United States v. Jones

22-2958-cr
United States v. Jones
United States Court of Appeals
For the Second Circuit
August Term 2023
Submitted: December 11, 2023
Decided: April 29, 2024
No. 22-2958-cr
UNITED S TATES OF AMERICA
Appellee,
v.
MAALIK ALIM J ONES
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of New York
No. 1:16-cr-19-1 , Gardephe, Judge.

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Before: Walker, Park, Pérez, Circuit Judges.
Maalik Alim Jones, a United States citizen, pleaded guilty to
terrorism-related charges based on his conduct in Kenya and Somalia
assisting al-Shabaab, an Islamist military organization. The district
court (Gardephe, J.) accepted his plea and sentenced him to 25 years
of imprisonment. Jones now challenges his plea agreement and
sentence, arguing that (1) a prior mandate of this Court precluded the
government from charging him in a superseding indictment; (2) the
language of his plea agreement is ambiguous and inapplicable to him;
and (3) his sentence was based on erroneous factual findings and
constitutionally impermissible factors—including collective
punishment and the sectarian nature of al-Shabaab. We reject these
arguments and AFFIRM the judgment of the district court.
Joshua L. Dratel, Law Offices of Dratel & Lewis, New
York, NY, for Defendant-Appellant.
David William Denton, Jr., David M. Abramowicz,
Assistant United States Attorneys, for Damian Williams,
United States Attorney for the Southern District of New
York, New York, NY, for Appellee.

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PARK , Circuit Judge:
Maalik Alim Jones, a United States citizen, pleaded guilty to
terrorism-related charges based on his conduct in Kenya and Somalia
assisting al-Shabaab, an Islamist military organization. The district
court accepted his plea and sentenced him to 25 years of
imprisonment. Jones now challenges his plea agreement and
sentence, arguing that (1) a prior mandate of this Court precluded the
government from charging him in a superseding indictment; (2) the
language of his plea agreement is ambiguous and inapplicable to him;
and (3) his sentence was based on erroneous factual findings and
constitutionally impermissible factors—including collective
punishment and the sectarian nature of al-Shabaab. We reject these
arguments and affirm the judgment of the district court.
I. BACKGROUND
A. Factual Background
Maalik Alim Jones is a United States citizen, born and raised in
Baltimore, Maryland. In 2011, at twenty-six years old, he left the
United States for Somalia where he joined the Islamic terrorist
organization known as al-Shabaab. The United States Secretary of
State had designated al-Shabaab as a foreign terrorist organization in
February 2008; in 2012, al-Shabaab swore allegiance to and merged
with al-Qaeda.
Jones became a member of a unit within al-Shabaab known as
Jaysh Ayman, which has engaged in acts of terrorism against Kenya’s
civilian population. Jones received three months of training from al-

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Shabaab, during which he learned how to operate an AK-47 assault
rifle and rocket-propelled grenade. He fought Kenyan military forces
in a battle in Afmadow, Somalia, near the Kenyan border, where he
was wounded. After recovering, he returned to service with Jaysh
Ayman and remained a member for about two more years, for a total
of four years.
During that time, Jaysh Ayman committed numerous acts of
terrorism, including a 2014 attack on the village of Mpeketoni, Kenya
and a 2015 ambush on a Kenyan Defense Force base in Lamu County,
Kenya. Al-Shabaab also carried out several other acts of terrorism,
including a 2013 attack on Westgate shopping mall in Nairobi, Kenya.
These attacks killed and wounded scores of civilians, including some
Americans. Following the ambush in Lamu County, Kenyan
authorities recovered electronic media from the body of a deceased
al-Shabaab fighter and provided it to the FBI. The files included
videos depicting Jones in the company of prominent al-Shabaab
fighters, interacting with or embracing them, and walking around
with a firearm. Jones defected from al-Shabaab, and in December
2015, was captured by Somali authorities.
B. Procedural History
In January 2016, Jones was indicted in U.S. District Court for
the Southern District of New York in the first of a number of charging
instruments. The Initial Indictment charged Jones with five counts:
conspiracy to provide material support to al-Shabaab, in violation of
18 U.S.C. § 2339B (Count One); provision of material support to al-
Shabaab, in violation of 18 U.S.C. § 2339B (Count Two); conspiracy to

