     Case: 12-11166   Document: 00512510591      Page: 1   Date Filed: 01/23/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
                                 No. 12-11166                     January 23, 2014
                                                                    Lyle W. Cayce
UNITED STATES OF AMERICA                                                 Clerk


                                            Plaintiff–Appellee
v.

KHALID ALI-M. ALDAWSARI

                                            Defendant–Appellant


                Appeal from the United States District Court
                     for the Northern District of Texas


Before REAVLEY, DAVIS, and HIGGINSON, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
      In this case, Appellant challenges the validity of his criminal conviction
and sentence of life imprisonment. In particular, Appellant argues that the
district court improperly denied his motion to suppress evidence, delivered an
invalid instruction to the jury, and erred when calculating Appellant’s
sentence. As set forth below, we disagree with each of these arguments and
therefore affirm Appellant’s conviction and sentence.
                                       I.
      Appellant is a national of Saudi Arabia who initially came to the United
States to study chemical engineering. According to the evidence presented
during Appellant’s trial, Appellant spent several months during late 2010 and
early 2011 acquiring nearly all of the chemicals necessary to manufacture a
powerful explosive known as picric acid. The evidence also indicated that
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                                No. 12-11166
Appellant had become committed to “jihadist operations” and compiled a list
of targets for bombing attacks. These targets included the Dallas residence of
former President George Bush, the Cotton Bowl, and various Dallas festivals.
      In 2011, the FBI conducted searches of Appellant’s apartment and
computer pursuant to the Foreign Intelligence Surveillance Act (“FISA”).
These searches were authorized by the Foreign Intelligence Surveillance Court
(“FISC”) under 50 U.S.C. § 1805(a) and § 1824(a) based on an ex parte showing
of probable cause to believe that Appellant was “an agent of a foreign power”
under 50 U.S.C. § 1801. Appellant was arrested on February 23, 2011.
      On March 9, 2011, Appellant was indicted with one charge of attempted
use of a weapon of mass destruction under 18 U.S.C. § 2332a(a)(2). Prior to
trial, Appellant filed a motion to suppress all items of evidence that had been
collected during the FISA searches. The district court denied this motion,
however, and the government relied extensively on this evidence during
Appellant’s trial.
      Appellant was found guilty on June 27, 2012. The district court then
imposed a sentence of life imprisonment, which was the maximum sentence
permissible under the sentencing guideline range as calculated by the district
court. Appellant now challenges his conviction and sentence on the grounds
discussed below.
                                      II.
      Appellant argues first that his motion to suppress evidence gathered
pursuant to FISA was improperly denied. As explained in United States v. El-
Mezain, 664 F.3d 467, 568-70 (5th Cir. 2011), this court makes a de novo
decision as to the merits of Appellant’s motion to suppress such evidence. To
do so, we must conduct our own in camera and ex parte review of the classified
materials that were submitted to the FISC in support of the FISA application
and subsequently reviewed by the district court.
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                                       No. 12-11166
       According to the Foreign Intelligence Surveillance Court of Review
(“FISCR”), searches conducted pursuant to FISA do not violate the Fourth
Amendment so long as they are not performed with the “sole objective of
criminal prosecution.” 1       Rather, such searches must be at least partially
motivated by a purpose “to protect the nation against terrorists and espionage
threats directed by foreign powers.” 2 So long as this requirement is satisfied,
according to a number of circuit courts, there is no constitutional bar to the
admission of evidence collected pursuant to FISA in criminal prosecutions. 3
Although this court did not explicitly address the constitutional question in El-
Mezain, we did hold as a statutory matter that evidence can be collected during
a FISA search where protection against terrorist threats is at least a
“significant purpose” of the FISA search, and that such evidence may then be
introduced in a criminal prosecution. 4
       As indicated in Appellant’s briefs and clarified during oral argument,
Appellant does not challenge this framework on constitutional or statutory
grounds.     He does urge this court, however, to fulfill its responsibility to
conduct its own review of the classified materials submitted during Appellant’s
case to the FISC and the district court. Even though Appellant has never been
granted access to these classified materials, Appellant considers it probable
that the FISA searches were not validly authorized under 50 U.S.C. § 1805 and
§ 1824. As these sections of FISA provide, the FISC may authorize searches
only upon a showing of probable cause to believe that the searches’ target is
“an agent of a foreign power” as defined under 50 U.S.C. § 1801. But as



