United States v. Ahmed Ressam

Smith, failing torneys were not ineffective for v. 450 F.3d United States curred.” Cir.2006) (internal (8th challenge indictment. 856, quota- 860-61 omitted), post-convic- citations tions and Affirmed. WL 481000 tion denied relief 2010) (No. 8:04CR190). (D.Neb. 04, Feb. point Kameruds

Although the testimony, we inconsistencies

several court that by the district persuaded

are a supported at trial determi

the evidence America, only overarching one UNITED that there was STATES nation Plaintiff-Appellant, Kameruds’s encompassing the conspiracy As the methamphetamine distribution. v. found, the evidence estab RESSAM, Defendant-Appellee. Ahmed conspiracy took the events of the lished Aberdeen, 09-30000. place in two locations: South No. Dakota, trial City, Iowa. The and Sioux Court of Appeals, United States support

testimony of two witnesses Circuit. Ninth of meth Kameruds’s use and distribution August 2, after amphetamine Argued both before and Nov. 2009. Submitted apartment out of the Kameruds’s Feb. 2010. Filed totality Under the Aberdeen. Amended Dec. a circumstances, the evidence establishes single conspiracy methamphetamine to sell of the Kame

from the central location apartment building in Aberdeen.

ruds’s Benford, 360 F.3d v.

See United States (8th Cir.2004) (concluding single a proven when the evidence

conspiracy was goal a common to distribute

established area); particular

cocaine a (8th Hill, 468, Cir.

2005) spokes conspiracy hub (holding a massive, single, con albeit

establishes result, the evidence was

spiracy). As with, materially and not differ

consistent superseding indictment. See

ent from the Soldier, 499 v. Whirlwind

United States Cir.2007). failing to demonstrate that there was

By variance, the Kameruds cannot show failing counsel was deficient for trial, nor the issue of the variance

raise prejudice. they any resulting

can show at- thus conclude that Kameruds’s

We (ar- Bartlett, J. Brunner

Mark N. Helen Attorneys, United States gued), Assistant Seattle, WA, for the plaintiff-appellant. Hillier, (argued), Lissa II W. Thomas W. Shook, Defender, Seattle, Federal Public WA, defendant-appellee. for the ALARCÓN, ARTHUR L. Before: F. FERNANDEZ FERDINAND CLIFTON, Judges. R. Circuit RICHARD ALARCÓN; Opinion by Judge Dissent Judge FERNANDEZ. ORDER February 2, opinion, filed This Court’s 1095], as fol- F.3d is amended [593 2010 lows: slip Opin- paragraphs three on The 1883, page line line page 20 to

ion at that read: 1098-99] [593 parties appealed parties appealed Both Court. Both this this Court. challenged challenged Ressam his conviction while conviction while challenged the reason challenged Government the Government the reason of the sentence. This Court ableness ableness of sentence. This Court vacated Ressam’s conviction as to Count vacated Ressam’s conviction as to Count Nine, Nine, for resentencing and remanded for resentencing remanded addressing without merits without addressing the merits of the United arguments. Government’s arguments. Government’s Ressam, 597(9th Ressam, v. States v. 474 F.3d Cir.

2007). Cir.2007). Supreme The United States Supreme United States Court reversed this Court’s decision and Court reversed this Court’s decision and affirmed Ressam’s conviction of Count affirmed Ressam’s conviction as v. Ressam, United States Ressam [553 Nine. Count Nine. United States v. 272], U.S. 128 S.Ct. [170 553 U.S. S.Ct. [128 (2008). remand, (2008). Upon L.Ed.2d remand, 640] this Upon L.Ed.2d 640] this 22-year sentence, Court vacated the sentence, 22-year Court vacated the that the holding district court failed to without addressing the Government’s applicable determine Sentencing challenge to the reasonableness Res range Guidelines at the beginning sentence, sam’s because the district United States sentencing, required by applicable failed to determine the (9th Cir.2008). Carty, 520 F.3d 984 Sentencing range the be Ressam, United States v. 1166, 538 F.3d ginning of sentencing, required by (9th Cir.2008). 1167 Carty, v. United States 520 F.3d (en denied, Cir.) banc), cert. remand, 991 Upon the 553 again district court U.S. 1061 imposed [128 a S.Ct. 171 L.Ed.2d years pris- sentence of 22 Ressam, (2008); United States v. on, by 780] followed of years supervised five 1166, 1167(9th Cir.2008). 538 F.3d release. The Government has appealed from this decision. It contends that At the resentencing hearing, the dis- 3553(a) § when the relevant factors are trict court again imposed the same sen- case, applied to the facts of this the tence. The Government appealed has imposed sentence is to insufficient ac- this decision. It contends that complish statute, the of purposes 3553(a) the § the when relevant factors are which directs that court im- “[t]he shall applied case, to of the facts this the pose great- a sentence but not imposed sentence is insufficient to ac- sufficient er necessary” than accomplish to the statute, complish purposes the of the 3553(a)(2). § of purposes 18 U.S.C. which directs that court shall im- “[t]he pose We vacate the sentence and a great- remand sentence but not sufficient for resentencing by a different district er than to necessary” accomplish the judge 3553(a)(2). because we conclude that purposes § 18 of U.S.C. It the procedural district court committed complains particular about the district failing specific, error in to address non- give appropriate court’s failure to con- arguments by frivolous raised the Gov- sideration to Ressam’s recantations and in imposing ernment a sentence that is previous cooperation. disavowal of his advisory well Sentencing below the the We vacate sentence and remand Guidelines range. resentencing for because we conclude are replaced deleted and the that the following sentencing process was serious- flawed, paragraphs: ly three notably by the district court’s

799 reject- procedural ernment maintains that error reasons explain its failure appeal.” a “a claim not raised in this argument that is ing Government’s the By reading ap- issue on protect Id our longer is needed sentence however, is terrorist crimes the Government also peal, from future public is challenging a sentence that the sentence as imposing impliedly Ressam and advisory Sentencing argu- its years procedurally 43 below the unsound because addition, we conclude upon Guidelines. grounded ments are assigned on re- should that the case be adequately failure con- alleged court’s judge be- mand to different weigh each of relevant sider original judge that the appears 3553(a) cause it factors, protect “to including § of his putting difficulties out would have public from further crimes views as previously expressed mind defendant,” its explain and to reasons sentence. appropriate years 43 below imposing sentence Sentencing the low end of 1902, line 28- slip Opinion page 2. On (hold- 520 at 993 range. Carty, F.3d See 1109], replace: please 30 [593 be ing procedural would error “[i]t prosecution reit argument, In its court to ... for a district fail to consider in its raised November points erated the 3553(a) fail factors ... or to ade- sentencing memorandum selected, quately explain sentence it recommended wherein .5 including any deviation from the Guide- prison Gall, range”) (citing lines 128 S.Ct. at At December 2008 resentenc Ressam's 596-97); Paul, also United States see ing hearing, the recommended Government imprison (9th Cir.2009) (“It 2n. serve a term life ment, upon recantation based his further procedural provisions of U.S.C. earlier attempts to distance himself from his 3553(c) require engagement cooperation. [parties’] arguments, not the sub- with: provisions stantive U.S.C. reit- prosecution the argument, its Overton, 3553(a)”); § United States in its points the raised November erated Cir.2009) (9th (con- 679, 699 573 and memorandum sentencing 2008 cluding appellant pro- “allude[d] to a term recommended that Ressam serve the by accusing error cedural fur- upon his imprisonment, of based life 3553(a) § failing of to address the court attempts dis- ther to recantation adequately explain factors and the sen- coopera- his earlier tance himself from imposed”). tence tion. 7 3553(a) requires § that a Title U.S.C. Opinion on paragraphs slip 3. The five sentencing following consider the fac 1114-16] F.3d at pages 1912-1916 [593 tors: (1) that read: of the the nature circumstances history the and characteristics of offense and asserts sole “[t]he The Government defendant; the case whether presented in this is issue (2) imposed— the the need for sentence imposed on the sentence Ahmed offense, (A) the of the to reflect seriousness substantively light unreasonable in is law, pro- promote respect for and to to the offense; punishment just for the the set vide the of this case and factors facts (B) adequate deterrence to crimi- to 3553(a).”7 § Appel- forth in 18 U.S.C. afford conduct; nal recog- at 36. While Opening lant’s Brief (C) protect public crimes to the from further first that we “must determine nizing defendant; and the court committed whether the district (D) provide the needed to defendant error,” training, medical the Gov- significant procedural educational or vocational care, other correctional treatment or the the district court signifi- committed no manner; most effective error, procedural cant as failing such available; (3) the kinds of sentences (or improperly calculating) calculate the (4) and the the kinds of sentence sentenc- range, Guidelines the treating Guide- ing range established for— (A) applicable category of the offense com- mandatory, lines as failing consider category applicable the mitted of defen- 3553(a) factors, § selecting a sen- guidelines ... dant as set forth in the clearly facts, tence on based erroneous (5) any pertinent policy ... statement or failing adequately explain cho- (6) need to avoid unwarranted sen- disparities among sen tence defendants with simi- including explanation sentence— guilty who found lar records have been any deviation from the Guidelines conduct; similar range. Assuming that (7) provide need to restitution to sentencing procedur- court’s is decision victims of offense. ally sound, 3553(a) added). appellate (emphasis court should 18 U.S.C. Accordingly, Carty, we instructed that then consider substantive reason- overarching statutory charge “[t]he for a dis ableness of the imposed under sufficient, 'impose trict court is to a sentence an abuse-of-discretion standard.” necessary’ greater but not than to reflect the offense, promote respect seriousness Gall, (empha- U.S. 128 S.Ct. 586 law, provide just punishment; for the added). sis deterrence; adequate protect afford public; provide and to the defendant with The Supreme Court’s im- instruction training, needed educational or vocational plies appellate have a courts sua care, medical or other correctional treat sponte duty to undertake a review for Carty, Cir.2008) ment.” 520 F.3d at 991 3553(a)(1)-(7); procedural where, here, (citing error even 18 U.S.C. no Gall v. States, 50 n. U.S. 128 S.Ct. such error is expressly asserted (2007)) (emphasis L.Ed.2d add appeal. Government its As a prelimi- ed). matter, nary explicit we now make what We believe that may the Government implicit Gall. We hold that we appeal have framed the issue on as it did must review decisions for more clarity because is needed in defin- error, procedural even no where claim of ing procedural what constitutes error in procedural is holding error raised. This imposing sentence that is significantly upon reading based our lan- Sentencing below the range. guage in instructing appel- Gall that an Accordingly, addressing before the ques- late court “must ensure that the first tion whether the district court’s decision district significant court committed no in Ressam’s procedurally case was erro- error,” procedural added), (emphasis id. unreasonable, substantively neous or we our apply- extensive review of the cases persuaded are necessary it is to Gall, ing holding and our own in Carty. analyze each of concepts these two (“On See Carty, appeal, 520 F.3d at 993 some detail.

we first consider the whether district A significant procedural court committed error, then we consider the substantive Gall, Supreme the Court instructed sentence.”). of reasonableness the requirement logical This [rjegardless of makes sense whether the im- sentence posed because determining is inside or the substantive “[i]n outside Guidelines reasonableness, range, appellate the we court must review are to consider the circumstances, the sentence under an totality abuse-of-disere- of the including tion standard. It must ensure degree the of variance for sentence first

801 (Ap 3553(a).”6 § pel-la range.” forth 18 U.S.C. the Guidelines imposed outside 36.) Thus, substantive reasonableness Opening Specifically, the nt’s Br. the Id. infor- consideration of analysis requires argues that the is Government sentence from the re- necessarily gleaned mation substantively because the unreasonable error, including the procedural for view to adequately district court failed consid of the Sen- court’s calculation 3553(a) § the fac weigh er and relevant consid- tencing range its tors, including “the the sen [for need 3553(a) In- the factors. eration of ... imposed] public tence to ensure the be] ... deed, problems [can “substantive by from future crimes this protected is proce- Court’s of the District product (Id. 51.) defendant.”7 durally approach.” flawed United (3d 6 F.3d Goff, States v. 3553(a) requires that a Title 18 U.S.C. following consider the fac Cir.2007). a re- justify cannot one “[I]f tors: is, that result by given, the reasons sult (1) the of the nature circumstances definition, substantively not a reason- history the of offense and characteristics logical steps pro- to conclusion the able defendant; the Levinson, 543 vided.” United (2) imposed— the the need for Cir.2008). (3d Stated oth- F.3d offense, (A) to reflect seriousness erwise, proble- analytically be it would law, pro- promote respect for the and to to matic, offense; a sen- impossible, review if not just punishment vide reasonableness (B) tence for substantive adequate deterrence crimi- afford conduct; nal the sen- having reviewed first without (C) protect public crimes procedural error. tencing decision for further defendant; and pro- must review for Accordingly, courts (D) provide the defendant with needed only claim even where cedural error training, educational or vocational medical rea- the substantive appeal raised on care, or treatment in the other correctional See, e.g., the sentence. sonableness of manner; most effective Overton, (reviewing for F.3d at 699 available; (3) the kinds sentences appellant chal- error where procedural (4) of sentence and sentenc- kinds ing range established for— substantively un- lenged sentence as (A) category of com- applicable offense to” procedural but “alluded reasonable applicable category defen- mitted error); Shaw, States v. guidelines ... dant as set forth in the Cir.2009) (reviewing for (5) any pertinent policy ... statement though only error procedural even (6) the unwarranted sen- need to avoid that the sen- appeal contention on disparities among defendants with simi- tence unreasonable). substantively tence was guilty who have been found lar records re- conduct; that we must first Having concluded similar error, (7) we procedural view sentence provide the need to restitution to entails, the offense. victims of that review now address what 3553(a). § 18 U.S.C. by following the replaced are deleted Accordingly, Carty, we instructed that eight paragraphs: charge overarching statutory for a dis- ''[t]he appeals The the sentence Government sufficient, 'impose a sentence trict court is to by the district imposed on Ressam necessary' greater the but not than reflect offense, promote respect the seriousness of sole issue argues “[t]he court. It that law, provide just punishment; the the in this is whether case presented deterrence; protect the adequate afford Ahmed Ressam is imposed on sentence provide the defendant with public; and to light of substantively unreasonable training, needed educational or vocational care, and the factors set the facts of this case correctional treat- or other medical (citing Carty, ment.” 520 F.3d at 991 [r]egardless of whether the sen- 3553(a)(1)-(2)); § Gall v. United U.S.C. imposed tence is inside or outside States, 50 n. 128 S.Ct. 552 U.S. the range, appellate Guidelines the (2007). 169 L.Ed.2d 445 7Thus, court must the procedural review sentence un- well is as "[t]here argument.” substantive element to this Unit der an abuse-of-discretion standard. Overton, ed States v. It must that first ensure Cir.2009) (concluding appellant that “al court significant pro- committed no by accusing procedural error the lude[d] failing district of to address the court error, cedural as failing such to cal- 3553(a) adequately explain § factors the (or culate improperly calculating) imposed”); see also United States v. range, the treating Guidelines the Paul, (9th Cir.2009) 974 n. 2 ("It provisions mandatory, procedural Guidelines as the failing to of U.S.C. 3553(c) require § engagement the 3553(a) factors, consider the se- [parties'] arguments ... not the substantive lecting a clearly sentence based on 3553(a).”). provisions 18 U.S.C. of its facts, erroneous failing or to ade- however, appeal, the has ex Government any procedur pressly challenge waived quately explain the chosen sen- al imposed of the sentence the correctness including explanation tence— 36) (Appellant's Opening district court. Br. any deviation from the Guidelines ("The Court must first whether determine range. Assuming that the district significant procedur district committed court error, appeal. al a claim not raised in this court’s sentencing decision is proce- The Court then must consider whether the sound, durally appellate unreasonable, substantively sentence is should then consider substan- here.”) (citations omitted) (em issue raised added); 5) ("A phasis (Appellant's Reply Br. tive of reasonableness the sentence error, procedural sentence is reviewedfirst for imposed under an abuse-of-discre- (citation here.”) although alleged none is tion standard. conducting When omitted) added). (emphasis review, will, this course, the court of also argues Government that: totality take into account the court’s [district] stated reasons sim- circumstances, including the extent ply do not establish the reasonableness variance from of a sentence two-thirds less than the range. low end the advisory Guideline[s] Gall, 51,128 U.S. at S.Ct. range for a defendant who was convicted appeal In this the Government crimes, after trial such has extraordinary argue elected and then undermined district prosecution significant procedural two about court committed provided terrorists whom he by refusing Though information to finish errors. the Government has agreed upon cooperation. many identified alleged missteps by the court in district the course of sentenc- (Id. 38.) ing, opening its affirmatively brief states A procedural error is “a claim not on this appeal.” raised Ordinarily, when a appeal- sentence is ed, contends that as result we appeal, “[o]n we first consider precluded are considering proce- whether district court committed court, dural errors significant error, citing procedural then we consider the decision of the Supreme the substantive Court reasonableness States, of the sentence.” v. Carty, 520 F.3d at Greenlaw United 554 U.S. Gall, (2008). In Supreme 993. the in- 128 S.Ct. 171 L.Ed.2d 399 Court structed that: In that case Eighth the Circuit sua years below imposing for long- of a imposition ordered sponte Sentencing Guidelines the failure of the on the low end sentence based criminal er (hold- a manda- at 993 impose Carty, 520 F.3d court See range. of sentence, which the error tory procedural minimum would be ing that “[i]t plain error as identified ... appeals of fail to consider court to for a district had not though the Government 3553(a) even to fail ade- factors ... or § The sentence the sentence. appealed selected, explain the sentence quately to because appeals of the court was before from the any deviation Guide- including challenged the sen- had defendant Gall, at 128 S.Ct. range”) (citing lines long. too tence, it was contending 596-97). the court held that Court Supreme The that a surprising not be It should in the by acting erred appeals had reasonable to the substantive challenge appeal or of a Government absence will, in at least some a sentence ness of Greenlaw, at 128 S.Ct. cross-appeal. cases, process of the invite consideration here. not the situation But that is 2570. How a de the sentence. produced appealed has The Government light arrived at can often shed cision is to focus it has elected That sentence. itself. In on the merit of the decision of the reasonableness on the substantive ... deed, problems [can be] “substantive required are not that we sentence means proce the District Court’s product errors, it but procedural to review United durally approach.” flawed precluded that we are not mean does (3d Goff, 501 F.3d States v. process pro- looking at the Cir.2007). we held that Carty “[i]n that sentence. duced reasonableness, determining substantive here, true where especially That is totality of the are to consider we appeal brief on opening Government’s circumstances, including degree actions or a number of complains about imposed outside for a sentence variance argu- court that by the district failures Carty, 520 F.3d range.” the Guidelines errors. See ably procedural constitute circumstances to totality Overton, v. determining substan be considered (9th Cir.2009) proce- (reviewing for may surely include reasonableness tive challenged appellant dural error where sentencing pro of the an examination substantively unreason- his sentence cess as a whole. error procedural “allude[d] able but B failing court of accusing the district 3553(a) and ad- factors to address the imposed”); relationship explain the sentence

