Petition for Writ of Certiorari — Jonathan Guerra Blanco, Petitioner v. United States

Supreme Court briefOct 24, 2024

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NO.____

In The

Supreme Court of the United States

JONATHAN GUERRA BLANCO,

Petitioner,

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,

Jonathan Guerra Blanco.)

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

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 attempting to violate that

statute, 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 merely

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 or attempting to

provide material support to a foreign terrorist

organization per se or automatically invoke the

terrorism enhancement.

PARTIES TO THE PROCEEDING IN THE COURT

WHOSE

JUDGMENT IS SOUGHT TO BE REVIEWED

Jonathan Guerra Blanco Defendant/Petitioner

United States of America Plaintiff/Respondent

RELATED CASES

● United States of America v. Jonathan Guerra

Blanco, Case No. 22-10419, United States Court of

Appeals for the Eleventh Circuit. Opinion entered

May 23, 2024, United States of America v. Jonathan

Guerra Blanco, 102 F.4th 1153 (11th Cir. 2024). [Appx.

A]. Per Curiam Order Denying Petition for Rehearing

and Petition for Rehearing En Banc entered August

7, 2024. [Appx. D].

● United States of America v. Jonathan Guerra

Blanco, Case No. 20-CR-20245-RNS-1, United States

District Court for the Southern District of Florida.

Judgment entered January 31, 2022. [Appx. B]

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

INDEX OF APPENDICES........................................ iv

TABLE OF AUTHORITIES .......................................v

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..................6

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.

iii

§2339B(a)(1), or an attempt to violate that

statute, the question arises as to whether or not

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. .....................................6

CONCLUSION ........................................................... 29

TABLE OF AUTHORITIES

CASES:

Page

Holder v. Humanitarian Law Project,

561 U.S. 1, 130 S.Ct. 2705, 177 L.Ed.2d 355

(2010) .........................................................................15

United States v. Alhaggagi,

978 F.3d 693 (9th Cir. 2020) .....................................25

United States v. Ansberry,

976 F.3d 1108 (10th Cir. 2020) .................................25

United States v. Arnaout,

431 F.3d 994 (7th Cir. 2005) .....................................20

United States v. Awan,

607 F.3d 306 (2d Cir. 2010) .............. 11, 18, 21, 24-28

United States v. Blanco,

102 F.4th 1153 (11th Cir. 2024), reh’g and

reh’g en banc denied August 7, 2024 ...................1, 6

United States v. Chandia (Chandia I),

514 F.3d 365 (4th Cir. 2008) ................... 10, 11, 16, 18

United States v. Fidse,

862 F.3d 516 (5th Cir. 2017) ...............................20, 21

United States v. Graham,

275 F.3d 490 (6th Cir. 2001) ...............................20, 21

United States v. Hassan,

742 F.3d 104 (4th Cir. 2014) ...............................11, 25

United States v. Jayyousi,

657 F.3d 1085 (11th Cir. 2011) ..................... 22, 23, 28

United States v. Khatallah,

314 F. Supp. 3d 179 (D.D.C. 2018) ...........................18

United States v. Mandhai,

375 F.3d 1243 (11th Cir. 2004) ..................... 20, 22, 28

United States v. Mohamed,

757 F.3d 757 (8th Cir. 2014) ...............................11, 25

United States v. Parr,

545 F.3d 491 (7th Cir. 2008) .......................................9

United States v. Ramirez,

16 F.4th 844 (11th Cir. 2021) .............................19, 28

United States v. Salim,

549 F.3d 67 (2d Cir. 2008) ........................................18

United States v. Stewart,

590 F.3d 93 (2d Cir. 2009) ..................................11, 16

United States v. Tankersley,

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

United States v. Van Haften,

881 F.3d 543 (7th Cir. 2018) .....................................18

United States v. Wright,

747 F.3d 399 (6th Cir. 2014) ......................... 11, 21, 25

STATUTES AND RULES:

18 U.S.C. § 371 ..........................................................23

18 U.S.C. § 956(a)(1) .................................................23

18 U.S.C.A. § 2332b(g)(5) ........................................2, 6

18 U.S.C. § 2332b(g)(5)(A) ............9-12, 15, 17, 19, 21,

24-26, 28

18 U.S.C. § 2332b(g)(5)(B) ........................ 9, 12, 21, 23

18 U.S.C. § 2339A ......................................... 16, 23, 26

18 U.S.C. § 2339B ....................................... 3, 7, 22, 24

18 U.S.C. § 2339B(a)(1) ..............3-8, 10, 12, 15, 19, 29

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) ................... 5-7, 19, 20, 22

U.S.S.G. § 3A1.4 cmt. n.1..........................................21

TREATISES AND OTHER AUTHORITIES:

Black’s Law Dictionary (11th ed. 2019) ...................25

Merriam-Webster Online Dictionary .......................25

Oxford English Dictionary (2d ed. 1989) ..................25

Random House Webster’s College Dictionary

(2d ed. 1997) ..............................................................20

Webster’s Third New International Dictionary

Unabridged (1986) ....................................................25

vii

IN THE

SUPREME COURT OF THE UNITED STATES

_________________

PETITION FOR WRIT OF CERTIORARI

__________________

Jonathan Guerra Blanco 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 22-10419 in that court on

May 23, 2024, United States of America v. Jonathan

Guerra Blanco, 102 F.4th 1153 (11th Cir. 2024), reh’g

and reh’g en banc denied on August 7, 2024, which

affirmed the judgment and sentence 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.” (Opinion

published at United States of America v. Jonathan

Guerra Blanco, 102 F.4th 1153 (11th Cir. 2024)).

