United States of America v. Muhammad Masood

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 23-2993
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Muhammad Masood
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the District of Minnesota
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Submitted: October 25, 2024
Filed: April 3, 2025
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Before LOKEN, SMITH, and GRASZ, Circuit Judges.
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LOKEN, Circuit Judge.
Muhammad Masood, a licensed physician from Pakistan, came to the United
States in 2018 on a non-immigrant visa sponsored by the Mayo Clinic’s Student
Exchange Visitor Program to work as an unpaid medical researcher in Rochester,
Minnesota. In 2019, after watching internet content from radicalized Islamic
extremists, Masood was led to believe that the Islamic State of Iraq and al-Sham
(ISIS) was “where the truth was.” In March 2020, he was arrested at the Minneapolis

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airport before boarding a flight to Los Angeles with plans to illegally travel by cargo
ship to ISIS-controlled territory. In a search of Masood and his luggage, FBI agents
found military and medical supplies, computers, and multiple digital storage devices.
One storage device contained over 900 deleted images of Islamic extremist
propaganda, including multiple depictions of violence committed by ISIS and
graphics illustrating death tolls from Islamic extremist attacks. Masood was charged
and pleaded guilty to attempting to provide material support to a designated foreign
terrorist organization in violation of 18 U.S.C. § 2339B.
The Presentence Investigation Report (PSR) calculated an advisory guidelines
sentencing range of 292 to 365 months imprisonment, capped at the statutory
maximum of 240 months. The district court1 adopted the PSR as modified by the
statutory maximum sentence, varied downward, and sentenced Masood to 216 months
imprisonment. Masood appeals the sentence, arguing the court (1) procedurally erred
by applying the terrorism enhancement in USSG § 3A1.4; (2) procedurally erred in
considering the 18 U.S.C. § 3553(a) sentencing factors; and (3) violated his due
process rights and his right to allocution by deciding disputed sentencing issues prior
to the sentencing hearing. We affirm.
I. Background
There was no testimony at Masood’s sentencing hearing. The PSR detailed
extensive Offense Conduct facts in 21 lengthy paragraphs, focusing in particular on
Masood’s contacts in early 2020 with two FBI “confidential human sources,”
identified as CHS-1 and CHS-2. Though Masood objected to the recommended
terrorist enhancement and complained that the PSR presented “just the most
inflammatory quotes from the extensive messaging,” he did not object to these factual
1The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota.
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paragraphs, and the district court adopted the PSR at sentencing. Therefore, we treat
those facts as established. See Fed. R. Crim. P. 32(i)(3)(A); United States v. Cramer,
962 F.3d 375, 380 (8th Cir. 2020). The following summary is based on Offense
Conduct and Personal and Family Data fact recitations in the PSR.
After completing medical school in Pakistan, Masood traveled to the United
States in 2018 on a non-immigrant visa sponsored by the Mayo Clinic to work as an
unpaid medical researcher. While working in that position, he took the foreign
medical graduate licensing exam, which he failed. Soon after, Masood married a U.S.
citizen, but they divorced less than a year later. In 2019, isolated and depressed,
Masood began watching videos and internet content from radicalized Islamic
extremists, including Anwar Al-Awlaki, which led him to believe that ISIS was
“where the truth was.” Online content about conditions in Syria prompted Masood
to use his medical training to help. But by the time he contacted CHS-1, his intent
had shifted from intending to aid to intending to fight.
In January 2020, CHS-1 informed the FBI that a user of an encrypted social
media platform, soon identified as Masood, was planning to provide material support
to ISIS. Masood contacted CHS-1 on the encrypted platform on January 24 and
requested help traveling to an ISIS-controlled region. In communicating with CHS-1
for nearly a month, Masood made numerous comments reflecting an intent to fight
for ISIS -- he “wanted to fight on the front line as well as help the wounded brothers;”
he “belong[ed] on the frontline and not anywhere else;” he wanted “to help
mujahideen (individuals fighting on behalf of Islam against non-believers) on the
ground.” He also said that he sometimes wanted to attack while “behind enemy lines”
in the United States because many others cannot “reach here to attack.” He wondered
whether traveling to ISIS-controlled territory to fight would cause him to “miss the
opportunity of attacking the enemy . . . in the middle of things.” But he wanted to
make hijra (migrate) to Syria because he “hates smiling at the passing kuffar” (non-
believers) in the United States and “cannot tolerate it anymore.”
