UNITED STATES DISTRICT COURT

EASTERN DISTRICT of TENNESSEE

at CHATTANOOGA

UNITED STATES OF AMERICA )

) 1:15-cr-39
v. )
) Judge Collier
ROBERT DOGGART )

SUPPLEMENTAL SENTENCING
MEMORANDUM BY THE UNITED STATES

COMES NOW the United States of America by and through J. Douglas Overbey, United

States Attorney for the Eastern District of Tennessee, Perry H. Piper, Assistant United States

Attorney, and Saeed A. Mody, Trial Attorney, and hereby submits this supplemental sentencing

memorandum with regards to the terrorism enhancement under U.S.S.G. § 3A1.4.

Procedural Posture

The defendant was named in a four-count superseding indictment charging two counts of

solicitation, one under 18 U.S.C. § 247 (civil rights), the other under 18 U.S.C. § 844(i) (arson).

The defendant was also charged with two counts of making threats under 18 U.S.C. § 844(e). The

defendant was convicted after trial on all four counts. The Court dismissed the latter two counts

after trial upon motion of the defendant. The Court then imposed a sentence of 235 months.

The case went to the United States Court of Appeals for the Sixth Circuit, originally on the

issue of whether the Court erred in declining to accept a plea to a Bill of Information charging one

count of making threats in interstate commerce under 18 U.S.C. § 875. The Sixth Circuit agreed

with the defendant, reversed and remanded. On remand, the Court informed the defendant that the

Court would accept the defendant’s plea but reject the plea agreement. The defendant declined

that opportunity and appealed again. On appeal the second time, the Sixth Circuit upheld the

Case 1:15-cr-00039-CLC-SKL Document 343 Filed 09/16/20 Page 1 of 12 PageID #: 6093

 Court’s decision to reject the plea agreement, but found that the facts did not support a conviction

for the solicitation to commit arson in violation of 18 U.S.C. §§ 844(i) and 373. United States v.

Doggart, 947 F.3d 879 (6th Cir. 2020). Specifically, the Sixth Circuit found that the United States

did not establish that the mosque—the target of the arson—was used in, or affected, interstate

commerce. Id. at 887.

The Sixth Circuit also held that Section 247 qualifies as “crime of violence” under the

solicitation statute, because intentionally defacing, damaging, or destroying religious property

necessarily involves the use of physical force. Id. at 888. Lastly, the Sixth Circuit remanded the

case for resentencing to determine whether the “initial ‘sentencing package’ the district court

settled on still makes sense.” Id. The Court did not address the application of the Terrorism

Enhancement under U.S.S.G. § 3A1.4.

The defendant now stands convicted of solicitation to commit a civil rights offense under

18 U.S.C. §§ 247 and 373. The statutorily authorized sentence for this offense is up to 10 years.

The PSR calculated the Total Offense Level of Count One to be 24. See Doc. 232, p. 10. The

defendant is a Criminal History Category I, therefore the guideline range is 51 – 63 months. For

the reasons discussed below an upward departure is appropriate under U.S.S.G. § 3A1.4.

Application of Terrorism Enhancement Application Note 4 to Count One

Section 3A1.4 of the Sentencing Guidelines states: “If the offense is a felony that involved,

or was intended to promote, a federal crime of terrorism,” a twelve-level upward adjustment (or

an increase to a minimum base offense level of 32) shall be applied and “the defendant’s criminal

history category * * * shall be Category VI.” U.S.S.G. 3A1.4.

Application Note 1 to Section 3A1.4 states that a ‘“federal crime of terrorism’ has the

meaning given that term in 18 U.S.C. 2332b(g)(5).” That statute, in turn, sets forth a two-part

Case 1:15-cr-00039-CLC-SKL Document 343 Filed 09/16/20 Page 2 of 12 PageID #: 6094

 definition of “Federal crime of terrorism”: it is (1) an offense “that is calculated to influence or

affect the conduct of government by intimidation or coercion, or to retaliate against government

conduct,” 18 U.S.C. 2332b(g)(5)(A); and (2) that is a violation of one of a number of enumerated

statutory provisions, including the federal arson statute (18 U.S.C. § 844(i)), 18 U.S.C. §

2332b(g)(5)(B). The list of enumerated statutes does not include 18 U.S.C. § 373, the statute for

solicitation of crimes of violence or 18 U.S.C. § 247, the statute for damaging religious property.

