United States v. Christopher Hasson ( 2022 )

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-4126
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHRISTOPHER PAUL HASSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of Maryland, at Greenbelt.
George J. Hazel, District Judge. (8:19-cr-00096-GJH-1)
Argued: March 12, 2021 Decided: February 22, 2022
Before MOTZ, DIAZ, and RUSHING, Circuit Judges.
Affirmed by published opinion. Judge Rushing wrote the opinion, in which Judge Motz
and Judge Diaz joined.
ARGUED: Cullen Oakes Macbeth, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Greenbelt, Maryland, for Appellant. Thomas Patrick Windom, OFFICE OF THE UNITED
STATES ATTORNEY, Greenbelt, Maryland, for Appellee. ON BRIEF: James Wyda,
Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore,
Maryland, for Appellant. Robert K. Hur, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
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RUSHING, Circuit Judge:
After unsuccessfully challenging the statute as unconstitutionally vague,
Christopher Hasson pleaded guilty to violating 18 U.S.C. § 922(g)(3) by possessing
firearms as someone “who is an unlawful user of or addicted to any controlled substance,”
in addition to three related counts. At sentencing, the district court increased Hasson’s
Guidelines range pursuant to U.S.S.G. § 3A1.4 upon concluding that his offense was
intended to promote a federal crime of terrorism, and the court sentenced him to 160
months’ imprisonment. On appeal, Hasson contends that Section 922(g)(3) is facially
vague. He also argues that Section 3A1.4 cannot apply because he was not convicted of a
federal crime of terrorism and, in any event, the district court clearly erred in applying the
provision. We affirm his conviction and sentence. 1
I.
A.
In February 2019, federal authorities arrested Hasson as he arrived for work at the
United States Coast Guard Headquarters in Washington, D.C. At the time, Hasson was a
lieutenant in the Coast Guard. The sworn criminal complaint charged Hasson with
unlawfully possessing Tramadol, an opioid pain reliever and Schedule IV controlled
substance, and possessing firearms and ammunition as an unlawful user or addict of a
1
We also deny Hasson’s motion to supplement his claims on appeal, which he filed
three months after oral argument. See United States v. Leeson, 453 F.3d 631, 638 n.4 (4th
Cir. 2006) (finding argument waived when it was available to the defendant at the time of
his opening brief yet was raised for the first time in a notice of supplemental authority and
was “wholly different” than the argument advanced in the opening brief).
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controlled substance. See 21 U.S.C. § 844(a); 18 U.S.C. § 922(g)(3). Arresting agents
found 196 Tramadol pills in Hasson’s backpack and another 106 in his work desk. A
simultaneous search of Hasson’s residence uncovered another 122 Tramadol pills; 15
firearms; an unregistered, assembled firearm silencer; an unregistered, disassembled
firearm silencer; and hundreds of rounds of ammunition. A blood sample drawn from
Hasson that day showed Tramadol in his bloodstream.
In a motion to detain Hasson pending trial, the Government claimed the charges
were “the proverbial tip of the iceberg.” J.A. 25. According to the Government, its
investigation revealed that Hasson was “a domestic terrorist, bent on committing acts
dangerous to human life.” J.A. 25.
The Government claimed that a draft email dated June 2, 2017—which it calls a
“manifesto”—provided insight into Hasson’s worldview. In it, Hasson wrote that he was
“dreaming of a way to kill almost every last person on the earth” and contemplated
“biological attacks followed by attack on food supply” and “[i]nstitut[ing] a
bombing/sniper campaign.” J.A. 879. Hasson continued:
I don’t think I can cause complete destruction on my own, However if I could
enlist the unwitting help of another power/country would be best. Who and
how to provoke???
....
Liberalist/globalist ideology is destroying traditional peoples esp white. No
way to counteract without violence. It should push for more crack down
bringing more people to our side. Much blood will have to be spilled to get
whitey off the couch. For some no amount of blood will be enough. They
will die as will the traitors who actively work toward our demise. Looking
to Russia with hopeful eyes or any land that despises the west’s
liberalism. . . .
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Need to come off TDL, clear my head. Read and get education have to move
to friendly area and start to organize. Get leadership within the community,
sheriff, city manager, mayor, lawyer? Not sure but start now. Be ready.
Stockpile 5 locations. Pack, food, GN, supporos ao, clothing, gear.
Comb/exp for defense. Extras mortar recoilless, learn basic chemistry, start
small.
By land put 3 homes and multiple hides. Have way to get out and start hitting
back. Use lines of drift.
Have to take serious look at appropriate individual targets, to bring greatest
impact. Professors, DR’s, Politian’s, Judges, leftists in general.
Look up tactics used during Ukrainian civil war. During unrest target both
sides to increase tension. In other words provoke gov/police to over react
which should help to escalate violence. BLM protests or other left crap
would be ideal to incite to violence.
Gun rights people will never rise, need religious to stand up. Please send me
your violence that I may unleash it onto their heads. Guide my hate to make
a lasting impression on this world. So be it. I don’t know if there truly is a
“conspiracy” of ((((People)))) out to destroy me and mine, but there is an
attack none the less. For that reason I will strike, I can’t just strike to wound
I must find a way to deliver a blow that cannot be shaken off. Maybe many
blows that will cause the needed turmoil.
....
J.A. 879.
Hasson penned similar sentiments in a September 2017 letter to Harold Covington,
founder of a group advocating for a white ethnostate in the Pacific Northwest. Hasson
identified himself as “a long time White Nationalist, having been a skinhead 30 plus years
ago before my time in the military.” J.A. 874. Hasson voiced dissatisfaction with “mass
protest or wearing uniforms marching around provoking people with swastikas,” stating
instead, “I was and am a man of action you cannot change minds protesting like that.
However you can make change with a little focused violence.” J.A. 874. Hasson hoped to
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“open a dialogue” with Covington “to coordinate efforts” in establishing a white homeland.
J.A. 874.
