04-2643-cr (Lead), 04-3200 (XAP) USA v. Salim

1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 4 August Term 2007 5 6 (Argued: May 13, 2008 Decided: December 2, 2008) 7 8 Docket No. 04-2643-cr 9 -----------------------------------------------------x 10 UNITED STATES OF AMERICA, 11 12 Appellee-Cross-Appellant, 13 14 -- v. -- 15 16 MAMDOUH MAHMUD SALIM, 17 18 Defendant-Appellant-Cross-Appellee. 19 20 -----------------------------------------------------x 21 22 B e f o r e : NEWMAN, WALKER, and SOTOMAYOR, Circuit Judges.

23 Appeal by Defendant Mamdouh Salim from a 32-year sentence,

24 entered in the United States District Court for the Southern

25 District of New York (Deborah A. Batts, Judge), following a

26 guilty plea to conspiracy to murder and attempted murder of a

27 federal official in violation of

and 1117. The

28 United States cross-appeals on the ground that the district court

29 erroneously refused to apply the terrorism sentencing enhancement

30 of section 3A1.4 of the United States Sentencing Guidelines on

31 the basis that the offense conduct did not transcend national

32 boundaries.

33 VACATED and REMANDED.

34

-1- 1 RICHARD LIND, New York, N.Y., 2 for Defendant-Appellant-Cross- 3 Appellee. 4 5 JONATHAN S. KOLODNER, 6 Assistant United States 7 Attorney, of counsel, (Celeste 8 L. Koeleveld, Assistant United 9 States Attorney, of counsel, 10 on the brief), for Michael J. 11 Garcia, United States Attorney 12 for the Southern District of 13 New York, New York, N.Y., for 14 Appellee-Cross-Appellant.

15 JOHN M. WALKER, JR., Circuit Judge:

16 Defendant-Appellant Mamdouh Mahmud Salim (“Salim”) appeals

17 from the 32-year sentence imposed in the Southern District of New

18 York (Deborah A. Batts, Judge) following his guilty plea to

19 conspiracy to murder and attempted murder of a federal official

20 in violation of

and 1117. Salim contends that

21 the district court erroneously applied several sentence

22 enhancements under the United States Sentencing Guidelines

23 (“U.S.S.G.”), including the enhancements for “Obstructing or

24 Impeding the Administration of Justice,” U.S.S.G. § 3C1.1, for an

25 “Official Victim,” U.S.S.G. § 3A1.2, and for “Restraint of

26 Victim,” U.S.S.G. § 3A1.3. On cross-appeal, the United States

27 contends that the district court erred in failing to apply the

28 “Terrorism” enhancement of U.S.S.G. § 3A1.4, on the basis that

29 the offense conduct did not transcend national boundaries.

30 Because we reject Salim’s claims but agree with the government

31 that the terrorism enhancement does not require such

-2- 1 transnational conduct, we remand with directions to the district

2 court to vacate the sentence and resentence.

3 BACKGROUND

4 In 1999, Salim and others were indicted in the Southern

5 District of New York on charges related to the 1998 U.S. Embassy

6 bombings in Kenya and Tanzania. The case was assigned to Judge

7 Leonard Sand and Salim was housed in the maximum security wing of

8 the Metropolitan Correctional Center (MCC).

9 On November 1, 2000, Salim stabbed corrections officer Louis

10 Pepe in the eye with a sharpened comb. The charges arising from

11 this attack were ultimately severed from the underlying

12 proceedings before Judge Sand, and, on April 3, 2002, Salim

13 pleaded guilty to conspiring and attempting to murder officer

14 Pepe in violation of

and 1117 before Judge

15 Deborah Batts.

16 At the ten-day Fatico hearing, see generally United States

17 v. Fatico,

(2d Cir. 1978), the government presented

18 the testimony of seven witnesses, several pieces of forensic

19 evidence, and crime scene photographs to support its theory that

20 Salim and “unspecified others” had concocted and acted upon an

21 elaborate but ultimately fruitless plan to escape the MCC by

22 taking hostages.

23 Inmates at the MCC were rotated between cells every 21 days.

24 On October 25, 2000 (six days before the attack) Salim was moved

-3- 1 from Cell One to Cell Six of Unit 10-South, where his cellmate

2 was Khalfan Mohamed, a co-defendant in the embassy bombings case.

3 In a pre-hearing submission, Salim contended that he

4 attacked Pepe in an attempt to escape, not to take hostages.

