United States v. Hammoud

381 F.3d 316, 2004 WL 2005622

Opinions

Affirmed by published opinion. Chief Judge WILKINS wrote the opinion, in which Judges WILKINSON, NIEMEYER, WILLIAMS, TRAXLER, KING, SHEDD, and DUNCAN joined and in which Judge WIDENER joined as to all except Part VII.C.

Judge WILKINSON wrote a concurring opinion.

Judge SHEDD wrote a concurring opinion.

Judge WIDENER wrote a concurring and dissenting opinion.

Judge MOTZ wrote a dissenting opinion, in which Judges MICHAEL and GREGORY joined.

Judge GREGORY wrote a dissenting opinion.

WILLIAM W. WILKINS, Chief Judge.

Mohammed Hammoud appeals the sentence imposed following his convictions of numerous offenses, all of which are connected to his support of Hizballah, a designated foreign terrorist organization (FTO). Hammoud also challenges two of his 14 convictions. The appeal was argued before a three-judge panel, but prior to decision the court voted to hear the case en banc in order to consider the effect of Blakely v. Washington, — U.S.-, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), on the federal sentencing guidelines.

Following argument en banc, the court entered an order affirming Hammoud’s convictions and sentence. See United States v. Hammoud, 378 F.3d 426, 2004 WL 1730309 (4th Cir. August 2, 2004). We now set forth the reasoning for our judgment.

I. Facts

The facts underlying Hammoud’s convictions and sentence are largely undisputed. We therefore recount them briefly.

A. Hizballah

Hizballah is an organization founded by Lebanese Shi’a Muslims in response to the 1982 invasion of Lebanon by Israel. Hiz-ballah provides various forms of humanitarian aid to Shi’a Muslims in Lebanon. However, it is also a strong opponent of Western presence in the Middle East, and it advocates the use of terrorism in support of its agenda. Hizballah is particularly opposed to the existence of Israel and to the activities of the American government in the Middle East. Hizballah’s general secretary is Hassan Nasserallah, and its spiritual leader is Sheikh Fadlallah.

B. Hammoud

In 1992, Hammoud, a citizen of Lebanon, attempted to enter the United States on fraudulent documents. After being detained by the INS, Hammoud sought asylum. While the asylum application was pending, Hammoud moved to Charlotte, North Carolina, where his brothers and cousins were living. Hammoud ultimately obtained permanent resident status by marrying a United States citizen.

At some point in the mid-1990s, Ham-moud, his wife, one of his brothers, and his cousins all became involved in a cigarette smuggling operation. The conspirators purchased large quantities of cigarettes in North Carolina, smuggled them to Michigan, and sold them without paying Michigan taxes. This scheme took advantage of the fact that Michigan imposes a tax of $7.50 per carton of cigarettes, while the North Carolina tax is only 50<t. It is estimated that the conspiracy involved a quantity of cigarettes valued at roughly $7.5 million and that the state of Michigan was deprived of $3 million in tax revenues.

In 1996, Hammoud began leading weekly prayer services for Shi’a Muslims in Charlotte. These services were often conducted at Hammoud’s home. At these meetings, Hammoud — who is acquainted with both Nasserallah and Fadlallah, as well as Sheikh Abbas Harake, a senior military commander for Hizballah — urged the attendees to donate money to Hizbal-lah. Hammoud would then forward the money to Harake. The Government’s evidence demonstrated that on one occasion, Hammoud donated $3,500 of his own money to Hizballah.

Based on these and other activities, Hammoud was charged with various immigration violations, sale of contraband cigarettes, money laundering, mail fraud, credit card fraud, and racketeering. Additionally, Hammoud was charged with conspiracy to provide material support to a designated FTO and with providing material support to a designated FTO, both in violation of 18 U.S.C.A. § 2339B (West 2000 & Supp.2004). The latter § 2339B charge related specifically to Hammoud’s personal donation of $3,500 to Hizballah.

At trial, one of the witnesses against Hammoud was Said Harb, who grew up in the same Lebanese neighborhood as Ham-moud. Harb testified regarding his own involvement in the cigarette smuggling operation and also provided information regarding the provision of “dual use” equipment (such as global positioning systems, which can be used for both civilian and military activities) to Hizballah. The Government alleged that this conduct was part of the conspiracy to provide material support to Hizballah. Harb testified that Hammoud had declined to become involved in providing equipment because he was helping Hizballah in his own way. Harb also testified that when he traveled to Lebanon in September 1999, Hammoud gave him $3,500 for Hizballah.

C. Conviction and Sentence

The jury convicted Hammoud of 14 offenses, only a few of which were particularly relevant to the calculation of Ham-moud’s sentence under the guidelines: money laundering and conspiracy to commit money laundering, see 18 U.S.C.A. § 1956(a)(1), (h) (West 2000 & Supp.2004); transportation of contraband cigarettes, see 18 U.S.C.A. § 2342 (West 2000); and providing material support to a designated FTO, see 18 U.S.C.A. § 2339B.

Applying the 2002 Guidelines Manual, the presentencing report (PSR) recommended that the base offense level correspond to the amount of tax evaded in the cigarette smuggling operation. See U.S. Sentencing Guidelines Manual § 2Sl.l(a)(l) (2002) (requiring application of “[t]he offense level for the underlying offense from which the laundered funds were derived”); id. § 2E4.1(a) (providing that the offense level for a violation of 18 U.S.C.A. § 2342 is the greater of 9 or “the offense level from the table in § 2T4.1 (Tax Table) corresponding to the amount of the tax evaded”). The PSR concluded that the amount of tax evaded was more than $2.5 million, resulting in a base offense level of 24. See id. § 2T4.1(J). The PSR recommended several upward adjustments to this base offense level: two levels for conviction under 18 U.S.C.A. § 1956, see id. § 2Sl.l(b)(2)(B); two levels for sophisticated money laundering, see id. § 2Sl.l(b)(3); four levels for Hammoud’s role as an organizer or leader of criminal activity that involved five or more participants, see id. § 3Bl.l(a); and two levels for obstruction of justice, see id. § 3C1.1. Most significantly, the PSR recommended a 12-level enhancement for committing a terrorist act, see id. § 3A1.4(a). The terrorism enhancement also required that Hammoud be assigned to Criminal History Category (CHC) VI, see id. § 3A1.4(b); otherwise, Hammoud had no criminal history points and would have been placed in CHC I. Ultimately, the PSR recommended assignment of an adjusted offense level of 46 (to be treated as offense level 43, see id. Chapter 5, Part A, comment, (n.2)), which required a sentence of life imprisonment regardless of Hammoud’s CHC.

Hammoud filed objections to the PSR, in which he challenged the factual basis for several of the upward adjustments. Ham-moud also objected to the calculation of his base offense level, asserting that it was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”). Specifically, Ham-moud argued that Apprendi required a jury finding, beyond a reasonable doubt, of the amount of tax loss involved in the offense. Hammoud also challenged the terrorism enhancement under Apprendi, maintaining that the enhancement was invalid without a jury finding that he possessed the requisite mental state. Ham-moud made similar arguments against the enhancements for his leadership role and obstruction of justice.

The district court conducted a sentencing hearing at which it rejected all of Hammoud’s sentencing challenges. The court therefore concluded that the guidelines provided for a sentence of life imprisonment. Because none of the offenses of conviction carried a statutory maximum of life imprisonment, the district court imposed the maximum sentence on each count and ordered all sentences to be served consecutively. See U.S.S.G. § 5G1.2(d). This resulted in the imposition of a sentence of 155 years.

We begin by addressing Hammoud’s numerous challenges to his convictions for providing (and conspiring to provide) material support to a designated FTO. We then consider Hammoud’s claim that Blakely operates to invalidate his sentence. Finally, we discuss Hammoud’s other challenges to his sentence.

II. Constitutionality of 18 U.S.C.A. § 2389B

Section 2339B, which was enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214, provides for a maximum penalty of 15 years imprisonment for any person who “knowingly provides material support or resources to a -foreign terrorist organization, or attempts or conspires to do so.” 18 U.S.C.A. § 2339B(a)(l). The term “material support” is defined as “currency or other financial securities, financial services, lodging, training, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets, except medicine or religious materials.” 18 U.S.C.A. § 2339A(b) (West 2000).¹

Hammoud maintains that § 2339B is unconstitutional in a number of respects.² Because Hammoud failed to bring these challenges before the district court, our review is for plain error. See Fed.R.Crim.P. 52(b); United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). To establish plain error, Hammoud must show that an error occurred, that the error was plain, and that the error affected his substantial rights. See Olano, 507 U.S. at 732, 113 S.Ct. 1770. Even if Hammoud makes this three-part showing, correction of the error remains within our discretion, which we “should not exercise ... unless the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. (alteration & internal quotation marks omitted).

A. Freedom of Association

Hammoud first contends that § 2339B impermissibly restricts the First Amendment right of association. See U.S. Const, amend. I (“Congress shall make no law ... abridging ... the right of the people peaceably to assemble .... ”). Hammoud concedes (at least for purposes of this argument) that Hizballah engages in terrorist activity. But, he also notes the undisputed fact that Hizballah provides humanitarian aid to citizens of Lebanon. Hammoud argues that because Hizballah engages in both legal and illegal activities, he can be found criminally liable for providing material support to Hiz-ballah only if he had a specific intent to further the organization’s illegal aims. Because § 2339B lacks such a specific intent requirement, Hammoud argues that it unconstitutionally restricts the freedom of association. Cf. United States v. Al-Arian, 2004 WL 1769226, at *4-*5, *7-*8 (M.D.Fla. Aug.4, 2004) (construing § 2339B as requiring proof of specific intent to further illegal activity because less stringent interpretation would raise constitutional questions regarding freedom of association and “due process requirements of personal guilt”).

It is well established that “[t]he First Amendment ... restricts the ability of the State to impose liability on an individual solely because of his association with another.” NAACP v. Claiborne Hardware Co., 458 U.S. 886, 918-19, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982); see Scales v. United States, 367 U.S. 203, 229, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961) (noting that a “blanket prohibition of association with a group having both legal and illegal aims ... [would pose] a real danger that legitimate political expression or association would be impaired”). Therefore, it is a violation of the First Amendment to punish an individual for mere membership in an organization that has legal and illegal goals. Any statute prohibiting association with such an organization must require a showing that the defendant specifically intended to further the organization’s unlawful goals. See Elfbrandt v. Russell, 384 U.S. 11, 15-16, 86 S.Ct. 1238, 16 L.Ed.2d 321 (1966). Hammoud maintains that because § 2339B does not contain such a specific intent requirement, his conviction violates the First Amendment.³

Hammoud’s argument fails because § 2339B does not prohibit mere association; it prohibits the conduct of providing material support to a designated FTO. Therefore, cases regarding mere association with an organization do not control. Rather, the governing standard is found in United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), which applies when a facially neutral statute restricts some expressive conduct. Such a statute is valid

if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

Id. at 377, 88 S.Ct. 1673.

Section 2339B satisfies all four prongs of the O’Brien test. First, § 2339B is clearly within the constitutional power of the government, in view of the government’s authority to regulate interactions between citizens and foreign entities. See Regan v. Wald, 468 U.S. 222, 244, 104 S.Ct. 3026, 82 L.Ed.2d 171 (1984) (holding that restrictions on travel to Cuba do not violate the Due Process Clause). Second, there can be no question that the government has a substantial interest in curbing the spread of international terrorism. See Humanitarian Law Project v. Reno, 205 F.3d 1130, 1135 (9th Cir.2000). Third, the Government’s interest in curbing terrorism is unrelated to the suppression of free expression. Hammoud is free to advocate in favor of Hizballah or its political objectives— § 2339B does not target such advocacy.

