Appeal from the United States District Court for the Western District of Texas.
For United States of America, Plaintiff - Appellee: Joseph H. Gay Jr., Assistant U.S. Attorney, Mark Twain Roomberg, Esq., Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, San Antonio, TX.
For Abdullahi Omar Fidse, also known as: Abdirahman LNU, also known as: Abdirahman Fidse, also known as: Abdullaho Fidse, Defendant - Appellant: Judy Fulmer Madewell, Assistant Federal Public Defender, Maureen Scott Franco, Federal Public Defender, Federal Public Defender's Office, Western District of Texas, San Antonio, TX.
Before JOLLY, COSTA, Circuit Judges, and ROSENTHAL, District Judge.[*]
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
applied a substantial sentencing enhancement that applies when " the offense is a felony that involved, or was intended to promote, a federal crime of terrorism." U.S.S.G. § 3A1.4(a).
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. That enhancement yielded a guidelines range of 292-365 months. Without the enhancement, Fidse's guidelines range would have been 46-57 months. The 60-month statutory maximums for both of his offenses limited the effect of this vast increase in the guidelines range, resulting in an effective range of 120 months.
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 ...