USCA11 Case: 22-11190 Document: 33-1 Date Filed: 05/16/2023 Page: 1 of 14
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11190
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO JOSEPH ARCILA RAMIREZ,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:19-cr-20036-JEM-1
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2 Opinion of the Court 22-11190
____________________
Before JORDAN, BRANCH, and ED CARNES, Circuit Judges.
PER CURIAM:
Francisco Arcila Ramirez pleaded guilty to one count of
providing material support to a foreign terrorist organization, in
violation of 18 U.S.C. § 2339B(a)(1). The district court sentenced
him to 240 months imprisonment. He contends that the court did
not make sufficient factual findings to support a 12-level terrorism
enhancement under U.S.S.G. § 3A1.4(a). He also contends that his
sentence is procedurally and substantively unreasonable.
I.
The § 3A1.4(a) terrorism enhancement provides for a 12-
level increase to a defendant’s offense level if he committed a fel-
ony “that involved, or was intended to promote, a federal crime of
terrorism.” U.S.S.G. § 3A1.4(a). A “federal crime of terrorism” is
defined by the “meaning given that term in 18 U.S.C.
§ 2332b(g)(5).” U.S.S.G. § 3A1.4 cmt. n.1. That statute in turn pro-
vides a two-part definition. See 18 U.S.C. § 2332b(g)(5)(A)–(B).
First, a federal crime of terrorism is “an offense that is calculated to
influence or affect the conduct of government by intimidation or
coercion, or to retaliate against government conduct.” 18 U.S.C.
§ 2332b(g)(5)(A). Second, the offense must be a violation of a spe-
cific federal criminal statute listed in 18 U.S.C. § 2332b(g)(5)(B). Id.
§ 2332b(g)(5)(B). That list includes the material support statute,
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22-11190 Opinion of the Court 3
§ 2339B, which is the one that Arcila Ramirez was convicted of vi-
olating. Id. That means the second requirement is met.
The issue Arcila Ramirez raises is whether the evidence sup-
ported the district court’s finding that his offense met the first re-
quirement, that it was “calculated to influence or affect the conduct
of government by intimidation or coercion, or to retaliate against
government conduct.” 18 U.S.C. § 2332b(g)(5)(A). We review de
novo a district court’s interpretation and application of the sentenc-
ing guidelines but review its factual findings only for clear error.
United States v. Jayyousi,
657 F.3d 1085, 1114 (11th Cir. 2011).
A.
This is the second time we have considered Arcila Ramirez’s
challenge to the terrorism enhancement part of his sentence. The
first time, in United States v. Ramirez,
16 F.4th 844 (11th Cir. 2021),
we clarified that the word “calculated” in § 2332b(g)(5)(A) means
that there is “an intent requirement” which must be met for the
terrorism enhancement to apply. Id. at 854. To meet that require-
ment, “the government must show that the defendant’s offense
was planned to influence, affect, or retaliate against government
conduct, even if that was not the defendant’s personal motive.” Id.
(emphasis added). The enhancement applies if the government
makes that showing by a preponderance of the evidence, id. at 855
n.8, and “because a defendant often will not admit his full
knowledge or intentions, the district court may find the requisite
calculation or intent existed based on circumstantial evidence and
reasonable inferences drawn from the facts,” id. at 854.
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4 Opinion of the Court 22-11190
During Arcila Ramirez’s first sentence proceeding, the dis-
trict court “made no fact findings” about whether his offense con-
duct met the intent requirement, so we remanded for the court to
“make an express fact finding” about it. See id. at 854, 855. The
parties were permitted to present additional evidence and argu-
ment, but we expressed no opinion about whether their stipulated
factual proffer and other record evidence from the initial sentence
proceeding were enough for the district court to draw “any partic-
ular inferences” about the sentence enhancement. See id. at 848,
855.
B.
On remand, Arcila Ramirez filed a sentencing memoran-
dum contending that the terrorism enhancement did not apply to
him because he lacked the necessary specific intent, even though
he knew the ELN was a terrorist organization. He pointed out that
the ELN also trafficked drugs, and for all he knew, they might have
bought the weapons to further their drug trade instead of to further
their plans to overthrow the Colombian government.
