United States v. Ahmed Ressam ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 09-30000
Plaintiff-Appellant, D.C. No.
v.  2:99-cr-00666-
AHMED RESSAM, JCC-1
Defendant-Appellee.
 OPINION
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Argued and Submitted
September 21, 2011—San Francisco, California
Filed March 12, 2012
Before: Alex Kozinski, Chief Judge, and
Mary M. Schroeder, Stephen Reinhardt, Susan P. Graber,
M. Margaret McKeown, Kim McLane Wardlaw,
Richard A. Paez, Marsha S. Berzon, Richard R. Clifton,
Jay S. Bybee, and Mary H. Murguia, Circuit Judges.
Opinion by Judge Clifton;
Concurrence by Judge Reinhardt;
Dissent by Judge Schroeder
2811
UNITED STATES v. RESSAM 2815
COUNSEL
Helen J. Brunner (argued), Assistant United States Attorney,
and Mark N. Bennett, First Assistant United States Attorney,
Seattle, Washington, for the plaintiff-appellant.
Thomas W. Hillier, II, Federal Public Defender, Seattle,
Washington, for the defendant-appellee.
OPINION
CLIFTON, Circuit Judge:
The government appeals the sentence imposed by the dis-
trict court upon Ahmed Ressam, the so-called “Millennium
Bomber,” as substantively unreasonable. We review a chal-
lenge of that nature under what the Supreme Court has
2816 UNITED STATES v. RESSAM
described as “the familiar abuse-of-discretion standard of
review.” Gall v. United States, 552 U.S. 38, 46 (2007).
Ressam was convicted by a jury on nine counts of criminal
activity1 in connection with his plot to carry out an attack
against the United States by detonating explosives at the Los
Angeles International Airport, commonly known and referred
to by its airport code “LAX.” His plan was for the attack to
occur on the eve of the new millennium, December 31, 1999.
The advisory Sentencing Guidelines imprisonment range for
Ressam’s convictions was calculated by the district court to
be 65 years to life. That calculation has not been challenged
by either party. The district court sentenced Ressam to a term
of imprisonment of 22 years, plus five years of supervised
release.
Upon our review of the record, we have a definite and firm
conviction that the district court committed a clear error of
judgment in sentencing Ressam as it did. As a result, we con-
clude that the sentence imposed by the district court was sub-
stantively unreasonable. We vacate the sentence and remand
the case to the district court for resentencing.
1
Specifically, Ressam was convicted of (1) conspiring to commit an act
of terrorism transcending national boundaries, in violation of 18 U.S.C.
§ 2332b(a)(1)(B); (2) conspiring to place an explosive in proximity to a
terminal, in violation of 18 U.S.C. § 33; (3) possession of false identifica-
tion documents in connection with a crime of violence, in violation of 18
U.S.C. § 1028(a)(4) and (b)(3)(B); (4) use of a fictitious name for admis-
sion into the United States, in violation of 18 U.S.C. § 1546; (5) making
false statements on a customs declaration, in violation of 18 U.S.C.
§ 1001; (6) smuggling explosives into the United States contrary to law,
in violation of 18 U.S.C. § 545; (7) transportation of explosives, in viola-
tion of 18 U.S.C. §§ 842(a)(3)(A) and 844(a); (8) possession of an unreg-
istered destructive device, in violation of 26 U.S.C. §§ 5841, 5861(d), and
5871; and (9) carrying an explosive during the commission of a felony, in
violation of 18 U.S.C. § 844(h)(2).
UNITED STATES v. RESSAM 2817
I. Factual Background and Procedural History
As discussed below, our review of a sentence for substan-
tive reasonableness is to consider the “totality of the circum-
stances” regarding the particular defendant. Gall, 552 U.S. at
51; United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008)
(en banc). As a result, we will describe in some detail the rele-
vant circumstances, the arguments presented to the district
court, and the district court’s explanation of the sentence that
it imposed.
Ahmed Ressam is an Algerian national. Traveling on a
false Moroccan passport issued in the name of Nassar Res-
sam, he left Algeria in 1992 and went to France. In 1993
French authorities deported him to Morocco and banned him
from returning to France for three years. He was returned to
France by Moroccan authorities when it was determined that
he was not Moroccan.
In 1994 Ressam arrived at Mirabel Airport in Montreal,
Canada, using an illegally altered French passport. When
Canadian immigration personnel confronted him, he divulged
his true name and applied for refugee status, indicating on his
application that he left Algeria in December 1993 after having
been arrested and jailed for 15 months for arms trafficking to
terrorists in Algeria. Ressam’s request for refugee status in
Canada was denied. A moratorium on deportations from Can-
ada to Algeria allowed him to stay in Canada, however, under
conditions set by the Canadian government. He failed to com-
ply with those conditions, and in May 1998 a warrant was
issued for his arrest. He was not arrested, however, because
at the time the warrant issued, he was attending a terrorist
training camp in Afghanistan.
In March 1998, traveling under the name of Benni Noris,
Ressam left Montreal for Karachi, Pakistan. In Karachi, he
got in touch with Abu Zubeida, who was in charge of the
Afghan terrorist training camps. While he was in Afghanistan,
2818 UNITED STATES v. RESSAM
fatwahs were issued, including one by Sheikh Omar Abdel
Rahman, directing the terrorists to fight Americans and hit
their interests everywhere.
Between March 1998 and February 1999, Ressam attended
three training camps for Islamic terrorists in Afghanistan. He
first received instruction at Khalden Camp in light weapons
(handguns, machine guns, and rocket launchers), the making
of explosive devices (including TNT, C4 plastic explosives,
and black plastic explosives), sabotage, the selection of tar-
gets, urban warfare, tactics (including assassinations), secur-
ity, and the use of poisons and poisonous gas. The sabotage
training included learning how to disrupt the infrastructure of
a country, by destroying locations such as electric plants, gas
plants, airports, railroads, and hotels. The urban warfare train-
ing instructed on how to carry out operations in cities, how to
block roads, how to assault buildings, and covered the strate-
gies used in these operations. Explosives training included
how to do surveillance, take pictures, and blend in by wearing
clothing that a tourist would wear. The weapons and ammuni-
tion used at the camps were supplied by the Taliban. Plans
were underway to carry out terrorist operations in Europe and
elsewhere.
After attending Khalden Camp, Ressam moved to Toronta
Camp located outside Jalalabad, Afghanistan, where he was
trained over the course of a month and a half in the manufac-
ture of explosives. He learned how to put chemical substances
together to form explosives and how to make electronic cir-
cuits to be used to blow things up.
Ressam and five other terrorists were part of a cell charged
with carrying out an operation against a target in the United
States—an airport or a consulate—before the end of 1999.
The leader of the cell was to stay in touch with Abu Jaffar in
Pakistan and Abu Doha in Europe. The plan was for the cell’s
members to travel separately and meet in Canada, where they
UNITED STATES v. RESSAM 2819
would carry out bank robberies to finance their operation in
the United States.
In February 1999, Ressam returned to Canada, traveling
under the name Benni Noris and carrying $12,000 in cash, a
chemical substance called Hexamine used as a booster in the
manufacture of explosives, and a notebook with instructions
on how to put together explosives.
In the summer of 1999, Abu Doha informed Ressam, from
London, that the other members of the Montreal cell had
decided to remain in Europe because they ran into immigra-
tion problems. Ressam decided to continue with the operation
without the other members of his cell. He chose LAX as his
target, knowing that, as a result, many civilians would die.
While planning the operation, Ressam worked with his
friend, Ahcene Zemiri, who helped him plan a bank robbery
intended to secure funds to finance the attack in the United
States. Ressam and Zemiri did surveillance on the bank. Res-
sam asked Zemiri and Samir Ait Mohamed to obtain a pistol
with a silencer and hand grenades to use during the bank rob-
bery. Ressam planned to throw a live hand grenade at the
police and run if he needed to do so in order to get away.
In November 1999, Ressam and his co-conspirator, Abdel
Dahoumane, traveled from Montreal to Vancouver, B.C.,
where they prepared explosives for the LAX bomb in a rented
cottage. On December 14, 1999, Ressam and Dahoumane
traveled from Vancouver to Victoria, B.C., with all of the
components of the bomb, including explosives, hidden in the
wheel well of the trunk of a rental car. Continuing alone, Res-
sam drove the car carrying the explosives onto an American
car ferry at Tsawwassen, B.C. The ferry arrived in Port Ange-
les, Washington, later that evening. Upon leaving the ferry,
Ressam was questioned by a U.S. customs inspector. She
detected nervousness and directed Ressam to a secondary
inspection area.
2820 UNITED STATES v. RESSAM
Ressam filled out a customs declaration form falsely, stat-
ing that his name was Benni Noris and that he was a Canadian
citizen. One customs inspector conducted a pat-down search
on Ressam as others were searching the car. When an inspec-
tor discovered what appeared to be contraband in the wheel
well of the trunk, Ressam fled on foot. Customs inspectors
gave chase. In the course of the chase, Ressam attempted to
carjack a vehicle. He was apprehended by the customs inspec-
tors and returned to the inspection area in a police car. The
inspectors resumed searching the trunk of Ressam’s car.
As the inspectors reached into the wheel well to remove the
contraband, Ressam ducked down behind the protection of the
police car’s door. An explosives expert later determined that
the materials found in the car were capable of producing a
blast forty times greater than that of a devastating car bomb.2
Following his arrest, the government indicted Ressam on
the nine counts identified above, at 2816, note 1. The statu-
tory maximum penalty for these offenses was 130 years in
prison.
2
As reported to the district court by the government, the following items
were found in Ressam’s car:
two lozenge bottles filled with primary explosives, one of which
contained hexamethylene triperoxide diamine (HMTD) and the
other of which contained cyclotrimethylene trinitramine (RDX);
10 plastic bags of approximately 118 pounds total of urea in fine
white powder form, which is a fertilizer that, when nitrated, can
be used as a fuel in explosives; 2 plastic bags of about 14 pounds
total of a crystalline powder determined to be aluminum sulfate;
two 22-ounce olive jars each filled approximately 3/4 full of a
golden brown liquid covered with a sawdust like substance,
which liquified was determined to be an explosive, etheylene gly-
col dinitrate (EGDN). Also discovered with these chemicals were
four timing devices, comprised of small black boxes which each
contained a circuit board connected to a Casio watch and nine-
volt battery connector. Tests later confirmed that the timing
devices were operational. Ressam’s fingerprints and hair were
found in some of the timing devices.
UNITED STATES v. RESSAM 2821
Before trial, the government offered Ressam an agreement
to recommend a sentence of 25 years of imprisonment in
exchange for a guilty plea. The government considered the
sentence offered to be substantially discounted, taking into
account the risk of trial. At that time, the government was
concerned that its evidence with regard to the most serious
charge and the one that carried the most weight, count one of
the indictment, alleging conspiracy to commit an act of terror-
ism transcending national boundaries, was thin. The govern-
ment was uncertain about its ability to prove what Ressam
intended to do once he crossed the border, using a phony
passport and carrying more than 100 pounds of explosives. It
was not until closer to the time of trial that some of the most
important evidence was developed with regard to what Res-
sam intended to do with the explosives. Ressam rejected the
pre-trial plea offer of 25 years.
Due to concern for possible prejudice because of public
sentiment in the Seattle area, the trial judge granted Ressam’s
motion to transfer the site of the trial to Los Angeles. Follow-
ing a 19-day trial involving approximately 120 witnesses and
more than 600 exhibits, a jury convicted Ressam on all counts
on April 6, 2001.
About one month after the jury verdict but before sentenc-
ing, counsel for Ressam informed the government that Res-
sam wished to cooperate with law enforcement authorities in
the investigation of terrorist activities. The following week,
on May 10, 2001, Ressam began meeting with government
agents in an attempt to cooperate. Ressam’s position was that
the United States Attorney should agree upon a sentencing
range of 10 to 15 years in prison in exchange for his coopera-
tion. On June 22, 2001, the United States Attorney responded
to Ressam’s offer with a proposed cooperation agreement.
Ressam signed the agreement the next day.
The cooperation agreement required Ressam’s full coopera-
tion with designated agencies and his truthful testimony in
2822 UNITED STATES v. RESSAM
court proceedings as requested by the government, including
but not limited to the trial of his co-conspirator, Mokhtar Hao-
uari. In exchange, the government agreed to file a U.S.S.G.
§ 5K1.1 motion asking the court for a downward departure
from the applicable Sentencing Guidelines range of 65 years
to life, a range which was then mandatory. The parties agreed
that neither side would request a sentence of less than 27
years or greater than the high end of the Guidelines range,
which was life imprisonment.
Between May 10, 2001, and September 11, 2001, Ressam
met with government agents approximately 22 times. In July
Ressam testified as a prosecution witness at the trial of Hau-
oari, who had recruited Abdelghani Meskini to support Res-
sam’s terrorist plot to bomb LAX. United States v. Haouari,
2001 WL 1154714, at *2-4 (S.D.N.Y. Sept. 28, 2001).
Meskini pleaded guilty and also testified against Hauoari. The
jury found Hauoari guilty, and he was sentenced to 24 years
in prison, two years short of the statutory maximum.
Based almost entirely upon information provided by Res-
sam, the government filed a complaint against Abu Doha, a
major player in the arena of terrorist activity. Ressam was
aware that the success of the government’s attempts to extra-
dite Doha from England depended exclusively upon a com-
prehensive declaration provided by Ressam. The government
also relied on Ressam’s information to file a complaint
against Samir Ait Mohamed, and Ressam knew the success of
that proceeding would depend on his continued cooperation.
After the terrorist attacks that occurred on September 11,
2001, Ressam identified Zacarias Moussaoui from a photo-
graph as an individual whom he had met at the Khalden train-
ing camp. Ressam also provided information that assisted law
enforcement in determining that the shoe confiscated from
Richard Reid, the so-called “Shoe Bomber,” was a complete
device that needed to be disarmed before being put on a plane
for transport to a lab for analysis.
UNITED STATES v. RESSAM 2823
Six months after entering into the cooperation agreement
with the government, Ressam began to show reluctance to
discuss certain matters. FBI Special Agent Humphries, who
worked with Ressam from the commencement of his coopera-
tion with the government, testified that in a June 2001 inter-
view, Ressam had talked with him at length about Nacer
Hamaidi, an individual in Vancouver, B.C., who had assisted
Ressam. This information was passed on to Canadian authori-
ties, but when officers from the Royal Canadian Mounted
Police traveled to the United States to interview him, Ressam
would no longer discuss Hamaidi, despite Agent Humphries’
effort to encourage him to do so. Agent Humphries later testi-
fied that this was the first time there was a disconnect in the
rapport with Ressam.