Fourth and finally, the incidental effect on expression caused by § 2339B is no greater than necessary. In enacting § 2339B and its sister statute, 18 U.S.C.A. § 2339A, Congress explicitly found that “foreign organizations that engage in terrorist activity are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct.” AEDPA § 301(a)(7). As the Ninth Circuit reasoned,

rat follows that all material support given to [foreign terrorist] organizations aids their* unlawful goals. Indeed, ... terrorist organizations do not maintain open books. Therefore, when someone makes a donation to them, there is no way to tell how the donation is used. Further, ... even contributions earmarked for peaceful purposes can be used to give aid to the families of those killed while carrying out terrorist acts, thus making the decision to engage in terrorism more attractive. More fundamentally, money is fungible; giving support intended to aid an organization’s peaceful activities frees up resources that can be used for terrorist acts.

Humanitarian Law Project, 205 F.3d at 1136 (footnote omitted). In light of this reasoning, the prohibition on material support is adequately tailored to the interest served and does not suppress more speech than is necessary to further the Government’s legitimate goal. We therefore conclude that § 2339B does not infringe on the constitutionally protected right of free association.

B. Overbreadth

Hammoud next argues that § 2339B is overbroad. A statute is over-broad only if it “punishes a substantial amount of protected free speech, judged in relation to the statute’s plainly legitimate sweep.” Virginia v. Hicks, 539 U.S. 113, 118-19, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003) (internal quotation marks omitted). The overbreadth must be substantial “not only in an absolute sense, but also relative to the scope of the law’s plainly legitimate applications.” Id. at 120, 123 S.Ct. 2191. It is also worth noting that when, as here, a statute is addressed to conduct rather than speech, an overbreadth challenge is less likely to succeed. See id. at 124, 123 S.Ct. 2191 (“Rarely, if ever, will an over-breadth challenge succeed against a law or regulation that is not specifically addressed to speech or to conduct necessarily associated with speech (such as picketing or demonstrating).”).

Hammoud argues that § 2339B is overbroad because (1) it prohibits mere association with an FTO, and (2) it prohibits such plainly legitimate activities as teaching members of an FTO how to apply for grants to further the organization’s humanitarian aims. As discussed above, § 2339B does not prohibit mere association with an FTO and therefore is not overbroad on that basis. Regarding Ham-moud’s second overbreadth argument, it may be true that the material support prohibition of § 2339B encompasses some forms of expression that are entitled to First Amendment protection.⁴ Cf. Humanitarian Law Project, 205 F.3d at 1138 (holding that “training” prong of material support definition is vague because it covers such forms of protected expression as “instructing] members of a designated group on how to petition the United Nations to give aid to their group”). Ham-moud has utterly failed to demonstrate, however, that any overbreadth is substantial in relation to the legitimate reach of § 2339B. See Hicks, 539 U.S. at 122, 123 S.Ct. 2191 (“The overbreadth claimant bears the burden of demonstrating, from the text of the law and from actual fact, that substantial overbreadth exists.” (alteration & internal quotation marks omitted)).

C. Vagueness

Hammoud next argues that the term “material support” is unconstitutionally vague. “The void-for-vagueness doctrine requires that penal statutes define crimes so that ordinary people can understand the conduct prohibited and so that arbitrary and discriminatory enforcement is not encouraged.” United States v. McLamb, 985 F.2d 1284, 1291 (4th Cir.1993). In evaluating whether a statute is vague, a court must consider both whether it provides notice to the public and whether it adequately curtails arbitrary enforcement. See Kolender v. Lawson, 461 U.S. 352, 357-58, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983).

Section 2339B easily satisfies this standard. As noted above, the term “material support” is specifically defined as a number of enumerated actions. Ham-moud relies on Humanitarian Law Project, in which the Ninth Circuit ruled that two components of the material support definition — “personnel” and “training”— were vague. See Humanitarian Law Project, 205 F.3d at 1137-38. The possible vagueness of these prongs of the material support definition does not affect Ham-moud’s conviction, however, because he was specifically charged with providing material support in the form of currency. See United States v. Rahman, 189 F.3d 88, 116 (2d Cir.1999) (per curiam) (rejecting vagueness challenge because allegedly vague term was not relevant to Appellant’s conviction). There is nothing at all vague about the term “currency.”

D. Designation of an FTO

Hammoud’s final challenge to the constitutionality of § 2339B concerns his inability to challenge the designation of Hizballah as an FTO. Section 2339B(g)(6) defines “terrorist organization” as “an organization designated [by the Secretary of State] as a terrorist organization under [8 U.S.C.A. § 1189 (West 1999 & Supp. 2004) ].” Section 1189(a)(8) explicitly prohibits a defendant in a criminal action from challenging a designation. Hammoud argues that his inability to challenge the designation of Hizballah as an FTO is a violation of the Constitution.

Hammoud primarily argues that § 1189(a)(8) deprives him of his constitutional right to a jury determination of guilt on every element of the charged offense.⁵ See United States v. Gaudin, 515 U.S. 506, 509-10, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995) (holding that the Fifth and Sixth Amendments “require criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt”). This right has not been violated, however. “[I]n determining what facts must be proved beyond a reasonable doubt the ... legislature’s definition of the elements of the offense is usually dispositive .... ” McMillan v. Pennsylvania, 477 U.S. 79, 85, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). Here, Congress has provided that the fact of an organization’s designation as an FTO is an element of § 2339B, but the validity of the designation is not. Therefore, Ham-moud’s inability to challenge the designation is not a violation of his constitutional rights. See United States v. Bozarov, 974 F.2d 1037, 1045-46 (9th Cir.1992) (holding that defendant’s inability to challenge administrative classification did not violate due process because the validity of the classification was not an element of the offense).

Hammoud next argues that § 1189(a) violates the nondelegation doctrine because the designation of an organization as an FTO is not subject to judicial review. In the first place, it is not clear whether the nondelegation doctrine requires any form of judicial review. Compare Bozarov, 974 F.2d at 1041-45 (rejecting claim that a congressional delegation of authority was unconstitutional because the agency’s action was not subject to judicial review), with Touby v. United States, 500 U.S. 160, 168-69, 111 S.Ct. 1752, 114 L.Ed.2d 219 (1991) (rejecting claim that temporary regulation violated nondelegation doctrine on basis that permanent regulation was subject to judicial review and temporary regulation could be challenged in criminal proceedings). In any event, an FTO designation is subject to judicial review — the designation may be challenged by the organization itself, see 8 U.S.C.A. § 1189(b).

III. Surveillance Evidence

A. FISA Materials

At trial, the Government introduced into evidence several recorded telephone conversations between Hammoud and others. These recordings were obtained through a wiretap pursuant to the Foreign Intelligence Surveillance Act of 1978 (FISA), 50 U.S.CA. §§ 1801-1862 (West 2003 & Supp.2004). Hammoud argues that the wiretap authorization was not based upon probable cause; that the official certification that the wiretaps were seeking foreign intelligence information was clearly erroneous; and that the Government failed to take adequate measures to ensure that the invasion of Hammoud’s privacy was no greater than necessary.

FISA was enacted to create a framework whereby the Executive could conduct electronic surveillance for foreign intelligence purposes without violating the rights of citizens. See United States v. Squillacote, 221 F.3d 542, 552 (4th Cir.2000). FISA created a special court composed of district court judges appointed by the Chief Justice of the United States; with certain exceptions not relevant here, a FISA judge must approve in advance all electronic surveillance of a foreign power or its agents. See 50 U.S.CA. §§ 1802, 1804.

1. Probable Cause

Before authorizing surveillance, a FISA judge must determine that there is probable cause to believe that, as is relevant here, “the target of the electronic surveillance is ... an agent of a foreign power” and that “each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by ... an agent of a foreign power.” 50 U.S.CA. § 1805(a)(3). A “foreign power” includes “a group engaged in international terrorism or activities in preparation therefor.” Id. § 1801(a)(4). An “agent of a foreign power” is “any person who ... knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power.” Id. § 1801(b)(2)(C). Hammoud concedes that Hizballah is a foreign power under FISA, but he argues that the Government did not have probable cause to believe that he was an agent of Hizballah.

“[Pjrobable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.” Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). In evaluating whether probable cause exists, it is the task of the issuing judge “to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit ..., there is a fair probability” that the search will be fruitful. Id. at 238, 103 S.Ct. 2317; see Mason v. Godinez, 47 F.3d 852, 855 (7th Cir.1995) (“Probable cause means more than bare suspicion but less than absolute certainty that a search will be fruitful.”).

Hammoud’s motion to suppress the FISA evidence was referred to a magistrate judge, who reviewed the FISA applications and supporting materials in camera and concluded that there was probable cause to believe that Hammoud was an agent of a foreign power. See 50 U.S.C.A. § 1806(f). The magistrate judge therefore recommended denial of the motion to suppress. The district court adopted this recommendation after considering Ham-moud’s objections to the report and recommendation, independently reviewing the materials, and conducting a hearing.

Having conducted our own de novo review of the materials, see Squillacote, 221 F.3d at 554, we reach the same conclusion as the magistrate judge and the district court. Further, upon review of the materials we are satisfied that the probable cause finding was not based “solely upon ... activities protected by the first amendment to the Constitution of the United States.” 50 U.S.C.A. § 1805(a)(3)(A). We will not elaborate on the contents of the materials in light of the Attorney General’s assessment that disclosure of the information contained in the application and supporting documents would endanger national security.

2. Certification

An application for a FISA warrant must include a certification by an executive branch official stating, inter alia, that the information sought is foreign intelligence information and that the purpose of the surveillance is to obtain such information.⁶ See id. § 1804(a)(7). When the target of surveillance is a United States person, the FISA judge must find that the certification is not clearly erroneous before issuing a warrant. See id. § 1805(a)(5). “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948).

Hammoud asserts that the certification was clearly erroneous for two reasons. First, he maintains that the Government failed to demonstrate that the information it sought to obtain through the proposed electronic surveillance was foreign intelligence information. Second, he claims that obtaining foreign intelligence information was not the “primary purpose” of the surveillance; rather, the purpose of the surveillance was to obtain evidence for use in the criminal investigation. Cf. United States v. Truong Dink Hung, 629 F.2d 908, 915-16 (4th Cir.1980) (suppressing fruits of electronic surveillance after date that investigation of defendant became “primarily a criminal investigation”).

a. Foreign Intelligence Information

FISA defines “foreign intelligence information” in pertinent part as

information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against—

(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;

(B) sabotage or international terrorism by a foreign power or an agent of a foreign power; or

(C) clandestine intelligence activities by ... an agent of a foreign power ....

50 U.S.C.A. § 1801(e)(1). We reject Hammoud’s contention that there is no evidence to support the Government’s certification regarding the character of the information sought to be obtained through electronic surveillance of Hammoud. The materials submitted in connection with the FISA application warrant a conclusion that the certification was not clearly erroneous.

b. Primary Purpose

The Government disputes that FISA requires the collection of foreign intelligence information to be the “primary purpose” of electronic surveillance. Among other things, it notes that Truong, in which this court first articulated the primary purpose test, was a pre-FISA decision. See generally In re Sealed Case, 310 F.3d 717, 722-27 (Foreign Int. Surv.Ct.Rev.2002) (per curiam) (tracing history of primary purpose requirement and concluding that requirement is not supported by text or legislative history of FISA). However, even if the primary purpose test applies, it is satisfied here. The information in the affidavit supports a conclusion that the FBI was primarily interested in obtaining foreign intelligence information.⁷

3. Minimization

In his last challenge to the FISA evidence, Hammoud argues that the Government failed to minimize the surveillance of him, as FISA requires. See 50 U.S.C.A. § 1805(a)(4); id. § 1801(h)(1) (defining “minimization procedures” as “specific procedures ... that are reasonably designed ... to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons”). Hammoud’s entire argument on this point consists of two assertions: that “[t]he surveillance records contained no foreign intelligence information” and that the records “contain many conversations about personal matters unrelated to any crime.” Br. for Appellant Mohamad Y. Hammoud at 51. We take Hammoud’s argument to be that the minimization procedures must have been inadequate because many personal conversations were recorded and obtained during the course of the surveillance.