The government responded that Arcila Ramirez’s personal
motivation did not matter, and the undisputed facts established
that he intended to sell weapons to the ELN, a group he knew to
be a terrorist organization that aimed to overthrow the govern-
ment of Colombia. The government pointed out that Arcila
Ramirez “was not ELN’s Amazon, supplying them with anything
and everything under the sun.” Instead, he sold them the particular
weapons that they wanted — high-powered firearms with high-
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capacity magazines. And he intended to serve as a pipeline to the
ELN for firearms and firearms parts that could be converted into
AR-15s and AKs. The government filed exhibits, including reports
and agency findings about the ELN, along with a log listing weap-
ons that Ramirez or his straw purchasers had bought.
At his re-sentence hearing, Arcila Ramirez again contended
that the government had not satisfied the calculation requirement
for the terrorism enhancement because it had not proven his spe-
cific intent. He reiterated that the ELN did not confine itself to
terrorist activities; it also trafficked drugs and engaged in other ille-
gal activities. He emphasized that, although he had purchased the
weapons for resale to the ELN, he was not affiliated with the ter-
rorists, he sold the weapons through a broker, and he was “a busi-
nessman.”
The government responded with additional evidence show-
ing that: the ELN’s goal is to overthrow the Colombian govern-
ment; the ELN uses its drug-trafficking proceeds to fund that ob-
jective; and it is widely known in Colombia that the ELN engages
in terrorism. The government reminded the court that Arcila
Ramirez was born and raised in Colombia, which indicated that he
would know about the objectives of the ELN and how the terrorist
group pursued its goals. The government also pointed to a tran-
script of recorded phone calls between Arcila Ramirez and a confi-
dential source in Colombia, during which they spoke in code about
continuing to supply the ELN with firearms. Based on that evi-
dence, the government argued that it was reasonable to infer that
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6 Opinion of the Court 22-11190
Arcila Ramirez knew that the firearms he delivered into the hands
of the ELN would be used to further its terrorist aims.
In addition to that, the government called as a witness a spe-
cial agent who had worked in Colombia for more than five years.
He testified that it is widely known in Colombia that ELN is a ter-
rorist group. The agent testified: “ELN is not something that’s . . .
hidden in Colombia. Any normal person, anybody that . . . could
breathe knows what ELN does in Colombia. It is a terrorist group
that terrorizes the Colombian population, the Colombian police,
and now even going after U.S. law enforcement by the things that
they do; threats that they put out, so ELN doesn’t try to hide itself.”
He explained that the media often reports about the connection
between the ELN’s drug trafficking and its acts of terrorism. The
ELN is not divided into separate departments: one for drugs and
another for terrorism. Instead, “[t]here is one ELN. And that one
ELN, their main purpose is to overthrow the Colombian govern-
ment by any means.”
On cross-examination, the agent agreed that ELN is in-
volved in a variety of illegal activities, including trafficking drugs
and extorting “taxes” from people, but he emphasized that the
profits are used to serve the overarching goal of terrorizing the Co-
lombian government. On redirect the agent testified that the AK-
47 style firearms that Ramirez put into the hands of the ELN were
the weapon of choice for ELN commanders.
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Considering all the evidence presented along with the facts
that were stipulated in the factual proffer in support of Arcila
Ramirez’s plea agreement, the court made these findings:
[Arcila Ramirez] admitted knowing that the guns
were going to the ELN. [He] was born in Colombia;
and, therefore, more likely than not knows now that,
as he knew then, that the ELN’s goals are to intimi-
date, retaliate against, and overthrow the govern-
ment of Colombia and that ELN did so through vio-
lent means.
And [in] the factual proffer he admits that he knew
“that the organization has engaged in or engages in
terrorist activity or terrorism.” [Arcila Ramirez] ad-
mitted to knowing the ELN was going to use the
weapons he smuggled into Colombia to further the
organization’s narco trafficking efforts, which in turn
fund the ELN’s acts of specific terrorism toward the
government. [He] uses this fact to argue that because
he knows that the guns will be used for narco traffick-
ing purposes, he knew they wouldn’t be used to influ-
ence or affect the conduct of the government. I don’t
think that follows. I think quite to the contrary.
[Arcila Ramirez] cannot so easily distinguish between
the narco trafficking and its act of terror because it
stands to reason that the reason the ELN engages in
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8 Opinion of the Court 22-11190
narco trafficking is to fund its actions against the gov-
ernment of Colombia.
