Appeals court yanks ISIS case from Houston judge
A federal appeals panel Thursday handed down a rebuke to a lifetime judge in Houston, ruling he’d erred in re-sentencing a Spring man who supported ISIS.
The 5th U.S. Circuit Court of Appeals opinion Thursday ordered the sentence for Asher Abid Khan to be wiped clean and calls for his third sentencing for assisting jihadists overseas be assigned to another trial judge because the first two hearings showed he was not only “biased” but also “fixed and inflexible” on considering the rationale for handing down an unusually short sentence.
The court also explicitly challenged the comportment of veteran U.S. District Judge Lynn N. Hughes, who has often drawn attention for his free-wheeling lectures to lawyers and other court participants.
“We reverse the defendant’s sentence as substantively unreasonable and remand for a second resentencing,” said the ruling written by Judge E. Grady Jolly. “And because the sentencing judge seems immovable from his views of the sentence he imposed, and because the judge displayed bias against the government and its lawyers we … reassign this case to a different judge..”
The ruling comes after Justice Department lawyers twice challenged Hughes’ sentence for Khan, 26, a recent engineering graduate of the University of Houston, who traveled to Syria to join ISIS several years ago before getting cold feet.
Khan admitted he recruited Sixto Ramiro Garcia, a friend from Klein Oak High School, to join the extremist insurgency, and investigators believe Garcia died fighting for ISIS.
Hughes gave Khan an 18month sentence, departing wildly from the sentences issued for more than 100 other U.S. defendants convicted of supporting ISIS overseas, according to data from the Program on Extremism at George Washington University. Those sentences are usually about nine years or more.
Hughes declined to add a terrorism enhancement to the sentence. The circuit ruled on the government’s first appeal of Khan’s sentence that Hughes made an error and needed to try again.
Apparently, the judges did not think he did any better the second time around. Hughes gave Khan the same 18-month sentence, but with more explanation than earlier. After finding the terrorism enhancement applicable, the judge stated on the record that there were reasons to depart downward. Khan’s lack of criminal history, studies, work, volunteering, steps toward rehabilitation, and age were all reasons to decrease the sentence. The judge did not respond to a request for comment and David Adler, Khan’s lawyer at trial and on appeal, declined to comment on the ruling.
Angela Dodge, spokesperson for the Acting U.S. Attorney, only offered, “We will let the record and ruling speak for itself at this time.”
But former U.S. Attorney Ryan K. Patrick, who faced off with the same judge when he tried to remove a female prosecutor from a case, said he thinks Hughes was removed from the case because he “showed zero respect” to the court’s previous ruling.
“For decades, this judge has been reversed time and again for everything from not being able to follow the law to racist(s) and chauvinist remarks,” Patrick said. He said no one at the downtown federal courthouse should be surprised by the 5th Circuit’s ruling.
“During re-sentencing, the judge factually and logically twisted himself into a pretzel,” he said. “It was hard to find the beginning or the end.”
Seamus Hughes, deputy director of the extremism program at GWU, who has tracked homegrown terrorism cases in the U.S. for years, said the appellate ruling was “highly unusual but everything about this case has been exactly that.”
“Khan got a considerably shorter sentence than others in his position,” he said. “So it’ll be interesting to see how a new judge looks at this prosecution with fresh eyes.”
In its ruling Thursday, the appeals court challenged the judge’s interpretation of acts Khan had agreed he committed.
They wrote that Hughes “sought to minimize Khan’s actions” in the second sentencing, “ignoring if not contradicting the facts to which Khan and the government had agreed and which formed the basis of his plea.” Hughes stated at the hearing that Garcia “was not recruited” by Khan, that the friends were “equally enthusiastic” about joining ISIS.
But the judge noted that Khan’s plea agreement made it “abundantly clear that Khan played a singular role in planning their travel to Turkey and was a necessary link in connecting Garcia to ISIS,” the ruling said.
The appeals judges said Hughes continued to downplay Hughes’ take on the case, stating, for example, that while ISIS militants’ actions were despicable, what Khan and Garcia did was “no different than two guys signing up for the Marines.”
In addition, the court found that Hughes mistakenly stated that after the trip to Turkey, Khan returned to his normal life. Actually, the court said, Khan admitted that he continued to encourage Garcia’s effort to join ISIS and pushed him “along a path that ended in his death.”
Their rationale for yanking the case from the 79year-old Reagan appointee — a rare act by appeals judges — was that Hughes was likely to have “substantial difficulty putting out of his mind his previously expressed views.”
Secondly, the judges explained, Hughes expressed hostility and prejudice toward the government at various times, indicating officials on the case were “lazy, useless, unintelligent, or arrogant.” They found the reassignment of the case to another judge “regrettable but necessary.”
Federal judges have broad latitude to rule from the bench, but Danielle Tarin, the prosecutor in the government’s second appeal, called Hughes’ sentence “an extravagant variance” from sentencing norms, noting in a September 2019 oral argument in New Orleans that although Khan returned to Houston, “Garcia is dead because of Khan’s actions.”
“And if Khan had not encouraged him to join ISIS, he would still be here today,” she told the court.
Adler, Khan’s defense attorney, said in oral argument that Hughes properly considered Khan’s remorse for what he’d done and his earnest work to help others avoid terrorist recruiters. The judge exercised discretion, he said.
At his 2018 sentencing, Khan expressed remorse for his actions and asked forgiveness of the sobbing mother and relatives of his late friend, Garcia. Khan was not present in the New Orleans hearing. He has long since completed his 18month prison term.