September 19, 2011
Split Eleventh Circuit deems Jose Padilla's 17-year terrorism sentence substantively unreasonable
Thanks to David Oscar Markus and this post at his Southern District of Florida blog, I have seen that an Eleventh Circuit panel today has handed down this very-long opinion in a very high-profile terrorism case. Here is how David summarizes the basic holding:
Judge Dubina writes the majority, which Judge Pryor joins, affirming the conviction and reversing Jose Padilla's 17 year sentence as too low. Judge Barkett dissents on both the conviction and sentencing holdings.... This case seems destined for Supreme Court review.
And here from the start of the opinion are the issues in play as set forth at the start of the majority's opinion:
A federal grand jury in the Southern District of Florida indicted Appellants Adham Hassoun, Kifah Jayyousi, and Jose Padilla (referred to individually by name or collectively as “defendants”), along with Mohammed Youssef and Kassem Daher, for offenses relating to their support for Islamist violence overseas....
Trial commenced on April 16, 2007, and four months later, the jury returned a special verdict convicting defendants on all counts.... On Count 1, the district court sentenced Padilla to 208 months, Hassoun to 188 months, and Jayyousi to 152 months’ imprisonment. On Count 2, the district court sentenced each defendant to the maximum 60 months’ imprisonment. On Count 3, the district court sentenced Padilla and Hassoun to the maximum of 180 months’ imprisonment and sentenced Jayyousi to the maximum of 120 months’ imprisonment. The district court made all sentences run concurrently and imposed a 20-year period of supervised release for each defendant. The defendants appeal, and the government cross-appeals Padilla’s sentence.
Among the interesting aspects of the majority's sentencing ruling in this case is its conclusion that Padilla's sentence was procedurally sound but substantively unreasonable. Here are a few (of many) interesting passages from the majority's sentencing discussion (with some cites removed):
The district court did not commit procedural error. Neither party contends that the district court failed to properly calculate the Guidelines range or treated the Guidelines as mandatory.... Furthermore, the district court adequately explained that it gave Padilla a sentence that was below the Guidelines range for several reasons: the conditions of Padilla’s prior confinement, his allegedly low risk of recidivism due to his age at the time of his anticipated release, the comparable sentences imposed on other terrorists, and the fact that Padilla did not personally injure anyone or target Americans in his conspiracy.
However, Padilla’s sentence is substantively unreasonable because it does not adequately reflect his criminal history, does not adequately account for his risk of recidivism, was based partly on an impermissible comparison to sentences imposed in other terrorism cases, and was based in part on inappropriate factors. First, the district court acknowledged that Padilla had a criminal history but then unreasonably discounted this criminal history when it imposed a sentence....
Second, Padilla’s sentence unreasonably fails “to protect the public from further crimes of the defendant.” 18 U.S.C. § 3553(a)(2)(C). The district court explained that given Padilla’s age when he is eligible to leave the criminal system, he will unlikely engage in new criminal conduct. The government argues to the contrary that “the risk of recidivism upon release is very real. That risk is greater because Padilla has literally learned to kill like a terrorist.” We agree that the district court failed to consider the nature of Padilla’s crimes and his terrorism training. Although recidivism ordinarily decreases with age, we have rejected this reasoning as a basis for a sentencing departure for certain classes of criminals, namely sex offenders. See United States v. Irey, 612 F.3d 1160, 1213–14 (11th Cir. 2010) (en banc), cert. denied, 131 S. Ct. 1813 (2011). We also reject this reasoning here....
Third, in considering “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 district court unreasonably failed to consider the significant distinctions between Padilla’s circumstances and the sentences of other offenders the district court referenced at the sentencing hearing.... On remand, we admonish the district court to avoid imposition of a sentence inconsistent with those of similarly situated defendants. It should not draw comparisons to cases involving defendants who were convicted of less serious offenses, pleaded guilty, or who lacked extensive criminal histories, nor should it draw comparisons to cases where the government sought the imposition of the death penalty.
Judge Barkett's discussion of sentence issues is also interesting (and even longther than the majoity's discussion). Here is the concluding passage from her sentencing discussion (with cites removed):
Much of what the majority takes issue with concerns the trial judge’s discretion in weighing the § 3553(a) factors, but the record simply cannot support the conclusion that Padilla’s sentence involves an abuse of such discretion. Precedent from the Supreme Court and this Circuit recognize that trial judges may attach great weight to one factor over others, and remember that each convicted person is an individual and every case is a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue. The trial judge followed these principles such that her conclusion to sentence Padilla below the Guidelines is entitled to due deference, even by those who “might reasonably have concluded that a different sentence was appropriate.
UPDATE: For a press account of this ruling, here is a Reuters piece headlined "Court says Padilla prison sentence too lenient."
September 19, 2011 at 01:35 PM | Permalink
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Sounds like the 11th Circuit just reweighed the 3553(a) factors, something it and other circuit courts are always insisting they can't do.
Posted by: 24601 | Sep 19, 2011 4:48:01 PM