RECORD

i Initeh

tatez

NO. 07-4778

(.Court

SABRI

of Appealz

DEC- 6 _7007
U.8.c.oene,

BENKAHLA,

,._

Appellant

- D.efendant,

c":,

"<-:,

V,

:-_

,_
f""o

UNITED

STATES

OF AMERICA,

C-_

-_

,-' I

---.
I rl

..

,_

C ta

C)

- Plaintiff.

Appellee

ON

APPEAL

FROM

FOR

THE

UNITED

THE EASTERN

AMICI

STATES

DISTRICT

CURIAE

DISTRICT

COURT

OF VIRGINIA

BRIEF

OF

THE COUNCIL
ON AMERICAN-ISLAMIC
RELATIONS,
AND
MUSLIM
AMERICAN
SOCIETY
FREEDOM
FOUNDATION
IN SUPPORT

Mara

Verheyden-Hilliard

PARTNEIgSHIP

FOR

CIVIL

John Kenneth
JUSTICE

2401 Pennsylvania
Suite 320

Avenue,

Washington,

20037

(202)

Counsel

for

ZWERLING,

N.W'

LEIBIG,

(Telephone)

(703)

MASF

Counsel

THE

LEX

GROUP

for

1108 East

&

435 New
Street

Virginia

684-8000

Jersey

Washington,
(202)

23314

Avenue,

D.C.

646-6034

Street

Counsel
Suite

1400

Richmond,

for
VA

(804) 644-4419 (800) 856-4419 Fax: (804) 644-3660 www.thelexgroup.com

CAIR
23219

20003

(Telephone)

(Telephone)

CAIR

Main

F. AI-Khalili

ATTORNEY AT LAW

P.C.

Alfred

Alexandria,

Nadhira

Zwerling

MOSELEY,

108 North

D.C.

955-5559

OF THE APPELLANT

S.E.

TABLE

OF CONTENTS
Pa.__._gg

TABLE

OF AUTHORITIES

..........................................

ii

STATEMENT
OF IDENTITY
OF AMIC1, INTEREST
IN CASE,
SOURCE OF AUTHORITY
TO FILE ..................................
ARGUMENT
I.

AND

......................................................
Application
Note 2 ofU.S.S.G.
3A1.4
Results .................................................
Note 2 ofU.S.S.G.

1
Creates

Inequitable
2

II.

History

I[I.

Enhancing
Mr. Benkahla's
Sentence Through Application
Note 2 ofU.S.S.G.
3A1.4 Is a Violation of the Sixth
Amendment
Under Rita v. United States's Substantive
Reasonableness
Review Standard
..........................

CONCLUSION

of Application

...................................................

CERTIFICATE

OF COMPLIANCE

CERTIFICATE

OF FILING

AND

SERVICE

3A1.4

..............

10
29

TABLE

OF AUTHORITIES

CASES
Apprendi

Blakely

v. New Jersey,

530 U.S. 466 (2000)

....................................

11, 12, 14

v. Washington,
542 U.S. 296 (2004)

......................................

passim

Cunningham v. California,
127 S. Ct. 856 (2007)
N.A.A.C.P.

v. Claiborne

Hardware

,458 U.S. 886 (1982)

Rita v. United

.....................................
Co.,

...........................................

....................................

United" States v. Ashqar, et. al.,

Crim. No. 03-CR-978
(N.D. Ill. Nov. 21, 2007)

passim

...................

2, 3

States v. Belskis,
477 F. Supp. 2d 237 (D. Me. 2007)

United States

..............................

21

...........................

3, 10

v. Biheiri,

356 F. Supp. 2d 589 (E.D. Va. 2005)

United

States,

127 S. Ct. 2456 (2007)

United

passim

States v. Birkett,
_';01 F. Supp. 2d 269 (D. Mass.

United States

2007)

.............................

20

v. Booker,

.';43 U.S. 220 (2005)

......................................

passim

United States v. Garey,

483 F.3d
United

1159 (llth

Cir. 2007)

States v. Griffin,
494 F. Supp. 2d 1 (D. Mass.

.................................

2007)

United! States v. Maflahi,

183 Fed. Appx. 13 (2d Cir. 2005)
United

States

......................

................................

10

11, 20, 21, 22

10

v. Moreland,

.437 F.3d 424 (4th Cir. 2006)

CONSTITUTIONAL

...................................

20

AMENDMENTS

U.S. CONST. amend. I ................................................

U.S. CONST. amend. VI

.........................................

5
passim

STAT_UTES
18 U.S.C.

1001

..................................................

23

18 U.S.C.

1503

..................................................

23

18 U.S.C.

1623

..................................................

23

18 U.S,C.

2332b(g)(5)

18 U.S.C.

2339A

..................................................

18 U.S.C.

3553(a)

............................................

4th CIR. R. 29(a)

.............................................

...................................................

FED. R. APP. P. 29(a)

................................................

iii

5
8
passim

1
1

GUIDELINES
U.S.S.G.

2A1.1

...................................................

U.S.S.G.

3A1.4

..............................................

OTHER

AUTHORITIES

Testim,any of James F. Jarboe, United

2002 Public Hearing (Feb. 25, 2002)
http://vrww.ussc.gov/hearings/2
USA PATRIOT

ACT,

PL 107-56,

States Sentencing

25 02/0225USSC.htm
2001 HR 3162 (2001)

iv

7
passi m

Commission
...................
.................

8
7, 8

STATEMENT

OF IDENTITY
OF AMICI, INTEREST
SOURCE OF AUTHORITY
TO FILE

MAS Freedom
Muslim

American

religious,
chapters

social,

Society

largest

and in Canada

all Americans,
concerned
terrorism

enhancement

29(a), Amici

MASF

in America

- with 55

(CAIR)

offices

is

nationwide

D.C.
rights and civil liberties

and CAIR

effect of the United

are deeply

States Sentencing

Guideline's

rights and civil liberties.

Rule of Appellate
and received

and the government

with regional

entity of the

charitable,

Relations

for the human

Muslim-Americans,

to Federal

organization

in Washington,

in advocacy

on human

have sought

group,

headquarters

about the detrimental

grassroots,

on American-Islamic

civil liberties

that engage
including

Pursuant

Benkahla

The Council

Islamic

rights advocacy

the largest Muslim

civic and educational

and national

As groups

is the civic and human

(MAS),

cultural,

in 35 states.

America's

(MASF)

IN CASE, AND

Procedure

permission

29(a) and Local Rule

from both parties,

Sabri

to file this brief.

