FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30000
Plaintiff-Appellant, D.C. No.
v. 2:99-cr-00666-
AHMED RESSAM, JCC-1
Defendant-Appellee.
ORDERS
AMENDING
OPINION AND
DISSENT AND
AMENDED
OPINION AND
DISSENT
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Argued and Submitted
November 2, 2009—Seattle, Washington
Filed February 2, 2010
Amended December 10, 2010
Before: Arthur L. Alarcón, Ferdinand F. Fernandez and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Alarcón;
Dissent by Judge Fernandez
19763
UNITED STATES v. RESSAM 19767
COUNSEL
Mark N. Bartlett, Helen J. Brunner (argued), Assistant United
States Attorneys, Seattle, Washington, for the plaintiff-
appellant.
19768 UNITED STATES v. RESSAM
Thomas W. Hillier, II (argued), Lissa W. Shook, Federal Pub-
lic Defender, Seattle, Washington, for the defendant-appellee.
ORDER
This Court’s opinion, filed February 2, 2010, is amended as
follows:
1. The three paragraphs on slip Opinion page 1882, line 20
to page 1883, line 13 that read:
Both parties appealed to this Court. Ressam chal-
lenged his conviction while the Government chal-
lenged the reasonableness of the sentence. This
Court vacated Ressam’s conviction as to Count
Nine, and remanded for resentencing without
addressing the merits of the Government’s argu-
ments. United States v. Ressam, 474 F.3d 597 (9th
Cir. 2007). The United States Supreme Court
reversed this Court’s decision and affirmed Res-
sam’s conviction of Count Nine. United States v.
Ressam, 128 S. Ct. 1858, 1862 (2008). Upon
remand, this Court vacated the 22-year sentence,
holding that the district court failed to determine the
applicable Sentencing Guidelines range at the begin-
ning of sentencing, as required by United States v.
Carty, 520 F.3d 984 (9th Cir. 2008). United States v.
Ressam, 538 F.3d 1166, 1167 (9th Cir. 2008).
Upon remand, the district court again imposed a
sentence of 22 years in prison, followed by five
years of supervised release. The Government has
appealed from this decision. It contends that when
the relevant § 3553(a) factors are applied to the facts
of this case, the sentence imposed is insufficient to
accomplish the purposes of the statute, which directs
UNITED STATES v. RESSAM 19769
that “[t]he court shall impose a sentence sufficient
but not greater than necessary” to accomplish the
purposes of 18 U.S.C. § 3553(a)(2).
We vacate the sentence and remand for resentenc-
ing by a different district court judge because we
conclude that the district court committed procedural
error in failing to address specific, nonfrivolous
arguments raised by the Government in imposing a
sentence that is well below the advisory Sentencing
Guidelines range.
are deleted and replaced by the following three paragraphs:
Both parties appealed to this Court. Ressam chal-
lenged his conviction while the Government chal-
lenged the reasonableness of the sentence. This
Court vacated Ressam’s conviction as to Count
Nine, and remanded for resentencing without
addressing the merits of the Government’s argu-
ments. United States v. Ressam, 474 F.3d 597, 604
(9th Cir. 2007). The United States Supreme Court
reversed this Court’s decision and affirmed Res-
sam’s conviction as to Count Nine. United States v.
Ressam, 553 U.S. 272, 277 (2008). Upon remand,
this Court vacated the 22-year sentence, without
addressing the Government’s challenge to the rea-
sonableness of Ressam’s sentence, because the dis-
trict court failed to determine the applicable
Sentencing Guidelines range at the beginning of sen-
tencing, as required by United States v. Carty, 520
F.3d 984, 991 (9th Cir.) (en banc), cert. denied, 553
U.S. 1061 (2008); United States v. Ressam, 538 F.3d
1166, 1167 (9th Cir. 2008).
At the resentencing hearing, the district court
again imposed the same sentence. The Government
has appealed from this decision. It contends that
19770 UNITED STATES v. RESSAM
when the relevant § 3553(a) factors are applied to
the facts of this case, the sentence imposed is insuffi-
cient to accomplish the purposes of the statute,
which directs that “[t]he court shall impose a sen-
tence sufficient but not greater than necessary” to
accomplish the purposes of 18 U.S.C. § 3553(a)(2).
It complains in particular about the district court’s
failure to give appropriate consideration to Ressam’s
recantations and disavowal of his previous coopera-
tion.
We vacate the sentence and remand for resentenc-
ing because we conclude that the sentencing process
was seriously flawed, notably by the district court’s
failure to explain its reasons for rejecting the Gov-
ernment’s argument that a longer sentence is needed
to protect the public from future terrorist crimes by
Ressam and imposing a sentence that is 43 years
below the advisory Sentencing Guidelines. In addi-
tion, we conclude that the case should be assigned on
remand to a different district judge because it
appears that the original judge would have difficul-
ties putting out of his mind previously expressed
views as to an appropriate sentence.
2. On slip Opinion page 1902, line 28-30, please replace:
In its argument, the prosecution reiterated the
points raised in its November 28, 2008 sentencing
memorandum wherein it recommended a sentence of
45 years in prison.5
with:
5
At Ressam’s December 3, 2008 resentencing hearing, the Government
recommended that Ressam serve a term of life imprisonment, based upon
his further recantation and attempts to distance himself from his earlier
cooperation.
UNITED STATES v. RESSAM 19771
In its argument, the prosecution reiterated the
points raised in its November 28, 2008 sentencing
memorandum and recommended that Ressam serve
a term of life imprisonment, based upon his further
recantation and attempts to distance himself from his
earlier cooperation.
3. The five paragraphs on slip Opinion pages 1912-1916
that read:
The Government asserts “[t]he sole issue pre-
sented in this case is whether the sentence imposed
on Ahmed Ressam is substantively unreasonable in
light of the facts of this case and the factors set forth
in 18 U.S.C. § 3553(a).”7 Appellant’s Opening Brief
7
Title 18 U.S.C. § 3553(a) requires that a sentencing court consider the
following factors:
(1) the nature and circumstances of the offense and the history
and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for
the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defen-
dant; and
(D) to provide the defendant with needed educational or
vocational training, medical care, or other correctional
treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established
for—
(A) the applicable category of offense committed by the
applicable category of defendant as set forth in the
guidelines . . .
19772 UNITED STATES v. RESSAM
at 36. While recognizing that we “must first deter-
mine whether the district court committed significant
procedural error,” the Government maintains that
procedural error is “a claim not raised in this
appeal.” Id. By our reading of the issue on appeal,
however, the Government is also impliedly challeng-
ing the sentence as procedurally unsound because its
arguments are grounded upon the district court’s
alleged failure adequately to consider and weigh
each of the relevant § 3553(a) factors, including “to
protect the public from further crimes of the defen-
dant,” and to explain its reasons for imposing a sen-
tence 43 years below the low end of the Sentencing
Guidelines range. See Carty, 520 F.3d at 993 (hold-
ing that “[i]t would be procedural error for a district
court to fail to . . . consider the § 3553(a) factors . . .
or to fail adequately to explain the sentence selected,
including any deviation from the Guidelines range”)
(citing Gall, 128 S.Ct. at 596-97); see also United
States v. Paul, 561 F.3d 970, 974 n.2 (9th Cir. 2009)
(“It is the procedural provisions of 18 U.S.C.
(5) any pertinent policy statement . . .
(6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty
of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
18 U.S.C. § 3553(a) (emphasis added).
Accordingly, in Carty, we instructed that “[t]he overarching statutory
charge for a district court is to ‘impose a sentence sufficient, but not
greater than necessary’ to reflect the seriousness of the offense, promote
respect for the law, and provide just punishment; to afford adequate deter-
rence; to protect the public; and to provide the defendant with needed edu-
cational or vocational training, medical care, or other correctional
treatment.” Carty, 520 F.3d at 991 (9th Cir. 2008) (citing 18 U.S.C.
§ 3553(a)(1)-(7); United States v. Gall, 552 U.S. 38, 50 n.6 (2007))
(emphasis added).
UNITED STATES v. RESSAM 19773
§ 3553(c) that require engagement with the [parties’]
arguments, not the substantive provisions of 18
U.S.C. § 3553(a)”); United States v. Overton, 573
F.3d 679, 699 (9th Cir. 2009) (concluding that appel-
lant “allude[d] to procedural error by accusing the
district court of failing to address the § 3553(a) fac-
tors and adequately explain the sentence imposed”).
We believe that the Government may have framed
the issue on appeal as it did because more clarity is
needed in defining what constitutes procedural error
in imposing a sentence that is significantly below the
Sentencing Guidelines range. Accordingly, before
addressing the question whether the district court’s
decision in Ressam’s case was procedurally errone-
ous or substantively unreasonable, we are persuaded
that it is necessary to analyze each of these two con-
cepts in some detail.
A
In Gall, the Supreme Court instructed that
[r]egardless of whether the sentence imposed is
inside or outside the Guidelines range, the appellate
court must review the sentence under an abuse-of-
discretion standard. It must first ensure that the dis-
trict court committed no significant procedural error,
such as failing to calculate (or improperly calculat-
ing) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors,
selecting a sentence based on clearly erroneous
facts, or failing to adequately explain the chosen
sentence — including an explanation for any devia-
tion from the Guidelines range. Assuming that the
district court’s sentencing decision is procedurally
sound, the appellate court should then consider the
19774 UNITED STATES v. RESSAM
substantive reasonableness of the sentence imposed
under an abuse-of-discretion standard.”
Gall, 552 U.S. at 51 (emphasis added).
The Supreme Court’s instruction implies that
appellate courts have a sua sponte duty to undertake
a review for procedural error even where, as here, no
such error is expressly asserted by the Government
in its appeal. As a preliminary matter, we now make
explicit what was implicit in Gall. We hold that we
must review sentencing decisions for procedural
error, even where no claim of procedural error is
raised. This holding is based upon our reading of the
language in Gall instructing that an appellate court
“must first ensure that the district court committed
no significant procedural error,” id. (emphasis
added), our extensive review of the cases applying
Gall, and our own holding in Carty. See Carty, 520
F.3d at 993 (“On appeal, we first consider whether
the district court committed significant procedural
error, then we consider the substantive reasonable-
ness of the sentence.”).
This requirement makes logical sense because
“[i]n determining substantive reasonableness, we are
to consider the totality of the circumstances, includ-
ing the degree of variance for a sentence imposed
outside the Guidelines range.” Id. Thus, the substan-
tive reasonableness analysis requires consideration
of information necessarily gleaned from the review
for procedural error, including the district court’s
calculation of the Sentencing Guidelines range and
its consideration of the § 3553(a) factors. Id. Indeed,
“substantive problems . . . [can be] a product of the
District Court’s procedurally flawed approach.”
United States v. Goff, 501 F.3d 250, 256 (3d Cir.
2007). “[I]f one cannot justify a result by the reasons
UNITED STATES v. RESSAM 19775
given, that result is, by definition, not a substantively
reasonable conclusion to the logical steps provided.”
United States v. Levinson, 543 F.3d 190, 195 (3d Cir.
2008). Stated otherwise, it would be analytically
problematic, if not impossible, to review a sentence
for substantive reasonableness without having first
reviewed the sentencing decision for procedural
error. Accordingly, courts must review for proce-
dural error even where the only claim raised on
appeal is the substantive reasonableness of the sen-
tence. See, e.g., Overton, 573 F.3d at 699 (reviewing
for procedural error where appellant challenged his
sentence as substantively unreasonable but “alluded
to” procedural error); United States v. Shaw, 560
F.3d 1230, 1238 (11th Cir. 2009) (reviewing for pro-
cedural error even though the only contention on
appeal was that the sentence was substantively
unreasonable). Having concluded that we must first
review a sentence for procedural error, we now
address what that review entails.
are deleted and replaced by the following eight paragraphs:
The Government appeals the sentence imposed on
Ressam by the district court. It argues that “[t]he sole
issue presented in this case is whether the sentence
imposed on Ahmed Ressam is substantively unrea-
sonable in light of the facts of this case and the fac-
tors set forth in 18 U.S.C. § 3553(a).”6 (Appellant’s
6
Title 18 U.S.C. § 3553(a) requires that a sentencing court consider the
following factors:
(1) the nature and circumstances of the offense and the history
and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for
the offense;
19776 UNITED STATES v. RESSAM
Opening Br. 36.) Specifically, the Government
argues that the sentence is substantively unreason-
able because the district court failed adequately to
consider and weigh the relevant § 3553(a) factors,
including “the need [for the sentence imposed] . . .
to ensure the public is protected from future crimes
by this defendant.”7 (Id. at 51.)
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defen-
dant; and
(D) to provide the defendant with needed educational or
vocational training, medical care, or other correctional
treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established
for—
(A) the applicable category of offense committed by the
applicable category of defendant as set forth in the
guidelines . . .
(5) any pertinent policy statement . . .
(6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty
of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
18 U.S.C. § 3553(a).
Accordingly, in Carty, we instructed that “[t]he overarching statutory
charge for a district court is to ‘impose a sentence sufficient, but not
greater than necessary’ to reflect the seriousness of the offense, promote
respect for the law, and provide just punishment; to afford adequate deter-
rence; to protect the public; and to provide the defendant with needed edu-
cational or vocational training, medical care, or other correctional
treatment.” Carty, 520 F.3d at 991 (citing 18 U.S.C. § 3553(a)(1)-(2));
Gall v. United States, 552 U.S. 38, 50 n.6 (2007)).
7
Thus, “[t]here is a procedural as well as a substantive element to this
argument.” United States v. Overton, 573 F.3d 679, 699 (9th Cir. 2009)
UNITED STATES v. RESSAM 19777
The Government also argues that:
the [district] court’s stated reasons simply do not
establish the reasonableness of a sentence two-thirds
less than the low end of the advisory Guideline[s]
range for a defendant who was convicted after trial
of such extraordinary crimes, and then undermined
the prosecution of two terrorists about whom he pro-
vided information by refusing to finish his agreed
upon cooperation.
(Id. at 38.)
A
Ordinarily, when a sentence is appealed, “[o]n
appeal, we first consider whether the district court
committed significant procedural error, then we con-
sider the substantive reasonableness of the sen-
tence.” Carty, 520 F.3d at 993. In Gall, the Supreme
Court instructed that:
[r]egardless of whether the sentence
imposed is inside or outside the Guidelines
(concluding that appellant “allude[d] to procedural error by accusing the
district court of failing to address the § 3553(a) factors and adequately
explain the sentence imposed”); see also United States v. Paul, 561 F.3d
970, 974 n.2 (9th Cir. 2009) (“It is the procedural provisions of 18 U.S.C.
§ 3553(c) that require engagement with the [parties’] arguments . . . not
the substantive provisions of 18 U.S.C. § 3553(a).”). In its appeal, how-
ever, the Government has expressly waived any challenge to the proce-
dural correctness of the sentence imposed by the district court.
(Appellant’s Opening Br. 36) (“The Court must first determine whether
the district court committed significant procedural error, a claim not
raised in this appeal. The Court must then consider whether the sentence
is substantively unreasonable, the issue raised here.”) (citations omitted)
(emphasis added); (Appellant’s Reply Br. 5) (“A sentence is reviewed first
for procedural error, although none is alleged here.”) (citation omitted)
(emphasis added).
19778 UNITED STATES v. RESSAM
range, the appellate court must review the
sentence under an abuse-of-discretion stan-
dard. It must first ensure that the district
court committed no significant procedural
error, such as failing to calculate (or
improperly calculating) the Guidelines
range, treating the Guidelines as manda-
tory, failing to consider the § 3553(a) fac-
tors, selecting a sentence based on clearly
erroneous facts, or failing to adequately
explain the chosen sentence — including an
explanation for any deviation from the
Guidelines range. Assuming that the district
court’s sentencing decision is procedurally
sound, the appellate court should then con-
sider the substantive reasonableness of the
sentence imposed under an abuse-of-
discretion standard. When conducting this
review, the court will, of course, take into
account the totality of the circumstances,
including the extent of any variance from
the Guidelines range.
