 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued September 18, 2014          Decided October 31, 2014

                        No. 11-3003

                UNITED STATES OF AMERICA,
                        APPELLEE

                             v.

MADHATTA ASAGAL HAIPE, ALSO KNOWN AS HATTA HAIPE,
ALSO KNOWN AS USTADZ MADHATTA, ALSO KNOWN AS ABU
ABDULLAH AZIS, ALSO KNOWN AS COMMANDER HAIPE, ALSO
                  KNOWN AS HAIPE,
                     APPELLANT


        Appeal from the United States District Court
                for the District of Columbia
                   (No. 1:00-cr-00375-1)


    Diane S. Lepley, appointed by the court, argued the cause
and filed the brief for appellant.

    Chrisellen R. Kolb, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Ronald C.
Machen Jr., U.S. Attorney, and Elizabeth Trosman, Gregg A.
Maisel, and Anthony Asuncion, Assistant U.S. Attorneys.
                              2

   Before: ROGERS AND KAVANAUGH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.

   Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.

     WILLIAMS, Senior Circuit Judge:          The defendant,
Madhatta Asagal Haipe, pleaded guilty to four counts of
hostage-taking in violation of 18 U.S.C. §§ 1203 and 2 and
was sentenced in 2010. His conviction stems from his
leadership role in a December 1995 kidnapping of 16 civilians
from a recreation area in the southern Philippines, including
nationals of the Philippines and the United States. A factual
proffer agreed on by the parties explains that after Haipe and
his associates seized the hostages, Haipe released four,
demanding that they collect a ransom payment of at least
1,000,000 Filipino pesos (about $38,000 at the time) by 5 PM
the next day. He instructed them not to tell the authorities
about the kidnapping; if they did so, other hostages would be
killed. The released hostages managed to raise over a million
pesos. Despite Haipe’s stricture against contacting officials,
they brought a local mayor into the picture. Before any
ransom was paid, she and Haipe negotiated a deal whereby
Haipe accepted a lesser amount, coupled with a commitment
by the mayor to provide various benefits for the local Muslim
community, including financial support for existing schools
and hiring more Muslims for government jobs.

     Haipe’s claims on appeal relate solely to sentencing,
some aspects of which the plea agreement left open. His
primary arguments are that the court should have applied a
part of the Sentencing Guidelines that came into effect after
the offense, and that the court should not have applied the so-
called “terrorism enhancement,” United States Sentencing
Guidelines (“USSG”), § 3A1.4(a). Although the final offense
level computed by the district court under the Guidelines
                               3

yielded a sentence of life imprisonment, the court sentenced
Haipe to concurrent terms of 276 months in prison on each
count. The court also imposed concurrent terms of 60 months
supervised release.

     The Guidelines are now advisory, but the first step of the
sentencing court is to calculate the range they prescribe. Gall
v. United States, 552 U.S. 38, 49, 51 (2007). Even though
Haipe’s ultimate sentence of 276 months fell roughly in the
middle of the range his own theories would have produced
(235 to 293 months), a lower range would likely have
benefited him, as the properly calculated range frames the
district court’s exercise of its discretion. United States v.
Rodriguez, 676 F.3d 183, 192 (D.C. Cir. 2012).

     We review de novo Haipe’s purely legal claim—that the
district court should have chosen the later Guidelines. As to
the application of the Guideline to the facts, 18 U.S.C.
§ 3742(e) directs us to give the district court “due deference,”
which we have said lies “somewhere between de novo and
‘clearly erroneous.’” United States v. Kim, 23 F.3d 513, 517
(D.C. Cir. 1994). We find no error.

                             * * *

     The district court is normally required to apply the
Guidelines in effect at the time of sentencing. USSG
§ 1B1.11(a). This general rule obviously cannot trump the
Constitution’s ex post facto clause. Art. I, § 9, cl. 3. Thus, if
there is a substantial risk that application of the Guidelines in
effect at sentencing would result in a heavier sentence than
would the Guidelines in effect at the time of the crime, the
court must use the latter. United States v. Terrell, 696 F.3d
1257, 1260 (D.C. Cir. 2012). The Guidelines explicitly
implement that principle. USSG § 1B1.11(b)(1). The
principle is applicable here, as the 2010 Guidelines Manual,
                               4

thanks to a 2003 change under the PROTECT Act, Pub. L.
No. 108-21, § 104, 117 Stat. 650, 653 (2003), recommended a
much higher base offense level for the charged hostage-taking
than did the 1995 Manual. Compare USSG § 2A4.1(a) (2010)
(base offense level of 32 for kidnapping) with USSG
§ 2A4.1(a) (1995) (base offense level of 24 for kidnapping).

     The Guidelines also direct that in applying a Guidelines
Manual in effect on a particular date, the court is to apply that
Manual alone, not to mix and match from Manuals of
different dates. USSG § 1B1.11(b)(2). But in applying a
Manual of one vintage, the court “shall consider subsequent
amendments, to the extent that such amendments are
clarifying rather than substantive changes.” Id. Haipe invokes
this provision. He claims that a 1996 amendment to the
Guidelines’ criteria for the “terrorism enhancement” was
clarifying and that the district court should have considered
it—notwithstanding the advantage he gained from using the
1995 Guidelines, with their relatively low, pre-2003 base
offense level for kidnapping. At no point does Haipe explain
how any language in the 1996 amendment could have helped
him.

