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Read Shahzad Sentencing Memorandum Case 1:10-cr-00541-MGC Document 13 Filed 09/29/10 Page 1 of 23 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X : UNITED STATES OF AMERICA : : - v. - : 10 Cr. 541 (MGC) : FAISAL SHAHZAD, : : Defendant. : : - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X GOVERNMENT’S MEMORANDUM IN CONNECTION WITH THE SENTENCING OF FAISAL SHAHZAD PREET BHARARA United States Attorney for the Southern District of New York Attorney for the United States of America BRENDAN R. MCGUIRE JEFFREY A. BROWN RANDALL W. JACKSON JOHN P. CRONAN Assistant United States Attorneys - Of Counsel - Case 1:10-cr-00541-MGC Document 13 Filed 09/29/10 Page 2 of 23 TABLE OF CONTENTS Table of Contents............................................................. ii Table of Authorities ........................................................... iii I. Factual Background ......................................................5 A. Shahzad’s Time With The TTP In Pakistan .............................5 B. Shahzad’s Preparations For The Bombing ..............................7 C. Shahzad’s Attempted Detonation Of The Bomb . .. 8 D. Shahzad’s Attempt To Flee .. 9 E. Shahzad’s Plea . 10 II. Applicable Legal Principles...............................................12 III. Discussion ............................................................13 A. The Applicable Guidelines Range . 13 B. The 18 U.S.C. § 3553(a) Factors And The Appropriate Sentence . .14 IV. Conclusion............................................................18 ii Case 1:10-cr-00541-MGC Document 13 Filed 09/29/10 Page 3 of 23 TABLE OF AUTHORITIES Cases: Abbott v. United States, 574 F.3d 203 (3d Cir. 2009), cert. granted, 130 S. Ct. 1284 (2010) (No. 09-479) ..... 3 United States v. Ballard, 559 F. Supp. 2d 539, 541 (2009) .......................................... 4 Gall v. United States, 553 U.S. 46, 128 S. Ct. 586 (2007) ......................................... 4 Gould v. United States, 329 Fed. Appx. 569 (5th Cir. 2009), cert. granted, 130 S. Ct. 1283 (2010) (No. 09-7073). ........................................................ 3 United States v. Booker, 543 U.S. 220 (2005) .................................................... 12 United States v. Cavera, 550 F.3d 180 (2d Cir. 2008) ........................................... 12-13 United States v. Celaj, 07 Cr. 837 (RPP) ....................................................... 3 United States v. Crosby, 397 F.3d 103 (2d Cir. 2005) ............................................. 12 United States v. Parker, 549 F.3d 5, 10-12 (1st Cir. 2008) .......................................... 4 United States v. Whitley, 529 F.3d 150, 151 (2d Cir. 2008) ......................................... 3-4 United States v. Williams, 558 F.3d 166 (2d Cir. 2009) .............................................. 3 Statutes, Rules & Other Authorities: 18 U.S.C. § 3553(a) ....................................................... passim 18 U.S.C. § 924(c) ............................................................ 3 iii Case 1:10-cr-00541-MGC Document 13 Filed 09/29/10 Page 4 of 23 18 U.S.C. § 2332b ............................................................ 3 U.S.S.G. § 2K2.4............................................................ 10 U.S.S.G. § 3A1.4............................................................ 11 U.S.S.G. § 3D1.1............................................................ 10 U.S.S.G. § 3D1.2............................................................ 10 U.S.S.G. § 3E1.1 ............................................................ 10 U.S.S.G. § 5G1.1............................................................ 11 iv Case 1:10-cr-00541-MGC Document 13 Filed 09/29/10 Page 5 of 23 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - X : UNITED STATES OF AMERICA : : - v. - : 10 Cr. 541 (MGC) : FAISAL SHAHZAD, : : Defendant. : : - - - - - - - - - - - - - - - - - - - - - - - - - - - - X GOVERNMENT’S MEMORANDUM IN CONNECTION WITH THE SENTENCING OF FAISAL SHAHZAD The Government respectfully submits this memorandum in connection with the sentencing of Faisal Shahzad (“Shahzad”) scheduled for October 5, 2010. In 2009, Shahzad, a naturalized United States citizen, traveled from the United States to Pakistan where he sought instruction in bomb-making in order to wage an attack inside the United States. While in Pakistan, he received instruction on the building and the detonation of different types of bombs from trainers affiliated with Tehrik-e-Taliban (the “TTP”), a militant extremist group based in Pakistan that was recently designated a foreign terrorist organization by the U.S. Department of State. During his time in Pakistan, Shahzad appeared in a video