Rana Sentencing: Judge Rejects Terror Enhancement
Tahawwur Rana, David Headley's co-defendant in the Chicago terror case related to the Mumbai bombings and planned attack on a Danish newspaper, was sentenced to 14 years today. The Government had sought a 30 year sentence.
Rana was convicted on two counts of a Superseding Indictment (Counts Eleven and Twelve) of conspiring to providing material support to a plot to attack a private newspaper in Denmark, the Jyllands-Posten, and providing material support to Lashkar e Tayyiba (“Lashkar” or “LeT”), a designated terrorist organization. The plot against the Jyllands-Posten was not executed, and no one was killed or injured.
Rana was acquitted on a third charge (Count Nine) which alleged that he conspired to provide material support to attacks in India, including the Mumbai attack in 2008. (Counts Nine and Eleven were charged as a conspiracy, Count 12 was charged as a substantive offense.)
The Judge rejected the Government's request to apply the terror enhancement guideline to Rana. Under the U.S. Sentencing Guidelines, the enhancement provides for a 12 level increase in the base offense level, and automatic placement in criminal history category VI (the highest category) if a defendant’s “offense is a felony that involved or was intended to promote a federal crime of terrorism.” [More...]
The judge also rejected the government's argument that the plot against the Danish newspaper was meant as a broader attack against the Danish government, amounting to an act of terrorism that should mean a harsher sentence.
Leinenweber said it seemed clear the plot was solely targeting an independent newspaper on private property, and he noted that there was no shortage of government targets in Copenhagen if they had wanted to strike at Denmark's leaders.
Prior to trial, the Government filed Bills of Particular on the three counts. According to the defense,
The bills of particulars make the following clear. Count Nine charged conspiracy to provide material support to the activity in India, including the Mumbai attack. Count Eleven charged conspiracy to provide material support to the Jyllands-Posten plot. Count Twelve charged material support to Lashkar in relation to Mumbai and the Jyllands-Posten, but no other conduct....With regard to Count Nine, the only conduct in India in which Lashkar was alleged to be involved was the Mumbai attack in 2008.
The Probation Department found the terrorism enhancement applied to Count 11 but not Count 12. The defense argued the enhancement didn't apply to either, because the plot, which was designed to retaliate against a privately owned newspaper for publishing cartoons that were deemed offensive, was not, as the terrorism enhancement requires, “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.”
Under 18 U.S.C.§2332b(g)(5)(A), a federal crime of terrorism must be an offense that is “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” The burden is on the government to show by a preponderance of the evidence that the defendant had the “specific intent” to commit an offense that was “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.”
The defense argued in its Sentencing Statement:
Rana was not convicted of providing material support to Lashkar in general; for example, by providing them money to do what they pleased. Rather, Rana’s conviction on Count Twelve was based on specific instances of material support provided to support a specific plot only – the Jyllands-Posten plot. That plot, however horrific its details as explained by Headley, was not calculated to influence or retaliate against government conduct.
The Government argued the enhancement applied. But since the jury was given a special verdict on Count 12 in which it found death did not result to anyone from the conduct charged in Count Twelve, the LeT count, the defense argued:
By answering “no,” the jury indicated that the government failed to prove that any material support provided to Lashkar by Rana led to death. Because the Mumbai attack undeniably resulted in the death of 164 persons, the jury’s special verdict indicates that Rana was not connected to the Mumbai attack. Combined with Rana’s acquittal on the Mumbai material support conspiracy (Count Nine), the special verdict on Count Twelve indicates a wholesale rejection by the jury that Rana provided material support to Lashkar in relation to Mumbai.
...In light of the jury’s verdict, including the special verdict for Count Twelve, and the bills of particulars, the only permissible conclusion is that Rana was convicted of conspiracy to provide material support to the Jyllands-Posten plot (Count Eleven) and was convicted of substantively providing material support to Lashkar (Count Twelve), but only in relation to the Jyllands-Posten plot.
Had the terrorism enhancement been applied, Rana's sentencing guideline range would have been life according to the Government, and 30 years to life according to Probation. But since each charge carried a maximum of 15 years, the court would have had to sentence Rana consecutively on the counts to reach a 30 year sentence. Rana's lawyers argued the counts should not run consecutively because he was convicted of two offenses that involved the same conduct.
The defense argued Rana's offense level was 29: Base offense level of 33, less four levels for being a minimal participant. Without the terror enhancement, it argued, he would be in Criminal History Category I, with a sentencing range of 87-108 months.
Probation, applying the terror enhancement on one count, put his offense level at 41 (and criminal history category VI.) The Government had him at level 43 and criminal history category VI.
