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Life sentence for attempting to give ISIS material support upheld

Harlem Suarez appealed was sentenced to life in prison without parole following his conviction for one count of attempting to use a weapon of mass destruction in violation of 18 U.S.C. 2332 and one count of attempting to provide material support to a foreign terrorist organization, ISIS, in violation of 18 U.S.C. 2339B.  A jury found him guilty following an eight-day trial.

In his appeal he argued the evidence was insufficient to support his conviction for attempting to uses a weapon of mass destruction. The statute has a jurisdictional element, which requires that the offense, in this case an attempt, would have affected interstate or foreign commerce. Suarez argued the government was required to prove a substantial effect on interstate commerce to satisfy the jurisdictional hook. The court of appeals disagreed by holding that the government only had to prove that a de minimis effect on interstate commerce satisfies the jurisdictional element. Because the minimal effect standard is a low bar, the court found the government presented sufficient evidence that a terrorist bombing in Key West would have had at least a minimal effect on interstate commerce.

Suarez also argued the evidence was insufficient to support his conviction to support a foreign terrorist organization. He claimed that Suarez did not coordinate or directly contact an actual foreign terrorist organization because he had contact only with the government informant and undercover agents. The court rejected this challenge finding that it is irrelevant that he did not make contact with ISIS because the law requires only that Suarez directed or attempted to direct his services to ISIS. Suarez’s mistaken believe that the government informant and the undercover agents were actual ISIS agents is not a defense to his attempted crime. He had the requisite intent to coordinate with ISIS and he took substantial steps to do so. The court found there was substantial evidence Suarez knowingly provided material support to a foreign terrorist organization and for attempting to use a weapon of mass destruction.

Suarez’s criminal defense lawyer challenged his life sentence arguing that it violated the Eighth Amendment’s prohibition against cruel and unusual punishment. To support his claim Suarez argued that his age, low intellect, lack of maturity, and gullibility raise the same culpability questions that the Supreme Court addressed in Graham v. Florida. But the court noted that the Graham involved a juvenile and Suarez was not a juvenile. Because Suarez intended to kill as many people as possible by exploding a bomb on a Key West beach, the court of appeals determined that the life sentence was not so disproportionate to his crimes that is would be considered cruel and unusual punishment under the Eight Amendment.

The court also rejected Suarez’s claim that there was double counting in the sentencing guidelines terrorism enhancement because the guidelines at issue serve different sentencing considerations. The court held that impermissible double counting occurs only when one part of the Guidelines is applied to increase a defendant’s punishment on account of a kind of harm that has already been fully accounted for by application of another part of the Guidelines.

The court also found the life sentence to be reasonable given all of the facts and circumstances. It was permissible for the trial court to focus on what could have happened, instead of what actually happened.