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receive military-type training from al-Shabaab, in violation of 18
U.S.C. §§ 371 and 2339D (Count Three); receipt of military-type
training from al-Shabaab, in violation of 18 U.S.C. § 2339D (Count
Four); and possessing, carrying, and using firearms during and in
relation to the above offenses, in violation of 18 U.S.C.
§§ 924(c)(1)(A)(i)-(iii), (B)(i)-(ii), and 2 (Count Five).
In September 2017, Jones waived indictment and consented to
the entry of a Superseding Information (the “S1 Information”). The
S1 Information charged Jones with conspiracy to provide material
support to al-Shabaab (Count One); conspiracy to receive military-
type training from al-Shabaab (Count Two); and possessing, carrying,
and using firearms during and in relation to Count One and Count
Two (Count Three). Despite the entry of the S1 Information, the Initial
Indictment remained pending.
Immediately after consenting to the entry of the S1 Information,
Jones entered a plea agreement (the “First Plea Agreement”). Under
the First Plea Agreement, Jones agreed to plead guilty to all three
counts in the S1 Information. The Agreement also included the
following term:
It is further agreed that should the convictions following
the defendant’s pleas of guilty pursuant to this
Agreement be vacated for any reason, then any
prosecution that is not time-barred by the applicable
statute of limitations on the date of the signing of this
agreement (including any counts that the Government
has agreed to dismiss at sentencing pursuant to this

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Agreement) may be commenced or reinstated against the
defendant, notwithstanding the expiration of the statute
of limitations between the signing of this Agreement and
the commencement or reinstatement of such
prosecution. It is the intent of this Agreement to waive
all defenses based on the statute of limitations with
respect to any prosecution that is not time-barred on the
date that this Agreement is signed.
Appellee’s Br. Add. at 7 (emphasis added). Jones pleaded guilty
under the First Plea Agreement.
In June 2018, the district court sentenced Jones for the charges
identified by the First Plea Agreement. As relevant here, the district
court sentenced Jones to consecutive terms of three years of
imprisonment on Count One of the S1 Information; two years of
imprisonment on Count Two; and 30 years of imprisonment on Count
Three, for a total prison term of 35 years. The district court granted
the government’s motion to dismiss the five open counts of the Initial
Indictment.
In June 2019, the Supreme Court held in United States v. Davis
that 18 U.S.C. § 924(c)(3)(B) (interpreting “crime of violence”)—on
which Count Three of the S1 Information had been partly based—was
unconstitutionally vague. See 139 S. Ct. 2319, 2336 (2019).
Jones then appealed his conviction on Count Three of the S1
Information to this Court. He argued that, under Davis, the offenses
charged against him in Counts One and Two were no longer “crime[s]
of violence” that could serve as predicates for the section 924(c)

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offense charged in Count Three. See 18 U.S.C. § 924(c)(3). The
government conceded this point and moved to vacate Jones’s Count
Three conviction. The government also sought dismissal of Jones’s
appeal as to his convictions on Counts One and Two, or in the
alternative, summary affirmance of those convictions. Finally, the
government asked this Court to “remand the case to the District Court
for further proceedings, which may include resentencing on the
remaining counts, . . . commencement of new charges, or
reinstatement of charges dismissed pursuant to the Plea Agreement.”
Affirmation of Shawn G. Crowley at 10, United States v. Jones, No. 18-
1752 (2d Cir. Oct. 18, 2019).
In February 2020, this Court vacated Jones’s conviction on
Count Three and remanded for resentencing on Counts One and Two
of the S1 Information. See United States v. Jones, No. 18-1752, 2020 WL
9762456 (2d Cir. Feb. 14, 2020). The order stated:
Upon due consideration, it is hereby ORDERED that the
motion is GRANTED with regard to Count Three, which
is VACATED, and the case is REMANDED for
resentencing on Counts One and Two. See United States
v. Davis, 139 S. Ct. 2319 (2019); United States v. Barrett, 937
F.3d 126, 127 (2d Cir. 2019). The Government’s motion
to dismiss the appeal or for summary affirmance of the
convictions on Counts One and Two is DENIED because
Appellant has not appealed his convictions on those
counts. See United States v. Greer, 285 F.3d 158, 170 (2d
Cir. 2002).