equately To better understand Shaw, United States alleged procedural errors between Cir.2009) (reviewing pro- unreasonableness, it would substantive though only con- error even cedural analyze each of two be useful to that the sentence appeal on was tention concepts in some detail. unreasonable). substantively Nota- 1929, line 15 slip Opinion page 4. On in this arguments bly, the Government’s 1122],please replace: F.3d at [593 upon the dis- largely grounded are case procedural four errors There are adequately failure alleged trict court’s analysis: the district court’s the relevant weigh each of consider and with: 3553(a) factors, including protect “to errors procedural are four There from further crimes public that are seri- analysis the district court’s defendant,” its reasons explain to lack enough erating ous to cause us confi- with the Government because he dence in the substantive reasonableness having trouble remembering details imposed: that was of the sentence as the result of combination solitary repeated confinement and interrogation. page slip Opinion 5. On line 30 1133],please replace: at [593 F.3d however, At the resentencing hearing, Paul, at 561 F.3d Ressam informed the district court that with: he all “[retracted] almost the statements

Paul, 975; he had past” made against 561 F.3d at see also two Vrdolyak, persons States v. accused of terrorism in to order Cir.2010) (holding that “a judge’s “cause their cases to be dismissed.” calculating errors in [a are sentence] again, Once imposed indicative of an idee where the 22-year the same sentence that this fixe” judge appears unwilling to waver in his previously Court vacated because we particular conviction that a sentence is could not decide whether it was reason- warranted). able based on the original record of the sentencing proceedings. so, In doing slip Opinion page 6. On begin- the district court provide failed to ning 1133-34], at line 5 please F.3d [593 reasons for replace: rejecting the Government’s arguments tethered to reasons, relevant For these we direct that 3553(a) factors, including the value re-assigned case be to a judge different given be resentencing. early cooperation with the Government in view of his sub- Conclusion

sequent recantations and the need to protect public from Ressam’s poten- procedural- Because the district court tial crimes, to commit future terrorist ly by failing erred specific address he only will be upon old arguments Government, raised or explanations, release. Without such we justify otherwise the extent of depar- its cannot conduct a meaningful un- review Guidelines, ture advisory from the we der the abuse of discretion standard to 22-year must vacate the sentence im- court, determine whether sentence that posed by the district is 43 years below advisory Sentencing with: reasonable, Guidelines is substantively reasons, For these we direct that or whether a longer sentence is needed re-assigned case be judge different protect public from future terror- for resentencing. We intimate no view ist crimes Ressam. on proper what a sentence would be. Conclusion Because judge’s the trial previously

expressed appear views too entrenched We origi- vacated the district court’s to allow for the appearance of fairness nal 22 years remand, sentence of of imprison- on we direct that the case be ment permit because it failed to this re-assigned to a judge different for re- Court to meaningful conduct a review of sentencing. challenge Government’s to the rea- sonableness of Ressam’s sentence. Res- ORDER

sam, 538 F.3d at 1167. Prior to the 27, 2005, hearing July My on dissenting opinion, which com- argued that he had coop- ceased at slip op. mences [593

805 Cir.2010) hereby Angeles at the Los Internation- explosives is ] 1134 (“LAX”) as follows: on eve of the Airport amended al the new Millennium, 31,1999. December Ressam’s (1) slip 1 at F.3d op. [593 Footnote carry advisory conviction crimes of Sen- hereby the follow- at is revoked and 1134] tencing range years of 65 life place: in its ing is substituted and a prison, statutory penal- maximum has conceded expressly government The ty years prison. of 130 on substan- appeal the sole issue is all we That is tive reasonableness. 2001, following conviction, In his Ressam opin- part consider. II of should a cooperation agreement into with entered however, ion, majority, indicates the Government. Under the terms of the that, government’s conces- despite the Government was to recom- agreement, sion, up procedural it must and will take mend a reduction Ressam’s error, but shrouds that determination exchange complete for his truthful and whereby sug- it a brume of words Ressam cooperation. provided informa- gests procedure be melded must to law tion enforcement officials de- into the substantive reasonableness and of United States other countries con- gallimaufry The result is a termination. recruitment, cerning organization, (as it that, design, or will by mistake training activities of the terror- worldwide here) far require courts to consider does known al-Qaeda. ist network as Ressam reasonableness, more than substantive against co-eonspir- testified also one of his only that. parties raise even when ators, Mokhtar Haouari. After providing has contrib- hodgepodge No doubt approxi- to the assistance Government for majority’s ultimate errone- uted to mately years, two Ressam decided cease it Unfortunately, here. ous decision began prior cooperating recanting his law, gift and it disagreeable also testimony. The district court sentenced keep giving. on will years to 22 Ressam to be fol- prison (2) at reference 11 is added Footnote supervised lowed five release. on penultimate paragraph end parties appealed Both to this Court. slip F.3d at op. [593 1135]. challenged his conviction while (3) slip op. 11 is at Footnote added challenged Government the reasonableness as 1135] F.3d follows: [593 of the sentence. This Court vacated Res- majori- agree if I were to with the Even Nine, as sam’s conviction to Count itself, sentencing I could ty on the issue resentencing without ad- remanded with its to remove agree decision the merits dressing of the Government’s I not see Coughenour because do Judge Ressam, arguments. United States v. to Ressam’s approach (9th Cir.2007). 597, 604 United I inexplicable. indurate or would either Supreme reversed this States Court long- complex, transfer of this not order (over decision and affirmed years) ten to a dif- Court’s Ressam’s standing case judge. as to Nine. ferent district conviction Count Ressam, 553 U.S. ALARCÓN, Judge: Senior Circuit (2008). 1858, 170 Upon L.Ed.2d 640 S.Ct. OPINION remand, 22-year this Court vacated sentence, addressing without the Govern- by jury Ahmed Ressam convicted challenge to ment’s the reasonableness of activity in con- on nine counts criminal sentence, because an attack plot carry nection with his out detonating applicable failed to determine the against the United States range begin at the him Sentencing returning banned from to France sentencing, required by ning of years. for three Ressam was returned 984, Carty, States v. by France Moroccan authorities when it Cir.) (en denied, banc), 1061, cert. 553 U.S. was determined that he was not Moroccan. (2008); 171 L.Ed.2d 780 S.Ct. 20, 1994, February On Ressam arrived Ressam, United States Montreal, Canada, at Mirabel Airport (9th Cir.2008). using illegally passport altered French resentencing hearing, At the Anjer Medjadi. the name of Tahar The again imposed court the same sentence. passport was altered in that pho- appealed has Government this replace had been inserted to that of the decision. It contends that when the rele- original bearer. When Canadian immigra- 3553(a) vant are applied factors tion personnel confronted Ressam with the case, imposed facts of this the sentence passport, divulged altered Ressam his true accomplish purposes insufficient to name. applied refugee Ressam for status statute, which directs “[t]he Immigration, indicating Canadian on impose shall a sentence but not sufficient application this Algeria that he left in De- greater necessary” than to accomplish the having cember 1993 after been arrested 3553(a)(2). purposes of 18 U.S.C. It jailed for 15 months for arms traffick- complains in particular about the district ing to terrorists in Algeria. Ressam’s re- give appropriate court’s failure to consid- quest refugee status Canada was eration to Ressam’s recantations and disa- denied on appeal June 1995. His was previous cooperation. vowal of his also denied. A deporta- moratorium on We vacate the sentence and remand for however, tions from Canada Algeria, resentencing because we conclude that the allowed stay Ressam to in Canada under flawed, sentencing process seriously was by conditions Citizenship Immigra- set notably by the district court’s failure to (CIC). tion Canada Ressam failed to com- explain its reasons rejecting the Gov- ply conditions, with these May and on argument ernment’s that a longer sentence 1998, a warrant by was issued CIC for protect is needed to public from future Ressam’s arrest. Ressam was not arrest- terrorist crimes imposing Ressam and however, ed because at the time the war- sentence that is 43 below the adviso- issued, rant attending was he was a terror- ry Sentencing addition, Guidelines. In we training ist camp Afghanistan. conclude that the case assigned should be on remand to a different judge 17, 1998, On March traveling under the appears because it original judge Norris, name Benni Ressam went from would putting have difficulties out of his Karachi, Montreal to Pakistan. In Kara- previously expressed mind views as to an chi, got Ressam in touch with Abu Zubeida appropriate sentence. who in charge of the Afghan terrorist training camps. grow Ressam was told to

I clothes, Afghani beard and wear prior to A being transported across the border from Afghanistan. Pakistan into While Ressam Algerian Ahmed Ressam is an national. Afghanistan, issued, was in fatwahs were Traveling on a passport false Moroccan including one Sheikh Omar Abdel Rah- Ressam, issued in the name of Nassar man, directing the fight Ressam left terrorists Algeria in 1992 and went to 8, 1993, every- France. On November Americans and hit their French interests authorities deported Ressam to Morocco where. February carry 1998 and would out bank robberies to finance

Between March training operation Ressam attended three their in the United States. Oth- in Afghani- for Islamic terrorists camps planning operations er cells in Eu- were received instruction at stan. first rope against and in the Persian Gulf (hand- Camp light weapons Khalden United States and Israeli interests to be launchers), rocket guns, guns, machine year carried out before the making (including devices explosive February Ressam to returned TNT, (plastic explosive), C4 and black Canada, traveling under the name Benni explosives), sabotage, selection plastic $12,000 cash; carrying: a Norris and in (includ- warfare, tactics targets, urban Hexamine, chemical substance called assassinations), security, and ing the use which used as a booster in the manufac- The poisonous gas. sabotage and poisons and, ture of a explosives; notebook with learning up how to training included blow put how to together explo- instructions on country, including a the infrastructure of sives. military and special the enemies’ installa- In the spring of French authorities tions, gas plants, plants, such electric investigation were an conducting of radical railroads, and hotels where con- airports, Islamic in living fundamentalists Montreal are held. The urban warfare ferences to providing support who were believed be how to training carry instructed on out organizations to Islamic terrorist in Eu- cities, roads, in how to block operations rope. The Montreal “cell” in was involved buildings, to assault and covered the how stealing and other passports identification operations. Ex- strategies used in these sending and them documents to other cells included how to do sur- plosives training Europe in to allow fellow Islamic extrem- veillance, take and blend in pictures, internationally. to ists travel The French wearing clothing that a tourist would wear. requested authorities an of Res- interview weapons The and ammunition used at the sam but the Canadian authorities were camps were the Taliban. supplied him living unable to locate because he was underway carry to out Plans were terrorist under name of Benni his false Norris. in Europe and elsewhere. operations In the in- summer of Abu Doha Camp, attending After Khalden Ressam Ressam, London, formed Camp to located moved Toronta outside Jalalabad, Afghanistan, where he was other members of the Montreal cell decid- in the explosives they trained manufacture of to in ran Europe ed remain because and the course of a month a half. problems Immigration. over into with Ressam put Ressam how to chemical sub- learned decided with operation to continue together explosives to form and stances without the other of his cell. members to make circuits to used how electronic be targeted airport, knowing Ressam an things up. blow result, many as a would die. civilians operation, planning While Ressam and Ressam five other terrorists were friend, Zemiri, worked with his Ahcene of a cell with part charged carrying out helped robbery him a in- plan who bank against target in the operation tended secure funds to finance the at- airport States —an or consulate—before tack and the United States. Ressam the end of 1999. The leader of the cell on Zemiri did surveillance the bank. Res- stay Abu was to in touch with Jaffar and Samir Ait Mohamed sam asked Zemiri Europe. Doha in Pakistan Abu silencer, get with a hand pistol members plan was the cell to travel robbery. they grenades during to use separately meet Canada where bank gre- to throw a live hand Ressam filled out a custom’s planned declaration run, if police, falsely, at the he needed to form stating nade his name was Benni get away. do so order Norris and that he was a citizen. Canadian inspector pat- One customs conducted a 17, 1999, On November Ressam and his down search on Ressam as others were Dahoumane, co-conspirator, Abdel traveled searching the car. inspector When an dis- Vancouver, B.C., where from Montreal to appeared covered what to be contraband they explosives for the LAX prepared trunk, the wheel well of the Ressam fled cottage. in a rented On December bomb inspectors on foot. gave Customs chase. 14, 1999, Ressam and Dahoumane traveled chase, In the course of the Ressam at- Victoria, B.C., all from Vancouver to tempted carjack a vehicle. He was bomb, including of the components apprehended by inspectors customs explosives, in the wheel well of the hidden inspection returned area in a alone, Continuing trunk of a rental ear. police car. inspectors The resumed carrying explo- Ressam drove the car trunk searching the of Ressam’s car. ferry, an car sives onto American M/V COHO, Tswassen, B.C. Before board- narcotics, Believing the contraband to be ing ferry, Immigration a U.S. and Nat- inspectors did handle the items as inspector uralization Service checked Res- carefully explosives. as one would handle sam’s documentation and destination. inspectors As the reached into the wheel provided Ressam the inspector with a items, well to remove the Ressam ducked fraudulent Canadian in passport the name down protection police behind the of the of Benni Norris and stated that he was car An explosives expert door.1 later de- heading ferry to Seattle. Because the was termined that the materials found typical not the route from Vancouver to car capable producing were a forty blast Seattle, inspector decided to search the greater times than that of a devastating car. inspector The failed to check the car bomb. trunk, however, hidden wheel well in the Following arrest, his Ressam was indict- and Ressam was allowed to board the fer- ed on nine relating attempt counts to his to ry. The COHO Ange- arrived Port MTV carry out an act of terrorism transcending les, Washington evening. Upon later that boundary. a national statutory The maxi- leaving ferry, questioned Ressam was mum penalty for these offenses was 130 Inspector U.S. Customs Diane Dean. years in prison. Inspector Dean detected nervousness trial, secondary directed Ressam to a Before inspection the Government offered area. years Ressam a sentence of 25 imprison- following 1. The golden items were found in Ressam's liquid full of a brown covered 3/4 substance, car: liqui- with a sawdust like which explosive, fied was determined to be an lozenge primary two bottles filled ex- with (EGDN). ethylene glycol dinitrate Also dis- plosives, one of which contained hexame- covered with these chemicals were four (HMTD) thylene triperoxide diamine devices, timing comprised of small black cyclotrimethy- the other of which contained boxes which each contained a circuit board (RDX); plastic bags lene trinitramine connected to a Casio watch and nine-volt approximately pounds total of urea in battery form, connector. Tests later confirmed powder fine white which is a fertilizer that, nitrated, timing operational. that the devices were when can be a used as fuel in fingerprints explosives; and hair were found plastic bags of about 14 timing pounds crystalline powder in some of the devices. total of a deter- sulfate; mined to Ex be aluminum two 22- Government’s Parte Motion and Order re: jars approximately Rogatory, ounce olive each filled Letters March law cooperate for a The it and en- exchange guilty plea. wished with ment in of- considered the sentence investigation Government forcement in the authorities of- substantially discounted fered to be May of terrorist activities. On fer, litiga- taking into account the risk began meeting Ressam with Government trial, tion. the Government Prior in an agents attempt cooperate. Res- regard its evidence characterized with position was that the United States sam’s In- One, Conspiracy to Count Commit Attorney agree upon should a sentencing Act of Transcend- ternational Terrorism prison of 10 to 15 range ex- Boundaries, the most serious ing National cooperation. for his June change On one that carried the most charge and the Attorney respond- the United States weight, very thin. The Government agree- ed to Ressam’s offer with letter ability prove about its concerned memorializing parties’ ment under- he intended to do once what Ressam standing cooperate would Ressam border, phony pass- using crossed the hopes with law enforcement “in of earning carrying pounds over 100 of ex- port and departure a motion for a [in downward plosives. during It was fact not until pursuant sentence] to U.S.S.G. 5K1.1.” trial, important ev- that some most signed agreement the next developed regard to what idence was cooperation day. agreement required do explo- intended to the Ressam with compliance full with the terms of rejected pre-trial plea Ressam the sives. agreement, cooperation the full with years. offer of 25 designated agencies, and his truthful testi- trial, its ease the preparing In for Gov- mony grand jury, before the and in other judicial the ernment enlisted services of proceedings any with respect mat- agencies and law enforcement from several requested by ters as the Attorney’s U.S. unavailability Due to other countries. Office for the Western District Wash- in law witnesses certain enforcement ington or Southern District of New Canada, fact and the that certain other York, including but not limited to trial expressed testifying fear of witnesses accomplice co-conspirator of his Mokh- trial, against at the district court Ressam prosecutions tar Haouari and future granted to take the Government’s motion in brought partic- connection with the foreign depositions Canada. Order Canada, mo- granting ipation District Court Government’s Ressam and others 23, depositions, tion foreign for June conspiracy in a Afghanistan, elsewhere Due possible prejudice by public senti- to kill United States nationals. area, judge trial