5 During the Fatico hearing, however, Salim’s story changed. On

6 direct examination, Salim testified that during the summer of

7 1999, he had planned to escape the MCC with Mohamed Odeh, another

8 codefendant, but ultimately decided that the escape plan could

9 not work and abandoned it. Instead, Salim claimed, he attacked

10 Pepe to get his keys, unlock a visitation room on 10-South, and

11 attack his attorneys so that they would withdraw from

12 representing him and Judge Sand would have to grant substitute

13 counsel.

14 Salim claimed that he had grown increasingly frustrated with

15 counsel’s performance and had written a letter to Judge Sand on

16 February 22, 2000 requesting substitute counsel. Judge Sand held

17 a hearing and denied the request, telling Salim that it was up to

18 him to solve his problems with his attorneys.

19 Salim wrote Judge Sand again on September 23 requesting

20 substitute counsel, and on October 2 thanking him for listening

21 to his problems and requesting a hearing before another judge.

22 Judge Sand referred the matter to Magistrate Judge Eaton, who

23 held a hearing on October 26, at which Salim (according to his

24 testimony at the Fatico hearing) insulted his attorneys and asked

-4- 1 “Are they waiting until I physically assault them? I didn’t say

2 physically, but I said assault.” In a letter dated October 27,

3 defendant expressed concern that he would not receive substitute

4 counsel and that he hadn’t been given “enough time to express

5 [his] problem with the lawyers.”

6 On October 30, Salim said he received a letter from

7 Magistrate Judge Eaton informing him of “his decision in writing,

8 not only verbally, that he will not allow attorney change.” He

9 then concluded that he “only had one recourse, to attack [his

10 lawyers] physically, and in that instance they will be

11 resigning.” He complained to his cellmate Mohamed, who agreed to

12 help Salim assault his lawyers, in part to atone for his “sin” of

13 testifying in a way that led to Salim’s imprisonment.

14 On November 1, according to Salim’s testimony, Salim was

15 awakened by Pepe, who informed him that his lawyers were in one

16 of 10-South’s visitation rooms. Pepe took Salim to the visiting

17 room. He usually met with his lawyers face-to-face, but because

18 Salim said he needed to use the computer, he ended up separated

19 from his attorneys by a screen. Salim then said he needed to get

20 some more material from his cell. As Pepe escorted him to his

21 cell, Salim began singing, which was a prearranged signal to

22 Mohamed to ready himself for the attack. On arriving in Cell

23 Six, Mohamed grabbed Pepe’s walkie-talkie, and Salim struck

-5- 1 Pepe’s legs from behind and sprayed hot sauce in his eyes.1 With

2 Pepe on the floor, Salim attempted to turn him over to get his

3 keys. Salim says he then “became crazy” and stabbed Pepe in the

4 eye with his sharpened comb-knife. The weapon penetrated the

5 corrections officer’s eye and entered his brain. Salim then

6 locked Pepe in the cell and started back to the visitation room,

7 at which point other corrections officers arrived and subdued

8 him.

9 On September 25, 2003, the district court, in a lengthy

10 opinion, rejected the government’s theory that Salim’s assault on

11 Pepe was motivated by a hostage-taking/escape plan. United

12 States v. Salim (“Salim I”),

, 300-01

13 (S.D.N.Y. 2003). The district court concluded that Salim’s plan

14 was to attack his attorneys and thereby force Judge Sand to grant

15 his substitution motion. As a result, the district court

16 determined that the attack on Officer Pepe was designed “to

17 influence or affect by intimidation or coercion Judge Sand’s

18 decision whether or not to substitute Defendant’s counsel and

19 also was calculated to retaliate against judicial recommendations

20 and orders denying Defendant’s applications for substitute

21 counsel.”

. The district court observed that Salim’s

22 numerous requests for substitution were denied, showing that

1 1 A commissary request from October 26, the date of Salim’s 2 hearing before Magistrate Judge Eaton, showed that Salim 3 requested five bottles of hot sauce and received two on that day.

-6- 1 Salim knew Judge Sand “had ultimate authority to replace” his

2 attorneys.

.

3 The district court also found that Salim’s alternative

4 explanation, that he only wanted to force the attorneys to

5 resign, and was unconcerned with Judge Sand’s actions, was

6 “incredible,” as “[d]efendant clearly did not believe his

7 attorneys could unilaterally withdraw or resign from his case.”

8

.

