On March 12, 2012, the Ninth Circuit issued its ruling on an appeals case that was originally decided by the Western District of Washington in 2004. The Ninth Circuit reversed the twenty-two year sentence imposed by the district court, calling it a “clear error” and “substantively unreasonable.”

Ahmed Ressam, an Algerian national, was taken into custody in December 1999 by U.S. customs officials in Washington State after a search of his vehicle was conducted and contraband was discovered. Allegedly, Ressam was transporting components of a bomb which he planned to detonate at Los Angeles Airport. Because the events took place close to New Years Eve of 1999, Ressam was dubbed the “Millennium Bomber.”

Ressam was charged and convicted on nine felony counts, including conspiring to commit an act of terrorism transcending national boundaries, conspiring to place an explosive in proximity to a terminal, smuggling explosives into the United States contrary to law, and transportation of explosives. Based on the Federal Sentencing Guidelines, Ressam was facing 65 years to life in prison.

Following his conviction but prior to sentencing, Ressam entered into a cooperation agreement with the government in exchange for the government’s promise to stipulate to a lesser sentence. According to the Ninth Circuit opinion, over the course of Ressam’s two-year cooperation, he provided 65 hours of trial and deposition testimony and 205 hours of proffers and debriefings. He provided information to the governments of seven different countries and testified in two trials, both of which ended in convictions of the defendants. He provided names of at least 150 people involved in terrorism and described many others. He also provided information about explosives that potentially saved the lives of law enforcement
agents, and extensive information about the mechanics of global terrorism operations.

The sentencing hearing was continually postponed due to Ressam’s continued cooperation. However, after two years, Ressam’s cooperation ended due to health reasons and memory loss. The government filed a § 5K1.1 motion, which is basically a stipulation by the government to the court stating that the defendant cooperated fully by providing substantial assistance, and should receive a lesser sentence. The government recommended a 35-year sentence, while the defense asked for 12 and 1/2 years.

The district court sentenced Ressam to 22 years in prison, plus 5 years of supervised release following his incarceration. At first blush, 22 years may not seem that long, but it is clearly middle ground between what the two parties were requesting. The case went on appeal for various issues, and the issue of sentencing was addressed again by the district court in 2008. During his re-sentencing, Ressam began to recant his earlier testimony that he provided in other cases as part of his cooperation. In response, the government of course, requested a higher sentence. The district court again sentenced Ressam to 22 years.

The district court based its determination on the substantial amount of information that Ressam provided during his cooperation, despite the fact that he later recanted some of his testimony. The district court believed that it was necessary to recognize the fact that Ressam, a non-U.S. person, provided substantial intelligence to not only the U.S. government, but also the governments of Spain, Germany, Great Britain, Italy, France and Canada. The district court took the Guidelines into consideration, but also considered other factors under 18 U.S.C. § 3553, such as Ressam’s personal history and background. The Federal Guidelines are merely suggestive, although a majority of federal sentencing judges tend to rely on the ranges set forth in the Guidelines. The government, unhappy with the sentence and probably disgruntled about Ressam’s recantation, appealed.

After considering the totality of the circumstances, the Ninth Circuit reversed Ressam’s sentence as substantively unreasonable. Specifically, the Ninth Circuit disagreed with the district court and its consideration of the § 3553 factors in this case. The Ninth Circuit appears to hold the belief that the district court should have relied more on the Guidelines, rather than other factors such as Ressam’s personal and mental background. The Ninth Circuit focused its ruling on the interpretation of the nature and characteristics of the offense, the protection of the public, Ressam’s cooperation and character, the need to avoid unwarranted sentencing disparities, and the recommendations and offers by the government.

In short, the Ninth Circuit basically reevaluated a complex case on the merits. In United States v. Gall, 552 U.S. 38 (2007), the Supreme Court clearly rejected the use of a “rigid mathematical formula” to determine the justification of a sentence. Also in Gall, the Supreme Court held that the “sentencing judge is in a superior position to find facts and judge their import under § 3553(a).” The Ninth Circuit cites these holdings, but then proceeds to apply their own reasoning to Ressam’s sentence in order to reverse. The Ninth Circuit does this in order to justify their belief that the sentence was unreasonable. The dissent argues that the majority is clearly at odds with Gall, and rightly so.

The issue of sentencing a defendant is meant to be left in the hands of the judge that heard the case on the merits, was presented with all of the evidence and testimony, and was able to review the circumstances appropriately due to the familiarity with the case. In Ressam’s case, the district judge took into account Ressam’s substantial cooperation with numerous governmental entities, personal characteristics, and other factors that he felt were relevant to the issue of sentencing. However, apparently the Ninth Circuit’s disagreement with the length of the sentence gives them the right to reevaluate the reasoning of the district judge, whose familiarity and understanding of Ressam’s complex case far outweighs theirs.

The entire Ninth Circuit opinion can be found here. The dissenting opinion is quick to point out the shortfalls of the majority, including the insight “that the majority just does not like the fact that this terrorist is to sit in prison for a mere twenty-two years.”

The author of this blog is Erich Ferrari, an attorney specializing in Federal Criminal Defense matters. If you have any questions please contact him at 202-280-6370 or ferrari@ferrari-legal.com.

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