In enacting FISA, Congress recognized that “no electronic surveillance can be so conducted that innocent conversations can be totally eliminated.” S.Rep. No. 95-701, at 39 (1978) (internal quotation marks omitted), reprinted in 1978 U.S.C.C.A.N. 3973, 4008. The minimization requirement obligates the Government to make a good faith effort to minimize the acquisition and retention of irrelevant information. See id. at 39^40. However, it is not always immediately clear into which category a particular conversation falls. A conversation that seems innocuous on one day may later turn out to be of great significance, particularly if the individuals involved are talking in code. Cf. United States v. Salameh, 152 F.3d 88, 154 (2d Cir.1998) (per curiam) (noting that two conspirators involved in the 1993 bombing of the World Trade Center in New York referred to the plot as the “study” and to relevant materials as “university papers”). In view of these considerations, the mere fact that innocent conversations were recorded, without more, does not establish that the government failed to appropriately minimize surveillance.

B. Canadian Intelligence Summaries

Between February 1996 and September 2000, the Canadian Security Intelligence Service (CSIS) conducted electronic surveillance of a coconspirator in Canada. A number of these recordings were destroyed pursuant to routine procedures. However, summaries and analysis of the conversations were prepared by a CSIS communications analyst shortly after each conversation was recorded. At trial, the Government sought to introduce the factual portions of some of these summaries (the analysis was redacted from the summaries before submission to the jury).

During pretrial proceedings, the district court ruled that the CSIS summaries were admissible as recorded recollections, see Fed.R.Evid. 803(5), and as public records, see id. Rule 803(8). At trial, Hammoud stipulated to the admissibility of the summaries. See J.A. 2827 (‘Tour Honor, with respect to these exhibits, there’s a stipulation among the parties that the Canadian Security Intelligence Service’s factual summaries are admissible pursuant to Federal Rule of Evidence 803(5), past recollection recorded exception to hearsay rules and that they are authentic and accurate.”).

Hammoud now maintains that admission of the summaries was error. However, all of his arguments are negated by his stipulation; thus, Hammoud waived any objection. See United States v. Aptt, 354 F.3d 1269, 1280 (10th Cir.2004) (explaining that “[a] defendant is free to waive objections to evidence by stipulation” and that “admission of a stipulated exhibit is not error ..., even if it would not be admissible in the absence of such a stipulation”).

IV. Expert Testimony

During trial, the district court allowed Matthew Levitt to testify as an expert regarding terrorist organizations and Hiz-ballah. Hammoud argues that the admission of Levitt’s testimony was improper on two grounds: first,- that the testimony should have been excluded in light of the Government’s failure to comply with a discovery order; and second, that Levitt’s testimony failed the standard for the admissibility set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Hammoud also argues that the district court abused its discretion in refusing to allow him to cross-examine Levitt regarding classified matters. We reject all three of these claims.

A. Rule 16 Violation

The district court ordered the Government to produce all discovery by October 31, 2001; the order stated that “[discovery produced after that date will not be admitted at trial absent a showing of extreme need.” J.A. 347. On November 1, the Government filed a notice of compliance which included a section entitled “Discovery material not yet available to defendants.” Id. at 367. In this section, the Government informed the court that it was still seeking the aid of an expert on Hizballah. The Government also acknowledged that it would have to obtain leave of the court prior to offering such expert testimony at trial. In response to a motion filed by Hammoud’s codefendant (Chawki Hammoud, who is Hammoud’s brother), the Government informed the court on December 11 that it still had not obtained an expert on Hizballah; the Government stated that “[w]hen it has [found an expert], notice will be given and litigation, including the timeliness of disclosure, can commence.” Id. at 410. In the meantime, the Government requested that the motions deadline be extended to account for ongoing discovery.

On April 10, 2002, the Government filed a notice of its intent to call Levitt, see Fed.R.Crim.P. 16(a)(1)(G),⁸ and requested leave of the court to admit Levitt’s testimony. The Government noted that Levitt expected to complete a summary of his testimony by April 26, at which point it would be submitted to the defense. The Government filed the notice and summary on May 3.

At a hearing concerning the timeliness of the disclosure, Hammoud’s attorney argued that he did not have adequate time to prepare to cross-examine Levitt. However, defense counsel also told the court that neither he nor Hammoud wanted a continuance. Noting that the Government had kept the court and defense counsel apprized of its search for an expert, the district court declined to sanction the Government by excluding Levitt’s testimony.

Rule 16 grants the district court substantial discretion in dealing with a violation of a discovery order.⁹ See Fed. R.Crim.P. 16(d)(2) (providing that a failure to comply may be remedied by an order directing compliance, a continuance, exclusion of the evidence, or “any other order that is just under the circumstances”); see also United States v. Lopez, 271 F.3d 472, 483 (3d Cir.2001) (“[0]n its face, the Rule does not require a district court to do anything — Rule 16 merely states that the court ‘may’ take [one of the enumerated] actions.”). In determining what sanction, if any, to impose for a discovery violation, the district court

must weigh the reasons for the government’s delay and whether it acted intentionally or in bad faith; the degree of prejudice, if any, suffered by the defendant; and whether any less severe sanction will remedy the prejudice and the wrongdoing of the government.

United States v. Hastings, 126 F.3d 310, 317 (4th Cir.1997). The court must impose the least severe sanction that will “adequately punish the government and secure future compliance.” Id. A continuance is the preferred sanction. See United States v. Golyansky, 291 F.3d 1245, 1249 (10th Cir.2002) (“It would be a rare case where, absent bad faith, a district court should exclude evidence rather than continue the proceedings.”). The sanction decision is reviewed for abuse of discretion. See Hastings, 126 F.3d at 316.

Here, the district court acknowledged the Government’s discovery violation but elected not to impose a sanction after defense counsel declined to accept a continuance. Its refusal to exclude Levitt’s testimony was not an abuse of discretion. The Government made clear, well before the discovery deadline, that it was seeking an expert to testify that Hammoud was the leader of a Hizballah cell. Additionally, the Government detailed its difficulties in obtaining such an expert and promptly identified Levitt when he had been retained. Under these circumstances, the district court did not abuse its discretion in refusing to exclude Levitt’s testimony.

B. Daubert

Federal Rule of Evidence 702 provides that “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” The Supreme Court has held that Rule 702 requires the district court to perform a gatekeeping function to “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert, 509 U.S. at 589, 113 S.Ct. 2786.

When, as here, the proffered expert testimony is not scientific in nature, the district court must still perform the gatekeeping function. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-49, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). In determining whether proffered expert testimony is reliable, the district court has broad discretion to consider whatever factors bearing on validity that the court finds to be useful; the particular factors will depend upon the unique circumstances of the expert testimony involved. See id. at 152-53, 119 S.Ct. 1167. “The court, however, should be conscious of two guiding, and sometimes competing, principles”: (1) “that Rule 702 was intended to liberalize the introduction of relevant expert evidence”; and (2) “that due to the difficulty of evaluating their testimony, expert witnesses have the potential to be both powerful and quite misleading.” Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir.1999) (internal quotation marks omitted).

The district court conducted a Daubert hearing, during which Levitt testified that his expertise regarding Hizballah derived from his previous experience with the FBI and his current employment with a think tank, at which he specialized in Middle Eastern terrorist groups. Levitt testified that as part of his duties, he spent “a lot of [his] time ... on Hizballah.” J.A. 2357. Levitt described his general methodology as follows:

Well, we’re talking about a social science here. This is not scientific research. Basic academic intellectual research combined with the techniques I was taught in ... various courses I took as an analyst for the government both taught that the best way to go about making sense of something in the social sciences is to collect as much information as possible and to balance each new incoming piece of information against the body of information that you’ve built to that point.

... So it’s a constant vetting process. And the more rigorous you are, the better your information will be.

J.A. 2344-45. Levitt further testified that his work was subject to “tremendous peer review,” id. at 2345, and that his regular practice was to discuss his findings and conclusions with others to ensure their soundness. Levitt stated that he followed this process in reaching his opinion in this case.

In view of this testimony, the district court did not abuse its discretion in qualifying Levitt as an expert. Levitt identified his methodology as one generally employed in the social sciences, and Hammoud did not challenge this testimony. Additionally, Levitt testified that he actually applied this methodology in reaching his conclusions regarding this case.

Hammoud also argues that Levitt’s testimony should have been excluded on the grounds that it was not helpful to the jury. Again, the district court did not abuse its discretion. Levitt testified regarding the structure of Hizballah and identified its leaders. Levitt also explained the significance of Hammoud’s contact with those leaders (most notably Sheikh Eadlallah, the spiritual leader of Hizballah). And, Levitt discussed the nature of Hizballah’s funding activities with specific reference to Hammoud’s activities. This testimony was critical in helping the jury understand the issues before it.

C, Classified Information

During the Daubert hearing and at trial, the district court prohibited defense counsel from questioning Levitt regarding classified matters relating to Levitt’s employment with the FBI. Hammoud maintains that this restriction violated the Classified Information Procedures Act (CIPA), 18 U.S.C.A.App. 3 §§ 1-16 (West 2000 & Supp.2004), and the Confrontation Clause of the, Sixth Amendment. We reject both of these contentions.

1. CIPA

CIPA was enacted in 1980 to combat the problem of “graymail,” an attempt by a defendant to derail a criminal trial by threatening to disclose classified information. See S.Rep. No. 96-823, at 2 (1980), reprinted in 1980 U.S.C.C.A.N. 4294, 4295; see also id. at 3 (noting that problem of graymail is not “limited to instances of Unscrupulous or questionable conduct by defendants since wholly proper defense attempts to obtain or disclose classified information may present the government with the same ‘disclose or dismiss’ dilemma” (internal quotation marks omitted)), reprinted in 1980 U.S.C.C.A.N. at 4296-97. CIPA requires a criminal defendant who “reasonably expects to disclose or to cause the disclosure of classified information in any manner in connection with any trial or pretrial proceeding” to notify the district court and the Government “within the time specified by the court or,, where no time is specified, within thirty days prior to trial.” 18 U.S.C.A.App. 3 § 5(a). The Government may then request a hearing, at which the district court must determine whether the classified information in question is relevant and admissible. See id. § 6(a).

During the course of the Daubert hearing regarding Levitt’s expert testimony, the district court refused to allow Hammoud to cross-examine Levitt regarding classified matters relating to Levitt’s former employment with the FBI. Ham-moud argues that this information was relevant and material to his cross-examination of Levitt and that its non-disclosure violated CIPA; he further maintains that the proper remedy for the non-disclosure is exclusion of Levitt’s testimony. We disagree.

The triggering event for the imposition of sanctions under CIPA is the Government’s refusal to comply with an order of the district court directing the disclosure of classified information. See 18 U.S.CAApp. 3 § 6(e). Such a refusal must necessarily be preceded by a district court determination that the classified information is relevant and admissible. See id.; United States v. Smith, 780 F.2d 1102, 1105 (4th Cir.1985) (en banc). Here, however, the district court determined that the classified information related to Levitt’s work at the FBI was not relevant because he did not rely on that information in forming his opinion. Because the district court never ordered the disclosure of classified information (and properly so, as we discuss below), the Government never had occasion to refuse to produce the information. We therefore conclude that CIPA is not implicated.¹⁰

2. Confrontation Clause

Hammoud next maintains that the district court violated his Sixth Amendment right to confront the witnesses against him when the court refused to allow him to cross-examine Levitt regarding classified matters. We conclude that this claim fails because Levitt did not rely on any classified information in forming his opinion regarding Hammoud’s membership in Hizballah.