9 In calculating Salim’s Guidelines sentence, the district

10 court found, inter alia, that a three-level enhancement applied

11 under U.S.S.G. § 3A1.2(a) (the Official Victim enhancement)

12 because “Defendant attacked Officer Pepe while Pepe was

13 performing his official duties,” and a two-level enhancement

14 under U.S.S.G. § 3A1.3 (the Restraint enhancement) because “Pepe

15 was physically restrained during the attack.” Id. at 308-09.

16 The district court declined to apply the terrorism

17 enhancement of U.S.S.G. § 3A1.4, which incorporates the term

18 “Federal crime of terrorism” defined in 18 U.S.C. § 2332b(g). In

19 so holding, the district court’s decision culminated in the

20 following conclusions:

21 From the plain text of 18 U.S.C. § 2332b, the following is 22 clear: 1.) Section 2332b(g), which inter alia, sets forth a 23 definition for “Federal crime of terrorism,” explicitly 24 directs this definition to be construed “As used in this 25 section;” 2.) Section 2332b(f), wherein the term “Federal 26 crime of terrorism” is used, vests the Attorney General with 27 authority to investigate Federal crimes of terrorism, with 28 such authority being “in addition” to that already available

-7- 1 under Title 18; 3.) the Attorney General already has broad 2 authority to investigate crimes under Title 18; 4.) Section 3 2332b is entitled and addresses “Acts of terrorism 4 transcending national boundaries” (emphasis added); and 5.) 5 Section 2332b(g)(1) recites that “conduct transcending 6 national boundaries” means conduct occurring outside of the 7 United States in addition to the conduct occurring in the 8 United States. From the foregoing, it is apparent that a 9 “Federal crime of terrorism” is one that meets the 10 requirements at § 2332b(g)(5) and involves “conduct 11 transcending national boundaries.” 12 13 Id. at 339. Because Salim’s assault on Officer Pepe did not meet

14 the latter requirement, the district court held that the

15 terrorism enhancement did not apply. Id. at 354.

16 The district court initially declined to impose an

17 “obstruction of justice” enhancement under U.S.S.G. § 3C1.1 based

18 on inconsistencies between Salim’s testimony at the Fatico

19 hearing and his pre-hearing submissions to the court. Id. at

20 315. On reconsideration, however, the court granted the

21 government’s motion for this enhancement based on a different

22 theory, concluding that “Defendant testified untruthfully under

23 oath about a material fact with the specific intent to impede or

24 obstruct justice.” Order at 7, United States v. Salim

25 (“Obstruction Order”), No. 01-cr-002 (S.D.N.Y. Apr. 7, 2004).

26 After applying the relevant enhancements, the district court

27 calculated Salim’s guidelines range at 262-327 months

28 imprisonment. It then applied an upward departure under U.S.S.G.

29 § 5K2 and imposed a 32-year sentence. On a Crosby remand, see

30 United States v. Crosby,

(2d Cir. 2005), the

-8- 1 district court decided not to resentence. Salim filed the

2 instant appeal claiming the district court improperly enhanced

3 his sentence, and the government cross-appealed the district

4 court’s decision not to apply the terrorism enhancement.

5 DISCUSSION

6 We review a district court’s imposition of sentence under

7 “an abuse-of-discretion standard.” Gall v. United States, 128

, 597 (2007). “The abuse-of-discretion standard

9 incorporates de novo review of questions of law (including

10 interpretation of the Guidelines) and clear-error review of

11 questions of fact.” United States v. Legros,

, 474

12 (2d Cir. 2008). “[I]mproperly calculating” the applicable

13 “Guidelines range” constitutes a “significant procedural error”

14 warranting remand for resentencing under this standard. See

15 Gall, 128 S. Ct. at 597.

16 Salim argues that the district court improperly calculated

17 the applicable Guidelines range by erroneously applying the

18 obstruction of justice, official victim, and restraint of victim

19 enhancements. The government argues that the district court

20 erred by refusing to apply the terrorism enhancement on the basis

21 that a “Federal crime of terrorism” must involve transnational

22 conduct. We address each argument in turn.

23 I. The Obstruction of Justice Enhancement

24 “[T]o base a § 3C1.1 enhancement [for “Obstructing or

-9- 1 Impeding the Administration of Justice”] upon the giving of

2 perjured testimony, a sentencing court must find that the

3 defendant 1) willfully 2) and materially 3) committed perjury,

4 which is (a) the intentional (b) giving of false testimony (c) as

5 to a material matter.” United States v. Zagari,

,

6 329 (2d Cir. 1997). The district court found that Salim

7 willfully gave perjured testimony at the Fatico hearing regarding

8 his motive for his scheme to assault his lawyers. Specifically,

9 Salim falsely claimed “that he did not intend to affect Judge

10 Sand’s determination” to grant substitute counsel, and stated

11 that he only wanted to force his lawyers to resign of their own

12 volition. See Obstruction Order at 6.