Hasson’s own writings were not the only ones to raise flags. He compiled the
manifestos of mass murderers and terrorists the likes of Ted Kaczynski, Eric Rudolph, and
Anders Breivik. He sent himself a Home Workshop Explosives handbook, The Anarchist
Cookbook, a guide on how to make the plastic explosive Semtex, the U.S. Army
Improvised Munitions Handbook, and The Terrorist’s Handbook, which discussed
methods of buying, preparing, and detonating various explosive substances.
Hasson’s internet search history showed a similar preoccupation with violence,
white nationalism, and anti-government views. He routinely sought information about
groups harboring white-supremacist, militant, and anti-government beliefs. He queried
information about explosives, including homemade incendiaries, plastic explosives, ricin,
homemade biological weapons, explosively formed penetrators, and shaped charges,
including discussions about materials for making the latter two devices. He viewed
hundreds of webpages related to firearms, ammunition, and firearms accessories.
Hasson also researched the movements and whereabouts of political figures. He
searched for “where do senators live dc,” “do senators have ss protection,” “how often are
senators in dc,” “how do senators and congressman get around dc,” “are supreme court
justices protected,” “where does justice kagan live,” and “where does Sonia Sotomayor
live.” S.J.A. 454, 1048. After viewing a headline in which Joe Scarborough (television
host and former U.S. Congressman) called former President Trump “the worst ever,”
Hasson spent several minutes reviewing Scarborough’s Wikipedia page before searching
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“where is morning joe filmed.” S.J.A. 1077–1078. His searching led him to the address
for Scarborough’s home, which Hasson then viewed in Google Maps.
In the Government’s telling, Hasson’s inquiries about specific individuals drew
inspiration from Breivik’s manifesto. On January 3, 2019, Hasson searched within the
manifesto (saved on his Coast Guard computer) for “category A.” Breivik classifies
traitors as Category A, B, or C as a means of identifying priority targets. “Category A”
includes influential and high-profile individuals, including political, media, cultural, and
industry leaders. Two weeks later, Hasson spent three hours compiling a list of prominent
politicians, activists, political organizations, and media personalities. The list contained
22 entries. That same day, Hasson searched the Internet for “best place in dc to see
congress people” and “where in dc to [sic] congress live.” S.J.A. 1089.
Hasson allegedly followed Breivik’s manifesto in other ways too. He visited an
internet forum on energetic materials and reviewed discussions on manufacturing
explosives. He searched the manifesto for “steroids” and reviewed a section encouraging
assailants to use them in preparation for attacks. In the same spreadsheet containing his
list of individuals and organizations, Hasson devised a possible steroid cycle. Agents
searching Hasson’s home recovered over thirty bottles labeled as human growth hormone
inside a locked container, five vials of testosterone, and mestanolone (an anabolic steroid)
in both pill and powder form.
Hasson also amassed weapons and tactical gear. In addition to the 15 firearms
authorities found at Hasson’s home, in a three-year period Hasson spent roughly $12,000
on holsters, knives, ammunition magazines, ammunition, handguards, camping supplies,
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Meals-Ready-to-Eat, body armor plates, plates carriers, tactical vests and pouches, firearm
repair kits, firearm components, and smoke grenades. Among those purchases were metal
parts with pre-indexed holes ready to be drilled and assembled into unlawful silencers.
Hasson purchased a drill press and fully assembled one of the silencers, which he test-fired
at least once.
In December 2017, Hasson registered for an online sniper and sharpshooter forum,
purchased scopes for precision long-range shooting, and bought a Bergara Hunting and
Match Rifle, outfitting it with one of the scopes and a bipod. An FBI sniper testified that
the Bergara rifle “can be used to precisely target large animals including human beings
from long distances, particularly with the addition of a scope to enable precision sighting
at distance and a bipod to stabilize the rifle while shooting.” S.J.A. 657. Hasson’s rifle
was chambered in “one of the most commonly used calibers of rifle employed by U.S.
military and especially law enforcement snipers both for its accuracy as well as its terminal
effectiveness in the body.” S.J.A. 657.
The necessary instruments in hand, Hasson educated himself on precision long-
range shooting. While at work, Hasson reviewed a document authored by a well-known
expert on sniper training and operations. The document taught readers how to use a scoped
rifle to precisely engage targets up to hundreds of yards away. Hasson obtained examples
of a “sniper data book,” which, according to the FBI sniper, shooters use to document the
performance of a particular rifle in different shooting conditions. He then took his rifle to
a gun range, test fired it from various distances, and recorded his observations in a journal.
Hasson later conducted further research on distance shooting, searching for “how to use
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trig to calculate distance,” “size of door usa,” “size of garage usa,” and “stop sign height.”
J.A. 885; S.J.A. 1032. As the FBI sniper explained, these searches reference methods a
trained sniper may use to quickly determine his distance from a target. Hasson also sent
himself a ballistics calculator spreadsheet, which assists in accurately hitting an intended
target at a given distance.
B.
The Government’s forecast of additional, more serious charges did not come to
fruition. A grand jury ultimately indicted Hasson for unlawful possession of unregistered
firearm silencers, 26 U.S.C. § 5861(d); unlawful possession of firearm silencers
unidentified by serial number, 26 U.S.C. § 5861(i); possession of firearms by an unlawful
user of and addict to a controlled substance, 18 U.S.C. § 922(g)(3); and possession of a
controlled substance, 21 U.S.C. § 844(a).
Hasson moved to dismiss the Section 922(g)(3) charge, arguing that the statutory
phrases “unlawful user” and “addicted to” were unconstitutionally vague on their face. The
district court denied the motion. United States v. Hasson, No. GJH-19-96, 2019 WL
4573424, at *6–7 (D. Md. Sept. 20, 2019). As the court recognized, our precedent
forecloses facial vagueness challenges by defendants whose conduct a statute clearly
proscribes. Id. at *6 (citing United States v. Hosford, 843 F.3d 161, 170 (4th Cir. 2016)).