ment the Seattle exchange, Attorney United States granted Ressam’s motion to transfer the agreed asking to file a 5K1.1 motion April site trial to Los Angeles. On judge for a departure downward 6, 2001, following involving a 19-day trial then-mandatory Sentencing Guidelines. approximately 120 and over 600 witnesses parties agreed The that neither Id. side exhibits, all jury a convicted Ressam on request a than would sentence less these exposure counts. The sentence years imprisonment. then-mandatory convictions under Sen- May 10, September Between 2001 and years to life. tencing Guidelines Ressam met with Government B July 5, approximately 22 times. On agents 6, 2001, July Ressam testified 4, 2001, prior sentencing, May On trial of his prosecution a witness at the co- counsel for Ressam informed Attorneys’ conspirator, that Ressam Mokhtar Hauoari. evi- Office Attorney, trial established that he with the dence at Haouari’s United States Ressam conspired Abdelghani with Ressam and began showing reluctance to discuss cer- support plot Meskini to Ressam’s terrorist Special Agent tain matters. FBI Hum- to bomb LAX. United States Mokhtar phries, who worked with Ressam from the Haouari, S4-00-cr-15, 2001 WL commencement cooperation of his with the (S.D.N.Y. 2001). Hauoari Sept. at *2-4 Government, testified that in a June supported by recruiting Meskini interview, Ressam had talked with States, to assist Ressam in the United Hamaidi, him length about Nacer money, him a by providing credit card Vancouver, Columbia, individual in British pleaded Meskini and false identification. obtaining who had assisted Ressam in: guilty against and also testified Hauoari. security fraudulent Canadian social num- plea agree- Under the terms of Meskini’s bers; driving Ressam to the DMV for the ment, years imprisonment. he received six purpose obtaining driver’s license years Hauoari to 24 in pris- was sentenced name, fraudulent the Benni Antoine Norris on, statutory two short of the maxi- name; Bank, him driving Royal mum. where opened he an account under the 2, 2001, July entirely name;

On based almost Benni driving Antoine Norris Res- Ressam, upon provided by information sam to the downtown Vancouver business Attorney for United States the Southern licensing office where he was to apply able District of New York a complaint filed import/export and obtain the Benni Doha, against major player Abu in the explained license. Ressam Agent Hum- activity. arena of terrorist Ressam was phries that him Hamaidi advised on an aware the success of the Govern- Alberta, living Canada, individual who attempts ment’s to extradite Doha from DMV, worked for the which privatized England depended exclusively upon a com- Alberta, in and who for a sum of $500 prehensive provided by declaration Res- furnished Mr. Ressam with a true Alberta sam. in driver’s license the name Benni Antoine That subsequently Norris. license was After the terrorist attacks that occurred 11, 2001, Quebec surrendered to September on driver’s license Ressam identified photograph authority Quebec Zacarías Moussaoui from a to obtain driver’s li- an individual he had met at the Khalden cense that name. Hamaidi that knew training camp. provided Ressam also in- training camps Ressam had been to the formation that assisted law enforcement in because he drove him to the bus station that determining the shoe confiscated from night he go Afghani- left Canada to to Reid, Richard the so-called “Shoe Bomb- stan for training. And he was the first er,” complete was a device that needed to person in Vancouver Ressam met and being be disarmed before put plane on a called when upon he came back into North transport for to a analysis. lab for Afghanistan America from training camps. Relying on coopera- Ressam’s continued This information was passed on to Cana- tion, 26, 2001, on October the United dian who critically authorities were inter- Attorney for the Southern District in trying they ested to ensure that could of New York a complaint against filed identify may individuals who be in a posi- Samir Ait Mohamed. Ressam was aware tion to carrying assist criminals intent on that figure prominent he would as a Gov- upon out attacks the United States. When ernment witness in that case. Royal officers from the Canadian Mounted (“RCMP”)

By November Police six months after traveled to the United entering cooperation into the agreement States to interview Ressam in late 2001 in investigation getting to assist Ressam in into ongoing their offered connection with Hamaidi, however, Security had Program, designed Ressam Nacer Witness longer discuss that he would no prisoners custody, decided federal which that testified Agent Humphries Hamaidi. housing result less onerous could disappointed officers the RCMP were Ressam, at some dis- situation albeit with staying was not consistent Ressam from Seattle. declined to tance Ressam provided. previously he had information prosecution’s take the offer. spoke to Humphries intervened and

Agent response request to re- Ressam’s to dis- Ressam did not want Ressam but the terms negotiate cooperation of his testified Agent Humphries Hamaidi. cuss agreement, prosecution stated was a was the first time there that this cooperation to date was not of a Ressam. rapport with disconnect dissolving nature to lead them to consider Feb- September 2001 and Between year recommendation sentence met with Gov- ruary Ressam prosecution floor. The also noted 15 oc- agents on approximately ernment date, cooperation they on the based casions, in a including participation his not recommend a in the 27 would hearing York related deposition in New stated, range. prosecution how- year against taking place to prosecutions ever, that its final recommendation would Germany. On criminal defendants cooper- reflect Ressam’s further efforts to 11, 2002, after February nine months in future and in debriefing ate sessions began cooperation his with testimony. providing Considering Res- Government, Ressam’s counsel met sentencing exposure, prosecution sam’s Attorneys’ members United States that it was in added Ressam’s interest sought renegotiate Office and promised cooperation fulfill his and earn a parties’ cooperation agree- terms of motion. departure counsel, According to Ressam’s ment. granted The district court several sen- suffering anxiety related he was continuances Ressam to tencing to allow sentence, conditions of impending his his further with cooperate the Government.2 compromising confinement were early cooperating Ressam continued until and he well-being, and mental physical two-year the of his 2003. Over course re- prosecution closure. The wanted trial provided he 65 hours of cooperation, the sponded complaint to Ressam’s about deposition testimony, and and 205 hours in the FDC conditions of his confinement debriefings. provid- Ressam proffers Special Housing by remind- SeaTac Unit governments to the of sev- ed information were influ- ing him that these conditions in two en different countries and testified acts by the nature of his criminal enced trials, of which he both ended convictions charges the serious for which provided He names of at prosecution The the defendants. now stands convicted. 19, 2001, 3, April 2002. December originally was to be sen- ued to On 2. Ressam scheduled 2001, 29, 28, 18, sentencing was rescheduled for March on June On June tenced 2001. 13, 2002, cooper- prosecution just prior entering into the 2002. On March the to Ressam agreement a nine-month to allow prosecution, the dis- moved for continuance ation with the sentencing July opportunity to “the to fulfill the terms court continued the Ressam trict 25, 5, 2001, cooperation.” July promised did not district court his 2001. On the September object prosecution’s request for a nine- sentencing continued Ressam’s 20, 7, 2001, sentencing con- September continuance. The district court On month 2001. 13, sentencing to 2003. It February 2002. On tinued the March was continued 13, 2001, February sentencing was contin- was later rescheduled to December 26, 2003, February in terrorism and people least 150 involved On the district court many provided others. He also described held a on hearing prosecution’s the motion poten- explosives information about hearing, for a continuance. At the tially the lives of law enforcement saved prosecution district court asked the how it agents, and extensive information about if respond grant would the court were to opera- terrorism global the mechanics of upon their continuance conditioned im- tions. filing mediate of a 5K motion for a down- ward departure upon based Ressam’s co- 19, 2003, February prosecution

On operation. day, That prosecution same a continuance of filed a motion for Res- a pursuant filed motion to U.S.S.G. Section requested an ad- sam’s 5K1.1, a journment seeking sentence below the other- to the terms of his pursuant agreement applicable guideline with the wise cooperation range Govern- based on prosecution argued ment. The the Mr. Ressam’s substantial assistance request pointed reasonable and out Haouari, was case of United States v. Mokhtar co-conspirator, Abdelghani Ressam’s prosecuted a matter in the Southern Dis- Meskini, cooperating another defendant trict of New York in the summer of 2001. pleaded guilty against who and testified Haouari, WL *2. The trial, continuing provide Ressam at district court set a status conference for information, the Government with valuable Despite October 2003.3 5K1.1 mo- plans and there were no to sentence him tion, however, Ressam indicated he was prosecution time soon. reminded unwilling to continue cooperation. By the district court that it had offered over April he refused to provide a written year earlier to transfer Ressam to another statement to British concerning officials prison impact to address the adverse individual who was a member of his own may conditions of confinement having be terror cell. mind, on his state of but his counsel had Concerned about Ressam’s state of mind objected to prosecu- such transfer. The demeanor, in October 2003 Ressam’s tion further informed the district court counsel consulted with Dr. Stuart Gras- that, relying promise coop- on Ressam’s sian, a psychiatrist special- Board-certified erate, Doha Abu had been ordered extra- izing evaluating psychological effects Magistrate dited Court London of stringent imprisonment. conditions of prosecution. to the United Also Dr. Grassian met with Ressam in Novem- relying promise on cooperate, ber 2003 and concluded that his conditions process Government was of ex- very of confinement played significant traditing Samir Ait Mohamed from Cana- in explaining role the deterioration of his prosecution da. The stated in its motion state of mind. In February Dr. yet that it had not position decided on its Grassian met in New City York with Res- respect with to a 5K1.1 motion and that counsel, sam’s members the United now, if forced make a motion the prose- Office, Attorneys’ States and behavioral likely cution would make a sentencing rec- experts science from the FBI. It was calling considerably ommendation for a decided that Ressam a longer period of would be moved to incarceration that we might prison if completed prom- Ressam had his environment that would afford him cooperation. environmental, ised social, much more and oe- 17, 3. February The scheduled status conference was contin- uled for It 2005. was later finally ued July several times and occurred on April continued to 2005. date, sentencing that On was sched- helpful The transfer was Ressam’s information in that stimulation. was cupational met in June 2004. Dr. Grassian a provided personal effected it account of his ma- again in 2004 and Ressam October with triculation from North through America appeared much less that he to be observed to Pakistan Europe through safe-houses relaxed, tense, thinking and his was more Afghanistan. Agent Humphries into tes- reported clearer. Dr. Grassian strikingly tified that most the information Res- realized that he had made that Ressam provided previously sam to the FBI had and that his promise cooperate, solemn intelligence existed within the U.S. com- testify speak and to continue to refusal realms, munity in classified Ressam but likely could have ser- the Government vehicle, as an which served unclassified consequences to his regard ious adverse relay previously the FBI could use to Never- custody and his status. sentence information to law en- classified other theless, Ressam’s by November and intelligence forcement services cooperation it clear that made his counsel throughout Additionally, the world. wanted to be finished that he filed a prosecution summary of debrief- sentenced. ings, proffers, testimony provided by April on sentencing hearing was held A in support Ressam filed sentenc- parties 2005. The each by memorandum to be on a filed Ressam the terms Contrary memoranda. ing later date. cooperation in the June set forth sentencing hearing, At the Ressam ar- a sentence requested Ressam agreement, cooperation that his gued was worth a imprisonment. Ressam’s months of 150 reduction in his greater sentence. Ressam starting point that the should position was that he ceased argued cooperating, part, offer of prosecution’s pre-trial plea be the having he was because trouble remember- Sentencing rather years, than the Ressam ing psychiat- details. submitted a range years to life. The Guidelines prepared report ric Dr. Grassian of 35 recommended prosecution opined wherein he that the combination that imprisonment, arguing solitary repeated confinement interro- agreement with the United breaching negative had a gations impact on Ressam’s Office, Attorneys’ had ef- States Ressam health. Dr. mental Grassian further stat- fectively terminated at least two criminal history strong that Ressam’s provided ed security. cases of vital interest to national danger evidence he would not be a Res- prosecution acknowledged community. Dr. noted our Grassian also provided assistance to sam had valuable report in his that Ressam if the wondered foreign authori- the United him might willing be to let Government reason, despite For that Ressam’s ties. live the United States after his release cooperation agreement, breach of Relying prison. on Dr. Grassian’s 35-year recommended a sen- prosecution argued experi- Ressam he report, that was tence, reduction which was substantial very encing cognitive some serious issues. year bottom of the otherwise from the 65 range applicable assessing cooperation, cooperation. face absent would that the United commented Attorney’s pre-trial offer of a sen- States Agent Humphries, was involved who years “might of 25 have some rela- tence co- throughout the duration of Ressam’s post-trial of the tion to assessment concerning the infor- operation, testified cooperation.” with a level of Sentenc- its use- case received from Ressam and mation 15, 27, April that Tr. at 2005. Agent ing Hr’g stated Humphries fulness. 814 optimism cooperation stated to Ressam’s son for that