Gall, 552 U.S. at 51.
In this appeal the Government has elected not to
argue that the district court committed significant
procedural errors. Though the Government has iden-
tified many alleged missteps by the district court in
the course of sentencing, its opening brief affirma-
tively states that procedural error is “a claim not
raised on this appeal.” Id.
Ressam contends that as a result we are precluded
from considering procedural errors by the district
court, citing the decision of the Supreme Court in
Greenlaw v. United States, 554 U.S. 237, 128 S. Ct.
2559 (2008). In that case the Eighth Circuit sua
UNITED STATES v. RESSAM 19779
sponte ordered the imposition of a longer criminal
sentence based on the failure of the district court to
impose a mandatory minimum sentence, which the
court of appeals identified as a plain error even
though the Government had not appealed the sen-
tence. The sentence was before the court of appeals
because the defendant had challenged the sentence,
contending that it was too long. The Supreme Court
held that the court of appeals had erred by acting in
the absence of a Government appeal or cross-appeal.
Greenlaw, 128 S. Ct. at 2570. But that is not the situ-
ation here. The Government has appealed Ressam’s
sentence. That it has elected to focus on the substan-
tive reasonableness of the sentence means that we
are not required to review for procedural errors, but
it does not mean that we are precluded from looking
at the process that produced that sentence.
That is especially true here, where the Govern-
ment’s opening brief on appeal complains about a
number of actions or failures by the district court
that arguably constitute procedural errors. See
United States v. Overton, 573 F.3d 679, 699 (9th Cir.
2009) (reviewing for procedural error where appel-
lant challenged his sentence as substantively unrea-
sonable but “allude[d] to procedural error by
accusing the district court of failing to address the
§ 3553(a) factors and adequately explain the sen-
tence imposed”); United States v. Shaw, 560 F.3d
1230, 1238 (11th Cir. 2009) (reviewing for proce-
dural error even though the only contention on
appeal was that the sentence was substantively
unreasonable). Notably, the Government’s argu-
ments in this case are largely grounded upon the dis-
trict court’s alleged failure adequately to consider
and weigh each of the relevant § 3553(a) factors,
including “to protect the public from further crimes
of the defendant,” and to explain its reasons for
19780 UNITED STATES v. RESSAM
imposing a sentence 43 years below the low end of
the Sentencing Guidelines range. See Carty, 520
F.3d at 993 (holding that “[i]t would be procedural
error for a district court to fail to . . . consider the
§ 3553(a) factors . . . or to fail adequately to explain
the sentence selected, including any deviation from
the Guidelines range”) (citing Gall, 128 S.Ct. at 596-
97).
It should not be surprising that a challenge to the
substantive reasonableness of a sentence will, in at
least some cases, invite consideration of the process
that produced the sentence. How a decision is
arrived at can often shed light on the merit of the
decision itself. Indeed, “substantive problems . . .
[can be] a product of the District Court’s procedur-
ally flawed approach.” United States v. Goff, 501
F.3d 250, 256 (3d Cir. 2007). In Carty we held that
“[i]n determining substantive reasonableness, we are
to consider the totality of the circumstances, includ-
ing the degree of variance for a sentence imposed
outside the Guidelines range.” Carty, 520 F.3d at
993. The totality of circumstances to be considered
in determining substantive reasonableness may
surely include an examination of the sentencing pro-
cess as a whole.
B
To better understand the relationship between
alleged procedural errors and substantive unreason-
ableness, it would be useful to analyze each of the
two concepts in some detail.
4. On slip Opinion page 1929, line 15, please replace:
There are four procedural errors in the district
court’s analysis:
UNITED STATES v. RESSAM 19781
with:
There are four procedural errors in the district
court’s analysis that are serious enough to cause us
to lack confidence in the substantive reasonableness
of the sentence that was imposed:
5. On slip Opinion page 1948, line 30, please replace:
Paul, 561 F.3d at 975.
with:
Paul, 561 F.3d at 975; see also United States v.
Vrdolyak, 593 F.3d 676, 684 (7th Cir. 2010) (holding
that “a judge’s errors in calculating [a sentence] are
indicative of an idee fixe” where the judge appears
unwilling to waver in his conviction that a particular
sentence is warranted).
6. On slip Opinion page 1949, beginning at line 5, please
replace:
For these reasons, we direct that the case be re-
assigned to a different judge for resentencing.
Conclusion
Because the district court procedurally erred by
failing to address specific arguments raised by the
Government, or otherwise justify the extent of its
departure from the advisory Guidelines, we must
vacate the 22-year sentence imposed by the district
court.
with:
For these reasons, we direct that the case be re-
assigned to a different judge for resentencing. We
19782 UNITED STATES v. RESSAM
intimate no view on what a proper sentence would
be.
Conclusion
We vacated the district court’s original sentence
of 22 years of imprisonment because it failed to per-
mit this Court to conduct a meaningful review of the
Government’s challenge to the reasonableness of
Ressam’s sentence. Ressam, 538 F.3d at 1167. Prior
to the sentencing hearing on July 27, 2005, Ressam
argued that he had ceased cooperating with the Gov-
ernment because he was having trouble remembering
details as the result of a combination of solitary con-
finement and repeated interrogation.
At the resentencing hearing, however, Ressam
informed the district court that he “[retracted] almost
all the statements he had made in the past” against
two persons accused of terrorism in order to “cause
their cases to be dismissed.” Once again, the district
court imposed the same 22-year sentence that this
Court previously vacated because we could not
decide whether it was reasonable based on the record
of the original sentencing proceedings. In doing so,
the district court failed to provide any reasons for
rejecting the Government’s arguments tethered to
relevant § 3553(a) factors, including the value to be
given to Ressam’s early cooperation with the Gov-
ernment in view of his subsequent recantations and
the need to protect the public from Ressam’s poten-
tial to commit future terrorist crimes, as he will be
only 53 years old upon his release. Without such
explanations, we cannot conduct a meaningful
review under the abuse of discretion standard to
determine whether a sentence that is 43 years below
the advisory Sentencing Guidelines is substantively
reasonable, or whether a longer sentence is needed to
UNITED STATES v. RESSAM 19783
protect the public from future terrorist crimes by
Ressam.
Because the trial judge’s previously expressed
views appear too entrenched to allow for the appear-
ance of fairness on remand, we direct that the case
be re-assigned to a different judge for resentencing.
ORDER
My dissenting opinion, which commences at slip op. 1877,
1949 [593 F.3d 1095, 1134 (9th Cir. 2010)] is hereby
amended as follows:
(1) Footnote 1 at slip op. 1949 [593 F.3d at 1134] is hereby
revoked and the following is substituted in its place:
The government has expressly conceded that the sole
issue on appeal is substantive reasonableness. That is
all we should consider. In part II of the opinion,
however, the majority, indicates that, despite the
government’s concession, it must and will take up
procedural error, but shrouds that determination with
a brume of words whereby it suggests that procedure
must be melded into the substantive reasonableness
determination. The result is a gallimaufry that, by
mistake or design, will (as it does here) require
courts to consider far more than substantive reason-
ableness, even when the parties raise only that. No
doubt that hodgepodge has contributed to the majori-
ty’s ultimate erroneous decision here. Unfortunately,
it is also a disagreeable gift to the law, and it will
keep on giving.
(2) Footnote reference 11 is added at the end of the penulti-
mate paragraph on slip op. 1951 [593 F.3d at 1135].
19784 UNITED STATES v. RESSAM
(3) Footnote 11 is added at slip op. 1951 [593 F.3d at 1135]
as follows:
Even if I were to agree with the majority on the sen-
tencing issue itself, I could not agree with its deci-
sion to remove Judge Coughenour because I do not
see his approach to Ressam’s sentencing as either
indurate or inexplicable. I would not order transfer
of this complex, long-standing (over ten years) case
to a different district judge.
OPINION
ALARCÓN, Senior Circuit Judge:
Ahmed Ressam was convicted by a jury on nine counts of
criminal activity in connection with his plot to carry out an
attack against the United States by detonating explosives at
the Los Angeles International Airport (“LAX”) on the eve of
the new Millennium, December 31, 1999. Ressam’s crimes of
conviction carry an advisory Sentencing Guidelines range of
65 years to life in prison, and a statutory maximum penalty of
130 years in prison.
In 2001, following his conviction, Ressam entered into a
cooperation agreement with the Government. Under the terms
of the agreement, the Government was to recommend a reduc-
tion in Ressam’s sentence in exchange for his truthful and
complete cooperation. Ressam provided information to law
enforcement officials of the United States and of other coun-
tries concerning the organization, recruitment, and training
activities of the worldwide terrorist network known as al-
Qaeda. Ressam also testified against one of his co-
conspirators, Mokhtar Haouari. After providing assistance to
the Government for approximately two years, Ressam decided
to cease cooperating and began recanting his prior testimony.
UNITED STATES v. RESSAM 19785
The district court sentenced Ressam to 22 years in prison to
be followed by five years of supervised release.
Both parties appealed to this Court. Ressam challenged his
conviction while the Government challenged the reasonable-
ness of the sentence. This Court vacated Ressam’s conviction
as to Count Nine, and remanded for resentencing without
addressing the merits of the Government’s arguments. United
States v. Ressam, 474 F.3d 597, 604 (9th Cir. 2007). The
United States Supreme Court reversed this Court’s decision
and affirmed Ressam’s conviction as to Count Nine. United
States v. Ressam, 553 U.S. 272, 277 (2008). Upon remand,
this Court vacated the 22-year sentence, without addressing
the Government’s challenge to the reasonableness of Res-
sam’s sentence, because the district court failed to determine
the applicable Sentencing Guidelines range at the beginning
of sentencing, as required by United States v. Carty, 520 F.3d
984, 991 (9th Cir.) (en banc), cert. denied, 553 U.S. 1061
(2008); United States v. Ressam, 538 F.3d 1166, 1167 (9th
Cir. 2008).
At the resentencing hearing, the district court again
imposed the same sentence. The Government has appealed
from this decision. It contends that when the relevant
§ 3553(a) factors are applied to the facts of this case, the sen-
tence imposed is insufficient to accomplish the purposes of
the statute, which directs that “[t]he court shall impose a sen-
tence sufficient but not greater than necessary” to accomplish
the purposes of 18 U.S.C. § 3553(a)(2). It complains in partic-
ular about the district court’s failure to give appropriate con-
sideration to Ressam’s recantations and disavowal of his
previous cooperation.
We vacate the sentence and remand for resentencing
because we conclude that the sentencing process was seri-
ously flawed, notably by the district court’s failure to explain
its reasons for rejecting the Government’s argument that a
longer sentence is needed to protect the public from future ter-
19786 UNITED STATES v. RESSAM
rorist crimes by Ressam and imposing a sentence that is 43
years below the advisory Sentencing Guidelines. In addition,
we conclude that the case should be assigned on remand to a
different district judge because it appears that the original
judge would have difficulties putting out of his mind previ-
ously expressed views as to an appropriate sentence.
I
A
Ahmed Ressam is an Algerian national. Traveling on a
false Moroccan passport issued in the name of Nassar Res-
sam, Ressam left Algeria in 1992 and went to France. On
November 8, 1993, French authorities deported Ressam to
Morocco and banned him from returning to France for three
years. Ressam was returned to France by Moroccan authori-
ties when it was determined that he was not Moroccan.
On February 20, 1994, Ressam arrived at Mirabel Airport
in Montreal, Canada, using an illegally altered French pass-
port in the name of Anjer Tahar Medjadi. The passport was
altered in that Ressam’s photo had been inserted to replace
that of the original bearer. When Canadian immigration per-
sonnel confronted Ressam with the altered passport, Ressam
divulged his true name. Ressam applied for refugee status
with Canadian Immigration, indicating on this application that
he left Algeria in December 1993 after having been arrested
and jailed for 15 months for arms trafficking to terrorists in
Algeria. Ressam’s request for refugee status in Canada was
denied on June 6, 1995. His appeal was also denied. A mora-
torium on deportations from Canada to Algeria, however,
allowed Ressam to stay in Canada under conditions set by
Citizenship and Immigration Canada (CIC). Ressam failed to
comply with these conditions, and on May 4, 1998, a warrant
was issued by CIC for Ressam’s arrest. Ressam was not
arrested however, because at the time the warrant was issued,
he was attending a terrorist training camp in Afghanistan.
UNITED STATES v. RESSAM 19787
On March 17, 1998, traveling under the name of Benni
Noris, Ressam went from Montreal to Karachi, Pakistan. In
Karachi, Ressam got in touch with Abu Zubeida who was in
charge of the Afghan terrorist training camps. Ressam was
told to grow a beard and wear Afghani clothes, prior to being
transported across the border from Pakistan into Afghanistan.
While Ressam was in Afghanistan, fatwahs were issued,
including one by Sheikh Omar Abdel Rahman, directing the
terrorists to fight Americans and hit their interests every-
where.
Between March 1998 and February 1999, Ressam attended
three training camps for Islamic terrorists in Afghanistan.
Ressam first received instruction at Khalden Camp in light
weapons (handguns, machine guns, and rocket launchers), the
making of explosive devices (including TNT, C4 (plastic
explosive), and black plastic explosives), sabotage, the selec-
tion of targets, urban warfare, tactics (including assassina-
tions), security, and the use of poisons and poisonous gas. The
sabotage training included learning how to blow up the infra-
structure of a country, including the enemies’ special and mil-
itary installations, such as electric plants, gas plants, airports,
railroads, and hotels where conferences are held. The urban
warfare training instructed on how to carry out operations in
cities, how to block roads, how to assault buildings, and cov-
ered the strategies used in these operations. Explosives train-
ing included how to do surveillance, take pictures, and blend
in by wearing clothing that a tourist would wear. The weap-
ons and ammunition used at the camps were supplied by the
Taliban. Plans were underway to carry out terrorist operations
in Europe and elsewhere.
After attending Khalden Camp, Ressam moved to Toronta
Camp located outside Jalalabad, Afghanistan, where he was
trained in the manufacture of explosives over the course of a
month and a half. Ressam learned how to put chemical sub-
stances together to form explosives and how to make elec-
tronic circuits to be used to blow things up.
19788 UNITED STATES v. RESSAM
Ressam and five other terrorists were part of a cell charged
with carrying out an operation against a target in the United
States — an airport or a consulate — before the end of 1999.
The leader of the cell was to stay in touch with Abu Jaffar in
Pakistan and Abu Doha in Europe. The plan was for the cell
members to travel separately and meet in Canada where they
would carry out bank robberies to finance their operation in
the United States. Other cells were planning operations in
Europe and in the Persian Gulf against the United States and
Israeli interests to be carried out before the year 2000.
In February 1999, Ressam returned to Canada, traveling
under the name Benni Noris and carrying: $12,000 in cash; a
chemical substance called Hexamine, which is used as a
booster in the manufacture of explosives; and, a notebook
with instructions on how to put together explosives.
In the spring of 1999, French authorities were conducting
an investigation of radical Islamic fundamentalists living in
Montreal who were believed to be providing support to
Islamic terrorist organizations in Europe. The Montreal “cell”
was involved in stealing passports and other identification
documents and sending them to other cells in Europe to allow
fellow Islamic extremists to travel internationally. The French
authorities requested an interview of Ressam but the Canadian
authorities were unable to locate him because he was living
under his false name of Benni Noris.
In the summer of 1999, Abu Doha informed Ressam, from
London, that the other members of the Montreal cell decided
to remain in Europe because they ran into problems with
Immigration. Ressam decided to continue with the operation
without the other members of his cell. Ressam targeted an air-
port, knowing that as a result, many civilians would die.
