18‐1604‐cr
United States v. Mumuni




                                   In the
             United States Court of Appeals
                          for the Second Circuit


                              AUGUST TERM 2018

                                No. 18‐1604‐cr

                          UNITED STATES OF AMERICA,
                                  Appellant,

                                      v.

                              FAREED MUMUNI,
                              Defendant‐Appellee,

 MUNTHER OMAR SALEH, ALSO KNOWN AS ABU OMAR AL‐RAMLI, ALSO
              KNOWN AS ABU OMAR AR‐RAMLI,
                         Defendant.



             On Appeal from the United States District Court
                  for the Eastern District of New York



                           SUBMITTED: MAY 17, 2019
                          DECIDED: DECEMBER 27, 2019
Before: WALKER, CABRANES, and HALL, Circuit Judges.




      In this terrorism case, the Government appeals the substantive
reasonableness of the sentence imposed on Defendant‐Appellee
Fareed Mumuni (“Mumuni”). He was convicted of, inter alia,
conspiring to provide material support to the Islamic State of Iraq and
al‐Sham (“ISIS”) and attempting to murder a federal agent in the name
of ISIS. His advisory sentence under the United States Sentencing
Guidelines (“Guidelines” or “U.S.S.G.”) was 85 years’ imprisonment.
The sole question on appeal is whether the United States District Court
for the Eastern District of New York (Margo K. Brodie, Judge) erred—
or “abused its discretion”—by imposing a 17‐year sentence, which
constitutes an 80% downward variance from Mumuni’s advisory
Guidelines range. We conclude that it did. Accordingly, we REMAND
the cause for resentencing consistent with this opinion.

      Judge Hall concurs in part and dissents in part in a separate
opinion.




                         Emily Berger, Alexander A. Solomon,
                         Douglas M. Pravda, and Samuel P. Nitze,
                         Assistant United States Attorneys, for
                         Richard P. Donoghue, United States
                         Attorney for the Eastern District of New
                         York, Brooklyn, NY, for Appellant.




                                  2
                         Anthony L. Ricco, Steven Z. Legon, and
                         Kenneth J. Montgomery, New York, NY, for
                         Defendant‐Appellee.




JOSÉ A. CABRANES, Circuit Judge:

      In this terrorism case, the Government appeals the substantive
reasonableness of the sentence imposed on Defendant‐Appellee
Fareed Mumuni (“Mumuni”). He was convicted of, inter alia,
conspiring to provide material support to the Islamic State of Iraq
and al‐Sham (“ISIS”) and attempting to murder a federal agent in the
name of ISIS. His advisory sentence under the United States
Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) was 85 years’
imprisonment. The sole question on appeal is whether the United
States District Court for the Eastern District of New York (Margo K.
Brodie, Judge) erred—or “abused its discretion”—by imposing a 17‐
year sentence, which constitutes an 80% downward variance from
the advisory Guidelines range. We conclude that it did. Accordingly,
we REMAND the cause for resentencing consistent with this
opinion.




                                   3
                             I. BACKGROUND1

       Mumuni is an American‐born citizen who pledged allegiance
to ISIS and pleaded guilty, without a plea agreement, to: (1)
conspiring to provide material support—including services and
himself—to a foreign terrorist organization, to wit ISIS, in violation of
18 U.S.C. § 2339B; (2) attempting to provide material support to ISIS,
in violation of 18 U.S.C. § 2339B; (3) conspiring to assault federal
officers, in violation of 18 U.S.C. § 371; (4) attempted murder of
federal officers, in violation of 18 U.S.C. § 1114; and (5) assault of a
federal officer with a deadly or dangerous weapon, in violation of 18
U.S.C. § 111. Mumuni was sentenced principally to a 204‐month (17‐
year) term of imprisonment and 10 years of supervised release.
Mumuni’s statutorily restricted advisory Guidelines2 sentence was
1,020 months, or 85 years. The Government appeals only the
substantive reasonableness of Mumuni’s sentence.


       We conclude that Mumuni’s sentence is substantively
unreasonable for three reasons. First, the District Court clearly erred


       1These facts are drawn from the record before the District Court, including
sentencing materials in connection with Mumuni’s co‐defendant, Munther Omar
Saleh.
       2  See U.S. SENTENCING GUIDELINES MANUAL (“U.S.S.G.”) § 5G1.2(b) (“[T]he
court shall determine the total punishment and shall impose that total
punishment on each such count, except to the extent otherwise required by law.”);
id. cmt. n.3(B) (“The defendant’s guideline range on the Sentencing Table may be
affected or restricted by a statutorily authorized maximum sentence . . . .”).




                                        4
in its assessment of the evidence at sentencing. Specifically, it
impermissibly second‐guessed—after accepting Mumuni’s guilty
plea—whether Mumuni actually intended to kill his victim and
whether the eight‐inch kitchen knife3 he wielded during his attack on
law enforcement constituted a deadly or dangerous weapon. Second,
the District Court imposed a disproportionately lenient sentence on
Mumuni compared to his co‐defendant, who, unlike Mumuni, did
not physically attack a federal officer. Finally, the District Court
placed mitigating weight on certain factors that could not bear the
weight the District Court assigned to them.


                                         *       *      *
          Mumuni’s offense conduct begins with his considerable efforts
to provide material support to ISIS.4 Between approximately
February and June 2015, Mumuni conspired with Munther Omar
Saleh (“Saleh”)5—a self‐proclaimed “full‐fledged” member of ISIS



          3   The knife’s blade was 200 millimeters, which is approximately 7.87
inches.

          The United States Department of State has designated ISIS a foreign
          4

terrorist organization under the name “Islamic State of Iraq and the Levant”
(“ISIL”). See Bureau of Counterterrorism & Countering Violent Extremism, Foreign
Terrorist Organizations, U.S. DEP’T OF STATE, https://www.state.gov/foreign‐
terrorist‐organizations/. This opinion uses the acronyms “ISIS” and “ISIL”
interchangeably.

         Mumuni met Saleh through the Islamic Society at the College of Staten
          5

Island, where he was pursuing a degree in social work.




                                             5
with a “radicalizing gift”6—and others, to provide material support
to ISIS. Mumuni and Saleh helped facilitate the travel of co‐
conspirator Nader Saadeh (“Saadeh”) to Syria to join ISIS.
Specifically, both Mumuni and Saleh accompanied Saadeh on a
shopping trip to purchase items that would be useful in ISIS‐
controlled territories, such as hiking boots and a compass. 7 Mumuni
also made plans to personally travel to Syria to join ISIS and wage
jihad. Mumuni admitted that he and Saleh had been working to raise
money for their travels to join ISIS, and that he had begun
researching flights from New York to Turkey.


       Beyond his efforts to facilitate travel to Syria, Mumuni also
conspired with Saleh and others to conduct a domestic terrorist
attack against law enforcement officers. Indeed, in a post‐arrest
statement to agents from the Federal Bureau of Investigation (“FBI”),
Mumuni confirmed no less than four times that he planned to attack
law enforcement were they to ever approach him or prevent him
from traveling to Syria. Mumuni was offered a pressure‐cooker bomb
from Saleh for his attack. When Mumuni asked Saleh whether it
would be permissible from a religious standpoint to die during his
attack on law enforcement, Saleh contacted Junaid Hussain



       6   GA 245.
       7 Saadeh ultimately boarded a flight at John F. Kennedy International
Airport to Jordan; upon landing, he was intercepted and apprehended by
Jordanian authorities.