The district court will Id. improve.” counsel: me, that Mr. things baffles One of 27, 2005, July On the district court held Hillier, in an in-cham- I made it clear a sentencing hearing argument and heard you gov- and the sides, bers conference with largely from both which mirrored give to be ernment that I wanted able arguments presented 27, April at the I Mr. as much credit as could Ressam hearing. 2005 The Court sentenced Res- that, hap- And what cooperation. years imprisonment. sam to session, which was a pened between appealed from his conviction for ago, or a few weeks and the ago month carrying explosive during the commis sentencing, time of this could be trans- felony. of a sion United States v. Res mysti- I’m lated into of time. And (9th sam, Cir.2007). 474 F.3d 597 In a upon going fied that he insists ahead cross-appeal, prosecution challenged sentencing today, rather than with the Ressam’s sentence as unreasonable in waiting happens what Doha see light of cooperating his decision to cease you and the Canadian case. Can shed prior and to recant his statements. Id. that, any light violating your on without This Court reversed the conviction for privilege? carrying explosives during the commission Id. 106-07. The district court also com- felony, sentence, aof vacated Ressam’s mented that “it strikes me that a lot of the resentencing, remanded for without remembering details that he’s not now are addressing the prosecution’s merits of the things forget.” one would not Id. at arguments as to the reasonableness At urging, the district court’s Res- sentence.4 Id. The United States Su sam asked for a three-month continuance preme Court reversed this Court’s deci sentencing hearing to allow him to prosecution sion had failed to willing cooper- consider whether he was prove each of the elements of the crime of prosecutions ate further in the of Doha carrying explosives during the commission prosecution objected, and Mohamed. The Ressam, felony. of a United States v. arguing that Ressam should decide then 272, 1858, U.S. 128 S.Ct. 170 L.Ed.2d 640 (2008). and there he willing coop- whether remand, On this Court vacated fully, disingenuous erate and that it was to the sentence and remanded for resentenc memory suddenly believe that his would ing because the district court had failed to improve. The district court concluded that applicable determine the range, request Ressam’s reaction to the for con- required under Carty, United States v. (9th Cir.2008) (en cooperation tinued suggested banc), “there’s rea- 520 F.3d 984 cert. (9th Cir.2006), 4. This granted, Court vacated the sentence on the 462 F.3d 1066 ground that the reversal of the conviction for Supreme grant- the United States Court has require sentencing Count Nine would a new ed writs of certiorari in Claiborne v. United Ressam, hearing. 474 F.3d at 604. It de- States, 1016, 549 U.S. 127 S.Ct. clined to address the merits of the Govern- (2006), L.Ed.2d 406 and Rita v. United argument ment's as to the reasonableness of States, 549 U.S. 127 S.Ct. part Ressam’s sentence in because: (2006), good L.Ed.2d 406 which will have a applicable the law is in flux. say sentencing process deal to about the banc, rehearing We are two en cases Booker, the wake of United States v. (9th Cir.2006) Carty, 453 F.3d 1214 U.S. 125 S.Ct. 160 L.Ed.2d 621 reh’g granted, en banc 462 F.3d 1066 (2005). Zavala, Cir.2006), and United States v. (9th Cir.2006) reh’g F.3d 1165 en banc (D.D.C. Obama, States, filed No. 04-cv-2046 v. v. United nom. Zavala sub denied 2004). 171 L.Ed.2d Nov. 128 S.Ct. 553 U.S. Ressam, (2008). States v. in a letter dated March Similarly, (9th Cir.2008). Attorneys’ Of- 2007 to the United States fice, previ- to recant his purported Ressam

C Haouari. In the testimony against ous on No- appeal, matter was on While letter, not men- claims that he was Ressam 11, 2006, a letter to Ressam sent vember against when he testified tally competent testimony recanting the court the district innocent and that Haouari “is an Haouari Haouari. Res- in the trial of provided he States, man.” Haouari United sam stated: (2d Cir.2007). Haouari submitted regard to you in

I this letter write “newly discovered evi- Ressam’s letter as “Mr. prisoner allegation” “the filing of a sufficient to warrant dence” Ahcene Zamiry” spelled [also Hassan § 2255 mo- or successive 28 U.S.C. second in prison in who is Guantanamo Zemiri] pursuant Id. Haouari’s motion tion. the Island of Cuba. denied. Id. 2255 was that Mr. Hassan allegation: Is

The D support for aid and Zamiry provided had not I carried out. This is operation the district resentencing hearing, At the it is false. right, began by calculating applicable court range for Ressam’s

Sentencing Guidelines life, at 65 at the crimes of conviction Prosecutor I dealt with Wfiien including ten-year mandatory prison sen- in and had I was shock beginning, imposing Nine. Before its I result tence for Count disorder as psychological severe sentence, court heard from the the district results. I was sure of the court [sic] sentence it should parties regarding the m[y] about statements. conformity in this Court’s impose mandate. Zamiry is innocent and Mr. Hassan op- se, no relation or connection

has pro in Ressam told Appearing carry out. He I was about eration court that he wished to recant his it and anything not know about also did Mak- testimony co-conspirator against anything. me in he did not assist Haouari, made be- tar and all statements Doha jury implicating Abu grand fore the Ah- claimed that previously had Ressam Mohamed, Ait two known ter- and Samir money him and provided Zemiri cene “major players” rorists considered be plot, camera to aid Ressam’s video made the al-Qaeda network. Ressam him an going to assist that Zemiri following statement before committed robbery that was to be armed hearing: at his plan. obtain funds for the in Montreal to after the trial I severe shock with the suffered began cooperating When I my faculty and did and I lost mental Government, Zemiri fled Canada saying. gov- I not know what was captured Afghanistan was later investigator, attorney and the ernment prisoner as a to Guantanamo brought my condition they know about mental based, state- part, on Ressam’s at least my about going through, I pend- that was petition is Zemiri’s habeas ments. procedure ex- faculty and mental District Court the United States ing before in- They their own interests. posed to See Zemin District of Columbia. for the terpret my some of statements to suit I will move to case about Abu Doha their interests. And statements that Previously Samir Mohamed. mouth, put my yes, was in which I said government attorney me, Bruce, called because—due to the extreme mental ex- testify about to in the case of Abu Doha I I going through. haustion was also am and Samir Mohamed in front jury of a in subject pressure upon put me refused, New York. At the I beginning attorneys investigators. and the accept and then I because I could presented The evidence in court find an alternative to that. in And also should be obtained from a solid source order to appear at the possible earliest that cannot be doubted. But if the evi- in my time court for sentencing. dence and the statements are obtained The later reason will affect the case of pressure dubious sources or under Abu Doha and Samir Mohammed and of a threat or from a mental incompetent cause their cases to be in dismissed source it should not be admitted. And America. I is the situation was in. appeared I in jury When front of the I past sent in the a letter in New York I retrieved almost all the government attorney Bianco, Joe I past statements made in the as to Abu my which I retrieved all statements that Doha and Samir Mohammed. I indicate I gave investigation past; my earlier statement because I did all I gave during testimony those not know what I was saying. Makhtar Haouari in the New York court I proceed my because neither Sentencing 10-11, mental Hr’g Tr. at December I [sic] faculties or know what I was Ressam concluded stating that saying. nothing say he had about his trial and judge

The New York suspicion was asked the district court to “[s]entence me letter, my thought and he that I was prison to life in or anything you I wish. doing that because—and I did not be- will objection your have no sentence.” thought cause order —He that I was Id. at 12. doing that I nothing because had to lose argument, In its prosecution reiter- I already because was tired I [sic]. points ated the raised in its November did not that in order to win or lose. 2008 sentencing memorandum and recom- First, I did that I because was not men- mended that Ressam serve a term of life tally competent I and did not know what imprisonment, upon based his further re- Second, I saying. I did that be- attempts cantation and to distance himself presence cause—in the of that judge. I from his earlier cooperation. prosecu- retract all. I repeat, all of the state- tion argued that imposed ments that I made in past and do protect needs “to public from further my not want my word counted in trial. crimes of the defendant.” It also stated: So sentence me to in prison life or as Ressam’s arrest on December you objection wish. I your have no 1999, was not the result of a sudden sentencing. lapse of judgment. It was the culmina- I you want from and from the New work, tion of planning all justice York to take another look as to causing aimed at as much harm to the Mokhtar Haouari case. Sentencing United States as he in- possibly could should set when the evidence at hand is flict. absolute, Following his conviction in April and look if the evidence is in doubt it would be preferable to Ressam claimed that after rescind he ob- go the decision. I subject. to different served the fairness with which the Court trial, supporters incapaci- should be he had and their throughout the him treated longer period a time. he was tated change [and that] of heart a for of operations terrorist “firmly against” Meskini, (citing Id. at 19 United States around the world. America and (2d Cir.2003) (emphasis added)).5 short- change of heart was argued that the prosecution The no indica- provided Ressam has lived. district court should goals the of repudiated he has tion that adequate that affords impose a sentence the inflict harm on United terrorists to pro- for criminal conduct and deterrence cooperation His decision to end States. public tects the from further crimes of continues to that he specter raises the this defendant. and serious threat a real

pose reality today’s of The unfortunate Ressam’s more recent States. United world, abundantly clear last made so affirmatively help identified decision Mumbai, possibility the of week for their escape responsibility terrorists continuing attacks is a future terrorist con- even more serious actions raises genuine threat. The sentence this time, point in this Court cerns. At this imposes Court on Mr. Ressam must not the most fundamental address [must] to Mr. only act as deterrent would Ressam no age at what question: actions, equally future but im- and his of the pose people a threat to longer act portant they must also deter- United States. potential rent to future terrorists who contemplating against actions are 23-24, Sentencing Br. at Government’s States. It must broadcast vein, In this same 2008. November message to extremists that when clear the en- challenge to addressing Ressam’s they and convicted will they caught are un- history required score criminal hanced consequences. suffer serious 3A1.4, prosecution der U.S.S.G. During the 2005 this Court court to consider

urged the district probably this was the most noted that crimes of which Ressam was “all of the anybody faced significant at ever were directed and convicted charged on the bench. I your long tenure placing a bomb achieving goal his of here three later assume as we sit prosecution pointed out As [LAX].” fully I your opinion changed. hasn’t sentencing memorandum: its assessment. The agree with the Court’s Sentencing Commis- Congress and the away must send this defendant Court concluding a rational basis for sion had period of time so that long enough for a represents a that an act terrorism target chance he will ever there is no because grave threat particularly again. innocent victims the crime and the dangerousness dif- addition, must also In the sentence rehabilitating deterring and ficulty of criminal, unequivocal message to extrem- send an and thus that terrorists Meskini, Sentencing Congress Commission and the Circuit addressed the Second creating a uniform provision had a rational basis question whether history category for all terrorists increasing level criminal both the offense 3A1.4(b), even terrorists felony because history category under and the criminal unique prior criminal behavior are with no involving violated Meski- an act of terrorism of recidi- among in the likelihood by impermissibly criminals right process due ni's rehabilitation, vism, difficulty and the counting” act. the same criminal "double incapacitation. rejected need for the claim. The Second Circuit added). (emphasis explained that: Circuit Second price cooperation when he chose to end that there is a horrendous ists leading targeting the United States.... to the dismissal of these pay for charges.... [H]e also undermined his sentence, July 2005 if The Court’s cooperation by recanting other earlier would mean this defen- reimposed, statements. years, released in ten he dant would be jail in 2018. He would would be out 17-18, Br. at Sentencing Government’s years age. be 51 Think about the November 2008. to the arrest in prior defendant’s life At sentencing December case, this his fanatical commitment to hearing, explained the Government at- jihad, single-minded pursuit his prior Ressam’s recantation of his state- tack the United States. Think about his regarding training ments his terrorist and Doha, help recent decisions to Abu Sa- terrorists, the activities of other and his Mohamed, mir his most recent decision decision to cooperating, cease forced the affirmatively help Hassan Zemiri and charges Government to dismiss criminal Charkaoui, today Adil and as of his at- against prose- Doha and Mohamed. The tempt cooperation to withdraw even his explained cution that as a high-ranking al against in the trial Haouari. Qaeda member with close ties to Osama 30-31, Tr. Sentencing Hr’g December Laden, is, Bin question, Abu Doha without memorandum, In its dangerous one of the most terrorists ever prosecution summarized the value of Res- charged by the United States. After the cooperation generally sam’s charges against dismissal Doha in providing testimony prosecutions in the States, the United he was released from charged began individuals before he custody currently and is in living England. (such cooperation his testimony as the prosecution The argued that Ressam’s provided during he the trial of Mokhtar represents recantation attempts his to af- Haouari), providing information about firmatively assist known terrorists and ais explosive very devices that was helpful strong objective signal observer determining in the nature of the device long-held allegiance that Ressam’s to radi- found in provid- Richard Reid’s shoe and returned, cal terrorist beliefs have and ing information that corroborated the again unequivocally he once is a dan- already information known the Unit- ger to innocent people throughout ed foreign governments. States and prosecution argued world. The also sure, To be the information about Ressam’s sentence should reflect the seri- craft, trade organizations, terrorism ousness of the terrorist offenses for which training camps that provided Ressam convicted, he was and “send the defendant in an unclassified form. Thus this away for a long enough period of time so broadly information could be disseminat- there is no target chance he will ever ed to law enforcement officers both in again.” innocent victims United States and abroad order to broaden their knowledge. base of While prosecution pointed The out that in re- value, significant this was of the infor- sponse sentence of provided mation unique was not to Res- district court ordered in earlier its sen- sam. order, tencing Ressam has since recanted

Perhaps pursuant his most valuable informa- his earlier statements made leading cooperation agreement tion—that charges against with the United Doah and Attorneys’ Mohamed—cannot credit- States Office. After be recanted, ed. Ressam undermined that value that if it argued Government May had “known of 2001 what it Although unwisely [it] ended prema- today, going how this was to end turely, know[s] Mr. cooperation, never would have up, entered into co- [it] unique its breadth scope, weighed operation Any with this defendant. bene- heavily my initial sentencing decision provided fit he initially [the Government] import and its has changed my substantially outweighed by has been his analysis today. government’s 5K1.1 reversal, attempts now to use [he] motion filed in February requested position cooperating as a defendant to help departure downward from the Sentenc- his fellow terrorists.” ing Guidelines based on Mr. Ressam’s hearing After substantial parties, the dis- assistance in the case of Haouari, States trict court ordered versus Mokhtar as follows: a matter prosecuted in the The Ninth Southern Circuit has made clear that District of Sentencing only Guidelines are New York in one the summer of among factor to be considered fac- resulting those in the conviction of tors set forth in 18 U.S.C. Section Mr. Haouari. 3553(a), in determining appropriate an Mr. Haouari was sentenced 2002 to may I presume sentence. not that the years’ term of 24 imprisonment. Mr. range is reasonable. Nor testimony Ressam’s at the trial connect- should the Guidelines factor given be ed Mr. Haouari to plot, the terrorist of weight more or less than fac- other which Mr. part, Ressam himself awas Accordingly, tor. I have also considered bomb the Los Angeles International Air- the other Section 3553 factors in arriv- port on Day New Year’s In addi- ing at I imposing today. the sentence am tion to his substantial cooperation in recognize On one hand I the need that Mr. case Ressam also testified be- for imposed the sentence to reflect the fore a German tribunal on behalf of the seriousness of the offenses Mr. Ressam government German against the trial committed, provide just has punish- Mounir Motassadeq.... [i]n December offenses, ment for promote those and to 2002, which resulted in a conviction and

respect the law. Mr. Ressam’s years. sentence of 15 crimes, if carried to their intended con- recognizes Court that Mr. Res- clusion, would have resulted sam’s later decision to end his coopera- injuries deaths and of of hundreds inno- tion resulted in the dismissal of two people cent and instilled fear across the pending prosecutions and the retraction country and even the world. Fortunate- of certain of his against statements two ly, Mr. prevented Ressam’s arrest such However, other terrorist suspects. Mr. an outcome. Because of the work cooperation, lasted, while it Angeles attentive Port Inspec- Customs tor, provided government Mr. the United Ressam’s crimes did not lead to limb, governments Britain, loss of life or and the nor of Great destruction of property. Nevertheless, Italy, Spain, Germany, the seriousness France and Can- and heinousness of the act of ada intelligence terrorism extensive proved that Mr. Ressam was carrying out at the be invaluable in fight against inter- time of his arrest cannot be understated. national terrorism. The defendant’s hand,