The Constitution guarantees. the right of a criminal defendant “to be confronted with the witnesses against him.” U.S. Const, amend. VI. “The main and essential purpose of confrontation is to secure for the [defendant] the opportunity of cross-examination.” Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) (emphasis & internal quotation marks omitted). Indeed, “[c]ross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.” Id. at 316, 94 S.Ct. 1105. Nevertheless, the district court retains “wide latitude ... to impose reasonable limits on ... cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). We review such limitations for abuse of discretion. See United States v. Turner, 198 F.3d 425, 429 (4th Cir.1999).

In support of this claim, Hammoud relies on United States v. Baptista-Rodriguez, 17 F.3d 1354 (11th Cir.1994), in which the Eleventh Circuit ruled that the defendant (Diaz) suffered a Confrontation Clause violation when the district court prohibited him from cross-examining a witness regarding the existence and contents of a classified document. See id. at 1366— 67. The document in question related to Diaz’s defense that he was working with the FBI at the time of the drug transaction with which he was charged. See id. at 1366-68.

The Government, in contrast, relies on two First Circuit cases, United States v. Angiulo (Angiulo I), 847 F.2d 956 (1st Cir.1988), and United States v. Angiulo (Angiulo II), 897 F.2d 1169 (1st Cir.1990), both of which involved expert testimony regarding the defendants’ relationship to La Cosa Nostra. See Angiulo II, 897 F.2d at 1187; Angiulo I, 847 F.2d at 973. The district court prohibited the defendants in each case from questioning the expert about the identity of the informants whose information formed much of the basis for the expert’s knowledge of La Cosa Nostra. The First Circuit affirmed, reasoning:

[T]he experts acknowledged that information gleaned from informants over the course of their FBI careers was part of the vast mix of material that contributed to their background expertise on La Cosa Nostra. This expertise, in turn, enabled them to listen to the tapes and form opinions on defendants’ criminal activities. The fact that informant information furnished some part of the experts’ background knowledge does not implicate the sixth amendment. Regardless of the information that contributed to their background expertise, the experts’ testimony regarding the particular charges against these defendants was based solely on an analysis of the tape recordings [that were played at trial].

Angiulo II, 897 F.2d at 1188; see Angiulo I, 847 F.2d at 974 (employing similar reasoning).

We agree with the Government that the situation before us is more akin to the Angiulo cases than to Baptista-Rodriguez. Levitt stated during the Daubert hearing that while his general knowledge regarding Hizballah derived in part from his classified work with the FBI, he did not rely on any classified information in forming his opinion regarding Hammoud’s relationship to Hizballah. Rather, as did the experts in the Angiulo cases, Levitt based his opinion regarding Hammoud’s Hizbal-lah membership on unclassified surveillance evidence obtained by the Government during the course of its investigation. The classified information therefore was not relevant to the question of Hammoud’s guilt, and the district court did not abuse its discretion in refusing to allow cross-examination regarding classified materials.

V. Videotapes

Hammoud next asserts that the district court abused its discretion in allowing the Government to play for the jury some of the Hizballah videdtapes found in his apartment. Hammoud claims that the contents of the tapes were irrelevant and, alternatively, that if the tapes were relevant, they were unduly prejudicial. See Fed.R.Evid. 403 (“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice .... ”).¹¹ Hammoud also argues that the manner in which the Government presented the videotape evidence unfairly prejudiced him. We review the evidentiary rulings of the district court for abuse of discretion. See United States v. Leftenant, 341 F.3d 338, 342 (4th Cir.2003), cert. denied, — U.S. -, 124 S.Ct. 1183, 157 L.Ed.2d 1215 (2004). Hammoud’s challenge to the means of presenting the videotape evidence will succeed only if “the conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process.” United States v. Scheetz, 293 F.3d 175, 185 (4th Cir.2002) (internal quotation marks omitted).

A. Relevance

The indictment alleged that as one of the overt acts of the conspiracy to provide material support to an FTO, Ham-moud conducted meetings in his home during which he spoke about Hizballah operations and played Hizballah videotapes. At trial, the Government sought to prove that the meetings were not solely religious meetings, as Hammoud contended, but rather were integral to the operation of a Hizballah cell in Charlotte. In support of this claim, the Government played excerpts from some of the videotapes seized from Hammoud’s home. The segments played by the Government included speeches by Hizballah leaders praising men who had martyred themselves and crowds shouting “Death to America” and “Death to Israel.” J.A. 2225. Another tape depicted a group swearing to become martyrs “to shake the grounds under our enemies, America and Israel.” Id. at 2388 (internal quotation marks omitted). Most significantly, some of the tapes depicted Hizballah military operations and encouraged donations from those who could not participate directly in Hizballah operations.

We conclude that the district court did not abuse its discretion in ruling that the excerpts played for the jury were relevant. The excerpts played for the jury are probative of Hammoud’s intent during the prayer meetings- — i.e., to solicit donations to Hizballah — and his knowledge of, and agreement with, the terrorist objectives of Hizballah.

B. Unfair Prejudice

Hammoud also argues that even if the tapes were relevant, they should have been excluded because their probative value was substantially outweighed by the danger of unfair prejudice. Rule 403 requires exclusion of evidence “only in those instances where the trial judge believes that there is a genuine risk that the emotions of the jury will be excited to irrational behavior, and that this risk is disproportionate to the probative value of the offered evidence.” United States v. Powers, 59 F.3d 1460, 1467 (4th Cir.1995) (internal quotation marks omitted). The mere fact that the evidence will damage the defendant’s case is not enough — the evidence must be unfairly prejudicial, and the “unfair prejudice must substantially outweigh the probative value of the evidence.” United States v. Grimmond, 137 F.3d 823, 833 (4th Cir.1998) (internal quotation marks omitted) (emphasis added).

In advocating for the admissibility of the video excerpts, the Government relies on United States v. Salameh, 152 F.3d 88 (2d Cir.1998) (per curiam). In Salameh, the Second Circuit addressed a Rule 403 challenge to the admission of certain materials — including a video of the bombing of an American embassy and instructions for making bombs — in the trial of those accused of the 1993 World Trade Center bombing. See id. at 110. The court concluded that the district court had not abused its discretion in ruling that the materials were not unfairly prejudicial, reasoning that even though the items “bristled with strong anti-American sentiment and advocated violence against targets in the United States,” the danger of unfair prejudice did not substantially outweigh the probative value of the evidence. Id. at 111.

In arguing that the video excerpts were unfairly prejudicial, Hammoud relies on United States v. Ham, 998 F.2d 1247 (4th Cir.1993), and United States v. Merino-Balderrama, 146 F.3d 758 (9th Cir.1998). In Ham, this court reversed a conviction on the basis that evidence of defendants’ homosexuality and of rampant child molestation in a religious community headed by the defendants was unduly prejudicial. See Ham, 998 F.2d at 1252-54. We concluded that the evidence was highly prejudicial and that its probative impact was limited because, although relevant to prove motive for the charged murder, it was neither “direct” nor “essential” proof of motive. Id. at 1253.

In Merino-Balderrama, the Ninth Circuit reversed a conviction for possession of child pornography on the basis that the district court abused its discretion in allowing the Government to play for the jury excerpts of films containing child pornography that had been found in the defendant’s possession. See Merino-Balderrama, 146 F.3d at 760. The defendant had offered to stipulate that the tapes contained child pornography. The court held that in view of the proffered stipulation, the Government would only be required prove scienter, i.e., that the defendant knew the films contained child pornography. And, the court concluded that in light of the covers of the films — photographs making clear that the film was child pornography — the probative value of the contents of the films was outweighed by their prejudicial impact. See id. at 762-63.

We conclude that the district court did not abuse its discretion in allowing the Government to play portions of the tapes for the jury. As noted above, the Government was required to demonstrate that Hammoud knew of Hizballah’s unlawful activities, and the contents of the videos were probative evidence of Hammoud’s knowledge. The tapes also provided evidence of Hammoud’s motive in raising funds for Hizballah and tended to contradict Hammoud’s claim that he sympathized only with the humanitarian goals of the organization. See Salameh, 152 F.3d at 111 (noting that even though motive is not an element of any offense, “evidence. offered to prove motive is commonly admitted”). This case is thus unlike Ham, in which the proffered evidence was neither directly relevant to motive nor highly probative of motive. And, unlike in Merino-Balderrama, there was no less prejudicial alternative for the Government in proving Hammoud’s knowledge of Hizballah’s activities.¹²

C. Manner of Presentation

Hammoud also challenges the manner in which the Government presented the videotapes, arguing that the tapes were repeatedly rewound and replayed in order to heighten their prejudicial impact. The record does not bear out this claim. The Government played the tapes for the jury while a linguist translated the statements being made. At several points, the linguist asked for the tape to be rewound because his translation had fallen behind the action on the video. The following is a representative episode:

Our slogan was, is and will remain to be Death to Israel. And the crowd repeats the same thing three times.

Mr. Nasserallah says, And along The Resistance path — can you rewind it just a little?

It says, Along The Resistance path, our bodies bleed, our bodies fall to the ground and our heads tumble above our heads — I’m sorry, our houses tumble above our heads.

It says — I’m sorry, can you rewind just a little bit?

Okay. He talks — I missed that part because of the rewinding, but he talks about The Resistance continues....

J.A. 2227. We see nothing improper or prejudicial in rewinding the videos so that the translator could keep up.

Hammoud further asserts that it was improper for the Government to use a translator at all — he contends that the Government should have simply played the tapes and allowed the jury to follow along with a printed translation. We disagree. It would have been exceedingly difficult, if not impossible, for a jury to follow along with a written, English translation of a videotape filmed entirely in Arabic. The district court did not abuse its discretion in determining that playing the video with simultaneous oral translation was a more effective and helpful way of presenting the evidence to the jury.

VI. Miscellaneous Challenges to Convictions

Hammoud raises several additional challenges to his convictions that may be addressed more briefly.

A. Constructive Amendment

Count 71 of the indictment alleged that the Charlotte Hizballah cell was a racketeering enterprise, one of the purposes of which was the donation of illegally acquired funds to Hizballah. Count 72 of the indictment charged Hammoud and others with conspiracy to provide material support to a designated FTO. Count 72 included allegations regarding Hammoud’s activities in Charlotte as well as Said Harb’s involvement in procuring “dual-use” equipment in Canada. Hammoud argues that the Government (through its presentation of evidence and closing argument) and the district court (through its instructions to the jury) constructively amended the indictment by effectively combining counts 71 and 72 into a single charge. See United States v. Floresca, 38 F.3d 706, 710 (4th Cir.1994) (en banc) (“A constructive amendment to an indictment occurs when either the government ..., the court ..., or both, broadens the possible bases for conviction beyond those presented by the grand jury.”).

Counts 71 and 72 were clearly separate charges, and the district court properly instructed the jury as to each. During his closing argument, Hammoud’s counsel argued that while the indictment charged a single conspiracy in count 72, the evidence supporting that count actually demonstrated the existence of two conspiracies — one in Canada, involving the procurement of equipment, and one in Charlotte.¹³ In response to this claim, the Government argued in rebuttal that the evidence in support of count 72 established the existence of a single conspiracy.

During deliberations, the jury repeatedly asked questions about count 72, even after it had reached a verdict on all of the other counts, including count 71. In particular, the jury asked whether, in order to convict, it had to conclude that the Canadian activities and the Charlotte activities were part of the same conspiracy. In response, and apparently without objection from Hammoud, the district court repeated its instruction regarding single and multiple conspiracies.

