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February 2, 2010

Ninth Circuit panel reverses "millenium bomber" sentence again

If one goal of modern terrorists is to tie up our courts with appeals and long opinions, the "millenium bomber" is proving quite successful.  Today in US v. Ressam, the Ninth Circuit has reversed his sentence again.  Here is how this latest Ressam opinion starts:

Ahmed Ressam was convicted by a jury on nine counts of criminal activity in connection with his plot to carry out an attack against the United States by detonating explosives at the Los Angeles International Airport (“LAX”) on the eve of the new Millennium, December 31, 1999. Ressam’s crimes of conviction carry an advisory Sentencing Guidelines range of 65 years to life in prison, and a statutory maximum penalty of 130 years in prison.

In 2001, following his conviction, Ressam entered into a cooperation agreement with the Government. Under the terms of the agreement, the Government was to recommend a reduction in Ressam’s sentence in exchange for his truthful and complete cooperation. Ressam provided information to law enforcement officials of the United States and of other countries concerning the organization, recruitment, and training activities of the worldwide terrorist network known as al- Qaeda. Ressam also testified against one of his coconspirators, Mokhtar Haouari. After providing assistance to the Government for approximately two years, Ressam decided to cease cooperating and began recanting his prior testimony. The district court sentenced Ressam to 22 years in prison to be followed by five years of supervised release.

Both parties appealed to this Court. Ressam challenged his conviction while the Government challenged the reasonableness of the sentence. This Court vacated Ressam’s conviction as to Count Nine, and remanded for resentencing without addressing the merits of the Government’s arguments. United States v. Ressam, 474 F.3d 597 (9th Cir. 2007). T he United States Supreme Court reversed this Court’s decision and affirmed Ressam’s conviction of Count Nine. United States v. Ressam, 128 S. Ct. 1858, 1862 (2008). Upon remand, this Court vacated the 22-year sentence, holding that the district court failed to determine the applicable Sentencing Guidelines range at the beginning of sentencing, as required by United States v. Carty, 520 F.3d 984 (9th Cir. 2008). United States v. Ressam, 538 F.3d 1166, 1167 (9th Cir. 2008).

Upon remand, the district court again imposed a sentence of 22 years in prison, followed by five years of supervised release. The Government has appealed from this decision. It contends that when the relevant § 3553(a) factors are applied to the facts of this case, the sentence imposed is insufficient to accomplish the purposes of the statute, which directs that “[t]he court shall impose a sentence sufficient but not greater than necessary” to accomplish the purposes of 18 U.S.C. § 3553(a)(2).

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

February 2, 2010 at 04:00 PM | Permalink


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This is a return to the problem we saw in Gall: there are two standards of review, one for the Government and one for the defendant. Say what you will about this sentence -- too long, too short, or just right -- but the explanation is not lacking. The quoted portion of the district court's explanation goes on for pages and pages. This is now the second time in the past month or so where the Ninth Circuit, on a government appeal, has reversed a sentence on lack of explanation grounds, where there was tons of explanation in the record. In the other case -- Bragg -- there were two full sentencing hearings! On the other hand, the Ninth regularly rejects defendants' arguments that the district court did not say enough when all the court says is, "I've considered the 3553(a)factors and you get a 33 month sentence."

Posted by: PD | Feb 2, 2010 5:03:12 PM

impressive - a 70 pg opinion in just 2 months.

Posted by: alex | Feb 2, 2010 5:39:42 PM

PD--Though I agree with you as a general matter, I think the big sticking point in this case--and the one that the dissent doesn't adequately answer--is that the trial judge was objectively wrong in some of his fact finding. This defendant, though he initially helped the government, ultimately was neither contrite nor cooperative--he repeatedly sought to undo all of his prior cooperation.

If this were a case where it was solely an issue of whether to lock up a terrorist on public safety grounds, but he had otherwise consistently cooperated, I would think the dissent had the better of the argument despite the district judge's apparent failure to consider the public safety prong. But I'm not sure the majority considered that omission to be dispositive--I think they saw it as icing on the cake.

Posted by: Res ipsa | Feb 2, 2010 6:34:05 PM

In the Fourth Circuit, where I litigated for a long time, it is extremely unusual to see a remand to a different judge. It is in effect a vote of no confidence in the ablity or willingness of the district judge to do what he has been told to do. That is a public slap in the face. A judge has to be VERY far off the reservation to provoke it.

Posted by: Bill Otis | Feb 2, 2010 7:22:23 PM

Very good post. Made me realize I was totally wrong about this issue. I figure that one learns something new everyday. Mrs Right learned her lesson! Nice, informative website by the way.

Posted by: supra shoes | Nov 11, 2010 1:49:22 AM

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