                                        6
(“Hussain”), a notorious Syria‐based ISIS attack facilitator.8 Hussain
expressly authorized Mumuni’s suicide attack:


                 Saleh: Akhi [brother] help us out, i have an
                 akh [brother] who is planning on hitting a
                 black car cop with a pressure cooker, the
                 black car keeps following him, and he wants
                 to avenge our akhs [brothers] who have
                 been raided and blocked from hijrah
                 [migration].


                 Is it permissible for him to do the attack and
                 die purposely in the process?9


                 Hussain: Yes akhi [brother] he can do an
                 isthishadi [martyrdom] operation on the




        8See Margaret Coker, et al., Hacker Killed by Drone was Islamic State’s ‘Secret
Weapon,’ WALL ST. J. (Aug. 27, 2015), https://www.wsj.com/articles/hacker‐killed‐
by‐drone‐was‐secret‐weapon‐1440718560 (“U.S. officials began to view Mr.
Hussain as a top threat because he was on the leading edge of Islamic State efforts
to recruit in the U.S.”); see also The American Exception: Terrorism Prosecutions in the United
States—The ISIS Cases (March 2014 – August 2017), CTR. ON NAT’L SEC. AT FORDHAM
LAW 29, 32–33 (Sept. 2017) https://news.law.fordham.edu/wp‐
content/uploads/2017/09/TheAmericanException9‐17.pdf (describing various
connections between Hussain and other ISIS terrorists and terrorism plots).
        9   GA 250.




                                              7
                 police akhi [brother] . . . If he has no other
                 way to fight them he can do it.10


      Saleh and Mumuni would regularly contact each other with
ideas for an attack. For example, on June 2, 2015, Saleh instructed
Mumuni that the best option for attacking law enforcement was to
use a bomb and fight afterwards. When Mumuni asked for further
guidance, Saleh wrote that Mumuni should first detonate a bomb,
run over the officers with a vehicle, seize their weapons, and then use
the weapons to shoot at other victims.


      On June 12, 2015, Saleh texted Mumuni: “I decided to tell my
parents ‘i will be gone in much less than a year, in sha Allah, you
have two choices, either you let me go to Darul Islam [ISIS‐controlled
territory] or you watch me kill nonMuslims [sic] here.[’]”11 Mumuni
replied: “May Allah make it easy for you.”12 That night, Saleh
executed an attack against law enforcement.


      Saleh and co‐conspirator Imran Rabbani (“Rabbani”) had been
driving in an SUV the evening of June 12 when they noticed an
unmarked vehicle following them. The men performed several anti‐
surveillance maneuvers to evade the unmarked vehicle, including
driving at high speeds through a parking lot with their lights turned

      10   Id.
      11   Mumuni Presentence Investigation Report (“PSR”) ¶ 19.
      12   Id.




                                        8
off and running stop signs. At approximately 4 a.m. on June 13, Saleh
and Rabbani stopped their vehicle at a red light at 20th Avenue, on
an overpass above the Whitestone Expressway in Queens. Saleh and
Rabbani exited their SUV and began walking toward the unmarked
vehicle. As Saleh approached the unmarked vehicle, he placed an
unopened folding knife from his hand into his pocket. Before Saleh
and Rabbani reached the unmarked vehicle, they decided to turn
around and re‐enter their SUV. Moments later, Saleh and Rabbani
again exited the SUV and began charging toward the unmarked
vehicle. The FBI agent in the unmarked vehicle had to quickly
reverse off the highway overpass into oncoming traffic in order to
evade Saleh and Rabbani’s attack.


      When backup officers arrived, they arrested Saleh and Rabbani
and discovered a folding knife in the SUV and a Smith & Wesson
tactical folding knife in Rabbani’s waistband. Rabbani’s knife had
been equipped with a built‐in window breaker, which would have
allowed Saleh and Rabbani to gain immediate access to the FBI
vehicle.


      In a post‐arrest interview, Saleh stated that he had pledged
allegiance to, and was a “full‐fledged” member of, ISIS.13 In addition,
he characterized Mumuni as another ISIS supporter and confirmed
that Mumuni planned to travel to the Islamic State‐held territory.
Saleh also informed the interviewing agents that Mumuni had


      13   Id. ¶ 17.




                                    9
expressed an intent to attack law enforcement officers who had been
surveilling him.


Mumuni’s June 17, 2015 Attack on Law Enforcement


       Two days after Saleh’s attack, the Government obtained a
search warrant for Mumuni’s cellular phone and residence on Staten
Island. On June 17, 2015, FBI agents went to Mumuni’s residence to
execute the search warrant. The agents knocked on the front door
and announced themselves as members of law enforcement.
Mumuni’s mother and sister opened the door and granted the
officers permission to enter the premises.


       Mumuni, aware that law enforcement officers had entered his
home,14 retrieved an eight‐inch kitchen knife from his bedroom15 and
descended the stairs. With the knife concealed behind his back,
Mumuni—pursuant to the agents’ instructions—entered the living
room and walked toward the couch. Suddenly, he began charging
toward FBI Special Agent Kevin Coughlin (“Agent Coughlin”). It




       14As Mumuni explained after his arrest, he knew that law enforcement
was at his door “‘cause no one bangs at the door like that.” See June 17, 2015 Post‐
Arrest Statement Transcript (“June 17, 2015 Transcript”) at 83.
       15 As Mumuni later admitted to investigating agents, he began keeping one
knife under his pillow and one in his mother’s car “in case [officers tried] to stop
me.” Id. at 64.




                                         10
wasn’t until he was within “arm’s length”16 that Mumuni revealed
his knife and began stabbing the unarmed Agent Coughlin. During
the ensuing tussle, as other agents rushed to Agent Coughlin’s aid,
Mumuni attempted to reach for the trigger of another agent’s M4
carbine assault rifle.17


       Fortunately, prior to entering Mumuni’s home, Agent
Coughlin made a “last‐minute decision” to wear an armored SWAT
vest.18 As the Government’s edged‐weapons expert explained,
however, SWAT vests are designed to stop bullets, not blades, and
do not typically stop thrusts or stabbing attacks. What ultimately
shielded Agent Coughlin from Mumuni’s repeated stabs was the
metal magazine carrier inside his vest. Indeed, photographs taken
after the attack show Agent Coughlin’s metal magazine carrier with
three distinct indentations and an eight‐inch kitchen knife with a
missing tip.

       16   GA 204.
       17 While Mumuni disputes this account, the District Court declined to
strike this text from the PSR, opting instead to insert the following objections:
“Fareed Mumuni asserts that upon lunging at the first agent, he was taken down
and immediately subdued by the agents. He denies any allegation that he reached
for an agent’s firearm and attempted to pull the trigger,” GA 185, and “Fareed
Mumuni acknowledges that he lunged at a law enforcement officer with a single
kitchen knife, however, he denies repeatedly stabbing anyone,” id. 186. The
District Court did not appear to accept or reject either account of the attack. It did,
however, decline to consider Mumuni’s argument that the facts and
circumstances did not support the use of the first‐degree murder guideline. Id.
       18   Id. at 203.