     In any event, § 1B1.11(b)(2) limits consideration of later
changes to clarifying amendments, and the 1996 change to
which Haipe points is substantive. It followed a congressional
directive to amend the Guidelines so that the “adjustment
relating to international terrorism only applies to Federal
crimes of terrorism, as defined in section 2332b(g) of title
18.” Antiterrorism and Effective Death Penalty Act of 1996,
Pub. L. No. 104-132, § 730, 110 Stat. 1214, 1303 (1996). The
cross-referenced definition of “Federal crime of terrorism”
lists acts that combine intimidation of government with
violation of various criminal provisions, many of which apply
inside as well as outside the United States, e.g., 18 U.S.C.
§ 37 (prohibiting violence at international airports, both within
                               5

and outside of the United States). 18 U.S.C. § 2332b(g)(5). It
represents a substantial shift in focus from 18 U.S.C.
§ 2331(1)(C), the definitional section cross-referenced in the
1995 Guidelines, which covered terrorist acts occurring
“primarily outside the territorial jurisdiction of the United
States” or transcending “national boundaries,” and which
contained no cross-reference to other criminal provisions.
The amendment’s substantive character is clear. United States
v. Wells, 163 F.3d 889, 899 (4th Cir. 1998); see also United
States v. Garey, 546 F.3d 1359, 1361-62 (11th Cir. 2008); see
generally United States v. Smaw, 22 F.3d 330, 333 (D.C. Cir.
1994).

    Haipe’s second major claim is that his crime did not
qualify for the enhancement even under the 1995 Guidelines.
Those provide for a 12-level increase if a felony “involved, or
was intended to promote, international terrorism,” USSG
§ 3A1.4 (1995). The Guideline refers to 18 U.S.C. § 2331,
which states that international terrorism means activities that:

    (A) involve violent acts or acts dangerous to human life
    that are a violation of the criminal laws of the United
    States or of any State, or that would be a criminal
    violation if committed within the jurisdiction of the
    United States or of any State;

    (B) appear to be intended–

         (i) to intimidate or coerce a civilian population;

         (ii) to influence the policy of a government by
         intimidation or coercion; or

         (iii) to affect the conduct of a government by
         assassination or kidnapping; and
                               6

    (C) occur primarily outside the territorial jurisdiction of
    the United States, or transcend national boundaries in
    terms of the means by which they are accomplished, the
    persons they appear intended to intimidate or coerce, or
    the locale in which their perpetrators operate or seek
    asylum . . . .

18 U.S.C. § 2331 (1994). Haipe does not dispute that his
actions met parts (A) and (C) of the definition, but claims that,
contrary to the finding of the district court, they were not
intended, as required by subsection (B)(ii), “to influence the
policy of a government by intimidation or coercion.” His
primary purpose, he argues with some support in the record,
was to raise money for his organization. App. Br. 11.

     But Haipe’s money-raising goals obviously do not
preclude a finding of intent to influence government policy.
As the court found, he released the hostages on the condition
that “the government take a host of actions to benefit the local
Muslim community which included fiscal and employment
policy changes,” a finding fully supported by the proffer.
Informing a government official that you will release hostages
on the condition that an official commit to specified policy
changes clearly “appear[s] to be intended” to “influence the
policy of a government” by intimidation and coercion—no
matter how desirable the policy changes may be.

     In making the finding supporting the enhancement, the
district court referred to other aspects of the kidnapping
episode as well, such as Haipe’s position as “a high official of
an organization with a sole purpose of establishing an Islamic
government.” We are unsure how this and some other
features mentioned by the court relate to the statutorily
required intent, under subsections (B)(ii) and B(iii), to
influence government policy or affect government conduct.
Further, given that a kidnapping will almost by definition
                              7

intimidate the victims and will typically coerce them and their
relatives or friends to pay ransom, we question whether the
court’s finding that “the kidnapping appeared intended to
intimidate a civilian population or coercive to pay ransom
money” could be thought to meet the standard of subsection
(B)(i). Were it enough, every (or virtually every) kidnapping
would ipso facto qualify for the terrorism enhancement. But
as Haipe conceded that he conditioned the hostage release on
government policy commitments, and such a bargaining
stance falls squarely within the statutory language, the
remoteness of some of the other factors does not require a
remand.

     Finally, Haipe claims that the district court erred in
failing to depart downward from the Guidelines based on his
incarceration before his extradition to the United States. But
defense counsel acknowledged in the district court that the
issue of time served was to be addressed by the Attorney
General through the Bureau of Prisons. The concession
accords with the prescription of 18 U.S.C. § 3585(b), as
construed in United States v. Wilson, 503 U.S. 329 (1992).

                            * * *

    The judgment of the district court is

                                                     Affirmed.