13 A. Material and False Statements

14 Salim first contends that his motive for attempting to

15 attack his lawyers was not material because he only pleaded

16 guilty to attacking Pepe and not to any offense based on his

17 alleged plan to assault his lawyers.

18 This argument relies on an impermissibly narrow notion of

19 materiality. “‘Material,’” for the purposes of the obstruction

20 enhancement, “means evidence, fact, statement, or information

21 that, if believed, would tend to influence or affect the issue

22 under determination.” U.S.S.G. § 3C1.1 n.6 (emphasis added).

23 The issue under determination was whether the terrorism

24 enhancement applied, i.e., whether the attempted murder of Pepe

-10- 1 was “calculated to influence or affect the conduct of government

2 by intimidation or coercion, or to retaliate against government

3 conduct.” 18 U.S.C. § 2332b(g)(5). In short, the district court

4 had to determine the purpose of Salim’s attack. See Salim I, 287

5 F. Supp. 2d at 290 (“The purpose of the Fatico hearing was to

6 adduce facts sufficient to establish Defendant's intent in

7 attacking Officer Pepe on November 1, 2000.”).

8 Absent Salim’s statements, the district court could have

9 concluded, for example, that the assault on Pepe was an isolated

10 incident, fueled by anger at Magistrate Judge Eaton’s recent

11 adverse recommendation and Judge Sand’s prior refusal to

12 substitute counsel. Testimony that the assault was part of a

13 larger plan and statements alleging a credible motive for such a

14 plan would, if believed, undoubtedly make the district court less

15 likely to draw this conclusion, and therefore less likely to

16 conclude that Salim attacked Pepe in retaliation for government

17 conduct (a motive warranting application of the terrorism

18 enhancement). They are therefore material.

19 As to the element of falsity, the district court found that

20 Defendant’s testimony that he believed substitution of 21 counsel would have occurred but for “the lawyers themselves” 22 is incredible. Defendant clearly did not believe his 23 attorneys could unilaterally withdraw or resign from his 24 case–Defendant sent letters to Judge Sand, requesting 25 substitution of counsel . . . and Defendant repeatedly 26 interrupted proceedings in 98-CR-1023 [the embassy bombings 27 proceeding] to address his requests to substitute counsel to 28 Judge Sand. 29

-11- 1 Salim I,

. These conclusions represent

2 findings of fact on the falsity of Salim’s statements. Thus, we

3 can only reverse them if they are clearly erroneous. United

4 States v. Agudelo,

(2d Cir. 2005).

5 Salim contends that his testimony at the Fatico hearing was

6 consistent, rather than “evasive and contradictory,” Obstruction

7 Order at 7. We disagree. The record supports the district

8 court’s characterization of falsity: Salim knew that Judge Sand

9 had the authority to change his lawyers but had denied Salim’s

10 request to do so, and that Judge Eaton had recommended denying

11 Salim’s most recent request. However, Salim denied believing

12 that the judge would have no choice but to appoint new lawyers if

13 Salim attacked them. Moreover, Salim testified that he planned

14 to attack his lawyers in order to obtain substitute counsel, but,

15 during re-direct, he stated that he would never have attacked his

16 lawyers in a hostage-taking scheme because “[i]n Islam it is not

17 permissible for me to attack any lawyer as long as he represents

18 me.” Faced with such conflicting indicia of motive and belief,

19 it would not be clearly erroneous for the district court to

20 conclude that, for example, Salim made a false statement when he

21 stated his belief that Judge Sand “had no problem giving me other

22 lawyers, but the problem was the lawyers themselves, they didn’t

23 want to resign.” Salim I,

.

24

-12- 1 In his reply brief, Salim argues that his testimony on the

2 issue of attorney substitution or withdrawal was certainly

3 plausible in light of both “the chronology of court proceedings

4 in the Embassy Bombing case,” and an examination of a court

5 transcript containing language by Judge Sand that if remedial

6 attempts by the court to ameliorate the relationship between

7 Salim and his attorneys was not working, the court would consider

8 whether new counsel should be appointed. Appellant’s Reply Br.