The defense also argued Rana, now age 52, had a heart attack in pre-trial confinement, and suffers from numerous ailments:
MCC medical records show that Rana also suffers from chronic kidney disease (Stage II), coronary atherosclerosis, hyperlipidemia, esophageal reflux, hypothyroidism, hemorrhoids, allergic rhinitis, asthma, bursitis, acute peptic ulcer with hemorrhage, acute sinusitis, nasopharyngitis, hyperthyroidism, abrasion or friction burn, shoulder pain, joint disorder, psoriasis, and muscle spasms.
Rana also, as of October 18, 2012, has been prescribed a large quantity of medications to treat blood disorders, high blood pressure, high cholesterol, asthma, sinus issues, GERD, and inflammation, among other drugs. ...He will likely at some point require dialysis due to his kidney disease, and is, of course, at risk for a second heart attack or vasovagal event.
The defense provided an expert report:
In his letter, Dr. Sageman opines that he does not believe that Rana was ever dangerous in the sense that he was personally violent, nor does he believe that Rana will be so in the future. More importantly, Dr. Sageman notes that Rana did not display the sort of signs or interests that are common in jihadi terrorists such as intensive interaction with jihadi websites and material. Nor does Rana display any indicator that he subscribed to violent jihadi beliefs, such as the belief that it was his personal duty to take action into his own hands, or the development of a “martial” self-identity as a soldier for Islam.
Dr. Sageman’s letter concludes that Rana’s actions seem to have been motivated by his desire to help and loyalty to Headley, rather than to directly assist terrorism ....Furthermore, as Dr. Sageman’s letter explains, Rana never took steps to support terrorism directly; his involvement was always in relation to Headley.
The defense told the court Rana's friendship with Headley, who will be sentenced Jan. 24 and faces up to a life sentence,is over and they will never be friends or communicate with each other again.
Given that Rana has never been involved with anything criminal before, and that he was never directly involved with the terrorist organizations at issue here, or even supportive of terrorist beliefs, the risk that Rana will ever be involved in criminal behavior in the future is non-existent. Quite simply, had Headley and Rana never attended the same boyhood school, Rana would not be before this Court today. While this does not excuse his convictions, it does make clear that a lengthy term of incarceration is unnecessary.
The defense also argued that the Court should take into consideration the harsh conditions of pre-trial confinement, which included 13 months in the Special Housing Unit, in virtual solitary confinement.
During his time in the SHU, Rana lived in solitary confinement in a small cell. Many of his days were spent entirely in the cell. Rana was not allowed outside recreation, and only permitted limited indoor recreation three days per week. He was also only permitted a shower three times per week He received severely limited phone and visiting time, had limited access to legal materials, and was subject to other onerous daily restrictions not placed on other inmates at the MCC
How did the judge arrive at 14 years or 168 months? While the order isn't yet available, it looks to me like he started at level 33 and refused to grant any reductions for mitigating role or increases for the terrorism enhancement. That leaves Rana at Level 33 and Criminal History Category I, and a range of 135 to 168 months. Far from giving Rana a break, he sentenced him to the top of the range, 168 months, rejecting the arguments for leniency. In imposing sentence, the judge said:
"It seems to me that people who are determined to carry out terrorist activity really do not care about what is going to happen to them. As long as Rana is in custody he is personally deterred from any personal such activity. "Providing a long sentence would make sure that Rana does not get involved in any kind of terrorist activity in the future".
Rana will get credit for his time in pre-trial confinement which began with his arrest on October 18, 2009. He will serve 85% of his sentence, since there is no parole, only good time of 54 days a year beginning after the first year. With good time, his sentence is around 143 months. With 39 months already served, I think he has around 104 months, or 8 1/2 years left to serve.
David Coleman Headley, the former DEA informant and heroin addict who cooperated and agreed to a life sentence to avoid the death penalty, is scheduled to be sentenced Jan. 24. His lawyers have filed no sentencing pleadings, according to the docket. His plea agreement says he cannot be extradited to India to face charges. Rana has no such agreement.
After the sentencing, the parties told the media:
"We think the judge made the right ruling," defense attorney Patrick Blegen said, adding that he intends to appeal Rana's conviction because the judge refused to separate the Denmark and Mumbai charges. "I had always been our belief that it would be very difficult to get a fair trial if he had to face charges for two separate plots at once."
Prosecutors, who had sought a sentence of up to 30 years, issued a written statement in which Acting U.S. Attorney Gary S. Shapiro called the 14-year term a "serious" sentence "that should go a long way towards convincing would-be terrorists that they can't hide behind the scenes, lend support to the violent aims of terrorist organizations and escape detection and punishment."
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