Williams, Brooke 10/28/2017 For Educational Use Only UNITED STATES OF AMERICA, v. Mohamed Hussein..., 2015 WL 5081206... 2015 WL 5081206 (S.D.Fla.) (Verdict, Agreement and Settlement) United States District Court, S.D. Florida. UNITED STATES OF AMERICA, v. Mohamed Hussein SAID, a/k/a “Bill,” a/k/a “Billph86,” a/k/a “Mohammed Salem bin Abdisheikh,” a/k/a “Mohamed Hussein,” a/k/a “Abdul-Rahman Abdul Rahim,” a/k/a “Tibyan,” Defendant. No. 13-20364-CR-UNGARO. May 29, 2015. Plea Agreement Wifredo A. Ferrer, United States Attorney. Brian K. Frazier, Assistant United States Attorney. Silvia Pinera-Vazquez, Esq., for defendant. The United States Attorney's Office for the Southern District of Florida (“this Office”) and MOHAMED HUSSEIN SAID (“the defendant”) enter into the following agreement: 1. The defendant agrees to plead guilty to Count 1 of the Indictment, which charges the defendant with conspiring to provide material support and resources to a Foreign Terrorist Organization, in violation of Title 18, United States Code, Section 2339B(a)(l). 2. This Office agrees to seek dismissal of Counts 2 through 8 of the Indictment as to the defendant at the time of sentencing. 3. The defendant is aware that the sentence will be imposed by the Court after considering the advisory Federal Sentencing Guidelines and Policy Statements (“the Sentencing Guidelines”). The defendant acknowledges and understands that the Court will compute an advisory sentence under the Sentencing Guidelines and that the applicable guidelines will be determined by the Court relying in part on the results of a pre-sentence investigation by the Court's probation office, which investigation will commence after the guilty plea has been entered. The defendant is also aware that, under certain circumstances, the Court may depart from the advisory sentencing guideline range that it has computed, and may raise or lower that advisory sentence under the Sentencing Guidelines. The defendant is further aware and understands that the Court is required to consider the advisory guideline range determined under the Sentencing Guidelines, but is not bound to impose a sentence within that advisory range; the Court is permitted to tailor the ultimate sentence in light of other statutory concerns, and such sentence may be either more severe or less severe than the Sentencing Guidelines' advisory range. Knowing these facts, the defendant understands and acknowledges that the Court has the authority to impose any sentence within and up to the statutory maximum authorized by law for the offense identified in paragraph 1 and that the defendant may not withdraw the plea solely as a result of the sentence imposed. © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 Williams, Brooke 10/28/2017 For Educational Use Only UNITED STATES OF AMERICA, v. Mohamed Hussein..., 2015 WL 5081206... 4. The defendant also understands and acknowledges that the Court may impose a statutory maximum term of imprisonment of up to fifteen (15) years, followed by a term of supervised release of not more than five (5) years. In addition to a term of imprisonment and supervised release, the Court may impose a fine of up to $250,000.00. 5. The defendant further understands and acknowledges that, in addition to any sentence imposed under paragraph 4 of this agreement, a special assessment in the amount of $100.00 will be imposed on the defendant. The defendant agrees that any special assessment imposed shall be paid at the time of sentencing. If the defendant is financially unable to pay the special assessment, the defendant agrees to present evidence to this Office and the Court at the time of sentencing as to the reasons for the defendant's failure to pay. 6. This Office reserves the right to inform the Court and the probation office of all facts pertinent to the sentencing process, including all relevant information concerning the offenses committed, whether charged or not, as well as concerning the defendant and the defendant's background. Subject only to the express terms of any agreedupon sentencing recommendations contained in this agreement, this Office further reserves the right to make any recommendation as to the quality and quantity of punishment. 7. The defendant is aware that the sentence has not yet been determined by the Court. The defendant also is aware that any estimate of the probable sentencing range or sentence that the defendant may receive, whether that estimate comes from the defendant's attorney, this Office, or the probation office, is a prediction, not a promise, and is not binding on this Office, the probation office or the Court. The defendant understands further that any recommendation that this Office makes to the Court as to sentencing, whether pursuant to this agreement or otherwise, is not binding on the Court and the Court may disregard the recommendation in its entirety. The defendant understands and acknowledges, as previously acknowledged in paragraph 3 above, that the defendant may not withdraw his plea based upon the Court's decision not to accept a sentencing recommendation made by the defendant, this Office, or a recommendation made jointly by both the defendant and the government. 