Between September 11, 2001, and February 11, 2002, Res-
sam met with government agents on approximately 15 occa-
sions, including his participation in a deposition hearing in
New York related to prosecutions taking place against crimi-
nal defendants in Germany.
In February 2002, nine months after Ressam began his
cooperation with the government, Ressam’s counsel met with
federal prosecutors and sought to renegotiate the terms of the
parties’ cooperation agreement, particularly its 27-year floor.
According to Ressam’s counsel, Ressam was suffering from
anxiety related to his impending sentence, his conditions of
confinement were compromising his physical and mental
well-being, and he wanted closure. The prosecutors stated that
Ressam’s cooperation to date was not of a nature to lead them
to consider recommending a sentence at the agreement’s 27-
year floor, let alone dissolving that floor. The government
responded to Ressam’s complaint about the conditions of his
confinement in the FDC SeaTac Special Housing Unit by
reminding him that these conditions were influenced by the
nature of his criminal acts and the serious charges on which
he had been convicted. The government offered to assist Res-
sam in getting into the witness security program for prisoners
2824 UNITED STATES v. RESSAM
in federal custody, which could result in a less onerous hous-
ing situation, albeit at some distance from Seattle. Ressam
declined the offer.
The district court granted several sentencing continuances
to allow Ressam to cooperate further with the government. He
continued cooperating to some degree until early 2003. Over
the course of his two-year cooperation, he provided 65 hours
of trial and deposition testimony and 205 hours of proffers
and debriefings. He 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.
In February 2003 the government filed a motion for a fur-
ther continuance of Ressam’s sentencing and requested an
adjournment pursuant to the terms of his cooperation agree-
ment with the government. The government informed the dis-
trict court that, relying on Ressam’s promise to cooperate,
Abu Doha had been ordered extradited by a court in London
to the United States for prosecution, and the government was
in the process of extraditing Samir Ait Mohamed from Can-
ada. The government stated in its motion that it had not yet
decided on its position with respect to a § 5K1.1 motion and
that, if forced to make a motion at that time, the government
would likely make a sentencing recommendation calling for
a considerably longer period of incarceration than it might
had Ressam completed his promised cooperation.
On February 26, 2003, the district court held a hearing on
the government’s motion for a continuance. At the hearing,
the district court told the government it would grant a continu-
ance conditioned upon the immediate filing of a § 5K1.1
motion for a downward departure based upon Ressam’s coop-
UNITED STATES v. RESSAM 2825
eration. The government filed a § 5K1.1 motion that same
day, based on his substantial assistance in the Haouari prose-
cution.
Nevertheless, Ressam was unwilling to continue coopera-
tion. Concerned about Ressam’s state of mind and demeanor,
in October 2003 Ressam’s counsel consulted with Dr. Stuart
Grassian, a Board-certified psychiatrist specializing in evalu-
ating the psychological effects of stringent conditions of
imprisonment. Dr. Grassian met with Ressam in November
2003 and concluded that his conditions of confinement played
a very significant role in the deterioration of his state of mind.
In February 2004, Dr. Grassian met in New York City with
Ressam’s counsel, members of the United States Attorney’s
Office, and behavioral science experts from the FBI.
It was decided that Ressam would be moved to a prison
environment that would afford him more environmental,
social, and occupational stimulation. The transfer was
effected in June 2004. Dr. Grassian met with Ressam again in
October 2004 and observed that he appeared to be less tense
and that his thinking was strikingly clearer. Dr. Grassian
reported that Ressam realized that he had made a solemn
promise to cooperate, and that his continued refusal to testify
and speak with the government could have serious adverse
consequences in regard to his sentence and his custody status.
He did not resume cooperation, however, and by November
2004, Ressam’s counsel made it clear that his cooperation was
finished and that he wanted to be sentenced.
A sentencing hearing was held on April 27, 2005. Contrary
to the terms set forth in the June 23, 2001 cooperation agree-
ment, which provided that neither party would recommend a
sentence of less than 27 years, Ressam requested a sentence
of 12-1/2 years (150 months) of imprisonment. His position
was that the starting point should be the government’s pre-
trial plea offer of 25 years, rather than the Sentencing Guide-
lines range of 65 years to life.
2826 UNITED STATES v. RESSAM
The government recommended a sentence of 35 years of
imprisonment, noting that by ending his cooperation, Ressam
had effectively terminated at least two criminal cases of vital
interest to national security. The government acknowledged
that Ressam had provided valuable assistance to the United
States and to foreign authorities, and it filed a summary of
debriefings, proffers, and testimony provided by him. Based
on that assistance, the government recommended a sentence
that represented a substantial reduction from the 65-year bot-
tom of the Guidelines range, despite his breach of the cooper-
ation agreement.
Agent Humphries, who was involved throughout the dura-
tion of Ressam’s cooperation, testified concerning the infor-
mation received from Ressam and its usefulness. Agent
Humphries stated that Ressam’s information was helpful in
providing a personal account of his movement from North
America through Europe and into Afghanistan via safe houses
in Pakistan. He also testified that most of the information Res-
sam provided to the FBI was already known within the U.S.
intelligence community from classified sources, but Ressam
served as an unclassified source, which permitted the federal
government to provide the previously classified information
to other law enforcement and intelligence services throughout
the world without the same risk of exposing the original clas-
sified source.
Ressam argued that his cooperation was worth a greater
reduction in his sentence. He claimed that he had ceased
cooperating, in part, because he was having trouble remem-
bering details. Ressam submitted a psychiatric report prepared
by Dr. Grassian wherein he opined that the combination of
solitary confinement and repeated interrogations had a nega-
tive effect on Ressam’s mental health, though the district
court commented that “it strikes me that a lot of the details
that he’s not remembering now are things that one would not
forget.” Dr. Grassian further stated that Ressam’s history pro-
UNITED STATES v. RESSAM 2827
vided strong evidence that he would not be a danger to the
community.
At the district court’s urging, Ressam asked for a three-
month continuance of the sentencing hearing to allow him to
consider whether he was willing to cooperate further in the
prosecutions of Doha and Mohamed. Over the government’s
objection, the district court continued the hearing.
Ressam’s cooperation did not improve during the three
months that followed. On July 27, 2005, the district court held
another sentencing hearing and heard argument from both
sides, which largely repeated the arguments presented at the
April 27, 2005 hearing.
At the conclusion of the hearing, the district court sen-
tenced Ressam to 22 years of imprisonment, plus five years
of supervised release. After pronouncing the sentence, the dis-
trict court provided the following explanation:
Okay. Let me say a few things. First of all, it will
come as no surprise to anybody that this sentencing
is one that I have struggled with a great deal, more
than any other sentencing that I’ve had in the 24
years I’ve been on the bench.
I’ve done my very best to arrive at a period of
confinement that appropriately recognizes the sever-
ity of the intended offense, but also recognizes the
practicalities of the parties’ positions before trial and
the cooperation of Mr. Ressam, even though it did
terminate prematurely.
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 ter-
rorism and people who engage in it should be pre-
2828 UNITED STATES v. RESSAM
pared to sacrifice a major portion of their life in
confinement.
Secondly, though, I would like to convey the mes-
sage 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 funda-
mental constitutional protections.
Despite the fact that Mr. Ressarn is not an Ameri-
can citizen and 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 deter-
mined by a jury of 12 ordinary citizens.
Most importantly, all of this occurred in the sun-
light of a public trial. There were no secret proceed-
ings, 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 vulner-
able to acts of terrorism. Unfortunately, some
believe that this threat renders our Constitution obso-
lete. 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.
UNITED STATES v. RESSAM 2829
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.
Ressam appealed from his conviction on count nine of the
indictment, for carrying an explosive during the commission
of a felony. In a cross-appeal, the government challenged
Ressam’s sentence as substantively unreasonable. We
reversed the conviction on count nine. United States v. Res-
sam, 474 F.3d 597 (9th Cir. 2007). Because that reversal
required resentencing, we vacated Ressam’s sentence and
remanded without discussing the merits of the government’s
argument that the sentence was unreasonable. Id. at 604.
The Supreme Court reversed this court’s decision and rein-
stated the conviction on count nine. United States v. Ressam,
553 U.S. 272 (2008). On remand, we vacated the sentence and
remanded for resentencing because the district court had not
determined the applicable Guidelines range, as required under
our intervening en banc panel decision in Carty. United States
v. Ressam, 538 F.3d 1166, 1167 (9th Cir. 2008) (order).
While the matter was on appeal, Ressam sent a letter to the
district court recanting his prior testimony implicating Ahcene
Zemiri in his terrorist plot. Similarly, in a letter to the United
States Attorney’s Office, Ressam recanted his previous testi-
mony against Haouari. In the letter, Ressam claimed that he
was not mentally competent when he testified against Haouari
and that Haouari “is an innocent man.” Haouari v. United
States, 510 F.3d 350, 352 (2d Cir. 2007). Haouari submitted
Ressam’s letter as “newly discovered evidence” sufficient to
warrant the filing of a second or successive 28 U.S.C. § 2255petition, but that motion was denied. Id. at 352, 354.
After the imposition of the original sentence in July 2005
but before the resentencing hearing that was ultimately held
on December 3, 2008, the district judge joined the public
debate over the proper place to try persons accused of being
2830 UNITED STATES v. RESSAM
terrorists, in testimony before the Senate Judiciary Committee
and in op-ed columns in national newspapers. See Improving
Detainee Policy: Handling Terrorism Detainees within the
American Justice System Before the Senate Comm. on the
Judiciary, 110th Cong. 110-455 (2008); John C. Coughenour,
How to Try a Terrorist, N.Y. Times, Nov. 1, 2007;3 John C.
Coughenour, The Right Place to Try Terrorism Cases, Wash.
Post, July 27, 2008.4 In those statements, the judge cited his
experience with the Ressam case in support of his opinion that
traditional federal courts were the appropriate place to put
accused terrorists on trial.5
The resentencing hearing was held on December 3, 2008.
The district court began by calculating the applicable Sentenc-
ing Guidelines range for Ressam’s crimes of conviction at 65
years to life, including a ten-year mandatory prison sentence
for count nine to run consecutively to the sentences for all
other charges. Before imposing sentence, the district court
heard from the parties.
Appearing without counsel, by his own choice, Ressam told
3
Available at http://www.nytimes.com/2007/11/01/opinion/01coughe-
nour.html (last visited Nov. 10, 2011).
4
Available at http://www.washingtonpost.com/wp-dyn/content/article/
2008/07/25/AR2008072502759.html (last visited Nov. 10, 2011).
5
The Washington Post column of July 27, 2008, for instance, began
with the following paragraph:
I have spent 27 years on the federal bench. In particular, my
experience with the trial of Ahmed Ressam, the “millennium
bomber,” leads me to worry about Attorney General Michael
Mukasey’s comments last week, urging Congress to pass legisla-
tion outlining judicial procedures for reviewing Guantanamo
detainees’ habeas petitions. As constituted, U.S. courts are not
only an adequate venue for trying terrorism suspects but are also
a tremendous asset in combating terrorism. Congress risks a
grave error in creating a parallel system of terrorism courts
unmoored from the constitutional values that have served our
country so well for so long.
UNITED STATES v. RESSAM 2831
the district court that he recanted his testimony against Maktar
Haouari and all statements implicating Abu Doha and Samir
Ait Mohamed. Ressam made the following statement before
the district court at his sentencing hearing:
I suffered severe shock after the trial and I lost my
mental faculty and I did not know what I was saying.
The government attorney and the investigator, they
know about my mental condition that I was going
through, and about my mental faculty and the proce-
dure exposed to their own interests. They interpret
some of my statements to suit their interests. And the
statement that was put in my mouth, which I said
yes, because—due to the extreme mental exhaustion
I was going through. I also am subject of pressures
put upon me by the attorneys and the investigators.
The evidence presented in court should be
obtained from a solid source that cannot be doubted.
But if the evidence and the statements are obtained
from dubious sources or under pressure or a threat or
from a mental incompetent source it should not be
admitted. And that is the situation I was in.
I sent in the past a letter to the government attor-
ney Joe Bianco, in which I retrieved all my state-
ments that I gave in the investigation in the past; all
those I gave during the testimony of Makhtar Hao-
uari in the New York court because I neither proceed
my mental faculties (sic) or I know what I was say-
ing.
The New York judge was suspicion of my letter,
and he thought that I was doing that because—and
I did not because in order—He thought that I was
doing that because I had nothing to lose and because
I was already tired. I did not do that in order to win
or to lose. First, I did that because I was not mentally
2832 UNITED STATES v. RESSAM
competent and I did not know what I was saying.
Second, I did that because—in the presence of that
judge. I retract all. I repeat, all of the statements that
I made in the past and do not want my word counted
in my trial. So sentence me to life in prison or as you
wish. I have no objection to your sentencing.
I want from you and from the New York justice
to take another look as to Mokhtar Haouari case.
Sentencing should set when the evidence at the hand
is absolute, and look if the evidence is in doubt it
would be preferable to rescind the decision. I go to
different subject.
I will move to the case about Abu Doha and Samir
Mohamed. Previously the government attorney cal-
led me, Bruce, about to testify in the case of Abu
Doha and Samir Mohamed in front of a jury in New
York. At the beginning I refused, and then I accept
because I could not find an alternative to that. And
also in order to appear at the earliest possible time in
the court for my sentencing.
The later reason will affect the case of Abu Doha
and Samir Mohammed and cause their cases to be
dismissed in America.
When I appeared in front of the jury in New York
I retrieved almost all the statements that I made in
the past as to Abu Doha and Samir Mohamed. I indi-
cate in my earlier statement because I did not know
what I was saying.
Ressam concluded by stating that he had nothing to say about
his trial and asked the district court to “[s]entence me to life
in prison or anything you wish. I will have no objection to
your sentence.”
UNITED STATES v. RESSAM 2833
In its argument, the government retracted the position
stated in the sentencing memorandum filed before the hear-
ing, which recommended a sentence of 45 years. The govern-
ment instead recommended that Ressam serve a term of life
imprisonment, emphasizing the seriousness of the crimes, his
further recantation and attempts to distance himself from his
earlier cooperation, and the need to protect the public from
further crimes.