Subsequently, the jury asked a question that neither the court nor the parties understood: “Do we have to find one conspiracy or a conspiracy out of multiple utilizing only some of the manner and means of conspiracy.” J.A. 3648 (internal quotation marks omitted). The response of the court, as recorded in the transcript, was equally confusing: “You must find, in order to convict on Count 72, that there was a single conspiracy, not multiple conspiracies. Multiple conspiracies with a common goal. Not what was charged.” Id. The first sentence is a correct instruction; the second and third sentences, however, arguably contradicted it. A short time later, the jury asked two additional questions: “Is Count 72 that there’s one single and only one conspiracy to be proved?” and “Does it necessarily have to include all of the matter and means of the conspiracy as alleged in the count?” Id. at 3649 (internal quotation marks omitted). The district court correctly answered the first question “yes” and the second question “no.”

Hammoud construes all of this discussion regarding count 72 as a discussion regarding counts 71 and 72, and he alleges that the district court improperly combined the two counts. As should be clear from the above discussion, this is not at all what happened. All of the questions from the jury concerned whether count 72 involved a single conspiracy or multiple conspiracies. Therefore, there was no constructive indictment.

B. Cross-Examination of Hammoud

Hammoud testified in his own defense, asserting that he supported the humanitarian work of Hizballah but not its terrorist activities. On cross-examination, the Government questioned Hammoud regarding his awareness of violent acts by Hizballah. Hammoud now asserts that such questions constituted “fearmonger-ing” and violated his right to a fair trial. We conclude that there was no error here because the prosecutor’s questions were intended to undermine Hammoud’s claim that he supported only the humanitarian aims of Hizballah and that he disagreed with the violent tactics employed by Hiz-ballah.

C. Testimony Regarding Dual-Use Equipment

In his final challenge to his convictions, Hammoud asserts that the district court should not have allowed expert testimony regarding the possible aviation applications of equipment purchased in Canada by Said Harb and others, arguing that the sole purpose of such testimony was to “instill[ ] fear and prejudice in a post-September 11 jury.” Br. for Appellant Moha-mad Y. Hammoud at 112. We agree with the Government that this testimony was relevant to prove the “material support” conspiracy charged in Count 72 of the indictment and was not unfairly prejudicial.

The admission of this testimony was not plain error.

VII. Blakely v. Washington

We now turn to the issue that prompted us to hear this case en banc: the effect of Blakely on the federal sentencing guidelines.¹⁴ The question we must address is whether the rationale of Blakely (and Ap-prendi before it) requires indictment and a jury finding, beyond a reasonable doubt, of facts that result in an increase in the offense level and corresponding guideline range. Little more than a month after Blakely was handed down, the federal courts are already divided over this question. The Seventh and Ninth Circuits have ruled that Blakely does impact the guidelines. See United States v. Ameline, 376 F.3d 967, 974 (9th Cir.2004); United States v. Booker, 375 F.3d 508, 511 (7th Cir.2004) (“Blakely dooms the guidelines insofar as they require that sentences be based on facts found by a judge.”), cert. granted, — U.S.-, 125 S.Ct. 11, — L.Ed.2d-, 73 USLW 3073 (U.S. Aug. 2, 2004) (No. 04-104). In contrast, the Fifth and Sixth Circuits have held that Blakely does not affect the guidelines. See United States v. Koch, 2004 WL 1870438, at *1 (6th Cir. Aug.13, 2004) (en banc) (order affirming judgment of the district court) (“We hold ... that the decision of the U.S. Supreme Court in Blakely ... does not invalidate the appellant’s sentence under the federal Sentencing Guidelines.”); United States v. Pineiro, 377 F.3d 464, 465-66 (5th Cir.2004) (“Having considered the Blakely decision, prior Supreme Court cases, and our own circuit precedent, we hold that Blakely does not extend to the federal Guidelines .... ”). The Second Circuit certified questions regarding the application of Blakely to the guidelines to the Supreme Court, see United States v. Penaranda, 375 F.3d 238, 247 (2d Cir.2004), but in the meantime has declined to apply Blakely to the guidelines, see United States v. Mincey, 380 F.3d 102, 2004 WL 1794717, at *3 (2d Cir. Aug.12, 2004) (per curiam). Other circuits have acknowledged the potential impact of Blakely on the guidelines but have not directly addressed the question. See, e.g., United States v. Duncan, 381 F.3d 1070, 1075-76, 2004 WL 1838020, at *3-*5 (11th Cir. Aug.18, 2004) (holding that any Blakely error was not “plain” under plain error standard of review); United States v. Cianci, 378 F.3d 71, 107 (1st Cir.2004) (deferring decision on sentencing issues pending supplemental briefing regarding Blakely). And, on the day we heard argument in this case, the Supreme Court granted certiorari in two cases involving Blakely and the federal sentencing guidelines. See United States v. Booker, — U.S.-, 125 S.Ct. 11,-L.Ed.2d-, 73 U.S.L.W. 3073 (U.S. Aug. 2, 2004) (No. 04-104); United States v. Fanfan, — U.S.-, 125 S.Ct. 12, — L.Ed.2d-, 73 U.S.L.W. 3073 (U.S. Aug. 2, 2004) (No. 04-105). These cases are scheduled for argument on October 4, 2004.

On close examination of Blakely, we conclude that the Supreme Court simply applied — and did not modify — the rule articulated in Apprendi. We have previously held that the rule of Apprendi does not affect the application of the guidelines. See United States v. Kinter, 235 F.3d 192, 198-202 (4th Cir.2000). Nothing in Blakely requires us to abandon our prior holding. We therefore decline to apply the holding of Blakely to the guidelines.

A. Blakely

1. Determinate Sentencing in Washington State

All felonies in Washington State are legislatively classified as either A, B, or C felonies. See Wash. Rev.Code § 9A.20.010(b) (Westlaw 2004). For crimes committed after July 1, 1984, Washington statutory law provides a maximum term of imprisonment of life for Class A felonies, a maximum sentence of ten years for Class B felonies, and a maximum sentence of five years for Class C felonies. See id. § 9A.20.021(1) (Westlaw 2004).

In addition to the maximum penalties specified in the felony classification statutes, the Washington State Sentencing Reform Act of 1981 created a second level of statutory sentencing. Under this system, each criminal offense is characterized according to its seriousness level, ranging from Level I for relatively minor offenses such as “malicious mischief 2” up to Level XVI for “aggravated murder 1.” Wash. Rev.Code § 9.94A.515 (Westlaw 2004). Also, every convicted criminal defendant is assigned an offender score based largely on the defendant’s prior criminal history. See id. § 9.94A.525 (Westlaw 2004). The statute also sets forth a sentencing grid that prescribes a minimum and maximum sentence based on the offense seriousness level and the offender score. See id. § 9.94A.510 (Westlaw 2004).¹⁵

The trial court must sentence the defendant within this statutory sentencing range unless “there are substantial and compelling reasons justifying an exceptional sentence” above or below the prescribed range. Id. § 9.94A.535 ¶ 1 (Westlaw 2004). Factual findings underlying an exceptional sentence are to be made by the court, employing a preponderance-of-the-evidence standard. See Wash. Rev.Code § 9.94A.530(2) (Westlaw 2004).

The calculations underlying the selection of the sentencing range are renewable on appeal, but the choice of a particular sentence within the statutory range is not. See State v. McCorkle, 137 Wash.2d 490, 973 P.2d 461, 462 (1999) (en banc). However, on appeal from an exceptional sentence the reviewing court will assess the validity of, and the factual support for, the departure and will consider whether the sentence imposed is excessive. See State v. Halgren, 137 Wash.2d 340, 971 P.2d 512, 514-15 (1999) (en banc).

The Washington guidelines are legislatively determined. Washington State does have a sentencing guidelines commission, but its role is wholly advisory — the legislature has never delegated its authority to set sentencing policy. See Wash. Rev. Code § 9.94A.850(2)(a)-(c) (Westlaw 2004); David Boerner & Roxanne Lieb, Sentencing Reform in the Other Washington, 28 Crime & Just. 71, 83-85 (2001) (noting that “the Washington commission’s role was advisory from the beginning” and that “[t]he legislature retained its authority over sentencing, with the guidelines commission serving in an advisory capacity”); State of Wash. Sentencing Guidelines Comm’n, Powers and Duties of the Commission, at http://www. sgc. wa. gov/powersandduties.htm (last visited Aug. 25, 2004) (stating that the statutory mandate of the commission is limited to “[evaluating and monitoring adult and juvenile sentencing policies and practices and recommending modifications to the Governor and the Legislature” and “[sjerving as a clearinghouse and information center on adult and juvenile sentencing”).

2. The Decision in Blakely

In October 1998, Ralph Howard Blakely, Jr. accosted his wife at their home, binding her with duct tape and forcing her at knife point to climb into a “coffin-like plywood box” in the bed of his pickup truck. State v. Blakely, 111 Wash.App. 851, 47 P.3d 149, 152 (2002). As he did so, he importuned her to dismiss the divorce suit and trust proceedings she had instituted against him. After the couple’s son, Ral-phy, arrived at the home, Blakely drove away with his wife in the back of the truck. Blakely forced 13-year-old Ralphy to follow in Mrs. Blakely’s car, threatening to harm Ralphy’s mother if he did not comply. Ralphy escaped when the family stopped at a gas station; Blakely continued with his wife to a friend’s house in Montana. The friend subsequently called the police, and Blakely was arrested without incident.

Blakely pleaded guilty to one count of second degree domestic violence kidnapping and one count of second degree domestic violence assault. Under the felony classification system, second degree kidnapping (committed without a sexual motivation) is a Class B felony subject to a maximum penalty of ten years. See Wash. Rev.Code § 9A.40.030(3)(a) (Westlaw 2004). Under the Sentencing Reform Act, second degree kidnapping is a level V offense; this level, combined with Blakely’s offender score, resulted in a statutory sentencing range of 49-53 months. Thus, according to Washington State law, the statutory maximum sentence was 53 months. The prosecution recommended that Blakely be sentenced at or near the maximum. Instead, the trial court imposed an exceptional sentence of 90 months based on its finding that Blakely had acted with deliberate cruelty and that he had committed domestic violence in front of his son. See Wash. Rev.Code § 9.94A.535(2)(a), (2)(h)(ii) (Westlaw 2004).

After the state court of appeals affirmed and the state supreme court denied discretionary review, the United States Supreme Court granted certiorari and reversed, holding that the exceptional sentence violated the constitutional principles articulated in Apprendi See Blakely, — U.S. at ----, 124 S.Ct. at 2536-38. The Court began by noting the precise manner in which the sentencing scheme at issue in Apprendi had offended the Constitution: “the judge had imposed a sentence greater than the maximum he could have imposed under state law without the challenged factual finding.” Id. at 2537. The Court found the same defect in Blakely’s sentence, noting that the trial court imposed an exceptional sentence because Blakely had acted with deliberate cruelty — -a fact not admitted by Blakely in connection with his plea.

The Court rejected the State’s claim that there was no Apprendi problem because even the exceptional sentence was within the ten-year maximum applicable to Class B felonies:

Our precedents make clear ... that the “statutory maximum” for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. In other words, the relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.

Id. (citations omitted). The Court concluded that this “statutory maximum” was 53 months, the top of the statutory sentencing range, because the sentencing judge could not exceed that maximum without making additional factual findings. See id. at 2538 (“Had the judge imposed the 90-month sentence solely on the basis of the plea, he would have been reversed.”). Therefore, the Court ruled, “[t]he ‘maximum sentence’ is no more 10 years here than it was 20 years in Apprendi (because that is what the judge could have imposed upon finding a hate crime) or death in Ring [v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) ] (because that is what the judge could have imposed upon finding an aggra-vator).” Id. The Court also rejected as “immaterial” the State’s assertion that the sentence did not run afoul of Apprendi because the list of aggravating factors in the state sentencing guidelines is illustrative rather than exhaustive: “Whether the judge’s authority to impose an enhanced sentence depends on finding a specified fact (as in Apprendi), one of several specified facts (as in Ring), or any aggravating fact (as here), it remains the case that the jury’s verdict alone does not authorize the sentence.” Id.