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Masood sought CHS-1’s assistance in getting a visa to Jordan and sent a photo
of his Pakistani passport. After he traveled to Syria, Masood noted, he would need
weapons training and said he could learn engineering to modify drones for use in
bombings. He suggested a “team of trusted brothers” to modify drones to be “almost
like flying grenades,” and he developed “creative” concepts for lethal use of drones
as weapons. On February 1, when CHS-1 sent a message that Masood might have to
kill people, he responded, “i want to kill and get killed . . . and kill and get killed.”
On February 13, Masood told CHS-1, “I should be on the ground helping brothers
sisters kids.” They discussed arranging a video conference with a purported ISIS
commander. On February 19, Masood traveled to a hotel in suburban Minneapolis
where he and CHS-1 held a secretly recorded video conference with CHS-2, whom
Masood believed to be an ISIS commander located in a foreign country. Masood
explained to CHS-2 how he had learned the truth from Anwar-al-Awlaki (an al-Qaeda
leader later killed by the U.S. military) and confirmed that he wanted to go to Syria
“to be a combat medic . . . and also fight.” Offered the opportunity, Masood pledged
in Arabic a bayat (solemn promise of allegiance) to ISIS and its emir.
In March 2020, after an earlier trip to Jordan was cancelled by COVID-19
restrictions, Masood and CHS-1 developed a new plan of travel to ISIS-controlled
territory. Masood purchased a flight to Los Angeles. He was arrested at the
Minneapolis airport after proceeding through the security checkpoint, and a search
of his luggage found incriminating military equipment and a digital storage device
containing deleted images of Islamic extremist propaganda, depictions of violence
committed by ISIS, and graphics reporting deaths of citizens of various nations
resulting from Islamic extremist attacks. This indictment followed.
II. Procedural History
Masood was placed on suicide watch during his first week in jail. He became
non-responsive or incoherent in conversations with his counsel. The district court
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granted his motion for a competency evaluation. Diagnosed with psychotic and
depressive disorders, the evaluating doctor opined that he was not competent to
proceed. The court determined that Masood was incompetent to stand trial and
committed him for treatment to restore competency. In December 2021, the Bureau
of Prisons reported that Masood was competent to stand trial. In June 2022, the court
without objection found Masood competent to proceed to trial. Masood pleaded
guilty in August 2022 to the charged offense without a plea agreement.
The PSR recommended a total offense level of 35, determining that the base
offense level of 26 should be adjusted twelve-levels upward under § 3A1.4(a) for a
terrorism enhancement as defined under 18 U.S.C. § 2332b(g)(5) and reduced by
three levels for acceptance of responsibility. It recommended that Masood’s criminal
history category should be increased from I to VI because his offense involved a
federal terrorism charge under USSG § 3A1.4(b). The PSR recommended the
statutory maximum sentence of 240 months imprisonment.
Pertinent to his appeal, Masood objected to the twelve-level terrorism
enhancement, arguing that his offense did not meet the specific intent that
§ 2332b(g)(5) requires for a federal crime of terrorism under § 3A1.4 because his
primary purpose underlying his conduct was to provide medical aide. He also sought
downward departures and variances based on factors including his history, aberrant
behavior, rehabilitation, and unlikely recidivism.
At sentencing, the district court began by commenting on the guidelines range.
