     Case: 13-50734        Document: 00512936749          Page: 1     Date Filed: 02/13/2015




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

                                        No. 13-50734                                    FILED
                                                                                 February 13, 2015
                                                                                      Lyle W. Cayce
UNITED STATES OF AMERICA,                                                                  Clerk

                                                    Plaintiff – Appellee,
v.

ABDULLAHI OMAR FIDSE, also known as Abdirahman LNU,
also known as Abdiraham Fidse, also known as Abdullaho Fidse,

                                                    Defendant – Appellant.




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


Before JOLLY, COSTA, Circuit Judges, and ROSENTHAL, District Judge.*
PER CURIAM:
      After arriving in the United States from Somalia, Abdullahi Omar
Fidse lied to government officials in connection with his asylum application
and during a subsequent investigation into his terrorism connections. As a
result, Fidse pleaded guilty to two obstruction offenses. The issue on appeal
is whether the district court properly applied a substantial sentencing
enhancement that applies when “the offense is a felony that involved, or was
intended to promote, a federal crime of terrorism.” U.S.S.G. § 3A1.4(a).




      *   District Judge of the Southern District of Texas, sitting by designation.
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                                 No. 13-50734


                                       I.
      In December 2012, Fidse pleaded guilty to both counts of an indictment
charging him with Conspiracy to Obstruct Proceedings Before a Department
or Agency, in violation of 18 U.S.C. §§ 371 and 1505, and Conspiracy to Make
False Statements, in violation of 18 U.S.C. §§ 371 and 1001. Fidse’s legal
troubles began four years earlier when he and his companion, Deka Abdalla
Sheikh, arrived at the Hidalgo, Texas port of entry claiming that they were
fleeing Somalia. Fidse, with corroboration provided by Sheikh, claimed that
he had spent his entire life in Somalia until the Islamic Courts killed his
father, which caused him to fear for his own life and flee. This story was
false. Among other things, Fidse had spent significant time in Kenya and his
father had died of natural causes. As a result of the false statements, Fidse
was denied asylum, ordered deported to Somalia, and charged with
conspiring to obstruct asylum proceedings because he coordinated the false
testimony with Sheikh.
      It turns out that not only was Fidse lying about being persecuted by
militant Islamic forces in East Africa, but he actually had ties to one of the
groups engaging in that persecution—al Shabaab. The FBI investigation into
those connections, which is discussed in more detail below, started two
months before the order of deportation issued in Fidse’s immigration case.
Lies that Fidse and Sheikh told when interviewed by the FBI in connection
with that investigation are the basis for his second conviction.
      The presentence investigation report (PSR) calculated Fidse’s sentence
by grouping the two offenses and using the guideline for obstruction of
justice. The PSR applied the terrorism enhancement under United States




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                                      No. 13-50734
Sentencing Guidelines § 3A1.4. 1          That enhancement yielded a guidelines
range of 292–365 months.           Without the enhancement, Fidse’s guidelines
range would have been 46–57 months. The 60-month statutory maximums
for both of his offenses limited the effect of this vast increase in the guidelines
range, resulting in an effective range of 120 months.
       The district court held a lengthy sentencing hearing over two days at
which the government offered evidence in support of the terrorism
enhancement.       Mark Wagoner, an FBI special agent specializing in East
African terrorist groups who worked on Fidse’s case, testified about the
history of al Shabaab. He explained that following the chaos of the Somali
Civil War, Islamic Courts were convened to handle criminal complaints and
other matters; forces aligned with the Islamic Courts eventually invaded
Somalia’s capital. In response, the Somali Transitional Government asked
the Ethiopian army to invade the country in order to remove the Islamic
Courts from power.        Al Shabaab emerged after the defeat of the Islamic
Courts and began fighting the Ethiopian forces and the Somali Transitional
Government.       The State Department designated al Shabaab a Foreign
Terrorist Organization (FTO) in 2008.
       The testimony then turned to Fidse.                  Another detainee at the
immigration facility where Fidse was being held provided information that
Fidse adhered to a radical form of Islam and supported al Qaeda and Osama
bin Laden. The FBI equipped the detainee, known as “CHS 1” (Confidential
Human Source 1), with a recording device. After CHS 1 was deported, the




