United States of America v. Mustafa Mousab Alowemer

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 22-3217
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UNITED STATES OF AMERICA
v.
MUSTAFA MOUSAB ALOWEMER,
Appellant
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On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2:19-cr-00219-001)
District Judge: Honorable Marilyn J. Horan
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Argued: December 11, 2023
Before: BIBAS, PORTER, and FREEMAN, Circuit Judges
(Filed: March 12, 2024)
Samuel G. Saylor [ARGUED]
F EDERAL PUBLIC DEFENDER ’ S O FFICE
1001 Liberty Avenue
Pittsburgh, PA 15222
Counsel for Appellant

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Laura S. Irwin
Matthew S. McHale [ARGUED]
U.S. A TTORNEY ’S O FFICE
700 Grant Street, Suite 4000
Pittsburgh, PA 15219
Counsel for Appellee
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OPINION OF THE COURT
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BIBAS, Circuit Judge.
Serious crimes deserve serious punishments. Mustafa
Alowemer, an ardent ISIS supporter, wanted to avenge ISIS
members killed by the U.S. and Nigerian governments. To that
end, he plotted to bomb a Nigerian-American church. So the
District Court applied a sentencing enhancement for terrorism.
Because he committed this crime to retaliate against govern-
ment conduct, we will affirm that enhanced sentence.
I. A LOWEMER PLOTTED TO BOMB A C HURCH
Alowemer was born in Syria but fled its civil war. He got
asylum here and moved to Pittsburgh. As a teenager, he lived
a seemingly normal life, learning English quickly and graduat-
ing from high school.
But in his spare time, Alowemer became a radical Islamist.
He drank in online propaganda for ISIS (Islamic State of Iraq
and greater Syria) and started chatting with ISIS supporters on
Facebook. One of his contacts was an undercover FBI agent
posing as an ISIS member. Alowemer told this agent that he

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wanted to return to Syria for jihad, asked for a gun with a
silencer, and sent a video of himself pledging allegiance to
ISIS’s leader.
Alowemer also asked to meet other ISIS “brothers” in per-
son. App. 489–90. So the agent put him in touch with another
agent posing as an ISIS member. During their meetings, they
discussed ISIS’s goals and ideology; Alowemer shared ISIS
propaganda, such as a video of the White House burning with
an ISIS flag being raised in the place of a tattered American
flag. He was later found with similar videos, including one
showing an ISIS banner spreading through northern Nigeria.
Alowemer then began proposing various attacks on ISIS’s
behalf before settling on a plan: bombing a Nigerian-American
church in Pittsburgh. He hoped that this bombing would
“inspire other similar like-minded … supporters to carry out
similar attacks.” App. 518. And he suggested “leaving the ISIS
flag” at the site afterwards “to be able to claim credit for ISIS.”
App. 511. Next, Alowemer scoped out the church, marked up
maps of the area, created a detailed checklist for the attack, and
bought supplies to build a bomb. But before he could carry out
the attack, he was arrested and pleaded guilty to trying to
materially support a terrorist group, in violation of 18 U.S.C.
§ 2339B(a)(1).
At sentencing, after a hearing, the District Court applied a
terrorism enhancement. It found that Alowemer’s attempted
attack was “motivated at least in part … to support the cause
of ISIS, to inspire other ISIS sympathizers present in the
United States to join together and to commit similar acts in the
name of ISIS, and to take revenge for ‘our ISIS brothers in

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Nigeria.’ ” App. 666–67. So it concluded that his crime was
“calculated to influence or affect the conduct of government[ ]”
and “to retaliate against the United States and Nigerian gov-
ernments for their conduct in relation to ISIS brothers.”
App. 670 (quoting and applying 18 U.S.C. § 2332b(g)(5)(A)’s
definition of a “[f]ederal crime of terrorism”). The court added
a twelve-level terrorism enhancement, sentencing him to more
than seventeen years in prison. U.S.S.G. § 3A1.4(a).
Alowemer now challenges that enhancement. We review
the District Court’s reading of the Sentencing Guidelines de
novo, its factfinding for clear error, and its application of the
sentencing enhancement for abuse of discretion. United States
v. Blackmon, 557 F.3d 113, 118 (3d Cir. 2009).
The government says we should review the District Court’s
application for clear error as well. That standard applies if a
Guideline “sets forth a predominantly fact-driven test,” mean-
ing that “once the test is stated[,] no legal reasoning is neces-
sary to the resolution of the issue.” United States v. Richards,
674 F.3d 215, 221, 223 (3d Cir. 2012) (internal quotation
marks omitted). For this enhancement, however, we must
analyze the law, not just figure out the facts. So we review for
abuse of discretion.
II. BECAUSE A LOWEMER SOUGHT REVENGE A GAINST
GOVERNMENTS , THE TERRORISM ENHANCEMENT APPLIES
Under the Sentencing Guidelines, a twelve-level enhance-
ment applies if a defendant’s crime was “a felony that involved,
or was intended to promote, a federal crime of terrorism.”
U.S.S.G. § 3A1.4(a). A “[f]ederal crime of terrorism,” in turn,
is a crime that both “(A) is calculated to influence or affect the

