No sentencing guidelines enhancement for arms smuggler who sold to a paramilitary terrorist group in Columbia

Francisco Arcila Ramirez was charged with several federal crimes in connection with selling firearms to the National Liberation Army (ELN), a paramilitary group in Columbia, designated by the U.S. State Department as a foreign terrorist organization.  Through a straw purchaser, he acquired AK-style weapons in the Miami, Florida area, then had them smuggled to Colombia where they were delivered to an ELN weapons broker who then arranged delivery to a farmhouse in rural area of Colombia where they were picked up by members of the ELN.  Arcila Ramirez was paid $26,567 in cash for his efforts.   After this transaction, Arcila Ramirez began acquiring large quantities of firearm components to send to Colombia where they could be assembled.  The firearm parts were cheaper to buy, easier to smuggle, and did not require straw purchasers.

When Arcila Ramirez was arrested in the United States, he waived his right to remain silent after receiving a Miranda warning. He admitted using straw purchaser to buy firearms on his behalf and concealing them in air compressors to be smuggled into Colombia.  He admitted the firearms had to be for guerillas or delinquents but said he was not part of or involved with any group.

He was charged with the federal crime of conspiracy to illegally selling and transporting firearms to foreign customers in Colombia.  He was also charged with conspiring to providing material support to the ELN, a foreign terrorist organization.   He pled guilty to providing material support to a designated foreign terrorist organization.

At his sentencing the government asked for a 12-level increase in his sentencing guidelines range pursuant to U.S. Sentencing Guideline section 3A1.4(a) because the offense involved or was intended to promote the federal crime of terrorism.  Arcila Ramirez objected to this enhancement arguing that the government failed to show he had the specific intent required by the sentencing enhancement.  The terrorism enhancement, he argued that was concerned about what Arcila Ramirez intended, and not what the terrorist organization did.  His motive was profit, he argued, and not to retaliate against the government.  In addition to terrorism, the ELN engages in general criminal activity such as drug trafficking.   The district court overruled his objection.  It based its decision on Arcila Ramirez’s guilty plea.

Whether the sentence enhancement applied was based on whether his offense “involved a federal crime of terrorism.”  Under the sentencing guidelines, a federal crime of terrorism means an offense that is calculated to influence or affect the conduct of a government by intimidation or coercion or to retaliate against government conduct.  A case from the Eleventh Circuit that the appellate court reviewed was U.S. v. Jayyousi, where the enhancement was upheld.  (Ken Swartz of the Swartz Law Firm was lead counsel for Adham Hassoun, one of the Defendants in the Jayyousi case.)

There the district court found evidence that the defendants’ activities were calculated to influence, affect, or retaliate against foreign government conduct by their desire to impose Sharia throughout the Middle East and to bring about the downfall of governments that were not Islamic enough. Here, the district court made no factual findings as to the enhancement and merely relied on his guilty plea to knowingly providing material support to a known terrorist organization.  The enhancement required a highly fact specific inquiry of the record as a whole.  Without a specific intent finding the enhancement was incorrect and the case was remanded for resentencing.