LAX Millenium Bomber's 22 Year Sentence Overturned as Too Lenient

The 9th Circuit Court of Appeals has vacated the 22 year sentence of Ahmed Ressam, an Algerian who convicted and sentenced in 2005 of planning to bomb LAX airport on the millenium, as being too lenient because he didn't follow through with, and recanted, some of his cooperation.

Shorter version (because this is a very long post): The appeals court substituted its own view of what's a fair sentence for a terrorist for that of the trial judge, and then spends pages trying to say the trial court erred, even though the Government didn't even make that allegation.

Basically, the appeals court, being unhappy that Ressam, who is at Supermax, will only be 53 when released and still dangerous, orders him resentenced and removes the trial judge from the case. The 72 page opinion is here. [More...]

We vacate the sentence and remand for resentencing by a different district court judge because we conclude that the district court committed procedural error in failing to address specific, nonfrivolous arguments raised by the Government in imposing a sentence that is well below the advisory Sentencing Guidelines range.

First, Ressam's cooperation. He did cooperate, for years. Not just here but in Europe. He gave information about everyone from Moussaoui to Richard Reid, the shoe-bomber, and he testified at trials. The Government got convictions from his cooperation. The Court of Appeals says:

Over the course of his two-year cooperation, he provided 65 hours of trial and deposition testimony, and 205 hours of proffers and debriefings. Ressam provided information to the governments of seven different countries and testified in two trials, both of which ended in convictions of the defendants. He provided names of at least 150 people involved in terrorism and described many others. He also provided information about explosives that potentially saved the lives of law enforcement agents, and extensive information about the mechanics of global terrorism operations.

What caused Ressam to stop cooperating? Initially, the prosecutors indicated they would ask for a 27 year sentence. The government kept delaying his sentencing, pushing for more cooperation. Ressam started mentally deteriorating, and his lawyers tried to convince prosecutors to ask for a lesser sentence, but no dice. The government just held out the carrot that if Ressam continued to cooperate, they'd continue to evaluate their recommendation.

Ressam stopped cooperating, began recanting and the next time the government asked for a continuance, the judge suggested, and the government agreed, to allow him to be sentenced. The prosecution asked for 35 years. The judge gave him 22 years.

I'll skip through the appeals process, and just note it's convoluted and ended up with the court being told to resentence Ressam. He was pro se at his re-sentencing. The prosecutor argued Ressam reversed his value as a cooperator by recanting several allegations. It changed its recommendation to 45 years.

The Judge noted all this but reimposed the 22 year sentence:

The Court recognizes that Mr. Ressam’s later decision to end his cooperation resulted in the dismissal of two pending prosecutions and the retraction of certain of his statements against two other terrorist suspects. However, Mr. Ressam’s cooperation, while it lasted, provided the United States government and the governments of Great Britain, Spain, Italy, Germany, France and Canada extensive intelligence that proved to be invaluable in the fight against international terrorism. The defendant’s sentencing memorandum submitted before the July 2005 sentencing hearing summarizes the farreaching impact of Mr. Ressam’s cooperation on the investigations and prosecutions of terrorist activities in this country and abroad.

Downplaying the cooperation that Mr. Ressam provided the government would diminish the likelihood of future cooperation by other apprehended terrorists. Further, doing so would not be fair to Mr. Ressam. After his trial he told me that the fairness of his trial was not what he expected, given what he had done. The fair treatment that Mr. Ressam received in his public trial was a major influence on his decision to break with his past and cooperate, a choice that undoubtedly saved innocent lives. In making that decision, he put his own life at risk.

In addition, he has spent many years in solitary confinement in a country far from his family and loved ones and will, by any measure, be sacrificing a large portion of his life to pay for his crimes. I believe that the sentence I am imposing today will serve as a deterrent while promoting respect for the American rule of law by demonstrating the fair-ness of our federal court system rather than merely its punitiveness.

In addition, I have taken into account Mr. Ressam’s history and characteristics. Reading Mr. Hilier’s 2005 sentencing memorandum and the report from Dr. Grassian leads me to the conclusion that Mr. Ressam’s life history and personal characteristics support favorable sentencing consideration. His life and reasons for involvement in his crime do not support a conclusion that he is a good person, but it also deserves consideration.

I have also taken into account the nature of Mr. Ressam’s crimes required that he be held in solitary confinement for upwards of four years, if not for the likely entirety of his sentence. This isolation is exacerbated by the fact that he does not speak English and has no opportunity for visits by friends and family abroad. These harsh conditions of confinement necessarily set Mr. Ressam’s situation apart from that of the typical criminal sentencing. I am also persuaded that Mr. Ressam’s health deteriorated somewhat from the isolation of his confinement and that the repetitive, intensive questioning to which he submitted, and that these conditions contributed to the early termination of his cooperation.