B. Application of Blakely to the Guidelines

Shortly after Apprendi was decided, we held that it did not affect the sentencing guidelines. See United States v. Kinter, 235 F.3d 192, 198-202 (4th Cir.2000). While we acknowledged that the argument for applying Apprendi to the guidelines was “not without support,” id. at 200, we ultimately concluded that the claim failed in light of the quintessentially judicial nature of the tasks performed by the Sentencing Commission, see id. at 201 (“[T]he Commission’s act of establishing sentencing ranges in the Guidelines is categorically different from the legislative act of setting a maximum penalty in a substantive criminal statute.”); id. (“The Sentencing Guidelines do not create crimes. They merely guide the discretion of district courts in determining sentences within a legislatively-determined range .... ”). We now re-examine this question in light of Blakely.

Blakely did not change — -indeed, it reaffirmed — the question we must ask in determining whether application of the federal sentencing guidelines is subject to the rule of Apprendi: When a defendant is to be sentenced pursuant to the guidelines, what is the “prescribed statutory maximum”? After Apprendi but before Blakely, this and the other circuit courts of appeals had unanimously concluded that the maximum the defendant could receive “if punished according to the facts reflected in the jury verdict alone,” Apprendi 530 U.S. at 483, 120 S.Ct. 2348, was the maximum penalty provided in the statute setting forth the offense of conviction (or whatever penalty statute was referenced by the statute setting forth the offense of conviction), not the top of the guideline sentencing range mandated by those facts. See United States v. Reyes-Echevarría, 345 F.3d 1, 6-7 (1st Cir.2003); United States v. Garcia, 240 F.3d 180, 182-84 (2d Cir.2001); United States v. Williams, 235 F.3d 858, 862-63 (3d Cir.2000); United States v. Doggett, 230 F.3d 160, 166 (5th Cir.2000); United States v. Lawrence, 308 F.3d 623, 634-35 (6th Cir.2002); United States v. Knox, 301 F.3d 616, 620 (7th Cir.2002); United States v. Walker, 324 F.3d 1032, 1041 (8th Cir.), cert. denied, — U.S.-, 124 S.Ct. 247, 157 L.Ed.2d 178 (2003); United States v. Ochoa, 311 F.3d 1133, 1135-36 (9th Cir.2002); United States v. Jackson, 240 F.3d 1245, 1249 (10th Cir.2001); United States v. Harris, 244 F.3d 828, 829-30 (11th Cir.2001); United States v. Fields, 251 F.3d 1041, 1043-44 (D.C.Cir.2001).

Blakely not only did not change the inquiry we must make, it also adhered to the rule the Court had announced in Ap-prendi: “ ‘Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ ” Blakely, — U.S. at-, 124 S.Ct. at 2536 (quoting Apprendi, 530 U.S. at 490, 120 S.Ct. 2348, and explaining that “[t]his case requires us to apply the rule we expressed in Apprendi” (emphasis added)). Therefore, in view of the fact that Blakely changed neither the question nor the rule for answering the question, we must determine what it is in Blakely that has prompted some courts to abandon the previously held view that the rule of Apprendi does not affect the guidelines.

We think the most likely culprit is the broad language found in parts of Blakely, particularly the following passage:

Our precedents make clear ... that the “statutory maximum” for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. See Ring, supra, at 602, 122 S.Ct. 2428 (“ ‘the maximum he would receive if punished according to the facts reflected in the jury verdict alone’ ” (quoting Apprendi, supra, at 483, 120 S.Ct. 2348)); Harris v. United States, 536 U.S. 545, 563, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) (plurality opinion) (same); cf. Apprendi, supra, at 488, 120 S.Ct. 2348 (facts admitted by the defendant). In other words, the relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose tuithout any additional findings. When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts “which the law makes essential to the punishment,” Bishop, supra, § 87, at 55, and the judge exceeds his proper authority.

Blakely, — U.S. at -, 124 S.Ct. at 2537 (parallel citations omitted).

In light of this language, it is hardly surprising that several courts have held that Blakely signals the demise of the guidelines. See, e.g., Booker, 375 F.3d at 511. Viewing the above-quoted passage alone, and noting the quotation marks surrounding the term “statutory maximum,” it is not that farfetched to conclude that the Court intended to encompass within its holding any situation in which a binding maximum — whether statutory or not — is increased by virtue of a judicial finding. Indeed, Justices O’Connor and Breyer expressed concern that the decision in Blakely necessarily implied the invalidity of important aspects of the federal guidelines system. See Blakely, — U.S. at -, 124 S.Ct. at 2550 (O’Connor, J., dissenting) (“If the Washington scheme does not comport with the Constitution, it is hard to imagine a guidelines scheme that would.”); id. at 2561 (Breyer, J., dissenting) (“Until now, I would have thought the Court might have limited Apprendi so that its underlying principle would not undo sentencing reform efforts. Today’s case dispels that illusion.... Perhaps the Court will distinguish the Federal Sentencing Guidelines, but I am uncertain how.”).

We think that those courts which have held that the Blakely Court redefined the term “statutory maximum,” see Booker, 375 F.3d at 514, have failed to account for the factual and legal context in which Blakely was decided. Under Apprendi, a jury verdict or plea of guilty authorizes the sentencing judge to impose a sentence up to the legislatively prescribed maximum specified in the statute that sets forth the offense of conviction. See Apprendi, 530 U.S. at 482, 120 S.Ct. 2348 (noting that “the judge’s task in sentencing is to determine, within fixed statutory or constitutional limits, the type and extent of punishment after the issue of guilt has been resolved” (alteration & internal quotation marks omitted)). Blakely required the Court to apply this principle to a sentencing scheme involving two legislatively prescribed statutory maximum penalties. See Blakely, — U.S. at -, 124 S.Ct. at 2537 (describing the top of the sentencing range under the Washington State Sentencing Reform Act as a “statutory maximum”); Booker, 375 F.3d at 518 (Easter-brook, Circuit Judge, dissenting) (“Blakely arose from a need to designate one of two statutes as the ‘statutory maximum’.”).

This understanding of Blakely is consistent with Apprendi, in which the Court repeatedly used language indicating that jury protections come into play when legislatively prescribed penalties are at issue.¹⁶ See Apprendi 530 U.S. at 481, 120 S.Ct. 2348 (noting history of judicial discretion to sentence “within the range prescribed by statute” (emphasis omitted)); id. (observing that “our periodic recognition of judges’ broad discretion in sentencing ... has been regularly accompanied by the qualification that that discretion was bound by the range of sentencing options prescribed by the legislature ” (emphasis added)); id. at 484, 120 S.Ct. 2348 (noting heightened stigma that attaches when a defendant “faces punishment beyond that provided by statute ” (emphasis added)); id. at 487 n. 13, 120 S.Ct. 2348 (limiting McMillan “to cases that do not involve the imposition of a sentence more severe than the statutory maximum for the offense established by the jury’s verdict” (emphasis added)); id. at 490, 120 S.Ct. 2348 (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (emphasis added)). There is no reason to believe that this explicit linking of Sixth Amendment rights to legislatively prescribed penalties was ill-considered or accidental. Cf. Booker, 375 F.3d at 518 (Easterbrook, Circuit Judge, dissenting) (“Why did the Justices deploy that phrase [‘statutory maximum’] in Apprendi and repeat it in Blakely (and quite a few other decisions)? Just to get a chuckle at the expense of other judges who took them seriously and thought that ‘statutory maximum’ might have something to do with statutes? Wdiy write ‘statutory maximum’ if you mean ‘all circumstances that go into ascertaining the proper sentence’?”).

Our understanding of Blakely also comports with the prior guidelines decisions of the Supreme Court. The Court has upheld guidelines sentencing against every constitutional challenge thus far brought before it; a holding that Blakely renders important aspects of guidelines sentencing unconstitutional would undermine, if not outright nullify, several of these decisions.¹⁷

We begin with Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989), in which the Supreme Court upheld the constitutionality of the guidelines against nondelegation and separation of powers challenges. Characterizing the guidelines as “Congress’ considered scheme for resolving the seemingly intractable dilemma of excessive disparity in criminal sentencing,” id. at 384, 109 S.Ct. 647, the Court concluded that Congress’ establishment of the Sentencing Commission did not violate separation of powers principles, see id. at 380-411, 109 S.Ct. 647. Of particular relevance here, the Court noted that

Although the Guidelines are intended to have substantive effects on public behavior ..., they do not bind or regulate the primary conduct of the public or vest in the Judicial Branch the legislative responsibility for establishing minimum and maximum penalties for every crime. They do no more than fetter the discretion of sentencing judges to do what they have done for generations— impose sentences within the broad limits established by Congress.

Id. at 396, 109 S.Ct. 647 (emphasis added). Mistretta thus makes clear that the guidelines do collectively what federal district judges previously did individually — select a sentence within the range of penalties specified by Congress. See Kinter, 235 F.3d at 201 (“[T]he Commission’s act of establishing sentencing ranges in the Guidelines is categorically different from the legislative act of setting a maximum penalty in a substantive criminal statute.”).

In short, the Mistretta Court rejected a constitutional challenge to the guidelines on the basis that the Sentencing Commission performs not a legislative function, but a judicial one. Application of Blakely to the guidelines, however, necessarily would require a conclusion that the Sentencing Commission performs not a judicial function, but a legislative one. This is so because Blakely applies to the guidelines only if the Blakely Court redefined the term “statutory maximum” to include any fact that increases a defendant’s potential sentence — regardless of its status as a statute or regulation and regardless of its provenance. Under such a definition of “statutory maximum,” the Commission performs a legislative function in contravention of Mistretta,¹⁸

A similar problem appears when we consider other Supreme Court decisions addressing the guidelines. One such case is Edwards v. United States, 523 U.S. 511, 118 S.Ct. 1475, 140 L.Ed.2d 703 (1998). The Edwards defendants were charged with a drug-trafficking conspiracy involving cocaine and cocaine base (“crack”). See id. at 512-13, 118 S.Ct. 1475. The district court instructed the jury that it must find that the defendants’ conduct involved crack or cocaine, and the jury returned a general verdict of guilty. See id. at 513, 118 S.Ct. 1475. The court then determined that the defendants’ relevant conduct involved both forms of cocaine and premised its guidelines computations on this finding. See id. A unanimous Supreme Court upheld these computations, noting that “[t]he Sentencing Guidelines instruct the judge in a case like this one to determine both the amount and the kind of controlled substances for which a defendant should be held accountable.” Id. at 513-14, 118 S.Ct. 1475 (internal quotation marks omitted).

The Court rejected the defendants’ claim that the district court was required by the Constitution or the relevant statute to presume that the jury found that the conspiracy involved only cocaine, reasoning that such a presumption would have little effect because the district court would still be required to impose a sentence based on all relevant conduct, including conduct found by the judge but not the jury. See id. at 514, 118 S.Ct. 1475. The Court added, “ [Petitioners’ statutory and constitutional claims would make a difference if it were possible to argue, say, that the sentences imposed exceeded the maximum that the statutes permit for a cocaine-only conspiracy.”' Id. at 515, 118 S.Ct. 1475. This was not the case, however, because “the sentences imposed ... were within the statutory limits applicable to a cocaine-only conspiracy.” Id.