ARGUMENT

A!mici suggest
States Sentencing
liberty

espoused

to this Court that Application

Guideline

3A1.4

by this nation.

is antithetical

Like the Sedition

Note 2 ("Note 2") of United

to the principles

of justice

Act or the non-Communist

and

of

affidavits of the past, Note 2 was adopted in the name of national

results

in an abrogation

following

reasons,

unconstitutional
I.

of the civil liberties

Amici

respectfully

as applied

Application

sentences

Note 2 of U.S.S.G.

of two defendants

offense,

enhancement

convicted

increasing

On November

21, 2007,

applied

the terrorism

Ashqar

for his conviction

grand jury.

Instead

enhancement

enhancement

to increase

for criminal

of 135-months

guideline

range.

United States

the sentence

the

Mr. Benkahla's

District

to an

advisory

range

range.

of Illinois

of Abdelhaleem

for his failure

advisory

to testify

before a

range, the court imposed

from the recommended

v. Ashqar,

to enhance

from a 210 to 262-month

contempt

after departing

Results

has been applied

Court for the Northern

of a 15 to 21-month

sentence

offenses.

from a 15 to 21-month

Court departed

the District

Inequitable

has been applied

of obstruction

his sentence

to 121 :months, after the District

For the

3A1.4 Creates

case was the first time that the terrorism

obstruction

public.

but

ask this Court to find Note 2

to Mr. Benkahla.

As of this date, the terrorism

of the American

security

210 to 262-month

et. al., Crim. No. 03-CR-978

(N.D. III.

Nov. 21, 2007).

Under

current

Sixth Amendment

sentencing

jurisprudence,

that Application
Note 2 of 3A1.4 could ever be constitutionally
defendant
convicted of an obstruction
offense.
2

Amici
applied

is unsure
to any

As the District
demon;_trated
effect of

Court for the Eastern District

by the operation

3A1.4 is "draconian."

589, 598 (E.D. Va. 2005).

actual sentences
sentences

imposed

would have received

While this enhancement

prove s, terrorism
chance
judge

at sentencing,

the government

in both cases, 2 the

greater

than the
finding

in two cases thus far, the

Note 2 by the government

case and Ashqar,

is readily

Application

two bites of the proverbial

a reasonable

with a lesser standard

what it could not do before the jury.

to prove that the defendant

356 F. Supp. 2d

save for the judicial

has only been applied

by both the instant

crime beyond

the

applied.

for abuse of Application

the effect of granting

granted

600-percent

has noted and as

in these cases,

See United States v. Biheiri,

were approximately

enhancement

First, as demonstrated

enhancement

Even with the departures

that the defendants

that the; terrorism

possibility

of the terrorism

of Virginia

was involved

2 In both the case at bar and Ashqar,

doubt,
of proof,
In Ashqar,

in a R/CO

to accomplish
the government

the courts found

Note 2 has

apple- unable

the government

conspiracy

apparent.

to

gets a second
before

the

was unable

to fund the

that a criminal

history

category of VI substantially
overrepresented
the criminal backgrounds
of the
defendants,
as both of the defendants
had absolutely no criminal behavior save for
the instant obstruction
offenses.
As such, the courts applied a criminal history
category of I, and with an offense level of 32, chose a range between 121 and 151
months.

terrori.,;t activities

of llamas,

defendant's

refusal

underlying

terrorism

applied

to testify

Benkahla

was acquitted

Promptly

following

evidence,

jeopardy

a preponderance
reasonable

equivalent

doubt,

permits

of the evidence
the reasonable

the acquittal

the government

While

such a result,

In the instant

case, Mr.

to the Taliban.

for giving

before

was able to obtain

that would

a formalistic

a sentence,

of the

have imposed

reading

as the sentencing

of double

hearing

is based on

and the trials were based upon

guilt beyond

perception

is fundamentally

is that such a result

unfair and unjust.

Furthermore,
legitimate

Note 2 can be used as an underhanded

but unpopular

political

misleading

by a preponderance

to the sentence

on the

enhancement

called Mr. Benkahla

and conviction

Note 2 applied

of guilt at the first trial.

jurisprudence

support

the government

hearing,

that Application

that was roughly

with a finding

at sentencing.

at the first trial of lending

in an indictment

for the

found that the terrorism

of the evidence

At the sentencing
proving

the judge

the acquittal,

grand jury, resulting

through

before a grand jury 3. Despite

charge,

by a preponderance

answer's.

but was able to obtain a conviction

and social

activity.

tool to disrupt

Any supporter

of a

rrhe government
had argued to the jury that Ashqar's
obstruction
and
contempt were part of and in furtherance
of the RICO conspiracy.
The jury
rejected this argument.

legitimate political or social movement exercising his or her First Amendment

rights elm fall within the gambit of Note 2's enhancement scheme. Every
historical and current political or social movement has involved legitimate and
lawful activities along with a militant segment of potentially radical, violent
membersJ At the heart of every social movement

is the attempt

influence,

and change

which

its people,

and the attempt

exactly

the conduct

'what determines

of government,

to influence
whether

and change

a particular

to affect,

in some cases oppresses

the conduct

social movement

of government
is labeled

is

as

terrorists.
Where

the actual

enumerated

crimes under

legitimately

investigate

conduct

18 U.S.C.
and punish

would

not affect the segment

rather

would punish

activity.

is criminal

2332b(g)(5),
such actions.

of the movement

those engaged

In its investigation,

as in the case of specifically

However,
engaging

in legitimate

the government

the government

can

Application

in criminal

First Amendment

can call a member

Note 2

activity,

but

political
of the social

4 This argument should not be read as conceding that the violent members
social movements
are in fact "terrorists."
Amici submit that the term "terrorism"
has been applied with an extremely broad stroke following the tragedy on
September
1 lth, and groups that were once labeled as "radicals,"
"freedomfighters,:" and "revolutionaries"
now carry the stigma of the terrorist label.
However, such an issue is not at bar in this case.

of

movement to testify before a grand jury. As an act of protest, a member of a

movement who has engaged in no illegal activity, may choose to remain silent.
Such a person can legitimately be prosecuted for obstruction or contempt, but
through Note 2, her sentence will be enhanced exponentially, leaving her in jail for
decades for an act of civil disobedience and association with a legitimate political
movement.

Such a result is more readily identifiable with the Apartheid regime in

South Africa

and the imprisonment

values

that this nation

civil disobedience,
of eleven

contradiction
Hardware

holds dear.

