In United States v. Maalik Alim Jones, 2d Cir. No. 22-2958-cr (April 29, 2024), the panel (Walker, Park, Perez) in a per curiam opinion rejects Jones’s challenge to his 25-year sentence, imposed on remand after a prior appeal and following Jones’s guilty plea under a new plea agreement in which he waived the right to appeal “any sentence” of 300 months or lower. Jones is an American citizen who moved to Somalia and joined al-Shabaab, “an Islamic terrorist organization.” Op. 3. He pleaded guilty to various offenses based on the group’s murderous attacks in Kenya and Somalia.
Most of the issues are fact-specific, but two are worth noting.
First, despite the appellate waiver, Jones contended to the Circuit that the district court (and the Government) exceeded the scope of its prior mandate on remand (for various reasons). And he claimed that his “challenge to this Court’s mandate overrides the appellate waiver [in the new plea agreement], rendering it unenforceable.”
The Circuit disagreed: “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.” Op. 12. “A challenge to this Court’s mandate [] does not render an appeal waiver unenforceable.” Id. 13.
(But this may be dictum. The opinion goes on to explain that, in any event, no one did anything improper on remand. Id. 13-14.)
Second, the Circuit rejects Jones’s claim that “the district court impermissibly relied on the religiously motivated nature of al-Shabaab’s attacks in imposing its sentence.” Op. 16. The district judge had said in imposing sentence that he was considering “the fact that al-Shabaab ‘carries out its terrorist acts in a highly sectarian way” and that “Christians were singled out for slaughter” in several attacks. Id. 16-17.
“This was entirely proper,” the Circuit ruled. Op. 17. It reminds us that “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.” QED: “the district court did not abuse its discretion in considering the extraordinarily violent and sectarian nature of al-Shabaab’s terrorism at Jones’s sentencing.’ Id. 17-18.
(But is it so simple? Isn’t al-Shabaab’s motivation for singling out Christians a religiously based one?)
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