Hasson did not “seem to contest that his alleged conduct falls squarely within the confines
of the statute,” and the district court found that Hasson’s conduct was “clearly prohibited
by § 922(g)(3)’s prohibition on possession of firearms by an individual whose drug use is
consistent, prolonged, and close in time to his firearm possession.” Id. at *7; see United
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States v. Sperling, 400 Fed. App. 765, 767 (4th Cir. 2010) (“To sustain a conviction [under
Section 922(g)(3)], the government must prove that the defendant’s drug use was
sufficiently consistent, prolonged, and close in time to his gun possession to put him on
notice that he qualified as an unlawful user under the terms of the statute.” (internal
quotation marks omitted)). Thereafter, Hasson pleaded guilty to all counts but reserved the
right to appeal his sentence and the order denying his motion to dismiss.
The district court held a full-day sentencing hearing. Of note here, the court
resolved the Government’s request to enhance Hasson’s Guidelines range under U.S.S.G.
§ 3A1.4. The Section 3A1.4 adjustment directs courts to increase a defendant’s offense
level and criminal-history category “[i]f the offense is a felony that involved, or was
intended to promote, a federal crime of terrorism.” U.S.S.G. § 3A1.4(a). The district court
applied the adjustment over Hasson’s objection upon concluding that his crimes were
“designed to promote” a crime under 18 U.S.C. § 351, which, in relevant part, criminalizes
“attempting to kill or kidnap” any member of Congress, any Supreme Court Justice, and
certain executive officials. S.J.A. 951–955. Applying the adjustment increased Hasson’s
offense level by 12 points and his criminal-history category from I to VI. The district court,
however, agreed with Hasson that the increase overstated his criminal history and departed
downward to category I. In the end, the adjustment increased Hasson’s Guidelines range
from 41–51 months to 151–188 months. The court sentenced Hasson to 160 months’
imprisonment.
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II.
On appeal, Hasson again challenges 18 U.S.C. § 922(g)(3) as unconstitutionally
vague on its face. But Hasson does not dispute the district court’s holding that his conduct
“falls squarely within the confines of [Section 922(g)(3)].” Hasson, 2019 WL 4573424, at
*7. He has, consequently, abandoned any contention to the contrary. See Adbul-Mumit v.
Alexandria Hyundai, LLC, 896 F.3d 278, 290 (4th Cir. 2018) (“‘[C]ontentions not raised
in the argument section of the opening brief are abandoned.’” (quoting United States v. Al-
Hamdi, 356 F.3d 564, 571 n.8 (4th Cir. 2004))).
That abandonment dooms Hasson’s vagueness challenge. The Supreme Court and
this Court have repeatedly held that we must “consider whether a statute is vague as applied
to the particular facts at issue, for ‘[a] plaintiff who engages in some conduct that is clearly
proscribed cannot complain of the vagueness of the law as applied to the conduct of
others.’” Holder v. Humanitarian L. Project, 561 U.S. 1, 18–19 (2010) (alteration in
original) (quoting Hoffman Ests. v. Flipside, Hoffman Ests., Inc., 455 U.S. 489, 495
(1982)); see Expressions Hair Design v. Schneiderman, 137 S. Ct. 1144, 1151–1152 (2017)
(“A plaintiff whose speech is clearly proscribed cannot raise a successful vagueness claim.”
(brackets and internal quotation marks omitted)); Parker v. Levy, 417 U.S. 733, 756 (1974)
(“One to whose conduct a statute clearly applies may not successfully challenge it for
vagueness.”); United States v. Moriello, 980 F.3d 924, 931 (4th Cir. 2020) (“[A] plaintiff
who engages in some conduct that is clearly proscribed cannot complain of the vagueness
of the law as applied to the conduct of others.” (internal quotation marks omitted));
Hosford, 843 F.3d at 170 (same); United States v. Jaensch, 665 F.3d 83, 89 (4th Cir. 2011)
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(same); Gallaher v. City of Huntington, 759 F.2d 1155, 1160 (4th Cir. 1985) (same). In
criminal cases, then, “if a law clearly prohibits a defendant’s conduct, the defendant cannot
challenge, and a court cannot examine, whether the law may be vague for other
hypothetical defendants.” Hosford, 843 F.3d at 170.
Hasson counters that this longstanding rule is no longer the law. According to
Hasson, in Johnson v. United States, 576 U.S. 591 (2015), and Sessions v. Dimaya, 138 S.
Ct. 1204 (2018), the Supreme Court repudiated this principle, and those decisions so
“clearly undermined” our Court’s precedents that they no longer bind this panel, United
States v. Battle, 927 F.3d 160, 166 n.7 (4th Cir. 2019) (internal quotation marks omitted). 2
To resolve this issue, it is helpful to review Johnson and Dimaya. Johnson involved
a vagueness challenge to the Armed Career Criminal Act of 1984 (ACCA). See 576 U.S.
at 593. ACCA mandates a 15-year minimum sentence for a defendant convicted of a
firearms offense who has three or more prior convictions for either a “serious drug offense”
or a “violent felony.” 18 U.S.C. § 924(e)(1). In part, the statute defines “violent felony”
as a crime punishable by a year or more in prison that “is burglary, arson, or extortion,
involves use of explosives, or otherwise involves conduct that presents a serious potential
risk of physical injury to another.” Id. § 924(e)(2)(B)(ii) (emphasis added). Courts apply
2
Although our Court has applied the rule forbidding a defendant from challenging
a statute as vague if it clearly prohibits his own conduct in the years since Johnson and
Dimaya, the Court has never considered whether those decisions undermined that rule.
See, e.g., Fusaro v. Howard, 19 F.4th 357, 374 (4th Cir. 2021); Moriello, 980 F.3d at 931;
Hosford, 843 F.3d at 170. It is therefore appropriate for us to do so now. See Mays v.
Sprinkle, 992 F.3d 295, 302 n.4 (4th Cir. 2021); United States v. Dodge, 963 F.3d 379,
383–384 (4th Cir. 2020).
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the categorical approach to determine whether a crime qualifies as a violent felony,
including under the italicized “residual clause.” Johnson, 576 U.S. at 596. Doing so
requires assessing the predicate crime “in terms of how the law defines the offense and not
in terms of how an individual offender might have committed it on a particular occasion.”
Id. (internal quotation marks omitted).