Martin

of the Supreme

The aforementioned
_draconian'

context,

upon legitimate

than any connection

King, Jr. would

regime,

have spent eleven

to

for his acts of

years,

instead

Jail.

Court's

protection

in conduct

Mandela

such a sentencing

enhancement

holding

Co., 458 U.S. 886, 908 (1982),

have paa'ticipated

infringing

Under

Note 2 of the terrorism

lose all constitutional

proper

Luther

days in Birmingham

Seemingly,

of Nelson

merely

arguments
permitting
dissent.

in N.A.A.C.P.v.

in direct

Claiborne

that "It]he right to associate

because

or advocated

was adopted

doctrine

present

some members

does not

of the group may

that itself is not protected."

the terrorism

the government

enhancement

in its

two bites of the apple

and

II.

History

of Application

Even though
terrorism

the above concems

enhancement,

these problems.

by the Sentencing

express

Notes

passing

against

disrupt
ld.

The Sentencing

also increases

or business
Commission

operations
further

note to 3A1.4 regarding

that "[a]mong

for offenses

for threats

liquid

that substantially

or result in costly cleanup

writes that "[t]he amendment

harboring

and concealing
that occurred

(e.g., a case in which

to

[the 2002

gas or hazardous

sentences

explains

2A 1.1, Historical

severe penalties

and interstate

1, 2002

in response

U.S.S.G.

writes

are appropriately

systems

crime of terrorism

out

Commission

was enacted

Act of 2001.

that 3;A1.4 may apply in the case of offenses

of the t_deral

of

is non-existent.

and well thought

The Sentencing

The Commission

many provisions

governmental

any discussion

Note 2 on November

guidelines

the USA PATRIOT

The amendment

application

omitted

for its enactment

promulgated

to the sentencing

mass transportation

pipelines.

reasoning

from Congress.

1:o2002 Amendments.

amendment's]

Commission

Commission.

Commission

authority

that thi.s amendment

Congress

the Sentencing

on the face of Note 2 of the

Note 2 of 3A1.4 was not a studied

The Sentencing
without

3A1.4

are obvious

In fact, the legislative

Thus, Application
amendment

Note 2 of U.S.S.G.

measures."
adds an

offenses

to clarify

after the commission

the defendant,

in violation

of 18 U.S.C. 2339A, concealed an individual who had committed a federal

of terrorism)."
Application

ld.

PATRIOT

even though

never

mentions
warrant

56, 2001 HR 3162.

responds

the Sentencing

Investijgations,

for amending

increased

punishment.

the sentencing

the harboring

Notes,

guidelines,
terrorism
ACT, PL 107-

all that the PATRIOT

and concealing

from an agent with the Federal

who testified

of

to the

of federal

of the need for such an application

comes

section

points

See USA PATRIOT

In fact, just like the Historical

to is the need to punish

of justice

Commission

the need to have all obstructions

]?he only suggestion

obstruction

to the obstruction

absent.

ACT as its 'authorization'

investigations

ACT

of or reference

Note 2 is conspicuously

Interestingly,

Congress

Any explanation

crime

in front of the Commission.

of terrorists.

note dealing
Bureau

with

of

The agent testified:

Let me single out, in particular, the need for severe punishments

for persons
who lied to FBI agents, who falsified documents or otherwise obstruct the
investigation
or prosecution
of a terrorist offense.
Offenders who engage in
tJhis type of behavior are accomplices
to terrorism and undermine
our effort
to prevent and punish terrorist attacks.
They should be treated accordingly.
Testimony
Hearing,

of James

F. Jarboe,

p. 121 (Feb. 25, 2002),

/2 25 02/0225USSC.htrn.
overall

United

context

States Sentencing

available

This statement,

of the FBI agent's

testimony

Commission

2002 Public

at http://www.ussc.gov/hearings
however,

should

be viewed

and his suggestion

in the

that all crimes,

even those tangentially related to terrorism, should be uniformly severely

punished, whether the crime involved a hoax concerning a terrorist
provision

of a driver license

Id. at 112-26.
regardi:ag

to a possible

The Sentencing

Commission

the terrorism
discussed,

of the development

enhancement
but resulted

the Sentencing

no evidence

or practical.

defendant's

enhancement,

to promote
sentence

well researched

of any discussion

The Sentencing

This is one of the main reasons

following

9/11.

While

and submit
of the

about the actual effect of

Commission

contradiction

crime of terrorism,

be enhanced

Thus, Note 2 as drafted

or fully

to make amendments

in that some obstructions

a federal

in

use that authority.

the fact that Note 2 may create impermissible

the terrorism

that its inclusion

Note 2 was the result of the failure

to responsibly

reveals

Note 2, constitutional

of Note 2.

of Note 2 demonstrates

has the authority

as necessary,

Commission

The record

section

was neither

weapon.

in no other discussion

from a blind rush to do something

Commission

them to Congress
Sentenc:ing

guideline

or the use of a nuclear

engaged

the pros and cons of the obstruction

This history

intended

terrorist,

attack, the

failed to explain

with the main text of

may not involve

yet Note 2 would

or be

require

that a

anyway.

raises a host of possible

constitutional

problems.

why courts have shied away from using Note 2 by

finding that it is unconstitutional or does not apply to the specific facts of the
cases. See United States v. Garey, 483 F.3d 1159 (1 lth Cir. 2007) (refusing
apply the terrorism
States

enhancement

v. Maflahi,

183 Fed.Appx.

as unconstitutional
(refusing

as applied

to apply the terrorism

statements

to law enforcement

increasing
the jury's
IlL

to the case);

Biheiri,

enhancement

infirmity

any other obstruction

Mr. Benkahla's

of Sixth Amendment

13 (2d Cir. 2005) (treating

officers

The main constitutional

(and practically

because

sentence

violations);

the entire guidelines

of making

false

there was no actual obstruction).

of Note 2 is that as-applied

case) it violates

beyond

in this case

the Sixth Amendment

the maximmaa

sentence

by

authorized

by

verdict.

Enhancing

Mr. Benkahla's

Sentence

through

Application

Note 2 of

U.S.S.G. 3A1.4 Is a Violation of the Sixth Amendment

Under
United States's Substantive
Reasonableness
Review Standard
Amici suggest
predicated
admitted

to this Court that where

upon the finding

by the defendant,

Benkahla's
months

United

356 F. Supp. 2d at 598

to the offense

because

to

sentence

of some disputed
the sentence

of 121-months

based upon the judicial

obstructed

an investigation

the reasonableness
judicial

violates

was increased

fact-finding

of a federal

of a sentence

fact, not found

is

by the jury or

the Sixth Amendment.