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Id. at *1. On remand, the district court denied the government’s
motion to reinstate the Initial Indictment. The district court reasoned
that because this Court specifically limited its remand to resentencing
on Counts One and Two, it had impliedly rejected the government’s
explicit request for a remand for possible resentencing or
reinstatement of charges. The district court, however, did not
preclude the government from seeking a superseding indictment.
In August 2021, the government filed a superseding indictment
(the “S2 Indictment”), which charged Jones with the same offenses
charged in Counts One through Four of the Initial Indictment. These
were: conspiring to provide material support to al-Shabaab, in
violation of 18 U.S.C. § 2339B (Count One); providing material
support to al-Shabaab, also in violation of 18 U.S.C. § 2339B (Count
Two); conspiring to receive military-type training from al-Shabaab, in
violation of 18 U.S.C. §§ 371 and 2339D (Count Three); and receiving
military-type training from al-Shabaab, in violation of 18 U.S.C.
§ 2339D (Count Four).
Jones moved to dismiss the S2 Indictment. He argued that (1)
the entire Indictment violated this Court’s mandate, and (2) Counts
One and Three of the Indictment violated the Fifth Amendment’s
Double Jeopardy Clause because they were identical to Counts One
and Two of the S1 Information, which remained intact and had
supported Jones’s previous convictions. The government opposed
the motion. The district court granted Jones’s motion to dismiss
Counts One and Three of the S2 Indictment, holding that indictment
on those charges violated the Double Jeopardy Clause. But the

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district court rejected Jones’s argument that the S2 Indictment
violated this Court’s mandate, and accordingly, denied Jones’s
motion to dismiss Counts Two and Four.
In June 2022, Jones waived indictment and consented to entry
of a new superseding information (the “S3 Information”). Jones then
entered a Second Plea Agreement, through which he pleaded guilty
to two counts in the S3 Information: conspiracy to provide material
support to al-Shabaab (Count One) and receipt of military-type
training from al-Shabaab (Count Two). Count One of the S3
Information charged the same offense as in Count One of the S1
Information and carried a maximum prison term of 15 years. Count
Two of the S3 Information replaced the conspiracy offense in Count
Two of the S1 Information, which had carried a maximum prison term
of five years, with a substantive offense that carried a fixed prison
term of 10 years.
The Second Plea Agreement contained a standard waiver of
Jones’s right to appeal:
It is agreed (i) that the defendant will not file a direct
appeal; nor bring a collateral challenge, including but not
limited to an application under Title 28, United States
Code, Section 2255 and/or Section 2241, of any sentence
at or below the Stipulated Guidelines Sentence of 300
months’ imprisonment, and (ii) that the Government will
not appeal a sentence at the Stipulated Guidelines
Sentence of 300 months’ imprisonment.
App’x at 149.

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The district court accepted Jones’s guilty plea to Counts One
and Two of the S3 Information. It sentenced Jones to 15 years of
imprisonment on Count One and 10 years of imprisonment on Count
Two consecutively, for a total of 25 years of imprisonment. The
district court also vacated Jones’s earlier guilty plea to the surviving
counts of the S1 Information. Jones appealed.
II. DISCUSSION
Jones argues that this Court’s mandate following our February
14, 2020 order precluded the government from charging him in the S2
Indictment and that the terms of the plea agreement were ambiguous
and inapplicable to his circumstances. He also argues that the district
court improperly imposed its sentence following the Second Plea
Agreement based on erroneous factual findings and constitutionally
impermissible factors—including the principle of collective
punishment and the sectarian nature of al-Shabaab—and thus the
appeal waiver of the plea agreement is unenforceable.
“Findings of fact are reviewed for clear error, and legal
conclusions . . . are reviewed de novo.” United States v. Strange, 65
F.4th 86, 88-89 (2d Cir. 2023). “We review a criminal sentence for
reasonableness, which ‘amounts to review for abuse of discretion.’”
United States v. Kourani, 6 F.4th 345, 356 (2d Cir. 2021) (quoting United
States v. Robinson, 702 F.3d 22, 38 (2d Cir. 2012)). Moreover, we have
held that a “defendant’s knowing and voluntary waiver of his right
to appeal a conviction and sentence within an agreed upon guideline
range is enforceable.” United States v. Pearson, 570 F.3d 480, 485 (2d
Cir. 2009).

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A. The Mandate Rule
Jones’s challenges to his sentence are barred by the appeal
waiver in the Second Plea Agreement. See United States v. Burden, 860
F.3d 45, 51 (2d Cir. 2017) (“We have long held that waivers of the right
to appeal a sentence are presumptively enforceable.” (cleaned up)).
In the appeal waiver, Jones agreed that he “will not file a direct
appeal . . . of any sentence at or below the Stipulated Guidelines
Sentence of 300 months’ imprisonment,” which was the sentence
Jones received. App’x at 149.
Moreover, Jones entered into the Second Plea Agreement
knowingly and voluntarily. The district court explicitly discussed the
Agreement, including the appeal waiver, with him during the plea
proceeding, and Jones confirmed under oath that he understood it.
THE COURT: Did you discuss the plea agreement with
your attorneys before you signed it?
THE DEFENDANT: Yes.
THE COURT: Did you fully understand all the terms in
the plea agreement before you signed it?
THE DEFENDANT: Yes.
THE COURT: Does this plea agreement constitute your
complete and total understanding of the entire
agreement between you and the United States
government as to these matters?
THE DEFENDANT: Yes.