While planning the operation, Ressam worked with his friend,
Ahcene Zemiri, who helped him plan a bank robbery intended
to secure funds to finance the attack in the United States. Res-
sam and Zemiri did surveillance on the bank. Ressam asked
UNITED STATES v. RESSAM 19789
Zemiri and Samir Ait Mohamed to get a pistol with a silencer,
and hand grenades to use during the bank robbery. Ressam
planned to throw a live hand grenade at the police, and run,
if he needed to do so in order to get away.
On November 17, 1999, Ressam and his co-conspirator,
Abdel Dahoumane, traveled from Montreal to Vancouver,
B.C., where they prepared explosives for the LAX bomb in a
rented cottage. On December 14, 1999, Ressam and Dahou-
mane traveled from Vancouver to Victoria, B.C., with all of
the components of the bomb, including explosives, hidden in
the wheel well of the trunk of a rental car. Continuing alone,
Ressam drove the car carrying the explosives onto an Ameri-
can car ferry, M/V COHO, at Tswassen, B.C. Before boarding
the ferry, a U.S. Immigration and Naturalization Service
inspector checked Ressam’s documentation and destination.
Ressam provided the inspector with a fraudulent Canadian
passport in the name of Benni Noris and stated that he was
heading to Seattle. Because the ferry was not the typical route
from Vancouver to Seattle, the inspector decided to search the
car. The inspector failed to check the hidden wheel well in the
trunk, however, and Ressam was allowed to board the ferry.
The M/V COHO arrived in Port Angeles, Washington later
that evening. Upon leaving the ferry, Ressam was questioned
by U.S. Customs Inspector Diane Dean. Inspector Dean
detected nervousness and directed Ressam to a secondary
inspection area.
Ressam filled out a custom’s declaration form falsely, stat-
ing his name was Benni Norris and that he was a Canadian
citizen. One customs inspector conducted a pat-down search
on Ressam as others were searching the car. When an inspec-
tor discovered what appeared to be contraband in the wheel
well of the trunk, Ressam fled on foot. Customs inspectors
gave chase. In the course of the chase, Ressam attempted to
carjack a vehicle. He was apprehended by the customs inspec-
tors and returned to the inspection area in a police car. The
inspectors resumed searching the trunk of Ressam’s car.
19790 UNITED STATES v. RESSAM
Believing the contraband to be narcotics, the inspectors did
not handle the items as carefully as one would handle explo-
sives. As the inspectors reached into the wheel well to remove
the items, Ressam ducked down behind the protection of the
police car door.1 An explosives expert later determined that
the materials found in the car were capable of producing a
blast forty times greater than that of a devastating car bomb.
Following his arrest, Ressam was indicted on nine counts
relating to his attempt to carry out an act of terrorism tran-
scending a national boundary. The statutory maximum pen-
alty for these offenses was 130 years in prison.
Before trial, the Government offered Ressam a sentence of
25 years imprisonment in exchange for a guilty plea. The
Government considered the sentence offered to be a substan-
tially discounted offer, taking into account the risk of litiga-
tion. Prior to trial, the Government characterized its evidence
with regard to Count One, Conspiracy to Commit an Interna-
tional Act of Terrorism Transcending National Boundaries,
1
The following items were found in Ressam’s car:
two lozenge bottles filled with primary explosives, one of which
contained hexamethylene triperoxide diamine (HMTD) and the
other of which contained cyclotrimethylene trinitramine (RDX);
10 plastic bags of approximately 118 pounds total of urea in fine
white powder form, which is a fertilizer that, when nitrated, can
be used as a fuel in explosives; 2 plastic bags of about 14 pounds
total of a crystalline powder determined to be aluminum sulfate;
two 22-ounce olive jars each filled approximately 3/4 full of a
golden brown liquid covered with a sawdust like substance,
which liquified was determined to be an explosive, etheylene gly-
col dinitrate (EGDN). Also discovered with these chemicals were
four timing devices, comprised of small black boxes which each
contained a circuit board connected to a Casio watch and nine-
volt battery connector. Tests later confirmed that the timing
devices were operational. Ressam’s fingerprints and hair were
found in some of the timing devices.
Government’s Ex Parte Motion and Order re: Letters Rogatory, March 3,
2000.
UNITED STATES v. RESSAM 19791
the most serious charge and the one that carried the most
weight, as very thin. The Government was concerned about
its ability to prove what Ressam intended to do once he
crossed the border, using a phony passport and carrying over
100 pounds of explosives. It was in fact not until during trial,
that some of the most important evidence was developed with
regard to what Ressam intended to do with the explosives.
Ressam rejected the pre-trial plea offer of 25 years.
In preparing its case for trial, the Government enlisted the
services of judicial and law enforcement agencies from sev-
eral other countries. Due to the unavailability of certain law
enforcement witnesses in Canada, and the fact that certain
other witnesses expressed fear of testifying against Ressam at
trial, the district court granted the Government’s motion to
take foreign depositions in Canada. Order of District Court
granting Government’s motion for foreign depositions, June
23, 2000. Due to possible prejudice by public sentiment in the
Seattle area, the trial judge granted Ressam’s motion to trans-
fer the site of the trial to Los Angeles. On April 6, 2001, fol-
lowing a 19-day trial involving approximately 120 witnesses
and over 600 exhibits, a jury convicted Ressam on all counts.
The sentence exposure for these convictions under the then-
mandatory Sentencing Guidelines was 65 years to life.
B
On May 4, 2001, prior to sentencing, counsel for Ressam
informed the United States Attorneys’ Office that Ressam
wished to cooperate with it and law enforcement authorities
in the investigation of terrorist activities. On May 10, 2001,
Ressam began meeting with Government agents in an attempt
to cooperate. Ressam’s position was that the United States
Attorney should agree upon a sentencing range of 10 to 15
years in prison in exchange for his cooperation. On June 22,
2001, the United States Attorney responded to Ressam’s offer
with a letter agreement memorializing the parties’ understand-
ing that Ressam would cooperate with law enforcement “in
19792 UNITED STATES v. RESSAM
hopes of earning a motion for a downward departure [in his
sentence] pursuant to U.S.S.G. 5K1.1.” Ressam signed the
agreement the next day. The cooperation agreement required
Ressam’s full compliance with the terms of the agreement, his
full cooperation with designated agencies, and his truthful tes-
timony before the grand jury, and in other court proceedings
with respect to any matters as requested by the U. S. Attor-
ney’s Office for the Western District of Washington or the
Southern District of New York, including but not limited to
the trial of his accomplice and co-conspirator Mokhtar Hao-
uari and any future prosecutions brought in connection with
the participation by Ressam and others in Canada, Afghani-
stan, and elsewhere in a conspiracy to kill United States
nationals.
In exchange, the United States Attorney agreed to file a
5K1.1 motion asking the judge for a downward departure
from the then-mandatory Sentencing Guidelines. Id. The par-
ties agreed that neither side would request a sentence less than
27 years imprisonment. Id.
Between May 10, 2001 and September 11, 2001, Ressam
met with Government agents approximately 22 times. On July
5, 2001 and July 6, 2001, Ressam testified as a prosecution
witness at the trial of his co-conspirator, Mokhtar Hauoari.
The evidence at Haouari’s trial established that he conspired
with Ressam and Abdelghani Meskini to support Ressam’s
terrorist plot to bomb LAX. United States v. Mokhtar Hao-
uari, S4-00-cr-15, 2001 WL 1154714, at *2-4 (S.D.N.Y. Sept.
28, 2001). Hauoari supported Ressam by recruiting Meskini
to assist Ressam in the United States, and by providing him
with money, a credit card and false identification. Meskini
pleaded guilty and also testified against Hauoari. Under the
terms of Meskini’s plea agreement, he received six years
imprisonment. Hauoari was sentenced to 24 years in prison,
two years short of the statutory maximum.
On July 2, 2001, based almost entirely upon information
provided by Ressam, the United States Attorney for the
UNITED STATES v. RESSAM 19793
Southern District of New York filed a complaint against Abu
Doha, a major player in the arena of terrorist activity. Ressam
was aware that the success of the Government’s attempts to
extradite Doha from England depended exclusively upon a
comprehensive declaration provided by Ressam.
After the terrorist attacks that occurred on September 11,
2001, Ressam identified Zacarias Moussaoui from a photo-
graph as an individual he had met at the Khalden training
camp. Ressam also provided information that assisted law
enforcement in determining that the shoe confiscated from
Richard Reid, the so-called “Shoe Bomber,” was a complete
device that needed to be disarmed before being put on a plane
for transport to a lab for analysis.
Relying on Ressam’s continued cooperation, on October
26, 2001, the United States Attorney for the Southern District
of New York filed a complaint against Samir Ait Mohamed.
Ressam was aware that he would figure as a prominent Gov-
ernment witness in that case.
By November 28, 2001, six months after entering into the
cooperation agreement with the United States Attorney, Res-
sam began showing reluctance to discuss certain matters. FBI
Special Agent Humphries, who worked with Ressam from the
commencement of his cooperation with the Government, tes-
tified that in a June 23, 2001 interview, Ressam had talked
with him at length about Nacer Hamaidi, an individual in
Vancouver, British Columbia, who had assisted Ressam in:
obtaining fraudulent Canadian social security numbers; driv-
ing Ressam to the DMV for the purpose of obtaining a driv-
er’s license in a fraudulent name, the Benni Antoine Noris
name; driving him to the Royal Bank, where he opened an
account under the Benni Antoine Noris name; driving Ressam
to the downtown Vancouver business licensing office where
he was able to apply for and obtain the Benni import/export
license. Ressam explained to Agent Humphries that Hamaidi
advised him on an individual living in Alberta, Canada, who
19794 UNITED STATES v. RESSAM
worked for the DMV, which is privatized in Alberta, and who
for a sum of $500 furnished Mr. Ressam with a true Alberta
driver’s license in the name Benni Antoine Noris. That license
was subsequently surrendered to the Quebec driver’s license
authority to obtain a Quebec driver’s license in that name.
Hamaidi knew that Ressam had been to the training camps
because he drove him to the bus station the night he left Can-
ada to go to Afghanistan for training. And he was the first
person in Vancouver Ressam met and called upon when he
came back into North America from Afghanistan training
camps.
This information was passed on to Canadian authorities
who were critically interested in trying to ensure that they
could identify individuals who may be in a position to assist
criminals intent on carrying out attacks upon the United
States. When officers from the Royal Canadian Mounted
Police (“RCMP”) traveled to the United States to interview
Ressam in late 2001 in connection with their ongoing investi-
gation of Nacer Hamaidi, however, Ressam had decided that
he would no longer discuss Hamaidi. Agent Humphries testi-
fied that the RCMP officers were disappointed that Ressam
was not staying consistent with information he had previously
provided. Agent Humphries intervened and spoke to Ressam
but Ressam did not want to discuss Hamaidi. Agent Humph-
ries testified that this was the first time there was a disconnect
in the rapport with Ressam.
Between September 11, 2001 and February 11, 2002, Res-
sam met with Government agents on approximately 15 occa-
sions, including his participation in a deposition hearing in
New York related to prosecutions taking place against crimi-
nal defendants in Germany. On February 11, 2002, nine
months after Ressam began his cooperation with the Govern-
ment, Ressam’s counsel met with members of the United
States Attorneys’ Office and sought to renegotiate the terms
of the parties’ cooperation agreement. According to Ressam’s
counsel, he was suffering from anxiety related to his impend-
UNITED STATES v. RESSAM 19795
ing sentence, his conditions of confinement were compromis-
ing his physical and mental well-being, and he wanted
closure. The prosecution responded to Ressam’s complaint
about the conditions of his confinement in the FDC SeaTac
Special Housing Unit by reminding him that these conditions
were influenced by the nature of his criminal acts and the seri-
ous charges for which he now stands convicted. The prosecu-
tion offered to assist Ressam in getting into the Witness
Security Program, designed for prisoners in federal custody,
which could result in a less onerous housing situation for Res-
sam, albeit at some distance from Seattle. Ressam declined to
take the prosecution’s offer.
In response to Ressam’s request to renegotiate the terms of
his cooperation agreement, the prosecution stated that Res-
sam’s cooperation to date was not of a nature to lead them to
consider dissolving the 27 year sentence recommendation
floor. The prosecution also noted that based on the coopera-
tion to date, they would not recommend a sentence in the 27
year range. The prosecution stated, however, that its final rec-
ommendation would reflect Ressam’s further efforts to coop-
erate in future debriefing sessions and in providing testimony.
Considering Ressam’s sentencing exposure, the prosecution
added that it was in Ressam’s interest to fulfill his promised
cooperation and earn a departure motion.
The district court granted several sentencing continuances
to allow Ressam to cooperate further with the Government.2
2
Ressam was originally scheduled to be sentenced on June 28, 2001. On
June 18, 2001, just prior to Ressam entering into the cooperation agree-
ment with the prosecution, the district court continued the sentencing to
July 25, 2001. On July 5, 2001, the district court continued Ressam’s sen-
tencing to September 20, 2001. On September 7, 2001, sentencing was
continued to February 14, 2002. On December 13, 2001, sentencing was
continued to April 3, 2002. On December 19, 2001, sentencing was res-
cheduled for March 29, 2002. On March 13, 2002, the prosecution moved
for a nine-month continuance to allow Ressam “the opportunity to fulfill
the terms of his promised cooperation.” Ressam did not object to the pros-
ecution’s request for a nine-month continuance. The district court contin-
ued the sentencing to March 13, 2003. It was later rescheduled to February
26, 2003.
19796 UNITED STATES v. RESSAM
Ressam continued cooperating until early 2003. Over the
course of his two-year cooperation, he provided 65 hours of
trial and deposition testimony, and 205 hours of proffers and
debriefings. Ressam 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.
On February 19, 2003, the prosecution filed a motion for a
continuance of Ressam’s sentencing and requested an
adjournment pursuant to the terms of his cooperation agree-
ment with the Government. The prosecution argued that the
request was reasonable and pointed out that Ressam’s co-
conspirator, Abdelghani Meskini, another cooperating defen-
dant who pleaded guilty and testified against Ressam at trial,
was continuing to provide the Government with valuable
information, and there were no plans to sentence him any time
soon. The prosecution reminded the district court that it had
offered over a year earlier to transfer Ressam to another
prison to address the adverse impact his conditions of con-
finement may be having on his state of mind, but his counsel
had objected to such a transfer. The prosecution further
informed the district court that, relying on Ressam’s promise
to cooperate, Abu Doha had been ordered extradited by the
Magistrate Court in London to the United States for prosecu-
tion. Also relying on Ressam’s promise to cooperate, the
Government was in the process of extraditing Samir Ait
Mohamed from Canada. The prosecution stated in its motion
that it had not yet decided on its position with respect to a
§ 5K1.1 motion and that if forced to make a motion now, the
prosecution would likely make a sentencing recommendation
calling for a considerably longer period of incarceration that
we might if Ressam had completed his promised cooperation.
UNITED STATES v. RESSAM 19797
On February 26, 2003, the district court held a hearing on
the prosecution’s motion for a continuance. At the hearing,
the district court asked the prosecution how it would respond
if the court were to grant their continuance conditioned upon
the immediate filing of a 5K motion for a downward depar-
ture based upon Ressam’s cooperation. That same day, the
prosecution filed a motion pursuant to U.S.S.G. Section
5K1.1, seeking a sentence below the otherwise applicable
guideline range based on Mr. Ressam’s substantial assistance
in the case of United States v. Mokhtar Haouari, a matter
prosecuted in the Southern District of New York in the sum-
mer of 2001. Haouari, 2001 WL 1154714, at *2. The district
court set a status conference for October 2003.3 Despite the
§ 5K1.1 motion, however, Ressam indicated he was unwilling
to continue cooperation. By April 2003, he refused to provide
a written statement to British officials concerning an individ-
ual who was a member of his own terror cell.