Application Note 4 provides an upward departure provision that is warranted when an un-

enumerated statute—like § 247—is violated and the offense is calculated to influence or retaliate

against government conduct:

However, there may be cases in which * * * the offense was calculated to

influence or affect the conduct of the government by intimidation or coercion, or
to retaliate against government conduct, but the offense involved, or was intended
to promote, an offense other than one of the offenses specifically enumerated in
18 U.S.C. § 2332b(g)(5)(B)...In such cases an upward departure would be
warranted, except that the sentence resulting from such a departure may not
exceed the top of the guideline range that would have resulted if the adjustment
under this guideline had been applied.

Following the plain text, courts have recognized that “the structure of Section 3A1.4

establishes two bases for applying the enhancement.” United States v. Fidse, 862 F.3d 516, 522

(5th Cir. 2017) (citing United States v. Graham, 275 F.3d 490, 517 (6th Cir. 2001)). The offense

must be a felony that either (1) “involved” or (2) “was intended to promote” a federal crime of

terrorism. Graham, 275 F.3d at 516. App. Note 4 follows this same structure and uses the same

“intended to promote” language. Under the “intended to promote” prong of Guideline § 3A1.4,

“the offense of conviction itself need not be a ‘Federal crime of terrorism.’” Graham, 275 F.3d at

516. Instead, that phrase “implies that the defendant has as one purpose of his substantive count

of conviction or his relevant conduct the intent to promote a federal crime of terrorism.” Ibid.

Thus, what matters is the defendant’s purpose, “and if that purpose is to promote a terrorist crime,

Case 1:15-cr-00039-CLC-SKL Document 343 Filed 09/16/20 Page 3 of 12 PageID #: 6095

 the enhancement is triggered.” United States v. Mandhai, 375 F.3d 1243, 1248 (11th Cir. 2004).

In short, application of Guideline § 3A1.4 is not limited to circumstances “where the defendant is

convicted of a crime listed in 18 U.S.C. § 2332b(g)(5)(B).” Id.

The Sixth Circuit’s decision in Graham makes this point clear. In that case, the defendant

argued that § 3A1.4 did not apply to his conviction for conspiracy under 18 U.S.C. § 371 because

that statute is not among those listed in Section 2332b(g)(5)(B) and therefore cannot constitute a

“Federal crime of terrorism.” Graham, 275 F.3d at 517. The Sixth Circuit rejected that argument,

holding that the enhancement applies not only to the federal crimes listed in the statute, but also to

other offenses intended to promote the commission of the one of listed crimes. Ibid. The court

stated that “the defendant need not have been convicted of a federal crime of terrorism as defined

in 18 U.S.C. 2332b(g)(5) for the district court to find that he intended his substantive offense of

conviction or his relevant conduct to promote such a terrorism crime.” Ibid. At the same time,

the court held that the district court must “identify which ‘Federal crime of terrorism’ the defendant

intended to promote * * * and support its conclusions by a preponderance of the evidence with

facts from the record.” Id. 1

A defendant who is guilty of solicitation to commit a federal crime of violence has, by

definition, engaged in conduct “intended to promote” such an offense. This same rationale applies

to the “intended to promote” language in App. Note 4 for an unenumerated statute, because the

1
Decisions in other circuits have also held that the Terrorism Enhancement of § 3A1.4 may be
applied to a conspiracy conviction under Section 371, even though Section 371 is not among the
statutes listed in Section 2332(g)(5)(B), because the conspiracies at issue were “intended to
promote” specifically-enumerated federal crimes of terrorism. See, e.g., Mandhai, 375 F.3d as
1247 (involving a conviction for conspiracy to violate Section 844(i)); United States v. Meskini,
319 F.3d 88, 90 (2d. Cir. 2003)(applying enhancement to a conviction for conspiracy under
Section 371).

Case 1:15-cr-00039-CLC-SKL Document 343 Filed 09/16/20 Page 4 of 12 PageID #: 6096

 language and structure of the App. Note 4 is the same as the guideline language. Therefore App.