With regard to the seriousness of the crimes, the govern-
ment in its sentencing memorandum urged the district court
to consider that “all of the crimes of which Ressam was
charged and convicted were directed at achieving his goal of
placing a bomb at [LAX].” The government underscored the
serious treatment given to crimes of terrorism under the Sen-
tencing Guidelines. It quoted United States v. Meskini, 319
F.3d 88, 92 (2d Cir. 2003), which noted:
Congress and the Sentencing Commission had a
rational basis for concluding that an act of terrorism
represents a particularly grave threat because of the
dangerousness of the crime and the difficulty of
deterring and rehabilitating the criminal, and thus
that terrorists and their supporters should be incapac-
itated for a longer period of time.
Along similar lines, the government also argued:
Ressam’s arrest on December 14, 1999, was not
the result of a sudden lapse of judgment. It was the
culmination of years of planning and work, all aimed
at causing as much harm to the United States as he
could possibly inflict. Following his conviction in
April 2001, Ressam claimed that after he observed
the fairness with which the Court treated him
throughout the trial, he had a change of heart and
that he was “firmly against” terrorist operations in
America and around the world.
2834 UNITED STATES v. RESSAM
Ressam’s change of heart was short-lived. Ressam
has provided no indication that he has repudiated the
goals of terrorists to inflict harm on the United
States. His decision to end cooperation raises the
specter that he continues to pose a real and serious
threat to the United States. Ressam’s more recent
decision to affirmatively help identified terrorists
escape responsibility for their actions raises even
more serious concerns. At this point in time, this
Court [must] address the most fundamental question:
at what age will Ressam no longer pose a threat to
the people of the United States.
The government acknowledged that Ressam’s cooperation,
while it lasted, had been useful, but only to a degree. It
emphasized the termination of Ressam’s cooperation and
observed that much of the value had been undermined or
entirely lost as a result of his affirmative recantations subse-
quent to the 2005 sentencing hearings. It summarized the
value of Ressam’s cooperation generally as
providing testimony in the prosecutions of individu-
als charged before he began his cooperation (such as
the testimony he provided during the trial of Mokh-
tar Haouari), providing information about explosive
devices that was very helpful in determining the
nature of the device found in Richard Reid’s shoe
and providing information that corroborated the
information already known by the United States and
foreign governments.
To be sure, the information about trade craft, ter-
rorism organizations, and training camps that Res-
sam provided was in an unclassified form. Thus this
information could be broadly disseminated to law
enforcement officers both in the United States and
abroad in order to broaden their base of knowledge.
UNITED STATES v. RESSAM 2835
While this was of significant value, the information
provided was not unique to Ressam.
Perhaps his most valuable information—that lead-
ing to the charges against Doha and Mohamed—
cannot be credited. Ressam undermined that value
when he chose to end his cooperation leading to the
dismissal of these charges. . . . [H]e has also under-
mined his other cooperation by recanting earlier
statements.
The government stated that Ressam’s recantation of his
prior statements regarding his terrorist training and the activi-
ties of other terrorists, and his decision to cease cooperating,
forced the government to dismiss criminal charges against
Doha and Mohamed. The government noted that as a high-
ranking al-Qaeda member with close ties to Osama Bin
Laden, Doha was one of the most dangerous terrorists ever
charged by the United States. After the dismissal of the
charges against him, Doha was released from custody and left
the United States.
On the subject of Ressam’s cooperation, the government
argued that it would not have entered into the cooperation
agreement with Ressam if it had known what was going to
happen. It argued that “[a]ny benefit he provided initially has
been substantially outweighed by his reversal, and [he] now
attempts to use his position as a cooperating defendant to help
his fellow terrorists.”
Regarding the need to protect the public, the government
explained that Ressam would still be relatively young upon
release from prison if he were given a sentence similar to the
one originally imposed by the district court in 2005:
The Court’s July 2005 sentence, if reimposed,
would mean that this defendant would be released in
ten years, he would be out of jail in 2018. He would
2836 UNITED STATES v. RESSAM
be 51 years of age. Think about the defendant’s life
prior to the arrest in this case, his fanatical commit-
ment to jihad, his single-minded pursuit to attack the
United States. Think about his recent decisions to
help Abu Doha, Samir Mohamed, his most recent
decision to affirmatively help Hassan Zemiri and
Adil Charkaoui, and as of today his attempt to with-
draw even his cooperation in the trial against Hao-
uari.
The government urged the district court to “send the defen-
dant away for a long enough period of time so there is no
chance he will ever target innocent victims again.”
After hearing from the parties, the district court again sen-
tenced Ressam to 22 years in prison. The court’s explanation,
in full, was as follows:
The Ninth Circuit has made clear that the Sentenc-
ing Guidelines are only one factor to be considered
among those factors set forth in 18 U.S.C. Section
3553(a), in determining an appropriate sentence. I
may not presume that the Guidelines range is reason-
able. Nor should the Guidelines factor be given more
or less weight than any other factor. Accordingly, I
have also considered the other Section 3553 factors
in arriving at the sentence I am imposing today.
On the one hand I recognize the need for the sen-
tence imposed to reflect the seriousness of the
offenses Mr. Ressam has committed, to provide just
punishment for those offenses, and to promote
respect for the law. Mr. Ressam’s crimes, if carried
to their intended conclusion, would have resulted in
the deaths and injuries of hundreds of innocent peo-
ple and instilled fear across the country and even the
world. Fortunately, Mr. Ressam’s arrest prevented
such an outcome. Because of the work of an atten-
UNITED STATES v. RESSAM 2837
tive Port Angeles Customs Inspector, Mr. Ressam’s
crimes did not lead to loss of life or limb, nor
destruction of property. Nevertheless, the serious-
ness and heinousness of the act of terrorism Mr. Res-
sam was carrying out at the time of his arrest cannot
be understated.
On the other hand, I recognize Mr. Ressam’s
extensive and valuable cooperation in the fight
against terrorism during the first two years after his
trial. Although it ended unwisely and prematurely,
Mr. Ressam’s cooperation, unique in its breadth and
scope, weighed heavily in my initial sentencing deci-
sion and its import has not changed in my analysis
today. The government’s 5K1.1 motion filed in Feb-
ruary 2003 requested a downward departure from the
Sentencing Guidelines based on Mr. Ressam’s sub-
stantial assistance in the case of United States versus
Mokhtar Haouari, a matter prosecuted in the South-
ern District of New York in the summer of 2001 and
resulting in the conviction of Mr. Haouari.
Mr. Haouari was sentenced in 2002 to a term of
24 years’ imprisonment. Mr. Ressam’s testimony at
the trial connected Mr. Haouari to the terrorist plot,
of which Mr. Ressam himself was a part, to bomb
the Los Angeles International Airport on New
Year’s Day 2000. In addition to his substantial coop-
eration in that case Mr. Ressam also testified before
a German tribunal on behalf of the German govern-
ment in the trial against Mounir el Motassadeq. I am
butchering that name. I will spell it. It is M-O-U-N-
I-R, E-L M-O-T-A-S-S-A-D-E-Q. In December
2002, which resulted in a conviction and sentence of
15 years.
The Court recognizes that Mr. Ressam’s later
decision to end his cooperation resulted in the dis-
2838 UNITED STATES v. RESSAM
missal of two pending prosecutions and the retrac-
tion of certain of his statements against two other
terrorist suspects. However, Mr. Ressam’s coopera-
tion, while it lasted, provided the United States gov-
ernment 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 sen-
tencing memorandum submitted before the July
2005 sentencing hearing summarizes the far-
reaching 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 likeli-
hood of future cooperation by other apprehended ter-
rorists. 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 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. Res-
sam’s history and characteristics. Reading Mr. Hilli-
UNITED STATES v. RESSAM 2839
er’s 2005 sentencing memorandum and the report
from Dr. Grassian leads me to the conclusion that
Mr. Ressam’s life history and personal characteris-
tics 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. Mr. Hillier describes a
quiet, solitary and devout man whose true character
is manifest in his decision to cooperate. Through the
course of the trial and immediately thereafter, Mr.
Ressam wrestled with what he had done and why. As
Mr. Hillier put it, Mr. Ressam determined that vio-
lent action brought shame to the concerns he was
trying to promote, and that as a result what he was
doing was harmful in all respects.
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 exac-
erbated by the fact that he does not speak English
and has no opportunity for visits by friends and fam-
ily abroad. These harsh conditions of confinement
necessarily set Mr. Ressam’s situation apart from
that of the typical criminal sentencing. I am also per-
suaded that Mr. Ressam’s mental health deteriorated
somewhat from the isolation of his confinement and
the repetitive, intensive questioning to which he sub-
mitted, 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. Mr. Haouari, for example, was sen-
tenced to 24 years for his involvement in the same
plot. Abdel Meskini, also indicted based on his con-
nection to Mr. Ressam and prosecuted in the South-
2840 UNITED STATES v. RESSAM
ern District of New York, pled guilty and received
a sentence of six years.
Finally, I have spent a good deal of time since Mr.
Ressam’s previous sentencing reviewing other
terrorism-related prosecutions around the country.
According to a recent study of 124 defendants sen-
tenced in terrorism trials in American federal courts
since September 12, 2001 to December 31, 2007, a
paper that was prepared by two former federal prose-
cutors, the average term of imprisonment was a little
over eight years. These cases involved different sets
of facts and did not influence my decision in deter-
mining an appropriate sentence in this case. How-
ever, I mention a few of them here to provide a
backdrop against which Mr. Ressam’s conviction
and sentence may be viewed. For example, John
Walker Lindh was captured during the 2001 invasion
of Afghanistan while he was fighting in the Taliban
army. Mr. Lindh was trained by al Qaeda and fought
on the front lines in Afghanistan against the North-
ern Alliance. The notoriety of his case stemmed in
part from his involvement in a violent uprising in
Afghanistan in which a CIA agent was killed. He
was later brought to the United States and indicted
on ten charges in the Eastern District of Virginia.
Ultimately, he pled guilty to supplying services to
the Taliban army and carrying an explosive during
the commission of a felony. He received a sentence
of 20 years.
In 2002, Imran Mandhai pled guilty in the South-
ern District of Florida to conspiring to destroy elec-
trical power stations by means of fire and explosives
in retaliation for the US government’s support of
Israel and in an effort to secure the release of Mus-
lim prisoners. After numerous sentencing appeals
Mr. Mandhai received a sentence of 14 years.
UNITED STATES v. RESSAM 2841
In 2005, after being held for three years as an
enemy combatant, Jose Padilla was indicted in the
Southern District of Florida on federal terrorism
charges. After a four-month jury trial, he was con-
victed of conspiracy to murder, kidnap and maim,
and conspiracy to provide material support to terror-
ists. The conviction resulted in a sentencing
[G]uideline[s] range of 360 months to life. Mr.
Padilla received a sentence of 17 years and four
months. In imposing the sentence, the Court consid-
ered the fact that Mr. Padilla had been held in soli-
tary confinement under harsh conditions for a
significant period of time and would likely be held
under similar conditions in the future. Mr. Padilla’s
co-conspirators, Mr. Hassoun and Mr. Jayyousi,
received sentences of 15 years and eight months and
12 years and eight months, respectively.
I note that none of the defendants in these cases
cooperated as extensively, providing as much valu-
able 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. Res-
sam’s cooperation in the conviction of one of his co-
conspirators that resulted in the government filing a
5K1.1 motion, specifically requesting that Mr. Res-
sam be sentenced below the applicable
[G]uideline[s] range.
Therefore, based on all the factors listed in 18
USC 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 pre-
sentence report. I recognize that the sentence I am
2842 UNITED STATES v. RESSAM
imposing reflects a significant downward deviation
from the advisory [G]uideline[s] range. However, I
believe the factors I have examined on the record are
sufficiently compelling to support the degree of the
variance.
After the sentencing, the government moved to withdraw
its § 5K1.1 motion, relying on language in the agreement that
gave the government the right to withdraw the motion
“[s]hould it be determined by the government that Mr. Res-
sam has violated any provision of this agreement.” The dis-
trict court denied the motion as untimely.
After advising Ressam of his right to appeal the sentence,
the district court offered some concluding remarks:
As I said at Mr. Ressam’s previous sentencing in
2005, determining an appropriate sentence in this
case is a decision I struggled with more than any
other sentencing decision I have made in my 27
years on the bench. In the time since Mr. Ressam’s
first sentencing, however, I have come to feel even
more confident that the sentence I originally
imposed was the correct one. Mr. Ressam’s trial and
the outstanding professionalism of both the prosecu-
tion and defense throughout this case illuminate how
our country can deal with threats to our national
security without denying the accused constitutional
fundamental protections within the framework of our
federal court system.
As our nation prepares for a new chapter of Amer-
ican history with a new president, it is my hope that
those with the power to affect the way terrorism tri-
als are conducted in this country will look favorably
upon this case and share my view.
UNITED STATES v. RESSAM 2843
The government appealed the sentence imposed upon Res-
sam. A three-judge panel of this court, by a 2-1 majority,
vacated the sentence and remanded for resentencing before a
different district judge. United States v. Ressam, 593 F.3d
1095 (9th Cir.), amended by 629 F.3d 793 (9th Cir. 2010).6
We granted Ressam’s petition for rehearing en banc. United
States v. Ressam, 653 F.3d 963 (9th Cir. 2011).
II. The Government’s Appeal
Ordinarily, when a sentence is appealed, “we first consider
whether the district court committed significant procedural
error, then we consider the substantive reasonableness of the
sentence.” Carty, 520 F.3d at 993. In this appeal, however, the
government has expressly disclaimed any procedural chal-
lenge to the sentence imposed by the district court. In its
opening brief, at 36, the government described the usual two-
step process but made clear that it raised only a substantive
challenge in this case: “The Court must first determine
whether the district court committed significant procedural
error, a claim not raised in this appeal. The Court must then
consider whether the sentence is substantively reasonable, the
issue raised here.” (Citation omitted.) That stance was reiter-
ated in the government’s reply brief, at 5: “A sentence is
reviewed first for procedural error, although none is alleged
here.” (Citation omitted.) As described in the opening brief,
“[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),” the statute that specifies the factors to be
considered in imposing a sentence. Government counsel
repeated the one-issue limitation at oral argument. As the gov-
6
Parts of this opinion, particularly large portions of the factual back-
ground, are drawn directly from the panel opinion authored by Judge
Arthur Alarcón. His contribution is appreciated.
