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United States v. Abu-Rayyan

United States District Court, E.D. Michigan, Southern Division

April 6, 2017




         Defendant Khalil Abu-Rayyan pled guilty to making a false statement to acquire a firearm, 18 U.S.C. § 922(a)(6), and possession of a firearm by a prohibited person, 18 U.S.C. § 922(g)(3). On March 13, 2017 and continued on March 27, 2017, due to a building closure because of inclement weather, this court held a sentencing hearing which spanned approximately four hours. In reaching its sentencing decision, the court has carefully considered the oral presentations of counsel for both sides at the sentencing hearing, the videotaped statement by Abu-Rayyan, Abu-Rayyan's personal statement made at the sentencing hearing, the sentencing memorandum filed by Abu-Rayyan and the government, the sentencing addendum filed by Abu-Rayyan, and the presentence investigation report)(“PSR”). The court is also intimately familiar with the facts of this case based on, among other things, the briefing and two expert reports regarding Abu-Rayyan's mental competence which have been filed under seal, [1] as well as Abu-Rayyan's two motions for release on bond. This Memorandum Opinion is meant to expand on the court's reasoning for granting an upward variance as discussed at the sentencing hearing held on April 6, 2017. For the reasons set forth below, the court shall sentence Abu-Rayyan to 60-months imprisonment.

         A. Findings of Fact

         1. When Abu-Rayyan was 12 years old, he was referred to counseling because he told his teacher that he dreamed he had a gun and shot everyone in the class. (Dr. Tillbrook's Report, Doc. 106-1 at PageID 997).

         2. While in school, Abu-Rayyan engaged in assaultive behavior requiring him to be suspended from school on three or four occasions for fighting. Id. At the age of 19, he also was in a fight with his brother, which resulted in the police being called and Abu-Rayyan being detained for 18 hours. Id. at PageID 998.

         3. At the age of 17, Abu-Rayyan began using marijuana. Between the ages of 19 and 21, Abu-Rayyan admitted he was smoking 10 to 15 marijuana blunts per day, every day. Id. at PageID 999.

         4. Abu-Rayyan reports that his childhood was devoid of abuse and his necessities of life were provided, but he was bullied by his peers. (PSR ¶ 44-45).

         5. At least as early as November, 2014, Abu-Rayyan retweeted, liked, and commented on acts of terror and martyrdom on behalf of the foreign terrorist organization Islamic State of Iraq and Levant (formerly al-Qa'ida in Iraq) commonly referred to as “ISIL.”[2] His conduct included seeking out internet links to gruesome ISIS videos, posting them on his Twitter accounts and posting positive comments after viewing the executions and killings depicted in the ISIS videos. (PSR ¶¶ 50-51).

         6. The propaganda on his Twitter account included videos of a Jordanian fighter pilot being burned alive, handcuffed people being executed by being thrown from a high-rise building, the beheading of a Christian in Egypt, and news of ISIS victories. (PSR ¶ 51).

         7. On January 22, 2015, Abu-Rayyan added to his “favorites” on his Twitter account a photograph of a person about to have his throat slit with a knife. (Doc. 88, Ex. A).

         8. On February 19, 2015, the FBI found a photograph uploaded on Abu-Rayyan's Twitter account showing him dressed in camouflage, with two similarly dressed individuals, holding a semi-automatic hand gun in his right hand, and making an ISIS symbol with his left index finger. (Doc. 88, Ex. B).

         9. On October 5, 2015, Abu-Rayyan purchased a .22 caliber revolver from a sporting goods store. In response to a question on a form required by the Bureau of Alcohol, Tobacco, and Firearms and Explosives (“ATF”) whether he was an unlawful user of, or addicted to marijuana, Abu-Rayyan falsely stated that he was not. (PSR ¶ 12).

         10. On October 7, 2015, Detroit police pulled Abu-Rayyan over for speeding. They found the .22 caliber revolver in the car, along with four bags of marijuana. Abu-Rayyan admitted he did not have a concealed pistol license. Abu-Rayyan was arrested for carrying a concealed weapon in an automobile and possession of marijuana. (PSR ¶ 13).