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THE COURT: Has anyone offered you any inducements
or threatened you or forced you to plead guilty or to
enter into this plea agreement?
THE DEFENDANT: No.
THE COURT: You should understand that in the plea
agreement you are giving up your right to appeal your
sentence or to challenge your sentence in any way or at
any time so long as I sentence you to 25 years’
imprisonment or less. Do you understand that?
THE DEFENDANT: Yes.
Appellee’s Br. Add. at 29.
Jones argues that his challenge to this Court’s mandate
overrides the appeal waiver, rendering it unenforceable. This is
incorrect. Whether a particular charge or sentence is consistent with
a mandate of this Court does not raise the sort of jurisdictional
question that can survive a guilty plea waiver. See United States v.
Garcia, 339 F.3d 116, 117 (2d Cir. 2003) (“[A] defendant who
knowingly and voluntarily enters a guilty plea waives all non-
jurisdictional defects in the prior proceedings.”); United States v. Balde,
943 F.3d 73, 89 (2d Cir. 2019) (“A jurisdictional argument—i.e. one that
would survive waiver by a valid guilty plea—is one where a
defendant demonstrates that the face of the indictment discloses that
the count or counts to which he pleaded guilty failed to charge a
federal offense.” (quotation marks omitted)). We have said that a
“waiver of appellate rights is unenforceable . . . when the sentence

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was imposed based on constitutionally impermissible factors, . . .
when the government breached the plea agreement, or when the
sentencing court failed to enunciate any rationale for the defendant’s
sentence.” United States v. Gomez-Perez, 215 F.3d 315, 319 (2d Cir.
2000) (citations omitted). A challenge to this Court’s mandate, on the
other hand, does not render an appeal waiver unenforceable.
In any event, the mandate at issue did not bar the government
from filing a superseding indictment. Jones argues that the mandate
allowed remand solely for resentencing on Counts One and Two of
the S1 Information, and that the government was not allowed to
reinstate the Initial Indictment or to file a superseding indictment.
Jones also claims that the language in the First Plea Agreement
allowing for reinstatement of prosecution after vacatur “for any
reason” allowed the government to vacate charges and re-charge
arbitrarily. He argues that the language nonetheless did not apply to
his circumstances because he should not have been penalized for a
change in law that he “neither initiated nor anticipated.” Appellant’s
Br. at 17.
Jones’s arguments are meritless. As described above, nothing
in the language of the mandate expressly or impliedly precluded a
superseding indictment. See Yick Man Mui v. United States, 614 F.3d
50, 53 (2d Cir. 2010) (“The mandate rule prevents re-litigation in the
district court not only of matters expressly decided by the appellate
court, but also precludes re-litigation of issues impliedly resolved by
the appellate court’s mandate.”). This Court said nothing about the
possible reinstatement of charges in its mandate, which left open the

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possibility of a superseding indictment. While the reinstatement of
dismissed charges requires the district court’s approval, a
superseding indictment does not. See United States v. Williams, 504
U.S. 36, 48 (1992) (“The grand jury requires no authorization from its
constituting court to initiate an investigation, nor does the prosecutor
require leave of court to seek a grand jury indictment.” (citation
omitted)).
Moreover, the First Plea Agreement unambiguously states that
the government may bring new charges if a conviction is vacated “for
any reason.” Appellee’s Br. Add. at 7. Allowing Jones to secure the
benefits of the plea agreement while disclaiming its burdens would
undermine the purpose of the plea-bargaining process. See Pearson,
570 F.3d at 485; United States v. Salcido-Contreras, 990 F.2d 51, 53 (2d
Cir. 1993) (“In no circumstance . . . may a defendant, who has secured
the benefits of a plea agreement and knowingly and voluntarily
waived the right to appeal a certain sentence, then appeal the merits
of a sentence conforming to the agreement. Such a remedy would
render the plea bargaining process and the resulting agreement
meaningless.”).
Finally, we note that Jones was not made worse-off under the
Second Plea Agreement than under the first. The charges under the
Second Plea Agreement carried a maximum sentence of 25 years, ten
years fewer than Jones’s sentence of 35 years under the First Plea
Agreement. The district court properly allowed the government to
file the S2 Indictment.