In short, the Court concluded in Edwards that the district court was required by the guidelines to go beyond the “facts found by the jury” and determine for itself the type and quantity of drugs involved in the offense, and it rejected any possible constitutional challenge to this scheme precisely because the sentence imposed— based, as it was, on judicial findings of fact — was not more than the legislatively prescribed statutory maximum authorized by the finding of guilt by the jury. Edwards is entirely consistent with the rule adopted in Apprendi, which requires a jury finding for facts that establish the maximum potential statutory penalty. See Apprendi, 530 U.S. at 487, 120 S.Ct. 2348 n.13 (explaining that Apprendi rule applies to “the imposition of a sentence more severe than the statutory maximum for the offense established by the jury’s verdict”). Edwards is also consistent with our understanding of Blakely, ie., that in Blakely the Court simply applied the rule of Ap-prendi to a new set of facts. If one understands Blakely as having broadened the definition of “statutory maximum,” however, Edwards is no more. Under a supposed Blakely “redefinition” of statutory maximum, the Court could not have brushed aside the constitutional question presented in Edwards simply by stating that the findings made by the district court did not cause the sentence to exceed “the maximum that the statutes permit for a cocaine-only conspiracy.” Edwards, 523 U.S. at 515, 118 S.Ct. 1475. To the contrary, under the asserted Blakely redefinition of “statutory maximum,” the Edwards Court would have faced a substantial constitutional question because the findings made by the district court regarding drug type and quantity would have increased the statutory maximum, thereby creating a right to jury findings on those questions.

We must also be mindful of the effect of an incorrect reading of Blakely on United States v. Watts, 519 U.S. 148, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997) (per curiam). In Watts, the Supreme Court thought it so obvious that judges could consider acquitted conduct in sentencing a defendant under the guidelines, see id. at 157, 117 S.Ct. 633, that the case was decided without oral argument despite Watts’ claim that such a rule posed constitutional problems under the Double Jeopardy Clause, the Due Process Clause, and the Sixth Amendment, see Respondent Watts’ Brief in Opposition, United States v. Watts, 519 U.S. 148, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997) (No. 95-1906), 1996 WL 33413758, at *9-*13.

The sentence challenged in Watts was based in part on acquitted conduct, ie., factual allegations that the jury determined had not been proven beyond a reasonable doubt. The Court nevertheless upheld this sentence, noting the lower standard of proof applicable to sentencing proceedings and reiterating its previous holding that “application of the preponderance standard at sentencing generally satisfies due process.” Watts, 519 U.S. at 156, 117 S.Ct. 633 (citing McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986)). If Blakely redefined the term “statutory maximum,” however, consideration of acquitted conduct in establishing the guideline range would violate the Due Process Clause precisely because of the lower standard of proof.

In summary, we conclude that the fundamental question under Apprendi and Blakely is not simply whether judicial fact finding increases a defendant’s sentence relative to the sentence that would otherwise be imposed. Such a reading of these cases fails to take into account the context in which they were decided — a context which included the prior statements of the Supreme Court regarding the federal sentencing guidelines and Congress’ intent in enacting the Sentencing Reform Act — and thus misapprehends the rule they impose. In fact, the pertinent question is whether a judicial factual finding has increased the defendant’s sentence beyond what the legislature has authorized as the consequence of a conviction or guilty plea. There is thus a very real difference between federal statutes (which define crimes and set forth statutory penalty ranges, a legislative function) and the federal sentencing guidelines (which channel judicial discretion in selecting a penalty within the range authorized by Congress, a judicial function). We therefore conclude that Blakely, like Apprendi before it, does not affect the operation of the federal sentencing guidelines.

C. Instructions to the District Courts

We previously instructed district courts within the Fourth Circuit to continue sentencing defendants in accordance with the guidelines, as was the practice before Blakely. See Hammoud, 378 F.3d 426, 2004 WL 1730309, at *1. We further recommended that those courts announce, at the time of sentencing, a sentence pursuant to 18 U.S.C.A. § 3553(a) (West 2000 & Supp.2004), treating the guidelines .as advisory only.

We believe that announcing — not imposing — a non-guidelines séntence at the time of sentencing will serve judicial economy in the event that the Supreme Court concludes that Blakely significantly impacts guidelines sentencing.¹⁹ The announcement of a non-guidelines sentence may require the district court to consider issues not generally pertinent in guidelines sentencing,' thereby requiring the investment of additional time at the sentencing hearing. If the Supreme Court does not apply Blakely to the guidelines, this will be wasted' effort. If the Court does apply Blakely to the guidelines, however, the district court and the parties will have made at least substantial progress toward the determination of a non-guidelines sentence, at a time when the facts and circumstances were clearly in mind. While a new hearing may have to be convened in order to impose the previously determined and announced non-guidelines sentence, we anticipate that the district court and the parties will need to spend far less time preparing because the issues will already have been resolved. We therefore continue to recommend that district courts within the Fourth Circuit announce, at the time of imposing a guidelines sentence, a sentence pursuant to 18 U.S.C.A. § 3553(a), treating the guidelines as advisory only.

VIII. Sentencing Issues

Having determined that Blakely does not affect Hammoud’s sentence, we now consider the remainder of his challenges to his sentence. Hammoud challenges several rulings made by the district court during sentencing. The most significant of these claims concerns the application of the terrorism enhancement, see U.S.S.G. § 3A1.4. Hammoud’s remaining sentencing claims may be disposed of more briefly.

A. Terrorism Enhancement

Section 3A1.4 applies “[i]f the offense is a felony that involved, or was intended to promote, a federal crime of terrorism.” The term “federal crime of terrorism” is defined as commission of an enumerated felony — including providing material support to a designated FTO in violation of 18 U.S.C.A. § 2339B — -that “is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” 18 U.S.C.A. § 2332b(g)(5) (West 2000 & Supp.2004); see U.S.S.G. § 3A1.4, comment. (n.l).

1. Standard of Proof

Hammoud argues that the preponderance standard that generally governs in sentencing proceedings should not apply here because § 3A1.4 is “a tail which wags the dog of the substantive offense,” McMillan v. Pennsylvania, 477 U.S. 79, 88, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), and therefore must be proved at least by clear and convincing evidence. Because Hammoud did not raise this claim in the district court (he instead asserted that the facts underlying the enhancement had to be found by a jury beyond a reasonable doubt under Apprendi), we review for plain error. As noted previously, the plain error standard requires Hammoud to demonstrate that there was error that was plain and affected his substantial rights; we must then determine that the exercise of our discretion to correct the error is necessary to protect the integrity of judicial proceedings. For the reasons set forth below, we conclude that any error was not plain.

In McMillan, the Supreme Court noted that due process is generally satisfied when sentencing factors are proved by a preponderance of the evidence; the Court rejected a claim that a factor requiring imposition of a mandatory minimum sentence should be subject to a higher standard of proof. See id. at 91-92, 106 S.Ct. 2411. In reaching this conclusion, the court noted that the statutory mandatory minimum at issue there — for visible possession of a firearm — “operates solely to limit the sentencing court’s discretion in selecting a penalty within the range already available to it without the special finding of visible possession” and that “[t]he statute gives no impression of having been tailored to permit the visible possession finding to be a tail which wags the dog of the substantive offense.” Id. at 88, 106 S.Ct. 2411.

While this court has taken the language of McMillan as an indication that the Due Process Clause imposes some limitations on the use of sentencing factors proven only by a preponderance of the evidence, we have never defined those limits and have never declared a sentence invalid on the basis that a sentencing factor was established by an inadequate standard of proof. See, e.g., United States v. Montgomery, 262 F.3d 233, 249-50 (4th Cir.2001) (stating that “[p]roof by a preponderance of evidence is sufficient as long as the enhancement is not a tail that wags the dog of the substantive offense”; not deciding whether the district court was required to apply a heightened standard, as it had made the relevant finding by clear and convincing evidence “[i]n an abundance of caution” (internal quotation marks omitted)); United States v. Fenner, 147 F.3d 360, 366-67 (4th Cir.1998) (stating that “sometimes the prosecution must bear the burden of proving beyond a reasonable doubt facts bearing upon sentencing” but noting that such circumstances had not been defined).

The Sixth Circuit has held — in a case involving the § 3A1.4 enhancement — that it is never necessary to apply a heightened standard of proof to a sentencing factor. See United States v. Graham, 275 F.3d 490, 517 n. 19 (6th Cir.2001). The court reasoned that

The McMillan Court’s apparent concern was not whether the sentencing factor’s effect on the ultimate sentence was significant, but whether it was appropriately characterized as guiding the court’s discretion in punishing the defendant for the crime for which he was convicted. As long as a sentencing factor does not alter the statutory range of penalties faced by the defendant for the crime of which he was convicted, McMillan permits the factor to be found by preponderance of the evidence.

Id. In contrast, the Ninth Circuit has imposed a heightened standard of proof in a number of cases. See, e.g., United States v. Jordan, 256 F.3d 922, 927-28 (9th Cir.2001) (noting that court has applied heightened standard of proof for seven-level and nine-level enhancements and articulating “totality of the circumstances” test for determining whether heightened standard should apply (internal quotation marks omitted)). And, the Third Circuit has required application of the clear and convincing standard to factual findings underlying an upward departure that increased the defendant’s sentence from 30 months to 30 years. See United States v. Kikumura, 918 F.2d 1084, 1100-1102 (3d Cir.1990).

In the absence of a binding decision from this court or the Supreme Court, and in view of the conflicting views of the other circuits, we conclude that any error in the standard of proof applied by the district court was not plain. See United States v. Neal, 101 F.3d 993, 998 (4th Cir.1996).

2. Application of the Enhancement

Hammoud raises two additional arguments regarding the terrorism enhancement. First, Hammoud contends that the district court should have applied U.S.S.G. § 2M5.3 — the guideline specifically applicable to violations of § 2339B— rather than § 3A1.4. Even assuming that the district court should have applied § 2M5.3,²⁰ there was no error.

Setting § 2M5.3 aside for the moment, it is clear that the terrorism enhancement may be imposed on a defendant who has been convicted of providing material support to a designated FTO. Section 3A1.4 applies “[i]f the offense is a felony that involved ... a federal crime of terrorism.” Id. § 3A1.4(a). As the Sixth Circuit has noted, “[t]he word ‘involved’ occurs frequently throughout the Guidelines, both in the substantive provisions and in the commentary, and is typically employed to mean ‘included.’ ” Graham, 275 F.3d at 516. We therefore think it is reasonable to understand § 3A1.4 as applying to a circumstance such as this one, in which one of the counts of conviction is alleged to be a federal crime of terrorism. See id. (concluding that § 3A1.4 applies when the defendant has committed a federal crime of terrorism). Violation of § 2339B is one of the crimes enumerated in the definition of “federal crime of terrorism.” Therefore — still setting § 2M5.3 aside momentarily — a defendant who has been convicted of providing material support to an FTO may be subject to the enhancement if the evidence establishes that he provided such support with the intent to influence or coerce government conduct.

Having determined that the terrorism enhancement would apply to Hammoud if § 2M5.3 did not exist, we now turn to the question of whether the existence of § 2M5.3 changes our analysis. We conclude that it does not. As best we can discern from his rather conclusory argument, Hammoud’s concern is that application of both § 2M5.3 and § 3A1.4 would constitute double counting, and therefore a district court could apply one or the other, but not both. We disagree.

Double counting under the guidelines occurs “when a provision of the Guidelines is applied to increase punishment on the basis of a consideration that has been accounted for by application of another Guideline provision.” United States v. Reevey, 364 F.3d 151, 158 (4th Cir.2004). Double counting is permissible unless the guidelines expressly prohibit it in a given circumstance. See id. Thus, “[a]n -adjustment that clearly applies to the conduct of an offense must be imposed unless the Guidelines expressly exclude its applicability.” United States v. Williams, 954 F.2d 204, 207 (4th Cir.1992). Nothing in either § 2M5.3 or in § 3A1.4 prohibits the application of both provisions. Ham-moud’s double counting claim therefore fails.