On the other I memorandum recognize Mr. submitted be- July Ressam’s extensive fore the cooper- sentencing hearing and valuable fight against ation terrorism dur- summarizes the far-reaching impact of ing the first two after his trial. Mr. Ressam’s cooperation on the investí- a result trying promote, ac- and that as of terrorist prosecutions

gations in all harmful country doing and abroad. what he was in this tivities respects. that Mr. cooperation Downplaying the would government into account the provided I have also taken cooper- future the likelihood of required diminish crimes nature of Mr. Ressam’s terrorists. by apprehended ation other solitary confinement that he be held in Further, be fair to doing so would if not for the upwards years, four me trial he told Ressam. After his Mr. likely entirety of This iso- his sentence. was not fairness his trial that the fact that he lation is exacerbated he had what expected, given he what op- and has no speak English does not that Mr. Res- The fair treatment done. and fami- for visits friends portunity trial was a public received his sam harsh conditions ly abroad. These decision to break major influence on his Res- necessarily set Mr. confinement a choice past cooperate, from that of the apart sam’s situation lives. undoubtedly innocent saved I am also typical sentencing. criminal decision, put he his own making In health de- persuaded Mr. Ressam’s addition, spent he has at risk. life teriorated somewhat from the isolation in a many years solitary in confinement repeti- that the of his confinement and family and country far from his loved tive, he questioning intensive to which will, measure, by be sacri- and ones submitted, and that these conditions portion pay life to ficing large a of his early contributed termination his crimes. cooperation. im- I I am believe the sentence Moreover, I the need have considered today a deterrent posing will serve as dispari- to avoid unwarranted sentence while for the Ameri- promoting respect among similar rec- ties defendants with demonstrating law can rule of have of simi- guilty ords who been found system of our fairness federal lar conduct. merely punitiveness. than its rather 35-38, Tr. Sentencing Hr’g December addition, In I into account have taken 2008. history characteris- Mr. Ressam’s and ter- The district court “other discussed Reading 2005 sentenc- tics. Mr. Hilier’s prosecutions around the rorism-related ing report memorandum and “a of 124 defen- country,” study and recent the conclusion Dr. Grassian leads me to in sentenced in terrorism trials dants history per- that Mr. life and September federal American courts since favorable support sonal characteristics that “the aver- 2001” which concluded life His consideration. imprisonment a little over age term crime do reasons for in his involvement years.” Id. at The district court eight support a that he is a conclusion that these not influence stated cases “did consid- good person, but it also deserves appropri- an determining decision [its] a quiet, eration. Mr. Hilier describes The district ate sentence this case.” Id. solitary and man whose true devout in other terror- court discussed sentences character is in his decision manifest attacks, cases, none of involved ist which of the cooperate. Through the course attempted the United or attacks within thereafter, immediately trial and Mr. States, backdrop against provide “to wrestled what he had done with and sen- it, which Mr. Ressam’s conviction why. put As Hilier Mr. Mr. - The court ex- may be action tence viewed.” Ressam determined that violent brought plained: shame the concerns he was advisory guideline

I note that none of the defendants ation from the range. cooperated extensively, However, cases these I believe the factors I have as much valuable information providing examined on the sufficiently record are fight against terrorism as Mr. compelling support the degree of the earlier, emphasized As I Ressam did. variance. cooperation provided au- Mr. Ressam’s Id. at 41-42. country in this

thorities abroad unprecedented view of the inner II Qaeda of al that almost cer- workings The Government appeals the sentence fact, tainly future attacks. thwarted imposed on Ressam the district court. coop- it was the extent of Mr. Ressam’s argues It presented sole issue “[t]he eration in the conviction of one of his co- in this case is whether the sentence im- conspirators govern- that resulted in the posed on Ahmed substantively Ressam is motion, filing specifically ment a 5K1.1 in light unreasonable facts this requesting that Mr. Ressam be sen- case and the factors set forth 18 U.S.C. applicable guideline tenced below 3553(a).”6 36.) (Appellant’s Opening Br. range. Specifically, the argues Government Therefore, based on all the factors substantively unreasonable I listed 18 U.S.C. Section here- because the district court adequately failed by reimpose sentence of weigh consider and the relevant period supervised release of five 3553(a) factors, including “the need [for conditions, years subject to the standard the sentence imposed] ... to ensure the together with those additional conditions public protected from future by crimes presentence report. set forth in the I 51.) this defendant.”7 at {Id. recognize that the sentence I am impos- ing significant reflects a downward devi- The Government argues also that: 3553(a) (5) requires any pertinent § 6. policy Title 18 U.S.C. that a statement ... following (6) court consider the fac- the need to avoid unwarranted sentence tors: disparities among defendants with simi- (1) guilty the and lar nature circumstances of the of- records who have been found of conduct; history fense and the and characteristics similar defendant; (7) the provide of any the need to restitution to (2) imposed— the need the sentence victims of the offense. (A) to reflect the 3553(a). seriousness of the of- 18 U.S.C. fense, law, promote respect to for the Accordingly, Carty, we instructed that provide just punishment to fense; for the of- overarching statutory charge "[t]he for dis sufficient, 'impose trict court is to a sentence (B) adequate to deterrence crimi- to greater necessary' afford but not than to reflect the conduct; nal offense, promote respect seriousness of the (C) protect public the law, from further provide just punishment; the defendant; the crimes deterrence; of adequate protect afford the (D) provide the defendant with needed public; provide and to the defendant with training, educational or vocational medi- training, needed educational or vocational care, cal or other correctional treatment care, medical or other correctional treat manner; the most effective Carty, (citing ment.” 520 F.3d at 991 (3) available; the kinds of sentences 3553(a)(1)-(2)); States, U.S.C. Gall v. United (4) the kinds of sentence and the sentenc- 6, 552 U.S. 50 n. 128 S.Ct. ing range established for— (2007). L.Ed.2d 445 (A) applicable category the of offense Thus, procedural 7. well applicable category "[t]here is as a committed of argument.” guidelines substantive element to this Unit- defendant as set forth in the Overton, ed States v. 573 F.3d sound, ally court should appellate sim- stated reasons court’s the [district] the reasonableness not establish the substantive reason- ply do then consider than the two-thirds less of a sentence imposed of the sentence under ableness advisory Guidelinefs] low end an abuse-of-discretion standard. When who was convicted range for a defendant review, will, the court conducting this crimes, extraordinary trial of such after course, totality take into account the prosecution and then undermined circumstances, including the extent provided whom he two terrorists about variance from Guidelines by refusing to finish his information range. upon cooperation. agreed Gall, 51,128 552 U.S. at S.Ct. 586. 38.) (Id. at appeal In this has elect- Government A argue ed not to the district court procedural errors. significant committed Ordinarily, ap a sentence is when Though the Government has identified consider appeal, we first pealed, “[o]n many alleged by the district court missteps sig the district court committed whether sentencing, opening in the course of its error, then we consider procedural nificant affirmatively procedural brief states of the sentence.” the substantive reasonableness Gall, In “a claim not ty, appeal.” error is raised on this Car that: Supreme Court instructed im of whether the sentence [r]egardless Ressam contends that as a result posed is inside or outside the Guidelines precluded considering proce we are range, appellate court must review court, citing dural errors the sentence under abuse-of-discre Supreme the decision of the Court It must ensure that tion standard. first States, Greenlaw v. United 554 U.S. signifi no the district court committed (2008). 128 S.Ct. 171 L.Ed.2d 399 error, failing procedural cant such as Eighth sponte case Circuit sua (or calculating) improperly calculate imposition longer ordered the of a criminal treating the range, Guide failure of the dis sentence based on the mandatory, failing to consider lines as mandatory court to a mini impose trict 3553(a) factors, § a selecting the sen sentence, mum of appeals which the court facts, clearly based on erroneous tence though a the plain identified as error even adequately explain the cho failing or appealed Government had not the sen including explanation sen an sentence— tence. The sentence was before the court any the for deviation from appeals because the defendant had chal range. Assuming that the district sentence, procedur- lenged contending decision is the that it was court’s Cir.2009) imposed by (concluding appellant that "al dural correctness of the sentence by accusing (Appellant’s Opening Br. procedural the the district court. lude[d] error 36) ("The failing whether to address the Court must first determine 3553(a) significant pro- adequately explain § factors and district court committed error, ap- imposed"); v. cedural a claim not raised in this sentence see also United States Paul, (9th Cir.2009) peal. whether 561 F.3d 974 n. 2 The Court must then consider unreasonable, ("It substantively procedural provisions the sentence is is the of 18 U.S.C. omitted) here.”) (citations 3553(c) require engagement § the issue raised that 5) added); (emphasis (Appellant’s Reply Br. the[parties'] arguments ... not the substan ("A 3553(a).”). procedural § provisions In sentence is reviewed tive of 18 U.S.C. for first error, here.”) (cita- however, although alleged appeal, ex none is its the Government has omitted) added). challenge proce- (emphasis pressly tion waived will, held that ness of a sentence long. Supreme Court at least too some by acting cases, had erred appeals court of invite consideration of process appeal or the absence of Government produced the sentence. aHow deci- Greenlaw, S.Ct. at 2570. cross-appeal. sion is arrived at can often light shed on not the here. The But that is situation Indeed, the merit of the decision itself. appealed has Ressam’s sen- Government problems “substantive ... prod- [can be] That it has elected to focus on the tence. uct of the proeedurally District Court’s reasonableness of the sentence substantive approach.” flawed Goff, States v. required means that we are not to review (3d Cir.2007). 501 F.3d Carty In errors, but it does not mean procedural we held that determining “[i]n substantive precluded looking that we are at the reasonableness, we are to consider the to- process produced that sentence. tality circumstances, including here, especially That true where the degree of variance for a imposed opening appeal brief on Government’s range.” outside the Guidelines Carty, 520 complains about a number of actions or totality F.3d at 993. The of circumstances arguably failures the district court to be considered in determining substan- procedural constitute errors. See United may tive surely reasonableness include Overton, States v. 573 F.3d examination of the sentencing process aas Cir.2009) (reviewing procedural error whole. appellant challenged where his sentence as substantively unreasonable but “allude[d] B by accusing error procedural 3553(a) failing to address the

court of To better understand relationship adequately explain factors the sen- alleged between procedural errors and Shaw, imposed”); tence United States unreasonableness, substantive it would be (11th Cir.2009) (re- analyze concepts useful each of the two procedural though viewing for error even in some detail. only appeal contention on was that the unreasonable). substantively sentence was Notably, arguments the Government’s Carty, we ques addressed the grounded are largely upon this case tion whether “the district court imposed a alleged adequately district court’s failure proeedurally flawed sentence failing weigh to consider and each of the relevant provide sufficient reasons for selecting 3553(a) factors, including protect “to sentence at the bottom of the Guidelines public from further crimes of defen- range rather than a lesser sentence.” dant,” explain impos- and to its reasons for Carty, 520 F.3d at 995. We held that a ing sentence 43 below the low end Sentencing range. Guidelines See would be procedural [i]t error for a dis- Carty, (holding 520 F.3d at 993 that “[i]t trict court to fail to calculate—or to procedural would be error for a district incorrectly calculate Guidelines —the 3553(a) fail ... court to to consider the range; to treat the Guidelines as manda- ... to fail adequately explain factors or to tory advisory; instead of to fail to con- selected, including any the sentence devia- 3553(a) factors; sider the choose from the range”) (citing tion Guidelines clearly on sentence based erroneous 596-97). Gall, at 128 S.Ct. facts; adequately explain or to fail selected, including any

It not that a sentence devia- surprising should be challenge range. to the substantive reasonable- tion from the Guidelines correctly,” Sentencing as the Guidelines concluded at 993. We

Id. error procedural starting point no and the initial are “the court committed Carty to a within Guidelines sentencing (quotations and citations benchmark.” Id. judge “[although the (or because omitted). sentence calculate im “[F]ailing to sentence [the reasons gave explicit no calculating) range” the Guidelines properly straightfor were arguments imposed], procedural error.” “significant constitutes ” In a Id. uncomplicated.... ward Gall, 51, 128 at 586. 552 U.S. S.Ct. complex is “neither case” which “typical “will unusual,” the Guidelines applying nor that “a sen Recognizing Guidelines ” lengthy explana necessarily require not reasonable,’ de usually be we tence ‘will sentencing proper comply tion” Carty presump “to embrace a clined in (citing Rita v. Unit at 995. procedure. Rita, (quoting at 994 tion.” 520 F.3d States, 127 S.Ct. U.S. ed 2465). However, we held that S.Ct. at (2007) no (finding L.Ed.2d 203 “judge ‘decides that an when a “given straight holding error and warranted, is outside-Guidelines sentence arguments forward, simple conceptually the extent of the devia he must consider judge’s statement of judge, the before the justification is tion and ensure that brief, here, legally suf though reasons sufficiently compelling support the de ficient”)); States v. see also United ” Carty, 520 F.3d at gree of the variance.’ 1050, 1054 Amezcua-Vasquez, 567 F.3d 597). Gall, at As (quoting 128 S.Ct. (9th Cir.2009) (same). Gall, it is “uncontr explained the Court unclear is whether Carty left What major departure that a should be oversial flawed where the proeedurally is sentence justifica supported significant a more provide “sufficient court fails to district Gall, than a minor one.” 552 U.S. at tion selecting a sentence that reasons” 586. This is because “[w]hen 128 S.Ct. Sentencing Guidelines well below range, a sentence is within the Guidelines arguments range, [are not] where “the sentencing judge we know that ‘both if uncomplicated,” and straightforward and ... Sentencing and the Commission have so, will be deemed “suffi- explanation what reached the same conclusion’ pass procedural “adequate” cient” or ” Carty 520 F.3d at ‘proper.’ sentence is Based Carty, 520 F.3d 995. muster. (Kozinski, C.J., concurring) (emphasis Gall, Rita, Carty, reading our upon Rita, 127 S.Ct. at original) (quoting be that such a sentence would we conclude 2463). probe now proeedurally flawed. We will a pro- of what constitutes parameters Thus, once the correct Guidelines “adequate” expla- cedurally “sufficient” or established, district range “[t]he has been imposing nation a district court that the Guidelines may presume case complex complicated in a or Carty, 520 F.3d at range is reasonable.” significantly where the sentence deviates Rather, court must “[t]he advisory Sentencing below the determination make an individualized range. at 991. In reach based on the facts.” Id. a decision, the “district ing its sentence cognizant [the ... remain courts must It is now well established sentencing pro throughout the Guidelines] sentencing a begin the district court must Gall, at 50 n. 128 S.Ct. 552 U.S. cess.” applicable the hearing “by determining (the 586; F.3d at 991 Guide Carty, see 520 Carty, F.3d at 991. range.” Guidelines 520 throughout kept in mind lines “are be “range The must be calculated Guidelines Gall, b (citing [sentencing] process”) the 6). n. at 596-97 S.Ct. determining applicable After imposed falls within the sentence Where Sentencing range, Guidelines the district it is rea- Sentencing range, Guidelines “a give parties court must chance to court to conclude that the district sonable argue they appro for a sentence believe is Sentencing “cognizant” remained at priate.” Catty, 520 F.3d 991. Failure question harder arises Guidelines. procedural do so will constitute error. where, here, signifi- the sentence falls Gall, 552 U.S. at 50 n. 128 S.Ct. 586 range. the Guidelines This cantly outside (listing factors to be considered review First, questions. two are we raises error). ing procedural been procedural that a error has conclude if the record appears it committed c not “remain the district court did Sentencing Guidelines] cognizant [the “The district court should then Gall, sentencing process”? throughout the 3553(a) § consider the factors to decide if Second, 6,n. 586. at 50 128 S.Ct. U.S. they support suggested by the sentence question “yes,” is if the answer to the first (cit parties.” Carty, at 991 a court take to steps

what must district Gall, 3553(a)(l)-(7); ing § 18 U.S.C. “kept [the that it has Sen- demonstrate 6). at 596-97 n. “It proce S.Ct. would be throughout in mind tencing Guidelines] ... dural error for district court to fail committing and thus avoid such process” 3553(a) to consider the factors.” Id. at at Carty, an error. 520 F.3d 991. 993. question first We answer the