9 at 8. Even if we accept this contention, it would not establish

10 clear error. “Where there are two permissible views of the

11 evidence, the factfinder’s choice between them cannot be clearly

12 erroneous.” Anderson v. Bessemer City,

(1985).

13 Accordingly, this argument fails.

14 B. Guidelines Section 3C1.1 and “blatant perjury”

15 Citing United States v. Williams,

(2d Cir.

16 1996), and United States v. Catano-Alzate,

(2d Cir.

17 1995), Salim contends that this court will not uphold an

18 obstruction enhancement “where a district court made no findings

19 that the allegedly false statement constituted blatant perjury.”

20 Appellant’s Br. at 64. Neither case supports this argument.

21 Williams and Catano-Alzate both interpret United States v.

22 Dunnigan,

(1993), in which the Supreme Court

23 advised that, when imposing the obstruction enhancement, “it is

24 preferable for a district court to address each element of the

-13- 1 alleged perjury in a separate and clear finding.” The sentences

2 in Williams,

, and Catano-Alzate,

,

3 were vacated because the district court failed to make specific

4 findings as to the elements of the enhancement.

5 Here, by contrast, the district court issued a written order

6 citing Dunnigan and explicitly finding that Salim’s statements

7 were “false,” and “made intentionally.” Obstruction Order at 5-

8 6. It also found that the statements, “[i]f believed[,] . . .

9 would have impacted the Court’s analysis of whether Defendant

10 intended to influence or affect Judge Sand’s decision . . . the

11 very basis for the Court’s finding” as to the terrorism

12 enhancement.

This language, which largely tracks the

13 definition of “material” used in § 3C1.1 n.6, plainly constitutes

14 a “separate and clear finding” of the materiality element under

15 Dunnigan. See

. Finally, having found all of the

16 elements of perjury, the district court went on to find that the

17 perjury was committed “in an attempt to obstruct justice.”

18 Obstruction Order at 7. The district court plainly found all of

19 the elements of § 3C1.1 by a preponderance of the evidence, and

20 nothing in Dunnigan, Williams, or Catano-Alzate requires more.

21 C. Intent to Obstruct Justice

22 The district court found that Salim’s “false statements

23 were provided in an attempt to obstruct justice.” Obstruction

24 Order at 7. This finding was not clear error. First, as noted

-14- 1 above, we credit the district court’s characterization of Salim’s

2 statements as evasive and contradictory. Second, the district

3 court found, in its earlier order following the Fatico hearing,

4 that Salim’s attack was motivated, in part, by a desire to

5 retaliate against Magistrate Judge Eaton’s recent adverse

6 recommendation regarding Salim’s efforts to obtain substitute

7 counsel. Salim I,

. If this finding is

8 correct, Salim’s failure to mention this desire when asked to

9 describe his motive strongly suggests that his false testimony

10 was made with the specific intent to obstruct justice.

11 Salim argues that the district court’s finding as to his

12 retaliatory motive was erroneous because he did not receive

13 notice of Judge Sand’s latest denial of his motion until nine

14 days after he attacked Pepe. However, the district court’s

15 finding was that the attack “also was calculated to retaliate

16 against judicial recommendations and orders denying Defendant’s

17 applications for substitute counsel.”

(emphasis added).

18 This finding plainly refers to Judge Sand’s previous denials and

19 Magistrate Judge Eaton’s adverse recommendation, and not just to

20 Judge Sand’s October 31 denial. Because Salim knew of the former

21 orders and recommendation, his alleged ignorance as to the latter

22 order does not render the finding of retaliatory motive clearly

23 erroneous. As a result, there was no clear error in the district

24 court’s resultant conclusion that Salim testified with an intent

25 to obstruct justice.

-15- 1 The fact that the district court applied a theory of the

2 terrorism enhancement different from the one urged by the

3 government does not alter our calculus. As suggested above,

4 supra Part I.A, the issue at the Fatico hearing was whether the

5 enhancement covered Salim’s conduct, not whether the government’s

6 theory that Salim was attempting to take hostages to escape the

7 MCC was correct. Accordingly, the district court’s finding, in

8 support of the obstruction of justice enhancement, that Salim

9 willfully made false statements was not clearly erroneous.

10 II. The Official Victim Enhancement

11 The district court granted a three-level upward enhancement

12 under U.S.S.G. § 3A1.2(a) because Salim’s victim was a government

13 officer and Salim’s offense “was motivated by Officer Pepe’s

14 official status.” Salim I,

.