It announced that it would hear argument from the parties on the guidelines and
variance issues and stated that it would provide the parties with a written Order at
recess that contained its findings on these issues. This Order was distributed to give
the parties an “opportunity to peruse through” its findings for “familiarity” before
returning for further argument, allocution, and final sentencing. It did not state what
sentence would be imposed. During the hearing, the court heard from both counsel
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on the issues, invited statements from Masood’s family, and provided Masood an
opportunity for allocution. The court then imposed a sentence of 216 months
imprisonment, varying downward from the 240-month maximum for time served and
Masood’s efforts to “assist” himself. This appeal followed.
III. Sentencing Issues
Masood argues the district court procedurally erred at sentencing. Procedural
errors include “failing to calculate (or improperly calculating) the Guidelines range,
. . . failing to consider the § 3553(a) factors, . . . or failing to adequately explain the
chosen sentence -- including an explanation for any deviation from the Guidelines
range.” United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc)
(quotation omitted). Masood argues the district court made each of these errors in
determining his sentence.
A. The Terrorism Enhancement. Masood first contends that the court
procedurally erred by improperly applying the terrorism enhancement in USSG
§ 3A1.4, a Victim-Related Adjustment to his base offense level that increased his
total offense level and criminal history category. We review the court’s “factual
findings for clear error and the construction and application of the advisory
sentencing guidelines de novo.” United States v. Ali, 799 F.3d 1008, 1029 (8th Cir.
2015). “[S]entencing judges are required to find sentence-enhancing facts only by a
preponderance of the evidence.” United States v. Scott, 448 F.3d 1040, 1043 (8th
Cir. 2006).
Masood’s offense of conviction, 18 U.S.C. § 2339B(a)(1), is violated by a
person who “knowingly provides material support or resources to a foreign terrorist
organization, or attempts or conspires to do so . . . . To violate this paragraph, a
person must have knowledge that the organization is a designated terrorist
organization (as defined . . .), that the organization has engaged or engages in terrorist
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activity (as defined . . .), or that the organization has engaged or engages in terrorism
(as defined . . .).” At least three other circuits have ruled that this “knowingly” mens
rea element requires the government to prove the defendant’s specific intent to
violate the law. See United States v. Mohamed, 757 F.3d 757, 759 (8th Cir. 2014),
and cases cited.2
Section 3A1.4 of the Guidelines, entitled Terrorism, provides:
(a) If the offense is a felony that involved, or was intended to promote, a
federal crime of terrorism, increase by 12 levels; but if the resulting
offense level is less than level 32, increase to level 32.
(b) In each such case, the defendant’s criminal history category from
Chapter Four . . . shall be Category VI.
Application Note 1 provides that “‘federal crime of terrorism’ has the meaning given
that term in 18 U.S.C. § 2332b(g)(5).” USSG § 3A1.4, comment. (n.1).
Section 2332b(g)(5) provides that “‘Federal crime of terrorism’ means an
offense that (A) is calculated to influence or affect the conduct of government by
intimidation or coercion, or to retaliate against government conduct; and (B) is a
violation of” enumerated federal offenses. (cleaned up). Masood acknowledges that
his conviction for violating § 2339B satisfies the second requirement. The issue is
whether the district court erred in finding that his violation of § 2339B was
“calculated to influence or affect the conduct of government by intimidation or
coercion, or to retaliate against government conduct.”
2The Supreme Court quoted a well-accepted articulation of this element in
Liparota v. United States -- “that the defendant knowingly did an act which the law
forbids, purposely intending to violate the law.” 471 U.S. 419, 422 & n.3 (1985).
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Masood argues there is insufficient evidence in the sentencing record that his
offense is a “federal crime of terrorism” within the purview of § 3A1.4(a) because the
government presented no evidence that he acted with the specific intent to violate
§ 2339B(a)(1), that is, evidence of conduct “calculated to influence or affect the
conduct of government by intimidation or coercion, or to retaliate against government
conduct,” as the first prong of § 2332b(g)(5) requires. Therefore, it was procedural
error to impose the 12-level sentencing enhancement and increase his criminal history
category. Masood argues the record establishes that his only motivations were to
provide medical aid and act according to his “religious fanaticism.” We disagree.