in the affirmative. Where d significantly out imposes court range, appears side the Guidelines and it A district court also commits from the record that the district court did if procedural error it a sentence “choose[s] cognizant Sentencing not “remain of [the clearly Carty, based on erroneous facts.” throughout sentencing pro Guidelines] “A finding clearly cess,” Gall, 6,n. 552 U.S. at 50 128 S.Ct. although erroneous when there is evidence procedural it has committed error. it, support reviewing body on the To to construe the hold otherwise would be entire evidence is left with the definite and Supreme Court’s instruction in Gall as a firm conviction that a mistake has been suggestion requirement. rather than a Pipe committed.” Concrete & Prods. of reading permit Our of Gall does not such Cal., Inc. Constr. Laborers Pension (“The fact that interpretation. See id. Cal., 602, 622, Trust S. 508 U.S. 3553(a) explicitly directs (1993) (inter 2264, 124 S.Ct. L.Ed.2d 539 supports courts consider the Guidelines omitted). nal quotation marks and citation premise begin courts must district Levinson, By way example, the Third analysis their with the Guidelines and re Circuit concluded that the district court cognizant main throughout them clearly based its decision on a erroneous in im sentencing process.”). Accordingly, Levinson, premise when it found that who posing significantly a sentence outside the involving spe was convicted of tax fraud range, Guidelines there must be some indi cific dollar loss to the United States Trea in the that the cation record sury, had inflicted no financial harm on the throughout “in mind had Levinson, process.” Carty, public. at 991. 543 F.3d at 199. 520 F.3d why rejected argu- he has those explain e ments.”); at Goff, see also important purposes Most (“Although the District Court is not re- requirement that the dis is the review quired every argu- to comment on either explain ... the sen “adequately trict court make findings ment counsel advances or to selected, including deviation tence 3553(a) factor, § it as to each nevertheless Carty, 520 range.” from the Guidelines arguments deal with em- expressly should an ade provide Failure to F.3d at 993. phasized by parties.”). Id. procedural error. quate explanation court (holding that “the district at 992 Thus, addressing spe other than sufficiently to explain sentence] must [the arguments by cific and nonfrivolous raised review”). meaningful appellate permit parties, a district court need not offer helpful most explanation [if it] “is way explanation much in the to demon bench, adequate but ex from the eome[s] requirement that it this strate has satisfied may in in some cases also be planation advisory a sentence within the imposing [pre report] from the PSR ferred Sentencing Carty, Guidelines. 520 F.3d at at or record as a whole.” Id. (“A sentence ordi within-Guidelines narily explanation needs little ... because explained Carty, we “[w]hat As both the Commission and the explanation a will constitutes sufficient judge have determined that the sentence vary depending upon the com necessarily 3553(a) § comports with the factors and is ease, whether the plexity particular case.”). appropriate ordinary is inside or outside the sentence chosen Guidelines, strength and serious and the Carty did not hold in that a district We imposing reasons for proffered ness of the failure ar- court’s to address nonfrivolous a sentence that differs from the Guidelines guments by party support of a raised range.” Id. requested proce- sentence would constitute axiomatic, however, dural error. It is regard to the district With if review of the reasonableness of a sen- 3553(a) § fac court’s consideration tence is court’s hindered district tors, judges assume district “[w]e specific arguments to address failure know the law and understand their obli 3553(a) § are “tethered to a relevant fac- 3553(a) gation § all of the fac to consider sentence,” support tor in of a requested reason, tors.” For Id. this “[t]he meaningful appellate possible review is not court need not tick off each of the procedur- and the sentence is definition 3553(a) § that it has con factors show 992-93; Rita, ally flawed. Id. at see also sidered them.” Id. “Nor need the district (“The 551 U.S. at 127 S.Ct. 2456 sen- court articulate in a how each vacuum tencing judge enough should set forth 3553(a) § factor influences its determina satisfy appellate that he has appropriate tion of an sentence.” Id. parties’ arguments considered the and has However, party specific, “when a raises a exercising his own reasoned basis argument tethered to a rele nonfrivolous legal decisionmaking authority.”). This 3553(a) support vant factor re reasoning applies equally to sentences sentence, quested judge then the should advisory outside the both within and rejects normally explain why accepts he or range. party’s position.” (citing at 992-93 Rita, 2468) (“Where S.Ct. the defen f dant prosecutor presents or nonfrivolous 3553(a) In addition to the imposing reasons for a different sentence factors, may ... a district court also consider judge normally go will further and

827 Haack, justified. See United States v. investiga assistance 403 the defendant’s (8th Cir.2005) person (examining of another 997 prosecution tion and F.3d rea committed an offense. United against who has sonableness the sentence (9th 715, 721 Zolp, 479 F.3d v. § five factors outlined U.S.S.G. 5K1.1 Cir.2007) (“[T]he did not err district court concluding imposition that of a 78- cooperation part considering Zolp’s justified month sentence was not where 3553(a) § analysis under 18 U.S.C. of its range was 180 the Guidelines months and advisory guide part than as of its rather provided the assistance the defendant con calculation.”). ‘af “The Guidelines lines regarding of information others sisted who sentencing judge’ wide ‘latitude’ ] ford[ already were either under indictment or evaluating ‘significance and useful suspects); were see also United States v. assistance,’ di ness of the defendant’s but (11th 1081, Livesay, 525 F.3d 1093 Cir. weight ... give rect courts to ‘substantial 2008) (vacating remanding sentence of that as government’s to the evaluation’ where the district court did not adequately Awad, v. sistance.” United States explain Livesay’s its assessment of cooper (9th Cir.2004) 583, (citing 586-87 F.3d imposed). ation or the sentence 5K1.1(a)(1) § cmt. & back U.S.S.G. § cmt. ground); see also U.S.S.G. 5K1.1 “[sjubstantial weight (providing n.3 appellate Once an court has con given government’s be evalu should procedural cluded that no error has oc ation of the extent of the defendant’s assis curred, it must review sentences for sub tance, particularly where extent Carty, stantive reasonableness. 520 F.3d difficult to as value of the assistance are “A substantively at 993. reasonable sen certain”). ‘sufficient, tence is one that but not determining appropri When greater necessary’ than accomplish ate extent of a substantial-assistance 3553(a)(2)’s § sentencing goals.” United the district court departure, downward Crowe, States v. 563 F.3d 977 n. 16 following should consider the five factors: (9th Cir.2009) (quoting 18 U.S.C. (1) signifi the court’s evaluation of the 3553(a)); § see also United States Vas cance and usefulness of the defendant’s (9th quez-Landaver, 527 F.3d 804-05 assistance, taking into consideration the Cir.2008) (affirming sentence as reasonable government’s evaluation of the assis where the record shows the district court (2) rendered; truthfulness, tance 3553(a) § factors and im considered completeness, reliability in no posed sentence was sufficient but testimony provided by the formation or necessary comply than greater (3) defendant; the nature and extent of 3553(a)); § v. Rodriguez- United States (4) assistance; any inju the defendant’s Rodriguez, Cir. suffered, any danger or or risk of ry 2006) (same). injury family to the defendant or his (5) assistance; resulting [and] from his “The touchstone ‘reasonable assis the timeliness of the defendant’s whether the record as a whole ness’ is tance. meaningful reflects rational and consider ation of the factors enumerated 5Kl.l(a). imposing § U.S.S.G. When 3553(a).” United States v. Tom U.S.C. advisory is well below the (3d Cir.2009) ko, (quot 562 F.3d to a 5K1.1 range pursuant Chier, however, ing States v. motion, be some indi- there must (3d Cir.2007) (en banc)); departure that the court’s is 571 see also Unit- cation recanted Williams, cooperation, that Ressam ceased ed (“[W]hat Cir.2005) must decide is testimony, we earlier and thus caused his imposed the judge the district complaint against whether two terrorists criminal that are did for reasons he or she sentence to dismissed. Id. at 45-46. “[Reward- be the factors set logical and consistent forty-three- a minimum ing Ressam with 3553(a).”). in section forth in for failure to year reduction the mes- complete cooperation sends” rea determining substantive “In you sage regardless “that of whether vio- totality sonableness, are to consider we your your agreements complete late or circumstances, including degree you handsomely rewarded bargain, will be outside imposed a sentence of variance for at by the court.” Id. 48. at Carty, 520 F.3d range.” the Guidelines 993. argues The that the district Government mind, timing of Res- we turn court failed to consider standards these

With us. not cooperate, now to the case before sam’s decision to which did occur until after he had been convicted and Ill a at facing possible life sentence. Id. that based argues upon The Government further argues 48^49. The Government case, the district unusual record this significant a reduction sen- such explain its adequately has failed court tence results an unreasonable sentence “two- imposing a sentence reasons gives weight because it too little to the advisory end of the thirds less than the low 3553(a) factors, § other relevant does not The range.” Government’s law, just promote respect provide for the Ressam is a argument chief because crime, for the or afford ade- punishment a life of terrorist who has led trained criminal conduct. Id. quate deterrence to crime, planning, years of his life devoted at also contends that 51. Government attempting to execute coordinating, protect public fails to the sentence result in public attack on the that would by from future crimes Ressam because he within the massive destruction and death upon will be 53 old release from States, longer sentence is needed prison. 3553(a). accomplish purposes maintains that Res- The Government that the district argues The Government not have prison sam’s conditions should court the value of Ressam’s co- overstated been considered because Ressam refused operation giving weight little or no while him in the place the Government’s offer to 3553(a) The val- other relevant factors. Security Pro- hospitable more Witness rendered quality ue and of the assistance Finally, the Govern- gram. 52-53. contends, Ressam, the Government argues ment that the district court’s com- “simply justify extraordinary do imposed in other parisons of sentences in this granted by reduction the court cases do not establish the rea- terrorism Opening Brief at 43. Appellant’s case.” of Ressam’s sentence. Id. at sonableness Although provided great deal training information about his terror- others, the ist and the terrorist acts of A coop- of his argues Government that most abuse-of-discretion “[T]he merely previously eration declassified applies appellate of review re standard 44. The known information. Id. at Gov- sentencing of all decisions—whether view ernment stressed range.” fact or outside the Guidelines give weight did not sufficient inside (“A Gall, 552 U.S. at 128 S.Ct. 586. We district court definition abuses its proce have characterized our review discretion when it makes an error of as a dural error decisions law.”); Cooter & Gell v. Hartmarx “procedural review for reasonableness.” 384, 401, Corp., 2447, 496 U.S. 110 S.Ct. 1053; 567 at see Amezcua-Vasquez, F.3d (1990) (“When 110 L.Ed.2d 359 an ap- Grissom, v. 525 F.3d also United States pellate court reviews a district court’s Cir.2008). (9th n. 2 “An estima 696 factual findings, the abuse-of-discretion of the outer of what is ‘reason tion bounds clearly erroneous standards are in- given under a set of circumstances able’ distinguishable: A court of appeals debate, may always beyond be but the justified in concluding would be that a standard that abuse-of-discretion which district court had abused its discretion judged must limits the de estimation be making finding in a factual if only gives district broad lati bate courts erroneous.”). Thus, finding clearly were Levinson, in sentencing.” tude procedural if the asserted pure- error is (vacating procedurally at 195 sentence as factual, ly our review is highly deferen- erroneous district court offered in where tial and we will conclude there has been adequate explanation for downward vari only an abuse of discretion if the district sentence). ance in findings clearly court’s are errone- Grissom, In explained we that “review hand, .... ous On the other we do not questions procedural for of reasonable- defer to district court when the assert- requires reviewing ness” “the district procedural as, ed error purely legal, of interpretation Sentencing court’s example, a party when claims that novo, ap- de Guidelines court’s the district court misinterpreted the Sentencing plication Guidelines. discretion, the facts of a case for abuse of Wise, 515 F.3d at 217. factual findings district court’s clear error.” 525 F.3d at 696 & n. 2 Under the abuse of discretion Cantrell, v. (quoting United States 433 of recently standard review announced Cir.2006), F.3d 1279 and ex- Hinkson, United States 585 F.3d 1247 plaining nothing Carty pro- or Gall (9th Cir.2009), we first consider whether vides for an abuse of discretion standard of the district court identified the correct le for procedural review error different from gal standard for decision of the issue be Cantrell). the standard set forth it, fore and then “determine whether the (3d Wise, United States v. 515 F.3d 207 fact, findings district court’s of and its Cir.2008), explained the Third Circuit application findings those fact to the review standard as follows: standard, legal illogical, correct were im review the We district court’s decision or plausible, support without in inferences under an abuse-of-discretion standard may be drawn from facts the rec ... give but the amount of deference we at ord.” Id. 1251. depend type procedural will on “For a non-Guidelines sen error on appeal. example, asserted For tence, ‘give are to we due deference to the a district court will be held to have 3553(a) district court’s decision that the if abused its discretion its decision was factors, whole, justify on a the extent of clearly based on a erroneous factual con- ” Carty, or an the variance.’ at legal clusion erroneous conclu- Gall, 597). .... sion (quoting may S.Ct. “We States, just not reverse think a 81, 100, because we differ Koon v. United 518 U.S. (1996) appropriate.” S.Ct. L.Ed.2d 392 ent sentence is should be the

B his sentence Government’s years. At pre-trial plea offer of 25 errors procedural four There are ar- resentencing hearing, the Government analysis that are serious court’s district as a gued using pre-trial offer lack confidence in us to enough to cause legally improper. starting point was Sen- of the sen- reasonableness the substantive Tr. at December tencing Hr’g (1) the district imposed: tence that was attempted dispel The Government the Guidelines as a to use court failed court of its earlier stated belief cognizant” to “remain starting point and pre-trial that the Government’s offer of a in process reaching throughout them (2) years “might of 25 have some sentence; sentence the district court Ressam’s post-trial assessment of the why rejecting it was relation explain failed to as to the value of argument cooperation,” supra case with a level of at Government’s 23, and failed to ad- cooperation, years that “not an by explaining 25 of Ressam’s recantation impact dress the appropriate anyone sentence the view of coopera- decision to timeliness of his and government’s Sentencing on the team.” (3) tion; clearly erred when it the court Hr’g Tr. at 2008. The December of Res- Dr. Grassian’s assessment credited that it district court stated was not con- history personal and characteris- sam’s life vinced, replying: “I have a hard time ac- counsel, tics, in view and that of Ressam’s cepting that.” at 15. contradictory findings factual in the of the record, upon Based our review of the (4) PSR; and, court erred the district beyond performing the calculation of the argu- address the Government’s failing to range beginning Guidelines at the is longer required that a sentence ment hearing referencing and the Guidelines from future crimes com- protect public the district court did not passing, twice Ressam, only be mitted who will 53 appear give any weight whatsoever to years expires. old when his sentence We Therefore, range. the Guidelines the rec- in turn. address each error that ord does not demonstrate applicable range court used the Guidelines

1 initial starting point as “the bench- applica- The district court calculated the required. Carty, mark” as at beginning at the range ble Guidelines hearing. At the end of its eonclusory in a analysis, perception the court stated Our that the district court that it considered the Guide- keep applicable manner had failed to factor, range given as one it the same lines range throughout sentencing in mind factors, § the other 3553 weight as bolstered how the district court dealt that it the sentence reflects “a recognized mandatory with the minimum and consecu- deviation from the significant downward requirements pertained tive sentence advisory guideline range.” Beyond these to certain counts of Ressam’s conviction. Guidelines, passing references to the (carrying The conviction on Count Nine attempt explain court made no explosive during the of a felo- commission it settled on a sentence that was 43 how ny) requires mandatory minimum sen- years below the low end of the Guidelines years, tence of at least 10 under 18 U.S.C. range. 844(h)(2). addition, § consecutive sen- for required tences are for the convictions

Rather, suggests the record (act for One Count Nine and also Count agreed posi- district court with Ressam’s transcending a national bound- starting point calculating tion that the terrorism

831 advisory guideline from the violation 18 U.S.C. ward deviation ary, 2332b(a)(l)(B)). range” is insufficient on this record See 18 U.S.C. the court 844(h)(2) “remained] demonstrate 2332b(c)(2), respectively. §§ cognizant throughout Guidelines] of[the mandatory minimum for 10-year Gall, sentencing process.” 552 U.S. at meant that Ressam was sen- Nine Count 586; Carty, 50 n. 128 S.Ct. 520 F.3d at only years for his convictions tenced (the kept Guidelines “are to be mind combined, eight por- counts on the other (cit- throughout [sentencing] process” represented the consecutive tion of which Gall, n. ing 552 U.S. 128 S.Ct. for the Count One conviction. 586.)); Pugh, see also United States v. into period years That was divided (11th Cir.2008) (vacating violating years seven 18 U.S.C. remanding sentence where the sen- (Count One) 2332b(a)(l)(B) and five tence failed to reflect the seriousness of remaining for the seven counts defendant’s offense and the district court (Counts through Eight).8 Two give any weight did “not real to the Guide- reveal that Res- component parts Those sentence”). range imposing lines actually involves an even sam’s sentence Mohamed, States v. 459 United F.3d 979 departure below the Guidelines greater (9th Cir.2006), demonstrates the level of total initially apparent. than is explanation pro- that a district court must years only long 22 is 34% as as sentence of imposing vide when sentence that differs end of the combined Guidelines the low substantially range. from the Guidelines years, seven-year of 65 but his sen- range Mohamed was convicted making false only One is 28% of the tence for Count Department threat to the bomb of Home- months, recommendation of 300 Security, land that claiming four of his five-year and his sentence for the remain- acquaintances were terrorists involved in a only ing seven counts is 17% of the Guide- plot to bomb shopping Ange- malls Los minimum recommendation of 360 lines les, California. Id. at 981. expend- “After months. ing considerable resources to protect Additionally, simply acknowledging against identify perpe- the threat and its trator, significant the sentence reflects “a down- law enforcement officials located Government, court, upon mandatory 8. The the district based the effect of a sen- length portion tence, chose the of each of Ressam’s congressional repudiated, just intent is sentence. When the district court first im- mandatory as if the sentence itself had been sentence, only posed Ressam’s it considered reduced.”); Roberson, United States v. imprisonment the total term of and asked 432, ("The Cir.2007) F.3d government years] ac- [22 "the to allocate judge required prop- was ... to determine the cording statutory among mínimums robbery entirely er sentence for the bank in- counts in consecutive and concurrent [terms] 924(c)(1) dependently of the section add- necessary to arrive at” the total. Sentenc- on.”). Vidal-Reyes, But see United States v. ing Hr’g July Tr. at 2005. The district (1st Cir.2009) (”[T]his 562 F.3d 55-56 components court did not revisit the of the provision merely specifies that the sentence sentencing hearing. total sentence at the 2008 subject mandatory for counts to a consecutive parties question did not brief the —which separately sentence should be calculated from we do not reach —whether the district court’s sentencing range] the [Guidelines on other impose not to determine and inde- decision words, counts. In other those counts involv- pendent sentences for each of the three con- ing mandatory sentences should excluded be secutive terms was error. See U.S.S.G. grouping procedures 5G1.2; Franklin, would oth- § cf. A.B., (6th Cir.2007) ("When apply.”) (citing erwise United States v. 584-85 (10th Cir.2008)). guideline range 1276 n. 1 downward variance of the advisory guide- from the Id. He was con- sion to deviate Mohamed.” and arrested prison to a term of lines” and that “it was reasonable for victed and sentenced 844(e), violating 18 U.S.C. advisory five district court to hold telephone of a the use prohibits which adequately did not take into guidelines attempt an regarding threat make a history of significant account Mohamed’s vehicle, or other real building, “destroy a increasingly activity.” criminal Id. serious or by means of fire personal property or contrast, here, By the district at 989. (quoting 18 U.S.C. explosive.” analysis explanation as court offered no or 844(e)). a 60-month sen- imposing In why its considerable deviation from the deviated consider- tence, Guidelines was The absence appropriate. of 12 to range ably from the Guidelines thorough explanation prohibits of such a observed that Id. at 989. We months. con- meaningful appellate review and thus anticipate their sentencing guidelines “the procedural stitutes error. in the context of bomb inadequacy own “a particularly include wide threats” which The dis-

