3X Guidelines Sentence for Would-Be Jihadist Upheld

Khalil Abu Rayyan became fascinated by the Islamic State. He lauded videos exhorting murder, distributed on Twitter a photo of a jihadist-inspired execution, posted online another photo showing his readiness for violence on behalf of the Islamic State, and expressed Dirty Harry-like satisfaction watching videos of "Islamic State fighters throwing prisoners from the tops of buildings."

Lying on a federal firearms purchase form tripped Rayyan up. He bought a .22 caliber pistol and, while doing so, declared on the purchase form that he did not use illegal drugs. Two days later, things started to unravel when he was stopped by police for speeding and the .22, along with some marijuana, was recovered from his car. Apparently following his arrest, Rayyan admitted he'd "smoked marijuana regularly for years."

Unchastened, Rayyan attempted unsuccessfully to buy another firearm a month later. Again, he denied illegal drug use on the federal purchase form. But the vendor denied the sale because of Rayyan's arrest the previous month. Following this and perhaps in response, Rayyan and a friend went to a firing range where they shot an AR-15 and an AK-47; Rayyan later posted a photo online of himself with his rented AK-47 while "making a pro-Islamic State hand gesture." Soon after this episode Rayyan explained online to "an undercover FBI employee posing as a 19-year-old woman" his plan to commit mass murder at a church and regrets when the plan fell through.

Rayyan was charged with two firearms-related offenses: lying on a firearms purchase form, a violation of 18 U.S.C. 922(a)(6); and, a violation of 18 U.S.C. 922(g)(3), which bars regular illegal drug users from possessing a firearm. He pleaded guilty and his guidelines sentencing range was 15-21 months. At issue before the Sixth Circuit was the 60 month sentence imposed by the district court, which held a three-day sentencing hearing.

The Sixth Circuit affirmed the sentence, finding it both substantively and procedurally reasonable. The court summarized the evidence as follows: "Rayyan took an interest in a terrorist organization, lied to obtain a firearm, lied again while trying to buy another firearm, rented rifles for target practice while under investigation for firearms-related crimes, and discussed carrying out his own attacks with a woman he met online." The affinity for terrorism, history of thinking through how attacks might be conducted, and the willingness to "flout the law to obtain firearms" provided good grounds, the court concluded, for the district court's sentence.

Two other points warrant mention. One of Rayyan's contentions was that his sentence had improperly considered his online viewing habits and statements, a violation, he claimed, of his First Amendment rights. In response, the Sixth Circuit offered the conflicting assertions that "[a] defendant may have a right to post more or less what he wants [online]," but "the government may hold defendants to account for what they say if that speech and related conduct reveals a criminal element, a motive, or a factor that aggravates a sentence." Given the generality and breadth of the 3553 sentencing factors, this last iteration -- "a factor that aggravates a sentence" -- can be prone to misapplication.

Second, two psychologists, one retained by Rayyan and one by the government, both opined that he did not suffer from a mental illness predisposing him to violence. This evidence, however, did nothing, according to the Sixth Circuit, to undermine the district court's conclusion that Rayyan posed a serious risk to the community.

The decision is United States v. Rayyan.

Robert L. Abell

No comments: