United States v. Abu Ali

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4705
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
AHMED OMAR ABU ALI, a/k/a Reda, a/k/a Hani, a/k/a Abi Umar,
a/k/a Ashraf, a/k/a Abu Abdullah,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:05-cr-00053-GBL-1)
Argued: December 9, 2010 Decided: February 1, 2011
Before TRAXLER, Chief Judge, and WILKINSON and MOTZ, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Alice L. Fontier, JOSHUA L. DRATEL, PC, New York, New
York, for Appellant. Stephen Michael Campbell, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON
BRIEF: Joshua L. Dratel, JOSHUA L. DRATEL, PC, New York, New
York, for Appellant. Neil H. MacBride, United States Attorney,
Marla B. Tusk, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ahmed Omar Abu Ali was convicted by a jury of nine offenses
based on his conspiracy to commit terrorist acts against the
United States, including one count of conspiracy to assassinate
the President in violation of 18 U.S.C. § 1751 and one count of
conspiracy to commit aircraft piracy in violation of 49 U.S.C.
§ 46502(a)(2). Abu Ali’s convictions stemmed from his
affiliation with an al Qaeda terrorist cell in Medina, Saudi
Arabia. While Abu Ali’s offenses gave rise to an advisory
Guidelines sentence of life imprisonment, the district court
imposed a below-Guidelines sentence of thirty years.
In United States v. Abu Ali, 528 F.3d 210 (4th Cir. 2008),
we affirmed all of Abu Ali’s convictions but vacated and
remanded the case for resentencing. On remand, the district
court sentenced Abu Ali to a term of life imprisonment. Abu Ali
now appeals that sentence, arguing that it was procedurally and
substantively unreasonable under Gall v. United States, 552 U.S.
38 (2007), and that it violates various constitutional
provisions. Finding Abu Ali’s arguments to be without merit, we
affirm the judgment of the district court.
I.
The facts of this case are detailed in our previous
opinion, so we need not repeat them here. See United States v.
2
Abu Ali, 528 F.3d 210, 221-26 (4th Cir. 2008). With respect to
the trial proceedings, it suffices for purposes of this appeal
to note the nine charges on which Abu Ali was convicted:
• Conspiracy to provide material support and resources to a
designated foreign terrorist organization (al-Qaeda), in
violation of 18 U.S.C. § 2339B (Count 1);
• Providing material support and resources to a designated
foreign terrorist organization (al-Qaeda), in violation of
18 U.S.C. § 2339B (Count 2);
• Conspiracy to provide material support to terrorists, in
violation of 18 U.S.C. § 2339A (Count 3);
• Providing material support to terrorists, in violation of
18 U.S.C. § 2339A (Count 4);
• Contributing services to al-Qaeda, in violation of 50
U.S.C. § 1705(b) and 31 C.F.R. § 595.204 (Count 5);
• Receiving funds and services from al-Qaeda, in violation of
50 U.S.C. § 1705(b) and 31 C.F.R. § 595.204 (Count 6);
• Conspiracy to assassinate the President, in violation of 18
U.S.C. § 1751 (Count 7);
• Conspiracy to commit aircraft piracy, in violation of 49
U.S.C. § 46502(a)(2) (Count 8);
• Conspiracy to destroy aircraft, in violation of 18 U.S.C.
§ 32(b)(4) (Count 9).
See Abu Ali, 528 F.3d at 225. Both the 18 U.S.C. § 1751conviction (conspiracy to assassinate the President) and the 49
U.S.C. § 46502(a)(2) conviction (conspiracy to commit aircraft
piracy) rendered Abu Ali eligible for a life sentence. See 18
U.S.C. § 1751(d); 49 U.S.C. § 46502(a)(2)(B).
The district court began the first sentencing proceeding by
calculating the applicable Guidelines range. Abu Ali’s offenses
and criminal history yielded a recommended sentence of life
imprisonment, and the aircraft piracy charge carried a mandatory
minimum twenty-year sentence. See 49 U.S.C. § 46502(a)(2)(A).
3
The district court then considered what sentence would be
“sufficient, but not greater than necessary, to comply with” the
other factors enunciated in 18 U.S.C. § 3553(a). See 18 U.S.C.
§ 3553(a). Ultimately, the court determined that a below-
Guidelines sentence was appropriate. It based this
determination on several factors, among which was a comparison
of Abu Ali’s conduct to that of three individuals: John Walker
Lindh (convicted of two charges in connection with his fighting
for the Taliban in Afghanistan), Timothy McVeigh (convicted for
perpetrating the Oklahoma City bombing), and Terry Nichols
(convicted for conspiring with McVeigh).
Abu Ali subsequently appealed his convictions, and the
government cross-appealed his sentence. While we affirmed Abu
Ali’s convictions, we concluded that the district court erred in
imposing the sentence that it did. In particular, we determined
that the comparisons that had driven the court’s sentencing
analysis were inappropriate. The reasons for that conclusion
were extensively set forth in our prior opinion, see Abu Ali,
528 F.3d at 262-65, and we need not repeat them here.
On resentencing, the district court reiterated some of the
same findings as before, but changed its view on three of the
§ 3553(a) factors. First, the court reweighed the need “to
protect the public from future crimes of the defendant.” 18
U.S.C. § 3553(a)(2)(c). The court concluded that a term of
4
years sentence would not be sufficient to protect the public
from future crimes by Abu Ali in light of his admission to
“participating in the planning of heinous and potentially
catastrophic crimes to be committed against the United States
citizenry,” his confession to being “willing to be a martyr for
this cause,” and his unwillingness to “make any statement
expressing any remorse.”
Second, the court reweighed “the kinds of sentences
available.” 18 U.S.C. § 3553(a)(3). The district court
observed that thirty years in prison would “impact [Abu Ali’s]
mental and physical health, functioning and capacity,” and make
it difficult for him “to transition into a functioning society
30 years from now that will have essentially moved on without
him.” The court then made the following statement:
Therefore, when the Court considers Mr. Abu Ali’s
demonstrated unwillingness to renounce the beliefs
that led him to participate in terrorist activities as
well as the dire conditions in which he would be
released, the unknowns about his mental state, his
ability to [assimilate] and whether . . . we should
assume that he would mature out of his prior
confession and desire to martyrdom, there’s simply no
way for the Court to know what Mr. Abu Ali’s mental
state would be after 30 years of solitary confinement.
The risk . . . of the unknown from a term of
years sentence is too great in this case. I cannot
put the safety of [the] American citizenry at risk.
Nothing in three years has come forward to address
this concern.
I am not persuaded that a lengthy term of
supervised release following a term of years could or
would be a sufficient measure to protect [against] the
risk of recidivism.
5
Finally, the court reconsidered its prior findings
regarding “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 court made
the following determination:
Three years have passed since the original
sentencing in this case and this is a singular case.
I now regret that the Court of Appeals interpreted my
original judgment to be an attempt to compare Mr. Ali
to anyone. So I will not do that in this
resentencing.
My original sentencing orders addressed each of
the factors in a number of words and my judgment from
the bench and from my opinion did not drive the
sentence. The defense has properly pointed out . . .
a number of terrorism cases where sentences of less
than life have been imposed.
I acknowledge that there have been a number of
post-trial terrorism cases where sentences [of] less
than life were imposed by trial judges.
I am constrained by the Court of Appeals’ search
for a benchmark case that is substantial[ly] similar
in every respect to Mr. Abu Ali’s case. Such a case
does not exist.
Even if there were such a case, I do not think a
district judge is bound to impose a judgment in a case
based upon what another judge did in another court
because as Justice Stevens from the Supreme Court has
acknowledge[d, the] work of sentencing involves
individualized consideration of each case by the trial
judge who heard the case. And there is no legal error
in different judges reaching different sentences for
the individual case.
(internal quotations omitted). The court thus determined that
the Guidelines sentence of life imprisonment was appropriate.
6
II.
Abu Ali’s primary contention on appeal is that his sentence
was both procedurally and substantively unreasonable.
A.
As the Supreme Court has made clear, the overarching
principle behind “‘reasonableness’ review” is that all sentences
should be examined under a “deferential abuse-of-discretion
standard,” regardless of whether they are inside or outside the
prescribed Guidelines range. Gall v. United States, 552 U.S.
38, 41, 46 (2007).
In Gall, the Court set forth the precise steps involved in
reviewing a sentence for reasonableness. First, an appellate
court should review a sentence for “procedural” reasonableness,
ensuring that the district court committed “no significant
procedural error” such as “failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting
a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence.” Id. at 51; see United
States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009).
Next, the court should examine the “substantive
reasonableness of the sentence imposed” under “the totality of
the circumstances.” Gall, 552 U.S. at 51. A sentence falling
7
within a correctly calculated Guidelines range may be presumed
reasonable on appeal. Id.; see Rita v. United States, 551 U.S.
338, 347 (2007); United States v. Johnson, 445 F.3d 339, 341
(4th Cir. 2006) (applying such a presumption in the Fourth
Circuit). But while the reviewing court may “consider the
extent of the deviation,” a non-Guidelines sentence is not
presumptively unreasonable. Gall, 552 U.S. at 51. In either
case, we must apply the abuse of discretion standard to “give
due deference to the district court’s decision”; the fact that
we “might reasonably have concluded that a different sentence
was appropriate” does not itself provide a sufficient basis for
reversal. Id.; see United States v. Pauley, 511 F.3d 468, 473-
74 (4th Cir. 2007).
With these principles in mind, we turn to reviewing Abu
Ali’s challenges to his sentence.
B.
We first consider Abu Ali’s argument that the district
court committed a “significant procedural error” at resentencing
by refusing to consider 18 U.S.C. § 3553(a)(6). Gall, 552 U.S.
at 51. While Abu Ali presented evidence of allegedly comparable
cases under § 3553(a)(6), he argues that the court “eliminated
that factor from consideration altogether.” In making this
argument, Abu Ali relies on certain statements made by the
8
district court at the resentencing hearing, chief among which is
the following:
Three years have passed since the original
sentencing in this case and this is a singular case.
I now regret that the Court of Appeals interpreted my
original judgment to be an attempt to compare Mr. Ali
to anyone. So I will not do that in this
resentencing.
Abu Ali further contends that the court ignored § 3553(a)(6)
because of its erroneous belief that it could only consider
cases that are “substantial[ly] similar in every respect to Mr.
Abu Ali’s case.”
It is clear, however, that the district court adequately
considered § 3553(a)(6) even over and above its calculation and
consideration of the applicable Guidelines range. For one
thing, the district court explicitly stated that it had
“considered all of the 3553(a) factors.” Moreover, the district
court noted that “[t]he defense has properly pointed out . . . a
number of terrorism cases where sentences of less than life have
been imposed,” and further observed the “number of post-trial
terrorism cases where sentences [of] less than life were imposed
by trial judges.” (emphasis added). Ultimately, however, the
court concluded that “this is a singular case” and that there
was no “substantial[ly] similar” benchmark case to which to
compare Abu Ali’s. But neither that conclusion nor the
supporting analysis evince “complete[ ] disregard[ ]” for
9
§ 3553(a)(6); instead, the district court considered the
comparators presented by Abu Ali before concluding that his case
was without peer.
In that light, it is helpful to contrast this case with
United States v. Clark, 434 F.3d 684 (4th Cir. 2006), a case on
which Abu Ali relies. In Clark, we reversed the district
court’s sentencing determination based on the court’s failure to
consider 18 U.S.C. § 3553(a)(6). See Clark, 434 F.3d at 685.
But Clark is a far cry from this case. There, the district
court did not mention § 3553(a)(6). See id. at 686. Moreover,
the only “unwarranted sentencing disparities” the Clark court
considered were the disparities between Clark and similarly
situated state defendants, notwithstanding the fact that “[t]he
sole concern of section 3553(a)(6) is with sentencing
disparities among federal defendants.” Id. at 687 (emphasis
omitted). Here, by contrast, the court discussed § 3553(a)(6)
and took note of the allegedly comparable federal cases brought
forth by Abu Ali before concluding that his case was “singular.”
Rather than supporting Abu Ali’s position, Clark confirms the
reasonableness of the district court’s approach here.
Abu Ali’s final argument on the procedural front is that
the district court erred in observing that it was “constrained
by the Court of Appeals’ search for a benchmark case that is
substantial[ly] similar in every respect to Mr. Abu Ali’s case.”
10
According to Abu Ali, this statement shows that the district
court “incorrectly interpreted this Court’s ruling” as requiring
cases “essentially identical to Mr. Abu Ali’s” for purposes of
§ 3553(a)(6). Abu Ali is incorrect. The district court never
required comparator cases to be “essentially identical”;
instead, it stated merely that it was looking for a
“substantial[ly] similar” case. By its own terms, § 3553(a)(6)
commands judges to consider “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) (emphasis added). It would be quite a stretch to
argue that the district court abused its discretion by
interpreting that statutory mandate to require “substantial[ ]
similar[ity].” To reach such a conclusion, we would have to put
dispositive weight on whatever shadowy differences might lie
between § 3553(a)(6)’s requirement of “similar records” and
“similar conduct” and the district court’s search for a
“substantial[ly] similar” case. But nothing in Gall or Rita
forces us to engage in such wordplay; to the contrary, those
cases require us to eschew microscopic scrutiny of the district
court’s reasoning.
At bottom, Abu Ali’s arguments about procedural
reasonableness do not stem from actual errors committed by the
district court, but from Abu Ali’s substantive disagreements
11
with the district court’s decisions. But even assuming we
shared those disagreements, Gall makes clear that they would
still not provide any basis for overturning Abu Ali’s sentence
as procedurally unreasonable. See Gall, 552 U.S. at 51 (“The
fact that the appellate court might reasonably have concluded
that a different sentence was appropriate is insufficient to
justify reversal of the district court.”). We therefore reject
Abu Ali’s challenge on this score.
C.
We next consider Abu Ali’s claim that his sentence was
substantively unreasonable insofar as it was dramatically longer
than other terrorism sentences imposed since September 11, 2001
and thus created an unwarranted sentencing disparity under
§ 3553(a)(6). In pressing this argument below, Abu Ali
presented evidence from more than twenty allegedly comparable
cases where defendants received sentences ranging from 57 months
to 30 years’ imprisonment. In addition, Abu Ali brought forth a
study chronicling the average sentences meted out for terrorism-
related offenses. According to the study, the average sentence
for a defendant convicted of a terrorism charge is approximately
12 years and 8 months.
Based on this evidence, however, we cannot conclude that
the district judge abused its discretion in sentencing Abu Ali
12
to life imprisonment. First, 19 of the 25 defendants discussed
by Abu Ali pled guilty to their crimes of conviction. As we
observed in Abu Ali’s first appeal, defendants sentenced
pursuant to a plea agreement are not necessarily similarly
situated to defendants sentenced after trial. See Abu Ali, 528
F.3d at 263. That is especially true where, as here, the
defendant refused to express remorse or accept responsibility
for his crimes.
Second, Abu Ali was convicted of two offenses that made him
eligible for a life sentence: conspiracy to assassinate the
President in violation of 18 U.S.C. § 1751 and conspiracy to
commit aircraft piracy in violation of 49 U.S.C. § 46502(a)(2).