Mr.

from a range of 15 to 21

that his offenses

crime of terrorism,

I0

Rita v.

of conviction

actually

a fact not found

by the

jury or admitted
violation

by the defendant.

of Mr. Benkahla's

that it is unreasonable

concurring

verdict.

Sixth Amendment

and remand

court that any sentence

by the jury's

imposed

2d 1 (D. Mass.

for resentencing
cannot

in judgment).

(Alito,

J., dissenting);

of sentencing

with sentencing

procedures

which

involved

the constitutional

maxim

the penalty

must be: submitted

This seems
definition

and the Court should

find

with instruction

the statutory

to the district

maximum

authorized

127 S. Ct. 2456 (2007)

Accord

Cunningham

United States

(Scalia,

J.,

v. California,

v. Griffin,

The Sixth Amendment's

began with Apprendi

a New Jersey

494 F. Supp.

for a crime beyond

beyond

maximum'

Court applied
procedures

530 U.S. 466

From Apprendi

in Blakely

doubt."

is anything

means has evolved

the Apprendi

11

statutory

a reasonable

rule, but in application

of what the 'statutory

sentencing

the prescribed

but.

arose
any fact

maximum
ld. at 490.
The

over time.

rule to the state of

v. Washington,

to

connection

than the fact of a prior conviction,

to a jury, and proved

Next, the Supreme

scheme.

is necessary

recent

v. New Jersey,

sentencing

that "[o]ther

like a bright-line

Washington's

is a

law and the Sixth Amendment

see how such a result is necessitated.

that increases

exceed

that such a sentence

2007).

A brief review

(2000),

rights,

See Rita v. United States,

in part, concurring

127 S. Ct. 856 (2007)

Thus, Amici believe

542 U.S. 296

(2004). In Blakely,

a Washington

years, while the state's

49 and :53 months,
compelling
verdict,

found

to 90-months
invalidated

that the defendant

imprisonment,

finding
a judge

may impose

of the mandatory
occur artytime

departures

as a violation

'statutory

findings.

court would
sentence

by the jury, without

to the explicitly

In United States
extended
finding

v. Booker,

the Apprendi/Blakely
that "[a]ny

prescribed

543 U.S. 220 (2005),

holding

to the federal

fact (other than a prior conviction)

and sentenced
Court
to

facts, but the maximum

Therefore,
violation

statutory

sentencing

above the

to facts found

maximum.

the Supreme

which

would

sentence

by turning

he

in light

Court

guidelines,

is necessary

]?he Blakely Court found that the facts admitted to by the defendant
supported
a maximum sentence of 53 months. Id. at 305.
12

him

is not the maximum

a defendant's

range, as calculated

and

of the jury's

according

''s Id. at 303-304.

increase

range between

States Supreme

a Sixth Amendment

top limit of the mandatory

regard

cruelty"

additional

of the guidelines,

that a district

court, outside

maximum'

often

found "substantial

of the Sixth Amendment

after finding

any additional

nature

if the judge

The United

sentence

a sentence

acted with "deliberate

ld. at 300.

may impose

a maximum

provided

The sentencing

that "the relevant

without

provided

procedures

upward

ld. at 299.

the sentence

Apprendi,
sentence

sentencing

allowing

reasons."

statute

to

only

support a sentence

exceeding

the maximum

a plea of guilty or a jury verdict

jury beyond

a reasonable

However,
Booker,

the Supreme

finding

that the Guidelines

mandatory,

of review

district

court's

Booker,

by the defendant

Court did not stop there.

of sentences

sentencing

the Booker

guidelines

portion

by
to a

guideline

of

into disarray,

them advisory,

Court delineated

under the advisory

is reasonable

or proved

In the remedial

could be saved by making

Furthermore,

"sentence

by the facts established

543 U.S. at 244.

Court threw the federal

ld. at 245.

standard

must be admitted

doubt."

the Booker

authorized

rather than

the appropriate

scheme,

with regard to [the] 3553(a)

whether

the

[factors]."

ld. at 261.
After Booker,
maximum

the question

authorized

Court simply

to this question

would

between

into account

of guilty
statute

statutory

statutory

The maximum
would

that the jury convicted

guidelines

advisory,

A court would be able to sentence

the explicit

or a jury verdict

that is the

by a plea of guilty or a jury verdict.

made the sentencing

be easy.

the 3553(a)

one of those factors.

what is the sentence

by the facts established

If the Supreme

anywhere

becomes

minimum

factors,

with the advisory

authorized

be the explicit

the defendant

13

and statutory

a defendant

maximum,
guidelines

by the facts established

statutory

of violating

the answer

maximum

taking
being

by a plea

in the federal

or that the defendant

pleaded guilty to. However, Booker

substantive

reasonableness

Before
sentence

that the next significant

involw_'d a California
defendant

sentencing

judge

to a lower, middle

facts, not determined

the holding

a sentence

scheme

"proscribes

a sentencing
maximum

maximum'..,

additional

finding."

ld.

invalidate

the remedial

facts, but the maximum

(citations
Booker

is not the maximum

omitted).

decision,

While

instead

14

or plea, a

ld.

at 860.

because

to

judge

had to find

of the evidence,

ld.

Booker,

scheme

that allows

based on a fact, other

by the defendant."
sentence

and

a judge

he may impose

this decision

focusing

aRer

Cunningham

of Apprendi/Blakely/Constitutional

above the statutory

additional

it must be

Court decided

the sentencing

"the relevant

after finding

further,

was unconstitutional

not found by a jury or admitted

'statutory

court.

the maximum

or upper term sentence,

than a prior conviction,

impose

defining

by a jury, by a preponderance

that the Sixth Amendment

to impose

upon

of

by which after a guilty verdict

to an upper term sentence,

The Court reaffirmed

holding

review

by a district

127 S. Ct. 856 (2007).

scheme

that this sentencing

a defendant

enhancing

imposed

case that the Supreme

v. California,

was sentenced

The Court found

and set up the practice

by facts found by a jury is discussed

Booker' was Cunningham

sentence

of a sentence

the effect of reasonableness

authorized

highlighted

review

went further

may

without

would

on Constitutional

seemingly

Booker', the majority

sentencing

scheme

in his dissent,
Court strikes
respect
States

in Cunningham,
from the federal

Justice

Alito

v. Booker.