A copy of the per curiam order denying

rehearing and rehearing en banc is contained in the

Appendix at “D.”

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

August 7, 2024. This petition is timely-filed pursuant

to Sup. Ct. R. 13.1.

The district court had jurisdiction because

petitioner was charged with violating a federal

criminal law. 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)

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),

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).

STATEMENT OF THE CASE

District Court Proceedings.

On December 3, 2020, the Government filed its

Information in the United States District Court for

the Southern District of Florida, therein charging

Guerra Blanco with attempting to provide material

support or resources to designated foreign terrorist

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

and (2). [Pet. Appx. E]

On December 22, 2020, Guerra Blanco pled

guilty to the sole count of the Information charging

him with attempting to provide material support or

resources to a designated foreign terrorist

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

pursuant to a Plea Agreement and a Factual Proffer.

On March 10, 2021, the United States

Probation Office filed the draft disclosure of the

Presentence Investigation Report, therein imposing

the twelve (12) level so-called “terrorism

enhancement” and the criminal history category VI

designation pursuant to U.S.S.G. §3A1.4(a) and (b).

Guerra Blanco filed his Objections to the Presentence

Investigation Report, therein objecting to the

application of the “terrorism enhancement.”

On October 12, 2021, the United States

Probation Office filed the Final Addendum 1

disclosure of the Presentence Investigation Report,

therein

maintaining

that

the

“terrorism

enhancement” was properly imposed.

The sentencing hearing was held on January

28, 2022 before the Senior United States District

Court Judge Robert N. Scola, Jr., at which time a

sentence of one hundred ninety-two (192) months

imprisonment and a life term of supervised release

was imposed. [Pet. Appx. C]. The Judgment was

entered on January 31, 2022. [Pet. Appx. B]. On

February 8, 2022, the Defendant filed his timely

Notice of Appeal.

Court of Appeals Proceedings

On May 23, 2024, the United States Court of

Appeals for the Eleventh Circuit entered its opinion

affirming the District Court Judgment. United States

of America v. Jonathan Guerra Blanco, 102 F.4th

1153 (11th Cir. 2024 [Pet. Appx. A]

On August 7, 2024, the Court of Appeals denied

Guerra Blanco’s Petition for Petition for Rehearing

and Petition for Rehearing En Banc, therein treating

his Petition for Rehearing En Banc as a Petition for

Rehearing as well. [Pet. Appx. D]

This timely Petition for Writ of Certiorari

follows.

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), or attempting to violate that

statute, 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. 1

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

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), or

an attempt to violate that statute. 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, Guerra Blanco had neither the

specific intent to commit a crime that was calculated

to influence, affect, or retaliate against a government,

therefore it is argued that the imposition of the

“terrorism enhancement” was not appropriate.

Although he knew that the Islamic State of Iraq

and al-Sham ("ISIS") was designated as a foreign

terrorist organization and knew that ISIS had

engaged in terrorist activity, when he assisted

unofficial ISIS media networks to increase the

dissemination of pro-ISIS messages and propaganda

intimidation or coercion, or to retaliate against government

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

material support to terrorist organizations).

mainly to Spanish speaking viewers and/or listeners

and translated ISIS media messages and coordinated

translations into other languages, including English,

French, German, and Indonesian, he did not have the

specific intent to commit a crime that was calculated

to influence, affect, or retaliate against a government.

Essentially, Guerra Blanco took up ISIS’ call to

provide services in their online media operations, and

Guerra Blanco provided such services to ISIS in that

regard. Some of the propaganda materials were

translations of articles previously disseminated in

English outlets years before Guerra Blanco’s conduct.

Further, there was no evidence that Guerra

Blanco intended to promote any plan by ISIS to

commit a politically-motivated crime of terrorism.

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 Guerra Blanco,

when he committed the offense of attempting to

provide 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 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

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

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 ).

Guerra Blanco 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 retaliate

against government conduct.’” Id. (quoting Stewart,

590 F.3d at 138).

intent

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 Guerra

Blanco attempted to provide 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 Guerra Blanco’s conduct met

the definition of a federal crime of terrorism as

required for §3A1.4 to apply.

III. The terrorism enhancement does not apply in

this case.

It is undisputed that Guerra Blanco’s

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 Guerra

Blanco’s conduct satisfies the first prong: whether his

attempting to provide material support to a terrorist

organization by his conduct 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.

