Legal Sidebari

Trying to Kill An FBI Agent: Sentence Too
Low
January 15, 2020
The United States Court of Appeals for the Second Circuit (Second Circuit) on December 27,
2019, rejected as “shockingly low” a seventeen-year prison term imposed on a terrorist who
attempted to kill an FBI agent. The defendant in United States v. Mumuni faced an eighty-five-
year term under the Federal Sentencing Guidelines. One member of the three-judge panel
dissented in part because he did not believe that the sentence was so “shockingly low” as to
require resentencing.
Background
Fareed Mumuni met Munther Omar Saleh, his co-defendant, through a college Islamic society.
Saleh described himself as a “full-fledged member of ISIS with a radicalizing gift.” The two
accompanied Nader Saadeh, their co-conspirator, when Saadeh purchased hiking boots and a
compass in anticipation of Saadeh’s trip to Syria to join ISIS. After his arrest, Mumuni said he
had checked out flights to Turkey from New York and had begun to raise money for the trip to
join ISIS. He also indicated at the time after his arrest that he planned to kill any officers who
tried to stop him.
Beyond overseas enlistment, Mumuni and Saleh discussed targeting police officers in this
country as well. Saleh offered Mumuni a pressure-cooker bomb. Mumuni asked if it was
religiously permissible to die in a suicide attack on the police. Saleh passed on an ISIS recruiter’s
assurance that it was. Mumuni pressed Saleh on the best way to proceed. Saleh told him to bomb
the police, run over his victims with a car or truck, and use the victims’ guns against other
officers.
Later, Saleh informed Mumuni that he planned to go on the attack and kill non-Muslims in this
country. Mumuni wished him luck. That night, authorities arrested Saleh and a companion after a
botched assault on an FBI agent who had been tailing them. The FBI then secured a warrant to
search Mumuni’s house for his cell phone. Mumuni’s mother admitted the heavily armed search
team. Hearing the commotion, Mumuni came downstairs from his bedroom with an eight-inch
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kitchen knife behind his back. Officers directed him to the living room where Mumuni stabbed at
an unarmed FBI agent with the kitchen knife. The agent was wearing an armored vest and a
metal magazine carrier that deflected the blows. Mumuni’s lawyer subsequently characterized
the attack as a “suicide by cop” effort.
Mumuni eventually pleaded guilty to five charges: (1) conspiracy to provide material support to
a terrorist organization; (2) attempting to provide material support to a terrorist organization;
(3) conspiracy to assault a federal officer; (4) assault on a federal officer with a deadly weapon;
and (5) attempted murder of a federal officer.
The sentencing process for federal crimes begins with the Federal Sentencing Guidelines. A
probation officer uses the Guidelines’ scoring system to determine the sentence recommended
under the Guidelines and prepare a presentencing report. Following a ruling on any disputes over
the probation officer’s report, the district court considers the recommendation along with various
statutory sentencing factors and imposes a sentence. The district court’s sentence can be
overturned on appeal only if it is either procedurally or substantively unreasonable. A sentence is
procedurally unreasonable if it involves a miscalculation of the Sentencing Guidelines, does not
account for any departure from the Guidelines’ sentencing range, fails to consider the statutory
sentencing factors, or is based on clearly erroneous facts. Under Second Circuit precedents, a
sentence is substantively unreasonable if it is “shockingly high, shockingly low, or otherwise
unsupportable as a matter of law.”
District Court
The probation officer calculated Mumuni’s Guidelines-recommended sentence at the bottom of
the chart – offense level 43, criminal history category IV. That rating merits a recommended
sentence of life imprisonment. However, a Guidelines-recommended sentence may not exceed
the maximum penalty for the crimes of conviction, and life imprisonment is thought to exceed
any sentence for a term of years. Thus, Mumuni’s Guidelines-recommended sentence had to be
“reduced” from life imprisonment to imprisonment for eighty-five years (the total of the
maximum terms for his five offenses).
The district court ultimately sentenced Mumuni to prison for seventeen years and Saleh for
eighteen years. The court appears to have considered their cases comparable and Saleh the more
culpable of the two. Mumuni’s lawyer urged several potentially mitigating factors. Mumuni was
only twenty-one years old at the time of his arrest. He had no prior criminal record. His crimes
resulted in neither physical injury nor property damage. Moreover, the district court credited
Mumuni’s clean disciplinary record during the three years he spent in pre-trial and pre-sentence
detention. The district court also seemed to question whether Mumuni intended to kill the agent
rather than to draw the fire of the other agents and whether, under the circumstances, the kitchen
knife could be considered a deadly weapon. There is no indication that the district court had any
qualms about accepting the fact that Mumuni’s attack on the FBI agent constituted an attempt to
provide material support for ISIS. The government appealed.
Second Circuit
The Second Circuit found Mumuni’s sentence of seventeen years substantively unreasonable and
sent it to back to the district court for resentencing with the instruction that “any subsequent
appeal in this case shall be directed to this panel.” The Second Circuit considered the district
court’s analysis wanting on three grounds. First, the panel found the district court’s rationale

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inconsistent with its acceptance of Mumuni’s guilty plea. If the district court doubted whether
Mumuni intended to kill the agent or that the kitchen knife was not a deadly weapon, it should
not have accepted his plea to those charges, the Second Circuit explained. Second, the panel
majority questioned the district court’s assessment of Mumuni’s and Saleh’s relative culpability.
Mumuni pleaded guilty to trying to kill an FBI agent. Saleh did not. Third, the Second Circuit
found that the district court had departed from the Guidelines-recommended sentence to a greater
extent than the mitigating circumstances warranted. The panel majority concluded that
Mumuni’s age, first-time-offender status, prison record, and testimonials were not enough to
justify reducing a sentence of eighty-five years in prison to one of seventeen years.
One member of the Second Circuit panel dissented in part. He did “not believe that the
seventeen-year sentence [was] shockingly low.” He would afford the district court greater
latitude to judge the comparative culpability of co-defendants and the weight of mitigating
factors.
Congressional Options
The 116th Congress has a number of pending proposals that would reinforce the Second
Circuit’s view of the seriousness of Mumuni’s offenses. Some would establish a mandatory
minimum for attempting to kill a federal judge or law enforcement officer, e.g., S. 1480. Others
would establish a separate domestic terrorism offense, e.g., H.R. 4187. Still others would curtail
the good-time credits available to federal prisoners convicted of terrorism offenses, e.g., S.
1684/H.R. 3067.

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Author Information

Charles Doyle

Senior Specialist in American Public Law




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