Judge Smith thinks he's a braggart 21-year old online troll. He was born in Lodi, California to Yemeni immigrants, but after 9/11 his mother moved him and his five siblings to Yemen, while his father stayed in the United States. Leaving Alhaggagi shuttled between Yemen and California. "In both places, Alhaggagi
had a strained relationship with his parents, who raised their
children in an observant Muslim household.
In 2009, Alhaggagi and his mother and siblings returned
to California to live with his father. Although he was raised
in a Muslim home, Alhaggagi was not religious and adhered
to few religious traditions. As an escape from his home life,
Alhaggagi began spending a lot of time on the Internet,
where his father had no insight into his activities. He
developed a sarcastic and antagonistic persona online,
provoking people by comments he made on YouTube
videos. . . . He chatted both in Sunni
group chats sympathetic to ISIS and Shia group chats that
were anti-ISIS. He trolled users in both groups, attempting
to start fights by claiming certain users were Shia if he was
in a Sunni chatroom, or Sunni if he was in a Shia chatroom,
to try to get other users to block them. He was expelled from
chatrooms for inviting female users to chat."
Eventually, Alhaggagi gets noticed by the FBI. The big difference between the majority's conception and the dissent's characterization of his conduct is an underlying dispute about whether what Alhaggagi was serious when he said and did what he did. Judge Smith essentially thinks that Alhaggagi was "all talk" and was just continuing to be the online jerk he usually was -- just out to outrage people and play the "big man." Whereas Judge Hurwitz thinks, no, that's not really what he was doing, he was serious and genuinely interested in terrorism and terrorist attacks.
Maybe the most obvious -- and interesting -- difference between the majority and dissent is in how they treat how Alhaggagi eventually ends up. Here's how Judge Smith describes what happened:
"On a third
occasion, the UCE [undercover informant] met again with Alhaggagi at the storage
locker, where the FBI had left several barrels of mock
explosives. In the moment, Alhaggagi expressed excitement
upon seeing the explosives, and on the drive back, he pointed
out places he believed would be good targets for bombs. After that meeting, however, Alhaggagi began
distancing himself from the CHS on Telegram and the UCE.
He told the district court that upon seeing the explosives, “it
only hit me at that moment that I’ve been talking to these
people for far too long and had no idea what I’ve gotten
myself into and now I’m kinda freaked out . . . I never took
it seriously and I never realized how serious he was until he
was ready to make a bomb (so I believed at the time) which
I wanted no part of!"
From late August to September 2016, Alhaggagi skipped
meetings intended to practice the attacks with the UCE, and
ignored many attempts by the UCE to contact him. On
September 23, 2016, the UCE approached Alhaggagi on the
street and asked if they could share a meal. Alhaggagi
agreed, but said he needed to get something from his house
first. He never returned to meet the UCE, and they never
communicated with each other again."
This is consistent with Judge Smith's perception of the situation: Alhaggagi was a braggart and troll, but when he actually realized that things were serious and real, he predictably slinked away.
Whereas Judge Hurwitz's view is starkly different. His description of what happened is contained in a single sentence, which says: "Alhaggagi broke off contact with the undercover agent
and the FBI source in mid-August 2016 after concluding that
the undercover agent worked for the government."
That's a very different conception of what went down. Consistent with their competing views about Alhaggagi's personality and intent.
The district court sentenced Alhaggagi to over 15 years in prison. Most of that comes from a "terrorism enhancement." Judge Hurwitz thinks that's fine. The majority remands to have the district court give it another shot.
Parenthetically, I did not realize that one of the biggest-impact ways in which the Sentencing Guidelines treat terrorism offenses is by manipulating the defendant's criminal history (an issue that's relegated to a brief footnote of the opinion). Here, Alhaggagi in fact has no real criminal history, so is at Category I. But Section 3A1.4 of the Guidelines says that for any terrorism offenses, you not only increase the base level of the offense to 32 (which is often a huge increase), but also artificially increase the defendant's criminal history to the worst possible level (Category VI).
That seems weird to me. Seems to me like we should care about someone's actual criminal history, not one that's deliberately fake. If you want to increase the punishment, fine, go ahead and increase the base offense level for the offense (which the Guidelines already do), and if that's still not good enough for you, increase it some more. Pretending that the person has had a lifelong series of serious criminal convictions when he is, in fact, a 21-year old kid with no prior criminal history just seems to me very much the wrong way to go about it.