Two aspects of this “wide-ranging inquiry” led the Supreme Court to hold the
residual clause unconstitutionally vague. Id. at 597. First, “the residual clause leaves grave
uncertainty about how to estimate the risk posed by a crime” because “[i]t ties the judicial
assessment of risk to a judicially imagined ‘ordinary case’ of a crime, not to real world
facts or statutory elements.” Id. Second, “the residual clause leaves uncertainty about how
much risk it takes for a crime to qualify as a violent felony,” for “[i]t is one thing to apply
an imprecise ‘serious potential risk’ standard to real-world facts; it is quite another to apply
it to a judge-imagined abstraction.” Id. at 598. Nine years of the Court’s fruitless efforts
to “craft a principled and objective standard out of the residual clause confirm[ed] its
hopeless indeterminacy.” Id. “Each of the uncertainties in the residual clause may be
tolerable in isolation,” the Court reasoned, but “their sum makes a task for us which at best
could be only guesswork.” Id. at 602 (internal quotation marks omitted).
In reaching its conclusion, the Court found unpersuasive the contention that “a
statute is void for vagueness only if it is vague in all its applications.” Id. at 603 (internal
quotation marks omitted). The Court explained that “although statements in some of our
opinions could be read to suggest otherwise, our holdings squarely contradict the theory
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that a vague provision is constitutional merely because there is some conduct that clearly
falls within the provision’s grasp.” Id. at 602.
In Dimaya, the Court relied on Johnson to hold a residual clause in a different statute
unconstitutionally vague. 138 S. Ct. at 1223. Justice Thomas authored an extensive
dissent. Among other grounds for his dissent, Justice Thomas adhered to his view, also
expressed in Johnson, that “a law is not facially vague . . . if there is an unmistakable core
that a reasonable person would know is forbidden by the law.” Id. at 1252 (Thomas, J.,
dissenting) (internal quotation marks omitted); see Johnson, 576 U.S. at 623 (Thomas, J.,
concurring in the judgment). He also dissented on the separate ground that the statute was
not vague as applied to the respondent. See Dimaya, 138 S. Ct. at 1250 (Thomas, J.,
dissenting). As Justice Thomas explained, the Supreme Court’s precedents “recognize
that, outside the First Amendment context, a challenger must prove that the statute is vague
as applied to him” and “Johnson did not overrule these precedents.” Id. at 1250; see id.(explaining that the Johnson Court concluded ACCA’s residual clause was
unconstitutional as applied to the crime at issue there). “While Johnson weakened the
principle that a facial challenge requires a statute to be vague ‘in all applications,’” he
reasoned, “it did not address whether a statute must be vague as applied to the person
challenging it.” Id. (quoting Johnson, 576 U.S. at 603).
In a footnote, the Dimaya majority responded that Johnson “anticipated and rejected
a significant aspect of Justice Thomas’s dissent,” namely his assertion that “a court may
not invalidate a statute for vagueness if it is clear in any of its applications.” Id. at 1214
n.3. Johnson did so, the majority explained, by “ma[king] clear that our decisions ‘squarely
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contradict the theory that a vague provision is constitutional merely because there is some
conduct that clearly falls within the provision’s grasp.’” Id. (quoting Johnson, 576 U.S. at
602). Put another way, the Court reiterated that a statute need not be vague in all its
applications to be unconstitutional. But the Court did not address the precedents Justice
Thomas cited to demonstrate that “a challenger must prove that the statute is vague as
applied to him,” id. at 1250 (Thomas, J., dissenting), much less the principle that “[o]ne to
whose conduct a statute clearly applies may not successfully challenge it for vagueness,”
Parker, 417 U.S. at 756.
Hasson claims that the rule prohibiting vagueness challenges by those whose
conduct a statute clearly prohibits perished alongside the rule requiring a statute to be vague
in all its applications. To Hasson, the latter provides the theoretical underpinning for the
former. Johnson having jettisoned that underpinning, Hasson argues, “a defendant may
raise a facial vagueness challenge without regard to whether the statute is vague as applied
to him.” Opening Br. 20.
We disagree. First, Hasson is wrong about the rationale for the rule prohibiting
vagueness challenges by those whose conduct a statute clearly prohibits. The rule shares
its foundation with the vagueness doctrine itself, which is based on the concept “‘that
criminal responsibility should not attach where one could not reasonably understand that
his contemplated conduct is proscribed.’” Parker, 417 U.S. at 757 (quoting United States
v. Nat’l Dairy Prods. Corp., 372 U.S. 29, 32–33 (1954)); see Hoffman Ests., 455 U.S. at
495 n.7. Put simply, the vagueness doctrine requires that a criminal statute “provide a
person of ordinary intelligence fair notice of what is prohibited” and not be “so standardless
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that it authorizes or encourages seriously discriminatory enforcement.” United States v.
Williams, 553 U.S. 285, 304 (2008). When the challenged statute clearly proscribes a
defendant’s conduct, neither of these rationales is implicated. It would untether the
vagueness doctrine from its moorings to permit a facial vagueness challenge in such a case.
Another foundational pillar for the rule prohibiting vagueness challenges by those
whose conduct a statute clearly prohibits is the limited nature of judicial power:
Embedded in the traditional rules governing constitutional adjudication is the
principle that a person to whom a statute may constitutionally be applied will
not be heard to challenge that statute on the ground that it may conceivably
be applied unconstitutionally to others, in other situations not before the
Court. A closely related principle is that constitutional rights are personal
and may not be asserted vicariously. These principles rest on more than the
fussiness of judges. They reflect the conviction that under our constitutional
system courts are not roving commissions assigned to pass judgment on the
validity of the Nation’s laws. Constitutional judgments, as Mr. Chief Justice
Marshall recognized, are justified only out of the necessity of adjudicating
rights in particular cases between the litigants brought before the Court[.]
Broadrick v. Oklahoma, 413 U.S. 601, 610–611 (1973) (citations omitted); see United
States v. Raines, 362 U.S. 17, 21 (1960) (“Kindred to the[] rules [limiting federal courts to
deciding only the cases and controversies properly before them] is the rule that one to
whom application of a statute is constitutional will not be heard to attack the statute on the
ground that impliedly it might also be taken as applying to other persons or other situations
in which its application might be unconstitutional.”); Kashem v. Barr, 941 F.3d 358, 375–
376 (9th Cir. 2019) (quoting Broadrick); see also United States v. Masciandaro, 638 F.3d
458, 474 (4th Cir. 2011). Respect for our circumscribed role is one reason “as-applied
challenges are the basic building blocks of constitutional adjudication.” Gonzales v.