Concerned about Ressam’s state of mind and demeanor, in
October 2003 Ressam’s counsel consulted with Dr. Stuart
Grassian, a Board-certified psychiatrist specializing in evalu-
ating the psychological effects of stringent conditions of
imprisonment. Dr. Grassian met with Ressam in November
2003 and concluded that his conditions of confinement played
a very significant role in explaining the deterioration of his
state of mind. In February 2004, Dr. Grassian met in New
York City with Ressam’s counsel, members of the United
States Attorneys’ Office, and behavioral science experts from
the FBI. It was decided that Ressam would be moved to a
prison environment that would afford him much more envi-
ronmental, social, and occupational stimulation. The transfer
was effected in June 2004. Dr. Grassian met with Ressam
again in October 2004 and observed that he appeared to be
much less tense, more relaxed, and his thinking was strikingly
3
The scheduled status conference was continued several times and
finally occurred on July 9, 2004. On that date, sentencing was scheduled
for February 17, 2005. It was later continued to April 27, 2005.
19798 UNITED STATES v. RESSAM
clearer. Dr. Grassian reported that Ressam realized that he
had made a solemn promise to cooperate, and that his refusal
to continue to testify and speak with the Government could
likely have serious adverse consequences in regard to his sen-
tence and his custody status. Nevertheless, by November
2004, Ressam’s counsel made it clear that his cooperation was
finished and that he wanted to be sentenced.
A sentencing hearing was held on April 27, 2005. The par-
ties each filed sentencing memoranda. Contrary to the terms
set forth in the June 23, 2001 cooperation agreement, Ressam
requested a sentence of 150 months imprisonment. Ressam’s
position was that the starting point should be the prosecu-
tion’s pre-trial plea offer of 25 years, rather than the Sentenc-
ing Guidelines range of 65 years to life. The prosecution
recommended a sentence of 35 years imprisonment, arguing
that by breaching his agreement with the United States Attor-
neys’ Office, Ressam had effectively terminated at least two
criminal cases of vital interest to national security.
The prosecution acknowledged that Ressam had provided
valuable assistance to the United States and to foreign author-
ities. For that reason, despite Ressam’s breach of the coopera-
tion agreement, the prosecution recommended a 35-year
sentence, which was a substantial reduction from the 65 year
bottom of the otherwise applicable Guidelines range that Res-
sam would face absent cooperation.
Agent Humphries, who was involved throughout the dura-
tion of Ressam’s cooperation, testified concerning the infor-
mation received from Ressam and its usefulness. Agent
Humphries stated that Ressam’s information was helpful in
that it provided a personal account of his matriculation from
North America through Europe to Pakistan through safe-
houses into Afghanistan. Agent Humphries testified that most
of the information Ressam provided to the FBI had previously
existed within the U.S. intelligence community in classified
realms, but Ressam served as an unclassified vehicle, which
UNITED STATES v. RESSAM 19799
the FBI could use to relay the previously classified informa-
tion to other law enforcement and intelligence services
throughout the world. Additionally, the prosecution filed a
summary of debriefings, proffers, and testimony provided by
Ressam in support of the sentencing memorandum to be filed
by Ressam on a later date.
At the sentencing hearing, Ressam argued that his coopera-
tion was worth a greater reduction in his sentence. Ressam
argued that he ceased cooperating, in part, because he was
having trouble remembering details. Ressam submitted a psy-
chiatric report prepared by Dr. Grassian wherein he opined
that the combination of solitary confinement and repeated
interrogations had a negative impact on Ressam’s mental
health. Dr. Grassian further stated that Ressam’s history pro-
vided strong evidence that he would not be a danger to our
community. Dr. Grassian also noted in his report that Ressam
wondered if the Government might be willing to let him live
in the United States after his release from prison. Relying on
Dr. Grassian’s report, Ressam argued that he was experienc-
ing some very serious cognitive issues.
In assessing Ressam’s cooperation, the district court com-
mented that the United States Attorney’s pre-trial offer of a
sentence of 25 years “might have some relation to the post-
trial assessment of the case with a level of cooperation.” Sen-
tencing Hr’g Tr. at 15, April 27, 2005.
The district court stated to Ressam’s counsel:
One of the things that baffles me, Mr. Hillier, is I
made it clear in an in-chambers conference with you
and the government that I wanted to be able to give
Mr. Ressam as much credit as I could for coopera-
tion. And that, what happened between that session,
which was a month ago or a few weeks ago, and the
time of this sentencing, could be translated into years
of time. And I’m mystified that he insists upon going
19800 UNITED STATES v. RESSAM
ahead with the sentencing today, rather than waiting
to see what happens with Doha and the Canadian
case. Can you shed any light on that, without violat-
ing your privilege?
Id. at 106-07. The district court also commented that “it
strikes me that a lot of the details that he’s not remembering
now are things that one would not forget.” Id. at 109. At the
district court’s urging, Ressam asked for a three-month con-
tinuance of the sentencing hearing to allow him to consider
whether he was willing to cooperate further in the prosecu-
tions of Doha and Mohamed. The prosecution objected, argu-
ing that Ressam should decide then and there whether he was
willing to cooperate fully, and that it was disingenuous to
believe that his memory would suddenly improve. The district
court concluded that Ressam’s reaction to the request for con-
tinued cooperation suggested “there’s reason for optimism
that his cooperation will improve.” Id.
On July 27, 2005, the district court held a sentencing hear-
ing and heard argument from both sides, which largely mir-
rored the arguments presented at the April 27, 2005 hearing.
The Court sentenced Ressam to 22 years imprisonment.
Ressam appealed from his conviction for carrying an explo-
sive during the commission of a felony. United States v. Res-
sam, 474 F.3d 597 (9th Cir. 2007). In a cross-appeal, the
prosecution challenged Ressam’s sentence as unreasonable in
light of his decision to cease cooperating and to recant his
prior statements. Id. This Court reversed the conviction for
carrying explosives during the commission of a felony,
vacated Ressam’s sentence, and remanded for resentencing,
without addressing the merits of the prosecution’s arguments
as to the reasonableness of the sentence.4 Id. The United
4
This Court vacated the sentence on the ground that the reversal of the
conviction for Count Nine would require a new sentencing hearing. Res-
sam, 474 F.3d at 604. It declined to address the merits of the Govern-
UNITED STATES v. RESSAM 19801
States Supreme Court reversed this Court’s decision that the
prosecution had failed to prove each of the elements of the
crime of carrying explosives during the commission of a fel-
ony. United States v. Ressam, 128 S. Ct. 1858 (2008). On
remand, this Court vacated the sentence and remanded for
resentencing because the district court had failed to determine
the applicable Guidelines range, as required under United
States v. Carty, 520 F.3d 984 (9th Cir. 2007) (en banc), cert.
denied sub nom. Zavala v. United States, 128 S. Ct. 2491
(2008). United States v. Ressam, 538 F.3d at 1167 (9th Cir.
2008).
C
While the matter was on appeal, on November 11, 2006,
Ressam sent a letter to the district court recanting the testi-
mony he provided in the trial of Haouari. Ressam stated:
I write this letter to you in regard to “the allegation”
of the prisoner “Mr. Hassan Zamiry” [also spelled
Ahcene Zemiri] who is in Guantanamo prison in the
Island of Cuba.
ment’s argument as to the reasonableness of Ressam’s sentence in part
because:
the law applicable to sentencing is in flux. We are rehearing two
cases en banc, United States v. Carty, 453 F.3d 1214 (9th Cir.
2006) reh’g en banc granted, 462 F.3d 1066 (9th Cir. 2006), and
United States v. Zavala, 443 F.3d 1165 (9th Cir. 2006) reh’g en
banc granted, 462 F.3d 1066 (9th Cir. 2006), and the United
States Supreme Court has granted writs of certiorari in Claiborne
v. United States, 127 S. Ct. 551 (Nov. 3, 2006) (No. 06-5618),
and Rita v. United States, 127 S. Ct. 551 (Nov. 3, 2006) (No. 06-
5754), which will have a good deal to say about the sentencing
process in the wake of United States v. Booker, 543 U.S. 220
(2005).
Id.
19802 UNITED STATES v. RESSAM
The allegation: Is that Mr. Hassan Zamiry had
provided aid and support for the operation I carried
out. This is not right, it is false.
...
When I dealt with Prosecutor at the beginning, I
was in shock and had a severe psychological disor-
der as I result [sic] of the court results. I was not sure
about m[y] statements.
...
Mr. Hassan Zamiry is innocent and has no relation
or connection to the operation I was about to carry
out. He also did not know anything about it and he
did not assist me in anything.
Ressam had previously claimed that Ahcene Zemiri provided
him money and a video camera to aid in Ressam’s plot, and
that Zemiri was going to assist him in an armed robbery that
was to be committed in Montreal to obtain funds for the plan.
When Ressam began cooperating with the Government,
Zemiri fled from Canada and was later captured in Afghani-
stan and brought to Guantanamo as a prisoner based, at least
in part, on Ressam’s statements. Zemiri’s habeas petition is
pending before the United States District Court for the Dis-
trict of Columbia. See Zemiri v. Obama, No. 04-cv-2046
(D.D.C. filed Nov. 19, 2004).
Similarly, in a letter dated March 28, 2007 to the United
States Attorneys’ Office, Ressam purported to recant his pre-
vious testimony against Haouari. In the letter, Ressam claims
that he was not mentally competent when he testified against
Haouari and that Haouari “is an innocent man.” Haouari v.
United States, 510 F.3d 350, 352 (2d Cir. 2008). Haouari sub-
mitted Ressam’s letter as “newly discovered evidence” suffi-
cient to warrant the filing of a second or successive 28 U.S.C.
UNITED STATES v. RESSAM 19803
§ 2255 motion. Id. Haouari’s motion pursuant to § 2255 was
denied. Id.
D
At the resentencing hearing, the district court began by cal-
culating the applicable Sentencing Guidelines range for Res-
sam’s crimes of conviction at 65 years to life, including a ten-
year mandatory prison sentence for Count Nine. Before
imposing its sentence, the district court heard from the parties
regarding the sentence it should impose in conformity with
this Court’s mandate.
Appearing in pro se, Ressam told the district court that he
wished to recant his testimony against his co-conspirator
Maktar Haouari, and all statements made before the grand
jury implicating Abu Doha and Samir Ait Mohamed, two
known terrorists considered to be “major players” in the al-
Qaeda network. Ressam made the following statement before
the district court at his sentencing hearing:
I suffered severe shock after the trial and I lost my
mental faculty and I did not know what I was saying.
The government attorney and the investigator, they
know about my mental condition that I was going
through, and about my mental faculty and the proce-
dure exposed to their own interests. They interpret
some of my statements to suit their interests. And the
statements that was put in my mouth, which I said
yes, because — due to the extreme mental exhaus-
tion I was going through. I also am subject of pres-
sure put upon me by the attorneys and the
investigators.
The evidence presented in court should be
obtained from a solid source that cannot be doubted.
But if the evidence and the statements are obtained
from dubious sources or under pressure of a threat or
19804 UNITED STATES v. RESSAM
from a mental incompetent source it should not be
admitted. And that is the situation I was in.
I sent in the past a letter to the government attor-
ney Joe Bianco, in which I retrieved all my state-
ments that I gave in the investigation in the past; all
those I gave during the testimony of Makhtar Hao-
uari in the New York court because I neither proceed
my mental faculties [sic] or I know what I was say-
ing.
The New York judge was suspicion of my letter,
and he thought that I was doing that because — and
I did not because in order — He thought that I was
doing that because I had nothing to lose and because
I was already tired [sic]. I did not that in order to win
or lose. First, I did that because I was not mentally
competent and I did not know what I was saying.
Second, I did that because — in the presence of that
judge. I retract all. I repeat, all of the statements that
I made in the past and do not want my word counted
in my trial. So sentence me to life in prison or as you
wish. I have no objection to your sentencing.
I want from you and from the New York justice
to take another look as to Mokhtar Haouari case.
Sentencing should set when the evidence at hand is
absolute, and look if the evidence is in doubt it
would be preferable to rescind the decision. I go to
different subject.
I will move to case about Abu Doha and Samir
Mohamed. Previously the government attorney cal-
led me, Bruce, about to testify in the case of Abu
Doha and Samir Mohamed in front of a jury in New
York. At the beginning I refused, and then I accept
because I could not find an alternative to that. And
UNITED STATES v. RESSAM 19805
also in order to appear at the earliest possible time in
court for my sentencing.
The later reason will affect the case of Abu Doha
and Samir Mohammed and cause their cases to be
dismissed in America.
When I appeared in front of the jury in New York
I retrieved almost all the statements I made in the
past as to Abu Doha and Samir Mohammed. I indi-
cate in my earlier statement because I did not know
what I was saying.
Sentencing Hr’g Tr. at 10-11, December 3, 2008. Ressam
concluded by stating that he had nothing to say about his trial
and asked the district court to “[s]entence me to life in prison
or anything you wish. I will have no objection to your sen-
tence.” Id. at 12.
In its argument, the prosecution reiterated the points raised
in its November 28, 2008 sentencing memorandum and rec-
ommended that Ressam serve a term of life imprisonment,
based upon his further recantation and attempts to distance
himself from his earlier cooperation. The prosecution argued
that the sentence imposed needs “to protect the public from
further crimes of the defendant.” It also stated:
Ressam’s arrest on December 14, 1999, was not
the result of a sudden lapse of judgment. It was the
culmination of years of planning and work, all aimed
at causing as much harm to the United States as he
could possibly inflict. Following his conviction in
April 2001, Ressam claimed that after he observed
the fairness with which the Court treated him
throughout the trial, he had a change of heart [and
that] he was “firmly against” terrorist operations in
America and around the world.
19806 UNITED STATES v. RESSAM
Ressam’s change of heart was short-lived. Ressam
has provided no indication that he has repudiated the
goals of terrorists to inflict harm on the United
States. His decision to end cooperation raises the
specter that he continues to pose a real and serious
threat to the United States. Ressam’s more recent
decision to affirmatively help identified terrorists
escape responsibility for their actions raises even
more serious concerns. At this point in time, this
Court [must] address the most fundamental question:
at what age would Ressam no longer pose a threat to
the people of the United States.
Government’s Sentencing Br. at 23-24, November 28, 2008.
In this same vein, in addressing Ressam’s challenge to the
enhanced criminal history score required under U.S.S.G.
§ 3A1.4, the prosecution urged the district court to consider
that “all of the crimes of which Ressam was charged and con-
victed were directed at achieving his goal of placing a bomb
at [LAX].” As the prosecution pointed out in its sentencing
memorandum:
Congress and the Sentencing Commission had a
rational basis for concluding that an act of terrorism
represents a particularly grave threat because of the
dangerousness of the crime and the difficulty of
deterring and rehabilitating the criminal, and thus
that terrorists and their supporters should be inca-
pacitated for a longer period of time.
Id. at 19 (citing United States v. Meskini, 319 F.3d 88, 92 (2d
Cir. 2003) (emphasis added)).5 The prosecution argued that
the district court should
5
In Meskini, the Second Circuit addressed the question whether the pro-
vision of the Guidelines increasing both the offense level and the criminal
history category for a felony involving an act of terrorism violated
Meskini’s right to due process by impermissibly “double counting” the
UNITED STATES v. RESSAM 19807
impose a sentence that affords adequate deterrence
for criminal conduct and protects the public from
further crimes of this defendant.
The unfortunate reality of today’s world, made so
abundantly clear last week in Mumbai, is the possi-
bility of future terrorist attacks is a continuing and
genuine threat. The sentence this Court imposes on
Mr. Ressam must not only act as a deterrent to Mr.
Ressam and his future actions, but equally important
they must also act as a deterrent to future potential
terrorists who are contemplating actions against the
United States. It must broadcast the clear message to
extremists that when they are caught and convicted
they will suffer serious consequences.
During the 2005 sentencing this Court noted that
this was probably the most significant sentence any-
body ever faced in your long tenure on the bench. I
assume as we sit here three years later your opinion
hasn’t changed. I fully agree with the Court’s assess-
ment. The Court must send this defendant away for
a long enough period of time so that there is no
chance he will ever target innocent victims again.