In applying § 2332b(g)(5)(A)’s requirement, we have twice held that “motive
is simply not relevant . . . . ‘Motive’ is concerned with the rationale for an actor’s
particular conduct.” Mohamed, 757 F.3d at 760 (quotation omitted). “Calculation
is concerned with the object that the actor seeks to achieve through planning or
contrivance.” Ali, 799 F.3d at 1031 (8th Cir. 2015), quoting Mohamed, 757 F.3d at
760; see also United States v. Awan, 607 F.3d 306, 317 (2d Cir. 2010). “[T]his
standard does not focus on the defendant but on his ‘offense,’ asking whether it was
calculated, i.e., planned -- for whatever reason or motive -- to achieve the stated
object.” Ali, 799 F.3d at 1031 (quotation omitted).
The district court noted that the § 3A1.4 enhancement applies if Masood’s
offense was “‘intended to promote’ terrorism,” not only if it was “calculated to
influence or affect the conduct of government by intimidation or coercion”:
Thus, “so long as the defendant’s offense was intended to encourage,
further, or bring about a federal crime of terrorism as statutorily defined,
the defendant himself does not have to commit an offense listed in
§ 2332b(g)(5)(B), and the defendant’s offense need not itself be
‘calculated’ as described in § 2332b(g)(5)(A).” Awan, 607 F.3d at 314.
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(cleaned up). The court then concluded the evidence establishes that Masood’s
offense met either of the two § 3A1.4(a) alternatives:
[Masood] testified under oath at the plea hearing that he knew he was
attempting to join ISIS, and that he knew that ISIS was a terrorist
organization. Masood also discussed with the purported ISIS recruiter
activities like developing drones for attack purposes. He talked with
that individual about committing “lone wolf” attacks in the United
States, and he offered to “kill and get killed.” He packed a tactical vest,
ammunition pouches, black camouflage military fatigues, and similar
items, in addition to items that would allow him to provide medical
treatment. All of these facts evidence his desire to either fight with ISIS
or provide support for ISIS’s terrorist activities, not merely provide
medical care.
Moreover, even if § 3Al.4 only applies to conduct that is
“calculated to influence or affect the conduct of government by
intimidation or coercion” under § 2332b(g)(5)(A), the evidence listed
above also suffices to establish by a preponderance of the evidence that
Masood’s conduct was so calculated. The provisions of § 3Al.4 apply.
The issue on appeal is whether the district court committed procedural error by
improperly calculating the Guidelines range by imposing the § 3A1.4 enhancement
based on factual findings made by a preponderance of the evidence. We conclude the
court did not err, much less clearly err, in finding by a preponderance of the evidence
that Masood’s offense involved and was intended to promote a federal crime of
terrorism and applying the § 3Al.4 enhancement. In Mohamed, we affirmed
application of a § 3Al.4 enhancement for a defendant who assisted men traveling to
Somalia to fight government forces, despite a lack of evidence of a personal
motivation to retaliate, influence, or affect government conduct. His actions to
support the terrorist organization were sufficient. This “is not a rejection of the
specific intent requirement.” 757 F.3d at 760. When the defendant pleads guilty to
offenses that “involved or were intended to promote crimes of terrorism . . . the
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requisite specific intent” exists under § 2332b(g)(5). Id. (cleaned up); see United
States v. Wright, 747 F.3d 399, 419 (6th Cir.) (“The court can find [specific] intent
based on circumstantial evidence and reasonable inferences from the facts
presented.”), cert. denied, 574 U.S. 866 (2014); accord United States v. Arcila
Ramirez, 16 F.4th 844, 854 (11th Cir. 2021), cert. denied, 145 S. Ct. 204 (2024).