2844 UNITED STATES v. RESSAM
ernment has decided to focus solely on the substantive reason-
ableness of the sentence, we elect to do the same.7
III. Standard of Review
As noted at the outset of this opinion, we review the sub-
stantive reasonableness of a criminal sentence under what the
Supreme Court has described as “the familiar abuse-of-
discretion standard of review.” Gall, 552 U.S. at 46. That it
might be familiar does not mean that it is always clear or sim-
ple to apply.
In general terms we have held that “[a] district court abuses
its discretion when it makes an error of law, when it rests its
decision on clearly erroneous findings of fact, or when we are
left with a definite and firm conviction that the district court
committed a clear error of judgment.” United States v. Hink-
son, 611 F.3d 1098, 1114 (9th Cir. 2010) (en banc) (internal
quotation marks omitted), cert. denied, 131 S.Ct. 2096.
In the sentencing context, the abuse of discretion standard
is intended to chart a course between two extremes. It is clear
that we are to afford significant deference to a district court’s
sentencing decision. As stated in Carty, “we may not reverse
just because we think a different sentence is appropriate.” 520
F.3d at 993. The Supreme Court explained this principle in
Gall:
Practical considerations also underlie this legal
principle. The sentencing judge is in a superior posi-
tion to find facts and judge their import under
§ 3553(a) in the individual case. The judge sees and
7
We express no view on the question whether we could properly, on
appellate review, vacate a sentence because of procedural errors even
when the government does not argue procedural error and limits its argu-
ment to substantive unreasonableness, nor do we comment on the standard
of review to be applied in such a situation.
UNITED STATES v. RESSAM 2845
hears the evidence, makes credibility determinations,
has full knowledge of the facts and gains insights not
conveyed by the record. The sentencing judge has
access to, and greater familiarity with, the individual
case and the individual defendant before him than
the Commission or the appeals court. Moreover,
[d]istrict courts have an institutional advantage over
appellate courts in making these sorts of determina-
tions, especially as they see so many more Guide-
lines sentences than appellate courts do.
552 U.S. at 51-52 (internal quotation marks and citations
omitted).
At the same time, our deference to the district court is not
total. When it introduced the advisory Guidelines system in
United States v. Booker, 543 U.S. 220 (2005), the Court made
clear that appellate review of a sentence imposed by the dis-
trict court was not eliminated. Rather, a sentence is subject to
review by the courts of appeals for “reasonableness.” Id. at
261-62.
This is, we believe, where the dissenting opinion goes
astray. It appears to our dissenting colleagues to be enough
that the district court said that it considered the factors set
forth in 18 U.S.C. § 3553(a) and provided some explanation
of its reasoning. Practically speaking, the dissent would limit
its review of a sentence imposed by a district court to proce-
dural regularity. The dissent characterizes our conclusion that
the district court abused its discretion as a simple disagree-
ment that amounts to an improper re-weighing by this court
of the relevant factors and asserts, repeatedly, that our deci-
sion violates the Supreme Court’s directions in Gall. See, e.g.,
Dissenting op. at 2873. The dissent thus emphasizes “how
scrupulously the district court followed § 3553(a) in weighing
each of its factors.” Id. at 2877. But Gall explicitly confirmed
the responsibility of the court of appeals to review not only
the process by which the sentence was imposed but also the
2846 UNITED STATES v. RESSAM
substance of the sentence: “Assuming that the district court’s
sentencing decision is procedurally sound, the appellate court
should then consider the substantive reasonableness of the
sentence imposed under an abuse-of-discretion standard.”
Gall, 552 U.S. at 51; see Carty, 520 F.3d at 993. That the dis-
trict court followed the proper procedure in imposing the sen-
tence does not end our review.
The abuse of discretion standard is deferential, but it does
not mean anything goes. The Court held in Gall that the dis-
trict court had not abused its discretion in that case, but it did
not hold that discretion could never be abused. The dissenting
opinion appears prepared to affirm the sentence imposed by
the district court because it was imposed in a procedurally
proper manner, but, as other courts have cautioned, appellate
review for substantive reasonableness should not be such a
“rubber stamp.” See United States v. Pinson, 542 F.3d 822,
836 (10th Cir. 2008) (“[U]ntil the Supreme Court tells us oth-
erwise[,] appellate review continues to have an important role
to play and must not be regarded as a rubber stamp.”); United
States v. Rattoballi, 452 F.3d 127, 132 (2d Cir. 2006) (“Our
own review for reasonableness, though deferential, will not
equate to a ‘rubber stamp.’ ”); United States v. Moreland, 437
F.3d 424, 433 (4th Cir. 2006) (“Although [a reasonableness]
standard clearly requires us to afford a degree of deference to
the sentencing decisions of the district court, ‘reasonableness’
is not a code-word for ‘rubber stamp.’ ”).
We have, on rare occasion, vacated a sentence on the
ground that it was substantively unreasonable. In United
States v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009),
for instance, we vacated a 52-month sentence imposed for a
conviction of an alien for attempting to reenter the United
States unlawfully. The sentence imposed by the district court
fell within the applicable Guidelines range, but we concluded
that it was substantively unreasonable, nonetheless, largely
because it was unduly influenced by a prior conviction that
was more than twenty years old. Recognizing that a simple
UNITED STATES v. RESSAM 2847
disagreement with the district court’s sentencing decision was
not enough under the abuse of discretion standard to support
a conclusion that the sentence was substantively unreason-
able, we held that “we may reverse if, upon reviewing the
record, we have a definite and firm conviction that the district
court committed a clear error of judgment in the conclusion
it reached upon weighing the relevant factors.” Id. at 1055.
We adhere to the formulation announced in Amezcua-
Vasquez. That requirement for “a definite and firm conviction
that the district court committed a clear error of judgment” is
consistent with the general description of the abuse of discre-
tion standard we recently articulated in Hinkson, as quoted
above at 2844.
As the Second Circuit has explained, the substantive rea-
sonableness standard has much in common with other defer-
ential standards applied in other contexts, such as the
“manifest-injustice” and “shocks-the-conscience” standards:
First, they are deferential to district courts and pro-
vide relief only in the proverbial “rare case.” Second,
they are highly contextual and do not permit easy
repetition in successive cases. Third, they are depen-
dent on the informed intuition of the appellate panel
that applies these standards. In sum, these standards
provide a backstop for those few cases that, although
procedurally correct, would nonetheless damage the
administration of justice because the sentence
imposed was shockingly high, shockingly low, or
otherwise unsupportable as a matter of law. Of
course, an “intuitive” review cannot be an invitation
to mischief by tinkering with any sentence that
appellate judges simply do not like. Responsible
appellate review of sentences necessarily places
great trust in sentencing courts while still recogniz-
ing the responsibility to examine the actual sentence
2848 UNITED STATES v. RESSAM
itself (quite apart from the procedures employed in
arriving at the sentence).
United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009) (cita-
tions and footnote omitted), cert. denied 131 S. Ct. 140(2010).
In sum, our review of the substantive reasonableness of a
sentence is deferential and will provide relief only in rare
cases. Such appellate review necessarily turns on the particu-
lars of each case.8
IV. Ressam’s Sentence
Recognizing the deference owed to the district court, it is
our conclusion that the sentence imposed by the district court
in this case was substantively unreasonable. We reach that
conclusion after examining the “totality of circumstances,” as
directed by Gall, 552 U.S. at 50, and Carty, 520 F.3d at 993.
A. Section 3553(a) Factors and the Guidelines Range
To put the sentence imposed on Ressam in context, we
8
Rigas contains another useful observation regarding the appropriate
standard of review that we believe is worth noting and with which we
agree:
To say that a sentence is “substantively unreasonable” is not to
say that “no reasonable person” would have imposed such a sen-
tence. We may generally assume that federal judges are “reason-
able” people in the commonsense definition of the term.
Nonetheless, even reasonable individuals can make unreasonable
decisions on occasion. The Supreme Court recognizes this and
has charged the Courts of Appeals with reviewing the substance
of sentences for reasonableness, and we cannot employ a defini-
tion of “substantive unreasonableness” that would render the
required review a dead letter.
583 F.3d at 123 n. 5. The law imposes a “no reasonable person” standard
in other contexts, but it does not apply here.
UNITED STATES v. RESSAM 2849
begin with the factors to be considered by the district court in
sentencing, as set forth in 18 U.S.C. § 3553(a), and the now-
advisory Sentencing Guidelines range.
In our en banc decision in Carty, we outlined in bullet
points our understanding of basic sentencing principles drawn
from the relevant Supreme Court precedents regarding sen-
tencing, notably Booker, Gall, Rita v. United States, 551 U.S.
338 (2007), and Kimbrough v. United States, 552 U.S. 85(2007). Two of those bullet points described the district
court’s responsibility with explicit reference to § 3553(a):
• The overarching statutory charge for a district court
is to “impose a sentence sufficient, but not greater
than necessary” to reflect the seriousness of the
offense, promote respect for the law, and provide
just punishment; to afford adequate deterrence; to
protect the public; and to provide the defendant with
needed educational or vocational training, medical
care, or other correctional treatment. 18 U.S.C.
§ 3553(a) and (a)(2).
....
• The district court should then consider the
§ 3553(a) factors to decide if they support the sen-
tence suggested by the parties, i.e., it should consider
the nature and circumstances of the offense and the
history and characteristics of the defendant; the need
for the sentence imposed; the kinds of sentences
available; the kinds of sentence and the sentencing
range established in the Guidelines; any pertinent
policy statement issued by the Sentencing Commis-
sion; the need to avoid unwarranted sentence dispari-
ties among defendants with similar records who have
been found guilty of similar conduct; and the need to
provide restitution to any victims. 18 U.S.C.
§ 3553(a)(1)-(7); Gall, 552 U.S. at 50 n.6.
2850 UNITED STATES v. RESSAM
Carty, 520 F.3d at 991.
[1] “A substantively reasonable sentence is one that is ‘suf-
ficient, but not greater than necessary’ to accomplish
§ 3553(a)(2)’s sentencing goals.” United States v. Crowe, 563
F.3d 969, 977 n.16 (9th Cir. 2009) (quoting 18 U.S.C.
§ 3553(a)). “The touchstone of ‘reasonableness’ is whether
the record as a whole reflects rational and meaningful consid-
eration of the factors enumerated in 18 U.S.C. § 3553(a).”
United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en
banc) (internal quotation marks and alterations omitted). “In
determining substantive reasonableness, we are to consider
the totality of the circumstances, including the degree of vari-
ance for a sentence imposed outside the Guidelines range.”
Carty, 520 F.3d at 993.
[2] In addition to the requirement to consider and apply the
§ 3553(a) factors, noted above, it is also well established that
the district court must begin the sentencing process “by deter-
mining the applicable Guidelines range.” Carty, 520 F.3d at
991. In reaching its sentencing decision, the “district court[ ]
must . . . remain cognizant of [the Guidelines] throughout the
sentencing process.” Gall, 552 U.S. at 50 n.6; see Carty, 520
F.3d at 991 (the Guidelines “are to be kept in mind throughout
the [sentencing] process” (citing Gall)).
When a sentencing “judge ‘decides that an outside-
Guidelines sentence is warranted, he must consider the extent
of the deviation and ensure that the justification is sufficiently
compelling to support the degree of the variance.’ ” Carty,
520 F.3d at 991 (quoting Gall, 552 U.S. at 50). As the Court
explained in Gall, “a major departure should be supported by
a more significant justification than a minor one.” 552 U.S. at
50.
[3] The Guidelines range for the term of imprisonment for
Ressam, as calculated by the district court and not challenged
by either party, was 65 years to life imprisonment. The district
UNITED STATES v. RESSAM 2851
court did not express any policy disagreements with the
Guidelines and their treatment of Ressam’s crimes, as it could
have under Kimbrough.
[4] Ressam’s sentence of 22 years thus represented a major
departure. We acknowledge that 22 years is not a trivial
period of time, but that sentence still amounted to a reduction
of 43 years, or two-thirds, from the low end of the Guidelines
range. Moreover, 10 of Ressam’s 22 years represent a manda-
tory, consecutive sentence for violation of 18 U.S.C.
§ 844(h)(2). For his other crimes of conviction, the total appli-
cable Guidelines range was 55 years to life, but he received
only 12 more years—a downward departure of more than
three-fourths as to the counts on which the sentencing judge
had discretion.
[5] The Supreme Court has explicitly rejected “the use of
a rigid mathematical formula that uses the percentage of a
departure as the standard for determining the strength of the
justifications required for a specific sentence.” Gall, 552 U.S.
at 47. It has made clear, nonetheless, that we are to consider
the “extent of the deviation and ensure that the justification is
sufficiently compelling to support the degree of the variance.”
Id. at 50. It is in that light that we must assess the district
court’s consideration of the § 3553(a) factors.
B. Nature and Circumstances of the Offense
[6] The first factor identified in § 3553(a) to be considered
in sentencing is “the nature and circumstances of the offense.”
The crimes that Ressam sought to commit were horrific. The
most important reason for our conclusion that the sentence
imposed by the district court was substantively unreasonable
is that the sentence did not properly account for those crimes.
Had Ressam succeeded in his plot to blow up LAX, it
would have resulted in many deaths and injuries, substantial
property damage, and enormous disruption to the nation’s
2852 UNITED STATES v. RESSAM
transportation system. The district court acknowledged that
“Mr. Ressam’s crimes, if carried to their intended conclusion,
would have resulted in the deaths and injuries of hundreds of
innocent people and instilled fear across the country and even
the world.” Many common criminals have been sentenced to
much longer terms for offenses with much less serious conse-
quences.
[7] That Ressam’s crimes were in furtherance of a terrorist
attack compounded the severity of the crimes. Had Ressam
succeeded, “LAX” may well have entered our vocabulary as
a term analogous to “the Oklahoma City bombing” or “9/11.”
His clear intent was to intimidate this nation and the world,
and he sought to influence world events and the conduct of
the United States government through that intimidation. The
Sentencing Guidelines specifically provide for a substantial
upward adjustment for federal crimes of terrorism. U.S.S.G.
§ 3A1.4. The sentence imposed by the district court effec-
tively negated that adjustment.
