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United States v. Tounisi

United States Court of Appeals, Seventh Circuit

August 21, 2018

United States of America, Plaintiff-Appellee,
Abdella Ahmad Tounisi, Defendant-Appellant.

          Argued August 7, 2018

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division No. 13 CR 328-1 - Samuel Der-Yeghiayan, Judge.

          Before Kanne, Scudder, and St. Eve, Circuit Judges.

          PER CURIAM.

         Federal agents thwarted Abdella Tounisi's plans to travel to Syria to join Jabhat al-Nusrah, a militant terrorist group associated with al-Qaida, when they arrested him at an airport gate while awaiting a flight to Turkey. He pleaded guilty to knowingly attempting to provide material support to a foreign terrorist organization, and the district court sentenced him to the statutory maximum of 15 years in prison and a lifetime of supervised release. Tounisi argues on appeal that the district judge procedurally erred at sentencing in four ways: (1) he did not sufficiently address Tounisi's mitigating arguments; (2) he did not adequately explain the length of imprisonment; (3) he failed to properly consider the 18 U.S.C. § 3553(a) factors; and (4) he did not adequately explain the length of supervised release. Because the judge did not make any of these errors, we affirm the judgment.

         I. Background

         By early 2013, Tounisi had decided to join Jabhat al-Nusrah in Syria. He had watched videos of and read articles about its violent operations and its links to al-Qaida. His parents learned of his plans and attempted to stop him by taking away his passport in January. Undeterred, Tounisi applied for an expedited passport, reporting that his previous one had been lost and that he intended to travel to Jordan. He also opened a post-office mailbox just to receive the new passport. Later that month he visited a purported recruitment website for Jabhat al-Nusrah and emailed the listed contact person, who was actually an FBI agent, about his strategy to travel to Syria by flying to Istanbul, Turkey, then bussing to Gaziantep, a Turkish city bordering Syria. He explained that he would seize the opportunity to attain martyrdom if it presented itself.

         Tounisi, then 18 years old, solidified his plans in April 2013. He bought a ticket for a flight on April 19 to Istanbul. The day before his flight, the "recruiter" sent him a bus ticket for Istanbul to Gaziantep and promised that "brothers" would be waiting to take him to a training camp in Syria. Tounisi responded by describing what he would be wearing when he arrived. As scheduled, he went to O'Hare International Airport to catch his flight to Turkey. He made it as far as the airport gate before federal agents approached, questioned, and ultimately arrested him. Tounisi was charged with knowingly attempting to provide material support to a foreign terrorist organization, see 18 U.S.C. § 2339B(a)(1), and making false statements in connection with an offense involving international terrorism, see id. § 1001(a)(2). He pleaded guilty to the first charge in exchange for dismissal of the second.

         A probation officer determined that Tounisi had a total offense level of 37 and a criminal history category of VI, each heavily influenced by the offense qualifying as a federal terrorism crime: the offense level was increased by 12 and the criminal history category automatically raised from I to VI. See U.S.S.G. § 3A1.4. The guideline imprisonment range would have been 360 months to life with those extended parameters. But that range exceeded the then-statutory maximum of 180 months, which thus became the applicable advisory guideline imprisonment term. Because Tounisi's terrorism crime also posed a foreseeable risk of injury to another person, the policy statements for supervised release recommended a term of 1 year to life. See U.S.S.G. § 5D1.2(b)(1).

         In his sentencing memorandum, Tounisi advocated for an 84-month prison sentence followed by a 10-year term of supervised release. He relied on a report by Dr. Marc Sageman, an expert in "forensic psychiatry and terrorism," who had interviewed him. Dr. Sageman concluded that Tounisi was "at no greater risk than the normal population of being a danger to the public," and that he was "not so brainwashed ideologically" that he remained a risk to run off to fight. Tounisi agreed that the guidelines were correctly calculated but argued that the increases for a terrorism offense resulted in an overstated sentencing range because (1) he was placed in the highest criminal history category despite having no prior criminal history; and (2) he did not target the United States but instead, in a misguided effort, meant to help combat the dictatorial Syrian government.

         Tounisi also highlighted several of the 18 U.S.C. § 3553(a) factors. First, as to his history and characteristics, id. § 3553(a)(1), he had struggled with depression and isolation resulting from his family's financial struggles and the religious and racial discrimination they experienced, so he had turned to religion to cope. Now that his plans had been thwarted, he was remorseful and thankful he had not succeeded. When looking at the nature and circumstances of the offense, id., Tounisi reiterated that his choice to join Jabhat al-Nusrah was influenced by his isolation and motivated by his desire to help fight the Syrian government rather than a wish to join a terrorist group. He explained that he was friends with Adel Daoud, an 18-year-old from his mosque who tried to detonate a bomb in downtown Chicago. Tounisi had briefly considered helping Daoud but later tried, to no avail, to dissuade him from attempting to carry out the attack.

         Additionally, Tounisi argued against a significant need for deterrence, id. § 3553(a)(2)(B), and for further punishment, id. § 3553(a)(2)(A). He asserted that specific deterrence was unnecessary, citing empirical studies showing that (1) being a first-time offender, (2) having strong family ties, and (3) enduring swift and sure punishment all greatly decreased his chances of reoffending. Moreover, his youth and immaturity partially explained his conduct, and he would have matured by his release from prison after his requested 84-month sentence. As for general deterrence, Tounisi pointed to studies showing that other consequences related to prosecution (social stigma, etc.) were more effective deterrents than incarceration. Further, Tounisi already had been incarcerated for almost 20 percent of his life and had to carry the stigma of being a "terrorist" and felon forever, so punishment beyond his suggested sentence would not be "just."

         Separately, Tounisi suggested changes to a few proposed conditions of supervised release but otherwise did not object to them. He requested a 10-year term, or alternatively, the possibility of early termination of a longer term.

         The government argued for a 15-year term of imprisonment. It submitted that the offense was particularly serious despite Tounisi's stated goal of fighting the oppressive Syrian government. After all, by joining a terrorist group associated with al-Qaida, he was joining an enemy of the United States, and his plans easily could have backfired: he could have killed innocent Syrian people or been forced to return to the United States to commit an attack here. The government also pointed to Tounisi's perseverance in committing his offense. He had not been ...

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