United States Court of Appeals, District of Columbia Circuit
Argued: September 18, 2014.
Appeal from the United States District Court for the District of Columbia. (No. 1:00-cr-00375-1).
Diane S. Lepley, appointed by the court, argued the cause and filed the brief for appellant.
Chrisellen R. Kolb, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Ronald C. Machen Jr., U.S. Attorney, and Elizabeth Trosman, Gregg A. Maisel, and Anthony Asuncion, Assistant U.S. Attorneys.
Before: ROGERS AND KAVANAUGH, Circuit Judges, and WILLIAMS, Senior Circuit Judge.
Circuit Judge :
The defendant, Madhatta Asagal Haipe, pleaded guilty to four counts of hostage-taking
in violation of 18 U.S.C. § § 1203 and 2 and was sentenced in 2010. His conviction stems from his leadership role in a December 1995 kidnapping of 16 civilians from a recreation area in the southern Philippines, including nationals of the Philippines and the United States. A factual proffer agreed on by the parties explains that after Haipe and his associates seized the hostages, Haipe released four, demanding that they collect a ransom payment of at least 1,000,000 Filipino pesos (about $38,000 at the time) by 5 PM the next day. He instructed them not to tell the authorities about the kidnapping; if they did so, other hostages would be killed. The released hostages managed to raise over a million pesos. Despite Haipe's stricture against contacting officials, they brought a local mayor into the picture. Before any ransom was paid, she and Haipe negotiated a deal whereby Haipe accepted a lesser amount, coupled with a commitment by the mayor to provide various benefits for the local Muslim community, including financial support for existing schools and hiring more Muslims for government jobs.
Haipe's claims on appeal relate solely to sentencing, some aspects of which the plea agreement left open. His primary arguments are that the court should have applied a part of the Sentencing Guidelines that came into effect after the offense, and that the court should not have applied the so-called " terrorism enhancement," United States Sentencing Guidelines (" USSG" ), § 3A1.4(a). Although the final offense level computed by the district court under the Guidelines yielded a sentence of life imprisonment, the court sentenced Haipe to concurrent terms of 276 months in prison on each count. The court also imposed concurrent terms of 60 months supervised release.
The Guidelines are now advisory, but the first step of the sentencing court is to calculate the range they prescribe. Gall v. United States, 552 U.S. 38, 49, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Even though Haipe's ultimate sentence of 276 months fell roughly in the middle of the range his own theories would have produced (235 to 293 months), a lower range would likely have benefited him, as the properly calculated range frames the district court's exercise of its discretion. United States v. Rodriguez, 676 F.3d 183, 192, 400 U.S. App. D.C. 134 (D.C. Cir. 2012).
We review de novo Haipe's purely legal claim--that the district court should have chosen the later Guidelines. As to the application of the Guideline to the facts, 18 U.S.C. § 3742(e) directs us to give the district court " due deference," which we have said lies " somewhere between de novo and 'clearly erroneous.'" United States v. Kim, 23 ...