Carhart, 550 U.S. 124, 168 (2007) (brackets and internal quotation marks omitted).
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These foundations are independent of the substantive standard for judging a facial
vagueness challenge. See Kashem, 941 F.3d at 375. That standard—which formerly
required a law to be vague in all its applications—speaks to the degree of vagueness a law
must exhibit to be found facially unconstitutional. See Hoffman Ests., 455 U.S. at 494–
495; cf. United States v. Salerno, 481 U.S. 739, 745 (1987) (“A facial challenge to a
legislative Act . . . [requires] the challenger [to] establish that no set of circumstances exists
under which the Act would be valid.”). Consequently, Johnson and Dimaya’s rejection of
the vague-in-all-its-applications standard does not undermine the rule prohibiting
defendants whose conduct a statute clearly proscribes from bringing vagueness challenges.
Further, Johnson and Dimaya did not purport to jettison the latter rule, and it is “the
Supreme Court’s ‘prerogative alone to overrule one of its precedents.’” Payne v. Taslimi,
998 F.3d 648, 654 (4th Cir. 2021) (quoting State Oil Co. v. Khan, 522 U.S. 3, 20 (1997)).
Neither Johnson nor Dimaya “explicitly question[ed] the rule that a litigant whose conduct
is clearly prohibited by a statute cannot be the one to make a facial vagueness challenge.”
Kashem, 941 F.3d at 376. Indeed, any suggestion that Johnson discarded that rule is
foreclosed by Expression Hair Design v. Schneiderman, 137 S. Ct. 1144 (2017), in which,
the term after Johnson, the Court applied the rule to deny a vagueness claim. See
Expression Hair Design, 137 S. Ct. at 1151–1152 (holding that the plaintiffs could not raise
a successful vagueness claim because the challenged law clearly proscribed their intended
speech). We find the Court’s application of the rule after Johnson—in the speech context
no less, where “a heightened vagueness standard applies,” Humanitarian L. Project, 561
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U.S. at 20—dispositive that the Johnson Court did not silently overrule its precedents
prohibiting vagueness challenges by those whose conduct a statute clearly prohibits.
Consistent with that finding, whatever “Johnson . . . anticipated and rejected,”
Dimaya, 138 S. Ct. at 1214 n.3, it was not the rule foreclosing a litigant whose conduct is
clearly prohibited by a statute from bringing a vagueness challenge. Consequently, we
cannot read footnote three of Dimaya, which relied on Johnson, as quietly abandoning that
rule. Indeed, no court of appeals to consider the question has concluded that Johnson or
Dimaya worked such a change. See United States v. Requena, 980 F.3d 30, 40–43 (2d Cir.
2020); United States v. Westbrooks, 858 F.3d 317, 325 (5th Cir. 2017), cert. granted &
judgment vacated on other grounds, 138 S. Ct. 1323 (2018); United States v. Cook, 970
F.3d 866, 877–878 (7th Cir. 2020); United States v. Bramer, 832 F.3d 908, 909 (8th Cir.
2016); Kashem, 941 F.3d at 376 (9th Cir.); 303 Creative LLC v. Elenis, 6 F.4th 1160, 1190
(10th Cir. 2021).
Even if we were to view Johnson and Dimaya as instances in which the Court
bypassed as-applied challenges to proceed directly to facial vagueness, but see Johnson,
576 U.S. at 600 (finding that “the residual clause yields no answers” to the many questions
incident to determining whether unlawful possession of a short-barreled shotgun is a
violent felony); Dimaya, 138 S. Ct. at 1214–1215 & n.3 (finding that burglary is not an
“easy application[] of the residual clause” because countless questions attend the “ordinary
case” inquiry required by the categorical approach), their unique context sets them apart.
See Requena, 980 F.3d at 41–43; Cook, 970 F.3d at 876–877; Kashem, 941 F.3d at 376–
377; cf. Crooks v. Mabus, 845 F.3d 412, 417 (D.C. Cir. 2016). Indeed, the Court was at
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pains to emphasize the peculiar double-indeterminacy posed by applying the residual
clauses’ imprecise qualitative standards to the “judicially imagined ‘ordinary case’ of a
crime” required by the categorical approach. Johnson, 576 U.S. at 597–598; see Dimaya,
138 S. Ct. at 1215–1216. In a routine vagueness challenge, by contrast, a court is called
upon to apply a statutory prohibition to a defendant’s real-world conduct. See United States
v. Davis, 139 S. Ct. 2319, 2327 (2019) (“[A] case-specific approach would avoid the
vagueness problems that doomed the statutes in Johnson and Dimaya.”). That inquiry is
fully compatible with a traditional as-applied vagueness analysis.
For these reasons, we conclude that Johnson and Dimaya “did not alter the general
rule that a defendant whose conduct is clearly prohibited by a statute cannot be the one to
make a facial vagueness challenge.” Cook, 970 F.3d at 877. It follows that neither decision
clearly undermined our precedents espousing that rule. And any exceptions must originate
from the Supreme Court, whose longstanding precedents supply the rule’s foundation.
Because Hasson does not contest that Section 922(g)(3) clearly applies to his conduct, his
attempt to assert a facial vagueness challenge fails.
III.
Hasson also appeals his sentence—specifically, application of the terrorism
adjustment, which more than tripled his Guidelines range. 3 Hasson mounts two challenges.
First, he believes that U.S.S.G. § 3A1.4 is ultra vires to the extent it encompasses
defendants not convicted of a federal crime of terrorism. Second, he contends that the
3
The increase would have been greater, but the district court departed downward to
criminal history category I.
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district court summarily disregarded his expert’s findings and opinion that Hasson did not
present a risk of violence and so the adjustment should not apply to him. We disagree with
both contentions and therefore affirm Hasson’s sentence.
A.