Although he knew that the Islamic State of Iraq

and al-Sham ("ISIS") was designated as a foreign

terrorist organization and knew that ISIS had

engaged in terrorist activity when he assisted

unofficial ISIS media networks to increase the

dissemination of pro-ISIS messages and propaganda

mainly to Spanish speaking viewers and/or listeners

and translated ISIS media messages and coordinated

translations into other languages, including English,

French, German, and Indonesian, he did not have the

specific intent to commit a crime that was calculated

to influence, affect, or retaliate against a government.

Essentially, Guerra Blanco took up ISIS’ call to

provide services in their online media operations, and

Guerra Blanco provided such services to ISIS in that

regard. Some of the propaganda materials were

translations of articles previously disseminated in

English outlets years before Guerra Blanco’s conduct.

Mr. Guerra’s operation of the media networks

involved the production and dissemination of ISIS

propaganda, recruiting materials, and instructional

guides for committing acts of terror.

It is respectfully submitted that the District

Court erred in applying the terrorism enhancement

because it centered its analysis on ISIS (the terrorist

organization), not on Guerra Blanco’s conduct or

specific intent in committing the charged offense. It is

Guerra Blanco’s position that it was required that the

District Court consider the latter, whereas the offense

itself implicates the former. Specifically, Guerra

Blanco argues in-part that because the District Court

failed to sufficiently determine whether he specifically

intended that the publication of the translations of the

ISIS media content would be used to coerce or

intimidate a government.

Rather, in the Eleventh Circuit’s view, the

District Court reasoned that the publications entitled

Open Source Jihad 1 and Open Source Jihad 2 “on

their own establish[ed]” that “the offense was

calculated to influence or affect the conduct of

government by intimidation or coercion or

retaliat[ion] against government conduct.” In its view,

the references to western governments in both

exhibits introduced at the sentencing hearing made

clear that Mr. Guerra was not promoting the killing

of people “for no reason whatsoever, but in retaliation

for the United States[’] public support of Israel and

[its] invasion of Afghanistan and Iraq.” The court

stressed that it was making “a clear finding that, even

without [the video threatening the assassination of

the Spanish judge], there is more than enough

evidence to meet the government’s burden in this

case.” The court added that this video made the

finding “overwhelming, but even without [it], there’s

more than sufficient evidence to meet the

government’s burden.”

It is respectfully submitted, that although the

exhibits introduced at the sentencing hearing may

have made it clear that the terrorist organization,

ISIS, may have desired to retaliate against the United

States for its public support of Israel and the invasion

of Afghanistan and Iraq, that is a far different thing

than saying that Guerra Blanco, himself, had the

specific intent to retaliate against the United States.

A. Calculated to influence or affect the conduct of

government by intimidation or coercion.

Guerra Blanco pled guilty to attempting to

provide material support to a terrorist organization.

His offense conduct is outlined above. The District

Court concluded that this conduct was calculated to

influence or affect government conduct by

intimidation or coercion because Guerra Blanco 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 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

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

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, Guerra Blanco’s actions were not

accompanied by the necessary mental state to trigger

the enhancement. In this instance, the District Court

abused its discretion in concluding otherwise and the

Eleventh Circuit erred in failing to recognize that

abuse of discretion.

The District Court's conclusion rested on the

erroneous assumption that when Guerra Blanco

translated and disseminated the publications and

videos, he necessarily understood and intended that

the dissemination of the publications and videos was

to bolster support for ISIS 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

which

have

triggered

the enhancement—translating and disseminating the

publications and videos does not inherently or

unequivocally constitute conduct motivated to “affect

or influence” a “government by intimidation or

coercion.” 18 U.S.C. § 2332b(g)(5)(A). In other words,

one can translate and disseminate publications and

videos without knowing how those items would or

could “influence or affect the conduct of government

by intimidation or coercion,” 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—

translating and disseminating the publications and

videos—and the effect—influencing government

conduct by intimidation or coercion—are much too

attenuated

warrant

the

triggering

the enhancement. Instead, to properly apply

the enhancement, the District Court had to determine

that translating and disseminating the publications

and videos constituted conduct motivated to “affect or

influence” a “government by intimidation or coercion,”

and that the publications and videos 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.

B. Calculated to retaliate against government

conduct.

Further, Guerra Blanco disputes any

conclusion that by translating and disseminating the

publications and videos, 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. 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

substitution

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 Guerra Blanco

sought revenge on any particular government or for

any specific government conduct.

Although it is true that Guerra Blanco entered

his plea of guilty to the charge of attempting to

provide 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), 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 the

defendant’s 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 he 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.’ ” 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, 313-14 (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

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 Guerra Blanco’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 his 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 that 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

separation

from

their

actual

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 1114-15. 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 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 Guerra Blanco’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,

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://merriam-webster.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, 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.

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.

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 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 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 United States v. Arcila Ramirez,

16 F.4th 844 (11th Cir. 2021), 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.

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), or an attempt to violate said statute.

Clearly, the application of the “terrorism

enhancement” has a profound impact on the ultimate

sentence imposed in such cases, therefore guidance

for the District Courts in applying that enhancement

is essential.

Respectfully submitted,

By: /s/ Ana M. Davide

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,

Jonathan Guerra Blanco.)

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.