United States v. Kabir

USSG § 3B1.1(c) provides that a defendant’s offense level will be adjusted two levels upward if he “was an organizer, leader, manager, or supervisor” in a non-extensive criminal activity involving fewer than five participants. “Plain error is (1) error, (2) that is plain, and (3) that affects substantial rights.” United States v. Waknine, 543 F.3d 546, 551 (9th Cir. 2008).

Kabir recruited two individuals to join planned attacks on U.S. military sites in Afghanistan with the Taliban and al-Qaida. He was convicted on terrorism-related charges and received a 300-month sentence. Two of the charges were remanded for acquittal, and the district court resentenced him to another 300-months. Kabir assigned error to the resentencing, arguing that the district court erred in applying an enhancement after finding he was the “organizer” or “leader” of the criminal conspiracy pursuant to the United States Sentencing Guidelines. USSG § 3B1.1(c) provides that a defendant’s offense level will be adjusted two levels upward if he “was an organizer, leader, manager, or supervisor” in a non-extensive criminal activity involving fewer than five participants. Because Kabir gave directions that his co-conspirators followed, the district court correctly concluded that he was the “leader” or “organizer,” and the enhancement was not erroneous. Kabir also made a procedural argument that the district court made a plain error by (1) applying the Guidelines’ terrorism-related provisions; (2) finding that he lacked remorse; and (3) failing to consider the difference in circumstances between the sentencing and resentencing. “Plain error is (1) error, (2) that is plain, and (3) that affects substantial rights.” United States v. Waknine, 543 F.3d 546, 551 (9th Cir. 2008). The court considered Kabir’s policy arguments, expressions of remorse, and changed circumstances, found them unpersuasive, and chose to impose a 300-month custodial sentence after the United States Probation Office recommended a 420-month sentence. Kabir’s substantial rights were not affected, and he therefore failed to show a plain error. Affirmed.