15 Salim first cites United States v. Goolsby,

,

16 1081 (8th Cir. 2000), where a defendant, awaiting sentencing for

17 a drug conviction, assaulted a federal corrections officer during

18 an escape attempt. The Eighth Circuit held that the enhancement

19 could not be applied to the drug conviction because the officer

20 was not a victim of the drug offense.

. Goolsby is

21 readily distinguishable, however, because the underlying offense

22 here is attempted murder of a federal officer, and Pepe is

23 plainly the victim of this offense.

24

-16- 1 Next, Salim asserts that there was no proof that his offense

2 was motivated by Pepe’s official status. But Salim’s testimony

3 showed both knowledge of Pepe’s status and an assault committed

4 to obtain a key that Pepe possessed only as a result of this

5 status. Given this evidence, the district court’s finding that

6 the assault was motivated by the victim’s official status was not

7 clear error. See United States v. Bailey,

, 182

8 (11th Cir. 1992) (finding that robbery was motivated by official

9 status when “defendant robbed the postmistress because, as a

10 postal employee, she was in possession of money orders and a

11 money order validation machine”).

12 Finally, Salim argues that this enhancement should not apply

13 to an offense that specifically incorporates an officer’s status.

14 In United States v. Padilla,

(2d Cir. 1992), we

15 rejected a similar argument with respect to

,

16 which proscribes the assault of a federal officer, because the

17 enhancement, unlike the underlying statute of conviction,

18 required knowledge of the victim’s status. Salim’s statute of

19 conviction,

, while incorporating the victim’s

20 official status as an element, does not require proof that the

21 motivation for the attack was the victim’s status. Thus,

22 applying the enhancement here does not involve “impermissible

23 double counting” because “the guideline enhances for an

24 additional factor that will not be present in every conviction”

-17- 1 under the statute. Padilla,

.

2 III. The Restraint of Victim Enhancement

3 The district court granted a two-level upward enhancement

4 under U.S.S.G. § 3A1.3 because Officer Pepe was physically

5 restrained in the course of the offense. Salim I,

2d at 310. Salim argues that any restraint of Pepe after he was

7 disabled by the stabbing did not add to the basic crime. We

8 disagree. By pleading to attempted murder, Salim admitted that

9 he stabbed Pepe with murderous intent. Handcuffing a victim and

10 locking him in a cell after a potentially lethal attack prevents

11 a victim from seeking aid and thereby adds to the underlying

12 offense of attempted murder. See United States v. Rosario, 7

(2d Cir. 1993) (finding that restraint facilitated,

14 rather than constituted, the offense of conviction when “the

15 victim could do nothing about [his] situation because of the

16 physical restraint” (alteration in original) (internal quotation

17 marks omitted)).

18 IV. The Terrorism Enhancement

19 Section 3A1.4 of the Sentencing Guidelines provides that

20 “[i]f the offense is a felony that involved, or was intended to

21 promote, a federal crime of terrorism,” the offense level will be

22 increased by 12 levels (and be no lower than level 32) and

23 defendant’s criminal history category shall be Category VI.

24 U.S.S.G. § 3A1.4. The commentary to that section provides that

-18- 1 “‘federal crime of terrorism’ has the meaning given that term in

2 18 U.S.C. [§] 2332b(g)(5).” Id. n.1.

3 In turn, 18 U.S.C. § 2332b(g)(5) provides that

4 the term “Federal crime of terrorism” means an offense that– 5 (A) is calculated to influence or affect the conduct of 6 government by intimidation or coercion, or to retaliate 7 against government conduct; and 8 (B) is a violation of [certain enumerated sections, 9 including

]. 10 11 In its sentencing opinion, the district court found “that

12 Defendant’s attack on Officer Pepe was in furtherance of his

13 intent to affect or influence Judge Sand’s decision about

14 substitution of counsel, and was in retaliation for judicial

15 conduct denying Defendant’s applications for substitution of

16 counsel,” Salim I,

, and rejected Salim’s

17 claim that there was no evidence of these facts on the record.

18

. It also noted that “Defendant was convicted of an

19 offense enumerated at 18 U.S.C. § 2332b(g)(5)(B).” Id.