Likewise, in Ali, we noted “it is clear that the § 3A1.4 terrorism enhancement
may be imposed on a defendant who has been convicted of providing material support
to a designated foreign terrorist organization.” 799 F.3d at 1030 (cleaned up). Like
the defendants in Mohamed and Ali, Masood “planned his offense -- whatever his
reasons or motivations -- with the purpose of influencing or affecting government
conduct.” Mohamed, 757 F.3d at 760. Moreover, his violent communications
reflected an intent to support ISIS terrorist activities against governments opposed to
ISIS, including attacks within the United States (“behind enemy lines,” where other
ISIS supporters “struggle to reach here to attack”).
“Under clear error review, we reverse only when the entire record definitely
and firmly illustrates that the lower court made a mistake.” United States v. Bradley,
127 F.4th 1127, 1132 (8th Cir. 2025) (cleaned up). The district court did not err in
applying the § 3A1.4 terrorism enhancement.
B. Failure to Consider and Explain Issues. Masood argues the district court
procedurally erred by failing to properly consider the § 3553(a) sentencing factors
when it “ignored or summarily dismissed substantial mitigating evidence” -- his
history of severe mental illness that made him susceptible to extremist influences,
forensic evidence that those convicted of terrorism-related offenses have low rates of
recidivism, evidence that defendants in more egregious terrorism cases “routinely”
received sentences of ten years or less, evidence of family support and post-offense
rehabilitation, and an order of removal upon completion of his sentence.
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Before the sentencing hearing, the district court received the PSR and
sentencing memoranda from the parties that comprehensively evaluated his offense
conduct, summarized his criminal and extensive personal history, and reviewed
§ 3553(a) factors that could warrant a departure or variance. These materials reported
that Masood, a licensed physician from Pakistan, struggled personally and
professionally before and after moving to the United States. During his youth and
medical schooling in Pakistan, Masood’s parents exerted extreme control over his life
and inhibited his social interactions, resulting in bullying and difficulty with social
interactions. After hospitalization for a nervous breakdown in 2011, he experienced
paranoid delusions and was diagnosed with Bipolar Affective Disorder with
Psychotic Features. Masood completed his medical degree. His father persuaded him
to leave Pakistan and take a position at the Mayo Clinic near his cousin in Rochester
in 2018 where he married a U.S. citizen. The marriage unraveled, in part because of
Masood’s traditionalist religious views. His mental health concerns continued,
aggravated by personal and professional setbacks.
At sentencing, the court noted its review of the PSR and sentencing
memoranda. During a recess, the court provided the parties with a sentencing Order
that stated it had “considered all of [the] factors in imposing Masood’s sentence” and
responded in detail to his contentions about mental health, aberrant behavior, and
others issues. “Thus, the district court was aware of [Masood’s] arguments, and we
therefore presume that the district court considered and rejected them.” United States
v. Wilcox, 666 F.3d 1154, 1157 (8th Cir. 2012) (quotation omitted).
Masood argues that the district court did not provide “any meaningful
consideration to substantial evidence of strong mitigating factors.” The court’s
consideration of the § 3553(a) factors was sufficient. We “presume that district
judges know the law and understand their obligation to consider all the § 3553(a)
factors.” United States v. Gray, 533 F.3d 942, 943 (8th Cir. 2008) (cleaned up).
“[W]e do not require a district court to provide a mechanical recitation of the factors
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it weighed; it simply must be clear from the record that the district court actually
considered the § 3553(a) factors in determining the sentence.” United States v.
Maluoth, 121 F.4th 1158, 1163-64 (8th Cir. 2024) (quotations omitted); see United
States v. Villareal-Amarillas, 562 F.3d 892, 898-99 (8th Cir. 2009).
It is clear from the record that the court sufficiently considered Masood’s
arguments for a sentencing variance, determined that other factors outweighed many
of those considerations, and still applied a downward variance. At sentencing,
Masood extensively argued that the court should apply a greater variance because of
his mental health and its improvement, because his actions were an aberration,
because data indicates a low likelihood of recidivism, and because other defendants
sentenced for allegedly analogous crimes received significantly lower sentences. The
court also heard from two members of Masood’s family, who spoke to his personal
history and circumstances. The district court did not “woefully fail[] to meet its
obligation to meaningfully consider the parties’ arguments and evidence presented,”
as Masood suggests. The court simply found these circumstances insufficient to
warrant a sentence lower than the downward variance it applied.