8. This Office and the defendant agree that, although not binding on the probation office or the Court, this Office will recommend that the Court sentence the defendant to the statutory maximum term of fifteen (15) years' imprisonment to be followed by a five (5) year term of supervised release, for the violation in Count 1 of the Indictment. This Office and the defendant further agree, again without binding the probation office or the Court, that the defendant will reserve the right to argue for a downward variance at sentencing and that this Office will reserve the right to argue against any such variance and in favor of the maximum terms of imprisonment and supervised release. The parties stipulate to the applicability of the terrorism enhancement under Section 3 A 1.4 of the Sentencing Guidelines to any sentence in this case. 9. The defendant is aware that Title 18, United States Code, Section 3742, and Title 28, United States Code, Section 1291, afford the defendant the right to appeal the sentence imposed in this case. Acknowledging this, in exchange for the undertakings made by the United States in this plea agreement, the defendant hereby waives all rights conferred by Sections 3742 and 1291 to appeal any sentence imposed, including any restitution order, or to appeal the manner in which the sentence was imposed, unless the sentence exceeds the maximum permitted by statute or is the result of an upward departure and/or an upward variance from the advisory guideline range that the Court establishes at sentencing. The defendant further understands that nothing in this agreement shall affect the government's right and/or duty to appeal as set forth in Title 18, United States Code, Section 3742(b), and Title 28, United States Code, Section 1291. However, if the United States appeals the defendant's sentence pursuant to Sections 3742(b) and 1291, the defendant shall be released from the above waiver of appellate rights. By signing this agreement, the defendant acknowledges that the defendant has discussed the appeal waiver set forth in this agreement with the defendant's attorney. © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 Williams, Brooke 10/28/2017 For Educational Use Only UNITED STATES OF AMERICA, v. Mohamed Hussein..., 2015 WL 5081206... 10. This Office represents that the undersigned prosecutor is unaware of any information establishing the factual innocence of the defendant in the offense referred to in paragraph 1, above. This Office understands it has a continuing duty to provide such information establishing factual innocence of the defendant. The defendant understands that if this case proceeded to trial, this Office would be required to provide impeachment information relating to any informants or other witnesses. In addition, if the defendant raised an affirmative defense, this Office would be required to provide information in its possession that supports such a defense. Further, if this case proceeded to trial, this Office would be required to provide other information and materials in accordance with Fed. R. Crim. P. 16 and the Southern District of Florida's Standing Discovery Order in addition to the discovery already turned over to the defendant. In return for the Government's promises set forth in this agreement, the defendant waives the right to receive in discovery any such information and materials other than information and materials establishing the factual innocence of the defendant, and agrees not to attempt to withdraw the guilty plea or to file a collateral attack based on the existence of such information and materials other than information and materials establishing the factual innocence of the defendant. 11. The defendant agrees to the entry of a stipulated judicial order of removal pursuant to Title 8, United States Code, Sections 1228(c)(5) and 1182. Specifically, the defendant admits that he is a native and citizen of Kenya and that he is removable from the United States pursuant to Title 8, United States Code, Section 1182(a)(3)(B)(i)(I), as defined in Sections 1182(a)(3)(B)(iv) and 1182(a)(7)(A)(i)(I). A. Voluntary Waiver of Rights After consultation with counsel and understanding the legal consequences of doing so, the defendant knowingly and voluntarily waives the right to the notice and hearing provided for in Title 8, United States Code, Section 1228(c)(2), and further waives any and all rights to appeal, reopen, reconsider, or otherwise challenge this