         11. After his arrest, Abu-Rayyan replaced his cell phone and downloaded more disturbing images, including the ISIL flag, people with firearms with the ISIL flag, people who appeared to be burned alive. His wallpaper on his new phone was the picture of a man making an ISIS symbol with his left hand and holding the severed head of a woman with his right hand. (PSR ¶ 53).

         12. On November 15, 2015, Abu-Rayyan attempted to purchase another firearm from a different sporting goods retailer. Again, Abu-Rayyan lied on the ATF form and denied that he was a marijuana user. Due to his pending criminal case, he was not allowed to purchase the firearm. (PSR ¶ 15).

         13. Also, on November 15, 2015, Abu-Rayyan and another individual, went to a local firing range, rented an AK-47 and an AR-15, which they practiced shooting. (PSR ¶ 15).

         14. In late November, 2015, Abu-Rayyan tweeted photographs of himself firing AK-47 and AR-15 type rifles. He captioned one of the photographs “Sahwat hunting.” According to investigators, “Sahwat” is a term for Iraquis who oppose ISIS. (PSR ¶ 54, Doc. 88, Ex. D).

         15. Abu-Rayyan admits that at the time he practiced using an AK-47 and AR-15, two military type rifles, he was viewing and downloading ISIS propaganda. (Doc. 104 at PageID 808, PSR ¶ 50).

         16. On December 12, 2015, Abu-Rayyan sent his brother a message that “This would be a perfect time to do a istighadi [martyrdom/suicide] operation.” (PSR ¶ 54, Doc. 88, Ex. E, Government's Sentencing Ex. 6).

         17. In December, 2015, Abu-Rayyan began communicating with an undercover FBI employee (“UCE”) on social media about ISIS. (PSR ¶ 55, Doc. 104, PageID 808). He consistently expressed his support for ISIS and his desire to commit a martyrdom operation. (PSR ¶ 17). He provided detailed descriptions of his plans to behead people and skin them like sheep. (PSR ¶ 55).

         18. By mid-December, 2015, Abu-Rayyan claims he fell in love with the UCE(s) posing as Ghadda and that he believed he was engaged to be married to her. (Doc. 61 at PageID 374 and Ex. 2).

         19. During his conversations with the UCE, whom Abu-Rayyan called “Jannah, ” Abu-Rayyan stated his desire to shoot up a church near his place of employment. He stated he had an AK-47 with a 40-round magazine and described the firearm as the type of machine gun ISIS fighters carry. He told the UCE that his father discovered the items he had in his car to carry out the church shooting, including the AK-47, bullets, and a mask. He told the UCE that he practiced loading and unloading the gun, and he was targeting the church because many people attend the church and church members were barred from carrying firearms inside. Investigators located the church matching the description given by Abu-Rayyan in his posts which could accommodate up to 6, 000 people. (PSR ¶ 55).

         20. When the UCE asked Abu-Rayyan if he regretted not committing the shooting at the church, he responded, “Honestly, I regret not doing it. . . if I can't do jihad at the middle (sic) wa. . . I would do jihad over here.” (Doc. 59 Attachment A at PageID 351.)

         21. In January, 2016, Abu-Rayyan also told the UCE that he wanted to conduct a martyrdom operation by killing the police officer who arrested him while the officer was in the hospital. (PSR ¶ 17).

         22. In January, 2016, Abu-Rayyan also told the UCE that he it was his dream to behead someone, and that he is excited about shootings and death. (PSR ¶ 17).

         23. On January 15, 2016, Abu-Rayyan pled guilty to the state charge of possession of marijuana and was pending trial on the concealed weapons charge. The state case involves the same conduct involved in this case. On February 26, 2016, Abu-Rayyan was permitted to withdraw his guilty plea for the charge of possession of marijuana to ...

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