20 Despite its finding that Salim’s offense met both elements

21 of the § 2332b(g)(5) definition, the district court nonetheless

22 refused to apply the terrorism enhancement because it discerned a

23 third requirement. The district court held that “it is apparent

24 that a ‘Federal crime of terrorism’ is one that meets the

25 requirements at § 2332b(g)(5) and involves ‘conduct transcending

26 national boundaries.’” Id. at 339 (emphasis added) (quoting 18

27 U.S.C. § 2332b(a)(1)). Because Salim’s offense did not satisfy

-19- 1 this third requirement, the district court concluded that the

2 terrorism enhancement was inapplicable.

3 The district court opined that “[t]his definition of a

4 ‘Federal crime of terrorism’” incorporating a “transnational

5 conduct” element “reconciles the textual directives of the

6 different subsections of 18 U.S.C. § 2332b, as well as the

7 specific and broad context in which the term ‘Federal crime of

8 terrorism’ occurs.” Id. We disagree, and conclude that the

9 district court’s interpretation is irreconcilable with the text

10 of both subsection (g)(5) in particular and section 2332b as a

11 whole.

12 Apart from its appearance in subsection (g), which defines

13 the terms used elsewhere in section 2332b, the term “Federal

14 crime of terrorism” is used only once in the statute. Section

15 2332b(f) provides in relevant part:

16 In addition to any other investigative authority with 17 respect to violations of this title, the Attorney General 18 shall have primary investigative responsibility for all 19 Federal crimes of terrorism, . . . , and the Secretary of 20 the Treasury shall assist the Attorney General at the 21 request of the Attorney General. 22 23 18 U.S.C. § 2332b(f) (emphasis added).

24 The district court concluded that, unless a “Federal crime

25 of terrorism” only referred to crimes involving transnational

26 conduct, subsection (f) would be meaningless because other

27 sections of Title 18 already give the Attorney General “broad

-20- 1 authority to investigate violations” of that Title. Salim I, 287

2 F. Supp. 2d at 338. Thus, in order for subsection (f) to convey

3 authority “[i]n addition to” the Attorney General’s existing

4 authority, “the extended authority must be in areas not before

5 authorized.” Id. Because the Attorney General already had

6 investigative authority over purely intra-national offenses under

7 Title 18, this section could not convey any additional authority

8 (despite its obvious intent to do so) unless Federal crimes of

9 terrorism covered only crimes involving conduct transcending

10 national boundaries.

11 This argument cannot be reconciled with the statutory text

12 of subsection (g)(5), in which a transnational conduct

13 requirement is nowhere to be found. The district court erred in

14 deriving such a requirement from its reading of subsection (f).

15 Subsection (f) does not give the Attorney General additional

16 “authority” to investigate Federal crimes of terrorism, it gives

17 that officer “primary investigative responsibility” for such

18 crimes. 18 U.S.C. § 2332b(f) (emphasis added). Whatever the

19 exact meaning of “primary investigative responsibility,” it is

20 plainly distinct from “investigative authority” because it

21 envisions an authority expressly superior to that possessed by

22 another actor. It is not meaningless to give an executive

23 officer primary investigative responsibility over a certain

24 category of crimes, even if he has pre-existing authority to

25 investigate the same crimes.

-21- 1 Prior to the passage of section 2332b, we presume, both the

2 Attorney General and the Secretary of the Treasury had certain

3 “investigative authority” with respect to violations of Title 18.

4 See, e.g.,

(d)(1) (giving the Secret Service, a

5 division of the Treasury Department, authority to investigate

6 offenses involving computer fraud). When subsection (f) became

7 effective, the Attorney General was given primary investigative

8 responsibility with respect to certain Title 18 crimes

9 (specifically, those offenses that constituted Federal crimes of

10 terrorism) over the Secretary of the Treasury. The district

11 court overlooked the fact that one official’s authority may be

12 enhanced by making it superior to that of another official, and

13 not just by increasing the number of crimes to which it extends.

14 As a result, subsection (f) is coherent on its face, and thus

15 undercuts any perceived need to read an extra-textual

16 “transnational conduct” element into the definition of Federal

17 crimes of terrorism.

18 The district court also asserted that its transnational

19 conduct element “harmonizes” the definition of Federal crime of

20 terrorism with the focus of section 2332b as a whole, “which is

21 ‘Acts of terrorism transcending national boundaries.’” Salim I,

22 387 F. Supp. 2d at 339 (quoting the title of 18 U.S.C. § 2332b).