range of conduct.” Id. determining the sentence reduction both the callousness and trict court “noted cooperation due to Ressam for his ... threat [and] costliness of the [bomb] Government, the district court was to exploited had observed that Mohamed (1) sig- consider its own evaluation of Qaeda light al nation’s fear of nificance and usefulness of Ressam’s as- 11.” Id. at September attacks of terrorist sistance, taking into consideration the that The district court also noted Government’s evaluation of the assistance failed to take into account guidelines the (2) rendered; truthfulness, complete- the history and characteristics of the “the ness, reliability any and information or provide the need to the defendant” and (3) Ressam; testimony provided by the public adequate protection from nature extent the Ressam’s assis- (2)(C). 3553(a)(1), § him. See 18 U.S.C. (4) tance; any injury injury or risk of to hav- the PSR rated Mohamed as While family resulting Ressam or his from his history, ing a minimal criminal the rec- (5) assistance; the of the timeliness engaged that he has in a suggests ord assistance. See U.S.S.G. of misconduct. pattern more extensive 5Kl.l(a). § review the reasonable- We him investigation A federal had linked to against ness of Ressam’s sentence these in the fraudulent use of driver’s licenses Haack, five factors. F.3d at 1004. California, in to the theft of Texas and factor, considering In the first the dis- $13,000 in from a restaurant Houston explain why rejected trict court failed to it briefly employed, he where was concerning arguments the Government’s security a social num- fraudulent use of in- cooperation, its evaluation of Ressam’s an account at the Bank of open ber to the value to of the cluding law enforcement America, to report and to a failure Awad, provided. information See FBI regarding an interview with the (district top give at 586-87 courts are to sub- suspicious other activities. On this, living ille- weight the defendant had been stantial to the Government’s evalu- assistance) gally country § for several (citing 5K1.1 ation of country illegally and had reentered the providing, Application Note just prior to his arrest. weight given should be “[substantial of the extent government’s evaluation record, Id. at 988-89. On this this Court assistance, particularly of the defendant’s concluded in Mohamed that the district value of the assis- “thoroughly explained court had its deci- where the extent and ascertain”). inquired counsel for the Government as to also See are difficult tance Richardson, “calculation,” 521 F.3d the court’s method of v. United States Cir.2008) (2d remanding (vacating “Based on all the cir responded: court was unable to the court where case and the motion sentence cumstances pro- was the sentence Government, whether determine this is sen [c]ourt’s substantively unreasonable cedurally or Id. at 156. The Second Circuit tence.” explain failed to court the district because case, that in the context of that concluded calculating employed the method satisfy the district court failed its obli to the Gov- assistance value of defendant’s open to “state in court the reasons gation ernment). particular sen imposition for its 158, citing Richardson, tence.” Id. at 18 U.S.C. made a the Government 3553(c). § under departure a The PSR was no substitute for motion for downward Manual Sentencing Guidelines court explanation by U.S. an “be substantial as- § due to defendant’s 5K1.1 in the findings report cause the factual imposed court Id. The district sistance. provided inadequate support for the sen statutory mini- 93 % below sentence (citing Id. United States imposed.” tence ground that on the 20-year mum (2d Carter, 539-40 Cir. motion enabled 5K1.1 the Government’s 2007)). impose a sen- discretion

it to exercise Here, only did the district court fail fair and reasonable under it deemed tence weight” to the Govern- give “substantial omit- (quotations the circumstances. the extent of the ment’s evaluation of de- ted). noted Circuit appeal, Second On assistance, give it failed to it fendant’s § 5K1.1 authorized that a motion under only The district court credited weight. applicable below the depart trial court to of the value of his Ressam’s assessment range determining advisory Guidelines offering explanation no cooperation, own sentence, U.S.C. its why rejecting it as to Govern- 3553(e) permitted motion example, ment’s assessment. For statutory minimum. below a to sentence in- argued that much of the Government However, any expla- in the absence of Id. was “in an un- provided formation Ressam to the meth- by the district court as nation form,” unique “was not classified and provi- applying these two employed od Further, assistance, “most valu- Ressam.” Ressam’s relating to defendant’s sions leading that it was unable to deter- able information —that the court held procedurally or Mohamed—can- charges against if the sentence was Doah and mine reasonable, due substantively particularly Ressam under- not be credited [because] departure from the stat- to the substantial to end his that value when he chose mined utory minimum sentence. leading to the dismissal cooperation court disa- charges.” The district these addition, that Circuit held Second assessment, with the Government’s greed satisfy not its obli- the district court did that “Mr. Ressam’s co- concluding instead imposition the reasons for gation to state in its and unique breadth operation [was] merely court The district of its sentence. much gave The district court also scope.” “all taking it into account stated that was testimony against to Ressam for his credit including but pertinent information addressing the Govern- Haouari without investigation re- presentence limited to that the value of Res- argument ment’s counsel, the factors port, submissions testimony undermined his sam’s 3553 and the in 18 U.S.C. Section outlined at 155. When recantations. sentencing guidelines.” Id. not, however, cited “sen- court did indicate what

The district court Ressam’s submitted before the tencing weight, any, gave memorandum if it to this factor. See hearing[which] Burns, sum- July e.g., United States v. far-reaching impact of Mr. (8th Cir.2009) (en banc) marizes the (affirming investigations on the cooperation Ressam’s advisory 60% reduction in the terrorist activities in prosecutions of and sentence where the court provided The district country this and abroad.” analysis a detailed 5K1.1 factors apparently upon based court concluded— and concluded that there “was no informa sentencing memorandum —that Ressam’s tion that the defendant’s substantial assis lasted, cooperation, while it “Mr. Ressam’s anything percent tance was but a hundred government provided the United truthful, complete, percent a hundred Britain, of Great governments and the reliable.”); percent a hundred see also Li Germany, France and Canada Spain, Italy, vesay, 525 F.3d at (vacating and re proved that to be intelligence extensive manding sentence where the district court fight against in the international invaluable explain why rejected did not it the Govern explanation, the terrorism.” Without dis- that, argument notwithstanding ment’s Li adhering suggested trict court assistance, vesay’s timely Livesay should version of the value of his but Ressam’s significance”). “some sentence of receive cooperation “downplay” would be to it argued The Government also which “would diminish likelihood timing of cooperation, the fifth cooperation by apprehended other future considered, factor to be which occurred terrorists.” only after he had been convicted and was factor, the district Turning to the second sentence, facing weigh against life should truthfulness, “the com- court addressed valuing him in cooperation. Id. at pleteness, reliability” of Ressam’s as- February In his 2003 letter to the trial by “recogniz[ing] sistance Mr. Res- judge, Ressam stated that he “chose to to end his cooperation sam’s later decision past agreed make break with the pending resulted in the dismissal of two accept guilt provide govern [his] prosecutions and the retraction of certain ment with all of the information had.” [he] against of his two other terror- statements rejected explained that he not, suspects.” ist The district did “government’s 25-year offer of a however, argu- address the Government’s in exchange guilt” for an admission of be concerning impact ment of Ressam’s “expected cause he a miracle” for himself. early cooperation cessation of or recanta- When he realized “the result was not the entering tions. Within six months of into for,” hoped miracle had [he] he entered cooperation agreement with the United agreement into an with the Government Attorney, Agent Humphries testi- pledged agreement and to “honor that that cooper- fied Ressam became less than even after sentenced.” The dis [he was] ative and refused to discuss Hamaidi with weight, trict court did not discuss what if Canadian authorities who were investigat- any, it giving timing to the of Res ing Hamaidi for his involvement in helping cooperation, generally sam’s a factor con Ressam obtain fraudulent Canadian social See, by sentencing e.g., sidered courts. security among things. numbers other Burns, (affirming a 60% 577 F.3d weigh any The district court did not or this advisory in reduction Guidelines sen specific arguments other raised provided tence where the district court Government. The district court noted analysis detailed 5K1.1 factors only cooperation that un- “ended wisely prematurely.” concluded that the timeliness “factor and The district and decisively heavily away in favor of the defen- but also has walked very weighs excep- “timeliness was illegality because his led his arrest.” dant” tional”). In finding quiet, Ressam is “a soli- Richardson,

Furthermore, in as man tary and devout whose true character an in ease is no substitute for this PSR in cooperate,” is manifest his decision to for its by the district court explanation the district court did not address be- advisory from the departure findings in the which indicate that PSR findings report factual in that do cause the an criminal history. Ressam has extensive adequate support for the sen- provide in example, For the summer of when Richardson, imposed. 521 F.3d at tence Doha informed that the other Abu Ressam impact of the dis- 158. The detrimental members of Montreal cell would not be failure to address the Govern- trict court’s joining carry against him to out the attack here, compounded arguments ment’s States, the United Ressam decided to con- the extent and value of the assis- “where own, the operation tinue with on his with- tance are difficult to ascertain.” U.S.S.G. out the other members of his cell. Ressam § 5K1.1 cmt. n.3. . targeted airport, knowing that as a

Accordingly, we are unable to review result, many civilians would die. Ressam properly exer- whether the district attempted to a bank obtain rob funds to analyzing the value cised its discretion carry out mission his and finance the at- cooperation pursuant of Ressam’s tack in the United States. the course § 5K1.1 motion. See Unit- Government’s bank, robbing planned Gapinski, ed States grenade police, throw a live hand at the (6th Cir.2009) (vacating remanding run, if he needed to do so in order to procedurally as unreasonable away. only These are get few of the where the record did not show that the in the findings PSR are direct explained district court considered and its findings tension with district court’s rejecting party’s reasons for nonfrivolous history life char- personal to Ressam’s requested for a sentence based argument acteristics, including finding that Res- upon substantial assistance to the Govern- quiet, solitary sam is “a and devout man ment). character whose true is manifest cooperate.” decision to that “Mr. finding The district court’s history personal Ressam’s life charac- analysis The district court concluded its support sentencing con- teristics favorable by stating that on all the factors “based clearly in view of sideration” is erroneous 3553, hereby I listed 18 U.S.C. Section findings the voluminous factual the PSR reimpose a sentence of 22 and a indicating that lead a life of Ressam has supervised period of release of five crime dedicated to terrorist causes. With- I I have ex- years.... believe the factors argu- addressing out the Government’s sufficiently amined on the record are com- history ments as to Ressam’s and charac- the of the vari- pelling support degree to teristics, the district court credited Dr. disagree. ance.” We report favorable of Ressam and Grassian’s entirely The district court failed to ad- Ressam’s own characterization his 2005 that arguments dress the Government’s “by sentencing naming memorandum that 3553(a)(2)(C) associates, requires § a district court to identifying and scores of former life, protect public.” the “need to the only imperiled weigh Mr. Ressam not has 836 cooperated the regretted having in a ever relevant particularly

This factor is this, Ressam, where case such The district court did not terrorist Government. strongly held be- who demonstrated has address the fact that Ressam recanted his to attack American the need liefs about testimony respond or to the Government’s abroad, States and in the United interests that argument such recantation affirma- his release.9 upon old only will be tively by aided two known terrorists caus- that generally noted court The district ing the Government to dismiss the indict- heinousness of the and “the seriousness them, that against signaling ments Ressam carrying Ressam was act Mr. of terrorism jihad move- estranged is not as from the arrest cannot be time of his out at the alleges. ment as he understated,” not otherwise dis- did but public. The protect to the cuss the need Valnor, In v. 451 F.3d 744 United States procedural error. See failure to do so (11th Cir.2006), af- the Eleventh Circuit Lychock, 578 F.3d v. United States high firmed a sentence above the end (3d Cir.2009) (vacating remanding and advisory range the where the court failed to where the district that in district court “concluded order 3553(a) § fac- all of the relevant consider adequate protect afford deterrence tors). the Third Circuit held Lychock, crimes ... committed public from further procedurally unrea- the sentence was that Valnor,” longer ap- Mr. sentence is sentencing proceed- sonable because Id. at 749. propriate and reasonable. clear that the district court did ings made in a pleaded guilty participating Valnor 3553(a) § the relevant not one of consider involving the of fraudu- scheme issuance “Indeed, the Id. District Court factors. illegal immigrants licences to lent driver’s despite this factor did not even mention with the Govern- agreed cooperate that, the fact in its memoran- ment. Id. at 746. The Government dum, government explicitly invoked departure, pursu- a downward moved for this factor.” Id. 5K1.1, ant based on Valnor’s to U.S.S.G. here, Similarly court not did assistance, substantial which led to the protect public as a mention the need people arrest of 52 involved the scheme. factor it must consider. This omission is rejected 747. The district given na- particularly troubling here for a downward argument Government’s ture of Ressam’s crimes and the district that “a departure, concluding Valnor’s was Dr. emphasis court’s on Grassian’s favor- Id. at very serious offense.” assessment of psychological able Ressam. it explained district court “[did] report, very In Dr. Grassian’s assess- it to the extent [defense diminish ment credited the district court for does, and even to the extent that counsel] history purposes weighing id., characteristics, reported government that he does” because Asia) pose in Southeast 9. The notion that trained terrorists other communities grave danger public that 'no or combination of condi- has also been condition safety recognized pre-trial reasonably ... in the context of deten- tions will assure See, Hir, ”) (citing community.' 18 U.S.C. e.g., United v. ... tion. Goba, (9th Cir.2008) 3142(e)); (affirming see also United States order (W.D.N.Y.2003)(ordering requiring pre-trial F.Supp.2d Hir be detained be- individual support pre-trial because each providing cause he accused of detention training holding and at the al- that "there is clear and defendant’s attendance terrorists and camp danger a to the convincing poses Farooq makes him evidence that Abd Hir a (if community). grave danger Philippines to the not to who renewals to those were able than sim- cense are far more licenses driver’s licenses before the rule a motor to obtain operate to an authorization 9/11 ply subsequently get could not primary changes, but They serve as vehicle. identification, renewals, provision in the particu- resulted of personal means of very people Congress of a national identifi- to the in the absence licenses larly card, line of subject greater regulation and are the first to to intended cation (3) security after security; in national of national and the name defense 9/11. a is able person license in the case of a em- driver’s that unlike DMV With society into with integrate and return to his or ployee, to access who could not others, oth- among conviction, to obtain ability, prior position her after there would oth- that he or she documents safeguards prevent er no middle- were light acquire. be unable returning erwise to the men like Valnor situation, it is of security present our illegally obtaining market of unregulated that the issuance importance paramount selling driver’s licenses. issued driver’s of state and distribution at The district court’s discussion Id. be secured.

