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July 23, 2018

Spotlighting a remarkably thoughtful federal sentence in a remarkably challenging setting

Over at his blog Simple Justice, Scott H. Greenfield has this terrific new post spotlighting a terrific new sentencing opinion by US District Judge John Kane in US v. Jumaev, No. 12-cr-00033-JLK (D. Col. July 18, 2018) (available here). Because Scott's posting provide effective context and commentary concerning the case and sentencing, I will here just quote the first two paragraphs of Judge Kane's 44-page sentencing decision to clarify the core concern of the opinion:

After his co-defendant Jamshid Muhtorov informed him that the Islamic Jihad Union (IJU) was in need of financial support, Defendant Bakhtiyor Jumaev mailed Mr. Muhtorov $300. Mr. Jumaev wrote only a single check, and the funds never reached the IJU or any other foreign terrorist organization.  Mr. Jumaev had no specific plot or plan and did not intend to further any via his contribution. The idea to aid the terrorist organization was proposed and facilitated entirely by Mr. Muhtorov.  Indeed, Mr. Jumaev had no direct contact with the members of any terrorist organization.  And, significantly, he never committed any act of violence, nor did he advocate for any particular violent act.

Mr. Jumaev now comes before me for sentencing after having been found guilty by a jury of two counts in violation of 18 U.S.C. ยง 2339B, namely (1) conspiring and (2) attempting to provide material support in the form of $300 to the IJU, a designated foreign terrorist organization.  Although his actions certainly are sufficient for the jury to have found him guilty of these two very serious crimes, the above summary illustrates how his guilt rests on far less culpable conduct than that of all other defendants of which I have been made aware who have been convicted under the same statute.

At the risk of turning this matter into a parlor game, I wonder if readers might be inclined to share, before clicking through to the opinion, their predictions as to (a) the defendant's calculated guideline range, (b) the sentence was urged by federal prosecutors, and/or (c) the sentence imposed by Judge Kane.  Alternatively, I would also love to hear folks' opinions on just what kind of federal sentence someone should get for simply sending, upon request, a $300 check to support the Islamic Jihad Union.

July 23, 2018 at 12:46 PM | Permalink

Comments

My initial thoughts - the sentencing memo is fantastic - it reads like a PSR - lots of great info re: 3553(a) factors. Let me address your questions -

(a) - This case is about repayment of $300 to a person who didn't even know where to send the money - rightful conviction, but I agree with the Judge about the 3A1.4 enhancement and would not apply either. The 3A1.4 could and has applied to many of these similar cases and made for a very high guideline range - see https://minnesota.cbslocal.com/2013/05/16/minn-woman-gets-20-years-for-aiding-al-shabab/ - 2 women in MN raised $8,600 for jihad. They are by far more culpable and their sentences indicate so. It's actually refreshing to see the Judge grant a downward departure in this case - clearly applicable as well.
63 to 78 months is an appropriate guideline range. What's odd is the court rejected the sentencing guideline range yet still sentenced him to 76 months - albeit time served, still technically a guideline sentence.

(b) - The AUSA's request for 15 yrs is asinine! Look at the other cases - include the two women noted above - they are not on the same playing field. There is certainly a disparity or would be if the Judge imposed a 15 yr sentence. The fact the Judge took the time to compare other sentences speaks volumes. I wish more Judges did the same and not just in terrorism cases.

(c) - The sentence is appropriate - 76 months and (not in the BOP but in pretrial detention where he does not get access to Unicor (work programs) or other BOP programs - that time is harder than BOP time because of the lack of access to program not available in the local jail or detention facility.) Plus there a chance he could be deported - that in of itself is a fairly harsh punishment to face too.

Just my 2-cents.

Posted by: atomicfrog | Jul 23, 2018 3:35:53 PM

"Alternatively, I would also love to hear folks' opinions on just what kind of federal sentence someone should get for simply sending, upon request, a $300 check to support the Islamic Jihad Union."

A letter of thanks? Or would that too be a violation of some federal law?

Posted by: Daniel | Jul 23, 2018 8:07:58 PM

First of all, the greatest amount of guilt here goes to the "Holy" Quran, whose Verse of the Sword contains a clear instruction to kill unbelievers. From a standpoint of Scriptural interpretation, this can be, and often is, argued either way by different Muslims as to whether or not it should be taken literally. But the problem is that it is there, and it is at least arguable that it literally means what it says.

That obviously can't be changed. The question is what to do about it. Looking at the statute, an element of Jamaev's crime is that he was aware of what the IJU did. In other words, Jamaev was willing to send money to an organization, knowing that it was engaged in terrorism. Furthermore, it does not appear that after doing so, he decided to call the police or anything like that. He was apparently happy to help this "charity". (If there were credible evidence that he later tried to contact the authorities, I would be inclined to let him off completely.)

Additionally, $300 to support terrorism is no small matter. Even inexpensive terrorist attacks can kill a lot of people; even 9/11 probably only cost a few hundred thousand dollars to pull off.

In light of this, I would not be inclined to grant him any mercy whatsoever. I get it, he was significantly less culpable than Muhtorov, but he was still trying to "help" kill people, and to me, that's enough.

It is absurd that the judge decided this was not a "felony that involved, or was intended to promote, a federal crime of terrorism" (3A1.4).

Deterrence is vital. A message needs to be sent, loud and clear, that supporting terrorism is not OK in any way, shape, or form. I get it that the judge thought 78 months does that. I also disagree. I would have no problem giving him 20 years for this, and life to those who are more culpable than he is.

As context to this comment, I find a lot of terrorism-related sentences to be too lenient. I would routinely give death for terrorism-related crimes that seem to get life, and life for crimes that seem to get 20 or 30 years. I think the judge was correct that this defendant is less culpable than the others. My scale of culpability for this class of crimes is simply different, because of the unbelievably severe consequences when the crimes "succeed".

Posted by: William Jockusch | Jul 23, 2018 9:23:19 PM

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