       1 In re Sealed Case, 310 F.3d 717, 735, 742-46 (Foreign Int. Surv. Ct. Rev. 2002).
       2 Id. at 746.
       3 See United States v. Duka, 671 F.3d 329, 338-46 (3d Cir. 2011); United States v. Abu-

Jihaad, 630 F.3d 102, 127-29 (2d Cir. 2010); United States v. Ning Wen, 477 F.3d 896, 898-
99 (7th Cir. 2007); United States v. Damrah, 412 F.3d 618, 625 (6th Cir. 2005).
       4 See El-Mezain, 664 F.3d at 568-70.

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                                       No. 12-11166
Appellant correctly observes, no evidence of any foreign power’s involvement
in Appellant’s essentially “domestic” crime was presented at trial. From this
silence in the trial record, Appellant speculates that the government likely
never made the requisite showing in the ex parte proceedings before the FISC.
       Based on our own thorough review of the classified materials in camera,
however, we find that Appellant’s inference is incorrect. As we did in El-
Mezain, we conclude in this case that the FISA searches were properly
authorized and that the evidence collected during the FISA searches was
properly admitted. 5 The FISC’s authorization of these searches was indeed
justified by a showing of probable cause to believe that Appellant satisfied one
of the definitions of “an agent of a foreign power” under 50 U.S.C. § 1801. The
objective of the searches, moreover, was not solely the criminal prosecution of
the Appellant, but also the protection of the nation against terrorist threats.
As Appellant concedes, that is the end of the inquiry. 6 Although the facts
supporting this component of the FISA authorizations were not elements of
Appellant’s crime and were never shared with the jury during Appellant’s trial,
this does not affect the merits of Appellant’s motion to suppress. We therefore
affirm the district court’s denial of that motion. 7




       5 See id.
       6 See Sealed Case, 310 F.3d at 735, 742-46; Duka, 671 F.3d at 338-46; Abu-Jihaad,
630 F.3d at 127-29; Ning Wen, 477 F.3d at 898-99; Damrah, 412 F.3d at 625.
       7 During this appeal, Appellant has not challenged the district court’s denial of his

motion for disclosure of the classified materials under 50 U.S.C. § 1806. This section of FISA
authorizes courts to disclose such materials to “an aggrieved person” on various grounds.
This section of FISA also contains mandatory language under 50 U.S.C. § 1806(g), which
provides that “[i]f the court determines that the surveillance was lawfully authorized and
conducted, it shall deny the motion of the aggrieved person except to the extent that due
process requires discovery or disclosure.” We note the government’s agreement during oral
argument that, for example, FISA-related materials containing exculpatory evidence or
evidence tending to impeach a government witness would need to be disclosed under this
provision and under the Constitution. See Giglio v. United States, 405 U.S. 150 (1972); Brady
v. Maryland, 373 U.S. 83 (1963). We also note that we discovered no Giglio or Brady evidence
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                                       No. 12-11166
                                             III.
       The second challenge raised by Appellant addresses the validity of the
jury instruction regarding the crime of attempt.                  A district court’s jury
instructions are reviewed for abuse of discretion, considering “whether the
instruction, taken as a whole, ‘is a correct statement of the law and whether it
clearly instructs jurors as to the principles of law applicable to the factual
issues confronting them.’” 8 Any error is subject to harmless error review. 9
       Appellant’s argument focuses on a single sentence in the jury
instruction, which stated that “some preparations, when taken together with
intent, may amount to an attempt.”                  According to Appellant, this jury
instruction allowed Appellant to be convicted even though he had only
performed “mere preparations,” and had never completed a substantial step
toward committing the offense of using a weapon of mass destruction under 18
U.S.C. § 2332a(a)(2).
       When “taken as a whole,” 10 however, the district court’s jury instruction
correctly described the “preparation-attempt continuum” that we have
recognized in previous cases. 11          The district court’s instruction properly
emphasized that a conviction for attempt requires proof beyond a reasonable
doubt that “the Defendant both intended to commit the act and did an act
constituting a substantial step towards the commission of that crime which
strongly corroborates the Defendant’s criminal intent and amounts to more