Guidelines

not been applied

of what should
purposes.

scheme

sentencing

be considered

by jury-found

scheme.

of review

a rebuttable

Court found that a rebuttable

Then,

significant
in United

standard

of review,

to be a 'statutory

presumption
presumption

within

on the surface

decisions,

had
mess

Rita

implicit

in

a new variation

for Sixth Amendment

an advisory

of reasonableness,
of reasonableness

15

into this muddled

the Court created

maximum'

purposes

facts, the holding

While

for sentencing

In Rita, the Court found that sentences

range m'e afforded

law that the

that the Court approved

127 S. Ct. 2456 (2007).

standard

a reasonableness

sentencing

However,

the Court found that for Sixth Amendment

to the federal

dealt with the appellate

at 870.

in any constitutionally

must be determined

comes Rita v. United States,

ld.

127 S. Ct. at 873 (Alito, J., dissenting).

even though

maximum'

the California

guidelines,

states that "[t]he Califomia

Cunningham,

Therefore,

upholding

sentencing

down today is indistinguishable

from the advisory

the 'statutory

in dicta, distinguished

guideline

ld. at 2464.
does not

The

automatically create Sixth Amendment

majority

and concurring

Sixth Amendment

opinions

problems

problems.

recognized

concerns

presented

by this case.

consistent

with our view that the approach

[Justice

problems.'

Similarly,

adopted

Justice

prohibits

Scalia]

the

may have certain

foresees

are not

to make his point is

here will not 'raise

Scalia

judges

However,

in this case, but the majority

And his need to rely on hypotheticals

held that 'the Sixth Amendment

relevant

that this holding

that were not presented

stated that "the Sixth Amendment

of constitutional

6 ld. at 2465-66.

a multitude

agrees that we have never

from ever finding any facts'

to sentencing."/d.
In their concurring

acknowledged

opinion,

Justice

that the Rita holding

6The Court reasoned

Stevens

and Ginsburg

may cause Sixth Amendment

also
problems

in the

that:

the presumption,
even if it increases the likelihood that the judge, not the
jury, will find 'sentencing
facts,' does not violate the Sixth Amendment.
The Court's Sixth Amendment
cases do not automatically
forbid a
sentencing
court to take account of factual matters not determined
by a jury
and to increase the sentence in consequence.
Nor do they prohibit the
sentencing judge from taking into account of the Sentencing
Commission's
_etual

finding

or recommended

sentences."

Id. at 2465-66.
The Court continues:
"The Sixth Amendment
question..,
is
whether the law forbids a judge to increase a defendant's
sentence unless the judge
finds facts that the jury did not find (and the offender did not concede)."
ld. at
2466 (citing

Blakely,

542 U.S. at 303-04).

16

future, but "even if some future unusually harsh sentence might violate the Sixth
Amendment because it exceeds some yet-to-be-defined judicial standard of
reasonableness, Justice Scalia correctly acknowledges this case does not present
such a problem."

ld. at 2473 (Stevens,

Here is how substantive

problems,

even for sentences

J. and Ginsburg,

reasonableness

an offense

that has a prescribed

correctly

calculated

guideline

statutory

upper guideline
80-months
sentence
prescribed

maximum.

of the sanae offense.

a variance

sentence

a finding

of fact, not found by the jury, to apply a guideline

same 813,-month sentence.

reasonableness,

would

An appellate

affirm

court, applying

the sentence

as reasonable.

17

the

who is convicted

that suggest

in this case the sentencing

78 and 97 months.

to

such a

being within

factors

sentence

range to between

the defendant
reverse

defendant

enhanced

raises hJ.s sentencing

However,

statutory

years.

above the 21 month

despite the 80 months

another

maximum.

would be 15 to 21 months.

court will undoubtedly

There are no 3553(a)

is necessary.

often

this, the court sentences

Now consider

Sixth Amendment

statutory

maximum

for this offense

An appellate

it is unreasonable,

statutory

statutory

Notwithstanding

imprisonment.
because

sentence

factors justify

range.

can create

that are within the prescribed

Consider

No 3553(a)

review

J., concurring).

that an

court makes

enhancement,

which

The court imposes

the presumption

of

The only thing that

the

makes such a sentence reasonable is a judge's factual finding that goes beyond
facts found in the jury's
J,astice Scalia's
inherent

verdictopinion

guideline

standard

sentence

authorized
as Justice

Justice

sentences

(i.e., held lawful)

the jury. that distinguish

attempt

to explain

2475-76

(Scalia,

presumption

some lengthy

how this is consistent

J., concurring

Scalia argues

Nothing

in the Court's opinion

for a

facts are present;

and

will be affirmed
facts, not found by

The Court does not even

with the Sixth Amendment.

in part, concurring

7 Justice

sentences

of aggravating

the case from the mine-run.

there is a

will be legally

judge-found

of the presence

problem

of reasonableness

as excessive

additional

in Cunningham,

only because

out this Sixth Amendment

reversed

in later cases only because

Alito argued

of the Sixth Amendment.

Scalia stated that because

with a rebuttable

"some

violation

fully fleshes

in the Rita decision.

reasonableness

an explicit

the

''7 ld. at

in judgment).

that:
explains

why, under the advisory

Guidelines

scheme, judge-found
facts are never legally necessary to justify the
sentence.
By this I mean the Court has failed to establish that every
sentence which will be imposed under the advisory Guidelines
scheme
could equally have been imposed had the judge relied upon facts other than
those found by the jury or admitted by the defendant.
In fact, the Court
implicitly, but quite plainly, acknowledges
that his will not be the case, by
treating as a permissible
post-Booker
claim petitioner's
challenge of his
within-Guidelines
/d. at 2475-76

(Sealia,

sentence

as substantively

J., concurring

excessive.

in part, concurring
18

in judgment).

