PHILADELPHIA – The U.S. Court of Appeals for the Third Circuit has affirmed a terrorism-based sentencing enhancement, in the criminal case of an ISIS supporter who was arrested in June 2019 for planning to bomb a Nigerian-American church in Pittsburgh.
In a March 12 memorandum opinion, a three-judge panel from the Third Circuit comprised of Stephanos Bibas, David J. Porter and Arianna J. Freeman unanimously upheld such sentencing guidelines, for defendant Mustafa Mousab Alowemer.
Bibas authored the Court’s opinion in this matter.
“Alowemer was born in Syria, but fled its civil war. He got asylum here and moved to Pittsburgh. As a teenager, he lived a seemingly normal life, learning English quickly and graduating from high school. But in his spare time, Alowemer became a radical Islamist. He drank in online propaganda for ISIS (Islamic State of Iraq and greater Syria) and started chatting with ISIS supporters on Facebook. One of his contacts was an undercover FBI agent posing as an ISIS member. Alowemer told this agent that he wanted to return to Syria for jihad, asked for a gun with a silencer, and sent a video of himself pledging allegiance to ISIS’s leader,” Bibas said.
“Alowemer also asked to meet other ISIS ‘brothers’ in person. So the agent put him in touch with another agent posing as an ISIS member. During their meetings, they discussed ISIS’s goals and ideology; Alowemer shared ISIS propaganda, such as a video of the White House burning, with an ISIS flag being raised in the place of a tattered American flag. He was later found with similar videos, including one showing an ISIS banner spreading through northern Nigeria.”
According to Bibas, Alowemer then began proposing various attacks on ISIS’s behalf, before settling on a plan in bombing a Nigerian-American church in Pittsburgh. Alowemer hoped the bombing would “inspire other similar like-minded…supporters to carry out similar attacks” and suggested “leaving the ISIS flag” at the site afterwards “to be able to claim credit for ISIS.”
Alowemer then performed reconnaissance of the church, marked up maps of the area, created a detailed checklist for the attack and bought supplies to build a bomb. But before he could execute the attack, he was arrested and pleaded guilty to trying to materially support a terrorist group.
“At sentencing, after a hearing, the District Court applied a terrorism enhancement. It found that Alowemer’s attempted attack was ‘motivated at least in part…to support the cause of ISIS, to inspire other ISIS sympathizers present in the United States to join together and to commit similar acts in the name of ISIS, and to take revenge for ‘our ISIS brothers in Nigeria.’ So it concluded that his crime was ‘calculated to influence or affect the conduct of government’ and ‘to retaliate against the United States and Nigerian governments for their conduct in relation to ISIS brothers,” Bibas stated.
“The Court added a twelve-level terrorism enhancement, sentencing him to more than 17 years in prison. Alowemer now challenges that enhancement. We review the District Court’s reading of the sentencing guidelines de novo, its fact-finding for clear error, and its application of the sentencing enhancement for abuse of discretion.”
Bibas explained that a twelve-level terrorism enhancement for sentencing applies when a defendant’s crime was “a felony that involved, or was intended to promote, a federal crime of terrorism.” Moreover, a “federal crime of terrorism,” in turn, is a crime that both “(A) is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct”; and (B) “is a violation of one of various federal criminal laws.”
Since Alowemer conceded that tenet (B) applied to his crime, then all that remained for the Third Circuit to consider was whether his act was “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.”
In the minds of Bibas and his colleagues, it was.
“The government argues that we can infer Alowemer’s intent to influence the U.S. government from his support of ISIS. As the Fifth Circuit noted: ‘Supporting ISIS…is some evidence that [the defendant’s] conduct was calculated to influence or affect the conduct of the United States, because ISIS’s terrorist acts are intended to intimidate or coerce the United States.’ Alowemer responds that he intended only to harm and frighten Christians, not to influence government conduct. He also stresses that he targeted civilians and a church, not government officials or buildings. And he argues that triggering the enhancement requires the government to identify specific government conduct that he intended to influence. On that approach, his active support for ISIS was not enough,” Bibas said.
“That dispute is thorny. But we need not resolve it now because, whether Alowemer intended to influence or affect a government’s actions or not, he certainly ‘calculated [his crimes]…to retaliate against government conduct.’ When asked why he wanted to target the Nigerian-American church, he said he sought to avenge his ISIS brothers who had been killed in Nigeria while fighting against the government. He also ‘referred to U.S.…forces as crusaders invading the Middle East.’ So when he saw a U.S. soldier, he wanted to kill him ‘because [of what]…the U.S. military…was doing against his brothers and sisters in Baghuz,’ the site of a recent battle and one of ISIS’s last strongholds. And he suggested ‘hunting’ college students who ‘work with the military.’ Alowemer told us what he was trying to do: avenge ISIS fighters attacked by the United States and Nigeria. That by itself triggers the enhancement.”
Alowemer further claimed that the District Court clearly erred by not considering his childhood trauma and poor mental health when he made his online statements to the undercover FBI agent, but this argument also failed with the Third Circuit.
“For starters, at sentencing, Alowemer mentioned his mental health only in passing while discussing the terrorism enhancement. He did not call expert witnesses to testify about his trauma and post-traumatic stress until after the Court had decided to apply the enhancement. So the Court did not have to spell out how it factored in his mental health. Still, the District Court was thorough. It studied the filings, evidence and record carefully. Considering all of that, it found that the terrorism enhancement could apply. Then, once Alowemer put on expert testimony and himself testified about his mental health, the Court addressed it. The mental health evidence helped to explain why he had fallen in with ISIS, but his actions were still intentional, knowing and voluntary,” Bibas stated.
“Though Alowemer claims he was just going along with the agents’ suggestions, the evidence refutes that excuse. He proposed killing a soldier, bombing the Nigerian-American church, and planting a follow-up bomb. And his words were not empty. He carefully planned the church bombing, scoping out the location several times and mapping escape routes. He drew up checklists. He even bought the materials to make a bomb. So when he said he was planning to bomb the church in retaliation for government action against ISIS, the District Court reasonably took him at his word. Alowemer sought revenge for U.S. and Nigerian military action against ISIS. He retaliated by plotting to bomb a church. This retaliation against government conduct triggered the terrorism enhancement. And his mental health evidence does not undermine that intent. So we will affirm.”
U.S. Court of Appeals for the Third Circuit case 22-3217
U.S. District Court for the Western District of Pennsylvania case 2:19-cr-00219-001
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com