during our in camera review of the classified material in this case, nor any other evidence
that would bear on Appellant’s right to due process.
       8 United States v. Richardson, 676 F.3d 491, 506 (5th Cir. 2012) (quoting United States

v. Freeman, 434 F.3d 369, 377 (5th Cir. 2005)).
       9 United States v. Demmitt, 706 F.3d 665, 674-75 (5th Cir. 2013).
       10 See Richardson, 676 F.3d at 506.
       11 See United States v. Ellis, 564 F.3d 370, 374-75 (5th Cir. 2009); see also United

States v. Mandujano, 499 F.2d 370, 375 (5th Cir. 1974) (“[S]ome preparations may amount
to an attempt. It is a question of degree.”) (internal quotation marks and citations omitted).
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                                       No. 12-11166
than mere preparation.” 12           When read in context, the district court’s
instruction adequately distinguished between “mere preparation,” which “is
not an attempt,” and “some preparations,” which “may amount to an attempt”
so long as such “acts . . . clearly indicate a willful intent to commit a crime.” 13
In particular, this instruction was faithful to our analysis in United States v.
Mandujano, 499 F.2d 370 (5th Cir. 1974), where we concluded that “some
preparations may amount to an attempt” so long as this conduct is “more than
remote preparation” and is “strongly corroborative of the firmness of the
defendant’s criminal intent.” 14
       Accordingly, although the single sentence on which Appellant has
focused might seem misleading when considered by itself and stripped of
context, the jury instruction as a whole constituted a correct statement of the
law. Under an abuse-of-discretion standard, therefore, the district court’s jury
instruction provides no basis for reversal of Appellant’s conviction.
                                             IV.
       Finally, Appellant argues that the district court erred procedurally and
substantively in imposing a sentence of life imprisonment. In reviewing the
reasonableness of a defendant’s sentence, this court “must first ensure that the
district court committed no significant procedural error, such as failing to
calculate (or improperly calculating) the Guidelines range.” 15 The district



       12 See Tr. of Reading of Jury Charge, Rec. Doc. 206-1, at 61; see also United States v.
Hernandez-Galvan, 632 F.3d 192, 198 (5th Cir. 2011).
       13 Tr. of Reading of Jury Charge, Rec. Doc. 206-1, at 61.
       14 See Mandujano, 499 F.2d at 375-77 (internal quotation marks and citations

omitted); see also United States v. Sanchez, 667 F.3d 555, 563 (5th Cir. 2012) (holding that a
substantial step must “both (1) be an act strongly corroborative of the actor’s criminal intent
and (2) amount to more than mere preparation”); United States v. Oviedo, 525 F.2d 881, 885
(5th Cir. 1976) (concluding that “the objective acts performed” must “mark the defendant’s
conduct as criminal in nature”).
       15 Hernandez-Galvan, 632 F.3d at 196 (quoting United States v. Cisneros-Gutierrez,

517 F.3d 751, 764 (5th Cir. 2008)).
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                                       No. 12-11166
court’s “interpretation or application of the Sentencing Guidelines” is reviewed
de novo, while its factual findings are reviewed for clear error. 16 Where the
district court’s sentencing decision is procedurally sound, the appellate court
should then consider “the substantive reasonableness of the sentence imposed
under an abuse-of-discretion standard.” 17 Where a sentence falls “within the
Guidelines range, the appellate court may, but is not required to, apply a
presumption of reasonableness.” 18
       Initially, Appellant argues that the district court erred as a procedural
matter when it applied the Section 2K1.4 cross-reference to the guideline for
“attempted murder” because it is unclear whether Appellant ever identified a
final bombing target. The Section 2K1.4(c)(1) cross-reference applies only if
“the offense was intended to cause death or serious bodily injury.” Appellant
argues that this cross-reference “clearly envisions a targeted victim, location,
or some other facility—an element that is missing from this case.”                       But
Appellant identifies no authority for this proposition. Indeed, we rejected a
similar argument in United States v. Polk, 118 F.3d 286, 297-98 (5th Cir. 1997).
Moreover, even if targets were necessary under the Section 2K1.4 cross-
reference, the statements found in Appellant’s journals and e-mails during the
FISA searches revealed that Appellant had considered many targets, which
defense counsel conceded before the jury during Appellant’s trial. 19                    The
district court therefore did not make a clear error in its factual finding that
Appellant’s attempted bombing “was intended to cause death or serious bodily
injury.” 20