In addition, the sentence must also send an
unequivocal message to extremists that there is a
same criminal act. The Second Circuit rejected the claim. The Second Cir-
cuit explained that:
Congress and the Sentencing Commission had a rational basis for
creating a uniform criminal history category for all terrorists
under § 3A1.4(b), because even terrorists with no prior criminal
behavior are unique among criminals in the likelihood of recidi-
vism, the difficulty of rehabilitation, and the need for incapacita-
tion.
Id. (emphasis added).
19808 UNITED STATES v. RESSAM
horrendous price to pay for targeting the United
States . . . .
The Court’s July 2005 sentence, if reimposed,
would mean that this defendant would be released in
ten years, he would be out of jail in 2018. He would
be 51 years of age. Think about the defendant’s life
prior to the arrest in this case, his fanatical commit-
ment to jihad, his single-minded pursuit to attack the
United States. Think about his recent decisions to
help Abu Doha, Samir Mohamed, his most recent
decision to affirmatively help Hassam Zemiri and
Adil Charkaoui, and as of today his attempt to with-
draw even his cooperation in the trial against Hao-
uari.
Sentencing Hr’g Tr. at 30-31, December 3, 2008. In its sen-
tencing memorandum, the prosecution summarized the value
of Ressam’s cooperation generally as
providing testimony in the prosecutions of individu-
als charged before he began his cooperation (such as
the testimony he provided during the trial of Mokh-
tar Haouari), providing information about explosive
devices that was very helpful in determining the
nature of the device found in Richard Reid’s shoe
and providing information that corroborated the
information already known by the United States and
foreign governments.
To be sure, the information about trade craft, ter-
rorism organizations, and training camps that Res-
sam provided was in an unclassified form. Thus this
information could be broadly disseminated to law
enforcement officers both in the United States and
abroad in order to broaden their base of knowledge.
While this was of significant value, the information
provided was not unique to Ressam.
UNITED STATES v. RESSAM 19809
Perhaps his most valuable information — that
leading to the charges against Doah and Mohamed
— cannot be credited. Ressam undermined that
value when he chose to end his cooperation leading
to the dismissal of these charges. . . . [H]e also
undermined his other cooperation by recanting ear-
lier statements.
Government’s Sentencing Br. at 17-18, November 28,
2008.
At the December 3, 2008 sentencing hearing, the Govern-
ment explained that Ressam’s recantation of his prior state-
ments regarding his terrorist training and the activities of
other terrorists, and his decision to cease cooperating, forced
the Government to dismiss criminal charges against Doha and
Mohamed. The prosecution explained that as a high-ranking
al Qaeda member with close ties to Osama Bin Laden, Abu
Doha is, without question, one of the most dangerous terror-
ists ever charged by the United States. After the dismissal of
the charges against Doha in the United States, he was released
from custody and is currently living in England.
The prosecution argued that Ressam’s recantation repre-
sents his attempts to affirmatively assist known terrorists and
is a strong signal to any objective observer that Ressam’s
long-held allegiance to radical terrorist beliefs have returned,
and that he once again unequivocally is a danger to innocent
people throughout the world. The prosecution also argued that
Ressam’s sentence should reflect the seriousness of the terror-
ist offenses for which he was convicted, and “send the defen-
dant away for a long enough period of time so there is no
chance he will ever target innocent victims again.”
The prosecution pointed out that in response to the sentence
of 22 years the district court ordered in its earlier sentencing
order, Ressam has since recanted his earlier statements made
pursuant to the cooperation agreement with the United States
19810 UNITED STATES v. RESSAM
Attorneys’ Office. After Ressam recanted, the Government
argued that if it had “known in May of 2001 what [it] know[s]
today, how this was going to end up, [it] never would have
entered into cooperation with this defendant. Any benefit he
provided [the Government] initially has been substantially
outweighed by his reversal, and [he] now attempts to use his
position as a cooperating defendant to help his fellow terror-
ists.”
After hearing from the parties, the district court ordered as
follows:
The Ninth Circuit has made clear that the Sentenc-
ing Guidelines are only one factor to be considered
among those factors set forth in 18 U.S.C. Section
3553(a), in determining an appropriate sentence. I
may not presume that the Guidelines range is reason-
able. Nor should the Guidelines factor be given more
or less weight than any other factor. Accordingly, I
have also considered the other Section 3553 factors
in arriving at the sentence I am imposing today.
On the one hand I recognize the need for the sen-
tence imposed to reflect the seriousness of the
offenses Mr. Ressam has committed, to provide just
punishment for those offenses, and to promote
respect for the law. Mr. Ressam’s crimes, if carried
to their intended conclusion, would have resulted in
the deaths and injuries of hundreds of innocent peo-
ple and instilled fear across the country and even the
world. Fortunately, Mr. Ressam’s arrest prevented
such an outcome. Because of the work of an atten-
tive Port Angeles Customs Inspector, Mr. Ressam’s
crimes did not lead to loss of life or limb, nor
destruction of property. Nevertheless, the serious-
ness and heinousness of the act of terrorism Mr. Res-
sam was carrying out at the time of his arrest cannot
be understated.
UNITED STATES v. RESSAM 19811
On the other hand, I recognize Mr. Ressam’s
extensive and valuable cooperation in the fight
against terrorism during the first two years after his
trial. Although it ended unwisely and prematurely,
Mr. Ressam’s cooperation, unique in its breadth and
scope, weighed heavily in my initial sentencing deci-
sion and its import has not changed in my analysis
today. The government’s 5K1.1 motion filed in Feb-
ruary 2003 requested downward departure from the
Sentencing Guidelines based on Mr. Ressam’s sub-
stantial assistance in the case of United States versus
Mokhtar Haouari, a matter prosecuted in the South-
ern District of New York in the summer of 2001 and
resulting in the conviction of Mr Haouari.
Mr. Haouari was sentenced in 2002 to a term of
24 years’ imprisonment. Mr. Ressam’s testimony at
the trial connected Mr. Haouari to the terrorist plot,
of which Mr. Ressam himself was a part, to bomb
the Los Angeles International Airport on New
Year’s Day 2000. In addition to his substantial coop-
eration in that case Mr. Ressam also testified before
a German tribunal on behalf of the German govern-
ment in the trial against Mounir Motassadeq . . . .
[i]n December 2002, which resulted in a conviction
and sentence of 15 years.
The Court recognizes that Mr. Ressam’s later
decision to end his cooperation resulted in the dis-
missal of two pending prosecutions and the retrac-
tion of certain of his statements against two other
terrorist suspects. However, Mr. Ressam’s coopera-
tion, while it lasted, provided the United States gov-
ernment and the governments of Great Britain,
Spain, Italy, Germany, France and Canada extensive
intelligence that proved to be invaluable in the fight
against international terrorism. The defendant’s sen-
tencing memorandum submitted before the July
19812 UNITED STATES v. RESSAM
2005 sentencing hearing summarizes the far-
reaching impact of Mr. Ressam’s cooperation on the
investigations and prosecutions of terrorist activities
in this country and abroad.
Downplaying the cooperation that Mr. Ressam
provided the government would diminish the likeli-
hood of future cooperation by other apprehended ter-
rorists. Further, doing so would not be fair to Mr.
Ressam. After his trial he told me that the fairness of
his trial was not what he expected, given what he
had done. The fair treatment that Mr. Ressam
received in his public trial was a major influence on
his decision to break with his past and cooperate, a
choice that undoubtedly saved innocent lives. In
making that decision, he put his own life at risk. In
addition, he has spent many years in solitary con-
finement in a country far from his family and loved
ones and will, by any measure, be sacrificing a large
portion of his life to pay for his crimes.
I believe that the sentence I am imposing today
will serve as a deterrent while promoting respect for
the American rule of law by demonstrating the fair-
ness of our federal court system rather than merely
its punitiveness.
In addition, I have taken into account Mr. Res-
sam’s history and characteristics. Reading Mr.
Hilier’s 2005 sentencing memorandum and the
report from Dr. Grassian leads me to the conclusion
that Mr. Ressam’s life history and personal charac-
teristics support favorable sentencing consideration.
His life and reasons for involvement in his crime do
not support a conclusion that he is a good person, but
it also deserves consideration. Mr. Hilier describes a
quiet, solitary and devout man whose true character
is manifest in his decision to cooperate. Through the
UNITED STATES v. RESSAM 19813
course of the trial and immediately thereafter, Mr.
Ressam wrestled with what he had done and why. As
Mr. Hilier put it, Mr. Ressam determined that violent
action brought shame to the concerns he was trying
to promote, and that as a result what he was doing
was harmful in all respects.
I have also taken into account the nature of Mr.
Ressam’s crimes required that he be held in solitary
confinement for upwards of four years, if not for the
likely entirety of his sentence. This isolation is exac-
erbated by the fact that he does not speak English
and has no opportunity for visits by friends and fam-
ily abroad. These harsh conditions of confinement
necessarily set Mr. Ressam’s situation apart from
that of the typical criminal sentencing. I am also per-
suaded that Mr. Ressam’s health deteriorated some-
what from the isolation of his confinement and that
the repetitive, intensive questioning to which he sub-
mitted, and that these conditions contributed to the
early termination of his cooperation.
Moreover, I have considered the need to avoid
unwarranted sentence disparities among defendants
with similar records who have been found guilty of
similar conduct.
Sentencing Hr’g Tr. at 35-38, December 3, 2008.
The district court discussed “other terrorism-related prose-
cutions around the country,” and “a recent study of 124 defen-
dants sentenced in terrorism trials in American federal courts
since September 12, 2001” which concluded that “the average
term of imprisonment was a little over eight years.” Id. at 39.
The district court stated that these cases “did not influence
[its] decision in determining an appropriate sentence in this
case.” Id. The district court discussed sentences in other ter-
rorist cases, none of which involved attacks, or attempted
19814 UNITED STATES v. RESSAM
attacks within the United States, “to provide a backdrop
against which Mr. Ressam’s conviction and sentence may be
viewed.” Id. The court explained:
I note that none of the defendants in these cases
cooperated as extensively, providing as much valu-
able information to the fight against terrorism as Mr.
Ressam did. As I emphasized earlier, Mr. Ressam’s
cooperation provided authorities in this country and
abroad with an unprecedented view of the inner
workings of al Qaeda that almost certainly thwarted
future attacks. In fact, it was the extent of Mr. Res-
sam’s cooperation in the conviction of one of his co-
conspirators that resulted in the government filing a
5K1.1 motion, specifically requesting that Mr. Res-
sam be sentenced below the applicable guideline
range.
Therefore, based on all the factors listed in 18
U.S.C. Section 3553, I hereby reimpose a sentence
of 22 years and a period of supervised release of five
years subject to the standard conditions, together
with those additional conditions set forth in the pre-
sentence report. I recognize that the sentence I am
imposing reflects a significant downward deviation
from the advisory guideline range. However, I
believe the factors I have examined on the record are
sufficiently compelling to support the degree of the
variance.
Id. at 41-42.
II
The Government appeals the sentence imposed on Ressam
by the district court. It argues that “[t]he sole issue presented
in this case is whether the sentence imposed on Ahmed Res-
sam is substantively unreasonable in light of the facts of this
UNITED STATES v. RESSAM 19815
case and the factors set forth in 18 U.S.C. § 3553(a).”6
(Appellant’s Opening Br. 36.) Specifically, the Government
6
Title 18 U.S.C. § 3553(a) requires that a sentencing court consider the
following factors:
(1) the nature and circumstances of the offense and the history
and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for
the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defen-
dant; and
(D) to provide the defendant with needed educational or
vocational training, medical care, or other correctional
treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established
for—
(A) the applicable category of offense committed by the
applicable category of defendant as set forth in the
guidelines . . .
(5) any pertinent policy statement . . .
(6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty
of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
18 U.S.C. § 3553(a).
Accordingly, in Carty, we instructed that “[t]he overarching statutory
charge for a district court is to ‘impose a sentence sufficient, but not
greater than necessary’ to reflect the seriousness of the offense, promote
respect for the law, and provide just punishment; to afford adequate deter-
rence; to protect the public; and to provide the defendant with needed edu-
cational or vocational training, medical care, or other correctional
treatment.” Carty, 520 F.3d at 991 (citing 18 U.S.C. § 3553(a)(1)-(2));
Gall v. United States, 552 U.S. 38, 50 n.6 (2007)).
19816 UNITED STATES v. RESSAM
argues that the sentence is substantively unreasonable because
the district court failed adequately to consider and weigh the
relevant § 3553(a) factors, including “the need [for the sen-
tence imposed] . . . to ensure the public is protected from
future crimes by this defendant.”7 (Id. at 51.)
The Government also argues that:
the [district] court’s stated reasons simply do not
establish the reasonableness of a sentence two-thirds
less than the low end of the advisory Guideline[s]
range for a defendant who was convicted after trial
of such extraordinary crimes, and then undermined
the prosecution of two terrorists about whom he pro-
vided information by refusing to finish his agreed
upon cooperation.
(Id. at 38.)
A
Ordinarily, when a sentence is appealed, “[o]n appeal, we
7
Thus, “[t]here is a procedural as well as a substantive element to this
argument.” United States v. Overton, 573 F.3d 679, 699 (9th Cir. 2009)
(concluding that appellant “allude[d] to procedural error by accusing the
district court of failing to address the § 3553(a) factors and adequately
explain the sentence imposed”); see also United States v. Paul, 561 F.3d
970, 974 n.2 (9th Cir. 2009) (“It is the procedural provisions of 18 U.S.C.
§ 3553(c) that require engagement with the [parties’] arguments . . . not
the substantive provisions of 18 U.S.C. § 3553(a).”). In its appeal, how-
ever, the Government has expressly waived any challenge to the proce-
dural correctness of the sentence imposed by the district court.
(Appellant’s Opening Br. 36) (“The Court must first determine whether
the district court committed significant procedural error, a claim not
raised in this appeal. The Court must then consider whether the sentence
is substantively unreasonable, the issue raised here.”) (citations omitted)
(emphasis added); (Appellant’s Reply Br. 5) (“A sentence is reviewed first
for procedural error, although none is alleged here.”) (citation omitted)
(emphasis added).
UNITED STATES v. RESSAM 19817
first consider whether the district court committed significant
procedural error, then we consider the substantive reasonable-
ness of the sentence.” Carty, 520 F.3d at 993. In Gall, the
Supreme Court instructed that:
[r]egardless of whether the sentence imposed is
inside or outside the Guidelines range, the appellate
court must review the sentence under an abuse-of-
discretion standard. It must first ensure that the dis-
trict court committed no significant procedural error,
such as failing to calculate (or improperly calculat-
ing) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors,
selecting a sentence based on clearly erroneous facts,
or failing to adequately explain the chosen sentence
— including an explanation for any deviation from
the Guidelines range. Assuming that the district
court’s sentencing decision is procedurally sound,
the appellate court should then consider the substan-
tive reasonableness of the sentence imposed under
an abuse-of-discretion standard. When conducting
this review, the court will, of course, take into
account the totality of the circumstances, including
the extent of any variance from the Guidelines range.
Gall, 552 U.S. at 51.
In this appeal the Government has elected not to argue that
the district court committed significant procedural errors.
Though the Government has identified many alleged missteps
by the district court in the course of sentencing, its opening
brief affirmatively states that procedural error is “a claim not
raised on this appeal.” Id.
[1] Ressam contends that as a result we are precluded from
considering procedural errors by the district court, citing the
decision of the Supreme Court in Greenlaw v. United States,
554 U.S. 237, 128 S. Ct. 2559 (2008). In that case the Eighth
19818 UNITED STATES v. RESSAM
Circuit sua sponte ordered the imposition of a longer criminal
sentence based on the failure of the district court to impose a
mandatory minimum sentence, which the court of appeals
identified as a plain error even though the Government had
not appealed the sentence. The sentence was before the court
of appeals because the defendant had challenged the sentence,
contending that it was too long. The Supreme Court held that
the court of appeals had erred by acting in the absence of a
Government appeal or cross-appeal. Greenlaw, 128 S. Ct. at
2570. But that is not the situation here. The Government has
appealed Ressam’s sentence. That it has elected to focus on
the substantive reasonableness of the sentence means that we
are not required to review for procedural errors, but it does
not mean that we are precluded from looking at the process
that produced that sentence.
