor was there any other sufficient evidence to support

the application of that “draconian” enhancement.

CONCLUSION

It is respectfully submitted that based on the foregoing, this Honorable Court

should grant its Writ of Certiorari to resolve this very significant sentencing issue

that is present in every case where someone has been convicted or has pled guilty to

the offense of providing material support to a foreign terrorist organization, in

violation of 18 U.S.C. §2339B(a)(1).

Respectfully submitted,

Ana M. Davide, Esq.

Florida Bar No. 875996

ANA M. DAVIDE, P.A.

420 South Dixie Highway, Ste. 4B

Coral Gables, Florida 33146

Telephone: (305) 854-6100

Fax: (305) 854-6197

E-mail: ana@anadavidelaw.com

(Counsel of Record for Petitioner,

Francisco Joseph Arcila Ramirez.)

By: /s/ Ana M. Davide

ANA M. DAVIDE

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