       16  Id.
       17  Gall v. United States, 552 U.S. 38, 51 (2007).
        18 Id.; United States v. Kippers, 685 F.3d 491, 500 (5th Cir. 2012).
        19 Trial Tr., Volume 2, Rec. Doc. 245, at 24 (“It was George W. Bush, it was the Saudi

king, it was the people of New York, it was the Hoover Dam.”).
        20 See Hernandez-Galvan, 632 F.3d at 196.

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                                     No. 12-11166
      Additionally, Appellant argues that the district court erred when it
applied the Section 3C1.1 adjustment for obstruction of justice based on its
finding that Appellant feigned mental illness. In United States v. Greer, 158
F.3d 228, 235, 240-41 (5th Cir. 1998), however, we held that circumstantial
evidence of a defendant’s specific intent to malinger is sufficient to support
such an adjustment. Although Appellant’s defense expert offered testimony
that contradicted the district court’s finding as to Appellant’s malingering, the
district court also reviewed a physician’s report concluding that “[b]ased on the
available evidence, it appears likely that Mr. Aldawsari is trying to exaggerate
his difficulties so he can appear mentally ill.” 21           Because the credibility
determination of witnesses, including experts, is peculiarly within the province
of the district court, 22 we have no basis to find that the district court’s
conclusion as to Appellant’s feigned incompetence was clear error. 23
      Last of all, Appellant argues that the district court abused its discretion
by imposing a substantively unreasonable term of imprisonment.                         In
Appellant’s view, the district court imposed a sentence that resulted in
unwarranted disparity with other similar cases and incorrectly balanced
several factors under 18 U.S.C. § 3553(a), including Appellant’s feelings of
isolation and depression upon coming to the United States, his youth, his need
for appropriate psychological treatment, and the courts’ interest in promoting
respect for law by refraining from excessive punishment.                In this circuit,
however, “avoiding unwarranted general sentencing disparities is not a factor
that we grant significant weight where the sentence is within the Guidelines




      21   See Appellee’s Br. 72; Appellant’s Reply Br. 18.
      22   LULAC # 4552 v. Roscoe I.S.D., 123 F.3d 843, 846 (5th Cir. 1997) (citing Orduna
S.A. v. Zen-Noh Grain Corp., 913 F.2d 1149, 1154 (5th Cir. 1990)).
        23 See Hernandez-Galvan, 632 F.3d at 196.

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                                     No. 12-11166
range.” 24 Moreover, as we held in United States v. Heard, 709 F.3d 413, 435
(5th Cir. 2013), appellate review of a district court’s application of the 18 U.S.C.
§ 3553(a) factors “is highly deferential as the sentencing judge is in a superior
position to find facts and judge their import under section 3553(a) with respect
to a particular defendant.” Appellant cites no cases that would require this
court “to reweigh the section 3553(a) sentencing factors” in Appellant’s favor. 25
Accordingly, even though the district court imposed the maximum sentence
permitted within Appellant’s guideline range, we do not find that the district
court abused its discretion.
                                            V.
       For the reasons stated above, Appellant’s arguments in this appeal are
each rejected. We hereby AFFIRM Appellant’s conviction and sentence.
       AFFIRMED.




       24 United States v. Diaz, 637 F.3d 592, 604 (5th Cir. 2011) (citing United States v.
Willingham, 497 F.3d 541, 544-45 (5th Cir. 2007)).
       25 See Heard, 709 F.3d at 435; Kippers, 685 F.3d at 499-501.

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