Section 3A1.4 applies “[i]f the offense is a felony that involved, or was intended to
promote, a federal crime of terrorism.” U.S.S.G. § 3A1.4. The district court rejected
Hasson’s argument that the adjustment requires a completed terrorism offense. In a
separate case, we subsequently agreed, holding that the adjustment does not “require that
a defendant be convicted of a federal crime of terrorism” but instead “applies whenever a
defendant’s offense of conviction or relevant conduct was ‘intended to promote’ a federal
crime of terrorism.” United States v. Kobito, 994 F.3d 696, 701–702 (4th Cir. 2021). On
appeal, Hasson switches gears and argues that, because Section 3A1.4 applies to defendants
who were not convicted of a federal crime of terrorism, it contravenes a 1996 congressional
directive to the United States Sentencing Commission and is therefore invalid. See United
States v. LaBonte, 520 U.S. 751, 757 (1997) (holding that if a Guidelines provision “is at
odds with [a statutory directive’s] plain language, it must give way”). We review legal
conclusions de novo but unpreserved arguments only for plain error. Kobito, 994 F.3d at
701. Hasson concedes that he did not raise the question of Section 3A1.4’s validity below
yet disputes that plain error is the correct standard of review. 4 Because the district court
4
We reject the Government’s contention that Hasson invited any error. “The invited
error doctrine recognizes that a court cannot be asked by counsel to take a step in a case
and later be convicted of error, because it has complied with such request.” United States
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did not err in applying the terrorism adjustment, we conclude that Hasson’s argument fails
regardless of the standard of review we apply.
Grasping Hasson’s argument requires understanding Section 3A1.4’s history.
Before 1995, the Sentencing Guidelines permitted a “Terrorism” upward departure where
“the defendant committed the offense in furtherance of a terroristic action.” U.S.S.G.
§ 5K2.15 (1994). In the Violent Crime Control and Law Enforcement Act of 1994,
Congress directed the Sentencing Commission “to amend its sentencing guidelines to
provide an appropriate enhancement for any felony, whether committed within or outside
the United States, that involves or is intended to promote international terrorism, unless
such involvement or intent is itself an element of the crime.” Pub. L. 103-322, § 120004,
108 Stat. 1796, 2022 (1994). The Sentencing Commission responded by replacing the
upward-departure provision with a new “International Terrorism” adjustment at Section
3A1.4. U.S.S.G. app. C, amend. 526. Section 3A1.4 took effect on November 1, 1995.
The inaugural version read:
§ 3A1.4. International Terrorism
(a) If the offense is a felony that involved, or was intended to
promote, international 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 (Criminal History and Criminal Livelihood)
shall be Category VI.
v. Sanya, 774 F.3d 812, 817 n.2 (4th Cir. 2014) (internal quotation marks omitted). Hasson
did not ask the district court to apply the terrorism adjustment, therefore the doctrine is
inapplicable.
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U.S.S.G. § 3A1.4 (1995). The Commentary defined “international terrorism” with
reference to that term’s definition in 18 U.S.C. § 2331. Id. cmt. n.1.
Less than two years later, in the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), Congress instructed the Sentencing Commission to “amend the sentencing
guidelines so that the chapter 3 adjustment relating to international terrorism only applies
to Federal crimes of terrorism, as defined in section 2332b(g) of title 18, United States
Code.” Pub. L. 104-132, § 730, 110 Stat. 1214, 1303. In response, the Sentencing
Commission retitled Section 3A1.4 simply “Terrorism” and replaced the reference to
“international terrorism” with “a federal crime of terrorism,” as reflected below:
§ 3A1.4. International Terrorism
(a) If the offense is a felony that involved, or was intended to
promote, international terrorism 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 (Criminal History and Criminal Livelihood)
shall be Category VI.
Compare U.S.S.G. § 3A1.4 (1996) with U.S.S.G. § 3A1.4 (1995); see also U.S.S.G. app.
C, amend. 539 (1997). The Commentary defined “federal crime of terrorism” with
reference to that term’s definition in 18 U.S.C. § 2332b(g). U.S.S.G. § 3A1.4 cmt. n.1
(1996). For purposes of this case, Section 3A1.4 has remained materially unaltered ever
since. See U.S.S.G. § 3A1.4 (2021).
Hasson contends that the Sentencing Commission misread Congress’s 1996
directive. According to Hasson, Congress intended to restrict Section 3A1.4 to cases where
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the defendant is convicted of an offense listed in 18 U.S.C. § 2332b(g)(5), which defines
“federal crime of terrorism.” Under Hasson’s reading of the directive, the Commission
should have amended the adjustment as follows:
§ 3A1.4. International Terrorism
(a) If the offense is a felony that involved, or was intended to
promote, international terrorism 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 (Criminal History and Criminal Livelihood)
shall be Category VI.
Hasson argues that the directive’s use of the word “only” compels his interpretation.
§ 730, 110 Stat. at 1303. In his view, “only” shows Congress intended to narrow the
adjustment in some way. But in the same directive, Congress expanded the scope of the
adjustment to include cases involving solely domestic terrorism. Hasson argues that
limiting the adjustment’s application to convictions for federal crimes of terrorism is the
sole way to effectuate the narrowing quality of the word “only,” given the expansion that
results from replacing “international terrorism” with “federal crime of terrorism.”
We disagree. “As in all statutory construction cases, we assume that the ordinary
meaning of the statutory language accurately expresses the legislative purpose.” Marx v.
Gen. Revenue Corp., 568 U.S. 371, 376 (2013) (brackets and internal quotation marks
omitted). Admittedly, the 1996 directive is ambiguous. But “[r]ecognizing that the
Commission ‘brings expertise to the implementation of its mandate’” to formulate
sentencing guidelines, “we must defer to the Commission’s interpretation of a
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congressional directive as long as that interpretation is not ‘at odds with the plain language’
of the directive.” United States v. Murphy, 254 F.3d 511, 512 (4th Cir. 2001) (brackets
omitted) (quoting United States v. Kennedy, 32 F.3d 876, 889 (4th Cir. 1994), and LaBonte,
520 U.S. at 757).
Our review convinces us that the 1996 directive readily supports Section 3A1.4.