That is especially true here, where the Government’s open-
ing brief on appeal complains about a number of actions or
failures by the district court that arguably constitute proce-
dural errors. See United States v. Overton, 573 F.3d 679, 699
(9th Cir. 2009) (reviewing for procedural error where appel-
lant challenged his sentence as substantively unreasonable but
“allude[d] to procedural error by accusing the district court of
failing to address the § 3553(a) factors and adequately explain
the sentence imposed”); United States v. Shaw, 560 F.3d
1230, 1238 (11th Cir. 2009) (reviewing for procedural error
even though the only contention on appeal was that the sen-
tence was substantively unreasonable). Notably, the Govern-
ment’s arguments in this case are largely grounded upon the
district court’s alleged failure adequately to consider and
weigh each of the relevant § 3553(a) factors, including “to
protect the public from further crimes of the defendant,” and
to explain its reasons for imposing a sentence 43 years below
the low end of the Sentencing Guidelines range. See Carty,
520 F.3d at 993 (holding that “[i]t would be procedural error
for a district court to fail to . . . consider the § 3553(a) factors
. . . or to fail adequately to explain the sentence selected,
UNITED STATES v. RESSAM 19819
including any deviation from the Guidelines range”) (citing
Gall, 128 S.Ct. at 596-97).
[2] It should not be surprising that a challenge to the sub-
stantive reasonableness of a sentence will, in at least some
cases, invite consideration of the process that produced the
sentence. How a decision is arrived at can often shed light on
the merit of the decision itself. Indeed, “substantive problems
. . . [can be] a product of the District Court’s procedurally
flawed approach.” United States v. Goff, 501 F.3d 250, 256
(3d Cir. 2007). In Carty we held that “[i]n determining sub-
stantive reasonableness, we are to consider the totality of the
circumstances, including the degree of variance for a sentence
imposed outside the Guidelines range.” Carty, 520 F.3d at
993. The totality of circumstances to be considered in deter-
mining substantive reasonableness may surely include an
examination of the sentencing process as a whole.
B
To better understand the relationship between alleged pro-
cedural errors and substantive unreasonableness, it would be
useful to analyze each of the two concepts in some detail.
1
In Carty, we addressed the question whether “the district
court imposed a procedurally flawed sentence by failing to
provide sufficient reasons for selecting a sentence at the bot-
tom of the Guidelines range rather than a lesser sentence.”
Carty, 520 F.3d at 995. We held that
[i]t would be procedural error for a district court to
fail to calculate — or to calculate incorrectly — the
Guidelines range; to treat the Guidelines as manda-
tory instead of advisory; to fail to consider the
§ 3553(a) factors; to choose a sentence based on
clearly erroneous facts; or to fail adequately to
19820 UNITED STATES v. RESSAM
explain the sentence selected, including any devia-
tion from the Guidelines range.
Id. at 993. We concluded that the district court committed no
procedural error in sentencing Carty to a within Guidelines
sentence because “[a]lthough the judge gave no explicit rea-
sons for [the sentence imposed], the arguments were straight-
forward and uncomplicated . . . .” Id. In a “typical case”
which is “neither complex nor unusual,” applying the Guide-
lines “will not necessarily require lengthy explanation” to
comply with proper sentencing procedure. Id. at 995. (citing
Rita v. United States, 551 U.S. 338, 127 S. Ct. 2456, 2468
(2007) (finding no error and holding that “given the straight-
forward, conceptually simple arguments before the judge, the
judge’s statement of reasons here, though brief, was legally
sufficient”)); see also United States v. Amezcua-Vasquez, 567
F.3d 1050, 1054 (9th Cir. 2009) (same).
[3] What Carty left unclear is whether a sentence is proce-
durally flawed where the district court fails to provide “suffi-
cient reasons” for selecting a sentence that is well below the
Sentencing Guidelines range, and where “the arguments [are
not] straightforward and uncomplicated,” and if so, what
explanation will be deemed “sufficient” or “adequate” to pass
procedural muster. Carty, 520 F.3d at 995. Based upon our
reading of Rita, Gall, and Carty, we conclude that such a sen-
tence would be procedurally flawed. We will now probe the
parameters of what constitutes a procedurally “sufficient” or
“adequate” explanation by a district court in imposing a sen-
tence in a complex or complicated case where the sentence
deviates significantly below the advisory Sentencing Guide-
lines range.
a
It is now well established that the district court must begin
a sentencing hearing “by determining the applicable Guide-
lines range.” Carty, 520 F.3d at 991. The Guidelines “range
UNITED STATES v. RESSAM 19821
must be calculated correctly,” as the Sentencing Guidelines
are “the starting point and the initial benchmark.” Id. (quota-
tions and citations omitted). “[F]ailing to calculate (or
improperly calculating) the Guidelines range” constitutes
“significant procedural error.” Gall, 552 U.S. at 51.
Recognizing that “a Guidelines sentence ‘will usually be
reasonable,’ ” we declined in Carty “to embrace a presump-
tion.” 520 F.3d at 994 (quoting Rita, 127 S. Ct. at 2465).
However, we held that when a sentencing “judge ‘decides that
an outside-Guidelines sentence is warranted, he must consider
the extent of the deviation and ensure that the justification is
sufficiently compelling to support the degree of the vari-
ance.’ ” Carty, 520 F.3d at 991 (quoting Gall, 128 S. Ct. at
597). As the Court explained in Gall, it is “uncontroversial
that a major departure should be supported by a more signifi-
cant justification than a minor one.” Gall, 552 U.S. at 50. This
is because “[w]hen a sentence is within the Guidelines range,
we know that ‘both the sentencing judge and the Sentencing
Commission . . . have reached the same conclusion’ that the
sentence is ‘proper.’ ” Carty 520 F.3d at 996 (Kozinski, C.J.,
concurring) (emphasis in original) (quoting Rita, 127 S. Ct. at
2463).
Thus, once the correct Guidelines range has been estab-
lished, “[t]he district court may not presume that the Guide-
lines range is reasonable.” Carty, 520 F.3d at 991. Rather,
“[t]he district court must make an individualized determina-
tion based on the facts.” Id. at 991. In reaching its sentence
decision, the “district courts must . . . remain cognizant of [the
Guidelines] throughout the sentencing process.” Gall, 552
U.S. at 50 n.6; see Carty, 520 F.3d at 991 (the Guidelines “are
to be kept in mind throughout the [sentencing] process”) (cit-
ing Gall, 128 S.Ct. at 596-97 n.6)).
Where the sentence imposed falls within the Sentencing
Guidelines range, it is reasonable to conclude that the district
court remained “cognizant” of the Sentencing Guidelines. The
19822 UNITED STATES v. RESSAM
harder question arises where, as here, the sentence falls signif-
icantly outside the Guidelines range. This raises two ques-
tions. First, are we to conclude that a procedural error has
been committed if it appears from the record that the district
court did not “remain cognizant of [the Sentencing Guide-
lines] throughout the sentencing process”? Gall, 552 U.S. at
50 n.6. Second, if the answer to the first question is “yes,”
what steps must a district court take to demonstrate that it has
“kept [the Sentencing Guidelines] in mind throughout the pro-
cess” and thus avoid committing such an error. Carty, 520
F.3d at 991.
[4] We answer the first question in the affirmative. Where
the district court imposes a sentence significantly outside the
Guidelines range, and it appears from the record that the dis-
trict court did not “remain cognizant of [the Sentencing
Guidelines] throughout the sentencing process,” Gall, 552
U.S. at 50 n.6, it has committed procedural error. To hold oth-
erwise would be to construe the Supreme Court’s instruction
in Gall as a suggestion rather than a requirement. Our reading
of Gall does not permit such an interpretation. See id. (“The
fact that § 3553(a) explicitly directs sentencing courts to con-
sider the Guidelines supports the premise that district courts
must begin their analysis with the Guidelines and remain cog-
nizant of them throughout the sentencing process.”). Accord-
ingly, in imposing a sentence significantly outside the
Guidelines range, there must be some indication in the record
that the district court had the Guidelines “in mind throughout
the process.” Carty, 520 F.3d at 991.
b
After determining the applicable Sentencing Guidelines
range, the district court must give the parties “a chance to
argue for a sentence they believe is appropriate.” Carty, 520
F.3d at 991. Failure to do so will constitute procedural error.
Gall, 552 U.S. at 50 n.6 (listing factors to be considered in
reviewing for procedural error).
UNITED STATES v. RESSAM 19823
c
“The district court should then consider the § 3553(a) fac-
tors to decide if they support the sentence suggested by the
parties.” Carty, 520 F.3d at 991 (citing 18 U.S.C.
§ 3553(a)(1)-(7); Gall, 128 S.Ct. at 596-97 n.6). “It would be
procedural error for a district court . . . to fail to consider the
§ 3553(a) factors.” Id. at 993.
d
A district court also commits procedural error if it
“choose[s] a sentence based on clearly erroneous facts.”
Carty, 520 F.3d at 993. “A finding is clearly erroneous when
although there is evidence to support it, the reviewing body
on the entire evidence is left with the definite and firm con-
viction that a mistake has been committed.” Concrete Pipe &
Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S.
Cal., 508 U.S. 602, 622 (1993) (internal quotation marks and
citation omitted). By way of example, in Levinson, the Third
Circuit concluded that the district court based its decision on
a clearly erroneous premise when it found that Levinson, who
was convicted of tax fraud involving a specific dollar loss to
the United States Treasury, had inflicted no financial harm on
the public. Levinson, 543 F.3d at 199.
e
Most important for purposes of review is the requirement
that the district court “adequately . . . explain the sentence
selected, including any deviation from the Guidelines range.”
Carty, 520 F.3d at 993. Failure to provide an adequate expla-
nation is procedural error. Id. at 992 (holding that “the district
court must explain [the sentence] sufficiently to permit mean-
ingful appellate review”). The explanation “is most helpful [if
it] come[s] from the bench, but adequate explanation in some
cases may also be inferred from the PSR [pre sentence report]
or the record as a whole.” Id. at 992.
19824 UNITED STATES v. RESSAM
As we explained in Carty, “[w]hat constitutes a sufficient
explanation will necessarily vary depending upon the com-
plexity of the particular case, whether the sentence chosen is
inside or outside the Guidelines, and the strength and serious-
ness of the proffered reasons for imposing a sentence that dif-
fers from the Guidelines range.” Id.
With regard to the district court’s consideration of the
§ 3553(a) factors, “[w]e assume that district judges know the
law and understand their obligation to consider all of the
§ 3553(a) factors.” Id. For this reason, “[t]he district court
need not tick off each of the § 3553(a) factors to show that it
has considered them.” Id. “Nor need the district court articu-
late in a vacuum how each § 3553(a) factor influences its
determination of an appropriate sentence.” Id. However,
“when a party raises a specific, nonfrivolous argument teth-
ered to a relevant § 3553(a) factor in support of a requested
sentence, then the judge should normally explain why he
accepts or rejects the party’s position.” Id. at 992-93 (citing
Rita, 127 S. Ct. at 2468) (“Where the defendant or prosecutor
presents nonfrivolous reasons for imposing a different sen-
tence . . . the judge will normally go further and explain why
he has rejected those arguments.”); see also Goff, 501 F.3d at
255 (“Although the District Court is not required either to
comment on every argument counsel advances or to make
findings as to each § 3553(a) factor, it nevertheless should
expressly deal with arguments emphasized by the parties.”).
Thus, other than addressing specific and nonfrivolous argu-
ments raised by the parties, a district court need not offer
much in the way of explanation to demonstrate that it has sat-
isfied this requirement in imposing a sentence within the advi-
sory Sentencing Guidelines. Carty, 520 F.3d at 992 (“A
within-Guidelines sentence ordinarily needs little explanation
. . . because both the Commission and the sentencing judge
have determined that the sentence comports with the
§ 3553(a) factors and is appropriate in the ordinary case.”).
UNITED STATES v. RESSAM 19825
We did not hold in Carty that a district court’s failure to
address nonfrivolous arguments raised by a party in support
of a requested sentence would constitute procedural error. It
is axiomatic, however, that if review of the reasonableness of
a sentence is hindered by the district court’s failure to address
specific arguments that are “tethered to a relevant § 3553(a)
factor in support of a requested sentence,” meaningful appel-
late review is not possible and the sentence is by definition
procedurally flawed. Id. at 992-93; see also Rita, 551 U.S. at
356 (“The sentencing judge should set forth enough to satisfy
the appellate court that he has considered the parties’ argu-
ments and has a reasoned basis for exercising his own legal
decisionmaking authority.”). This reasoning applies equally to
sentences both within and outside the advisory Guidelines
range.
f
In addition to the § 3553(a) factors, a district court may
also consider the defendant’s assistance in the investigation
and prosecution of another person who has committed an
offense. United States v. Zolp, 479 F.3d 715, 721 (9th Cir.
2007) (“[T]he district court did not err by considering Zolp’s
cooperation as part of its analysis under 18 U.S.C. § 3553(a)
rather than as part of its advisory guidelines calculation.”).
“The Guidelines ‘afford[ ] the sentencing judge’ wide ‘lati-
tude’ in evaluating the ‘significance and usefulness of the
defendant’s assistance,’ but direct courts to give ‘substantial
weight . . . to the government’s evaluation’ of that assistance.”
United States v. Awad, 371 F.3d 583, 586-87 (9th Cir. 2004)
(citing U.S.S.G. § 5K1.1(a)(1) & cmt. background); see also
U.S.S.G. § 5K1.1 cmt. n.3 (providing that “[s]ubstantial
weight should be given to the government’s evaluation of the
extent of the defendant’s assistance, particularly where the
extent and value of the assistance are difficult to ascertain”).
When determining the appropriate extent of a substantial-
assistance downward departure, the district court should con-
sider the following five factors:
19826 UNITED STATES v. RESSAM
(1) the court’s evaluation of the significance and use-
fulness of the defendant’s assistance, taking into
consideration the government’s evaluation of the
assistance rendered; (2) the truthfulness, complete-
ness, and reliability of any information or testimony
provided by the defendant; (3) the nature and extent
of the defendant’s assistance; (4) any injury suffered,
or any danger or risk of injury to the defendant or his
family resulting from his assistance; [and] (5) the
timeliness of the defendant’s assistance.
U.S.S.G. § 5K1.1(a). When imposing a sentence that is well
below the advisory Guidelines range pursuant to a § 5K1.1
motion, however, there must be some indication that the dis-
trict court’s departure is justified. See United States v. Haack,
403 F.3d 997 (8th Cir. 2005) (examining the reasonableness
of the sentence against the five factors outlined in U.S.S.G.
§ 5K1.1 and concluding that imposition of a 78-month sen-
tence was not justified where the Guidelines range was 180
months and the assistance the defendant provided consisted of
information regarding others who were either already under
indictment or were suspects); see also United States v. Live-
say, 525 F.3d 1081, 1093 (11th Cir. 2008) (vacating and
remanding sentence where the district court did not ade-
quately explain its assessment of Livesay’s cooperation or the
sentence imposed).
2
Once an appellate court has concluded that no procedural
error has occurred, it must review sentences for substantive
reasonableness. Carty, 520 F.3d at 993. “A substantively rea-
sonable sentence is one that is ‘sufficient, but not greater than
necessary’ to accomplish § 3553(a)(2)’s sentencing goals.”
United States v. Crowe, 563 F.3d 969, 977 n.16 (9th Cir.