Note 4 would be applicable for solicitation to violate § 247, if this Court finds that the defendant’s

conduct was to “influence or affect the conduct of government by intimidation or coercion, or to

retaliate against the government conduct...” This Court made that finding previously, and the Sixth

Circuit’s reversal of Count Two does not alter that analysis. 2

A. The Application Of The Terrorism Enhancement Was Supported By Sufficient Evidence

Ample trial evidence supported the Court’s original conclusion that the enhancement was

applicable. Based upon the defendant’s own statements, the Court found that the defendant’s

solicitation of others “to damage or destroy the mosque at Islamberg using explosives intended to

promote the federal terrorism crime of arson for the purpose of intimidating or coercing the

government.” Sent’g Tr., R. 293, PageID# 5450-5451; see also Sent’g Tr., R.293, PageID# 5403-

5407. The Court found that the defendant intended to solicit others to destroy the Islamberg

mosque not just because of its religious character, but also to incite a civil insurrection against the

government. Id. at 5452. The Court noted, for example, the defendant’s statement “that the

2
Although the Court need not decide it, the United States notes that the defendant’s conduct in
Count One would fall within the § 3A1.4 terrorism enhancement for solicitation to commit arson
of the mosque: his conduct intended to promote the crime of using a destructive device against
any person within the United States – a violation of 18 U.S.C. § 2332a, an enumerated statute
under Section 2332b(g)(5)(B). A “destructive device” includes any explosive, incendiary, or
bomb. 18 U.S.C. § 921. The defendant specifically recruited William Tint because the defendant
believed Tint had explosives training. See Tr. R. 287, PageID# 4924-25, Exhibit 110T (“Well
then, that is, that is important because we were going to discuss before going up there, what kind
of incendiary devices we’re going to use, what kind of accelerants we’re going to use. Uh, if, if
we have a, a, you know, a demolition device that can just, you know do a single explosion to do
enough damage to burn a building down, that’s the best part. You know, I don’t want to have to
throw a gallon of gas in there and you know, burn some kind of thing to light it up and hope it,
you know, hope it burns down. We need to know it has to burn down. Demolition guy, ah, yeah,
that, that would do it.”)

Case 1:15-cr-00039-CLC-SKL Document 343 Filed 09/16/20 Page 5 of 12 PageID #: 6097

 government we have was no longer willing or able to protect its citizens, and that patriots and

militias need to rise up and take over the government’s responsibilities.” Id. at 5451. The Court

also found court that the defendant “was talking about setting in motion an armed insurrection

against the government of the United States that would force the government of the United States

either to respond to the attacks or to give in and capitulate.” Id. at 5452.

After the defendant’s lengthy allocution, the Court addressed the defendant, also at length.

Ultimately, the Court noted that the defendant was “a person who has discarded almost everything

sacred and important about our American legal system. You don’t trust it. You don’t believe in it.

You have no reason to believe it. You have no reason to honor it or obey it.” Id. at 5539. The

Court reiterated that the defendant was a person who would “lay down [his] life” to “stand up for

[his] convictions.” Id. at 5541-42. The Court then noted, after hearing the defendant’s allocution,

that it “reinforce[d] the Court’s concern and heighten[ed] the Court’s concern” that the defendant

was “a distinct danger and threat to the citizens of the United States of America.” Id. at 5542.

B. An Upward Departure is Warranted

After finding by a preponderance of the evidence that the Terrorism Enhancement applied,

on the basis that Section 844(i) was an enumerated offense, this Court imposed a sentence of 235

months. Such a sentence is still appropriate, but it is now capped at the 120 statutory maximum

for a conviction under Count One. The reversal of Count Two did not change the nature or

depravity of the defendant’s actions. The reversal only highlighted that the Islamberg mosque had

insufficient ties to interstate commerce. It did not change the need for this house of worship—

like all houses of worship—to be protected under federal law by those who advocate for its

destruction. It did not change the need for this religious community—like all religious

Case 1:15-cr-00039-CLC-SKL Document 343 Filed 09/16/20 Page 6 of 12 PageID #: 6098

 communities—to be protected under federal law by those who advocate for their buildings to be

burned down and for their residents, including their children, to be killed.

C. Application of 18 U.S.C. § 3553(a) Sentencing Factors

In reaching a decision concerning an appropriate sentence in this case, the Court must

consider a number of sentencing factors. As this Court is well aware, the federal sentencing

guidelines are no longer mandatory and are now merely advisory. United States v. Booker, 543

U.S. 220 (2005). Before imposing sentence, the Court is asked to consider the sentencing factors

listed in Title 18, United States Code, Section 3553(a), which consider the nature and

circumstances of the offense and the history and characteristics of the defendant. Some of the

factors listed by Congress include a sentence necessary to 1) reflect the seriousness of the offense,

2) promote respect for the law, 3) provide just punishment (specific deterrence), 4) afford adequate

deterrence to criminal conduct (general deterrence), and 5) protect the public from further crimes

of the defendant. The undersigned will address some of the above-referenced factors in turn.