Congress directed the Sentencing Commission to amend Section 3A1.4—which then
applied “[i]f the offense is a felony that involved, or was intended to promote, international
terrorism”—so that it “only applies to Federal crimes of terrorism, as defined in [18 U.S.C.
§] 2332b(g).” § 730, 110 Stat. at 1303. That direction is reasonably read as instructing the
Commission to edit the type of terrorism to which the adjustment applies by replacing
“international terrorism” with “federal crimes of terrorism,” which the Commission did.
The word “only” clarified that Congress intended for “federal crimes of terrorism” to
supplant “international terrorism,” rather than supplement it such that the adjustment
covered both “international terrorism” and “federal crimes of terrorism.” Had Congress
omitted “only,” the Commission may well have preserved the adjustment’s application to
“international terrorism.” Congress obviated that ambiguity by including “only” in its
instructions.
Context further supports the Commission’s interpretation. Less than two years
before the 1996 directive, Congress instructed the Commission to apply Section 3A1.4 to
“any felony . . . that involves or is intended to promote international terrorism,” and the
Commission did so. § 120004, 108 Stat. at 2022 (emphasis added). As we have explained,
that disjunctive phrase creates two ways in which the adjustment can be triggered: (1) by
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an offense that “involves” terrorism, or (2) by an offense “intended to promote” terrorism.
See Kobito, 994 F.3d at 702. The 1996 directive did not purport to reduce these two options
to one; indeed, it said nothing about the offenses to which the adjustment applies or their
relationship to the crime of terrorism. If Congress had intended to completely rewrite the
precise language it had dictated less than two years prior, we expect it would have done so
more clearly. Instead, Congress’s 1996 directive focused on the nature of the terrorism
involved, which is but one facet of Section 3A1.4, and the Commission changed that aspect
of the adjustment in response.
Attempting to overcome the Commission’s reasonable interpretation, Hasson
argues that legislative history supports his reading. He quotes AEDPA’s Conference
Report, which says that “[t]his section of the bill will make that new provision applicable
only to those specifically listed federal crimes of terrorism, upon conviction of those crimes
with the necessary motivational element to be established at the sentencing phase of the
prosecution.” H.R. Rep. No. 104-518, at 123 (1996) (emphasis added). In Hasson’s view,
the emphasized portion confirms that Congress intended for Section 3A1.4 to apply only
upon a defendant’s conviction for an enumerated offense.
But “legislative history is not the law.” Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612,
1631 (2018). Only the statute itself underwent the constitutionally required process of
bicameralism and presentment. Therefore “the authoritative statement is the statutory text,
not the legislative history or any other extrinsic material.” Exxon Mobil Corp. v. Allapattah
Servs., Inc., 545 U.S. 546, 568 (2005); see also City of Chicago v. Env’t Def. Fund, 511
U.S. 328, 337 (1994) (“But it is the statute, and not the Committee Report, which is the
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authoritative expression of the law[.]”). And the statute here supports the Commission’s
interpretation.
Moreover, even if we were to consider it, the Conference Report does not compel
the meaning Hasson attaches to it. Although one could read Hasson’s selected quotation
as requiring a conviction for a federal crime of terrorism, one could also read it as stating
a sufficient, but not necessary, condition for applying the adjustment. Cf. United States v.
Tankersley, 537 F.3d 1100, 1113 (9th Cir. 2008) (“Based on this legislative history, we
conclude that through the terrorism enhancement Congress wanted to impose a harsher
punishment on any individual who committed an offense that involved or intended to
promote one of the enumerated terrorist acts, and intended, through that offense, to
influence the conduct of others.”). The ambiguous Conference Report provides Hasson no
refuge.
In sum, applying Section 3A1.4 absent a conviction for a federal crime of terrorism
does not impermissibly contravene Congress’s directive. That being so, Hasson has failed
to demonstrate that the district court erred—plainly or otherwise—in applying the
adjustment as written by the Commission.
B.
In the alternative, Hasson contends that the district court disregarded the findings
and opinions of his “violence risk assessment” expert and therefore erroneously concluded
that Hasson’s conduct satisfied Section 3A1.4. Finding no clear error, we affirm.
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1.
To apply the terrorism adjustment, the district court was required to find that at least
one of Hasson’s offenses “involved, or was intended to promote, a federal crime of
terrorism.” U.S.S.G. § 3A1.4(a). 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), and that violates
one of the statutes listed in 18 U.S.C. § 2332b(g)(5)(B). See Kobito, 994 F.3d at 700;
United States v. Hassan, 742 F.3d 104, 148 (4th Cir. 2014). An offense is “intended to
promote” a federal crime of terrorism “whenever the defendant commits a felony with a
goal or purpose to bring or help bring into being a crime listed in 18 U.S.C.
§ 2332b(g)(5)(B), even if the defendant has not necessarily completed, attempted, or
conspired to commit the crime.” Kobito, 994 F.3d at 702 (citations, ellipsis, and internal
quotation marks omitted). “[A] court deciding whether to impose the terrorism
enhancement must resolve any factual disputes that it deems relevant to application of the
enhancement, and then, if it finds the requisite intent, should identify the evidence in the
record that supports its determination.” Hassan, 742 F.3d at 148 (internal quotation marks
omitted); see also United States v. Chandia, 514 F.3d 365, 376 (4th Cir. 2008). The
Government must prove by a preponderance of the evidence that the adjustment applies.
Kobito, 994 F.3d at 701.
The district court concluded that Hasson’s firearms offenses were designed to
promote 18 U.S.C. § 351, which, in relevant part, criminalizes “attempts to kill or kidnap”
any member of Congress, any Supreme Court Justice, and certain executive officials. 18
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U.S.C. § 351(a), (c). The court also found that Hasson committed his crimes “for the
purpose of coercing the Government and retaliating against them.” S.J.A. 955. The court
meticulously detailed the facts underlying its conclusion, noting they were “just a
thumbnail of the voluminous materials that the Government has submitted.” S.J.A. 951.
We rehearse the court’s findings briefly here.