The court also noted that Arcila Ramirez’s firearms transaction was
“not a one-time deal” and that he “knew that this support would
continue to aid ELN in achieving its overarching goals.”
The government asked the court to clarify whether it was
making a specific finding that Arcila Ramirez’s “offense conduct
was calculated to influence, affect, or retaliate against” the conduct
of the Colombian government. The court agreed that was correct;
it was making that specific finding. It stated that the circumstantial
evidence and the factual proffer supported that finding “far beyond
a preponderance of the evidence.”
C.
Arcila Ramirez still contends that the district court failed to
make the necessary fact findings about his specific intent and
whether his offense was “calculated to influence or affect the con-
duct of government by intimidation or coercion, or to retaliate
against government conduct.” 18 U.S.C. § 2332b(g)(5)(A) (empha-
sis added). He argues that without any “thought and judgment,”
the court “parroted back” the language that the government had
“fed” it. He insists that he was interested only in making money,
and the record contains no evidence that his actions established the
specific intent necessary for the terrorism enhancement to apply.
The record refutes those contentions. Based on the undis-
puted factual proffer, the court found that Arcila Ramirez knew the
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22-11190 Opinion of the Court 9
ELN was a terrorist organization whose agenda was to intimidate,
retaliate against, and overthrow the government of Colombia.
The court also found that Arcila Ramirez knew that the weapons
he was smuggling were being used for terrorist activities and would
further the ELN’s “overarching goals” of overthrowing the Colom-
bian government. In light of that and all the other evidence pre-
sented, the court determined that Arcila Ramirez’s offense was
“calculated to influence or affect the conduct of government by in-
timidation or coercion, or to retaliate against government con-
duct.” 18 U.S.C. § 2332b(g)(5)(A). As we have recounted, ample
evidence supported the court’s finding that under U.S.S.G. §
3A1.4(a) the 12-level terrorism enhancement applied. The court
did not err in applying it.
II.
Arcila Ramirez also contends that his 240-month sentence is
procedurally and substantively unreasonable. He argues that
U.S.S.G. § 5G1.1(a), under which the statutory maximum for his
crime became his advisory guidelines sentence, deprived him of the
benefit of accepting responsibility and assisting the government.
See U.S.S.G. § 3E1.1(a) and (b) (providing a three-level reduction to a
defendant’s offense level if he “clearly demonstrates acceptance of re-
sponsibility for his offense” and certain additional requirements are
met). We review for abuse of discretion the procedural and sub-
stantive reasonableness of a sentence. Gall v. United States,
552
U.S. 38, 51 (2007).
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10 Opinion of the Court 22-11190
A.
Arcila Ramirez’s guidelines range was 360 months to life,
but under U.S.S.G. § 5G1.1(a) the advisory guidelines sentence be-
came the statutory maximum of 240 months. See U.S.S.G. 5G1.1
(“Where the statutorily authorized maximum sentence is less than
the minimum of the applicable guideline range, the statutorily au-
thorized maximum sentence shall be the guideline sentence.”). He
argues that the operation of § 5G1.1(a) negated the benefit of the
three-level reduction to his offense level that he should have re-
ceived for accepting responsibility. See U.S.S.G. §§ 3E1.1(a) & (b).
He relies on United States v. Rodriguez,
64 F.3d 638, 642
(11th Cir. 1995), which is a pre-Booker sentencing case, meaning
the guidelines at that time were mandatory instead of advisory.
See United States v. Booker,
543 U.S. 220, 233 (2005). In Rodriguez
the issue was “[w]hether a district court has the discretion to grant
a departure from the sentence prescribed by § 5G1.1(a).”
64 F.3d
at 642–42. By contrast, when the district court sentenced Arcila
Ramirez in April of 2022, which was in the post-Booker era, it was
well aware that it had the discretion to calculate a departure or to
vary downward from the advisory guidelines sentence of 240
months. It chose not to do so.
The government requested the 240-month guidelines sen-
tence. It pointed out that the guidelines sentence was significantly
lower than the 360 to life that Arcila Ramirez would have faced if
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22-11190 Opinion of the Court 11
he had been convicted on the multiple counts charged in the indict-
ment instead of pleading guilty to a single count. 1
Arcila Ramirez asked the court to consider his acceptance of
responsibility and his personal history and characteristics, arguing
that a sentence of ten years instead of twenty would be sufficient.