       1The PSR additionally applied the following offense level increases: three levels for
substantial interference under § 2J1.2(b)(2); four levels for aggravated role under
§ 3B1.1(a); and two levels for obstruction of justice under § 3C1.1. The district court
overruled Fidse’s objections to all the enhancements. Fidse appeals only the terrorism
enhancement.
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FBI placed a second informant, “CHS 2,” in the facility. 2 According to the
FBI’s       transcription   of   these    discussions,    Fidse    outlined     a   detailed
hypothetical attack by al Shabaab 3 on the U.S. Ambassador in Kenya. 4 In
discussing that plan and in other conversations, Fidse demonstrated an
extensive knowledge of heavy weapons, including bazookas, AK assault rifles,
machine guns, and armed technical vehicles. Fidse also said he had paid
$100,000 for an armed technical vehicle and weapons that were used in a
battle in Idaale, Somalia. 5 Idaale was the site of a 2006 battle between al
Shabaab and Ethiopian forces.             Fidse said that all of the fighters on the
vehicle were killed and the vehicle and weapons were burned. Fidse said he
cried when Aden Hashi Ayrow, the leader of al Shabaab, was killed in a U.S.
airstrike and said that “the infidels must suffer some consequences.”
        The FBI then interviewed Fidse. 6 During the interview, Fidse made
numerous assertions at odds with his recorded statements. The agents then
confronted Fidse by playing the recordings.                 Fidse denied making the
statements on the recordings and denied any ties to terrorism. He conceded,
however, that he may have made statements supportive of terrorist groups.



        2CS1 and Fidse conversed in English. CS2 and Fidse conversed in Somali, and
these conversations were translated by both the government and the defense.
       3 In the recording, CS1 and Fidse use the term “Hizbul Islam” instead of al Shabaab.

Wagoner testified that, owing to confusion caused by a temporary splintering of al Shabaab
at the time of the conversation, Fidse and CS1 were actually referring to al Shabaab when
they used the term Hizbul Islam.
       4 Among other things they discussed while outlining the hypothetical attack, Fidse

and CS1 discussed how many cars and U.S. Marine guards the Ambassador might have and
what types of weapons the Marines would carry. Fidse suggested that those carrying out
the attack could use a military-style weapon called a “PKM” and could put mines in
strategic locations in the streets and wait in a car nearby, causing the Marines to “blow up.”
       5 This town has been referred to by the parties at various times as Egale, Idaale, and

Lidaale. All of these names refer to the same place—the village in Somalia where al
Shabaab fought the Ethiopian forces in 2006. For consistency and clarity, we use Idaale.
       6 A Somali interpreter was used and Fidse was given Miranda warnings, orally and

in writing.
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                                    No. 13-50734
      The     government     also   introduced     evidence   obtained   from    the
immigration detention facility. Among Fidse’s belongings was a cell phone
memory card that contained a Kenyan telephone number listed as “H-
mohamed.”      This corresponded to the number the FBI had on file for
Mohammed Hamid Suleiman, who had been arrested in Kenya for his role in
the 2010 al Shabaab bombing in Uganda.
      The defense called one witness, an investigator who had a different
interpretation of what was said by Fidse during the conversations with CHS
1 and CHS 2 and attributed the comments about the purchase of the armed
vehicle to another person.
      At the conclusion of the hearing, before making any factual findings or
legal conclusions concerning the terrorism enhancement, the district court
imposed a prison term of 48 months on each count to run consecutively. The
court reduced what would have otherwise been a Guidelines and statutory
maximum sentence of ten years by two years because of time Fidse had spent
in immigration custody that otherwise would not be credited against his
federal sentence. After the sentence was announced, the following exchange
took place:
      THE GOVERNMENT: Just two points, Your Honor. I take it that the
      Court determined that the PSR was correct and the Court did a
      variance?

      THE COURT: Yes. Yes. And the Court overrules all the objections . . .
      ROA. 1252.

                                        II.
      Fidse challenges the district court’s application of the terrorism
enhancement under U.S.S.G. § 3A1.4. Section 3A1.4 provides for a steep
offense level increase and an automatic increase to the maximum criminal
history category if “the offense is a felony that involved, or was intended to