C. Protection of the Public
[8] Section 3553(a)(2)(C) provides that, in imposing a sen-
tence, the district court should consider the need “to protect
the public from further crimes.” Concern for the threat that
Ressam could pose to our nation is particularly powerful
because under the district court’s sentence, he would be only
51 years old upon his release from prison. Most people are
sufficiently active and capable at age 51 to do considerable
damage, if they are so inclined, and Ressam demonstrated
strongly held beliefs and a willingness to attack American
interests. If and when he is released, he could try again to
blow up LAX or to launch some other attack. To be sure, his
release would come only after many years of imprisonment,
but Ressam would likely be capable of organizing another
attack at that point. Ressam’s release at age 51 could therefore
pose another danger that the district court did not fully take
into proper account.
UNITED STATES v. RESSAM 2853
We share the concern expressed by the Eleventh Circuit in
its recent decision overturning the sentence of Jose Padilla.
United States v. Jayyousi, 657 F.3d 1085, 1117-19 (11th Cir.
2011). Among the reasons cited by that court in holding the
sentence of 17 years and 4 months to be substantively unrea-
sonable was its conclusion that the sentence imposed failed to
protect the public from further crimes. Id. at 1117. The court
pointed out that
[a]lthough recidivism ordinarily decreases with age,
we have rejected this reasoning as a basis for a sen-
tencing departure for certain classes of criminals,
namely sex offenders. We also reject this reasoning
here. “Terrorists, even those with no prior criminal
behavior, are unique among criminals in the likeli-
hood of recidivism, the difficulty of rehabilitation,
and the need for incapacitation.” Padilla poses a
heightened risk of future dangerousness due to his
al-Qaeda training. He is far more sophisticated than
an individual convicted of an ordinary street crime.
Id. (citations and brackets omitted) (quoting Meskini, 319
F.3d at 92); see also United States v. Abu Ali, 528 F.3d 210,
258-65 (4th Cir. 2008) (holding 30-year sentence to be sub-
stantively unreasonable after conviction of conspiracy to
inflict mass civilian casualties and assassination of high pub-
lic officials in the United States, because of recidivism con-
cerns and impermissible comparisons to other terrorism-
related cases), resentencing aff’d, 410 F. App’x 673, 682 (4th
Cir. 2011) (per curiam) (affirming the district court’s imposi-
tion of a life sentence). We follow that reasoning here.
In addition, even if Ressam were incapacitated by the time
of his release, the attention to be generated by his release and
likely return to Algeria could inspire others to try to complete
his mission or to embark on a different attack. The release of
the Lockerbie bomber, Abdelbaset al-Megrahi, from prison in
Scotland because of ill health in 2009 and his subsequent
2854 UNITED STATES v. RESSAM
return to Libya produced an uproar because of precisely that
fear. Although Megrahi may have been in no condition to
launch a new attack himself, there was understandable con-
cern that his presence in Libya could inspire others. Under the
sentence imposed by the district court, Ressam’s release date,
currently projected by the Bureau of Prisons to be July 15,
2019, is not so many years away. His release at that time
would pose a significant danger that the district court failed
to take into account.
D. Ressam’s Cooperation and Character
[9] Section 3553(a)(1) identifies “the history and charac-
teristics of the defendant” as one of the factors to consider in
imposing a sentence. That factor may include the defendant’s
cooperation with authorities.9 The only justifications for the
district court’s substantial downward departure in sentencing
Ressam were his cooperation and, more broadly, his history
and personal characteristics, as expressed in the court’s expla-
nation for the sentence. It was appropriate for the district
court to consider those factors.
When imposing a sentence that is well below the Guide-
lines range because of the assistance provided by a defendant,
however, there must be some indication that the extent of
departure is justified. See United States v. Haack, 403 F.3d
9A defendant’s cooperation may be taken into account in calculating a
Guidelines sentencing range, after granting a motion for a departure under
§ 5K1.1 of the Guidelines. Alternatively, cooperation may be included as
part of consideration of § 3553(a) factors after a Guidelines sentencing
range is calculated. See e.g., United States v. Zolp, 479 F.3d 715, 721 (9th
Cir. 2007) (“the district court did not err by considering [defendant’s]
cooperation as part of its analysis under 18 U.S.C. § 3553(a) rather than
as part of its advisory guidelines calculation”). This is because “ ‘the
scheme of downward and upward ‘departures’ [is treated] as essentially
replaced by the requirement that judges impose a ‘reasonable” sentence.’ ”
Id. at 722 (quoting United States v. Mohamed, 459 F.3d 979, 986 (9th Cir.
2006)).
UNITED STATES v. RESSAM 2855
997 (8th Cir. 2005) (examining the reasonableness of the sen-
tence against the five factors outlined in U.S.S.G. § 5K1.1 and
concluding that the imposition of a 78-month sentence was
not justified where the Guidelines range was 180 months and
the assistance the defendant provided consisted of information
regarding others who were either already under indictment or
were suspects).
There is no doubt that Ressam cooperated with the federal
government and with governments of some other allied
nations, for a period of time. But he did not begin to cooperate
until after he was convicted by the jury and faced life in
prison. The timing of Ressam’s cooperation suggests that it
was prompted by his desire to make the best of a bad situa-
tion, not some altruistic motive, sincere regret, or deeper good
nature.
Moreover, Ressam stopped cooperating. This made it
impossible for the government to proceed with certain prose-
cutions and led to the release of certain suspected terrorists.
At the time his sentence was originally imposed in 2005, there
remained some hope that Ressam might live up to the cooper-
ation agreement that he had signed. That hope was extin-
guished by the time of Ressam’s resentencing in 2008. He
had, in the interim, affirmatively repudiated his agreement to
cooperate, recanted his testimony, and done everything he
could to diminish the assistance he had already provided.
[10] Yet the district court imposed exactly the same sen-
tence in 2008 as it had in 2005, failing to account for the dra-
matic change in circumstances. The court stated in 2008 that
“Ressam’s cooperation, unique in its breadth and scope,
weighed heavily in my initial sentencing decision and its
import has not changed in my analysis today.” Treated as a
factual finding, the district court’s assessment of Ressam’s
cooperation was clearly erroneous.
The district court significantly overvalued the cooperation
provided by Ressam during the time that he provided assis-
2856 UNITED STATES v. RESSAM
tance. “The Guidelines afford the sentencing judge wide lati-
tude in evaluating the ‘significance and usefulness of the
defendant’s assistance,’ but direct courts to give ‘substantial
weight . . . to the government’s evaluation’ of that assistance.”
United States v. Awad, 371 F.3d 583, 586-87 (9th Cir. 2004)
(citing U.S.S.G. § 5K1.1(a)(1) & cmt. background) (alter-
ations in original; some internal quotation marks omitted); see
also U.S.S.G. § 5K1.1 cmt. n.3 (providing that “[s]ubstantial
weight should be given to the government’s evaluation of the
extent of the defendant’s assistance, particularly where the
extent and value of the assistance are difficult to ascertain”).
The district court failed to give “substantial weight” to the
government’s evaluation of the extent of the defendant’s
assistance. Instead, the court credited Ressam’s assessment of
the value of his own cooperation, expressly relying on the
“defendant’s sentencing memorandum submitted before the
July 2005 sentencing hearing” as the basis for its assessment
of the “far-reaching impact of Mr. Ressam’s cooperation on
the investigations and prosecutions of terrorist activities in
this country and abroad.” That consideration failed to take
into account the effect of Ressam’s subsequent recantations.
More broadly, Ressam and his counsel were in no position
to evaluate the effects of and benefits from his cooperation.
Notably, they could not know what the government already
knew or would have been able to learn from other sources.
That is why the Guidelines expressly require district courts to
give substantial weight to the evaluation by the government.
It is the government that is in the position to know the effects
of defendants’ provided information, and that is especially
true with information of the kind provided by Ressam.
Much of the information Ressam provided was not unique
to him, according to the government. Moreover, as the gov-
ernment argued, Ressam’s “most valuable information—that
leading to the charges against Doha and Mohamed—cannot
be credited [because] Ressam undermined that value when he
UNITED STATES v. RESSAM 2857
chose to end his cooperation leading to the dismissal of these
charges.”
Similarly, the district court significantly understated the
impact of Ressam’s repudiation of the cooperation agreement
and recantations of his prior statements. The district court
acknowledged “that Mr. Ressam’s later decision to end his
cooperation resulted in the dismissal of two pending prosecu-
tions and the retraction of certain of his statements against
two other terrorist suspects.” But the district court failed to
take into proper account the effect of Ressam’s early cessa-
tion of cooperation or recantations and failed to adjust the
sentence in response.
The district court expressed concern that “[d]ownplaying
the cooperation that Mr. Ressam provided the government
would diminish the likelihood of future cooperation by other
apprehended terrorists.” That assessment appears to us woe-
fully misguided and, if intended as a finding of fact, clearly
erroneous.
Ressam voluntarily, and with advice from counsel, entered
into an agreement with the government in which he promised
full cooperation. Under the terms of that agreement, both par-
ties committed to seeking a sentence of not less than 27 years.
Ressam may have believed, with some justification, that he
could later ask the government to agree to reduce the mini-
mum term, but the agreement he entered into set 27 years as
a floor for the term of imprisonment that either party would
recommend to the court.
But Ressam violated the agreement. Most importantly, he
withheld his cooperation. He compounded the potential ill
effects of his withdrawal by affirmatively disavowing the
information he had already provided. He then argued for a
sentence substantially lower than the 27-year term which the
cooperation agreement provided would be the minimum that
2858 UNITED STATES v. RESSAM
either side would recommend, thus breaching the agreement
in yet another way.
After all that, the district court gave him a sentence well
below the 27-year minimum that was premised on full coop-
eration. The far more likely inference to be drawn from the
court’s sentencing is that a defendant might be able to repudi-
ate a cooperation agreement and recant previous testimony
with no ill effects. Indeed, Ressam appeared to come out
ahead.
It is hard to perceive what reason there is to provide any
reward to a defendant who terminates his cooperation in
breach of the agreement into which he entered and who affir-
matively acts, as Ressam did, to undermine the value of state-
ments that he had already provided. Rewarding such conduct
sends precisely the wrong message to other offenders.
[11] We also find unreasonable and clearly erroneous the
district court’s finding that “Mr. Ressam’s life history and
personal characteristics support favorable sentencing consid-
eration,” in view of the substantial evidence, including the
information contained in the Presentence Report, that Ressam
had for many years violated the laws of many nations and led
a life dedicated to terrorist causes. The district court credited
Dr. Grassian’s favorable report and Ressam’s own character-
ization in his 2005 sentencing memorandum that “by naming
and identifying scores of former associates, Mr. Ressam not
only has imperiled his life, but also has decisively walked
away from the illegality that led to his arrest.” But Ressam’s
subsequent recantations squarely undermined that assessment.
In finding that Ressam was “a quiet, solitary and devout
man whose true character is manifest in his decision to coop-
erate,” the district court simply did not come to grips with the
many facts demonstrating the contrary. Even leaving aside his
plan to blow up LAX, it cannot be overlooked that Ressam
spent nearly a year attending three training camps for Islamic
UNITED STATES v. RESSAM 2859
terrorists in Afghanistan, conspired with other would-be ter-
rorists, used forged documents and false identities on multiple
occasions, had been deported from France as early as 1993,
violated the immigration laws of the United States, France,
and Canada, and planned to rob a bank to obtain funds to
carry out his mission. In the course of robbing the bank, Res-
sam intended to throw a live hand grenade and run if neces-
sary to get away. These facts and others directly refute the
district court’s finding that Ressam is “a quiet, solitary and
devout man whose true character is manifest in his decision
to cooperate.”
Indeed, based on this record, if there was a period of aber-
rant behavior in Ressam’s adult life, it was during the rela-
tively brief time following his conviction when Ressam
provided assistance to the government. His conduct before
and after that limited period contradicts the district court’s
assessment of his character.
[12] Even if, in the end, it might be determined that Res-
sam should be given some credit for his cooperation and per-
sonal characteristics, that credit is not nearly strong enough to
justify the substantial downward departure provided in the
district court’s 22-year sentence.
E. The Need to Avoid Unwarranted Sentencing
Disparities
[13] A factor the district court should consider in fashion-
ing an appropriate sentence is “the need to avoid unwarranted
sentence disparities among defendants with similar records
who have been found guilty of similar conduct.” 18 U.S.C.
§ 3553(a)(6). The explanation given by the district court for
the sentence imposed on Ressam referred to sentences
imposed on his co-conspirators, Haouari and Meskini, and on
others convicted for similar misconduct, John Walker Lindh,
Imran Mandhai, and most significantly, Jose Padilla. The dis-
trict court expressly prefaced its discussion of others con-
2860 UNITED STATES v. RESSAM
victed of similar misconduct with the caveat that “[t]hese
cases involved different sets of facts and did not influence my
decision in determining an appropriate sentence in this case,”
but the court nonetheless went on to describe the sentences at
some length and compare each case to Ressam’s. It is thus
appropriate for us to do so as well. We conclude that those
comparisons did not justify Ressam’s sentence.
Ressam’s co-conspirators presented very different circum-
stances. Haouari did not present a parallel case because
Haourai did not participate in the plan to blow up LAX nearly
to the extent that Ressam did. Haouari was convicted of con-
spiracy for providing material support to Ressam on the
strength of evidence showing that Ressam had made several
remarks to Haouari indicating that Ressam was engaged in
“important” business in America that involved “fear and dan-
ger.” Haouari, 2001 WL 1154714, at *2. Providing support to
Ressam with the knowledge that Ressam was engaged in
some kind of dangerous business in the United States was not
the equivalent of planning out and taking several material
steps toward the actual bombing of LAX. As for Meskini,
while Ressam rejected a pre-trial plea offer and elected to put
the government to its burden of proof, Meskini pled guilty to
the charges in the indictment. Meskini, 319 F.3d at 91.
The sentences of Irham Mandhai, John Walker Lindh, and
Jose Padilla, other sentences identified by the district court,
did not offer appropriate comparisons, either. Like Meskini,
Mandhai and Lindh pled guilty. See United States v. Mandhai,
375 F.3d 1243, 1245 (11th Cir. 2004) (noting that Mandhai
pled guilty and received 11 years and 8 months); United
States v. Lindh, 227 F. Supp. 2d 565, 566, 571-72 (E.D. Va.