Moreover, I have considered the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct. ...I note that none of the defendants in these cases cooperated as extensively, providing as much valuable information to the fight against terrorism as Mr. Ressam did. As I emphasized earlier, Mr. Ressam’s cooperation provided authorities in this country and abroad with an unprecedented view of the inner workings of al Qaeda that almost certainly thwarted future attacks. In fact, it was the extent of Mr. Ressam’s cooperation in the conviction of one of his coconspirators that resulted in the government filing a 5K1.1 motion, specifically requesting that Mr. Ressam be sentenced below the applicable guideline range.

Therefore, based on all the factors listed in 18 U.S.C. Section 3553, I hereby reimpose a sentence of 22 years and a period of supervised release of five years subject to the standard conditions, together with those additional conditions set forth in the presentence report.

The Government didn't argue on appeal that the sentencing court committed procedural error in imposing sentence, only that its sentence was not supported by the facts:

The Government asserts that “[t]he sole issue presented in this case is whether the sentence imposed on Ahmed Ressam is substantively unreasonable in light of the facts of this case and the factors set forth in 18 U.S.C. § 3553(a).”

Yet the Court of Appeals makes this finding:

There are four procedural errors in the district court’s analysis: (1) the district court failed to use the Guidelines as a starting point and to “remain cognizant” of them throughout the process in reaching Ressam’s sentence; (2) the district court failed to explain why it was rejecting the Government’s argument as to the value of Ressam’s cooperation, and failed to address the impact of Ressam’s recantation and timeliness of his decision to cooperation; (3) the court clearly erred when it credited Dr. Grassian’s assessment of Ressam’s life history and personal characteristics, and that of Ressam’s counsel, in view of the contradictory factual findings in the PSR; and, (4) the district court erred in failing to address the Government’s argument that a longer sentence is required to protect the public from future crimes committed by Ressam, who will be only 53 years old when his sentence expires.

In support of its finding, the appeals court states:

In determining the sentence reduction due to Ressam for his cooperation with the Government, the district court was to consider (1) its own evaluation of the significance and usefulness of Ressam’s assistance, taking into consideration the Government’s evaluation of the assistance rendered; (2) the truthfulness, completeness, and reliability of any information or testimony provided by Ressam; (3) the nature and extent of the Ressam’s assistance; (4) any injury or risk of injury to Ressam or his family resulting from his assistance; and (5) the timeliness of the Ressam’s assistance. See U.S.S.G. § 5K1.1(a).

Of course, that's exactly what the court did, but the Court of Appeals finds in its view he didn't.

In considering the first factor, the district court failed to explain why it rejected the Government’s arguments concerning its evaluation of Ressam’s cooperation, including the value to law enforcement of the information provided.

The Judge did consider the Government's position and rejected it. The Court of Appeals is just substituting its own view. It concludes:

Based upon our review of the record before us, however, it appears that the district court abused its discretion in weighing the relevant factors by giving too much weight to Ressam’s cooperation and not enough weight to the other relevant § 3553(a) factors, including the need to protect the public.

So, the appeals court has ordered Ressam be resentenced again, and using its supervisory power, it orders the removal of the sentencing judge.

Because the district court procedurally erred by failing to address specific arguments raised by the Government, or otherwise justify the extent of its departure from the advisory Guidelines, we must vacate the 22-year sentence imposed by the district court.

Baloney. This is the 9th Circuit acting substituting its view for that of the trial judge who spent almost a decade on the case. They do not give due deference to the trial court's ruling. As the dissenting judge says:

The record here makes it apparent that the district court, which lived with this case for many years, considered the materials placed before it and touched all of the procedural bases. The court calculated the guideline range, and no one says that it did so improperly. It also considered that range. It then expressly considered the nature and circumstances of Ressam’s heinous offense and the history and characteristics of Ressam; the seriousness of the offense, the need to promote respect for the law, and the need to impose a just punishment; the need to adequately deter others;6 and the need to avoid sentence disparities. And, while it did not specifically discuss the need to protect the public, it did note that it had to consider that, and we have nothing to indicate that it did not do so.

...Simply put, it seems to me that the majority just does not like the fact that this terrorist is to sit in prison for a mere twenty-two years. What number would the majority choose; who knows? But although many federal sentences are even more draconian, twenty-two years seems like a long time to me, whether a defendant is young or old to start with. It is not a mere slap on the wrist, especially if the confinement conditions will be especially harsh, as the district court predicted they would be. Yet, when all is said and done, the majority simply does not like the way the district court weighed the evidence before it; obviously the majority would have done it differently.

Would I give Ressam that “light” a sentence? I somehow doubt it, but that is not the point. The point is that there are many sites within the borders of reasonable sentencing territory, and our job is to patrol those borders to assure that the district court has not slipped over them and into the land of abusers of discretion. That will rarely happen; it did not happen here.

Unfortunately, this case is not just about what befalls Ressam; it reflects another entry by appellate courts into territory that always lures them, but is always forbiddento them. Society, we, and the district courts will someday regret the results of our case-by-case trespassing onto lands we should stay out of; the day this decision becomes law will, indeed, be a dies infaustus.

