CHANDIA APPEALS AGAIN
In September 2005, Ali Asad Chandia was indicted on 4 counts for providing material support to Lashker-e-Taiba (LET), an organization in Pakistan that is fighting against the Indian troops for their atrocities committed against the Muslims in Kashmir. LET was designated as a terrorist organization by the US government in December 2001. Ali Asad Chandia, at that the time of his arrest and while waiting for the trial, taught 3rd grade at Al Huda School in Maryland and occasionally gave sermons and lectures at various mosques. He was well regarded by the parents and faculty as an academic and a teacher. Many testified on his behalf as character witnesses at his trial.
The Government alleged that Ali Asad Chandia violated the law by attending a training camp run by LET, by providing ride to an LET official in the United States, providing him access to a family computer, and assisting him ship paintballs to Pakistan. The jury convicted Ali Asad Chandia on 3 counts and acquitted him on the training count.
Prior to Ali Asad Candia’s sentencing, the probation officer prepared a pre-sentencing report (PSR). A PSR is a probation officer’s detailed account of a convicted defendant’s educational, criminal, family, and social background, conducted as an aid in passing sentence. The PSR recommended the terrorism enhancement under USSG 3A1.4. Without the terrorism enhancement, someone like Ali Asad Chandia, who has no criminal history, would only receive 63 – 78 months (Approximately 6 years). With the terrorism enhancement, however, Ali Asad Candia’s sentencing guidelines increased, ranging to 360 months (30 years) to life. Ali Asad Candia’s attorney Marvin Miller argued that terrorism enhancement was not warranted in this case and, in addition, contested several factual assertions in the PSR that were contradicted by the trial record. By law, the trial courts are required to resolve any factual disputes that the courts deem relevant to the application of enhancement. This is done by holding a hearing known as Rule 32 hearing, a hearing denied by the judge in Ali Asad Candia’s case. The judge simply denied the hearing by saying, “You see, what you think ought to be in the report or what you think ought not to be in the report is of no concern to me.” Finally the trial court sentenced Ali Asad Chandia to 180 months (15 years) by running all sentences concurrently.
Ali Asad Chandia filed an appeal and advanced several challenges to his conviction and the trial court’s application of the terrorism enhancement in determining his sentence. The 4th Circuit Court of Appeals upheld Ali Asad Candia’s conviction but vacated his sentence because the sentence proceedings were flawed. The 4th Circuit stated that the trail court must resolve any factual disputes in the PSR that is deemed relevant to the application of the terrorism enhancement. The 4th Circuit also stated that in order to apply the terrorism enhancement, mere conviction of felony is not enough. In addition to the conviction, the government must prove that Ali Asad Chandia intended to “influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” The 4th Circuit stated that both the PSR and the trial judge seemed to “erroneously” believe that the terrorism enhancement applies to mere conviction alone. They further stated that the facts alone do not support application of the enhancement and unlike some cases where the enhancement has been applied, the facts underlying the conviction in this case were nonviolent acts. The 4th Circuit vacated Ali Asad Candia’s sentence and remanded for re-sentencing and ordered a rule 32 hearing to resolve the factual disputes in the PSR. The 4th Circuit also instructed the trial judge to identify the requisite intent element of the enhancement if there existed any that Ali Chandia intended to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.
On remand, dated April 25, 2008, the trial judge, while re-sentencing Ali Asad Chandia, imposed the same 15 year sentence as before. The judge did not rule on the Ali Asad Candia’s specific factual objections to the PSR, once again imposed the terrorism enhancement stating that as a native of Pakistan, who was partly educated there and had spent time there, Ali Asad Chandia had the knowledge of the purpose of the LET. The trial judge then stated that Ali Asad Chandia gave ride to an LET official, provided him access to his computer, and helped him ship paintballs, so the enhancement applies. The trial court once again adopted the exact same PSR and did not state that it had not relied on the contested facts in the PSR in reaching the judgment. Another document called Judgment and Commitment Order prepared by the trial court a week after the re-sentencing stating the judgment and sentencing in this case is also identical to the order entered prior to the remand. The Judgment and Commitment Order relied solely on the unchanged, contested PSR that stated that the conviction themselves “… meet the requirements for an enhancement…” but referenced no facts from the trial record to support its conclusion that Ali Asad Chandia intended to influence or affect the government conduct by intimidation, coercion or retaliation.
Ali Asad Candia’s attorney Marvin Miller once again appealed to the 4th Circuit Court of Appeals, advancing several challenges related to the re-sentencing. According to Miller, the trial court did not comply with the remand order entered by the 4th Circuit because the trial court did not resolve the factual disputes in the PSR relevant to the application of the terrorism enhancement. It did not state that it would not rely on the contested facts in the PSR and did not include findings of the facts for the enhancement – in writing or by reference to the remand transcript – in the Judgment and Commitment Order. Such findings of facts, announced by the trial judge from the bench, are not sufficient and must be documented in the Judgment and Commitment Order. Otherwise, the oral opinion of the court will be deemed inconsistent with the Judgment or Order and in such a case the Judgment or Order will govern, as was ruled in Mardaugh Volkswagen, Inc. Vs. First National Bank South Carolina, and the United States Vs Martin.
Another challenge advanced by Ali Asad Chandia is that the facts of conviction in this case, standing alone, do not support application of the terrorism enhancement. The trial court justified the application of the terrorism enhancement based on Ali Asad Candia’s knowledge of LET and his involvement in assisting LET. These facts alone proved elements of the offenses of the conviction, which did not per se establish the specific intent required to apply the terrorism enhancement. The trial court’s articulation of these facts from the bench failed to establish Ali Asad Candia’s intent that he intended to influence affect the government conduct by intimidation, coercion or retaliation.
Lastly there is an unreasonable disparity in Ali Asad Candia’s sentence compared to others convicted of conspiracy and/or providing material support. According to Ali Asad Candia’s brief, “Hamdan, the personal driver of Osama Bin Laden who transported and delivered firearms to Al-Qaeda and received weapons training from Al-Qaeda, was convicted of providing material support to Al-Qaeda and sentenced to 66 months imprisonment. Chandia in contrast was acquitted of attending an LET training camp, as the government has conceded. He was sentenced, however, to a total of 180 months incarceration. Candia’s sentence does not survive the reasonableness review.”
If the 4th Circuit Court decides that the trial court in fact did not comply with the remand order or that the facts supporting conviction in this case, standing alone are not sufficient to support the application of the terrorism enhancement, Ali Asad Chandia will Inshallah be re-sentenced, receiving a lower sentence.
Ali Asad Chandia is currently incarcerated at USP Marion, IL, at a special unit called Communication Management Unit (CMU) and can be reached at
Ali Asad Chandia # 46811-083
USP Marion, P. O. Box 1000
Marion, IL 62959.