2002) (sentencing Lindh, after he entered a plea of guilty, to
20 years, the statutory maximum on the counts charged).
[14] As noted above, the sentence of Jose Padilla was
recently overturned by the Eleventh Circuit as substantively
unreasonable, so that comparison is no longer available to
UNITED STATES v. RESSAM 2861
support the sentence imposed on Ressam by the district court.
More importantly, the decision was based in substantial part
on comparisons to sentences imposed in other terrorism cases
drawn by the district court in sentencing Padilla that were
held by the Eleventh Circuit to be “impermissible.” Jayyousi,
657 F.3d at 1117. “In comparing Padilla to criminals like
David Hicks, Yahya Goba, and Imran Mandhai who had
either been convicted of less serious offenses, lacked exten-
sive criminal histories, or had pleaded guilty, the district court
erred.” Id. at 1118. We agree and reject the comparison of
Ressam’s sentence to defendants who pleaded guilty or were
convicted of much less serious offenses.
F. Recommendations and Offers by the Government
[15] It is for the same reason that we reject any comparison
with the offer made by the government to Ressam, before
trial, of 25 years in exchange for a guilty plea. Ressam argued
at sentencing that the starting point to determine the appropri-
ate downward departure for his cooperation should be that
offer of 25 years, made at a time the government was uncer-
tain of its ability to obtain a conviction. But Ressam rejected
the offer, electing to require the government to prove its case.
It did.
After the conviction, the government made different sen-
tencing recommendations at different times. At the 2005 sen-
tencing, the government recommended a sentence of 35 years.
In 2008, the government’s sentencing memorandum filed in
advance of the sentencing hearing recommended 45 years. At
the hearing itself, the government withdrew that position and
recommended life imprisonment.
The district court did not cite any recommendation made by
the government in explaining the sentence it imposed in either
2005 or 2008, and the government’s recommendations were
not binding on the district court in any event. Nonetheless, the
pre-trial offer and the post-conviction recommendations have
2862 UNITED STATES v. RESSAM
been referred to frequently in the argument on appeal, and the
dissenting opinion refers, at 2870, to the 35-year recommen-
dation made by the government in 2005. Ressam pointed to
them to suggest that the district court’s sentence of 22 years
was reasonable because it was within a reasonable range of
what the government itself sought. The government
responded that it should not be bound, and that we should not
be persuaded, by recommendations it made when the relevant
circumstances appeared different. That was certainly true for
the pre-trial plea offer, as discussed above. It was also true for
the recommendation made in 2005, when there remained hope
that Ressam might resume cooperation.
[16] We do not need to comment on the comparisons to the
government’s recommendations in 2008 of 45 years and then
of life imprisonment. The 22-year sentence imposed by the
district court in 2008 is too far below both of the sentence rec-
ommendations by the government at that time to obtain any
support from them.
V. The Dissenting Opinion
As noted above, at 2845-46, we believe that the dissenting
opinion is mistaken primarily because it disregards our
responsibility to review a sentence for substantive reasonable-
ness. It offers little defense on the merits of the sentence
imposed by the district court, perhaps in recognition that it is
a difficult sentence to defend.
It is not true that the district court’s sentence was based on
“nothing that could be said to be ‘illogical, implausible, or
without support in the record.’ ” Dissenting op. at 2875 (citing
Hinkson, 585 F.3d at 1251). All of those descriptions apply,
as we have detailed over the last several pages. We highlight
here just a few points of our disagreement with the dissenting
opinion.
[17] The dissent complains that we failed to give sufficient
regard to the district court’s evaluation of Ressam’s coopera-
UNITED STATES v. RESSAM 2863
tion and its termination. It contends that “the district court’s
assessment of the net value and the weight it assigned that
value as a sentencing factor were matters within its discretion
to decide.” Dissenting op. at 2876. We agree, but the exercise
of that discretion is subject to review, and we conclude that
the district court abused its discretion. To begin with, the dis-
senting opinion fails to explain why Ressam should be given
any credit for assistance after he breached the cooperation
agreement, stopped providing assistance, and did everything
he could to undermine the value of testimony and information
he had previously provided, let alone why he received exactly
the same credit he was previously given by the district court
in 2005, prior to his repudiation. That behavior did not reflect
personal history and characteristics that merited reward. More
specifically, we conclude that the district court abused its dis-
cretion because it overvalued Ressam’s cooperation and
undervalued the impact of his later repudiation, for the rea-
sons discussed above, at 2855-57. We do not suggest that “the
district court must rubber-stamp the government’s sentencing
positions,” Dissenting op. at 2877, but the district court must
give “ ‘substantial weight . . . to the government’s evaluation’
of that assistance,” Awad, 371 F.3d at 586-87 (citing U.S.S.G.
§ 5K1.1(a)(1) & cmt. background), and it failed to do so here.
The dissent takes issue with what it describes as our evalua-
tion of Ressam’s character. It argues that we were wrong in
finding clearly erroneous the district court’s description of
Ressam as “quiet, solitary, and devout” and its conclusion that
this history supported favorable sentencing consideration. It
argues that the district court was, in that characterization, “ac-
curately describing what the record showed about the defen-
dant’s life before his mid-twenties.” Dissenting op. at 2881.
But, as we described above, notably at 2858-59, the record
demonstrates that Ressam for many years violated the laws of
many nations and dedicated his life to terrorist causes. That
history does not support favorable sentencing consideration.
That Ressam may have been “quiet, solitary, and devout” in
his younger years is beside the point.
2864 UNITED STATES v. RESSAM
Moreover, that a defendant may be “quiet” and “solitary”
does not itself justify a lighter sentence. Loners are not neces-
sarily law-abiding; some of the worst offenders have been
“quiet” and “solitary.” Besides, Ressam was not all that quiet
and solitary. He conspired with others in his criminal activi-
ties, through which he sought to make a very large noise. To
the extent that he acted alone in these crimes it was because
the other members of his cell had immigration problems and
could not get to Canada. That does not justify a lighter sen-
tence. Nor is being “pious” necessarily a virtue. Ordinarily,
religious faith is a positive influence, but Ressam’s extreme
and warped beliefs motivated him to wage war on this country
and to try to kill innocent people. That does not justify a
lighter sentence, either.
The dissent contends that our decision improperly treats
terrorism differently from other offenses and “thus flies in the
face of the Congressionally sanctioned structure of sentencing
that applies to terrorism as well as all other kinds of federal
criminal offenses.” Dissenting op. at 2881. But it was the dis-
trict court that treated these crimes differently by disregarding
the established sentencing structure. The seriousness of Res-
sam’s offense is taken into account in the criminal statutes
and in the Sentencing Guidelines, but the district court paid
essentially no attention to the advisory sentencing range,
imposing a sentence 43 years, or two-thirds, below the low
end of the range—exactly the same sentence that it had
imposed in 2005 when it failed to calculate the Guidelines
range.
The Supreme Court in Gall explicitly instructed us to con-
sider, on appellate review, the “extent of the deviation [from
the Guidelines range] and ensure that the justification is suffi-
ciently compelling to support the degree of the variance.”
Gall, 552 U.S. at 47. The justification provided by the district
court is not nearly compelling enough to justify the degree of
variance here.
UNITED STATES v. RESSAM 2865
VI. Conclusion
[18] Because we are left with a definite and firm convic-
tion that the district court committed a clear error of judgment
in sentencing Ressam as it did, including by basing that sen-
tence on several findings that were clearly erroneous, the sen-
tence is vacated as substantively unreasonable, and the case
is remanded to the district court for resentencing.10
SENTENCE VACATED; REMANDED FOR RESEN-
TENCING.
REINHARDT, Circuit Judge, with whom KOZINSKI, Chief
Judge, and WARDLAW, Circuit Judge, join, specially con-
curring:
Although I concur in Judge Clifton’s majority opinion, I
write separately to explain the reasons for my hesitation in
doing so.
I do not believe that this is an appropriate case in which to
establish general principles governing when “substantive
unreasonableness” will warrant vacating a sentence imposed
by the district court. As the majority opinion states, decisions
made under the standard applicable to substantive unreason-
ableness are “highly contextual and do not permit easy repeti-
tion in successive cases.” Majority op. at 2847 (quoting
United States v. Rigas, 583 F.3d 108, 123 (2d. Cir. 2009)). I
agree that in substantive unreasonableness cases, as in certain
other categories of cases, legal principles developed in one
10
The previous opinion for our court by the three-judge panel also
directed that on remand the case be assigned to a different district judge.
The government did not request that order of reassignment, and it reiter-
ated that position during oral argument before this en banc panel. With
confidence that the district court will take heed of this opinion, we do not
order such reassignment.
2866 UNITED STATES v. RESSAM
case or set of cases are not easily extrapolated and applied to
other cases. The more specific we try to be as to how we must
go about determining whether a sentence is substantively
unreasonable, the less likely that the rules we adopt will bring
us to a just and fair result in the wide range of cases that will
come before us. Here, this principle is at its apex.
No case could be more atypical and less suited for the
development of general substantive unreasonableness rules
than the case of a foreign enemy terrorist who enters the
United States to wage war on this nation. Our general sen-
tencing principles do not easily fit this category of defendant,
much less our principles regarding substantive unreasonable-
ness. For example, as the majority opinion correctly states, the
“overarching statutory charge for a district court is to ‘impose
a sentence sufficient but not greater than necessary’ ” to fulfill
certain objectives, one of which is “to provide the defendant
with needed educational or vocational training, medical care,
or other correctional treatment.” Majority op. at 2849 (quoting
United States v. Carty, 520 F.3d 984, 991 (9th Cir. 2008) (en
banc) (quoting 18 U.S.C. § 3553(a))). Surely, this objective is
wholly inapplicable in the case of a foreign enemy terrorist.
Similarly, a significant factor in determining the appropriate
length of a sentence for those committing criminal offenses is
ordinarily their past criminal history. See id. at 2849-50. What
is a reasonable sentence for a first time offender will often be
unreasonable for a defendant with a lengthy criminal record,
and vice-versa. This is surely not the case with a foreign
enemy terrorist. His previous criminal record is wholly irrele-
vant. Likewise, the need to “afford adequate deterrence” has
little relevance in the case of a foreign enemy terrorist: the
likelihood that those who seek at the behest of Al Qaeda or
similar groups to damage our country will pay any heed to the
length of the sentence they may face is nil.
Nevertheless, we must decide what is a substantively
unreasonable sentence in Ressam’s case. Because we do not
distinguish in our statutes or guidelines between the length of
UNITED STATES v. RESSAM 2867
sentences for ordinary criminals and foreign enemy terrorists,
we start with the applicable statutes, which in most cases give
the district court a wide amount of discretion. We then apply
the Sentencing Guidelines, which although advisory, provide
a starting point from which the district court may, in its dis-
cretion, vary upwards or downwards after considering the
statutes, Guidelines sentencing principles, and applicable
Supreme Court and other controlling precedent. In Ressam’s
case, however, almost one half of the 22 year sentence
imposed by the district court was non-discretionary because
Ressam’s conviction under 18 U.S.C. § 844(h)(2) for carrying
an explosive in the commission of a felony subjected him to
a mandatory consecutive sentence of ten years.
I find very little that would instruct a district court as to
how to treat a foreign enemy terrorist other than to apply the
terms of the statute under which he is convicted and next to
consider the applicable guidelines range. I agree with both
parties and the district judge that the extent to which the con-
victed foreign enemy terrorist has cooperated with and pro-
vided assistance to the United States in its war on terror may
be a significant factor in reducing what might otherwise be an
extremely lengthy sentence to a somewhat lesser one. Here,
the defendant’s sentence under the statute and the advisory
guidelines would in the absence of such cooperation or other
mitigating factors be a minimum of 65 years and a maximum
of life in prison.
It appears to me that aside from cooperation with the gov-
ernment there are no other mitigating factors in the case of a
foreign enemy terrorist, Ressam or any other. Whether when
captured on American soil such foreign nationals should be
sentenced under our general criminal statutes and afforded the
same sentencing treatment as domestic criminals or whether
their sentencing should be pursuant to special statutes or rules
designed to afford particularized treatment to foreign enemies
of the state is another matter — a matter for Congress, or pos-
sibly in some cases the Executive Branch. As long, however,
2868 UNITED STATES v. RESSAM
as courts are required to sentence such defendants under laws
and rules applicable to ordinary domestic criminals, there
seems to be little about the case of a foreign terrorist that
would ordinarily justify less than a guideline sentence, other
than his cooperation with the government or possibly a
change of heart on his part. Here, the record clearly does not
reflect the latter.
I agree with the majority that it is clear that the district
court erroneously evaluated the extent of Ressam’s coopera-
tion. In particular, I find that his undermining of the prosecu-
tion of Abu Doha, a significant Al Qaeda figure, and Samir
Ait Mohamed, a less important operative, in violation of his
cooperation agreement, as well as his repudiation of the
agreement itself, served to lessen significantly whatever credit
he might otherwise have received for his limited implementa-
tion of the agreement. In any event, I would conclude that to
the extent that the sentence was reduced substantially on
account of his purported cooperation with the government,
that reduction was clearly excessive and led directly to a sen-
tence that was substantively unreasonable.
As the majority opinion notes, “[W]e review the substan-
tive reasonableness of a criminal sentence under what the
Supreme Court has described as the ‘familiar abuse-of-
discretion’ standard of review.” Majority op. at 2844 (quoting
Gall v. United States, 552 U.S. 38, 46 (2007)). We have held
that a district court abuses its discretion where it fails to
“identif[y] the correct legal rule,” United States v. Hinkson,
585 F.3d 1247, 1262 (9th Cir. 2009) (en banc), or where, hav-
ing identified the applicable legal standard, it applies the stan-
dard in such a way as to leave us with “the definite and firm
conviction that a mistake has been committed,” id. (quoting
United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).1
1
In Hinkson, we noted that in reviewing the factual aspects of the dis-
trict court’s determination we may feel such a “definite and firm convic-
tion” only when the district court’s application of the applicable legal rule
was “(1) ‘illogical,’ (2) ‘implausible,’ or (3) without ‘support in inferences
that may be drawn from facts in the record.’ ” Id. (quoting Anderson v.
Bessemer City, 470 U.S. 564, 577 (1985)).