recorded by the TTP in which he discussed his plan to attack the United States and encouraged other Muslims to follow his example. Thereafter, Shahzad returned to the United States and, over the course of three months in early 2010, he purchased all of the components necessary for his bomb, including fertilizer, propane and gasoline, and he received approximately $12,000 in cash from the TTP to help fund the attack. In the weeks leading up to the attempted bombing, Shahzad used the internet as part of his effort to maximize the deadly effect of his bomb by accessing websites that provided real- time video of the crowds in Times Square. Finally, during the late afternoon of May 1, 2010, Case 1:10-cr-00541-MGC Document 13 Filed 09/29/10 Page 6 of 23 Shahzad drove his car, which was packed with the bomb he had built, from his residence in Connecticut to Times Square and parked the car on 45th Street near Seventh Avenue. He then attempted to initiate the bomb detonation process inside the car by lighting a fuse, and after doing so, he got out of the car, armed with the semi-automatic rifle that he had brought with him, and walked to Grand Central terminal. While walking to Grand Central terminal, he listened for the sound of the bomb exploding. Two days later, he was arrested at John F. Kennedy International Airport while trying to the leave the United States on a commercial flight. Following his arrest, Shahzad waived his Miranda rights and stated, among other things, that he believed his bomb would have killed at least 40 people, and that, if he had not been arrested, he planned to detonate a second bomb in New York City two weeks later. As a result of the foregoing conduct, Shahzad was charged in a ten-count indictment with the following crimes: (1) attempted use of a weapon of mass destruction, in violation of Title 18, United States Code, Section 2332; (2) conspiracy to use a weapon of mass destruction, in violation of Title 18, United States Code, Section 2332; (3) possession and use of a firearm during and in relation to a conspiracy to use a weapon of mass destruction, in violation of Title 18, United States Code, Section 924(c); (4) attempted act of terrorism transcending national boundaries, in violation of Title 18, United States Code, Section 2332b; (5) conspiracy to commit an act of terrorism transcending national boundaries, in violation of Title 18, United States Code, Section 2332b; (6) attempted use of a destructive device during and in relation to a conspiracy to commit an act of terrorism transcending national boundaries, in violation of Title 18, United States Code, Section 924(c); (7) transportation of an explosive, in violation of Title 18, United States Code, Section 844(d); (8) conspiracy to transport an explosive, in violation of 2 Case 1:10-cr-00541-MGC Document 13 Filed 09/29/10 Page 7 of 23 Title 18, United States Code, Section 844(n); (9) attempted destruction of property by fire and explosive, in violation of Title 18, United States Code, Section 844(i); and (10) conspiracy to destroy property by fire and explosive, in violation of Title 18, United States Code, Section 844(n). At his first appearance before the Court, Shahzad pled guilty to all ten charges against him. Based on that plea, Shahzad faces a mandatory term of life imprisonment. More specifically, based on his guilty pleas to Counts One, Two, Seven, Eight, Nine and Ten, Shahzad faces a mandatory minimum sentence of five years’ imprisonment and a maximum sentence of life imprisonment. In addition, based on his guilty plea to Count Three, he faces a mandatory term of five years’ imprisonment, which must run consecutively to any other term of imprisonment.1 In addition, based on his guilty plea to Counts Four and Five, he faces a 1 In United States v. Whitley, the Second Circuit held that subsection 924(c)(1)(A)’s “except clause” prohibited the district court from imposing a ten-year minimum consecutive sentence for the use and discharge of a firearm because the defendant was also convicted of another provision of law that provided a greater minimum sentence, namely, felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e), which carried a 15 year mandatory minimum sentence. 529 F.3d 150, 151 (2d Cir. 2008); see also United States v. Williams, 558 F.3d 166 (2d Cir. 2009) (extending holding in Whitley to narcotics cases, thereby exempting a defendant from a mandatory consecutive sentence for use or possession of a firearm where that defendant is also subject to a higher mandatory minimum sentence in connection with a conviction for the predicate narcotics crime during which the firearm was used). The issue raised in Whitley and Williams is currently under review by the
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