stipulated removal order. The defendant understands and knowingly waives his right to a hearing before an immigration judge or any other authority under the Immigration and Nationality Act (“INA”) on the question of the defendant's removability from the United States. The defendant further understands the rights the defendant would possess in a contested administrative proceeding and waives these rights, including the defendant's right to examine the evidence against him, to present evidence on his behalf, and to cross-examine the witnesses presented by the government. The defendant agrees to waive his rights to any and all forms of relief or protection from removal, deportation, or exclusion under the INA, as amended, and related federal regulations. These rights include, but are not limited to, the ability to apply for the following forms of relief or protection from removal: asylum; withholding of removal under Title 8, United States Code, Section 1231(b)(3); any protection from removal pursuant to Article 3 of the United Nations Convention Against Torture, including withholding or deferral of removal under 8 C.F.R. § 208; cancellation of removal; adjustment of status; registry; de novo review of a denial or revocation of temporary protected status (current or future); waivers under Title 8, United States Code, Sections 1182(h) or 1182(i); visa petitions; consular processing; voluntary departure or any other possible relief or protection from removal available under the Constitution, laws, or treaty obligations of the United States. As part of this agreement, the defendant specifically acknowledges and states that the defendant has not been persecuted in, and has no present fear of persecution in, Kenya on account of his race, religion, nationality, membership in a particular social group, or political opinion. Similarly, the defendant further acknowledges and states that the defendant has not been tortured in, and has no present fear of torture in, Kenya. The defendant hereby requests that an order be issued by this Court for his removal to Kenya. The defendant agrees to accept a written order of removal as a final disposition of any immigration proceedings and waives any and all rights to challenge any provision of this agreement in any United States or foreign court or tribunal. © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 Williams, Brooke 10/28/2017 For Educational Use Only UNITED STATES OF AMERICA, v. Mohamed Hussein..., 2015 WL 5081206... The defendant hereby agrees to make the judicial order of removal a public document, waiving his privacy rights, including his privacy rights under 8 C.F.R. § 208.6. At the request of the U.S. Attorney's Office, U.S. Immigration and Customs Enforcement (“ICE”) concurs with the government's request for a judicial order of removal. As a result of the above-referenced order, upon the completion of the defendant's criminal proceedings, including any sentence of incarceration, the defendant shall be removed to Kenya. B. Assistance in the Execution of Removal The defendant agrees to assist ICE in the execution of his removal. Specifically, the defendant agrees to assist ICE in the procurement of any travel or other documents necessary for the defendant's removal; to meet with and to cooperate with representatives of the country or countries to which the defendant's removal is directed; and, to execute those forms, applications, or waivers needed to execute or expedite the defendant's removal. The defendant further understands that his failure or refusal to assist ICE in the execution of his removal shall breach this plea agreement and may subject the defendant to criminal penalties under Title 8, United States Code, Section 1253. C. Re-entry and Penalties The defendant concedes that the entry of this judicial order of removal renders him permanently inadmissible to the United States. He agrees that he will not enter, attempt to enter, or transit through the United States without first seeking and obtaining permission to do so from the Secretary of the Department of Homeland Security or other designated representative of the U.S. government. 12. This is the entire agreement and understanding between this Office and the defendant. There are no other agreements, promises, representations, or understandings. WIFREDO A. FERRER UNITED STATES ATTORNEY Date: 5/28/1 By: <> BRIAN K. FRAZIER ASSISTANT UNITED STATES ATTORNEY Date: 5/28/15 <> SILVIA PINERA-VAZQUEZ, ESQ. ATTORNEY FOR DEFENDANT Date: 5/28/15 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 4 Williams, Brooke 10/28/2017 For Educational Use Only UNITED STATES OF AMERICA, v. Mohamed Hussein..., 2015 WL 5081206... <> MOHAMED HUSSEIN SAID DEFENDANT End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. © 2017 Thomson Reuters. No claim to original U.S. Government Works. 5