UNITED STATES v. RESSAM 2869
In the end, in this case the statute and the guidelines leave
us with a guideline range of 65 years to life. Treating Res-
sam’s conviction, as we must, as ordinary criminal offenses
rather than as acts of war, the offenses are indeed, as the
majority states, “horrific.” Majority op. at 2851. Taking into
account a modest reduction for his initial cooperation with the
government, I nevertheless have a “definite and firm convic-
tion” that in this case a sentence of 22 years is without support
in inferences that may be drawn from facts in the record and,
without question, substantively unreasonable. In fact, treating
the offense as ordinary criminal conduct, as I must, my defi-
nite and firm conviction would be that any sentence lower
than one within the guideline range would meet that descrip-
tion.
An abuse of discretion standard is, as the majority opinion
acknowledges, not always “clear or simple to apply.” Major-
ity op. at 2844. This is especially true in determining when we
are left with “a definite and firm conviction” that the district
court committed a clear error of judgment. Here, however, I
have no difficulty in concluding without any reservation that
under our ordinary criminal law the offense of which Ressam
was convicted, specifically his participating in the conspiracy
to blow up the Los Angeles International Airport on New
Year’s Day of the year 2000, and to murder hundreds or thou-
sands of travelers and workers so as to create a state of chaos
nationwide if not worldwide, mandates a sentence no less than
that within the guideline range of 65 years to life.
In short, I concur generally with the majority and agree that
the 22 year sentence must be vacated as substantively unrea-
sonable, given that we are compelled to treat a foreign enemy
terrorist in the same manner as we would a domestic criminal.
What sentence I might otherwise find reasonable or unreason-
able for a foreign enemy terrorist is of no import here and is
a question that I am glad that I do not have to answer. Acts
of war are indeed different from ordinary crimes, and our cur-
rent war with terrorism is indeed different from ordinary wars.
2870 UNITED STATES v. RESSAM
I am far from certain that our government or our citizens have
yet determined how to deal with these differences.2
Although I am concerned that a district judge might ordi-
narily have difficulty on remand in viewing this matter afresh
given the sentencing history in this case, the district judge
here is a dedicated, experienced and highly respected jurist
who is fully capable of completing the assignment with which
he has so dutifully struggled for the past 12 years. Accord-
ingly, I, like the majority, would not remand to another judge.
SCHROEDER, Senior Circuit Judge, joined by PAEZ,
BERZON and MURGUIA, Circuit Judges, dissenting:
I respectfully dissent. The majority holds substantively
unreasonable a 22-year sentence that is 13 years less than the
government’s request in its sentencing memorandum, and
only 8 years less than what the government conceded at oral
argument it would have accepted without appealing to this
court. In light of the district court’s sentencing discretion, I
would exercise a more appropriate level of deference, and
affirm.
The district court’s explanation of this sentence shows that
the court followed this circuit’s law. See United States v.
Maier, 646 F.3d 1148, 1156 (9th Cir. 2011) (citing United
States v. Hinkson, 585 F.3d 1247, 1261-62 (9th Cir. 2009) (en
banc)). The court noted it could not presume that the advisory
Guidelines range is reasonable. See United States v. Carty,
520 F.3d 984, 991 (9th Cir. 2008) (en banc). The court said
2
Indeed, both Congress and the Executive Branch continue to be
engaged in determining how foreign enemy terrorists should be treated.
See, e.g., Statement by the President on H.R. 1540 (Dec. 31, 2011), avail-
able at http://www.whitehouse.gov/the-press-office/2011/12/31/statement-
president-hr-1540.
UNITED STATES v. RESSAM 2871
that it had considered the 18 U.S.C. § 3553(a) factors, in addi-
tion to the Guidelines, in arriving at the sentence it imposed.
It went through each of those factors, explaining the weight
it assigned to each, and why. The district court had lived with
the case for nine years and its explanation reflects its familiar-
ity with the history of the case and with the defendant.
The government has at no time contended that the district
court committed procedural error in imposing this sentence,
or that it made any clearly erroneous findings. In their sen-
tencing memoranda, both sides sought sentences that
amounted to substantial downward variances from the bottom
end of the Guidelines range, which was 65 years. The defen-
dant asked for a sentence of 15 years, and the government for
45. The 22-year sentence imposed was thus well within the
range of alternatives proposed to the district court. (At the
sentencing colloquy, only after the defendant said he would
not object to any sentence that the district court imposed—
even life—did the government up its recommendation to life.)
To justify its conclusion that the sentence is too low, the
majority focuses on the district court’s explanation of the
weight it gave two of the relevant § 3553(a) factors.1 The
1
Section 3553(a) directs a court to “impose a sentence sufficient, but not
greater than necessary, to comply with the purposes set forth in paragraph
(2) of this subsection. The court, in determining the particular sentence to
be imposed, shall consider—
(1) the nature and circumstances of the offense and the history
and characteristics of the offender;
(2) the need for the sentence imposed—(A) to reflect the serious-
ness of the offense, to promote respect for the law, and to provide
just punishment for the offense; (B) to afford adequate deterrence
to criminal conduct; (C) to protect the public from further crimes
of the defendant; and (D) to provide the defendant with needed
educational or vocational training, medical care, or other correc-
tional treatment in the most effective manner;
(3) the kinds of sentences available;
2872 UNITED STATES v. RESSAM
majority insists, though the government has never argued, that
the explanation included at least two “findings of fact” that
were “clearly erroneous.” The first and most important was
the weight given to Ressam’s cooperation, and a second was
the court’s characterization of the life Ressam lived before his
offense conduct. Yet these were not findings of fact, but part
of the court’s explanation of how it weighed the statutory sen-
tencing factors.
The majority undoes the district court’s sentence, and in so
doing commits the same error that the Supreme Court
ascribed to the Eighth Circuit in Gall v. United States, 552
U.S. 38 (2007). The Supreme Court faulted that circuit court
for reweighing the § 3553(a) factors when the circuit court
didn’t like a district court sentence that was far below the
(4) the kinds of sentence and the sentencing range established for
—(A) the applicable category of offense committed by the appli-
cable category of defendant as set forth in the guidelines— (I)
issued by the Sentencing Commission pursuant to section
994(a)(1) of title 28, United States Code, subject to any amend-
ments made to such guidelines by act of Congress (regardless of
whether such amendments have yet to be incorporated by the
Sentencing Commission into amendments issued under section
994(p) of title 28); and (ii) that, except as provided in section
3742(g), are in effect on the date the defendant is sentenced
...;
(5) any pertinent policy statement—(A) issued by the Sentencing
Commission pursuant to section 994(a)(2) of title 28, United
States Code, subject to any amendments made to such policy
statement by act of Congress (regardless of whether such amend-
ments have yet to be incorporated by the Sentencing Commission
into amendments issued under section 994(p) of title 28); and (B)
that, except as provided in section 3742(g), is in effect on the date
the defendant is sentenced;
(6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct; and
(7) the need to provide restitution to any victims of the offense.”
UNITED STATES v. RESSAM 2873
Guidelines range. In Gall the district court had given proba-
tion to a defendant involved in a large drug conspiracy and
facing a Guidelines minimum of 30 months. The Supreme
Court said:
The Court of Appeals clearly disagreed with the dis-
trict judge’s conclusion that consideration of the
§ 3553(a) factors justified a sentence of probation; it
believed that the circumstances presented here were
insufficient to sustain such a marked deviation from
the Guidelines range. But it is not for the Court of
Appeals to decide de novo whether the justification
for a variance is sufficient or the sentence reason-
able. On abuse-of-discretion review, the Court of
Appeals should have given due deference to the Dis-
trict Court’s reasoned and reasonable conclusion that
the § 3553(a) factors, on the whole, justified the sen-
tence. Accordingly, the judgment of the Court of
Appeals is reversed.
Id. at 59-60.
The majority makes the same mistake. When the three-
judge panel reversed Ressam’s sentence, we voted to take this
case en banc because, presumably, a majority of our active
judges had serious reservations about the wisdom of the panel
majority’s reversal, given the discretion the district court
enjoys in sentencing. The dissent of Judge Fernandez from the
original panel opinion had it right:
So where does that leave the majority? 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 sen-
tences 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
2874 UNITED STATES v. RESSAM
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. . . .
In short, the sentence was neither procedurally erro-
neous nor substantively unreasonable. See Carty,
520 F.3d at 993. Even if we have to grit our teeth to
do so, we should let it be.
As well we should have had reservations about the panel
majority’s reversal of the district court’s sentence. Only a year
or so earlier, our court had gone en banc in Hinkson, to con-
sider how the “abuse of discretion” standard of review “limits
our power as an appellate court to substitute our view of the
facts, and the application of those facts to law, for that of the
district court.” 585 F.3d at 1250. We said that we were
approving a “newly stated ‘abuse of discretion’ test [that]
requires us first to consider whether the district court identi-
fied the correct legal standard for decision of the issue before
it . . . [and] then requires us to determine whether the district
court’s findings of fact and its application of those findings of
fact to the correct legal standard, were illogical, implausible,
or without support in inferences that may be drawn from facts
in the record.” Id. at 1251; see also Maier, 646 F.3d at 1156
n.3.
Such review for abuse of discretion is not rubber-stamping.
It is the role of the appellate courts as mandated by the
Supreme Court. See Gall, 552 U.S. at 57 (after review for pro-
cedural error, the appellate court then considers “substantive
reasonableness . . . under an abuse-of-discretion standard”).
Thus to me the majority opinion is all the more disturbing,
because while it cites Hinkson, it never comes to grips with
the impact Hinkson’s holding should have had on this case.
UNITED STATES v. RESSAM 2875
There is no question in my mind that the district court in this
case identified the correct legal standard for its decision, as
laid down by the Guidelines and § 3553(a). It applied that
standard to the facts before it, explaining its application of the
§ 3553(a) factors and relying on nothing that could be said to
be “illogical, implausible, or without support” in the record.
Hinkson, 585 F.3d at 1251.
This is best illustrated by comparing the way the district
court evaluated the defendant’s cooperation with the way the
majority attempts to disregard it. The majority’s obsession
with the magnitude of the crime the conspiracy planned to
commit has led the majority to distort both the record and
how the district court exercised its discretion on the basis of
that record. The majority has apparently decided that the dis-
trict court both weighed Ressam’s cooperation too heavily
and failed adequately to account for the fact that it ended. The
district court’s explanation of how it weighed Ressam’s coop-
eration, however, was not a finding of fact susceptible to clear
error review. Rather, the court explained how it weighed the
statutory sentencing factors, which must include, in addition
to the nature and circumstances of the crime, the defendant’s
history and characteristics. § 3553(a)(1). The Guidelines, in
§ 5K1.1, allow the government to request a downward depar-
ture for substantial assistance, and the government asked for
one here. At sentencing, the district court reviewed Ressam’s
history of cooperation, including the benefits of his coopera-
tion and the unfortunate consequences of his cessation and
partial recantation. That history is fully in accord with the
record in this case.
Of particular salience to the district court was the intelli-
gence Ressam provided to the United States and to foreign
governments about terrorist methods and organizations. The
majority brushes this information aside by noting the govern-
ment’s assertion that the information Ressam provided was
not unique to him. While some of this information was previ-
ously known to the United States intelligence community,
2876 UNITED STATES v. RESSAM
Ressam’s position as an unclassified source permitted the
United States to disseminate this intelligence to foreign allies.
That was what the district court relied upon.
Other evidence in the record supports the district court’s
assessment of the overall value of Ressam’s cooperation. The
United States Attorney for the Southern District of New York
filed a thirty-nine page letter with the court below, detailing
how Ressam had earlier provided extensive cooperation.
Although the end of Ressam’s cooperation burdened the gov-
ernment’s ability to pursue several criminal prosecutions, he
provided a wealth of information otherwise not susceptible to
later recantation or retraction. Ressam also provided, for
example, operational assistance to investigators tasked with
defusing the explosive device carried by Richard Reid, the
“shoe bomber.” The district court therefore accurately charac-
terized Ressam’s role as an informant as having contributed
“extensive intelligence that proved to be invaluable in the
fight against international terrorism.”
Having concluded, incorrectly, that Ressam’s information
had no value, the majority dismisses as “clearly erroneous”
the district court’s observation that recognizing the value of
Ressam’s cooperation would serve as an incentive for future
terrorist informants. The problem is that while the district
court focused on the net value to the government of Ressam’s
cooperation—taking into account its cessation—the majority
focuses on the cessation and never confronts the district
court’s assessment of net value.
The majority goes so far as to suggest that the district court
abused its discretion by not adopting the government’s posi-
tion that Ressam should receive no credit for his cooperation
because it did not continue. The majority may disagree with
the weight the district court assigned to the net value of Res-
sam’s cooperation, yet the district court’s assessment of the
net value and the weight it assigned that value as a sentencing
factor were matters within its discretion to decide. See United
UNITED STATES v. RESSAM 2877
States v. Gutierrez-Sanchez, 587 F.3d 904, 908 (9th Cir.
2009). The district court considered the entire history of Res-
sam’s cooperation. Just as we should not rubber-stamp the
district court, we should not suggest the district court must
rubber-stamp the government’s sentencing positions. See,
e.g., United States v. Livesay, 525 F.3d 1081, 1091 (11th Cir.
2008) (“[A]fter the government has made a motion for down-
ward departure pursuant to U.S.S.G. § 5K1.1 the government
has no control over whether and to what extent the district
court will depart from the Guidelines.”). The Guidelines
require the court to give “substantial weight” to the govern-
ment’s assessment, U.S.S.G. § 5K1.1, cmt. 3, but any such
assessment must reflect the entire history of cooperation up to
the time of sentencing. See United States v. Awad, 371 F.3d
583, 588 (9th Cir. 2004).
It is thus important to comprehend fully how scrupulously
the district court followed § 3553(a) in weighing each of its
factors. I therefore turn first to the district court’s analysis,
and then, sadly, observe the similarities of this case to Gall—
a further illustration of Santayana’s adage that those who do
not study history are condemned to repeat it. George Santa-
yana, 1 The Life of Reason 284 (1905).
The district court, true to the commands of § 3553(a),
expressly recognized the need for the sentence to reflect the
seriousness of Ressam’s offenses, and to provide just punish-
ment and promote respect for the law. The court began by set-
ting forth the legal standard:
The Ninth Circuit has made clear that the Sentencing
Guidelines are only one factor to be considered
among those factors set forth in 18 U.S.C. Section
3553(a), in determining an appropriate sentence. I
may not presume that the Guidelines range is reason-
able. Nor should the Guidelines factor be given more
or less weight than any other factor. Accordingly, I
2878 UNITED STATES v. RESSAM
have also considered the other Section 3553 factors
in arriving at the sentence I am imposing today.