                                          11
      After subduing and arresting Mumuni, the agents received
consent from Mumuni’s mother to search her car, where they
recovered another large kitchen knife hidden in a duffel bag.


      Mumuni pleaded guilty on February 9, 2017, to conspiring and
attempting to provide material support to ISIS,19 conspiring to attack
federal officers,20 assaulting a federal officer with a dangerous or
deadly weapon,21 and attempting to murder a federal officer.22 The
District Court accepted the guilty plea after affirming that it had been
entered knowingly and voluntarily and that it was “supported by an
independent basis in fact containing the essential elements of the
offenses.”23


Mumuni’s Sentencing


      Mumuni’s Sentencing Guidelines calculation, as reported in his
Presentence Investigation Report (“PSR”) and adopted by the District




      19   18 U.S.C. § 2339B.
      20   Id. § 371.
      21   Id. § 111(a)(1), (b).
      22   Id. § 1114(3).
      23   GA 63.




                                   12
Court,24 reflected a total offense level of 43 and a criminal history
category of VI, resulting in an advisory Guidelines sentence of life
imprisonment. Because life imprisonment exceeded the statutorily
authorized maximum sentence of 1,020 months (85 years), the
statutorily authorized maximum sentence of 1,020 months (85 years)
became the Guidelines sentence.25


       At sentencing, the Government sought the Guidelines sentence
of 1,020 months (85 years). It focused on the exceptionally serious
nature of Mumuni’s conduct, including the fact that when Mumuni
attempted to kill Agent Coughlin, he was engaged in an act of
terrorism for which he had received advance authorization from
Junaid Hussain, a Syria‐based ISIS operative. It also compared
Mumuni’s case to those of similarly‐situated terrorism defendants
who, like Mumuni and Saleh, had been recruited by Hussain to
commit domestic terror attacks in the United States.26 Finally, the


       24 The District Court did not identify any errors in the PSR’s Guidelines
calculations. It did, however, correct errors, not relevant here, in the PSR’s
supervised release calculations.
       25 See U.S.S.G. § 5G1.2(b) (“[T]he court shall determine the total
punishment and shall impose that total punishment on each such count, except to
the extent otherwise required by law.”); id. cmt. n.3(B) (“The defendant’s
guideline range on the Sentencing Table may be affected or restricted by a
statutorily authorized maximum sentence . . . .”).
       26 The Government focused on two cases in particular: the David Wright
(“Wright”) case and the Justin Sullivan (“Sullivan”) case. In 2017, a district court
in the District of Massachusetts sentenced Wright to 28 years, following a trial, for
encouraging his co‐conspirator, Usaamah Rahim (“Rahim”), to “go after” the




                                         13
Government presented testimony from Agent Coughlin, who
described in vivid detail the premeditated and extremely violent
nature of Mumuni’s attack.27


       By contrast, Mumuni‘s counsel sought a sentence at variance
with the Guidelines. He highlighted several mitigating factors,
including Mumuni’s young age at the time of his arrest (21 years
old), his lack of criminal history, the letters of support he had


“boys in blue.” GA 260. Rahim had received instructions from Hussain to behead
Pamela Geller, the organizer of the Prophet Muhammad contest in Garland,
Texas. Rahim was killed after lunging towards police officers and FBI agents with
a large fighting knife and refusing to drop his weapon. Another co‐conspirator,
Nicholas Rovinski (“Rovinski”), was sentenced to 15 years’ imprisonment—just
two years fewer than Mumuni—after pleading guilty and testifying as a
cooperating witness at Wright’s trial.

         Similarly, in 2015 in the Western District of North Carolina, Sullivan was
recruited by Hussain to conduct attacks on behalf of ISIS. Sullivan agreed to buy
an AR‐15 rifle at a gun show and to shoot to death as many people as possible at a
club or concert in North Carolina. After a silencer Sullivan ordered was delivered
to his house and opened by his parents, Sullivan asked an undercover FBI agent
to kill his parents. When agents subsequently searched Sullivan’s house, they
discovered a .22 Marlin rifle loaded with 14 rounds and a travel bag containing a
black ski mask and lock picking tools. Unlike Mumuni, Sullivan never actually
conducted a terror attack. Nevertheless, he was sentenced to life imprisonment.
       27 See, e.g., GA at 204 (“I also think it’s important to point out that when
Mr. Mumuni came down those stairs that day, that he came down those stairs
with the intent of trying to kill one of us. And I say that because it’s not like he
grabbed that knife from the kitchen on his way down. He had that knife with him
in his room when he came out and he concealed it until the last possible minute.
He did not walk down those stairs [waving] that knife around, because if he had,
we would have shot him before he got to the bottom of the stairs.”).




                                        14
received from friends and family members, and the fact that, unlike
Saleh, he was not a leader and did not recruit anyone to join ISIS.
Mumuni’s counsel further noted the “absence of physical injury and
damage to property or people,”28 and repeatedly characterized
Mumuni’s attack as an attempt to commit “suicide by cop,”29 i.e., an
attempt to provoke a lethal response from law enforcement.


       The District Court ultimately sentenced Mumuni to a
cumulative 204‐month term of incarceration—80% below the
advisory Guidelines sentence. Specifically, Mumuni received
concurrent 120‐month terms on the two material support charges;
concurrent 60‐month terms on the two assault charges; and a
concurrent 204‐month term of imprisonment for the attempted
murder charge. In effect, Mumuni received only 84 months (7 years)
for attempting to murder Agent Coughlin.




       28   Id. at 190.
       29 Dist. Ct. Dkt. No. 153 at 16–17 (“[U]pon [law enforcement’s] entry, a
radicalized Fareed Mumuni lunged toward one of the agents with a kitchen knife
in hand, in an unsuccessful attempt to commit suicide by cop. In so doing, Fareed
Mumuni committed the offense of attempted murder of a federal agent.”); see also
GA 192–93 (“What did [Mumuni] think was going to happen as he ran towards
law enforcement officers fully armed. Two with long firearms; others with
handguns. With a knife in his hand, a kitchen knife. Did he think that he was
going to be able to somehow kill these officers, or was [it] in his mind [that] he
wanted to be shot dead?”).




                                        15
                          III. DISCUSSION

      While district courts have broad discretion at sentencing, this
discretion is not unlimited. Not only must district courts abide by
specific procedural requirements, but they must faithfully evaluate
the record to ensure that the sentence imposed accurately and
adequately reflects the seriousness of the offense conduct. Here, the
District Court drastically discounted the seriousness of Mumuni’s
offense conduct based on a sterilized and revisionist interpretation of
the record. This clearly erroneous assessment of the evidence leaves
us with the definite and firm conviction that a mistake has been
committed—a mistake that resulted in a shockingly low sentence
that, if upheld, would damage the administration of justice in our
country.


      A. Standard of Review


      The Government has challenged only the substantive
reasonableness of Mumuni’s sentence on appeal, and we have not
independently identified any procedural error. Accordingly, we
conduct only a substantive review of Mumuni’s sentence.


      We note at the threshold that our Court has not yet decided the
standard of review that applies to unpreserved challenges of
substantive unreasonableness. We need not do so here because we
would hold Mumuni’s sentence substantively unreasonable even
under the most demanding standard of review, plain error.