The district court has “wide latitude to weigh the 18 U.S.C. § 3553(a)
sentencing factors and to assign some factors greater weight than others.” United
States v. Haskins, 101 F.4th 997, 1000 (8th Cir. 2024) (quotations omitted).
“[D]isagreement with how the district court weighed the relevant sentencing factors
does not justify reversal.” United States v. Jones, 71 F.4th 1083, 1087 (8th Cir.
2023). “[S]imply because the district court weighed relevant factors . . . more heavily
than [Masood] would prefer does not mean the district court abused its discretion.”
United States v. Sisk, 999 F.3d 631, 636 (8th Cir. 2021) (quotation omitted). His
“disagreement with how the district court weighed the [§ 3553(a)] factors does not
demonstrate abuse of discretion.” United States v. McSmith, 968 F.3d 731, 737 (8th
Cir. 2020).
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“[N]ot every reasonable argument advanced by a defendant requires a specific
rejoinder by the judge.” United States v. Palkowitsch, 36 F.4th 796, 801 (8th Cir.
2022) (cleaned up). “Sometimes a judicial opinion responds to every argument;
sometimes it does not.” Rita v. United States, 551 U.S. 338, 356 (2007). There was
no procedural error in the district court’s consideration of the § 3553(a) sentencing
factors.
Masood further argues the district court procedurally erred by failing to
adequately explain the reasons for the sentence being imposed. Masood did not
object at sentencing to the district court’s explanation. “If counsel does not timely
object that the reasons for imposing a sentence have not been adequately explained,
defendant has voluntarily relinquished the issue by depriving the appellate court of
the district court’s response to a timely objection.” United States v. Dailey, 113
F.4th 850, 855 (8th Cir. 2024) (cleaned up). Therefore, our review is for plain error.
See United States v. Krzyzaniak, 702 F.3d 1082, 1085 (8th Cir. 2013).
A district court’s explanation must “set forth enough to satisfy the appellate
court that [it] has considered the parties’ arguments and has a reasoned basis for
exercising [its] own legal decision-making authority.” Rita, 551 U.S. at 356. “The
court’s explanation is sufficient if the sentencing record taken as a whole
demonstrates that the court considered the relevant factors.” Krzyzaniak, 702 F.3d
at 1085.
After considering Masood’s arguments, both in his sentencing memorandum
and at the hearing, the district court explained:
[N]otwithstanding mental illness, notwithstanding childhood difficulties,
notwithstanding all of that stuff that we have heard, you are sitting in
this Court as a convicted terrorist, and that’s the way it is. . . . [T]his
Court must give consideration to deterrence at large. That it gives notice
to anyone who has the concept of entering into terrorism to be deterred
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from doing so because of the penalty they will receive. And I’m
haunted in your case by the repeated statements that I will kill or be
killed. That’s almost beyond comprehension, and I’m so very, very sorry
to have read it and heard it. Now, I have indicated that I would give a
variance in this matter. . . . [W]hen we talk about people being
incarcerated, we always often talk about doing hard time. Well, sir,
you’ve had three and a half years of pure hard time. . . . [Y]ou were in
a county jail through the time of this pandemic that we’ve had in this
country, and I know the circumstances at Elk River were not good
circumstances during that period of time. And I commend you . . . for
what you have done during that time to assist yourself, and the
combination of these factors leads the Court to give a variance in your
case. It’s not a very big one, but it is a variance.
Viewing the sentencing record taken as a whole, this explanation is sufficient to
demonstrate that the court considered the relevant sentencing factors. There was no
procedural or substantive error.
