Convicted Texas terrorist and ISIS acolyte Asher Abid Khan caught two nice breaks in his relatively young life. The first came in 2014 when, as the 21-year-old Khan was in Turkey preparing to cross into Syria to join his beloved ISIS, the FBI and his family concocted a phony story that his mother had fallen mortally ill. He turned right around and flew home to Houston while a fellow Texan he recruited to meet him in Turkey for a joint border crossing went on to die in combat.
The second big break in Khan's life came after his 2017 Houston terrorism prosecution when Reagan-appointee U.S. District Judge Lynn Hughes disregarded sentencing guidelines for terrorism and handed down one of the lightest known sentences in the country for supporting overseas terrorist groups, a mere 18-month prison sentence. That's about 10 times less than the average sentence for similar crimes of providing material support to a terrorist organization that results in death. Khan had pleaded guilty to a single charge of providing such support to ISIS.
In handing down the light sentence, Judge Hughes betrayed an unusual sympathy for the University of Houston engineering student, issuing oddly paternal comments about Khan and youthful paths taken to "find themselves," in this case under the judge's unspecified tutelage.
Prosecutors, who'd asked for 20 years, were so outraged by the whole display they launched a highly rare appeal to the U.S. 5th Court of Appeals of a sentence they called "an extreme outlier," arguing that the sentence was technically wrong but also threatened to upend lawful standards legislatively enacted after 9/11 expressly to deter people like Khan from joining enemies trying to harm the United States.
Now, with freedom looking him in the eye at just two months left on his federal prison sentence, Khan's luck may have run out.
Appellate court Judges Priscilla R. Owen, Jerry E. Smith and James L. Dennis last month agreed with every argument mounted by the federal terrorism prosecutors and disagreed with all arguments posed by Khan's defense lawyer. The panel sent the matter back to Judge Hughes with a requirement that he redo the sentencing hearing.
As I have detailed in this sentencing saga here, here, and here, the legal debate centered around several key arguments that, had they succeeded, would undoubtedly have emboldened other judges across the country to dish out light punishment for terrorism crimes.
What Khan and Judge Hughes Argued
At issue for Khan and his attorney was whether a terrorism enhancement applied to Khan, an enhancement that Congress approved after 9/11 to help prosecutors add as much as 10 years to terrorism crime-related sentences. For the enhancement to apply, Khan would have had to demonstrate "specific intent calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct."
Khan said he wanted to join ISIS only as a way to fight Syrian President Bashar Assad.
But Khan argued the enhancement shouldn't apply because he was going to join ISIS only as a way to fight against Syrian President Bashar Assad only and not to coerce, intimidate or harm the American government. The Assad government couldn't have been a victim of ISIS coercion because the United States government "derecognized" the regime as a legitimate authority, they creatively argued.
Remember that Khan pleaded guilty to a higher-penalty charge of providing material support to a terrorist organization that resulted in death, this being the death of Sixto Ramiro Garcia. Judge Hughes rejected the evidence for this, suggesting even that there was no conclusive proof that Garcia was actually deceased.
Transcripts of the sentencing hearing show that Judge Hughes reasoned that, with no proof of the death, there were "degrees of terrorism" and that Khan's thoughts, motivations, feelings and acts cumulatively fell on the low-degree side of terrorism.
The judge figured a light sentence without the enhancement was more suitable to the circumstances since Khan didn't mean to kill Americans and didn't force his recruited friend, Sixto Ramiro Garcia, to join ISIS in combat that may not even have killed him, an assertion with which the prosecutors and the victim's mother vigorously disagreed.
What Government Prosecutors Argued
Houston prosecutors argued that Khan admitted traveling to join ISIS knowing full well that it was a foreign terrorist organization with a very well-known mission to target, coerce and influence United States policy and other governments besides Assad's. Helping any part of that was helping ISIS target and coerce the United States. Furthermore, the government prosecutors pointed to evidence that Khan was fully committed to violent jihadist ideology at the time. For instance, he expressed his "love" and near idolatry for the overtly violence-inciting lectures of anti-American al Qaeda recruiter Anwar Al-Awlaki who was so persuasive in his belief in violent jihad against Americans that the CIA killed him with a Hellfire missile.
Prosecutors argued that Khan knew ISIS was a terrorist group with a mission to target the U.S.
They pointed out that, far from just opposing the Assad regime alone, Khan emailed a friend that he "probably won't be able to come back to America or Australia" if he goes to Iraq or Syria to "study sharia" because "I'll be acting against their troops and agenda." Lastly, they asserted that Khan influenced his friend Garcia to join him, then provided key logistical and financial assistance without which the young man would never have reached the battlefields or be killed fighting for ISIS.
How the 5th Circuit Court Ruled
The New Orleans-based court panel decided Judge Hughes' conclusion that the terrorism enhancement didn't apply was "mistaken" because Khan well knew that ISIS is an enemy of the United States and that the group's terrorist acts were intended to intimidate or coerce the United States. Furthermore, Khan and Garcia planned to fight in Iraq as well as in Syria, undermining Khan's claim that he planned only to coerce a delegitimized Assad regime but also to coerce and influence the legitimate government of Iraq.
The panel ruled that Hughes made a procedural error in not applying the terrorism enhancement.
The panel also ruled that evidence proved Khan "encouraged Garcia to join ISIS and provided funds for him to accomplish that mission..."
Therefore, in not applying the terrorism enhancement, Judge Hughes committed a harmful "procedural error," the panel ruled.
"It is therefore necessary to vacate Khan's original sentence and remand for resentencing."
The Khan lucky streak has a chance to continue. While the matter has been sent back for resentencing, Judge Hughes can either impose a longer sentence, the same sentence or a shorter sentence, according to legal experts cited in one media report. And Judge Hughes, known for eccentric behaviors and rulings on unrelated cases, is expected to hold his ground.
Khan is scheduled to be released November 26 from a federal facility in San Antonio, Texas. The resentencing hearing before Judge Hughes is scheduled for November 20.
It's unclear how federal prosecutors may respond. But if they don't respond, Khan may walk out a free man less than a week later.
Todd Bensman is a fellow at the Middle East Forum and a senior national security fellow for the Center for Immigration Studies. Bensman previously led counterterrorism-related intelligence efforts for the Texas Intelligence and Counterterrorism Division (ICD) for nearly a decade.