3ustice Scalia describes two hypotheticals

reasonableness

review produces,

whose

is premised

legality

by a preponderance
concurring

"in violation

on a judge's

of the evidence."

that illustrate

how substantive

of the Sixth Amendment,

finding

sentences

some fact (or combination

ld. at 2476 (Scalia,

J., concurring

of facts)
in part,

in judgment).

l?irst, consider

two brothers

who are convicted

with similar

backgrounds

by a jury of respectively

robbing

and criminal
two banks

histories

of an equal

amount of money. Next assume that the district judge finds that one brother,
fueled by racial animus, had targeted the first bank because it was owned
and operated by minorities,
whereas the other brother had selected the
,;econd bank simply because its location enabled a quick getaway. Further
assume that the district judge imposes the statutory maximum upon both
brothers, basing those sentences primarily upon his perception
that bank
robbery should be punished much more severely than the Guidelines
base
level advises, but explicitly noting that the racially biased decisionmaking
of the first brother further justified his sentence. Now imagine that the
appellate court reverses as excessive only the sentence of the nonracist
brother. Given the dual holdings of the appellate court, the racist has a valid
Sixth Amendment
lawful)
uictim.
Second,

claim that his sentence

only because

consider

of the judicial

the common

was reasonable

finding of his motive

case in which

s.entence within an advisory Guidelines

enhanced by certain judge-found
facts.

the district

(and hence
in selecting

his

court imposes

range that has been substantially

For example, the base offense level

tbr robbery under the Guidelines is 20, which if the defendant

history of I, corresponds
to an advisory range of 33-41

has a criminal

months.
If, however, a judge finds that a firearm was discharged,
that a
victim incurred serious bodily injury, and that more that $5 million was
stolen, then the base level jumps by 18, producing an advisory range of 235293 months.
When a judge finds all of those facts to be true and then
imposes

a within-Guidelines

sentence

19

of 293 months,

those judge-found

facts, or some combination of them, are not merely facts that the judge finds
relevant in exercising his discretion; they are the legally essential predicate
for his imposition of the 293-month sentence. His failure to find them
would render the 293-month sentence unlawfUl. That is evident because,
were the district judge explicitly to find none of those facts true and
nevertheless

to impose

a 293-month

sentence

(simply

because

he thinks

robbery merits seven times the sentence that the Guidelines

provide)
sentence would surely be reversed as unreasonably
excessive.
Id. at 2476 (Scalia,

J., concurring

The only court to address

has reinforced
Amendment

the implicit
purposes...

defendant-admitted
Mass.

decision

maximum

determined

United States v. Griffin,

for Sixth Amendment

based on reasonableness

reasonable

about a district

substantive."
Cir. 2006).

defines

court's

ld. at 16 (citing

the issue.

sentence

Griffin

prior to the ruling

what constitutes

the existence

or

of appellate

It is clear that what must be

United States v. Moreland,

was decided

for Sixth

494 F. Supp. 2d i, 17-18 (D.

is not merely

"Booker

maximum

range based on jury-found

considering

purposes,

See also Rita 127 S.Ct. 2456.

8 While

Court for Massachusetts

in Rita, that "the statutory

[is] a judicially

facts."

in judgment).

such an issue, the District

2007). s The court found that "[w]hen

statutory
review

in part, concurring

the

procedural

but also

437 F.3d 424, 434 (4th

did not create a pure,

in Rita, the Griffin

court

properly used Booker's

presumption
of reasonableness
standard and correctly
predicted how the Supreme Court would uphold the standard in Rita. Moreover,
in a decision after Rita, the District of Massachusetts
upheld the decision in Griffin
in light of the holding in Rita. See United States v. Birkett, 501 F. Supp. 2d 269,
275 (D. Mass. 2007).
20

discretlionary sentencing system, but, because of the appellate review that remains,
simply traded on determinate scheme directed by the sentencing guidelines for a
determinate scheme based on reasonable, reviewable, factual judgments."
494 F. Supp. 2d at 16. "As a result of such appellate
limit the sentence
of Cunningham,

that a judge
implicates

The district
statutory
allowable
determined

maximum

(2) the minimum

range base on jury-found

with option

precedent

militates

one, finding

against

the 'statutory

finding
maximum.'

the facts of each case

This, in turn, and in light

''9 ld. at 17.

three possibilities

for Sixth Amendment

by statute;

impose.

the Sixth Amendment.

court then analyzes

dispenses

constitutes

may reasonably

review,

Griffin,

of "what

purposes...:

term required

(1) the maximum

by statute;

or defendant-admitted
that reasonableness
that the maximum

constitutes
term

or (3) a judicially

facts."

review

ld.

The court

and Supreme

term allowable

10 ld. at 18. Furthermore,

the

Court

by statute

the court eliminates

9 'The court recognized that "It]he failure to recognize that the 'statutory
maximum'
is not the maximum allowed under a statute will be the cause for much
of the post-Booker

and now post-Cunningham

holding in this case." Id. at 18n.36 (citing

237, 241)-41 (D. Me. 2007).
,0The court reasons
It]he discussion
Court precedent,
Amendment

disagreement
United States

with this Court's

v. Belskis,

477 F. Supp. 2d

that:

of reasonableness
review, in addition to explicit Supreme
demonstrate
that the statutory maximum for Sixth

purposes

cannot

be viewed
21

as the maximum

term allowed

the second

option of the prescribed

"Booker's

remedial

sentencing

judge

Congressional

structure

maximum'

guideline

range "determined

the District

sentence

because

necessary

which

that the

"It]he upper term of' the sentencing

solely by the facts found by a jury beyond

in its verdict."

to effectuate

ld. at 19. The court then concludes

must be the third option,

doubt and reflected

the Rita decision,

minimum

at least some range within

the discretion

and policies."

'statutory

reasonable

necessitates

may exercise

purposes

statutory

ld.

Thus, as implicitly

Court for Massachusetts

a
mandated

found that because

by

of

trader the applicable statute." * 18 (citing Blakely, 542 U.S. at 303-04 ("In
other words, the relevant 'statutory maximum'
is not the maximum sentence
a judge may impose after finding additional facts, but the maximum he may
impose without any additional findings.")).
[L]ogic alone counsels that a
sentence at the maximum term allowed under a statute would not be
reasonable
aggravating

if only the elements

of the offense

facts were considered.

Second,

were proven
Cunningham

and no
made this logic its

very holding.
In Cunningham,
the Supreme Court held that the applicable
statutory maximum was the middle term of the triad structure because the
judge was required to sentence at that level if only the elements of the
offense were proven. Despite the fact that the judge was legislatively
empowered
aggravating

under the limits of the statute- upon finding additional,

facts- to sentence above the middle term, such an upward

movement
pierced the 'statutory maximum.'
Finally, to recognize this first
option as the constitutionally
applicable
statutory maximum would
contradict
the parsimony
provision in the Sentencing
Reform Act that states
that a sentencing
court, 'shall impose a sentence sufficient,
but not greater
than necessary,
this subsection.
Griffin,

to comply

with the purposes

494 F. Supp. 2d at 18.

22

set forth in paragraph

(2) of

reasonableness review, "the statutory maximum constitutes the upper term of a

judicially

determined

range,"

calculated

by reference

to facts specifically

found by

the jury. _l ld. at 19.