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B. Sentencing
Jones argues that the appeal waiver in the Second Plea
Agreement is void because the district court relied on erroneous
factual findings and constitutionally impermissible factors at
sentencing. See United States v. Doe, 938 F.3d 15, 19 (2d Cir. 2019) (“[A]
judge’s material misapprehension of fact . . . may constitute a denial
of due process, especially when the defendant lacks an opportunity
to reply.”); Gomez-Perez, 215 F.3d at 319 (recognizing that a waiver
may be unenforceable “when [a] sentence [is] imposed based on
constitutionally impermissible factors, such as ethnic, racial or other
prohibited biases”).
We disagree. First, the district court did not ignore the record
or base its decision on inaccurate information. Jones claims that the
district court ignored the reasons Jones presented for his migration to
Somalia, including evidence of racial and religious discrimination he
had experienced in the United States. But the record is clear that the
district court carefully considered Jones’s submissions and
explanations. See App’x at 195 (establishing that the district court
read the presentence report, defense submissions and exhibits, the
government’s sentencing submission, and letters from the
government and defense); id. at 237-38 (indicating that the district
court had considered “information concerning Mr. Jones’[s] horrific
childhood and the mental health issues he suffers from that are
related to [his] experience”). Jones misconstrues the district court’s
concern, which was not so much why he moved to Somalia, but rather
“what led Mr. Jones to join al-Shabaab in the first place, why he chose

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to fight for al-Shabaab over the next four years, and why the barbarity
and brutal nature of al-Shabaab’s activities [did not] convince him to
leave that organization long before 2015.” Id. at 238. The district court
also gave Jones the opportunity to correct any factual errors at the end
of the sentencing proceeding, and no objections were raised. See Doe,
938 F.3d at 19. We discern no clear error in the district court’s
findings.
Second, the district court did not impermissibly rely on the
principle of “collective punishment.” Jones contends that the district
court considered him guilty by association, effectively holding him
responsible for activities of al-Shabaab in which he did not
participate. But Jones’s conspiracy conviction sufficiently established
his personal involvement in al-Shabaab’s activities, which belies his
claim that he was punished merely for being a member of the group.
See United States v. Farhane, 634 F.3d 127, 138 (2d Cir. 2011)
(recognizing that 18 U.S.C. § 2339B “prohibits the knowing provision
of material support to a known terrorist organization,” and “[p]roof
of such provision (whether actual, attempted, or
conspiratorial),” combined with the requisite mens rea, “is sufficient
to satisfy the personal guilt requirement of due process”). Jones
“agreed with others to provide [him]self as personnel to al Shabaab
by traveling to Somalia for that purpose and attending an al Shabaab
training camp.” Appellee’s Br. Add. at 30.
Nor did the district court impermissibly rely on the religiously
motivated nature of al-Shabaab’s attacks in imposing its sentence. To
the contrary, the district court noted undisputed facts about the

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sectarian nature of al-Shabaab’s attacks and considered those facts in
weighing the sentencing factors. See App’x at 231-32 (considering the
fact that al-Shabaab “carries out its terrorist acts in a highly sectarian
way”; that “Christians were singled out for slaughter” at the attacks
on Westgate Mall and Garissa University College; and that “a
Christian village in Mpeketoni, Kenya” was attacked by a Jaysh
Ayman unit). This was entirely appropriate. See, e.g., 18
U.S.C. § 3553(a)(1) (“The court, in determining the particular sentence
to be imposed, shall consider . . . the nature and circumstances of the
offense and the history and characteristics of the defendant.”); id.
§ 3661 (“No limitation shall be placed on the information concerning
the background, character, and conduct of a person convicted of an
offense which a court of the United States may receive and consider
for the purpose of imposing an appropriate sentence.”).
Moreover, consideration of racial or religious motivations of a
crime is distinct from improper consideration of a defendant’s race or
religion alone, and thus is not improper when imposing a sentence.
See., e.g., Barclay v. Florida, 463 U.S. 939, 949 (1983) (“The United States
Constitution does not prohibit a trial judge from taking into account
the elements of racial hatred in this murder.”); In re Terrorist Bombings
of U.S. Embassies in E. Afr., 552 F.3d 93, 151, 152-54 (2d Cir. 2008)
(validating the application of “the hate crime [sentencing]
enhancement” which “applies if the defendant intentionally selected
any victim on the basis of” “actual or perceived race, color, religion,
national origin, ethnicity, gender, disability, or sexual orientation”)
(cleaned up). In short, the district court did not abuse its discretion in

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considering the extraordinarily violent and sectarian nature of al-
Shabaab’s terrorism at Jones’s sentencing.
We see no constitutional deficiencies in the district court’s
sentencing, and Jones’s challenges are barred by the appeal waiver.
III. CONCLUSION
We have considered Jones’s remaining arguments and find
them to be without merit. Accordingly, we affirm the judgment of the
district court.

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