2009) (quoting 18 U.S.C. § 3553(a)); see also United States
v. Vasquez-Landaver, 527 F.3d 798, 804-05 (9th Cir. 2008)
(affirming sentence as reasonable where the record shows the
UNITED STATES v. RESSAM 19827
district court considered the § 3553(a) factors and imposed a
sentence that was sufficient but no greater than necessary to
comply with § 3553(a)); United States v. Rodriguez-
Rodriguez, 441 F.3d 767, 771 (9th Cir. 2006) (same).
“The touchstone of ‘reasonableness’ is whether the record
as a whole reflects rational and meaningful consideration of
the factors enumerated in 18 U.S.C. § 3553(a).” United States
v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (quoting United
States v. Grier, 475 F.3d 556, 571 (3d Cir. 2007) (en banc);
see also United States v. Williams, 425 F.3d 478, 481 (7th Cir.
2005) (“[W]hat we must decide is whether the district judge
imposed the sentence he or she did for reasons that are logical
and consistent with the factors set forth in section 3553(a).”).
“In determining substantive reasonableness, we are to con-
sider the totality of the circumstances, including the degree of
variance for a sentence imposed outside the Guidelines
range.” Carty, 520 F.3d at 993.
With these standards in mind, we turn now to the case
before us.
III
The Government argues that based upon the unusual record
in this case, the district court has failed adequately to explain
its reasons for imposing a sentence “two-thirds less than the
low end of the advisory Guidelines range.” The Government’s
chief argument is that because Ressam is a trained terrorist
who has led a life of crime, devoted years of his life to plan-
ning, coordinating, and attempting to execute an attack on the
public that would result in massive destruction and death
within the United States, a longer sentence is needed to
accomplish the purposes of § 3553(a).
The Government argues that the district court overstated
the value of Ressam’s cooperation while giving little or no
19828 UNITED STATES v. RESSAM
weight to other relevant § 3553(a) factors. The value and
quality of the assistance rendered by Ressam, the Government
contends, “simply do not justify the extraordinary reduction
granted by the court in this case.” Appellant’s Opening Brief
at 43. Although Ressam provided a great deal of information
about his training as a terrorist and the terrorist acts of others,
the Government argues that most of his cooperation merely
declassified previously known information. Id. at 44. The
Government stressed that the district court did not give suffi-
cient weight to the fact that Ressam ceased cooperation,
recanted his earlier testimony, and thus caused the criminal
complaint against two terrorists to be dismissed. Id. at 45-46.
“[R]ewarding Ressam with a minimum forty-three-year
reduction in sentence for failure to complete his cooperation
sends” the message “that regardless of whether you violate
your agreements or complete your bargain, you will be
rewarded handsomely by the court.” Id. at 48.
The Government argues that the district court failed to con-
sider the timing of Ressam’s decision to cooperate, which did
not occur until after he had been convicted and was facing a
possible life sentence. Id. at 48-49. The Government argues
further that such a significant reduction in sentence results in
an unreasonable sentence because it gives too little weight to
the other relevant § 3553(a) factors, does not promote respect
for the law, provide just punishment for the crime, or afford
adequate deterrence to criminal conduct. Id. at 51. The Gov-
ernment also contends that the sentence fails to protect the
public from future crimes by Ressam because he will be 53
years old upon release from prison.
The Government maintains that Ressam’s prison conditions
should not have been considered because Ressam refused the
Government’s offer to place him in the more hospitable Wit-
ness Security Program. Id. at 52-53. Finally, the Government
argues that the district court’s comparisons of sentences
imposed in other terrorism cases do not establish the reason-
ableness of Ressam’s sentence. Id. at 55.
UNITED STATES v. RESSAM 19829
A
“[T]he abuse-of-discretion standard of review applies to
appellate review of all sentencing decisions — whether inside
or outside the Guidelines range.” Gall, 552 U.S. at 49. We
have characterized our review for procedural error in sentenc-
ing decisions as a review for “procedural reasonableness.”
Amezcua-Vasquez, 567 F.3d at 1053; see also United States
v. Grissom, 525 F.3d 691, 696 n.2 (9th Cir. 2008). “An esti-
mation of the outer bounds of what is ‘reasonable’ under a
given set of circumstances may not always be beyond debate,
but the abuse-of-discretion standard by which that estimation
must be judged limits the debate and gives district courts
broad latitude in sentencing.” Levinson, 543 F.3d at 195
(vacating sentence as procedurally erroneous where district
court offered inadequate explanation for downward variance
in sentence).
In Grissom, we explained that a “review for questions of
procedural reasonableness” requires reviewing “the district
court’s interpretation of the Sentencing Guidelines de novo,
the district court’s application of the Sentencing Guidelines to
the facts of a case for abuse of discretion, and the district
court’s factual findings for clear error.” 525 F.3d at 696 & n.2
(quoting United States v. Cantrell, 433 F.3d 1269, 1279 (9th
Cir. 2006), and explaining that nothing in Gall or Carty pro-
vides for an abuse of discretion standard of review for proce-
dural error different from the standard set forth in Cantrell).
In United States v. Wise, 515 F.3d 207 (3d Cir. 2008), the
Third Circuit explained the review standard as follows:
We review the district court’s decision under an
abuse-of-discretion standard . . . but the amount of
deference we give will depend on the type of proce-
dural error asserted on appeal. For example, a district
court will be held to have abused its discretion if its
decision was based on a clearly erroneous factual
conclusion or an erroneous legal conclusion. . . .
19830 UNITED STATES v. RESSAM
Koon v. United States, 518 U.S. 81, 100 (1996) (“A
district court by definition abuses its discretion when
it makes an error of law.”); Cooter & Gell v. Hart-
marx Corp., 496 U.S. 384, 401 (1990) (“When an
appellate court reviews a district court’s factual find-
ings, the abuse-of-discretion and clearly erroneous
standards are indistinguishable: A court of appeals
would be justified in concluding that a district court
had abused its discretion in making a factual finding
only if the finding were clearly erroneous.”). Thus,
if the asserted procedural error is purely factual, our
review is highly deferential and we will conclude
there has been an abuse of discretion only if the dis-
trict court’s findings are clearly erroneous . . . . On
the other hand, we do not defer to a district court
when the asserted procedural error is purely legal, as,
for example, when a party claims that the district
court misinterpreted the Guidelines.
Wise, 515 F.3d at 217.
Under the abuse of discretion standard of review recently
announced in United States v. Hinkson, 585 F.3d 1247 (9th
Cir. 2009), we first consider whether the district court identi-
fied the correct legal standard for decision of the issue before
it, and then “determine whether the district court’s findings of
fact, and its application of those findings of fact to the correct
legal standard, were illogical, implausible, or without support
in inferences that may be drawn from facts in the record.” Id.
at 1251.
“For a non-Guidelines sentence, we are to ‘give due defer-
ence to the district court’s decision that the § 3553(a) factors,
on a whole, justify the extent of the variance.’ ” Carty, 520
F.3d at 993 (quoting Gall, 128 S.Ct. at 597). “We may not
reverse just because we think a different sentence is appropri-
ate.” Id.
UNITED STATES v. RESSAM 19831
B
There are four procedural errors in the district court’s anal-
ysis that are serious enough to cause us to lack confidence in
the substantive reasonableness of the sentence that was
imposed: (1) the district court failed to use the Guidelines as
a starting point and to “remain cognizant” of them throughout
the process in reaching Ressam’s sentence; (2) the district
court failed to explain why it was rejecting the Government’s
argument as to the value of Ressam’s cooperation, and failed
to address the impact of Ressam’s recantation and timeliness
of his decision to cooperation; (3) the court clearly erred when
it credited Dr. Grassian’s assessment of Ressam’s life history
and personal characteristics, and that of Ressam’s counsel, in
view of the contradictory factual findings in the PSR; and, (4)
the district court erred in failing to address the Government’s
argument that a longer sentence is required to protect the pub-
lic from future crimes committed by Ressam, who will be
only 53 years old when his sentence expires. We address each
error in turn.
1
[5] The district court calculated the applicable Guidelines
range at the beginning of the sentencing hearing. At the end
of its analysis, the court stated in a conclusory manner that it
had considered the Guidelines range as one factor, given it the
same weight as the other § 3553 factors, and that it recognized
the sentence reflects “a significant downward deviation from
the advisory guideline range.” Beyond these passing refer-
ences to the Guidelines, the district court made no attempt to
explain how it settled on a sentence that was 43 years below
the low end of the Guidelines range.
Rather, the record suggests that the district court agreed
with Ressam’s position that the starting point for calculating
his sentence should be the Government’s pre-trial plea offer
of 25 years. At the resentencing hearing, the Government
19832 UNITED STATES v. RESSAM
argued that using the pre-trial offer as a starting point was
legally improper. Sentencing Hr’g Tr. at 14, December 3,
2008. The Government attempted to dispel the district court
of its earlier stated belief that the Government’s pre-trial offer
of a sentence of 25 years “might have some relation to the
post-trial assessment of the case with a level of cooperation,”
supra at 23, by explaining that 25 years was “not an appropri-
ate sentence in the view of anyone on the government’s
team.” Sentencing Hr’g Tr. at 14, December 3, 2008. The dis-
trict court stated that it was not convinced, replying: “I have
a hard time accepting that.” Id. at 15.
[6] Based upon our review of the record, beyond perform-
ing the calculation of the Guidelines range at the beginning of
the hearing and referencing the Guidelines twice in passing,
the district court did not appear to give any weight whatsoever
to the Guidelines range. Therefore, the record does not dem-
onstrate that the district court used the applicable Guidelines
range as “the starting point and initial benchmark” as
required. Carty, 520 F.3d at 991.
Our perception that the district court failed to keep the
applicable Guidelines range in mind throughout sentencing is
bolstered by how the district court dealt with the mandatory
minimum and consecutive sentence requirements that per-
tained to certain counts of Ressam’s conviction. The convic-
tion on Count Nine (carrying an explosive during the
commission of a felony) requires a mandatory minimum sen-
tence of at least 10 years, under 18 U.S.C. § 844(h)(2). In
addition, consecutive sentences are required for the convic-
tions for Count Nine and also for Count One (act of terrorism
transcending a national boundary, in violation of 18 U.S.C.
§ 2332b(a)(1)(B)). See 18 U.S.C. §§ 844(h)(2) and
2332b(c)(2), respectively.
The 10-year mandatory minimum for Count Nine meant
that Ressam was sentenced to only 12 years for his convic-
tions on the other eight counts combined, a portion of which
UNITED STATES v. RESSAM 19833
represented the consecutive sentence for the Count One con-
viction. That period of 12 years was divided into seven years
for violating 18 U.S.C. § 2332b(a)(1)(B) (Count One) and
five years for the seven remaining counts (Counts Two
through Eight).8
Those component parts reveal that Ressam’s sentence actu-
ally involves an even greater departure below the Guidelines
than is initially apparent. Ressam’s total sentence of 22 years
is only 34 % as long as the low end of the combined Guide-
lines range of 65 years, but his seven-year sentence for Count
One is only 28 % of the Guidelines recommendation of 300
months, and his five-year sentence for the remaining seven
counts is only 17 % of the Guidelines minimum recommenda-
tion of 360 months.
8
The Government, not the district court, chose the length of each por-
tion of Ressam’s sentence. When the district court first imposed Ressam’s
sentence, it considered only the total term of imprisonment and asked “the
government to allocate [22 years] according to the statutory minimums
among the counts in consecutive and concurrent [terms] as necessary to
arrive at” the total. Sentencing Hr’g Tr. at 31, July 27, 2005. The district
court did not revisit the components of the total sentence at the 2008 sen-
tencing hearing. The parties did not brief the question—which we do not
reach—whether the district court’s decision not to determine and impose
independent sentences for each of the three consecutive terms was error.
See U.S.S.G. § 5G1.2; cf. United States v. Franklin, 499 F.3d 578, 584-85
(6th Cir. 2007) (“When any downward variance of the guideline range is
based upon the effect of a mandatory sentence, congressional intent is
repudiated, just as if the mandatory sentence itself had been reduced.”);
United States v. Roberson, 474 F.3d 432, 437 (7th Cir. 2007) (“The dis-
trict judge was . . . required to determine the proper sentence for the bank
robbery entirely independently of the section 924(c)(1) add-on.”). But see
United States v. Vidal-Reyes, 562 F.3d 43, 55-56 (1st Cir. 2009) (“[T]his
provision merely specifies that the sentence for counts subject to a manda-
tory consecutive sentence should be calculated separately from the
[Guidelines sentencing range] on other counts. In other words, those
counts involving mandatory sentences should be excluded from the group-
ing procedures that would otherwise apply.”) (citing United States v. A.B.,
529 F.3d 1275, 1276 n.1 (10th Cir. 2008)).
19834 UNITED STATES v. RESSAM
[7] Additionally, simply acknowledging that the sentence
reflects “a significant downward deviation from the advisory
guideline range” is insufficient on this record to demonstrate
that the court “remain[ed] cognizant of [the Guidelines]
throughout the sentencing process.” Gall, 552 U.S. at 50 n.6;
Carty, 520 F.3d at 991 (the Guidelines “are to be kept in mind
throughout the [sentencing] process” (citing Gall, 552 U.S. at
50 n.6.)); see also United States v. Pugh, 515 F.3d 1179, 1200
(11th Cir. 2008) (vacating and remanding sentence where the
sentence failed to reflect the seriousness of defendant’s
offense and the district court did “not give any real weight to
the Guidelines range in imposing the sentence”).
[8] United States v. Mohamed, 459 F.3d 979 (9th Cir.
2006), demonstrates the level of explanation that a district
court must provide when imposing a sentence that differs sub-
stantially from the Guidelines range. Mohamed was convicted
of making a false bomb threat to the Department of Homeland
Security, claiming that four of his acquaintances were terror-
ists involved in a plot to bomb shopping malls in Los Ange-
les, California. Id. at 981. “After expending considerable
resources to protect against the threat and identify its perpe-
trator, law enforcement officials located and arrested
Mohamed.” Id. He was convicted and sentenced to a prison
term of five years for violating 18 U.S.C. § 844(e), which pro-
hibits the use of a telephone to make a threat regarding an
attempt to “destroy a building, vehicle, or other real or per-
sonal property by means of fire or an explosive.” Id. (quoting
18 U.S.C. § 844(e)). In imposing a 60-month sentence, the
district court deviated considerably from the Guidelines range
of 12 to 18 months. Id at 989. We observed that “the sentenc-
ing guidelines anticipate their own inadequacy in the context
of bomb threats” which include “a particularly wide range of
conduct.” Id. at 988. The district court “noted both the cal-
lousness and costliness of the [bomb] threat . . . [and]
observed that Mohamed had exploited the nation’s fear of al
Qaeda in light of the terrorist attacks of September 11.” Id. at
988. The district court also noted that
UNITED STATES v. RESSAM 19835
the guidelines failed to take into account “the history
and characteristics of the defendant” and the need to
provide the public with adequate protection from
him. See 18 U.S.C. §§ 3553(a)(1), (2)(C). While the
PSR rated Mohamed as having a minimal criminal
history, the record suggests that he has engaged in a
more extensive pattern of misconduct. A federal
investigation had linked him to the fraudulent use of
driver’s licenses in Texas and in California, to the
theft of $13,000 from a restaurant in Houston where
he was briefly employed, to the fraudulent use of a
social security number to open an account at the
Bank of America, and to a failure to report for an
interview with the FBI regarding other suspicious
activities. On top of this, the defendant had been liv-
ing illegally in the country for several years and had
reentered the country illegally just prior to his arrest.
Id. at 988-89. On this record, this Court concluded in
Mohamed that the district court had “thoroughly explained its
decision to deviate from the advisory guidelines” and that “it
was reasonable for the district court to hold that the advisory
guidelines did not adequately take into account Mohamed’s
significant history of increasingly serious criminal activity.”
Id. at 989. By contrast, here, the district court offered no anal-
ysis or explanation as to why its considerable deviation from
the Guidelines was appropriate. The absence of such a thor-
ough explanation prohibits meaningful appellate review and
thus constitutes procedural error.