23 We recognize that the offenses punished by section 2332b are

24 those “involving conduct transcending national boundaries,” 18

-22- 1 U.S.C. § 2332b(a)(1), but Salim was not charged with or convicted

2 of violating that statute. Our focus is only on subsection

3 2332b(g)(5), the particular subsection of section 2332b that the

4 Sentencing Commission cross-referenced in the commentary to

5 U.S.S.G. § 3A1.4. The sentencing enhancement for a federal crime

6 of terrorism is not limited to conduct that constitutes an

7 offense under section 2332b; it applies to any conduct that meets

8 the definition of subsection (g)(5). Congress could have defined

9 “Federal crime of terrorism” to include a requirement that the

10 offense conduct transcend national boundaries, but it did not.

11 Instead, it defined two distinct terms, “Federal crime of

12 terrorism” and “conduct transcending national boundaries,” and

13 neither term references the other. 18 U.S.C. § 2332b(g)(1),(5).

14 “[C]ourts must presume that a legislature says in a statute what

15 it means and means in a statute what it says there. When the

16 words of a statute are unambiguous, then, this first canon is

17 also the last: the judicial inquiry is complete.” Conn. Nat’l

18 Bank v. Germain,

(1992) (internal citations

19 and quotation marks omitted).2 Our refusal to incorporate a

20 transnational conduct element in the definition of “Federal crime

2 1 For this reason, Salim’s rule of lenity argument also fails. 2 See United States v. Canales,

(2d Cir. 1996) 3 (“The rule is inapplicable unless after a court has seized on 4 every thing from which aid can be derived, it is still left with 5 an amiguity.” (internal quotation marks and alterations 6 omitted)).

-23- 1 of terrorism” accords with the judgment of our sister circuits.

2 See United States v. Harris,

(5th Cir. 2005)

3 (“The definition of a ‘federal crime of terrorism’ . . .

4 encompasses many offenses, none of which has an element requiring

5 conduct transcending national boundaries.”); United States v.

6 Hale,

, 988 n.1 (7th Cir. 2006); see also United

7 States v. Dowell,

(10th Cir. 2005)

8 (assuming without deciding that the terrorism enhancement applied

9 to domestic terrorist acts involving the destruction of an IRS

10 office in Colorado Springs); United States v. Graham,

490, 496, 513-19 (6th Cir. 2001) (applying the “domestic

12 terrorism enhancement” to conduct by domestic militia that was

13 “planning to attack government targets on an unspecified future

14 date”).

15 Salim contends that the district court’s refusal to apply

16 the enhancement was correct for a separate reason: the rulings of

17 a judge do not constitute “government conduct” under

2332b(g)(5)(A). This argument is patently meritless. As the

19 district court properly observed, “it is hardly a novel

20 construction . . . to conclude that the ‘conduct of government’

21 embraces” judicial rulings, such as the substitution of assigned

22 counsel. Salim I,

. Salim cites no case

23 reaching a contrary conclusion. If a federal judge is a

24 “government official,” United States v. Adelman,

, 86

-24- 1 (2d Cir. 1999), it follows that a magistrate judge’s

2 recommendations regarding, and a district judge’s ruling on,

3 requests to substitute counsel constitute “government conduct”

4 for the purposes of 18 U.S.C. § 2332b(g)(5) and, by reference,

5 U.S.S.G. § 3A1.4.

6 As we have noted, Salim also argues that while his planned

7 attack on his lawyers may have been calculated to influence the

8 conduct of government, his actual attack on Pepe was not. We

9 reject this myopic view of the purpose of the attack. And even

10 if it were correct, this argument provides no basis for upholding

11 the district court’s refusal to apply the enhancement, because of

12 the district court’s alternative finding: that the attack on Pepe

13 was “calculated to retaliate against judicial recommendations and

14 orders denying Defendant’s applications for substitute counsel.”

15 Salim I,

. As noted previously, see supra

16 Part I.C, Salim has failed to demonstrate that this finding, a

17 second basis for applying the terrorism enhancement, was clearly

18 erroneous.

19 Because the district court fell into legal error by holding

20 that a Federal crime of terrorism must involve conduct

21 transcending national boundaries, we conclude that the sentence

22 imposed was unreasonable based on the procedural failure to

23 calculate the appropriate Guidelines range. See Gall,

at 597. As a result, we need not reach the question of whether

-25- 1 the district court appropriately departed upward from the

2 applicable Guidelines range under U.S.S.G. § 5K2. We have

3 considered the remaining arguments made by Salim and his counsel

4 and find them to be without merit.

5 6 CONCLUSION

7 For the foregoing reasons, we REMAND to the district court

8 with directions to VACATE Salim’s sentence and resentence in

9 accordance with this opinion.

-26-