                                  16
        Our substantive review of a sentence is “akin to review under
an ‘abuse‐of‐discretion’ standard.”30 We have repeatedly emphasized
that “abuse of discretion” is a “distinctive term of art that is not
meant as a derogatory statement about the district judge whose
decision is found wanting.”31 “It is more properly understood as
referring to occasions where, after examining trial court records, an
appellate court reaches the informed judgment that a ruling is based
on an erroneous view of the law or on a clearly erroneous assessment
of the evidence,” or the district court has rendered “a decision that
cannot be located within the range of permissible decisions.”32


        In the context of sentencing, a district court’s evaluation of the
evidence is “clearly erroneous” when we are left with the “definite
and firm conviction” that the district court has misinterpreted the
record and, as a result, has misweighed certain aggravating or
mitigating factors.33 The length of a sentence is outside “the range of


        30   United States v. Rigas, 583 F.3d 108, 114 (2d Cir. 2009).
        31United States v. Park, 758 F.3d 193, 199–200 (2d Cir. 2014); see also In re The
City of New York, 607 F.3d 923, 943 n.21 (2d Cir. 2010) (explaining that “abuse of
discretion” is a nonpejorative “term of art”).
        32   Park, 758 F.3d at 200 (internal quotation marks and alterations omitted).
        33Id. (internal quotation marks omitted). See generally United States v.
Cavera, 550 F.3d 180, 191 (2d Cir. 2008) (en banc) (“At the substantive stage of
reasonableness review, an appellate court may consider whether a factor relied on
by a sentencing court can bear the weight assigned to it.”).




                                             17
permissible decisions” when “affirming it would damage the
administration of justice because the sentence imposed was
shockingly high, shockingly low, or otherwise unsupportable as a
matter of law.”34 In other words, a sentence is outside the range of
permissible decisions when it is manifestly unjust or when it “shocks
the conscience.”35


        “[T]he measure of what is conscience‐shocking is no calibrated
yard stick.”36 We have observed that we “use as our lodestar the
parsimony clause of 18 U.S.C. § 3553(a), which directs sentencing
courts to impose a sentence sufficient, but not greater than necessary,
to comply with the factors set out in 18 U.S.C. § 3553(a)(2)—namely,
retribution, deterrence, and incapacitation.”37 Ultimately, what
“shocks the conscience” depends on the “informed intuition of the
appellate panel.”38 It is a “highly contextual”39 standard that




       34   Park, 758 F.3d at 200 (internal quotation marks omitted).
       35   Rigas, 583 F.3d at 123 (internal quotation marks omitted).

        United States v. Aldeen, 792 F.3d 247, 255 (2d Cir. 2015) (internal quotation
       36

marks omitted).
       37   Park, 758 F.3d at 200 (internal quotation marks and alterations omitted).
       38   Rigas, 583 F.3d at 123.
       39   Id.




                                           18
“involves some degree of subjectivity”40 in its application and
provides relief “only in the proverbial ‘rare case.’”41


       Finally, while a sentence outside the advisory Guidelines range
is not presumptively unreasonable,42 a significant departure or
variance from the recommended Guidelines range “should be
supported by a more significant justification than a minor one.”43


       In sum, in reviewing a sentence for substantive reasonableness,
we are “not disparaging the person of a trial judge, but simply
concluding, after careful review, (1) that a sentence lacks a proper
basis in the record, (2) that a trial judge’s assessment of the evidence
leaves the reviewing court with a definite and firm conviction that a
mistake has been committed, or (3) that the reviewing court has
reached the informed judgment that a sentence is otherwise
unsupportable as a matter of law.”44



       40   Park, 758 F.3d at 199 (internal quotation marks omitted).
       41 Rigas, 583 F.3d at 123. Notwithstanding the inherent difficulty in
defining the precise boundaries of the “shock‐the‐conscience” standard, a
reviewing court must not relegate itself to functioning as a mere rubber stamp for
any sentence the district court may impose. See id. at 122 (“‘[R]easonableness’ is
not a code‐word for ‘rubber stamp.’” (quoting United States v. Moreland, 437 F.3d
424, 433 (4th Cir. 2006))).
       42   See Gall v. United States, 552 U.S. 38, 47 (2007).
       43   Id. at 50.
       44   Park, 758 F.3d at 200–01.




                                             19
       B. Application


       Upon review of the record, we identify three errors that render
Mumuni’s sentence substantively unreasonable.


       First, the District Court relied on a sterilized account of the
attack that is unsupported by the record and that contradicts the
District Court’s own findings at Mumuni’s guilty plea hearing. The
District Court’s inability to accurately assess the record, in turn,
resulted in its underappreciation of the materiality of the assault as
an attempt to murder Agent Coughlin.


       Second, the District Court’s rationale for the disparity between
Mumuni’s sentence (17 years) and Saleh’s sentence (18 years) is also
unsupported by the record and appears to contradict the District
Court’s earlier suggestion45 that, in light of the violent attack on a law
enforcement agent, a more severe sentence than Saleh was fully
justified.


       Third, the District Court placed undue weight on factors that
cannot bear the weight assigned to them under the totality of
circumstances. Jointly and severally, these errors caused the District



       45 See GA 174 (Saleh sentencing) (Court: “I know the Government is
arguing to me that he shouldn’t get a break because they thwarted what he was
trying to do, but I can’t sentence him for what he might have done. His co‐
conspirator, Mr. Mumuni, did attack law enforcement . . . .”).




                                      20
Court to render a sentence that is shockingly low and unsupportable
as a matter of law.


                1. The District Court impermissibly second‐guessed
                    whether Mumuni intended to kill Agent Coughlin
                    and whether his eight‐inch kitchen knife
                    constituted a dangerous or deadly weapon.

        It is well‐established that a district court cannot accept a guilty
plea unless it is satisfied that there is a factual basis for the plea.46
Here, Mumuni pleaded guilty to, inter alia, attempted murder of a
federal officer, in violation of 18 U.S.C. § 1114(3), and assault of a
federal officer with a deadly or dangerous weapon, in violation of 18
U.S.C. § 111(a)(1) and (b). “[A]n attempt to commit murder requires a
specific intent to kill.”47 Moreover, the question of whether an object
constitutes a dangerous weapon hinges, in part, on “the manner in
which the object is used,” as “many objects, even those seemingly
innocuous, may constitute dangerous weapons.”48




        46See FED. R. CRIM. P. 11(b)(3); see also North Carolina v. Alford, 400 U.S. 25,
35 n.8 (1970).

         See United States v. Kwong, 14 F.3d 189, 194 (2d Cir. 1994) (“Although a
        47

murder may be committed without an intent to kill, an attempt to commit murder
requires a specific intent to kill.” (internal quotation marks omitted)).

         United States v. Matthews, 106 F.3d 1092, 1095 (2d Cir. 1997) (internal
        48

quotation marks omitted).