In short, the sentence was neither procedurally erroneous nor substantively unreasonable. Even if we have to grit our teeth to do so, we should let it be. Thus, I respectfully dissent.

I hope this decision makes other defendants wary of open-ended cooperation agreements with the Government. And trial courts wary of the interminable delays the Government requests through its insistence that a defendant's cooperation be complete before he gets sentenced, all the while he is held in dismal conditions in a pre-trial detention center or county jail.

I suspect this is a decision defense lawyers, including the lawyer for Abdullemetab, who is currently negotiating with prosecutors, will read closely.

The only bright note in the whole case is this quote I found from the transcript of the original sentencing:

The message I would hope to convey in today's sentencing is two-fold: First, that we have the resolve in this country to deal with the subject of terrorism and people who engage in it should be prepared to sacrifice a major portion of their life in confinement.

Secondly, though, I would like to convey the message that our system works. We did not need to use a secret military tribunal, or detain the defendant indefinitely as an enemy combatant, or deny him the right to counsel, or invoke any proceedings beyond those guaranteed by or contrary to the United States Constitution. I would suggest that the message to the world from today's sentencing is that our courts have not abandoned our commitment to the ideals that set our nation apart. We can deal with the
threats to our national security without denying the accused fundamental constitutional protections.

Despite the fact that Mr. Ressam is not an American citizenand despite the fact that he entered this country intent upon killing American citizens, he received an effective, vigorous defense, and the opportunity to have his guilt or innocence determined by a jury of 12 ordinary citizens. Most importantly, all of this occurred in the sunlight of a public trial. There were no secret proceedings, no indefinite detention, no denial of counsel.

The tragedy of September 11th shook our sense of security and made us realize that we, too, are vulnerable to acts of terrorism. Unfortunately, some believe that this threat renders our Constitution obsolete. This is a Constitution for which men and women have died and continue to die and which has made us a model among nations. If that view is allowed to prevail, the terrorists will have won.

It is my sworn duty, and as long as there is breath in my body I'll perform it, to support and defend the Constitution of the United States. We will be in recess.

And for that, the 9th Circuit puts the judge in recess. Talk about activist appellate judges, the 9th Circuit sure has a few.

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    The Ninth Circuit has an unjustified reputation (5.00 / 1) (#2)
    by Peter G on Tue Feb 02, 2010 at 09:41:57 PM EST
    as unduly "liberal."  What it really is, is unpredictable, even erratic, with small subgroups of judges who simply do not follow precedent -- both ways sometimes.  As a result, the Ninth Circuit takes many more cases "en banc" (to be reheard by panels of 9 or even more judges, rather than the original 3), and does not even automatically include the original 3 on the en banc panel.  This may happen here. Without getting into any technical detail, I will simply endorse TL's assessment and say that this decision is blatantly contrary to many precepts of the federal appellate process, particularly as applied to sentencing appeals.

    goes both ways? (2.00 / 0) (#3)
    by diogenes on Tue Feb 02, 2010 at 10:26:00 PM EST
    If a trial judge sentenced him to 45 years and the appeals court felt that this was excessive, then I assume that there is no basis for reversal of the trial judge ruling.  I suppose that if the trial judge sentences someone to death there is no basis for appeal of that either if it is within sentencing guidelines.

    Your assumptions and (5.00 / 1) (#4)
    by Peter G on Tue Feb 02, 2010 at 10:55:48 PM EST
    your suppositions are both incorrect.  First, capital sentences and appeals are subject to an entirely separate statute and Eighth Amendment jurisprudence; no similarity at all.  Ordinary federal sentences are required by law to be "sufficient, but not greater than necessary" to accomplish a balancing of the many purposes of punishment, after weighing a list of considerations.  18 U.S.C. sec 3553(a).  On appeal, the sentencing judge's discretion in reaching that result is supposed to be upheld unless it resulted from a legal error or is simply "unreasonable" -- a highly deferential standard.  A mere "feeling" that a sentence is "excessive" (or too lenient, for that matter) -- despite what you "assume" -- is not a lawful basis for reversal.  And when a party intentionally chooses not to present a certain issue on appeal, as the government did here with the grounds on which the Ninth Circuit panel relied, that issue is "waived" - the court is not allowed to rely on that ground for its ruling.  This decision is completely out of line.

    This guy tried to bomb LAX ... (none / 0) (#5)
    by nyrias on Wed Feb 03, 2010 at 06:47:51 PM EST
    that is not in dispute.

    I would rather err on the same side and have him locked up as long as possible.

    It is not like American society will miss or want him anyway.

    Subject to review by the entire 9th Circuit? (none / 0) (#6)
    by McKinless on Thu Feb 04, 2010 at 12:11:33 AM EST
    Am assuming this was a 3-judge panel. In this kind of review can the defense ask for en banc review?