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conduct of government by intimidation or coercion, or to retal-
iate against government conduct; and (B) is a violation of” one
of various federal criminal laws. 18 U.S.C. § 2332b(g)(5).
Alowemer concedes that his crime is a crime enumerated
in subpart (B). So the only dispute is whether he intended to
influence, affect, or retaliate against government conduct under
subpart (A). He did.
The enhancement requires that Alowemer “calculated” his
crime to achieve one of three goals. As our sister circuits have
read the term, “calculated” means that he had to specifically
intend one of those results. See, e.g., United States v. Wright,
747 F.3d 399, 408 (6th Cir. 2014) (collecting cases from the
Second, Fourth, and Seventh Circuits). The parties agree. So
we focus on Alowemer’s specific intent: his goals, not his motives.
A defendant may have mixed or multiple intents. But if one
of them is to influence, affect, or retaliate against government
conduct, the enhancement applies. The parties agree on that
too, as do our sister circuits. See, e.g., United States v. Stein,
985 F.3d 1254, 1267 (10th Cir. 2021) (holding that mixed
intent to influence government and harm Muslims sufficed);
United States v. Van Haften, 881 F.3d 543, 544–45 (7th Cir.
2018). The government bears the burden of proving that intent
by a preponderance of the evidence. United States v. Graham,
275 F.3d 490, 517 (6th Cir. 2001); United States v. Awan, 607
F.3d 306, 315 (2d Cir. 2010).
The government argues that we can infer Alowemer’s
intent to influence the U.S. government from his support of
ISIS. As the Fifth Circuit noted: “Supporting ISIS … is some
evidence that [the defendant’s] conduct was calculated to

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influence or affect the conduct of the United States because
ISIS’s terrorist acts are intended to intimidate or coerce the
United States.” United States v. Khan, 938 F.3d 713, 719 (5th
Cir. 2019).
Alowemer responds that he intended only to harm and
frighten Christians, not to influence government conduct. He
also stresses that he targeted civilians and a church, not gov-
ernment officials or buildings. And he argues that triggering
the enhancement requires the government to identify specific
government conduct that he intended to influence. On that
approach, his active support for ISIS was not enough.
That dispute is thorny. But we need not resolve it now
because, whether Alowemer intended to influence or affect a
government’s actions or not, he certainly “calculated [his
crimes] … to retaliate against government conduct.” 18
U.S.C. § 2332b(g)(5)(A) (emphasis added). When asked why
he wanted to target the Nigerian-American church, he said he
sought to avenge his ISIS brothers who had been killed in
Nigeria while fighting against the government. He also “referred
to U.S. … forces as crusaders invading the Middle East.”
App. 493. So when he saw a U.S. soldier, he wanted to kill him
“because [of what] … the U.S. military … w[as] doing against
his brothers and sisters in Baghuz,” the site of a recent battle
and one of ISIS’s last strongholds. App. 492–93. And he sug-
gested “hunting” college students who “work with the mili-
tary.” App. 499. Alowemer told us what he was trying to do:
avenge ISIS fighters attacked by the United States and Nigeria.
That by itself triggers the enhancement.

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III. THE ENHANCEMENT WAS PROPER
D ESPITE A LOWEMER ’S M ENTAL HEALTH
Separately, Alowemer claims that the District Court clearly
erred by not considering his childhood trauma and poor mental
health. Because of these conditions, he argues, the court should
have taken his statements to the undercover agents with a grain
of salt. But this argument fails too. The court considered that
evidence but properly found that it did not negate his specific
intent.
For starters, at sentencing, Alowemer mentioned his mental
health only in passing while discussing the terrorism enhance-
ment. He did not call expert witnesses to testify about his
trauma and post-traumatic stress until after the court had
decided to apply the enhancement. So the court did not have
to spell out how it factored in his mental health.
Still, the District Court was thorough. It studied the filings,
evidence, and record carefully. Considering all of that, it found
that the terrorism enhancement could apply. Then, once
Alowemer put on expert testimony and himself testified about
his mental health, the court addressed it. The mental-health
evidence helped to explain why he had fallen in with ISIS, but
his actions were still intentional, knowing, and voluntary.
Though Alowemer claims he was just going along with the
agents’ suggestions, the evidence refutes that excuse. He proposed
killing a soldier, bombing the Nigerian-American church, and
planting a follow-up bomb. And his words were not empty. He
carefully planned the church bombing, scoping out the location
several times and mapping escape routes. He drew up check-
lists. He even bought the materials to make a bomb. So when

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he said he was planning to bomb the church in retaliation for
government action against ISIS, the District Court reasonably
took him at his word.
* * * * *
Alowemer sought revenge for U.S. and Nigerian mili-
tary action against ISIS. He retaliated by plotting to bomb a
church. This retaliation against government conduct triggered
the terrorism enhancement. And his mental-health evidence
does not undermine that intent. So we will affirm.

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