He argued that he was a “businessman” who just happened to sell
guns instead of cars, and he sold to a lot of different people — the
ELN was just one of his clients.
The court found that Arcila Ramirez had already received
the benefits of his cooperation with the government in the plea
agreement, which resulted in his being convicted of only one count
that carried a twenty-year statutory maximum and avoiding the
seven other counts in the indictment. Because of the statutory
maximum and the operation of U.S.S.G. § 5G1.1(a), his 240-month
guidelines range was significantly less than what it would other-
wise have been (360 months to life) for his crime. The court stated
that it had considered the parties’ arguments, the guidelines range,
and the
18 U.S.C. § 3553(a) factors, and it found that a 240-month
sentence was appropriate under the circumstances.
B.
1 Arcila Ramirez was indicted on eight counts and agreed to plead guilty to
only one count; the other seven counts were dismissed on the government’s
motion.
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Arcila Ramirez challenges the procedural reasonableness of
his sentence. “A sentence may be procedurally unreasonable if the
district court improperly calculates the Guidelines range, treats the
Guidelines as mandatory rather than advisory, fails to consider the
appropriate statutory factors, selects a sentence based on clearly er-
roneous facts, or fails to adequately explain the chosen sentence.”
United States v. Gonzalez,
550 F.3d 1319, 1323 (11th Cir. 2008).
The district court made none of those mistakes in sentenc-
ing Arcila Ramirez. Instead, it properly calculated the guidelines
range and considered the § 3553(a) factors. See United States v.
Kuhlman,
711 F.3d 1321, 1326 (11th Cir. 2013) (explaining that the
district court is not required to state on the record that it has ex-
plicitly considered each of the § 3553(a) factors or to discuss each
of the § 3553(a) factors); see also Gonzalez,
550 F.3d at 1324 (ex-
plaining that generally “[a]n acknowledgment the district court has
considered the defendant’s arguments and the § 3553(a) factors will
suffice”). Arcila Ramirez’s sentence is not procedurally unreason-
able.
C.
Arcila Ramirez also contends that his sentence is substan-
tively unreasonable. A district court imposes a substantively un-
reasonable sentence when it “(1) fails to afford consideration to rel-
evant factors that were due significant weight, (2) gives significant
weight to an improper or irrelevant factor, or (3) commits a clear
error of judgment in considering the proper factors.” United States
v. Irey,
612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (quotation
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22-11190 Opinion of the Court 13
marks omitted). The sentence must be sufficient, but not greater
than necessary, to comply with the purposes listed in § 3553(a)(2),
including the need to reflect the seriousness of the offense, pro-
mote respect for the law, provide just punishment for the offense,
deter criminal conduct, and protect the public from the defendant’s
future criminal conduct.
18 U.S.C. § 3553(a)(2)(A)–(C).
“[T]he district court has considerable discretion in deciding
whether the § 3553(a) factors justify a variance and the extent of
such a variance.” United States v. Croteau,
819 F.3d 1293, 1309
(11th Cir. 2016). We will vacate on substantive reasonableness
grounds only if we are “left with the definite and firm conviction
that the district court committed a clear error of judgment in
weighing the § 3553(a) factors by arriving at a sentence that lies
outside the range of reasonable sentences dictated by the facts of
the case.” Irey,
612 F.3d at 1190. The party challenging the sen-
tence bears the burden of showing that the sentence is unreasona-
ble in light of the record and the § 3553(a) factors. United States v.
Tome,
611 F.3d 1371, 1378 (11th Cir. 2010).
The district court did not commit a clear error in judgment
in weighing the § 3553(a) factors and sentencing Arcila Ramirez.
The court imposed the guidelines sentence of 240 months, and “alt-
hough we do not automatically presume that a sentence within the
guidelines range is reasonable, we ordinarily expect it to be.”
United States v. Castaneda,
997 F.3d 1318, 1332 (11th Cir. 2021).
The court considered the arguments on both sides about Arcila
Ramirez’s history and characteristics and the nature of his crime.
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14 Opinion of the Court 22-11190
See
18 U.S.C. § 3553(a). It considered the undisputed fact that
Arcila Ramirez had knowingly sold weapons to a terrorist group
that wants to overthrow the Colombian government. The court
was well within its discretion in denying Arcila Ramirez’s request
for a downward variance.
AFFIRMED.
