SAN FRANCISCO (CN) — A divided Ninth Circuit panel on Thursday vacated a 15-year sentence for a young man who bragged about plotting terror attacks in the San Francisco Bay Area, finding a judge wrongly applied a terrorism enhancement to impose a harsher penalty.
Oakland resident Amer Alhaggagi was 23 years old when he was sentenced in 2019 to 15 years and eight months in prison after pleading guilty to providing material support to terrorists — based on him opening social media accounts for the Islamic State — and three identity theft charges.
U.S. District Judge Charles Breyer applied a terrorism enhancement to lengthen Alhaggagi’s prison term, citing conversations with an undercover FBI agent and informant in which the defendant talked of bombing gay night clubs, setting fire to the Berkeley Hills, distributing poison-laced cocaine and giving homeless people backpacks full of explosives.
“His words were very dangerous,” Breyer said before handing down the sentence in February 2019. “Words matter.”
But on Thursday, a Ninth Circuit panel found Breyer failed to establish Alahaggagi intended to influence or retaliate against a government when he opened the social media accounts. Those are perquisites for applying a terrorism enhancement that can more than double a defendant’s prison sentence.
“The district court did not make sufficient factual findings concerning Alhaggagi’s knowledge of how the accounts he opened were to be used,” U.S. Circuit Judge Milan Smith, a George W. Bush appointee, wrote for the majority.
The panel remanded the case to Breyer’s court for reconsideration of whether a terrorism enhancement applies.
U.S. District Judge David Ezra, a Ronald Reagan appointee sitting on the panel by designation from the Eastern District of Hawaii, joined Smith in the majority opinion.
Breyer had rejected a probation office’s recommendation of a four-year prison sentence and three-year probation term, based on its finding that the terrorism enhancement did not apply. The prosecution pushed for a 33-year prison sentence and lifetime probation, arguing that Alhaggagi poses a danger to society.
Alhaggagi’s lawyers argued the defendant was simply a naïve young man who spun tall tales in online chat rooms to make himself look tough and said outlandish things about plotting terror attacks to shock people with no intention of following through.
A terrorism and national security expert testified in 2018 that the defendant was “all talk.” The expert, Marc Sageman, said Alhaggagi — who was born in the U.S. but spent many years in Yemen with his family — was out of school, not working and bored when he started going on Islamic State chat rooms, “trolling” girls, and bragging about plans to carry out terror attacks.
Sageman cited several online chat sessions in which Alhaggagi and others discussed bombs in sophomoric terms, referencing suicide bombers stuffing dynamite in their bums and comparing explosives to male genitalia with laughing emojis.
The defense said Alhaggagi’s motive for opening social media accounts was to curry favor with online jihadists so he could use them to get revenge on users that got his account suspended on the messaging app Telegram.
“He’s a coward,” Sageman said. “The reason he trolls online is because he doesn’t want to meet people face to face.”
Sageman also said Alhaggagi “ran the other way” and avoided an undercover agent after the man showed him what looked like bomb-making materials.
But the prosecution argued that Alhaggagi possessed a plethora of Islamic State-related material, including the group’s Dabiq magazine, replete with praise for IS’s fight against foreign governments. Alhaggagi also downloaded a bomb-making manual and made a video in which he pledged to fight Americans on behalf of IS. Alhaggagi also took photos of public transit stations allegedly intended as bombing targets.
A jailhouse informant testified that after his arrest, Alhaggagi spoke in jail about shooting police officers at a memorial service for a fallen officer and that he was involved with a sketch depicting a delivery truck blowing up the federal building in San Francisco, though no one saw him draw the image. The defense said Alhaggagi, being the youngest and most inexperienced person at Glenn Dyer Jail in Oakland, was scared and merely “talk[ing] a big game” to “impress the much older inmates.”
Disagreeing with his colleagues, U.S. Circuit Judge Andrew Hurwitz, a Barack Obama appointee, argued it was reasonable for Judge Breyer to conclude Alhaggagi’s “extensive preparations” to carry out attacks and “constant references to his violent plans” showed a “total lack of empathy.”
“Alhaggagi stated that the planned attacks were designed to instill fear in Americans, and cause drastic government reaction,” Hurwitz wrote in his 7-page dissent.
Hurwitz acknowledged that a judge could have reached the opposite conclusion based on the evidence, but he insisted that the appeals court’s role is limited - even in cases involving higher burdens of proof — “to determining whether a reasonable trier of fact could have reached the conclusions at issue.”
Alhaggagi’s attorney said Tuesday that this opinion creates a new standard in the Ninth Circuit, requiring courts to find specific intent to coerce or retaliate against a government to apply a “draconian” terrorism sentencing enhancement.
“The court recognized that acts that might generally support a terrorism organization, such as donations of food or medical supplies — or in this case, merely opening without using social media accounts — do not qualify for the enhancement,” attorney August Gugelmann, of the firm Swanson & McNamara, said in an emailed statement.
“Mr. Alhaggagi was young and foolish, and he said terrible things to the agents in this investigation,” Gugelmann added. “But he never intended to commit any act of violence, and he never intended to intimidate or coerce a government. We are pleased with the court’s ruling reversing the application of the enhancement.”
The U.S. Department of Justice did not immediately return an email request for comment.
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