SDTX Judge Lynn Hughes name never makes it onto the Opinion of the 5th Circuit in this ISIS sentencing case

UPDATE:

• ORDER on Resentencing as to Asher Abid Khan. By 10/7/2019, the probation office will prepare and disclose an addendum to the original presentence investigation report. (NOT ON DOCKET AS AT 10/10/2019).
• By 10/28/2019, the government and Khan may file objections to the addendum. By 10/28/2019, the government and Khan must brief the court on the law affecting resentencing.
• A hearing on the briefing is set for 11/20/2019 at 10:30 AM at Courtroom 11C before Judge Lynn N Hughes. (Signed by Judge Lynn N Hughes)

SMITH

DENNIS

OWEN

Appeals court to hear arguments about whether Houston federal judge committed ‘enormous’ error

Justice Department lawyers on Wednesday are set to argue before a federal appeals court in New Orleans that a colorful and controversial federal judge in Houston grievously erred when he gave a University of Houston student a light sentence for supporting ISIS jihadists in Syria.

U.S. District Judge Lynn N. Hughes sentenced Asher Abid Khan in 2018 to an 18-month term for plotting to join ISIS, a joint plan with a friend that resulted in the death of a Klein Oak high school classmate he helped recruit to the insurgency.

Instead Khan, a 24-year-old U.S. citizen from Spring, now lives in a halfway house. He resumed his coursework in mechanical engineering this semester, according to a UH spokesman.

The judge, who has served in his wood-paneled courtroom since the Reagan administration, is known to air his feelings candidly about people in court and exercise broad discretion from the bench.

Federal prosecutors have generally asked for 20-year maximum sentences and others around the country convicted of the same conduct have generally been sentenced to 9 to 15 years, according to Jonathan Lewis, a reseach fellow at the Program on Extremism at George Washington University.

Nationwide, the average term for providing material support to ISIS is more than 13 years in prison, according to GWU data.

The conflict before the 5th U.S. Circuit Court stems from drastic post-9/11 “enhancements” that judges may tack on at sentencing that effectively suggest a judge consider someone like Khan — who has no prior criminal record — akin to the most hardened criminal.

Wadie Said, a criminal law professor at the University of South Carolina who studies the challenges inherent in terrorism and national security prosecutions and authored a book on the impact of such enhancements, said it comes down to which branch of government should have discretion to determine sentencing outcomes.

“What you’re seeing in this case is a tension that’s been ongoing,” he said. “Should the prosecutors decide in essence what the sentence should be or are the courts truly independent and free to rule as they see fit?”

The hearing before a trio of appellate judges in New Orleans hinges on a narrow question: Was Hughes’ sentence procedurally or substantively unreasonable?

Prosecutors from the national security division in Washington, D.C. say federal probation officials advised the judge to sentence Khan to more than 20 years.

Defense attorney David Adler asked the judge for a downward departure from the guidelines, explaining that Khan had dedicated himself in recent years to work, school and family and had been speaking openly about his experience with young people who might consider joining terrorist groups.

“The man that stands here is a very, very, very different man than the stupid, naive man who believed this was a good thing to do,” Adler said at the hearing.

Adler believes the appeal is a waste of time and resources.

“Even if the case is sent back to Judge Hughes, there’s a good chance the same sentence will be imposed,” Adler said. “It’s a legal sentence and he has the authority to impose any sentence he likes up to the maximum.”

“The appeal is just an attempt to intimidate judges from giving sentences that the government doesn’t like,” he said.

Prosecutors said in court documents that the sentence “did not reflect the gravity of Khan’s conduct and would not sufficiently deter others from taking the first step along the path to radicalization.”

“The district court’s error was not harmless,” the government argued in its filing. “Indeed, the magnitude of its error was enormous.”

Khan caught the attention of federal officials in McAllen while in 2014 he was living in Australia. An agent testified that Khan sent a Facebook friend request to Sixto Ramiro Garcia, whom he knew from Klein Oak High School and a Houston-area mosque.

Khan admitted in his plea that he’d told Garcia via Facebook that he wanted to join ISIS. A few weeks later, he told an alleged ISIS recruiter that he wanted to “die as a shahid,” or martyr.

Federal officials said Khan and Garcia made plans to meet in Turkey near the Syrian border. Garcia departed on Feb. 24, 2014, and Khan left for Istanbul the next day with plans to continue on to Syria, but he cut short the trip and returned to Houston after family members lied to him, saying his mother was in intensive care.

Garcia made it to Syria, where he sent panicked messages to his friend after Khan failed to show up.

Upon his return to Houston, Khan helped Garcia connect with an ISIS recruiter and sent him $200 or $300 to cover costs. By August 2014, Garcia made it to ISIS boot camp. On Dec. 25, 2014, Garcia’s mother saw a notice on Facebook that her son had died fighting for the cause.

In addition to Khan, two others in unrelated local cases have admitted to attempting to provide support for ISIS. Omar Faraj Saeed Al Hardan was sentenced by Hughes to a 16-year term. Kaan Sercan Damlarkaya, an 18-year-old from Houston, is set for sentencing later this month.

Another man has a trial pending.

Said, a former defense lawyer and law professor who wrote the book on terrorism enhancement, said he thinks the names and complexions of defendants convicted of terrorism are also a factor for judges.

“The problem with terrorism cases is people have very strong opinions about what a terrorist looks like,” he said, referring to Khan by name. “Someone who shows up looking like that with that name like that is convicted of being a terrorist, the government is apoplectic — how could this guy get such a short sentence?”

Following oral argument, the appeals court panel will likely take the matter under advisement and rule at a later date.

i Illegal Precedents overturning Centuries of Property Laws
ii Black Robes and Lawyers Colluding Against Citizens in Texas Courts
iii Unauthorized Practice of Debt Collection
Texas AG n Hawkins Refusing to Answer Citizens Question re iii above
iv Texas Bar Corrupt
And much more. pic.twitter.com/ThBICkC1SA

— LawsInTexas (@lawsintexasusa) June 16, 2020