See 18 U.S.C. § 1751(d); 49 U.S.C. § 46502(a)(2)(B). By
contrast, only one of the twenty-five federal defendants Abu Ali
cites as comparable was convicted of an offense carrying a
potential life sentence. Abu Ali’s crimes of conviction are
thus more severe than those committed by the defendants in the
cases he brought forth.
Finally, Abu Ali’s conduct was different in degree and kind
from the conduct of his proposed comparators. Abu Ali conspired
to commit acts on our nation’s soil that would inflict massive
civilian casualties, acts that ranged from plotting attacks on
nuclear power plants to hijacking airplanes with the intent to
replicate the attacks of September 11, 2001. Further, Abu Ali
13
conspired to cripple the United States government by
assassinating members of the Senate, the Army, the Executive
Branch, and even the President himself. In short, as the trial
court noted, Abu Ali sought to inflict harm of a singular sort.
By contrast, the defendants Abu Ali cites as comparable
committed offenses that were more limited in scope and severity.
Several of the defendants, for example, attended al Qaeda
training camps with the goal of learning terrorism tactics or
traveled to Afghanistan or Iraq in order to aid the war effort
against the United States. Others committed even more serious
offenses, from conspiring to destroy the Brooklyn Bridge to
abetting the purchase of a missile intended to be used in an
attack against New York City. We by no means seek to underplay
these destructive and reprehensible acts, but note that none of
the cases Abu Ali wants to use as comparators involved a
conspiracy to kill countless civilians and visit harm upon the
highest officials of our government. As the First Circuit has
observed, for any given case, there is “a range of reasonable
sentences,” and an appellate court should only reverse when the
“sentencing court’s ultimate determination falls outside the
expansive boundaries of that universe.” United States v.
Martin, 520 F.3d 87, 92 (1st Cir. 2008). The district court’s
sentence was well within the range of reasonableness here.
14
D.
While Abu Ali’s arguments focus entirely upon his analysis
of § 3553(a)(6), it is well that we not lose sight of the
sentencing process as a whole. After all, § 3553(a)(6) is just
one of many factors that the district court should consider
before imposing a sentence. Here, the district court correctly
calculated the applicable Guidelines sentence of life
imprisonment. The court then analyzed the § 3553(a) factors,
taking account of the seriousness of Abu Ali’s offense, his
history and characteristics, the kinds of sentences available,
the need to deter future criminal conduct, the need to protect
the public from further crimes by Abu Ali, and the need to
impose a sentence that promotes respect for the law and provides
just punishment. See 18 U.S.C. § 3553(a)(1)-(3). Additionally,
the court evaluated Abu Ali’s sentence under § 3553(a)(6),
concluding that his case was “singular” and that his proposed
comparators were inapposite. In light of all these
considerations, the court concluded that a life sentence was
appropriate.
Viewing the case holistically, we cannot say that the
district judge abused its discretion. The court adequately
considered the relevant § 3553 factors – including § 3553(a)(6)
– and determined that the Guidelines sentence of life
imprisonment was proper. It then explained its decision in a
15
sentencing order that discussed the salient § 3553(a) factors in
a particular, not a generic, fashion. On appeal, we may presume
Guidelines sentences to be reasonable, and the district court’s
conduct affords no reason to overturn that presumption in this
case. See Johnson, 445 F.3d at 341.
III.
Abu Ali’s remaining arguments stem from his constitutional
challenges to the district court’s sentencing determination.
A.
First, Abu Ali argues that the district court increased his
sentence as a penalty for exercising his Sixth Amendment right
to a jury trial and his Fifth Amendment right to remain silent.
It is true that a court may not penalize a defendant for
exercising his constitutional rights, but that is not what
happened here. The comments Abu Ali objects to reflect the
district court’s consideration of Abu Ali’s lack of remorse and
his unwillingness to accept responsibility for his crimes.