The factors set forth in 18 U.S.C. § 3553(a) call for a sentence of incarceration in this case.

a. The Seriousness of the Offense.

As noted above, this offense was egregious. The Court should view the defendant’s actions

as serious as it did originally and count this section as an aggravating factor. The Court found that

the defendant’s actions constituted terrorism under Section 3A1.4. This finding should not change

simply because a violation of Section 247 is not a specifically enumerated offense; Application

Note 4 exists for these situations.

b. The History and Characteristics of the Defendant.

As noted originally, the defendant has no prior criminal history. This fact should inure to

his benefit. Also as noted before, the defendant’s faux patriotism, and his penchant to steal the

Case 1:15-cr-00039-CLC-SKL Document 343 Filed 09/16/20 Page 7 of 12 PageID #: 6099

 valor of others, is reprehensible. The defendant constantly touted his military credentials—an

experience the defendant did not enjoy—to numerous others. Fabricating military service and

bragging of great military achievements when none exist is unpardonable. Those who claim to

have served, even though they did not, dishonor all citizens, not just those who have been in the

military. The defendant’s boasts risk undermining the respect and admiration our society holds

for our active duty military and veterans.

Additionally, during his allocution, the defendant stated “[t]o the residents of Islamberg,

please accept my apology for any inconveniences you may have experienced.” (R. 293, PageID#:

5511.) (Emphasis added.) This, perhaps, is one of the greatest understatements in the history of

jurisprudence. The defendant was soliciting others to burn the buildings, shoot the residents, and

then if needed, attack them in hand-to-hand combat using machetes. A letter from Islamberg

resident Bilqees Abdallah, read by the Court during sentencing, accurately captures the harm:

“Not only did he intend to endanger human lives, but Robert Doggart has also
disrupted the psychological well-being of the men, women, and children of our
community in a way that may never be repaired. This selfless and bold plan by Mr.
Doggart cannot be seen as a minor offense, nor should his alleged clean record grant
him a lesser sentence. His plan was inhumane, and serves as a violation against the
core values and principles of our American society. I strongly believe that a strict
sentence is most appropriate in this situation.”

(R. 293, PageID#: 5538.)

During his allocution, the defendant repeatedly understated, or outright denied, the

offense and his role in it. He made numerous claims: he was entrapped by the government;

he was not the “leader”; he only wanted the FBI to act on the threat he imagined was

emanating from Islamberg; he was the victim of a flawed process through which he was

charged and convicted (Grand Jury, Trial Jury, Civil Rights authorization). (R. 293,

Case 1:15-cr-00039-CLC-SKL Document 343 Filed 09/16/20 Page 8 of 12 PageID #: 6100

 PageID#: 5507, 5513-14, 5516, 5519.) Indeed, the defendant even criticizes his “tepid

defense.” (Id. at 5502.)

During allocution, the defendant stated “[m]ost disturbing of all, though, is that

someone, anyone, thought that I sought to harm children.” The defendant’s statements,

when he believed he was talking to kindred spirits, belie his assertion and reveal how

“someone, anyone” believed he could kill indiscriminately. “[T]hen there’s ultra-

violence…we’re not these nice people here sitting at this table having lunch. We’re not

that anymore now. We’re crazy now. We’re gonna kill and we will be cruel, kill

everything….” (Exhibit 307-T, p. 36.) Referencing his “action teams,” the defendant

stated they would “just kill, kill everybody, but there’s children up there, and I don’t want

to do, I don’t want, I don’t want us to do that. Don’t want to have to kill children, man.

But there’s always collateral damage.” (Id. at 45.)

He characterizes the actions leading to his convictions as “an elaborate hoax.” (R.

293, at 5503.) These denials reveal the true nature of the defendant’s character. He has

not—presumably because he cannot—taken responsibility for his actions.

c. Respect for the Law and General Deterrence.