                                           21
      Accordingly, before accepting Mumuni’s guilty plea, the
District Court was required to ensure that the following essential
elements were supported by an independent basis in fact: (1)
Mumuni intended to kill Agent Coughlin when he lunged at him
with an eight‐inch kitchen knife; and (2) either the eight‐inch kitchen
knife was an inherently dangerous weapon or the manner in which
Mumuni wielded the knife rendered it a dangerous weapon.
Mumuni’s allocution provided an ample basis for each of these
determinations:


            Mumuni: Between May 2015 and June 2015 .
            . . I knowingly and intentionally agreed
            with others to forcibly oppose and impede
            any law enforcement officer who would
            prevent me from traveling overseas to join
            ISIL in the Middle East by use of [a]
            dangerous or deadly weapon. In June 2015, I
            lunged at a law enforcement officer with a
            knife. . . .


            I did deliberately and intentionally attempt
            to kill a law enforcement officer by
            [lunging] at him with a knife knowing that
            if I succeeded in my attempt I could kill
            him.


            Court: Was that your intent?




                                  22
               Mumuni: Yes, your Honor.49


What’s more, after the Government prudently expressed some
concern about the sufficiency of Mumuni’s allocution regarding his
intent to kill Agent Coughlin, the District Court actually revisited this
element:


               Government: Your Honor, I believe there
               are a couple of elements which we need to
               address. . . . [W]ith respect to Count Five,
               attempted murder of federal officers, we
               would have to prove that the defendant
               acted with malice aforethought and that he
               acted with premeditation. . . .


               Court: I thought he allocuted to that also,
               the attempted murder. So Mr. Mumuni, it
               sounds like you were planning to go abroad
               to assist ISIS. You knew that you were being
               surveilled by law enforcement. Correct?


               Mumuni: Yes, your Honor.




      49   GA 55–56.




                                     23
Court: And at some point, did you make
plans to prevent law enforcement or to
attack them in some way, [thereby]
preventing them from stopping you, as you
indicated?


Mumuni: Yes, your Honor.


Court: You allocuted that it was your intent
to murder them, if necessary; is that
accurate?


Mumuni: Yes, your Honor.


Court: And, so, when you lunged at law
enforcement on June 17, 2015, did you do so
with the intent to murder them if necessary?
And you can take a minute and speak to
your attorney if you need to. The issue,
[counsel], is whether or not he acted with
premeditation, planning, and deliberation
and, also, whether it was willful.


Mumuni: I knew by lunging with them at a
knife [sic], if I succeeded in my attempt I
could kill them.




                      24
                  Court: Okay. I believe that satisfies all of the
                  elements.50


       The District Court thereupon accepted Mumuni’s guilty plea.51
Nevertheless, at sentencing, the District Court appeared to second‐
guess whether Mumuni actually had the intent to kill Agent
Coughlin during his attack and whether he wielded the knife in a
manner capable of inflicting serious bodily injury:


                  Court: My understanding of what your
                  intent was at that point in time, on that day
                  when you were arrested, that you planned
                  on defending yourself, even if it meant that
                  you would die. Did you intend to kill the
                  agent? It’s not clear to me that you did. You
                  had a knife, a kitchen knife. . . .


                  Did Mr. Mumuni really think he could do
                  damage with that knife? I don’t know.




       50   Id. at 60–63.
       51Id. at 63 (“I find that the defendant is fully competent and capable of
entering an informed plea, that he is aware of the nature of the charges and the
consequences of the plea, and that his plea of guilty to each count is a knowing
and voluntary plea and is supported by an independent basis in fact containing
the essential elements of the offense.”).




                                         25
                 But I heard Agent Coughlin’s testimony,
                 and I understand that he was threatened
                 and that he believed under the
                 circumstances that, yes, you could have
                 killed him. And I’ll credit his statement that
                 that could have been the outcome whether
                 you intended it or not. Maybe your intent
                 was only that you would die, but you could
                 have killed him.52


      Not only are these musings plainly contradicted by the record,
but they are also unsupportable as a matter of law. First, the only
legally permissible inference to be drawn from Mumuni’s guilty plea
is that he had the specific intent to kill Agent Coughlin. Second,
Agent Coughlin’s testimony and the physical evidence of the attack
confirm, beyond any reasonable doubt, that Mumuni intended to kill
Agent Coughlin. Had Mumuni’s intent been merely to injure Agent
Coughlin, he would not have stabbed Agent Coughlin repeatedly or
struck him with enough force to break the tip off the knife and dent
Agent Coughlin’s metal magazine carrier. Finally, the District Court,
having accepted Mumuni’s plea of guilty to assault of a federal
officer with a deadly or dangerous weapon, was not entitled to
second‐guess the potential lethality of an eight‐inch kitchen knife. Of
course, if the District Court did have reasonable second thoughts



      52   Id. at 214–15.




                                       26
about its own earlier findings, it was required to vacate the guilty
plea that it had accepted the first time around.


       Any speculation by the District Court that Mumuni may have
only sought to “defend himself” is also unsupportable as a matter of
law. Mumuni was the initial aggressor in the altercation with Agent
Coughlin; as such, he could not, as a matter of law, have been acting
in self‐defense.53 Nor is it relevant that Mumuni claims to have been
merely committing “suicide by cop.”54 His alleged ulterior motive in
attacking Agent Coughlin does not negate his specific intent to kill.
Put differently, even if Mumuni wanted to be shot, his intent to kill
Agent Coughlin is irrefutable. After all, Mumuni kept his weapon
concealed behind his back until the last minute, when it was too late
for Agent Coughlin to take any defensive action. Had his intent been
strictly to provoke a lethal response, he could have, as Agent
Coughlin suggested during his testimony, come downstairs
“[waving] that knife around . . . [and law enforcement] would have
shot him before he got to the bottom of the stairs.”55


       The District Court’s clearly erroneous findings and legal error
resulted in its improper discounting of the seriousness of Mumuni’s


       53See United States v. Desinor, 525 F.3d 193, 198 (2d Cir. 2008) (“It has long
been accepted that one cannot support a claim of self‐defense by a self‐generated
necessity to kill.” (internal alterations and quotation marks omitted)).
       54   See supra note 29.
       55   GA 204.




                                         27
offense conduct. Mumuni’s attack was not a spontaneous assault of a
federal officer amid a heated altercation. Nor was it an act of self‐
defense. Mumuni’s violent attack against Agent Coughlin was
indisputably a premeditated, willful, and deliberate attempt to
murder a federal officer in the name of ISIS. In short, it was a pre‐
authorized ISIS terrorist attack on American soil.


      We are confident that if the District Court had fully
appreciated the heinous nature of this offense—including its terrorist
design—it would have reconsidered the weight ultimately accorded
several aggravating factors, such as: (1) the nature and circumstances
of the offense; (2) the need for the sentence imposed to reflect the
seriousness of the offense, to promote respect for the law, and to
provide just punishment for the offense; (3) the need for the sentence
imposed to afford adequate deterrence to criminal conduct; and (4)
the need to protect the public from further crimes of the defendant.