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                                  No. 13-50734
promote, a federal crime of terrorism.” U.S.S.G. § 3A1.4(a); see United States
v. El-Mezain, 664 F.3d 467, 570 (5th Cir. 2011). The Guidelines rely on the
definition of “federal crime of terrorism” found in 18 U.S.C. § 2332b(g)(5). See
U.S.S.G. § 3A1.4 cmt. n.1.
      Fidse’s relevant offense of conviction—conspiracy to make false
statements—is not a “crime of terrorism” enumerated in § 2332b(g)(5). Even
so, a nonenumerated offense qualifies for the enhancement if it was intended
to promote—that is, “was intended to encourage, further, or bring about”—a
federal crime of terrorism. See United States v. Awan, 607 F.3d 306, 314–15
(2d Cir. 2010) (joining Sixth, Seventh, and Eleventh Circuits in holding that
under “intent to promote” provision, the defendant need not have “completed,
attempted, or conspired to commit [a federal crime of terrorism]; instead the
phrase implies that the defendant has as one purpose of his substantive
count of conviction or his relevant conduct the intent to promote a federal
crime of terrorism” (quotation marks omitted)).          Indeed, the Guidelines
expressly acknowledge that an obstruction offense may support the
enhancement, stating that an offense that involves “obstructing an
investigation of a federal crime of terrorism” is deemed to have involved, or to
have intended to promote, that federal crime of terrorism. U.S.S.G. § 3A1.4
cmt. n. 2. For example, the Fourth Circuit affirmed the application of the
terrorism enhancement to an obstruction offense that was not itself a crime of
terrorism because the defendant lied to the grand jury and FBI about
attending a jihadist training camp in connection with an investigation into
whether the defendant had committed the enumerated crime of providing
material support to a foreign terrorist organization.           United States v.
Benkahla, 530 F.3d 300, 312–13 (4th Cir. 2008).
      Although the terrorism enhancement thus may apply when the offense
of conviction is not itself a “federal crime of terrorism,” this situation requires
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                                      No. 13-50734
findings at the sentencing hearing.              Our sister circuits have stated that
before applying the enhancement to a defendant’s sentence when the offense
of conviction was not itself a federal crime of terrorism, the district court
“must identify which enumerated federal crime of terrorism the defendant
intended to promote, satisfy the elements of § 2332b(g)(5)(A), and support its
conclusions by a preponderance of the evidence with facts from the record.”
United States v. Arnaout, 431 F.3d 994, 1002 (7th Cir. 2005); see also United
States v. Ashqar, 582 F.3d 819, 826 (7th Cir. 2009); United States v. Graham,
275 F.3d 490, 517 (6th Cir. 2001); cf. United States v. Chandia, 514 F.3d 365,
376 (4th Cir. 2008); cf. El-Mezain, 664 F.3d at 571; cf. Benkahla, 530 F.3d at
313.
        What was the “federal crime of terrorism” under investigation that the
district court relied on to support the enhancement in Fidse’s case?                    The
district court did not expressly identify one, summarily stating after imposing
the sentence that it was adopting the PSR.               The PSR listed the relevant
federal crime of terrorism as “providing material support to a terrorist
(2339[A] and [B])” 7 and listed Fidse’s statements concerning the armed
vehicle, the hypothetical attack on the U.S. Ambassador, and his
terrorism-supporting views as the factual bases for the enhancement. On
appeal, Fidse identifies two problems with using his conduct in providing the
armed technical vehicle to al Shabaab for use in the 2006 battle as the federal


        7Although the PSR enumerated both 18 U.S.C. § 2339A and § 2339B as potential
“federal crimes of terrorism” under investigation, the government relied only on § 2339B to
support the enhancement. The provisions constitute two different offenses. Section 2339A
prohibits providing material support or resources or concealing or disguising the nature,
location, source, or ownership of material support or resources, knowing or intending that
they are to be used in preparation for, or in carrying out, a violation of certain enumerated
offenses (or attempting or conspiring to do so). By contrast, Section 2339B prohibits
knowingly providing material support or resources to a foreign terrorist organization
specifically (or attempting or conspiring to do so).         The statute defines “terrorist
organization” by reference to Section 219 of the Immigration and Nationality Act (INA).
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                                       No. 13-50734
crime of terrorism that was under investigation. For one thing, al Shabaab
had not been designated a Foreign Terrorist Organization in 2006. 8                      See
http://www.state.gov/j/ct/rls/other/des/123085.htm (listing al Shabaab’s date
of FTO designation as 3/18/2008). The government responds by arguing that
providing an armed vehicle to al Shabaab prior to 2008 would nonetheless
still be relevant to an ongoing conspiracy to provide support to group after it
was designated a terrorist organization. But this conspiracy offense was not
identified in the district court as the “federal crime of terrorism” that the FBI
was investigating, either in the PSR or in any government filing or argument.
It also suffers from a second challenge Fidse raises: the record is inconsistent
concerning whether the district court made a factual finding that Fidse was
involved in this alleged conduct.
       The district court treated the terrorism enhancement with the
seriousness that was warranted given the stakes to both the government and
Fidse. It held a two day sentencing hearing, during which it had to cope with
an extensive record complicated by language difficulties and rule on an
enhancement on which we have not provided guidance. The district court
admirably confronted these challenges, but the lengthy record that resulted
poses a dilemma for our review.            Although the district court stated after
imposing the sentence that it was generally adopting the PSR, which recited
the government’s evidence related to the purchase of the armed vehicle, it
made other comments during the hearing that discounted Fidse’s connection
to those events.       During the testimony of Juan Hernandez, the defense
investigator who testified about his review of the recordings and transcripts,