The court first cited Hasson’s writings identifying himself as “a white nationalist
for over 30 years” and advocating “a little focussed [sic] violence” to “make change.”
S.J.A. 951–952. It noted his 2017 draft email indicating “that he had to take a serious look
at appropriate individual targets to bring greatest impact. Professors, DR’s, politicians,
judges, leftists in general.” S.J.A. 952. The court then recounted Hasson’s endeavor to
become proficient in long-range precision marksmanship: He registered for an online
sniper and sharpshooter forum; purchased the Bergara rifle, which he outfitted with high-
end scopes; searched for and began his own sniper logbook; researched distance shooting;
and obtained a ballistics calculator spreadsheet. The court described Hasson’s efforts to
learn where he could locate prominent political figures. He “searched for where do most
senators live in D.C., do senators have SS protection, and are Supreme Court justices
protected.” S.J.A. 953 (internal quotation mark omitted). He searched “Maxine Waters[,]
D.C.”; “how do senators get around D.C.”; “how do senators and congressmen get around
D.C. private subway”; “best place in D.C. to see congress people”; and “where in D.C. do
Congress [sic] live.” S.J.A. 953–954. He also searched for where Justices Sotomayor and
Kagan live. Those inquiries corresponded to Hasson’s searches within the Breivik
manifesto for “category A, which refers to a category of traitors who are most influential
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and includes political leaders.” S.J.A. 953. “[J]ust two weeks after reviewing the Breivik
manifesto,” Hasson “compiled a list that included prominent congressional leaders, among
other potential targets.” S.J.A. 954.
The court also recounted the evidence seized during the search of Hasson’s
residence. Authorities recovered testosterone, anabolic steroids, and human growth
hormone, which corresponded to his query for “steroids” in the Breivik manifesto, where
Breivik “suggest[ed] that an assailant begin a steroid cycle once the preparation phase for
an attack begins.” S.J.A. 953–954. The search also “revealed an enormous array of
weapons and ammunition consistent with someone planning to carry out just the sort of
attacks that are described.” S.J.A. 954.
In the end, “[a]ll of these actions taken together convince[d] the [c]ourt . . . well
beyond the preponderance standard[] that [Hasson] was, in fact, intending to promote a
federal crime of terrorism.” S.J.A. 954. And his “choice of targeting politicians indicate[d]
that he was, in fact, doing this or planning to do this . . . for the purpose of coercing the
Government and retaliating against them.” S.J.A. 955. The court reasoned that Hasson’s
rhetoric and weaponry viewed separately would not justify applying the terrorism
adjustment, but in combination they revealed “that he was actually in the process of
formulating a plan that makes this a case where the terrorism enhancement [applies].”
S.J.A. 954–955.
2.
We review the factual findings underlying the district court’s application of the
terrorism adjustment for clear error. Kobito, 994 F.3d at 701. In so doing, we “‘ask
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whether, on the entire evidence,’” we are “‘left with the definite and firm conviction that a
mistake has been committed.’” United States v. Wooden, 693 F.3d 440, 451 (4th Cir. 2012)
(quoting Easley v. Cromartie, 532 U.S. 234, 242 (2001)). Such a conviction may “be based
upon a conclusion that, without regard to what the actual facts may be, the findings under
review . . . were made without properly taking into account substantial evidence to the
contrary,” Miller v. Mercy Hosp., Inc., 720 F.2d 356, 361 (4th Cir. 1983) (internal quotation
marks omitted), such as when a district court fails to “acknowledge,” “account for,” or
“consider” substantial contradictory evidence, Wooden, 693 F.3d at 453–454.
Hasson urges us to find clear error in the district court’s treatment of his expert’s
opinions and testimony. In anticipation of sentencing, Hasson commissioned a “violence
risk assessment” from Stephen D. Hart, Ph.D., whose experience includes consulting with
law-enforcement agencies “regarding risk for serious violence, including terrorism, mass
casualty violence, and targeted violence.” J.A. 782. After interviewing Hasson and
reviewing evidence in the case, Dr. Hart prepared a report in which he opined that the
evidence “does not support the government’s theory that Mr. Hasson intends (or intended)
to commit acts dangerous to human life,” “that he is (or was) a domestic terrorist,” or that
he “pose[s] a risk of serious violence.” J.A. 785. Dr. Hart also testified at Hasson’s
sentencing hearing, where the Government cross-examined him. Hasson claims that the
district court summarily dismissed Dr. Hart’s opinions, did not acknowledge several of his
key conclusions, and did not account for or explain why it disagreed with aspects of his
testimony.
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We discern no clear error in the district court’s consideration of Dr. Hart’s opinions.
The court directly addressed Dr. Hart’s conclusions and explained why it gave them little
credit. For example, the court noted that cross-examination revealed “serious questions”
about Dr. Hart’s methodology. S.J.A. 955. The court further identified particular evidence
that it believed contradicted Dr. Hart’s findings. 5 This is wholly unlike the cases on which
Hasson relies, where courts entirely failed to consider or address substantial evidence.
Nor does the absence of contrary expert testimony undermine the district court’s
findings. “[T]he trier of facts is not required to accept uncontradicted testimony,” where,
as here, it finds that the evidence in the record undermines or discredits that testimony.
Am. Mfg. Assocs., Inc. v. N.L.R.B., 594 F.2d 30, 34 (4th Cir. 1979). The district court
weighed Dr. Hart’s opinion testimony against a truly voluminous record of documentary
evidence and found the conclusions Dr. Hart drew from that record unpersuasive. That
was its prerogative as the finder of fact and was not clear error.
IV.
Because Hasson does not contest that 18 U.S.C. § 922(g)(3) clearly prohibited his
conduct, he cannot challenge the statute as unconstitutionally vague. Nor has he
demonstrated that the district court legally or factually erred in applying U.S.S.G.
§ 3A1.4’s terrorism adjustment to increase his Guidelines sentencing range. We
accordingly affirm both the denial of Hasson’s motion to dismiss the Section 922(g)(3)
charge and the resulting sentence.
5
The district court did, however, “give some of Dr. Hart’s comments consideration
under [18 U.S.C. §] 3553.” S.J.A. 956.
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AFFIRMED
31