             2. Mumuni’s 17‐year sentence was disproportionately
                lenient compared to Saleh’s 18‐year sentence.

      In downplaying the significance of Mumuni’s assault, the
District Court overlooked one of the most salient distinctions
between Mumuni and Saleh. To wit, Saleh, unlike Mumuni, was
convicted only of simple assault and was never charged with
attempted murder of a federal officer. This charging distinction
explains why Mumuni’s advisory Guidelines range was 85 years,




                                   28
while Saleh’s was only 53.56 Yet the District Court never so much as
mentioned this aggravating factor at Mumuni’s sentencing. Instead,
it treated Mumuni and Saleh as if they had been convicted of similar
conduct, and narrowed the scope of its comparison between the two
defendants to their respective roles within the conspiracy to provide
material support to ISIS:


               Unlike Mr. Saleh, your codefendant, you
               were not the leader of any group. In fact,
               you were recruited to participate in this
               group. There is no evidence that you
               recruited anyone else to follow ISIS. There’s


       56 Both Mumuni and Saleh were charged with, and pleaded guilty to,
conspiracy to provide material support to a foreign terrorist organization, 18
U.S.C. § 2339B(a)(1), attempt to provide material support to a foreign terrorist
organization, id., and conspiracy to assault federal officers, id. § 371. These three
charges collectively carry a statutory maximum sentence of 45 years’
imprisonment.

        Both defendants also pleaded guilty to assault of a federal officer, id. § 111,
but only Mumuni pleaded guilty to assault with a dangerous or deadly weapon
under § 111(b). By contrast, Saleh pleaded guilty to the lesser‐included offense of
forcibly impeding federal law enforcement officers, which does not include as an
element the use of a dangerous or deadly weapon. Accordingly, the statutory
maximum for Mumuni’s assault charge was 20 years, while Saleh’s was only 8
years.

         Finally, only Mumuni pleaded guilty to attempted murder of a federal
officer, id. § 1143(3), which carries a statutory maximum of 20 years’
imprisonment.




                                          29
                 no evidence that you praised ISIS’ heinous
                 actions, as your codefendant did, or that
                 you translated any ISIS propaganda for
                 others, as Mr. Saleh did. Unlike Mr. Saleh,
                 when you were arrested, you gave a full
                 statement. . . .57


By ignoring Mumuni’s significantly more violent assault, the District
Court treated Mumuni and Saleh as if they had engaged in
comparable conduct, which is simply not true.


      Perhaps more concerning, however, is that the District Court
relied on the comparison between Mumuni and Saleh’s conduct only
when it served as a mitigating factor. At Saleh’s sentencing, for
example, the District Court noted that while it could not sentence
Saleh “for what he might have done,” Mumuni, by contrast, “did
attack law enforcement.”58 Yet at Mumuni’s sentencing eleven weeks
later, where his comparatively violent conduct served as an
aggravating factor, there was no mention of this distinction. Where,
as here, a sentencing court opts to compare the relative culpability of
co‐defendants, it cannot selectively rely on a factor when it serves a
mitigating function in one case, but then ignore the same factor when
it serves an aggravating function in the other case.



      57   GA 216.
      58   Id. at 174.




                                      30
      In sum, the District Court substantively erred by imposing a
sentence that does not adequately reflect Mumuni’s more serious
conduct. While Saleh may have been higher in the ISIS pecking order
than Mumuni, it was Mumuni—not Saleh—who pleaded guilty to a
violent act of terrorism that, but for a fortuity beyond his control,
could easily have resulted in Agent Coughlin’s death.


               3. The mitigating factors relied on by the District
                     Court cannot bear the weight assigned to them.

      The District Court principally relied on four mitigating factors
in support of its decision to impose a sentence 80% below the
advisory Guidelines range: (1) Mumuni’s relative youth at the time
he committed the offense; (2) his lack of an existing criminal record;
(3) his lack of any disciplinary infractions during his three years of
pre‐trial and pre‐sentencing incarceration; and (4) letters of support
from family members and friends that “describe a very different
Mumuni than the one who was arrested that morning.”59 An 80%
downward departure from the Guideline range is remarkable,
especially considering the totality of circumstances in this case.
Without applying any presumption, rigid formula, or specific
proportionality requirement, we echo the “uncontroversial”
proposition that a District Court’s “major departure [from the
Guidelines] should be supported by a more significant justification



      59   GA 216.




                                      31
than a minor one.”60 We conclude that, in light of the totality of
circumstances, the first three factors cannot bear the weight assigned
to them by the District Court.


       First, no substantially mitigating weight can be borne here by
the fact that Mumuni did what was plainly required of him—that is,
behaving himself in prison. Mumuni may, in due course, receive a
reward for his compliance with institutional disciplinary regulations
through good time credit.61 Moreover, his compliance with
institutional regulations has no bearing on the sentencing factors a
district court must consider under 18 U.S.C. § 3553(a). By contrast,
had Mumuni failed to abide by institutional regulations, his
continued disrespect of the rules would suggest a greater need to
protect the public from further crimes and to deter future criminal
conduct.


       Similarly, we conclude that Mumuni’s age and lack of prior
criminal record cannot bear the mitigating weight assigned to them.
In this case involving terrorism and such serious offense conduct, the
District Court’s reliance on these mitigating factors produced a

       60   Gall v. United States, 552 U.S. 38, 50 (2007).
       61 See 18 U.S.C. § 3624(b)(1) (providing that “a prisoner who is serving a
term of imprisonment of more than 1 year . . . may receive credit toward the
service of [that] sentence . . . of up to 54 days at the end of each year of the
prisoner’s term of imprisonment” if the Bureau of Prisons determines that
“during that year, the prisoner has displayed exemplary compliance with
institutional disciplinary regulations”).




                                             32
sentence that shocks the conscience and cannot be located within a
permissible range of decisions. Although we owe deference to
sentencing judges, it is also our duty to assess the totality of
circumstances and “patrol the boundaries of reasonableness.”62 The
District Court’s sentence here exceeded those boundaries.


      In sum, three of the four factors relied upon by the District
Court as mitigating cannot serve as a justification for so lenient a
sentence.


                                    *       *       *


      We conclude by underscoring that the Guidelines, while only
advisory,63 appropriately reflect Congress’s considered judgment that




      62   United States v. Cavera, 550 F.3d 180, 191 (2d Cir. 2008).
      63   See United States v. Booker, 543 U.S. 220 (2005).




                                           33
terrorism is different from other crimes.64 65 “[T]errorism represents a
particularly grave threat because of the dangerousness of the crime
and the difficulty of deterring and rehabilitating the criminal.”66
Moreover, when it comes to sentencing terrorism, Congress and the
United States Sentencing Commission “plainly intended for the
punishment of crimes of terrorism to be significantly enhanced

       64 See, e.g., Violent Crime Control and Law Enforcement Act of 1994, Pub.
L. No. 103–322, § 120004, 108 Stat. 1796, 2022 (directing the United States
Sentencing Commission to create an “enhancement” for prison sentences
resulting from felonies involving or intending to promote international terrorism);
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104‐132, § 730,
110 Stat. 1214, 1303 (extending the enhancement to domestic terrorism offenses);
U.S.S.G. § 3A1.4 (enforcing the aforementioned congressional directives by
directing district courts to increase a defendant’s offense level by 12 and his
criminal history category to VI if his felony “involved, or was intended to
promote, a federal crime of terrorism”); id. app. C, amend. 637 (2002) (imposing
base offense Guidelines for crimes of terrorism, including providing material
support or resources to a designated foreign terrorist organization) (“This
amendment is a six‐part amendment that responds to the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism (USA PATRIOT Act) Act of 2001, Pub. L. 107–56.”).
       65 See, e.g., Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of
2001, Pub. L. No. 107–56 § 810, 115 Stat. 272, 380 (amending 18 U.S.C.
§ 2339B(a)(1)—which criminalizes the provision of material support or resources
to designated foreign terrorist organizations—to increase the statutory maximum
sentence from 10 to 15 years and authorizing a life sentence if the death of any
person results); Uniting and Strengthening America by Fulfilling Rights and
Ensuring Effective Discipline Over Monitoring Act of 2015, Pub. L. No. 114–123, §
702, 129 Stat. 268, 300 (amending 18 U.S.C. § 2339B(a)(1) again to increase the
statutory maximum sentence from 15 to 20 years).
       66   United States v. Meskini, 319 F.3d 88, 92 (2d Cir. 2003).