       8 Fidse did not raise this argument below in either his objections to the PSR or at the
sentencing hearing, focusing instead on his argument that it was not his voice, but a third
party’s, making the statements the government attributed to him regarding the armed
technical vehicle.
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                                 No. 13-50734
Fidse disputed that it was his voice on the recording discussing the purchase
of the armed vehicle for al Shabaab and attempted to provide evidence that a
third party to the conversation made those statements.        In response, the
district court said that it would be taking the issue “off the table” and would
“grant [the defense] that one,” implying that the court would not apply the
enhancement on the basis of any involvement with purchasing an armed
vehicle for al Shabaab. See ROA. 1202–05; ROA. 1224. But on at least two
other occasions in addition to its final adoption of the PSR, the district court
indicated it was accepting the government’s view that Fidse made the
statements about purchasing the armed vehicle.        On the first day of the
sentencing hearing, the district court stated that:
      [A]t this point in the proceeding the Court—I think this is undisputed,
      that—three things that have come out, talking about Marines and
      ambassadors, talking about armed vehicles and talking about the
      phone number to Mr. Suleiman. And, frankly, the Court is ready to
      make its decision on those three pieces of evidence and the Court’s
      interpretation and inference from that.

ROA. 1092; see also ROA 1189–90 (stating on day two of the hearing that,
among other things, the district court was considering “the armed vehicles
and buying armed vehicles”).
      The same inconsistent findings exist with respect to other evidence the
government relies on to support application of the enhancement. Although
the statement quoted above indicates the district court was also relying on
Suleiman’s phone number being found in Fidse’s phone card, the district
court later said that would give “very light weight, if any” weight to that
evidence.   ROA. 1241.     Finally, the district court stated that it would
“discount” Fidse’s extensive knowledge of heavy weapons because “[t]here are
a lot of people in the United States who are very knowledgeable about
various firearms. That doesn’t make them terrorists.” ROA. 1212–13.

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                                No. 13-50734
      These uncertainties surrounding both the factual findings below and
which federal crime of terrorism the district court relied on as the one under
investigation when Fidse lied to the FBI preclude meaningful review of the
merits of Fidse’s claim. See United States v. Lawal, 810 F.2d 491, 492–93
(5th Cir. 1987). We know neither the “federal crime of terrorism” benchmark
against which to evaluate whether the facts support such a finding nor the
facts that can be relied on in making that assessment. “For this Court to
resolve the ambiguity created by the district court’s statements would require
precisely the sort of second-guessing Rule 32[ ] is designed to prevent.” Id.;
cf. United States v. Zapata-Lara, 615 F.3d 388, 391 (5th Cir. 2010) (vacating
sentence and remanding for resentencing when district court applied two-
level enhancement and adopted PSR, but record left this Court not “sure
what rationale the [district] court had in mind to support the enhancement,
based on its limited statement”).
      The parties dispute the applicable standard of review. But even if plain
error applied to some of Fidse’s contentions, we would be unable to conduct
that deferential review given our inability to discern the facts found by the
district court. Without knowing the specific factual and legal basis for the
enhancement, we are unable to determine whether error occurred or whether
any error would have affected the district court’s decision to apply the
enhancement. See Puckett v. United States, 556 U.S. 129, 135 (2009) (stating
that plain error review requires a showing of clear error affecting the
appellant’s substantial rights, “which in the ordinary case means he must
demonstrate that it affected the outcome of the district court proceedings”)
(internal citation omitted).




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                                       No. 13-50734
        We therefore VACATE Fidse’s sentence and REMAND to the district
court for resentencing.      9   On remand, the district court of course is free to
conduct such proceedings as it deems necessary to address our concerns as
expressed in this opinion. See also United States v. Marmolejo, 139 F.3d 528,
531 (5th Cir. 1998) (“[T]he resentencing court can consider whatever this
court directs—no more, no less. All other issues not arising out of this court’s
ruling and not raised before the appeals court, which could have been
brought in the original appeal, are not proper for reconsideration by the
district court below.”).         In doing so, it should clarify its factual findings
concerning the alleged purchase of the armed vehicle, Suleiman’s cell phone
number, and other disputed information on which the current record is
ambiguous.      After making those Rule 32 findings, it may then determine
whether the factual record supports a conclusion that Fidse’s false
statements obstructed an investigation into a federal crime of terrorism. Any
ruling applying the enhancement should “identify which enumerated federal
crime of terrorism the defendant intended to promote.” Arnaout, 431 F.3d at
1002.




        9 Because we vacate the sentence on other grounds, there is no need to address
Fidse’s other argument that the district court considered an “improper factor” when
sentencing Fidse by asking the prosecutor if he had upheld his oath to do justice. In any
event, a prosecutor making these statements in response to a question posed directly by the
court is a quite different situation than engaging in unsolicited “vouching” in front of a jury.
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