US v. Alhaggagi, No. 19-10092 (10-22-20)(M. Smith w/Ezra; dissent by Hurwitz). Should providing social media accounts for ISIS sympathizers trigger a GL enhancement under 3A1.4? Not in this case, explains the 9th, because there must be proof that providing as “material support” was intended to intimidate, coerce, or retaliate against government conduct. The GL enhancement, distinct from the conviction, requires a federal crime of terrorism; and the defendant’s specific intent. Here, the majority concludes, the court failed to make sufficient findings that the defendant specifically knew what to use his social media accounts would be used. The government had to carry the burden by clear and convincing evidence (it was a difference of 46-57 months to 360 – 564 months). The court’s failure to make the findings that supported such an increase was an abuse of discretion. (The court had departed down to 188 months – the govt asked for 396 months).

Dissenting, Hurwitz focuses on the standard of review of “abuse of discretion.” Hurwitz would find a sufficient record in the district court’s inferences that the defendant knew what ISIS would make use of his accounts to pressure or retaliate against the government. This was not an abuse of discretion. Hurwitz does acknowledge the district court could have come out the other way; but the abuse standard of review is a high one.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/10/22/19-10092.pdf