                                            34
without regard to whether, due to events beyond the defendant’s
control, the defendant’s conduct failed to achieve its intended deadly
consequences.”67 Thus, in determining what constitutes a
“sufficient”68 sentence for a terrorist defendant whose conduct did
not result in death or physical injury, a sentence at the high end of
the applicable range may plainly be reasonable if supported by the
balance of § 3553(a) factors.69




       67United States v. Stewart, 590 F.3d 93, 175 (2d Cir. 2009) (Walker, J.,
concurring in part and dissenting in part).
       68 18 U.S.C. § 3553(a) (“The court shall impose a sentence sufficient, but not
greater than necessary . . . .”).
       69 Recently, in United States v. Pugh, 937 F.3d 108 (2d. Cir 2019), we vacated
the statutory maximum sentence of 420 months’ imprisonment for a defendant
who had been convicted, following a jury trial, of attempting to provide material
support to a foreign terrorist organization (ISIS) and obstruction of justice.
Because the sentence was vacated on grounds of procedural unreasonableness
only, Pugh does not preclude or affect a sentencing court’s ability to impose the
maximum sentence for a terrorist defendant. It merely requires that the court, as
always, articulate its reasons for imposing the maximum sentence.




                                          35
                   III. CONCLUSION

To summarize, we hold as follows:

(1) Mumuni’s sentence of 17 years’ imprisonment—which
constitutes an 80% reduction from his recommended
Guidelines range of 85 years—is substantively unreasonable in
light of his exceptionally serious conduct involving a domestic
terrorist attack against law enforcement in the name of ISIS.


(2) Where a district court has accepted a defendant’s guilty
plea and his allocution to the elements of each charged offense,
it cannot make findings of fact during sentencing that
contradict or otherwise minimize the conduct described at the
defendant’s plea hearing.


(3) Where a sentencing court opts to compare the relative
culpability of co‐defendants, it cannot selectively rely on a
factor when it serves a mitigating function in one case, but then
subsequently ignore the same factor when it serves an
aggravating function in the other case.


(4) A defendant’s legally‐required compliance with
institutional regulations during his term of pre‐trial and pre‐
sentencing detention is not a substantially mitigating factor for
purposes of sentencing.




                            36
      (5) At Mumuni’s resentencing, the District Court, on the basis
      of the record that supported Mumuni’s guilty plea, shall
      accord substantially greater weight to the following 18 U.S.C. §
      3553(a) factors:
             (a) the nature and circumstances of the offense;
             (b) the need for the sentence imposed to reflect the
             seriousness of the offense, to promote respect for the
             law, and to provide just punishment for the offense;
             (c) the need for the sentence imposed to afford adequate
             deterrence to criminal conduct; and
             (d) the need to protect the public from further crimes of
             the defendant.


      For the foregoing reasons, Mumuni’s sentence is substantively
unreasonable. Accordingly, we REMAND for resentencing in
accordance with this opinion.

      In the interest of judicial economy, any subsequent appeal in
this case shall be directed to this panel.




                                    37
PETER W. HALL, Circuit Judge, concurring in part and dissenting in
part:

      “We set aside a district courtʹs sentence as substantively
unreasonable only if affirming it would damage the administration of
justice because the sentence imposed was shockingly high,
shockingly low, or otherwise unsupportable as a matter of
law.” United States v. Douglas, 713 F.3d 694, 700 (2d Cir. 2013)
(quotation marks and ellipsis omitted) (emphasis added). As an
initial matter, I do not believe the seventeen‐year sentence is
shockingly low and, therefore, I must dissent in part.

      In reviewing a sentence for substantive reasonableness, we
“take into account the totality of the circumstances.” Gall v. United
States, 552 U.S. 38, 51 (2007). I concur in the majority’s opinion insofar
as it provides the District Court the opportunity to clarify, if possible,
and further explicate in detail why, after having heard Mumuni’s
sworn allocution and thereafter having accepted Mumuni’s guilty
plea, it second‐guessed whether Mumuni intended to kill a federal
officer. See Majority Op., ante at 21–28. If the District Court cannot do
so, then I agree with the majority that the District Court must accept
the facts as admitted under oath by Mumuni and sentence him with
these facts in mind.

      That said, I respectfully dissent from those parts of the
majority’s decision discussing what the majority identifies as the
second and third errors that render Mumuni’s sentence substantively
unreasonable. See Majority Op., ante at 29–35. I acknowledge that
reasonable judges can differ in their respective assessments of this




                                    38
record, and I consider each of the three of us to be reasonable. From
my perspective, given the deferential standard of review we must
apply, I disagree that this case requires imposition of a different
sentence if, upon studied consideration of all factors that are and will
become applicable at the time of resentencing, the District Court
determines that a sentence similar to the present one is appropriate.

      As the majority notes, this Court has not decided whether an
unpreserved challenge to the substantive reasonableness of a
sentence is reviewed under the standard of plain error or of abuse of
discretion. United States v. Thavaraja, 740 F.3d 253, 259 n.4 (2d Cir.
2014). I would not find error under even the less stringent standard.
“The abuse‐of‐discretion standard incorporates de novo review of
questions of law (including interpretation of the Guidelines) and
clear‐error review of questions of fact.” United States v. Legros, 529
F.3d 470, 474 (2d Cir. 2008). For a finding of fact to be clearly
erroneous, we must be “left with the definite and firm conviction that
a mistake has been committed.” United States v. Cuevas, 496 F.3d 256,
267 (2d Cir. 2007) (quoting United States v. Hazut, 140 F.3d 187, 190
(2d Cir. 1998)). We set aside a district courtʹs sentence as
substantively unreasonable “only in exceptional cases where the trial
courtʹs decision cannot be located within the range of permissible
decisions.” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en
banc) (internal quotation marks omitted).

      I for one do not think this is one of those exceptional cases. In
my view the District Court considered Mumuni as an individual and
carefully compared his conduct to that of his co‐defendant Munther




                                    39
Saleh. Those sentencing determinations were well within the sound
discretion of the District Court. There is no doubt that this is a
difficult case, but I fear the majority would prefer to substitute its
sentencing preference for that of the District Court.