This is perhaps the most important of the 3553(a) factors in this case. Given the seriousness

of the offense and the harm caused by the defendant, a sentence of incarceration is necessary to

promote respect for the law. General deterrence is a vital element of sentencing. By imposing a

maximum sentence of incarceration in this case, this Court can let it be known that others who

commit these acts—threatening innocent people with destruction of property and death—will be

held responsible. We live in troubled times: the country is fractured. Actions like those perpetrated

by the defendant only make it more so. Based upon dubious research and an apparent fondness

Case 1:15-cr-00039-CLC-SKL Document 343 Filed 09/16/20 Page 9 of 12 PageID #: 6101

 for self-promotion, the defendant targeted individuals he did not know. When similarly situated

citizens see that a defendant receives a punishment of incarceration for a hate crime, they are more

apt to reconsider engaging in similar conduct in the future in fear of receiving the same treatment.

Indeed, those who would commit hate crimes would seemingly be the best kind of audience for

the general deterrence argument, as the prospect of imprisonment is often far more daunting to

them than it might be to other types of offenders, who are more likely to consider imprisonment

to be merely a hazard of the job. Without fear of societal retribution in the form of a significant

loss of their freedoms, hate crime offenders and terrorists will continue to engage in the same type

of misconduct.

As the Court noted at the first sentencing hearing

The allocution that you gave gave me more concern about you than anything I heard
on the recordings and any evidence I heard at trial. You are a person who has
discarded almost everything sacred and important about our American legal
system. You don’t trust it. You don’t believe in it. You have no reason to believe
it. You have no reason to honor it or obey it.

(R. 293, PageID#: 5539.) The same is true today as it was before. The defendant will never honor

or obey the American legal system. He believes himself to be above it. He claims to honor the

Constitution, but that is a selective honoring: had he not been stopped, he would have deprived

other citizens of their rights, most notably by depriving them of their lives and property without

due process of law.

d. Protect the Public from Further Crimes by the Defendant.

The defendant previously suggested that he is not a risk to reoffend. The government does

not agree. As the government has previously noted, the defendant expressed determination in

carrying out his plan. The fact that the defendant is “elderly” does not ameliorate this problem.

The defendant believes he is near the end of his life and has little to lose. The defendant not only

10

Case 1:15-cr-00039-CLC-SKL Document 343 Filed 09/16/20 Page 10 of 12 PageID #:

6102
 expressed hatred for individuals unlike himself, the defendant also expressed hatred for his

country. He was willing to commit horrible acts in order to serve as a “flash point” for an uprising

against the United States. The defendant suggests that his motives stemmed from “a desire to

protect the country,” based upon “both noble and foolishly grandiose visions.” The defendant did

not desire to protect his country: his desire was to rid the country of people who are unlike him. If

the defendant had desired to protect the country, he would have stood guard at Islamberg to ensure

the safety of the American citizens living there.

e. Provide the Defendant with Needed Education, Vocational Training, Medical Care

or Other Correctional Treatment.

As noted before, the United States believes that the defendant may benefit from mental

health treatment, either while incarcerated or as a condition of supervised release. Also, the

defendant has some medical conditions which might be addressed by a Federal Medical Center.

f. The Need to Avoid Unwarranted Sentencing Disparities.

Finally, in fashioning a sentence, the Court also must consider the “need to avoid

unwarranted sentence disparities” among “defendants with similar records who have been found

guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). There will be no disparity in imposing a

serious sentence of incarceration for the defendant.

11

Case 1:15-cr-00039-CLC-SKL Document 343 Filed 09/16/20 Page 11 of 12 PageID #:

6103
 Conclusion

For the reasons stated, a substantial period of incarceration for this serious offense is

warranted, given the defendant’s actions, his blame shifting, and his lack of remorse. The

defendant was, and is, a danger to society. This Court should fashion a sentence which captures

the harm perpetrated by the defendant, account for the factors found in § 3553, and considers the

defendant’s unique situation.

Respectfully submitted,

J. DOUGLAS OVERBEY
United States Attorney

By: s/ Perry H. Piper

Perry H. Piper, BPR #013384
Assistant U.S. Attorney
1110 Market Street, Suite 515
Chattanooga, Tennessee 37402
Perry.Piper@usdoj.gov

By: Saeed A. Mody

Saeed A. Mody, NY # 4368080
Trial Attorney
Civil Rights Division

12

Case 1:15-cr-00039-CLC-SKL Document 343 Filed 09/16/20 Page 12 of 12 PageID #:

6104