Courts have routinely considered such factors in sentencing, and
rightly so: a defendant’s unwillingness to acknowledge
responsibility and express regret reflect directly on the
likelihood of recidivism, and the danger a defendant might pose
to others if released. See, e.g., United States v. Cruzado-
16
Laureano, 527 F.3d 231, 237 (1st Cir. 2008) (district court’s
consideration of a defendant’s lack of remorse did not
“violate[ ] his constitutional right to maintain his innocence”
because “it is well established that lack of remorse is a proper
consideration in sentencing”); United States v. Johnson, 903
F.2d 1084, 1090 (7th Cir. 1990) (same).
The district court adhered to these established sentencing
principles in deciding to impose a life sentence on Abu Ali.
After all, Abu Ali refused to acknowledge his crimes even after
a jury had found him guilty beyond a reasonable doubt and, in
the district court’s words, never once recanted his “previously-
confessed desire to commit terrorist acts and desire to achieve
martyrdom.” When given the opportunity to allocute before
imposition of sentence, Abu Ali appeared, if anything, more
firmly committed to the course that brought him into the
criminal justice system. In view of this, the district court
reasonably concluded that Abu Ali would remain a threat to
society if released from prison after a term of years.
B.
Finally, Abu Ali contends that his sentence violates the
Eighth Amendment’s prohibition on cruel and unusual punishment.
Abu Ali is currently incarcerated in a maximum security
facility. At resentencing, Abu Ali presented evidence regarding
17
the negative physiological and psychological effects that stem
from spending protracted periods of time in such a facility. He
argues that it would violate the Eighth Amendment to sentence a
prisoner to a longer term of years on the theory that his
conditions of confinement will make him unfit to rejoin society
at an earlier date.
Before imposing sentence, the district court made the
following observations:
Most certainly 30 years of incarceration under
such restricted conditions would impact [Abu Ali’s]
mental and physical health, functioning and capacity.
Without a doubt, Mr. Abu Ali will struggle to
transition into a functioning society 30 years from
now that will have essentially moved on without him.
He will be released into a world that will bear only a
limited resemblance to the world he left behind, a
world with little if any friends or family left to
support him at the end of 30 years. He will be a
middle aged man with no skills, experiences or social
network.
Therefore, when the Court considers Mr. Abu Ali’s
demonstrated unwillingness to renounce the beliefs
that led him to participate in terrorist activities as
well as the dire conditions in which he would be
released, the unknowns about his mental state, his
ability to [assimilate] and whether . . . we should
assume that he will mature out of his prior confession
and desire to martyrdom, there’s simply no way for the
Court to know what Mr. Abu Ali’s mental state would be
after 30 years of solitary confinement.
The risk . . . of the unknown from a term of
years sentence is too great in this case. I cannot
put the safety of [the] American citizenry at risk.
Viewing these statements as a whole, it is apparent that the
court did not impose a life sentence to penalize Abu Ali for the
effects of his confinement. The court only discussed Abu Ali’s
18
“mental state” in the context of weighing his chances of
rehabilitation against the risks of recidivism. The court
properly considered the tenacity of Abu Ali’s violent beliefs
and the likelihood that time in prison would entrench those
beliefs in analyzing the probability that Abu Ali would again
act on those beliefs if released. In light of Congress’s
instruction for courts to consider the need to “protect the
public from further crimes of the defendant” in imposing a
sentence, it is hard to see how the district court’s actions
were erroneous. See 18 U.S.C. § 3553(a)(2)(C). The court’s
decision to impose a life sentence was therefore the product of
run-of-the-mill sentencing analysis, not some novel form of
Eighth Amendment violation.
IV.
In sum, the resentencing in this case proceeded within
well-established boundaries and reveals no abuse of discretion
on the part of the district court. For the foregoing reasons,
we affirm the judgment.
AFFIRMED
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