I. Comparative Leniency of Mumuni’s Sentence

       Affording appropriate deference to the District Court, I cannot
conclude that it imposed a disproportionately lenient sentence on
Mumuni compared to his co‐defendant Saleh. The District Court’s
statements at sentencing show that it carefully compared the nature
of Mumuni’s offense conduct to Saleh’s. The court “considered the
need to avoid unwarranted disparities, but also considered the need
to avoid unwarranted similarities among other co‐conspirators who
were not similarly situated.” Gall, 552 U.S. at 55–56. Saleh, who
received an 18‐year aggregate sentence, was older than Mumuni and
was the person who radicalized Mumuni and who played a more
significant role in the parties’ conspiracy and attempt to provide
support to ISIS. 70 The court gave Mumuni a shorter sentence than
Saleh for the first and second counts because it distinguished
Mumuni’s plot of a defensive course of action (a contingent
confrontation with law enforcement if they impeded his travels to
join the fight in the Middle East) from Saleh’s plan (an unprovoked




70 The court did not find credible the government’s contention that Mumuni
conspired with Saleh to build and detonate a pressure‐cooker bomb. This is an area
in which we owe the District Court deference given the ambiguities in the record.




                                       40
affirmative attack in this country), a distinction that is not
unreasonable.

      In addition, the District Court expressly considered the
seriousness of Mumuni’s attack on the federal officer. The court
stated that, of the crimes Mumuni committed, it believed the
attempted murder of a federal officer was the most serious and
sentenced Mumuni to 204 months in custody on that count. This
concurrent sentence amounted to an additional 84 months over and
above the terms of imprisonment imposed on Mumuni’s other
charges. The court believed that additional 84 months for attempted
murder was sufficient and not greater than necessary to comply with
the purposes of sentencing. Based on the record and affording
appropriate deference to the District Court, I cannot say the court
abused its discretion much less plainly erred.

II. The Mitigating Factors

      Finally, in my view the majority opinion improperly curtails
the discretion afforded to district courts in evaluating mitigating
evidence when sentencing. “[S]entencing judges exercise a wide
discretion in the types of evidence they may consider when imposing
sentence [sic] and that highly relevant—if not essential—to the
selection of an appropriate sentence is the possession of the fullest
information possible concerning the defendantʹs life and
characteristics.” Pepper v. United States, 562 U.S. 476, 480 (2011)
(quoting Williams v. New York, 337 U.S. 241, 246–247 (1949)) (internal
quotation marks and brackets omitted). This discretion is based on




                                    41
“longstanding principles of federal sentencing law and Congressʹ
express directives in [18 U.S.C.] §§ 3661 and 3553(a).” Id. Section 3661
states, “[n]o limitation shall be placed on the information concerning
the background, character, and conduct of a person convicted of an
offense which a court of the United States may receive and consider
for the purpose of imposing an appropriate sentence.” § 3661
(emphasis added); see also Pepper, 562 U.S. at 488–89 (noting that the
Sentencing Commission expressly preserved this discretion in the
Guidelines).

      Here, the District Court considered Mumuni’s young age and
lack of criminal record, letters from Mumuni’s family and friends
that “describe a very different Mumuni than the one who was
arrested that morning,” and Mumuni’s discipline‐free record during
his almost three‐year incarceration. Gov. App. 216–17. The court
balanced this individualized view of Mumuni against his “conduct
[that was] grave, reprehensible, and . . . deserv[ing] [of] serious
punishment.” Gov. App. 216. This was, and continues to be, exactly
the type of individualized consideration to which we owe deference.

      I respectfully disagree with the majority’s suggestion that the
District Court should weigh mitigating factors differently in cases
involving terrorism and serious offense conduct. See Majority
Op., ante at 34. Even in capital crimes, the Supreme Court has noted
that “the definition of crimes generally has not been thought
automatically to dictate what should be the proper penalty.” Lockett
v. Ohio, 438 U.S. 586, 602 (1978). That is because criminal cases are sui
generis. “It has been uniform and constant in the federal judicial




                                   42
tradition for the sentencing judge to consider every convicted person
as an individual and every case as a unique study in the human
failings that sometimes mitigate, sometimes magnify, the crime and
the punishment to ensue.” Koon v. United States, 518 U.S. 81, 113
(1996).

       Moreover, the mitigating factors highlighted in the majority
opinion–age and lack of criminal history–are unquestionably relevant
to the purposes of punishment. The purposes of punishment set out
in 18 U.S.C. § 3553(a)(2), “are, broadly speaking, proportionality,
deterrence, incapacitation, and rehabilitation.” Douglas, 713 F.3d at
700; see also § 3553(a) (“The court shall impose a sentence sufficient,
but not greater than necessary, to comply with the purposes set forth
in . . . this section.”).

       The Supreme Court has repeatedly emphasized that significant
gaps in characteristics like maturity and susceptibility to peer
influence make “children . . . constitutionally different from adults
for purposes of sentencing.” Miller v. Alabama, 567 U.S. 460, 471
(2012) (citing Roper v. Simmons, 543 U.S. 551, 569–570 (2005);
and Graham v. Florida, 560 U.S. 48, 68 (2010)).

       First, children have a lack of maturity and an
       underdeveloped sense of responsibility, leading to
       recklessness, impulsivity, and heedless risk‐taking.
       Second, children are more vulnerable to negative
       influences and outside pressures, including from their
       family and peers; they have limited control over their
       own environment and lack the ability to extricate




                                   43
      themselves from horrific, crime‐producing settings. And
      third, a childʹs character is not as well formed as an
      adultʹs; his traits are less fixed and his actions less likely
      to be evidence of irretrievable depravity.

Montgomery v. Louisiana, 136 S. Ct. 718, 733 (2016) (quoting Miller,
Roper and Graham) (internal quotation marks and citation omitted);
see also Gall, 552 U.S. at 58 (“[I]t was not unreasonable for the District
Judge to view [21‐year‐old] Gallʹs immaturity at the time of the
offense as a mitigating factor, and his later behavior as a sign that he
had matured and would not engage in such impetuous and ill‐
considered conduct in the future.”); Johnson v. Texas, 509 U.S. 350, 367
(1993) (finding, in the case of a 19‐year‐old convicted of murder, that
“[t]here is no dispute that a defendantʹs youth is a relevant mitigating
circumstance . . . . Our cases recognize that ‘youth is more than a
chronological fact. It is a time and condition of life when a person
may be most susceptible to influence and to psychological damage’”
(quoting Eddings v. Oklahoma, 455 U.S. 104, 115 (1982))). In addition, a
defendant’s prior criminal history is an integral part of our
sentencing scheme. See, e.g., Nichols v. United States, 511 U.S. 738, 747
(1994). This is evidenced by state recidivism statutes and
the criminal history component of the Sentencing Guidelines. Id.

***

      Accordingly, I vote to REMAND to the District Court, and
notwithstanding the majority’s instruction that no substantially
mitigating weight can be borne by Mumuni’s behavior in prison, I
would emphasize that at resentencing the District Court also has




                                    44
“wide discretion in the sources and types of evidence used to assist
[it] in determining the kind and extent of punishment to be
imposed,” Pepper, 562 U.S. at 488, including “evidence of the
defendantʹs postsentencing rehabilitation and that such evidence
may, in appropriate cases, support a downward variance from the . . .
Federal Sentencing Guidelines range.” Id. at 481. It should not be out
of the realm of possibility for the District Court to determine, after
fully analyzing all the applicable factors including those for which
we have ordered remand and Mumuni’s behaviors and course of
conduct subsequent to his April 2018 sentencing, that the appropriate
punishment to be imposed is a term of incarceration similar to that
imposed twenty months ago. Should either party be dissatisfied with
the new sentence, of course, that party has the right to appeal.




                                   45