Hammoud also maintains that the evidence does not support application of the terrorism enhancement. We disagree. The evidence presented at trial established that Hammoud had close connections with Hizballah officials, including its spiritual leader and a senior military commander. Other evidence — including Hammoud’s own testimony — indicated that Hammoud was well aware of Hizballah’s terrorist activities and goals and that he personally supported this aspect of Hizballah. In short, the evidence presented at trial was sufficient to establish that Hammoud provided material support to Hizballah with the intent to influence or coerce government conduct.

B. Sophisticated Money Laundering

The money laundering guideline provides for a two-level enhancement if the defendant is convicted of violating 18 U.S.C.A. § 1956 and “the offense involved sophisticated money laundering.” U.S.S.G. § 2Sl.l(b)(3). The commentary provides that “ ‘sophisticated laundering’ means complex or intricate offense conduct pertaining to the execution or concealment” of the offense, and “typically involves the use of’ fictitious entities, shell corporations, “layering” of transactions, or offshore accounts. Id. § 2S1.1, comment. (n.5(A)).

Here, the district court found that Ham-moud and his coconspirators employed fictitious entities and shell corporations in the course of laundering the proceeds from the cigarette smuggling operation. This finding is not clearly erroneous, and therefore the enhancement was properly applied.

C. Obstruction of Justice

Finally, Hammoud challenges application of an enhancement for obstruction of justice, see U.S.S.G. § 3C1.1, that was based upon his testimony at trial. An obstruction of justice enhancement based on perjured trial testimony is proper when “the defendant ... (1) gave false testimony; (2) concerning a material matter; (3) with the willful intent to deceive (rather than as a result of confusion, mistake, or faulty memory).” United States v. Quinn, 359 F.3d 666, 681 (4th Cir.2004) (internal quotation marks omitted). Here, count 78 charged Hammoud with giving $3,500 to Hizballah; as part of its case, the Government introduced into evidence the receipt for this donation. Hammoud, however, denied ever having donated any money to Hizballah. Under these circumstances, application of the enhancement was not clear error.

IX. Conclusion

For the reasons set forth above, we reject each of Hammoud’s challenges to his convictions and sentence. We therefore affirm the judgment of the district court in its entirety.

AFFIRMED

1 . The definition of “material support” was amended in 2001. See 18 U.S.C.A. § 2339A(b) (West Supp.2004). We rely on the definition in effect at the time of the offenses.

2 . Hammoud’s challenges to the constitutionality of § 2339B are supported by an amicus brief filed by a coalition of civil rights groups.

3 . Hammoud relies in part on cases holding that a donation to a political advocacy group is a proxy for speech. See, e.g., Buckley v. Valeo, 424 U.S. 1, 16-17, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam). Hizballah is not a political advocacy group, however. Therefore, while providing monetary support to Hizballah may have an expressive' component, it is not the equivalent of pure political speech. See Humanitarian Law Project v. Reno, 205 F.3d 1130, 1134-35 (9th Cir.2000) (rejecting argument that material support prohibition is subject to strict scrutiny review under Buckley and similar cases).

4 . A defendant who is prosecuted because his protected speech is incidentally covered by a broader ban on unprotected activity may bring an as-applied challenge. Hammoud is not such a defendant for the reasons previously articulated.

5 . On a related note, Hammoud argues that the designation of an organization as an FTO is a “fact” that increases the available penalty, and therefore must be found by the jury under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Ap-prendí does not apply here, however, because the designation does not allow an increased penalty beyond that authorized by the elements of the offense (which, as noted in the text, do not include the validity of the FTO designation).

6 . When the Government applied for a FISA warrant to conduct electronic surveillance of Hammoud, FISA required a certification that the acquisition of foreign intelligence information was "the purpose” of the surveillance. In 2001, Congress amended FISA to require a certification that the acquisition of foreign intelligence information is “a significant purpose” of the surveillance. See Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), Pub.L. No. 107-56, § 218, 115 Stat. 272, 291 (2001). For purposes of this appeal, we will assume that the higher standard imposed by the pre-USA PATRIOT Act version of FISA controls.

7 . Hammoud suggests that the FBI should have abandoned the surveillance when it became clear that no foreign intelligence information would be obtained. Hammoud provides no argument supporting this claim, however, and we therefore do not consider it. See Fed. R.App. P. 28(a)(9)(A) (providing that the appellant’s brief must contain "appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies”); 11126 Baltimore Blvd., Inc. v. Prince George’s County, 58 F.3d 988, 993 n. 7 (4th Cir.1995) (en banc) (declining to consider arguments for failure to comply with Rule 28).

8 . When the Government filed its notice, the relevant provision was Rule 16(a)(1)(E). The rule was amended in 2002, and subsection (a)(1)(E) was relettered (a)(1)(G). There was no change in the text.

9 . The Government contends that it complied fully with Rule 16 because it kept Hammoud and the district court informed of its continuing efforts to secure an expert on Hizballah. This claim is not persuasive, however. The district court set a clear deadline for discovery, and there is no dispute that the deadline passed before the Government identified Levitt.

10 . The timeliness of the CIPA claim also provides a potential basis for rejection of Ham-moud’s claim. The CIPA issue was first raised by Chawki Hammoud in a motion filed during the course of trial (this motion was joined by Hammoud). Chawki Hammoud acknowledged that his motion was untimely under CIPA § 5(a) but asserted that the untimeliness resulted from the Government's failure to comply with its discovery obligations and therefore should be excused. In view of our conclusion that CIPA is not implicated here for other reasons, we do not address the timeliness of the CIPA claim.

11 . Hammoud also cites Rule 404(b), which prohibits — with certain exceptions — the admission of prior bad acts that are extrinsic to the crime charged in order “to prove the character of a person in order to show action in conformity therewith.” Fed.R.Evid. 404(b); see United States v. Higgs, 353 F.3d 281, 311 (4th Cir.2003), petition for cert. filed, No. 03-10498 (U.S. May 21, 2004). Rule 404(b) is simply not relevant here. To the extent the "bad act” is the playing of the videotapes during Thursday night prayer meetings, it was intrinsic to the charged crime of providing material support to Hiz-ballah. To the extent the "bad act” was the activities depicted in the videotapes, none of the tapes depicted actions by Hammoud, and the character of the people depicted in the tapes was not at issue.

12 . Hammoud notes that he offered to stipulate that the tapes were found in his home and that they were produced by Hizballah. Even if such a stipulation had been accepted, however, it still would not relieve the Government of the burden of demonstrating that Hammoud knew that Hizballah engaged in terrorist activity. See United States v. Hitt, 249 F.3d 707, 712 (8th Cir.2001) (noting that the defendant's offer to stipulate to the element of intent did not alleviate the Government’s obligation to prove intent).

Hammoud also suggests that the district court was required to accept his stipulation under Old Chief v. United States, 519 U.S. 172, 174, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997), in which the Supreme Court held that in a prosecution for being a felon in possession of a firearm, a defendant must be allowed to stipulate to his status as a felon. Old Chief does not mandate the acceptance of all offered stipulations, however. The Court noted that its ruling was an exception to the general rule that "the prosecution is entitled to prove its case by evidence of its own choice, or, more exactly, that a criminal defendant may not stipulate or admit his way out of the full evidentiary force of the case as the Government chooses to present it." Id. at 186-87, 117 S.Ct. 644. We have limited Old Chief to its facts. See Grimmond, 137 F.3d at 833 n. 14. In any event, as noted above, the videotapes were admissible to prove facts beyond the scope of Hammoud's stipulation.

13 . Counsel then argued that the Government had failed to prove the existence of a conspiracy in Charlotte.

14 . In the district court and on appeal, Ham-moud argued that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the facts underlying the terrorism enhancement and the amount of tax loss should have been alleged in the indictment and found by the jury beyond a reasonable doubt. These claims are now subsumed by Hammoud’s claim, articulated in his supplemental brief, that Blakely requires all facts that result in an increased offense level to be charged in the indictment and found by the jury beyond a reasonable doubt. We therefore do not address them separately.

15 . Drug offenses are sentenced pursuant to a separate sentencing grid based on a three-level system of offense seriousness. See id. §§ 9.94A.517-.518 (Westlaw 2004).

16 . A proper reading of Blakely also allows us to take the Court at its word when it stated that it was "apply[ing]" the rule of Apprendi, not modifying it.

17 . United States v. Dunnigan, 507 U.S. 87, 92-96, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993), in which the Court held that the guidelines permit an obstruction of justice enhancement, see U.S.S.G. § 3C1.1, for perjury at trial, is not one of these cases. Dun-nigan concerned primarily a question of guidelines construction, and so it is not irreconcilable with any reading of Blakely. However, it is worth noting that Dunnigan conflicts with Blakely in one respect. Justice O'Connor expressed concern in her Blakely dissent that extension of Apprendi to determinate sentencing systems would render such systems unworkable, in part because some facts — such as perjury at trial — cannot be discovered in time to be included in the indictment. See Blakely,-U.S. at-, 124 S.Ct. at 2546 (O’Connor, J., dissenting). The majority disparaged this concern, stating, “Why perjury during trial should be grounds for a judicial sentence enhancement on the underlying offense, rather than an entirely separate offense to be found by a jury beyond a reasonable doubt (as it has been for centuries), is unclear.” Id. at 2539 n. 11 (citation omitted). But, the Court had already answered that question in Dunnigan:

[T]he enhancement is more than a mere surrogate for a perjury prosecution. It furthers legitimate sentencing goals relating to the principal crime, including the goals of retribution and incapacitation. It is rational for a sentencing authority to conclude that a defendant who commits a crime and then perjures herself in an unlawful attempt to avoid responsibility is more threatening to society and less deserving of leniency than a defendant who does not so defy the trial process.

Dunnigan, 507 U.S. at 97, 113 S.Ct. 1111 (citations omitted).

18 . In this vein, we note that Congress certainly did not view the function of the Sentencing Commission as a legislative one. The legislative history of the Sentencing Reform Act is clear that the function of the guidelines is to channel judicial discretion within the range of statutory penalties established by Congress. See, e.g., S.Rep. No. 98-225, at 51 (1983) ("The definition of maximum prison terms [under the Sentencing Reform Act] does not alter existing statutory máximums: the existing Federal statutes still determine the maximum terms of imprisonment.”), reprinted in 1984 U.S.C.C.A.N. 3182, 3234.

19 . At least one district court within our jurisdiction has indicated confusion about our recommendation. See United States v. Johnson, 333 F.Supp.2d 573, 575, 2004 WL 1968295 (S.D.W.Va. Aug. 13, 2004). We emphasize that our recommendation is not intended to import uncertainty into the sentencing process through the imposition of multiple sentences. Under our prior order, district courts must impose a guidelines sentence which, absent a contrary direction from the Supreme Court, the defendant will serve. However, we cannqt ignore the possibility that the Supreme Court will apply Blakely to the guidelines, and for the reasons stated in the text of this opinion, we believe it will serve the interests of judicial economy for a non-guidelines sentence to be determined at the time of the sentencing hearing.

20 . Section 2M5.3 first appeared in the 2002 Guidelines Manual, after Hammoud committed his violations of § 2339B (which were completed in 2000). Because application of § 2M5.3 would have resulted in a higher base offense level, the district court arguably should have applied the 2000 version of the Guidelines Manual. See U.S.S.G. § IB 1.11(b)(1); Elliott v. United States, 332 F.3d 753, 767 n. 12 (4th Cir.2003).

We note that the PSR indicates that the 2002 manual was applied. Hammoud does not challenge the application of the 2002 guidelines manual.