While
Scalia'.s

the Sixth Amendment

prescient

reasonableness
that violates

hypotheticals
review

of Mr. Benkahla

were not presented

in Rita, Justice

have come to pass, and the substantive

standard

Mr. Benkahla's

problems

affirmed

by the Rita Court has created

Sixth Amendment

in this case with another

_JThe court then delineated

decisions:

rights.

similarly

the following

Compare

situated

procedure

a sentence

the circumstances

defendant.

to follow

Mr.

in sentencing

In practice, a sentencing judge would first consider the jury verdict and the
fi_cts underlying
such a verdict.
The judge would calculate the Base
Offense Level in the Sentencing Guidelines
from these facts for an advisory
r_mge. Guided by the advisory range and an ever-developing
body of
common law, the sentencing judge would determine the statutory maximum
supported by the jury-found
facts and the minimum sentence that ought to
be imposed as a result of those facts. The sentencing judge would then
normally sentence within that range based upon the section 3553(a) factors
mad aided by any facts found by a preponderance
of the evidence.
The
district judge could not enhance the sentence beyond this range without
putting the facts of that enhancement
before a jury. On appellate review, the
reasonableness
of the sentence would be adjudged, first, as to the
calculation
of the statutory maximum and minimum and then, second, as to
the weighing
ld. at 20 (citing

of the section

Blakely,

3553(a)

factors.

542 U.S. at 303 and Cunningham,

23

127 S. Ct. at 863-64).

Benkahla was convicted of violations of 18 U.S.C. 1001, 1503 and 1623.

Without judicial determination that the terrorism enhancement applied, Mr.
Benkahla's guideline sentence would have been 15 to 21 months, without taking
into account the cross reference to accessory-after-the-fact. _2 Instead, the District
Court tbund that the terrorism enhancement applied, and after admittedly
departing drastically, sentenced Mr. Benkahla to 121-months imprisonment.
take a hypothetical defendant who is convicted
Benkahla

for misleading

providing

resources

assume

a grand jury and the government

to a designated

that this investigation

hypothetical
information

defendant
they needed

of the same exact offenses

foreign

terrorist

was not actually

misled the investigators,

prior to the defendant's

obstructed,

as Mr.

in an investigation

organization.
because

the investigators
testimony.

Now

into

However,
although

the

had all the

The resulting

1:..Applying the cross-reference

to accessory after the fact, the probation
officer found that the offense that the government
was investigating
was providing
resources to a designated
foreign terrorist organization.,
which has a base offense
level ot' 26. According
to the accessory-after-the-fact
guideline, the base offense
level for obstruction
is six levels less than the underlying
offense, netting an
adjusted offense level of 20. With Mr. Benkahla's
criminal history category of I,
the resulting guideline range is 33 to 41 months.
The application
of the crossreference, encompassing
a judicial finding that the underlying
investigation
was
concerning
material support of a foreign terrorist organization,
may very well also
violate "the Sixth Amendment.
However, because the terrorism enhancement
increased

the guideline

cross-reference

applied,

sentence

to 210 to 262 months,

the cross-reference

regardless

was not addressed

24

of whether

by the district

the
court.

guideline range would be 15 to 21 months. Assuming identical facts to Mr.

Benkahl.a's case, the defendant has no prior criminal history and has been a model
citizen except for the instant circumstances. A District Court who imposed a
sentence of 121-months imprisonment, departing upward from the highest
guideline range by about 600-percent, would beyond peradventure be overturned
by an al:,pellate court for imposing an unreasonable sentence. Nothing in the 18
U.S.C. _.3553(a) factors would support such an upward departure. In Mr.
Benkahla's case, the only way that this Court could find his sentence of 121months imprisonment reasonable is by relying on the judicially

found fact of

actual obstruction of an investigation into a federal crime of terrorism. This

inherently creates a Sixth Amendment problem as the juries in both cases found
the exact same facts, yet Mr. Benkahla would be sentenced much harsher than the
hypothetical defendant based upon judicially

found facts.

Therefore, the lynehpin question is whether Mr. Benkahla's 121-month

sentence would be upheld as reasonable if it was based merely on the facts found
by the jury beyond a reasonable doubt. As stated above, the only thing that makes
such a sentence reasonable would be the finding of judicial facts, mainly that Mr.
Benkahla's actually obstructed an investigation of a federal crime of terrorism.
Essentially, this makes the maximum sentence authorized the highest limit of a

25

sentence

that would

limit is delineated,
imprisonment

facts.

a judge

at or below

the 'ste:tutory
guideline

be reasonable,

the statutory

First, it is obvious

concun'ing

in Rita.

that Mr. Benkahla's

in judgment)

have been unreasonable

found or admitted
applical:ion

facts.").

of the terrorism

received

based

months.

The district

of 121 months.
of 121 months
enhancement
upon

3553(a)

by only considering

differ markedly
J., concurring

that his relatively

if the District

Court had relied

In Mr. Benkahla's

case, the judge

enhancement

increased

his sentence

only on jury found facts from 15 to 21 months

in part,
was violated

low sentence
on nothing

but jury-

found fact of
he would

have

to 210 to 262

in the facts of this case to suggest

would have been reasonable

factors

from

court had to depart to come to the still much higher sentence

There is nothing

applied.

jury found

be 21-months.

circumstances

demonstrate

that

be the highest

("Nor is my claim that the Sixth Amendment

cannot

Once, the

Amici suggests

should

See Rita, 127 S. Ct. at 2478 (Scalia,

in this case, for petitioner

would

should

facts.
a term of

sentence.

sentence

range calculated
maximum

jury-found

facts to impose

authorized

of Mr. Benkahla's

of the guideline

Therefore,

the petitioner

can find additional

the maximum

maximum'

range

only considering

without

All of the circumstances

were mitigating

the finding

present

that the terrorism

in this case that reflected

rather than aggravating.

26

that a sentence

Mr. Benkahla

has

absolutely no prior history of criminal behavior,

recidivi.sm,
promote

presents

is a model citizen and loving husband

a federal

the government

crime of terrorism,

little risk of criminal

and father, had no willful

and Mr. Benkahla's

from carrying out its investigation.

actions

intent

did not prevent

13

r, Relevantly,
the District Court held that Mr. Benkahla had "no criminal
record and no evidence of ever having committed an illegal act in his life outside
of the conduct
Furthermore,

for which

Sabri Benkahla
or the conduct
likelihood

he is convicted."

is not a terrorist.
of a terrorist,

of recidivism,

Benkahla,

501 F. Supp. 2d at 759.

He does not share the same characteristics

and in turn, he does not share the same

the difficulty

incapacitation
.... Defendant
there is no reason to believe

of rehabilitation,

or the need for

has not committed any other criminal acts and

he would ever commit another crime after his

release from imprisonment.