licenses analysis of the facts relevant to its explained at 748. The district 3553(a) § is factors Valnor illustrative working was not though Valnor that even required to of the kind of discussion enable itself, within the DMV review. meaningful appellate See also society poses greater [threat] he Shy, v. 538 F.3d United States in this employee involved than DMV (8th Cir.2008) (remanding resentencing ... intimately Mr. Valnor was scheme. allow the district court to consider all “to through market which involved conduct,” re- Shy’s meaningful because driv- individuals obtained unauthorized impossible is where view of the sentence market is not state er’s licenses. This adequately district court failed to ex- very rather its nature regulated, but Shy’s justifi- with plain sentence sufficient of the state below the radar operates variance); for the downward Unit- cations Therefore, unlike society large. Thomas, ed States again employee who will never the DMV Cir.2007) (vacating remanding commit position or her return where the district court failed to sentence crime, as a middle- the same Mr. Valnor raised in arguments address a number of his, quote, mar- man is free to return to sentencing memorandum re- defendant’s selling illegally obtaining ket 3553(a) fac- garding application of the validly issued or other- driver’s licenses tors, by the general “save the statement wise. received, read, court that it had thorough 749. “After a review Id. at sentencing memoran- and understood record, attention to the particular and where “the context and the rec- dum” transcripts from Valnor’s three the [district] ord not make clear [did] PS[R],” the Eleventh hearings and the reasoning”). court’s as rea- affirmed Valnor’s sentence Circuit C sonable, follows: holding as procedural errors identified particularly con- The district court was district court’s decision rendered facts, in the which following with the cerned 3558(a) imposed proce on Ressam both analysis: were relevant substantively (1) durally and unreasonable. nature of the offense” egregious “the procedurally Because the sentence on national potential impact based on its (2) flawed, review is meaningful appellate li- sales of security; Valnor’s 838 factor); weight” given single our review of the sive to a upon Based

foreclosed. us, however, appears Givens, 642, it record before United States v. 443 F.3d 646 its discretion in (8th Cir.2006) court abused the district (vacating remanding and by giving factors too weighing the relevant substantively sentence unreasonable cooperation and weight much to gave where the district court “too much weight to the other relevant enough not weight” history to char- “defendant’s and 3553(a) factors, including § the need to great sym- and showed a acteristics deal of Paul, See, e.g., 561 public. protect him” pathy gave enough toward and “not (vacating remanding and sen F.3d [weight] portions to the other of section substantively unreasonable where tence as 3553(a)”); Ture, United States v. 450 F.3d gave weight court excessive to (8th Cir.2006) 352, and (vacating 358-59 con giving one factor “while not sufficient substantively un- remanding sentence as factors” in [mitigating] sideration to other 3553(a) § reasonable where the 18 U.S.C. at the end of the imposing top a sentence Sentencing factors and the U.S. Guidelines Omole, range); States v. Guidelines support Manual did not the district court’s Cir.2008) (7th (va 691, 523 F.3d 698-700 extreme deviation from the recommended cating remanding that was 51 and sentence range and where the district months below the bottom of the Guidelines court significant weight failed to accord substantively range as unreasonable where range, the Guidelines to the seriousness of sentencing judge failed to offer a com offense, or to the need avoid unwar- justification pelling for a sentence so far sentencing disparities). ranted range nothing below the the record sentence); supported such a reduced Unit IY Rattoballi, v. 136- ed States F.3d (2d Cir.2006) remanding (vacating appro We conclude that it is unreasonably sentence as low where the priate supervisory powers to exercise our upon history district court relied § under 28 U.S.C. 2106 and remand this characteristics of defendant which were resentencing case for judge. different sufficiently compelling present neither nor See, Quach, e.g., v. United States 302 F.3d degree necessary support to the (9th Cir.2002) (“Although we imposed); Crisp, United States v. generally resentencing remand for (11th Cir.2006) (va 454 F.3d 1289-90 original judge, we remand to cating remanding sentence as substan judge different if there are ‘unusual cir tively unreasonable where the district ”) (quoting cumstances.’ United States v. gave controlling weight to the need Mikaelian, Cir. for restitution and did not discuss 1999)). Mikaelian, this Court ex Sentencing the U.S. Guidelines Manual plained that there is a three-factor test to 5Kl.l(a) § assistance-related when factors appropriate determine whether it is to re calculating Sentencing the extent aof U.S. judge mand to a new for resentencing: 5K1.1(a) departure); Guidelines Manual (1) original judge whether would Hampton, United States reasonably upon be remand expected (4th Cir.2006) (vacating 288-89 and re difficulty have in putting substantial out manding sentence where the district previously expressed of his or her mind explanation court’s for dramatic downward findings views or determined to be erro variance could not withstand “reasonable neous or based on evidence that must be scrutiny” ness because the sentence was (2) rejected, reassignment whether “supported by compelling justifications 3553(a) factors,” preserve appearance related to and “exces- advisable to

839 (3) a reassignment term for use of firearm a crime of justice, during whether waste out of Id. at 805. duplication appeal entail violence. On from the would sentence, the any gain preserving one-day to in this proportion Court held that the of appearance fairness. district court was within discretion to its departure a downward grant from the at (quoting F.3d 387-88 168 Guidelines, but the give district court must (9th Alverson, 666 349 Cir. v. F.2d justify depar- reasons to the extent of the 1982)). 975; Paul, also 561 F.3d at See remand, Upon Id. ture. the district court Atondo-Santos, v. 385 F.3d United States one-day sentence, a again imposed basing (9th Cir.2004); v. United States its decision on factors. Id. On numerous (9th Cir.2002); F.3d Working, 287 appeal, the second we determined that the Arnett, v. United States Cir.1979). improperly district court into account took 924(c) between interplay 18 U.S.C. Paul, originally the district court sen- Guidelines, Working’s and the as as well high-end range Paul to a Guidelines tenced recidivism, low risk of because both factors prison for 16 months on his conviction of already were considered by the Guidelines. program misappropriation federal at Id. 807-808. We also concluded that Paul, appeal, at funds. 972. On provide any the record did not rea- other this Court determined justify that would one-day sons sen- adequately failed numer- court consider tence. Id. at 808. This Court remanded factors, causing to be ous the sentence reassigned the case to a different remand, unreasonably high. Id. On judge resentencing. Id. at 809. We sentencing original prison court ordered a imposing held after same months, removing only term of 15 one twice, original judge “would have sub- original month from the sentence. Id. at difficulty disregarding stantial the view appeal, again On a second we vacat- 973. one-day that a sentence was sufficient.” the sentence and for a third ed remanded origi- Id. at 809-10. Our that the concern sentencing in front a different judge “unlikely disregard nal would be judge. appearance We held that “the improper fashioning factors when a sen- justice preserved by will be best remand- “heightened” by tence” was certain state- Al- ing judge.” a different Id. at 975. by ments made the trial judge. Id. though sentencing on remand original judge The trial stated that he “did not judge explained reasoning some of the fact that accept [Working’s sentence, husband] a fifteen “he imposing month was the victim.” Id. The record further clearly put did out of his mind indicated that “the district court would be expressed previously view that the defen- unlikely to set aside considerations trumped dant’s abuse of trust all other sex, Working’s clearly factor prohibited combined, mitigation factors as shown Guidelines, under the resentencing.” when again the fact that he sentenced Paul to top sentence at of the Guide- prison range.” Id.

lines similarly support The facts of this case power reassign exercise of this Court’s Similarly, Working, United States resentencing to a different dis- vacated the defendant’s sentence was twice judge. judge original- trict court The trial for a and remanded third be- Ressam to 22 judge. origi- ly prison. sentenced Working fore a different appeal, we noted nally day prison for On that the district sentenced one degree begin sentencing proceeding with intent to commit first did not assault murder, determining mandatory five-year prison applicable first Ressam, by Carty.

range, required subsequent developments were weighed Accordingly, we vacated the sentencing F.3d at 1167. the new decision. The district resentencing and remanded for in expressed sentence “[djownplay- concern that remand, Carty. Upon accordance with ing cooperation the pro- that Mr. Ressam again imposed 22-year the district court government vided the would diminish the At resentencing sentence. Ressam’s the cooperation by likelihood of future other sentencing judge stated: terrorists,” apprehended the court it- but appeared self to disregard possible

As I said at Mr. previous impact in on other sentencing determining ap- apprehended terrorists of propriate reimposing sentence this case is a deci- the same sentence despite Res- I struggled subsequent short, sion with more than sam’s disavowals. other I decision have made the attachment of the district court to the my years on the bench. In the time sentence that originally imposed was was sentencing, since Mr. Ressam’s first very powerful. judge “clearly The district however, I have come to feel even more put did not out of previously his mind his originally confident that the sentence I expressed view that coopera- [Ressam’s imposed was the correct one. trumped tion] all other [aggravating] fac- combined, tors as shown the fact that 40-41, Sentencing Hr’g Tr. at December again he sentenced a prison [Ressam] to sentence below the [well bottom] The district court made the point Paul, range.” 975; 561 F.3d at describing the original sentence as “cor- see also Vrdolyak, United States v. apparent rect” without regard for devel- Cir.2010) F.3d (holding that opments original since the sentence was judge’s “a errors in calculating sen- [a above, imposed. As described Ressam ex- ” are tence] indicative of an idee where plicitly fixe prior cooperation recanted his judge appears unwilling to waver affirmatively tried to aid those against particular conviction that a sentence is whom he had previously. testified In his warranted). statement to the district court at hearing 22-year at which the sentence We must also consider “whether reas- reimposed, Ressam disavowed the co- signment duplica- would entail waste and operation previously given, he had de- proportion tion out of any gain scribing product it as the of mental in- preserving appearance of fairness.” him, competence pressure put upon Mikaelian, 168 at 387-88. We are claiming that he did not know what mindful that the judge spent has saying he was and that what he had said nearly case, a decade complex with this upon. could not be relied prosecution substantial, the record is and that by contending reacted that it never would judge the next duplicate will have to have cooperation entered into with Res- prior so, some of the effort. Even we place sam the first if it had known how have determined that the benefit of reas- it would turn out. signment is worth the in duplication. cost judge’s The district previously expressed

It is unclear what there reason is to appear views too entrenched to allow for reward a defendant at all cooperation appearance the same time that fairness on remand. defendant reasons, disavowing having For these cooperate intended to we direct loudly proclaiming re-assigned judge that his case be to a different statements should not be resentencing. believed. The district court We intimate no view gave how, all, no explanation of if at on what proper sentence would be. years sentence is 43 below the adviso-

Conclusion ry Sentencing substantively Guidelines is original the district court’s We vacated reasonable, longer or whether a imprisonment be- sentence of to protect public is needed from future this permit cause failed to Court it terrorist crimes Ressam. review of the meaningful conduct a Gov- challenge to the reasonable- ernment’s judge’s previously Because trial ex- Ressam, ness of Ressam’s sentence. 588 pressed too appear views entrenched to sentencing Prior to the F.3d at 1167. allow for of fairness appearance the on 27, 2005, hearing July argued on Ressam remand, we that the case be direct re- cooperating that had ceased with the he assigned judge a different resen- he was having Government because trou- tencing. the remembering ble details as result of VACATED, SENTENCE REMAND- solitary combination confinement ED FOR AND RE-ASSIGNMENT RE- repeated interrogation. SENTENCING. however, hearing, At resentencing the Informed the district court that he FERNANDEZ, Judge, Circuit almost all the statements he “[retracted] dissenting: past” against persons had made in the two are give We due required deference of terrorism order to “cause accused to a district court’s decisions. again, their eases to be dismissed.” Once Carty, See United 520 F.3d imposed the the 22- district same (9th Cir.2008) banc). (en That does year that this Court previously deference; not mean a it grudging means we could not vacated because decide if that even prefer we would different it was reasonable based on the whether sentence, fact, we In may not reverse. original sentencing proceed- record the if we are certain that we “[e]ven would so, ings. doing In the district court failed imposed have a different sentence had we provide any rejecting reasons for robe, judge’s worn the we can’t arguments Government’s tethered to rele- on reverse that basis.” United States v. 3553(a) factors, including vant the value Whitehead, 991, 993 Cir. early cooperation to be to Ressam’s given 2008). it, requires As I that see us to in view of his subse- the Government our approach review of a substantive reas quent and the need to protect recantations great onableness1 issue with a deal of public potential from Ressam’s to com- humility. always easy It is not avoid crimes, mit future terrorist he will be consulting what one oneself about would only upon old release. With- if sentencing judge. do one were the A out we cannot explanations, such conduct a tempting case like this especially is that meaningful review under abuse of dis- majority regard, cretion standard to determine whether a I fear that the has that, expressly government gallimaufry 1. The result is has conceded mistake or appeal here) (as that is design, require the sole issue on substantive will it does courts to all we reasonableness. That is should consid- far consider more than substantive reason- however, part opinion, er. II of the ableness, parties only raise even when the that, despite govern- majority, indicates hodgepodge that. No that has doubt contrib- concession, up it must will take ment’s majority's to the uted ultimate erroneous de- error, procedural that but shrouds determina- Unfortunately, also a cision here. it is dis- whereby sug- tion with a brume of words it law, gift agreeable keep will and it on gests procedure that must be melded into the giving. substantive reasonableness determination. temptation just ty not resisted into which it does not like the fact that this has been led. terrorist is to in prison sit for a mere twenty-two years. What number would apparent The record here makes it choose; majority who knows? But court, which lived with this although many federal sentences are even many years, case for considered the mate- draconian, twenty-two years more seems placed rials before it and touched all of the me, like a long time to whether a defen- procedural bases.2 The court calculated young dant is or old to start with. It guideline range,3 says and no one wrist, not a mere slap it on the if improperly. especially did so It also considered range. expressly It then considered confinement conditions will especial- be harsh, the nature and circumstances of ly predicted as the district court history heinous offense and the and char- they Yet, would be. when all is said and Ressam;4 acteristics of the seriousness of done, majority simply does not like the offense, promote the need to respect way the district weighed the evi- law, for the and the need impose just it; obviously dence before majority punishment;5 adequately the need to de- would have done it differently. others;6 ter and the need to avoid sen- give Would I “light” Ressam that a sen- And, disparities.7 tence while it did not I it, tence? somehow doubt but that is not specifically discuss the to protect need point. point is that there are public,8 it did note that it had to consider many sites within the borders of reason- that, nothing and we have to indicate that able sentencing territory, job and our is to it did not do so. The same is true of the patrol those borders to assure that provision regarding treatment of Ressam district court slipped has not over them manner,9 in the most although effective and into the land of abusers of discretion. court’s reflection on the onerous conditions That rarely will happen; it did not happen of Ressam’s might incarceration be seen as here. Unfortunately, just this case is not And, touching on that issue. while the Ressam; about what befalls it reflects an- court did not specifically mention the kinds entry by other appellate courts into terri- available,10 of sentences that does seem tory them, always always lures but is course, rather obvious in this case. Of it is we, forbidden to Society, them. and the not even necessary for a district court to district courts will someday regret the re- refer to each every § item in sults of our case-by-case trespassing onto when it sentences miscreant. See Carty, of; lands we stay should out day this do, all, F.3d at 992. We after “assume will, indeed, decision becomes law be a that district judges know the law and un- dies derstand their obligation to all consider infaustus. ” 3553(a) § factors.... Id. short, the sentence pro- was neither So where does that majority? cedurally leave the substantively erroneous nor un- Simply put, it majori- seems to me that the Carty, reasonable. See 520 F.3d at 993. Again, 2. government 3553(a)(2)(B). § does not even con- 6. Id. appeal tend on pro- there was reversible 3553(a)(6). § 7. Id. cedural error. 3553(a)(2)(C). 3553(a)(4). §

3. § See 18 U.S.C. 8. Id. 3553(a)(1). 3553(a)(2)(D). §

4. See id. § 9. Id. 3553(a)(2)(A).

5. Id. 3553(a)(3). so, teeth to do grit our if we have to

Even let it be.11

we should

Thus, respectfully dissent. I POLLARD, Lee

Richard

Plaintiff-Appellant, INC., Erroneously GROUP,

THE GEO as Wackenhut Corrections Cor

Sued Insti

poration, dba Taft Correctional Minneci;

tution; Margaret Jonathan Akanno; Spack; D. Robert Bob

E. Becky Maness,

Steifer; Defendants-

Appellees. 07-16112.

No. Appeals, States Court

Ninth Circuit. Oct. 2009.

Argued Submitted 7, 2010.

Filed June 10, 2010.

Amended Dec. sentencing proach either indu- agree majority to Ressam's Even if I were itself, inexplicable. or I would not order trans- I rate issue could on (over complex, long-standing ten Judge fer of agree with to remove this its decision ap- years) judge. Coughenour not see case to a different district because I do

Case Details

Case Name: United States v. Ahmed Ressam

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Feb 2, 2010

Citation: 629 F.3d 793

Docket Number: 09-30000

Court Abbreviation: 9th Cir.