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Avoiding the Terrorism Enhancement

By David B. Savitz and Todd J. Thompson

I. Introduction

Since 9/11, terrorism cases have been aggressively prosecuted in the United States with great success.1 The centerpiece of the anti-terror push has been the material support statute, 18 U.S.C. § 2339B, which punishes knowingly providing material support or resources to a designated foreign terrorist organization (“DFTO”) or attempting or conspiring to do so.2 

In June 2015, Congress increased the penalty for violations of these offenses to a maximum of 20 years from the previous maximum of 15 years.3 If the offense results in the death of any person, the required prison sentence is any term of years or for life.4 A conviction of more than one such offense can result in consecutive sentences.5 

The guideline for material support offenses, USSG § 2M5.3, carries a base offense level of 26.6 If the offense involved dangerous weapons, firearms, explosives, funds to purchase any of those items, or funds or other support believing they will be used to commit a violent act, 2 leve

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