Defendant has engaged in model citizenry,
receiving a Master's
degree from The John Hopkins University,
volunteering
as a national elections officer in local, state, and national
elections, and demonstrating
his dedication to his four-year-old
son.
clear that, in the case of the instant defendant, his likelihood of ever
crime is infinitesimal

It is

committing

another

....

[Defendant]
He attended

is an American citizen, born and raised in Northern Virginia.

a local high school and college, excelling at both and received

Master's
degree at The John Hopkins University.
He has a significant
number of strong, positive relationships
with friends, family, and the
community.
In fact, the Court received more letters on Defendant's
behalf
than any other defendant
integrity,
duty.
Id. at 760-61.

moral character,

Furthermore,

in twenty-five
opposition

Mr. Benkahla

years, all attesting

to extremism,

did not have:

27

to his honor,

and devotion

to civic

In total consideration of the 3553(a) factors present in this case, which all
tend to mitigate any sentence imposed rather than aggravate, if the sentence
imposed was solely based upon conduct found by the jury, resulting in a
sentencing range of 15 to 21, a sentence by a District Court of 121 months would
undeniably be overturned as unreasonable. Thus, the only way that the District
Court can justify the imposition of the 121-month sentence is upon reliance upon
judicially

found facts, in violation of the Sixth Amendment.

the willful

intent to promote an act of terrorism .... As to the motivation

his untruthfulness,
motivated

this Court is unsure.

Defendant

out of a desire not to be seen as involved

for

may have been

with illegal

activities.

He may have been concerned about potential hardship he might cause

others. He may have been embarrassed
of his own conduct.
Id. at 760.

The District

Court also found that:

although Defendant
'actually'
Defendant's
actual obstruction

obstructed the investigation..,

the extent of
was hardly devastating
to the investigation.

Defendant
was not the lynchpin in any organization
or conspiracy
being
in.vestigated,
and the Government
still achieved successful prosecutions
of
multiple persons with whom Defendant was affiliated .... To serve 210
months for false statements made by Defendant, without the intent to
promote a crime of terrorism and without any evidence that his obstruction
caused any tangible harm to others, is simply more than necessary to
achieve these goals.
ld. at 761.

28

CONCLUSION
As created

by the substantive

"d[id]

not rule out as-applied

would

not have been upheld

reasonableness

Sixth Amendment
as reasonable

review

challenges

standard

in Rita, which

to sentences

on the facts encompassed

that

by the jury

verdict

or guilty plea," Amici

would not be upheld

the judicial

finding

at 2479 (Sealia,
Court should

suggest

as reasonable
of application

J., concurring

overtum

sentence

of 121-months

based upon the facts found by the jury, absent

of the terrorism

in part, concurring

the sentence

the dista-ict court for resentencing

that Mr. Benkahla's

of 121-months

enhancement.
in judgment).

Submitted,

Phone:

VA

22314

(703) 684-8000

29

this

and remand

of the Sixth Amendment.

Attorney for CAIR

Zwerling, Leibig, and Moseley,
108 North Alfred Street
Alexandria,

Therefore,

as unreasonable

within the confines

Respectfully

Rita, 127 S. Ct.

P.C.

to

_ADHIRA

F. AL-KHALILI

VSB. 46603
StaffAttomey
Attorney for CAIR
435 New Jersey Avenue,

S.E.

Washington,
D.C. 20003
Phone: (202) 646-6034

Attorney

for MASF

2401 Pennsylvania
Suite 320

Avenue,

Washington,

District

Phone:

955-5559

(202)

30

N.W.

of Columbia

20037

CERTIFICATE
This Brief of Amici Curiae

OF COMPLIANCE

has been prepared

using:

Corel WordPerfect;
Times New Roman;
14 Point Type Space.
EXCLUSIVE
Certificate
contains

of Filing

electronic

and Service,

and this Certificate

Table of Authorities,

of Compliance,

this brief

6,980 words.

I understand
striking

of the Title Page, Table of Contents,

that a material

the brief and imposing

version

misrepresentation

sanctions.

of the brief and/or

can result in the Court's

If the Court so directs,

a copy of the word or line print-out.

Respectfully

Attorney

Submitted,

for CAIR

Zwerling, Leibig, and Moseley,

108 North Alfred Street
Alexandria,
Phone:

I will provide

VA

22314

(703) 684-8000

P.C.

an

_,,..

:'"}"7 /I

NADHIRA

"

F. AL-KHALTLI

VSB. 46603
Staff Attorney
Attorney

for CAIR

435 New Jersey Avenue,

Washington,
D.C. 20003
Phone: (202) 646-6034

Attorney

for MASF

2401 Pennsylvania
Suite 320
Washington,
Phone:

S.E.

Avenue,

District

(202) 955-5559

N.W.

of Columbia

20037

CERTIFICATE
I hereby
Clerk's

Office

hand delivery,
certify

certify

AND

that on this 4th day of December,

of the United
the required

that I served,

OF FILING

States Court of Appeals

number

SERVICE
2007, I filed with the
for the Fourth

of copies of this Amici

via UPS Ground,

the required

Circuit,

via

Brief, and further

number

of said brief to the

Gordon Dean Kromberg

OFFICE OF THE U.S. ATrORNEY
2100 Jamieson Avenue

Andrew

L. Hurst

Alexandria,

Washington,

following:

VA

REED SMITH LLP

1301 K Street, NW, Suite

22314-5194

D.C.

20005

Counsel for Appellee

Counsel for Appellant

William

Jonathan Shapiro
GREENSPUN SHAPIRO

MOFFITI"

B. Moffitt
& BROADNAX

11582 Greenwich
Reston,

Point Road

DAVIS & LEARY PC

VA 20194

3955 Chain
2nd Floor
Fairfax,

Counsel for Appellant

The necessary
instructions

Bridge

Road

VA 22030

Counsel for Appellant

filing and service

given me by counsel

1100

were performed

in accordance

with the

in this case.

lPo?EE,
Suite 1400
Richmond,

Virginia

23219

Un Zot