IV. The Due Process Issue
At the start of the sentencing hearing, the district court noted that counsel no
doubt would argue guidelines and variance issues. “Preliminarily,” the court advised,
“pursuant to the [PSR], I would find that the total offense level is 35; the criminal
History Score is VI; and . . . the imprisonment range is 292 to 365 months [but] the
statutory maximum applicable to this case is 240 months.” After counsel then argued
the terrorism enhancement issue for eleven transcript pages, the court called a brief
recess, explaining:
I want to review a matter, and then I will anticipate that I will give you
a written order with respect to the court’s rulings on the proceedings of
this morning, and that I’ll give you an opportunity to persuse through
that so that you will have some familiarity with it, at which time we’ll
return to the court room and hear allocution . . . and sentencing.
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Ten minutes later, after the court circulated a written order, the session resumed and
the court stated: “you can see that I have denied the defense positions with respect
to this. I will stand with the findings that were originally read today.” Defense
counsel did not object to this procedure except to say it wished to present two
additional cases that concluded the Criminal History Category VI imposed with the
enhancement was overstated. The court responded, “Okay. Well, cite them now.”
On appeal, Masood argues the district court violated Federal Rule of Criminal
Procedure 32(i) and the Due Process Clause of the Fifth Amendment by deciding all
the disputed sentencing guidelines issues prior to the sentencing hearing. “The
sentencing hearing was meaningless because the district court had already made up
its mind.” This argument is without merit. Masood failed to object at sentencing, so
we review for plain error. United States v. Hoffman, 707 F.3d 929, 937 (8th Cir.
2013). No error exists much less plain error.
Rule 32(i)(1)(C) provides that at sentencing, the district court “must allow the
parties’ attorneys to comment on the probation officer’s determinations and other
matters relating to an appropriate sentence.” Here, Masood’s attorney was allowed
to comment and did comment in a lengthy sentencing memorandum and extensive
argument opposing the recommended terrorism enhancement at sentencing.
Rule 32(i)(4)(A) provides that, “[b]efore imposing sentence, the court must:
(i) provide the defendant’s attorney an opportunity to speak on the defendant’s behalf;
[and] (ii) address the defendant personally in order to permit the defendant to speak
or present any information to mitigate the sentence.” Failure to provide this right to
allocution is reversible error and mandates a remand for resentencing. United States
v. Walker, 896 F.2d 295, 301 (8th Cir.1990). However, there is no plain error if the
court announces its intent to impose a sentence and then grants the defendant his right
of allocution before imposing that sentence. United States v. Hentges, 817 F.3d 1067,
1069-70 (8th Cir. 2016); see United States v. Puckett, 715 F. App’x 578, 579 (8th Cir.
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2018) (finding no violation when court stated intention to vary upwardly before
allocution). “Courts are not nearly as strict when a defendant allocutes at some point
during sentencing if that allocution retains the potential to affect the sentence.”
United States v. Hernandez-Espinoza, 890 F.3d 743, 747 (8th Cir. 2018).
Here, the district court announced preliminary findings about guidelines range
issues and then allowed Masood’s counsel to be heard on those issues. This
procedure did not establish the court “had already made up its mind.” It helped
counsel focus their arguments on disputed issues to know the court’s preliminary
reaction to the PSR and their sentencing memoranda. After arguments and a brief
recess, the court then distributed a written Order adopting its preliminary findings.
This was not a pre-allocution sentencing ruling; it did not even indicate what term of
imprisonment the court would oppose prior to allocution, only that the court would
vary downward, albeit to a lesser extent than Masood wanted. Defense counsel
asked, “are the variances still on the table?” The court said, “Yes.” The defense then
called two supporting witnesses, and counsel vigorously argued for an “extremely
substantial downward variance.” The district court then invited Masood to make
“comments . . . before penalty is imposed.” Masood responded with a lengthy
allocution, after which the court made its final sentencing determination. There was
no plain error violation of Rule 32(i) or the Due Process Clause.
For the foregoing reasons, the judgment of the district court is affirmed.
______________________________
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