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
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 Sentencing Guidelines § 3A1.4.
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 FBI then interviewed Fidse.
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
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 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 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);
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])"
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, Fidse disputed that it was his voice on the recording
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.
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, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (stating that plain error review requires a showing of
We therefore VACATE Fidse's sentence and REMAND to the district court for resentencing.