The district court then turned to the seriousness of Ressam’s
offenses:
On the one hand I recognize the need for the sen-
tence imposed to reflect the seriousness of the
offenses Mr. Ressam has committed, to provide just
punishment for those offenses, and to promote
respect for the law. Mr. Ressam’s crimes, if carried
to their intended conclusion, would have resulted in
the deaths and injuries of hundreds of innocent peo-
ple and instilled fear across the country and even the
world. Fortunately, Mr. Ressam’s arrest prevented
such an outcome. Because of the worth of an atten-
tive Port Angeles Customs Inspector, Mr. Ressam’s
crimes did not lead to loss of life or limb, nor
destruction of property. Nevertheless, the serious-
ness and heinousness of the act of terrorism Mr. Res-
sam was carrying out at the time of his arrest cannot
be understated.
The court described Ressam’s cooperation in cases that
were successfully prosecuted, and the basis of the govern-
ment’s motion for a downward departure:
On the other hand, I recognize Mr. Ressam’s exten-
sive and valuable cooperation in the fight against ter-
rorism during the first two years after his trial.
Although it ended unwisely and prematurely, Mr.
Ressam’s cooperation, unique in its breadth and
scope, weighed heavily in my initial sentencing deci-
sion and its import has not changed in my analysis
today. The government’s 5K1.1 motion filed in Feb-
ruary 2003 requested a downward departure from the
Sentencing Guidelines based on Mr. Ressam’s sub-
stantial assistance in the case of United States versus
UNITED STATES v. RESSAM 2879
Moktar Haoauri, a matter prosecuted in the Southern
District of New York in the Summer of 2001 and
resulting in the conviction of Mr. Haouari.
Mr. Haouari was sentenced in 2002 to a term of 24
years’ imprisonment. Mr. Ressam’s testimony at the
trial connected Mr. Haouari to the terrorist plot, of
which Mr. Ressam himself was a part, to bomb the
Los Angeles International Airport on New Year’s
Day 2000. In addition to his substantial cooperation
in that case Mr. Ressam also testified before a Ger-
man tribunal on behalf of the German government in
the trial against Mounir el Motassadeq . . . in
December 2002, which resulted in a conviction and
sentence of 15 years.
The district court then acknowledged the negative effects of
Ressam’s decision to end cooperation and retract his state-
ments, a decision that led to dismissal of two prosecutions. It
concluded other information Ressam provided about interna-
tional terrorist activity outweighed those negative effects:
The Court recognizes that Mr. Ressam’s later deci-
sion 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, Ger-
many, France and Canada extensive intelligence that
proved to be invaluable in the fight against interna-
tional terrorism. The defendant’s sentencing memo-
randum submitted before the July 2005 sentencing
hearing summarizes the far-reaching impact of Mr.
Ressam’s cooperation on the investigations and pros-
ecutions of terrorist activities in this country and
abroad.
2880 UNITED STATES v. RESSAM
Finally, the district court turned to the subject of fairness
and of the impact of confinement Ressam had already and
would continue to experience:
Downplaying the cooperation that Mr. Ressam pro-
vided the government would diminish the likelihood
of future cooperation by other apprehended terror-
ists. Further, doing so would not be fair to Mr. Res-
sam. 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 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 for
his crimes.
The majority thinks that the district court gave too much
weight to the value of Ressam’s cooperation, and too little
weight to the effect of his cessation of cooperation. Yet, as the
discussion above reveals, its position mirrors that of the
Eighth Circuit in Gall, where the Supreme Court described
such reweighing as de novo review that failed to give ade-
quate deference to the district court. The Eighth Circuit in
Gall, for example, had erred by saying that the district court
gave “too much weight to Gall’s withdrawal from the conspir-
acy.” 552 U.S. at 45. The majority here says that the district
court gave too much weight to the information Ressam pro-
vided during his cooperation. If the Eighth Circuit’s conclu-
sion was improper de novo review, then so is the majority’s.
The majority also concludes that the district court was
“clearly erroneous” in characterizing Ressam’s prior life as
“quiet, solitary, and devout,” and that this history “sup-
port[ed] favorable sentencing consideration.” The district
UNITED STATES v. RESSAM 2881
court was accurately describing what the record showed about
the defendant’s life before his mid-twenties, and, in any event,
gave it no undue weight. The district court was following the
statutory requirement that it look both to “the nature and cir-
cumstances of the offense and the history and characteristics
of the defendant.” § 3553(a)(1).
The majority appears to justify its focus on the nature of the
offense, rather than on any of the other relevant statutory fac-
tors, because the majority apparently thinks—as my colleague
Judge Reinhardt’s concurrence makes explicit—that terrorism
is different, and Ressam’s offense more terrible than the dis-
trict court appreciated. Nothing in the record bears this out.
The district court was well aware of the statutory command
to consider the circumstances and seriousness of the offense
in sentencing. § 3553(a)(1). It did consider them, explaining
that the “seriousness and heinousness of the act of terrorism
Mr. Ressam was carrying out at the time of his arrest cannot
be understated.” The district court had to weigh all the factors
in arriving at a sentence sufficient, but not greater than neces-
sary, to serve the purposes of punishment. § 3553(a).
The statutes and Guidelines treat terrorism as a matter of
serious criminal concern, but not as something new and dif-
ferent. The majority’s implicit assumption that terrorism is
different, and must be treated differently, thus flies in the face
of the congressionally sanctioned structure of sentencing that
applies to terrorism as well as all other kinds of federal crimi-
nal offenses. Our courts are well equipped to treat each
offense and offender individually, and we should not create
special sentencing rules and procedures for terrorists. In pre-
siding over the many terrorism-related cases on their dockets,
courts have treated other issues in terrorism cases in ways that
do not differ appreciably from more broadly applicable doc-
trines. See, e.g., Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2079,
2083 (2011) (holding that ordinary qualified immunity stan-
dard protects officials in a suit alleging an unconstitutional
use of the material witness statute for detaining terrorism sus-
2882 UNITED STATES v. RESSAM
pects); Jewel v. Nat’l Sec. Agency, ___ F.3d ___, 2011 WL
6848406, *1, 3-7 (9th Cir. 2011) (concluding that a putative
class representative had constitutional and prudential standing
to challenge the government’s post-September 11 policy of
widespread warrantless eavesdropping); In re Terrorist Bomb-
ings of U.S. Embassies in East Africa, 552 F.3d 157, 167 (2d
Cir. 2008) (applying traditional principles to hold that the
Fourth Amendment’s Warrant Clause has no extraterritorial
application and that foreign searches of U.S. citizens con-
ducted by U.S. agents are subject only to the Fourth Amend-
ment’s requirement of reasonableness); MacWade v. Kelly,
460 F.3d 260, 263 (2d Cir. 2006) (upholding government’s
use of random, suspicionless container searches in the New
York City subway system, on grounds that preventing a sub-
way terrorist attack is a non-investigative special need within
the meaning of Fourth Amendment doctrine); see also Aziz
Huq, Against National Security Exceptionalism, 2009 Sup. Ct.
Rev. 225, 226 (concluding that courts’ responses to national
security emergencies do not treat terrorism as different, but
rather “align more closely with . . . judicial responses to non-
security emergencies”). Just as we have resisted treating ter-
rorism differently in these cases, we ought to resist doing so
in reviewing sentences for reasonableness as well.
The majority expresses concern that the 22 years meted out,
including years already served, means that Ressam will be
only 51 years old at the time of his release. The district court,
of course, was well aware of Ressam’s age, having presided
over his case for nine years and having faced him at two sen-
tencings. The district court thus took into account what the
majority does not: precisely because Ressam is a convicted
terrorist, he will be kept in solitary confinement “in a country
far from his family . . . and will by any measure, be sacrific-
ing a large portion of his life for his crimes.” Ressam is cur-
rently confined at the Administrative Maximum Facility in
Florence, Colorado, where a number of terrorist offenders are
held. There inmates are “sealed off for 23 hours a day in cells
with four-inch-wide windows and concrete furniture,” and
UNITED STATES v. RESSAM 2883
may receive “an hour’s exercise each day in a tiny yard, . . .
alone, . . . if they behave.” Judith Resnik, Essay, Detention,
The War on Terror, and the Federal Courts, 110 Colum. L.
Rev. 579, 678 n.425 (2010) (quoting Peter Finn, Detainees
Face Severe Conditions if Moved to U.S., Wash. Post, Oct. 4,
2009, at A6).
The majority’s assumption that upon release from prison
after decades of such confinement, Ressam would engage in
further terrorist conduct, is speculative, unwarranted, and
without support in the record, including the sealed presen-
tence report. The available evidence in the record reflects
experts’ beliefs that Ressam posed little threat of future dan-
gerousness to himself or others. The sealed presentence report
noted that monthly psychological evaluations were conducted
during Ressam’s time in custody. Ressam’s counsel engaged
Dr. Stuart Grassian, a psychiatrist, to evaluate his mental state
in 2003 and 2004. Dr. Grassian’s report concluded that Res-
sam would not be a danger to the community upon release.
The majority’s assumption of future dangerousness is, there-
fore, contradicted by the record evidence. Its further predic-
tion that Ressam would return to Algeria upon release to
inspire future terrorists, is pure speculation unsupported by
any record evidence.
The majority cites the Eleventh Circuit in United States v.
Jayyousi, 657 F.3d 1085 (11th Cir. 2011), where that court
made a similar assumption of future dangerousness. Although
the Eleventh Circuit acknowledged the general presumption
that recidivism rates decrease as offender age increases, it
relied on its previous holding that the presumption does not
apply to certain sex offenders, and held the presumption
should not apply to terrorists either. The comparison of terror-
ists to sex offenders in terms of their recidivism is criticized
in Judge Barkett’s dissent, and I believe the dissent has the
better of the argument. See id. at 1117-19 (noting that the pre-
vious holding as to sex offenders had been based on empirical
studies about recidivism, and explaining that the assumption
2884 UNITED STATES v. RESSAM
about terrorists was without any support in the record). Here,
as in Jayyousi, the majority faults the district court for failing
to make findings that would have had no basis in the record.
The district court here made no such error, and its reasoning
reflects a measured consideration of the record.
The majority also takes the district court to task for looking
to sentences given to other terrorists. The district court com-
pared Ressam’s case to other terrorist prosecutions that were,
of course, different from Ressam’s in that the other defen-
dants pleaded guilty or were convicted of less serious
offenses. Those defendants also did not cooperate with the
government, as Ressam did for a considerable period. One
can speculate that the district court placed too much emphasis
on these comparisons, even given the statutory admonition
that the court consider “the need to avoid unwarranted sen-
tence disparities among defendants with similar records who
have been found guilty of similar conduct.” § 3553(a)(6). The
important point, however, is the factor was one that the dis-
trict court had to weigh, and is not for us to reweigh. See Gall,
552 U.S. at 51. The district court did the best it could to eval-
uate possible disparities with sentences of other convicted ter-
rorists while remaining fully aware of the fact that Ressam’s
case was not similar to those in all respects. Its efforts to fol-
low the statutory sentencing factors lend no support for the
majority’s conclusion that the district court’s sentence was
unreasonably low.
In avoiding unwarranted disparities, as in evaluating other
key sentencing factors, district courts have enormous discre-
tion. The Supreme Court has consistently instructed us, and
we have reminded ourselves, that the appellate courts cannot
substitute their judgment for that of the district judge. See,
e.g., id. at 51 (“The fact that the appellate court might reason-
ably have concluded that a different sentence was appropriate
is insufficient to justify reversal of the district court.”); see
also Koon v. United States, 518 U.S. 81, 97 (1996) (“[I]t is
not the role of an appellate court to substitute its judgment for
UNITED STATES v. RESSAM 2885
that of the sentencing court as to the appropriateness of a par-
ticular sentence.”) (citations omitted); accord Carty, 520 F.3d
at 993 (“We may not reverse just because we think a different
sentence is appropriate.”); United States v. Whitehead, 532
F.3d 991, 993 (9th Cir. 2008) (per curiam) (“Even if we are
certain that we would have imposed a different sentence had
we worn the district judge’s robe, we can’t reverse on that
basis.”) (emphasis added). The majority seemingly ignores all
this law.
The majority’s criticisms of the district court, and this dis-
sent, amount to no more than disagreement with the 22-year
sentence imposed. That is not enough to warrant reversal. The
district court carefully explained its reasons for imposing that
sentence, as we have required in order to facilitate “meaning-
ful appellate review.” Carty, 520 F.3d at 992. But the burden
is not on the district court to establish that its sentence is rea-
sonable. Rather, the appellate court must affirm unless the
district court committed procedural error or imposed a sub-
stantively unreasonable sentence. See id. at 993; Gall, 552
U.S. at 51. The majority has not satisfied its burden of show-
ing the district court’s sentence was unreasonable.
Not only does the majority make the same mistakes for
which the Supreme Court reversed the Eighth Circuit in Gall,
but it overlooks another, somewhat eerie, similarity between
this case and Gall. As the Supreme Court noted, the trial
judge in Gall was extremely experienced, having sentenced
nearly 1000 offenders. See 552 U.S. at 52 n.7. The district
judge’s experience in this case is comparable, for a search of
LexisNexis Analyzer docket records showed that this judge
has presided over at least 1000 criminal dockets. The district
court’s experience here, as in Gall, should make us even more
cautious in our deferential review. We defer to the district
courts’ exercise of discretion—regardless of experience—
because of the differing day-to-day roles of trial and appellate
judges. See Hinkson, 585 F.3d at 1259-60. In Hinkson, we
explained why we apply deferential review to the district
2886 UNITED STATES v. RESSAM
courts’ factual and discretionary decisions, referring to the
district courts’ “experience with the mainsprings of human
conduct,” so that “the concerns of judicial administration will
favor the district court.” Id.The majority disregards that wisdom, and contorts our
proper institutional role here. In our everyday lives we often
say that we should all practice what we preach. As an appel-
late court we are bound by law either to practice what we
have preached, or to repudiate it. The majority does neither.
I therefore must respectfully, but regretfully, dissent.