2
In determining the sentence reduction due to Ressam for
his cooperation with the Government, the district court was to
consider (1) its own evaluation of the significance and useful-
ness of Ressam’s assistance, taking into consideration the
Government’s evaluation of the assistance rendered; (2) the
truthfulness, completeness, and reliability of any information
19836 UNITED STATES v. RESSAM
or testimony provided by Ressam; (3) the nature and extent of
the Ressam’s assistance; (4) any injury or risk of injury to
Ressam or his family resulting from his assistance; and (5) the
timeliness of the Ressam’s assistance. See U.S.S.G.
§ 5K1.1(a). We review the reasonableness of Ressam’s sen-
tence against these five factors. Haack, 403 F.3d at 1004.
[9] In considering the first factor, the district court failed to
explain why it rejected the Government’s arguments concern-
ing its evaluation of Ressam’s cooperation, including the
value to law enforcement of the information provided. See
Awad, 371 F.3d at 586-87 (district courts are to give substan-
tial weight to the Government’s evaluation of that assistance)
(citing § 5K1.1 providing, in Application Note 3, that
“[s]ubstantial weight should be given to the government’s
evaluation of the extent of the defendant’s assistance, particu-
larly where the extent and value of the assistance are difficult
to ascertain”). See also United States v. Richardson, 521 F.3d
149, 158 (2d Cir. 2008) (vacating and remanding sentence
where the court was unable to determine whether the sentence
was procedurally or substantively unreasonable because the
district court failed to explain the method employed in calcu-
lating the value of defendant’s assistance to the Government).
In Richardson, the Government made a motion for a down-
ward departure under U.S. Sentencing Guidelines Manual
§ 5K1.1 due to defendant’s substantial assistance. Id. The dis-
trict court imposed a sentence 93 % below the statutory mini-
mum 20-year sentence on the ground that the Government’s
§ 5K1.1 motion enabled it to exercise discretion to impose a
sentence it deemed fair and reasonable under the circum-
stances. Id. (quotations omitted). On appeal, the Second Cir-
cuit noted that a motion under § 5K1.1 authorized a trial court
to depart below the applicable advisory Guidelines range in
determining its sentence, and that an 18 U.S.C. § 3553(e)
motion permitted a district court to sentence below a statutory
minimum. Id. However, in the absence of any explanation by
the district court as to the method employed in applying these
UNITED STATES v. RESSAM 19837
two provisions relating to defendant’s assistance, the court
held that it was unable to determine if the sentence was proce-
durally or substantively reasonable, particularly due to the
substantial departure from the statutory minimum sentence.
Id.
In addition, the Second Circuit held that the district court
did not satisfy its obligation to state the reasons for imposition
of its sentence. The district court merely stated that it was tak-
ing into account “all the pertinent information including but
not limited to the presentence investigation report, submis-
sions by counsel, the factors outlined in 18 U.S.C. Section
3553 and the sentencing guidelines.” Id. at 155. When counsel
for the Government inquired as to the court’s method of “cal-
culation,” the court responded: “Based on all the circum-
stances in the case and the motion by the Government, this is
the [c]ourt’s sentence.” Id. at 156. The Second Circuit con-
cluded that in the context of that case, the district court failed
to satisfy its obligation to “state in open court the reasons for
its imposition of the particular sentence.” Id. at 158, citing 18
U.S.C. § 3553(c). The PSR was no substitute for an explana-
tion by the district court “because the factual findings in the
report provided inadequate support for the sentence imposed.”
Id. (citing United States v. Carter, 489 F.3d 528, 539-40 (2d
Cir. 2007)).
Here, not only did the district court fail to give “substantial
weight” to the Government’s evaluation of the extent of the
defendant’s assistance, it failed to give it any weight. The dis-
trict court credited only Ressam’s assessment of the value of
his own cooperation, offering no explanation as to why it was
rejecting the Government’s assessment. For example, the
Government argued that much of the information Ressam pro-
vided was “in an unclassified form,” and “was not unique to
Ressam.” Further, Ressam’s “most valuable information —
that leading to the charges against Doah and Mohamed —
cannot be credited [because] Ressam undermined that value
when he chose to end his cooperation leading to the dismissal
19838 UNITED STATES v. RESSAM
of these charges.” The district court disagreed with the Gov-
ernment’s assessment, concluding instead that “Mr. Ressam’s
cooperation [was] unique in its breadth and scope.” The dis-
trict court also gave much credit to Ressam for his testimony
against Haouari without addressing the Government’s argu-
ment that the value of Ressam’s testimony was undermined
by his recantations.
The district court cited Ressam’s “sentencing memorandum
submitted before the July 2005 sentencing hearing [which]
summarizes the far-reaching impact of Mr. Ressam’s coopera-
tion on the investigations and prosecutions of terrorist activi-
ties in this country and abroad.” The district court concluded
— apparently based upon Ressam’s sentencing memorandum
— that “Mr. Ressam’s cooperation, while it lasted, provided
the United States government and the governments of Great
Britain, Spain, Italy, Germany, France and Canada extensive
intelligence that proved to be invaluable in the fight against
international terrorism.” Without explanation, the district
court suggested that adhering to any but Ressam’s version of
the value of his cooperation would be to “downplay” it which
“would diminish the likelihood of future cooperation by other
apprehended terrorists.”
[10] Turning to the second factor, the district court
addressed “the truthfulness, completeness, and reliability” of
Ressam’s assistance by “recogniz[ing] that Mr. Ressam’s later
decision to end his cooperation resulted in the dismissal of
two pending prosecutions and the retraction of certain of his
statements against two other terrorist suspects.” The district
court did not, however, address the Government’s argument
concerning the impact of Ressam’s early cessation of cooper-
ation or recantations. Within six months of entering into the
cooperation agreement with the United States Attorney, Agent
Humphries testified that Ressam became less than cooperative
and refused to discuss Hamaidi with Canadian authorities who
were investigating Hamaidi for his involvement in helping
Ressam obtain fraudulent Canadian social security numbers
UNITED STATES v. RESSAM 19839
among other things. The district court did not weigh this or
any other specific arguments raised by the Government. The
district court noted only that Ressam’s cooperation “ended
unwisely and prematurely.” The district court did not, how-
ever, indicate what weight, if any, it gave to this factor. See
e.g., United States v. Burns, 577 F.3d 887, 890 (8th Cir. 2009)
(en banc) (affirming a 60% reduction in the advisory Guide-
lines sentence where the district court provided a detailed
analysis of the § 5K1.1 factors and concluded that there “was
no information that the defendant’s substantial assistance was
anything but a hundred percent complete, a hundred percent
truthful, and a hundred percent reliable.”); see also Livesay,
525 F.3d at 1093 (vacating and remanding sentence where the
district court did not explain why it rejected the Government’s
argument that, notwithstanding Livesay’s timely assistance,
Livesay should receive “some sentence of significance”).
[11] The Government also argued that the timing of Res-
sam’s cooperation, the fifth factor to be considered, which
occurred only after he had been convicted and was facing a
life sentence, should weigh against him in valuing his cooper-
ation. Id. at 44. In his February 17, 2003 letter to the trial
judge, Ressam stated that he “chose to make a break with the
past and agreed to accept [his] guilt and provide the govern-
ment with all of the information [he] had.” Ressam explained
that he rejected the “government’s offer of a 25-year sentence
in exchange for an admission of guilt” because he “expected
a miracle” for himself. When he realized “the result was not
the miracle [he] had hoped for,” he entered into an agreement
with the Government and pledged to “honor that agreement
even after [he was] sentenced.” The district court did not dis-
cuss what weight, if any, it was giving to the timing of Res-
sam’s cooperation, a factor generally considered by
sentencing courts. See, e.g., Burns, 577 F.3d at 890 (affirming
a 60% reduction in the advisory Guidelines sentence where
the district court provided a detailed analysis of the § 5K1.1
factors and concluded that the timeliness “factor weighs very
19840 UNITED STATES v. RESSAM
heavily in favor of the defendant” because his “timeliness was
exceptional”).
Furthermore, as in Richardson, the PSR in this case is no
substitute for an explanation by the district court for its depar-
ture from the advisory Guidelines because the factual findings
in that report do not provide adequate support for the sentence
imposed. Richardson, 521 F.3d at 158. The detrimental
impact of the district court’s failure to address the Govern-
ment’s arguments is compounded here, “where the extent and
value of the assistance are difficult to ascertain.” U.S.S.G.
§ 5K1.1 cmt. n.3.
[12] Accordingly, we are unable to review whether the dis-
trict court properly exercised its discretion in analyzing the
value of Ressam’s cooperation pursuant to the Government’s
§ 5K1.1 motion. See United States v. Gapinski, 561 F.3d 467,
469 (6th Cir. 2009) (vacating and remanding sentence as pro-
cedurally unreasonable where the record did not show that the
district court considered and explained its reasons for reject-
ing a party’s nonfrivolous argument for a requested sentence
based upon substantial assistance to the Government).
3
[13] The district court’s finding that “Mr. Ressam’s life his-
tory and personal characteristics support favorable sentencing
consideration” is clearly erroneous in view of the voluminous
factual findings in the PSR indicating that Ressam has lead a
life of crime dedicated to terrorist causes. Without addressing
the Government’s arguments as to Ressam’s history and char-
acteristics, the district court credited Dr. Grassian’s favorable
report of Ressam and Ressam’s own characterization in his
2005 sentencing memorandum that “by naming and identify-
ing scores of former associates, Mr. Ressam not only has
imperiled his life, but also has decisively walked away from
the illegality that led to his arrest.”
UNITED STATES v. RESSAM 19841
In finding that Ressam is “a quiet, solitary and devout man
whose true character is manifest in his decision to cooperate,”
the district court did not address any of the findings in the
PSR which indicate that Ressam has an extensive criminal
history. For example, in the summer of 1999, when Abu Doha
informed Ressam that the other members of the Montreal cell
would not be joining him to carry out the attack against the
United States, Ressam decided to continue with the operation
on his own, without the other members of his cell. Ressam
targeted an airport, knowing that as a result, many civilians
would die. Ressam attempted to rob a bank to obtain funds to
carry out his mission and finance the attack in the United
States. In the course of robbing the bank, Ressam planned to
throw a live hand grenade at the police, and run, if he needed
to do so in order to get away. These are only a few of the find-
ings in the PSR that are in direct tension with the district
court’s findings as to Ressam’s life history and personal char-
acteristics, including the finding that Ressam is “a quiet, soli-
tary and devout man whose true character is manifest in his
decision to cooperate.”
4
The district court concluded its analysis by stating that
“based on all the factors listed in 18 U.S.C. Section 3553, I
hereby reimpose a sentence of 22 years and a period of super-
vised release of five years . . . . I believe the factors I have
examined on the record are sufficiently compelling to support
the degree of the variance.” We disagree.
[14] The district court failed entirely to address the Govern-
ment’s arguments that § 3553(a)(2)(C) requires a district court
to weigh the “need to protect the public.” This factor is partic-
ularly relevant in a terrorist case such as this, where Ressam,
who has demonstrated strongly held beliefs about the need to
attack American interests in the United States and abroad, will
be only 53 years old upon his release.9 The district court noted
9
The notion that trained terrorists pose a grave danger to the public has
also been recognized in the context of pre-trial detention. See, e.g., United
19842 UNITED STATES v. RESSAM
generally that “the seriousness and heinousness of the act of
terrorism Mr. Ressam was carrying out at the time of his
arrest cannot be understated,” but did not otherwise discuss
the need to protect the public. The failure to do so is proce-
dural error. See United States v. Lychock, 578 F.3d 214, 219
(3d Cir. 2009) (vacating and remanding sentence where the
district court failed to consider all of the relevant § 3553(a)
factors). In Lychock, the Third Circuit held that the sentence
was procedurally unreasonable because the sentencing pro-
ceedings made clear that the district court did not consider
one of the relevant § 3553(a) factors. Id. “Indeed, the District
Court did not even mention this factor despite the fact that, in
its sentencing memorandum, the government explicitly
invoked this factor.” Id.
[15] Similarly here, the district court did not mention the
need to protect the public as a factor it must consider. This
omission is particularly troubling here given the nature of
Ressam’s crimes and the district court’s emphasis on Dr.
Grassian’s favorable psychological assessment of Ressam. In
Dr. Grassian’s report, the very assessment credited by the dis-
trict court for purposes of weighing Ressam’s history and
characteristics, Ressam reported that he regretted having ever
cooperated with the Government. The district court did not
address the fact that Ressam recanted his testimony or
respond to the Government’s argument that such recantation
affirmatively aided two known terrorists by causing the Gov-
States v. Hir, 517 F.3d 1081, 1094 (9th Cir. 2008) (affirming order requir-
ing that Hir be detained pre-trial because he was accused of providing sup-
port to terrorists and holding that “there is clear and convincing evidence
that Abd Hir poses a grave danger to the Philippines (if not to other com-
munities in Southeast Asia) and that ‘no condition or combination of con-
ditions will reasonably assure . . . the safety of . . . the community.’ ”)
(citing 18 U.S.C. § 3142(e)); see also United States v. Goba, 240 F. Supp.
2d 242, 254 (W.D.N.Y. 2003) (ordering pre-trial detention because each
individual defendant’s attendance and training at the al-Farooq camp
makes him a danger to the community).
UNITED STATES v. RESSAM 19843
ernment to dismiss the indictments against them, signaling
that Ressam is not as estranged from the jihad movement as
he alleges.
In United States v. Valnor, 451 F.3d 744 (11th Cir. 2006),
the Eleventh Circuit affirmed a sentence above the high end
of the advisory Guidelines range where the district court
“concluded that in order to afford adequate deterrence and
protect the public from further crimes . . . committed by Mr.
Valnor,” a longer sentence is appropriate and reasonable. Id.
at 749. Valnor pleaded guilty to participating in a scheme
involving the issuance of fraudulent driver’s licences to illegal
immigrants and agreed to cooperate with the Government. Id.
at 746. The Government moved for a downward departure,
pursuant to U.S.S.G. § 5K1.1, based on Valnor’s substantial
assistance, which led to the arrest of 52 people involved in the
scheme. Id. at 747. The district court rejected the Govern-
ment’s argument for a downward departure, concluding that
Valnor’s was “a very serious offense.” Id. at 748. The district
court explained that it “[did] not diminish it to the extent that
[defense counsel] does, and even to the extent that the govern-
ment does” id., because
driver’s licenses are far more than simply an authori-
zation to operate a motor vehicle. They serve as the
primary means of personal identification, particu-
larly in the absence of a national identification card,
and are the first line of defense in national security
after 9/11. With a driver’s license a person is able to
access and integrate into society with the ability,
among others, to obtain other documents that he or
she would otherwise be unable to acquire. In light of
our present security situation, it is of paramount
importance that the issuance and distribution of state
issued driver’s licenses be secured.
Id. at 748. The district court explained that even though Val-
nor was not working within the DMV itself,
19844 UNITED STATES v. RESSAM
he poses a greater [threat] to society than a DMV
employee involved in this scheme. Mr. Valnor was
intimately . . . involved in the market through which
unauthorized individuals obtained driver’s licenses.
This market is not state regulated, but rather by its
very nature operates below the radar of the state and
society at large. Therefore, unlike the DMV
employee who will never again return to his or her
position to commit the same crime, Mr. Valnor as a
middleman is free to return to his, quote, market of
illegally obtaining and selling driver’s licenses val-
idly issued or otherwise.
Id. at 749. “After a thorough review of the record, with partic-
ular attention to the transcripts from Valnor’s three sentencing
hearings and the PS[R],” the Eleventh Circuit affirmed Val-
nor’s sentence as reasonable, holding as follows:
The district court was particularly concerned with
the following facts, which were relevant to the
§ 3553(a) analysis: (1) “the egregious nature of the
offense” based on its potential impact on national
security; (2) that Valnor’s sales of license renewals
to those who were able to obtain licenses before the
9/11 rule changes, but subsequently could not get
renewals, resulted in the provision of licenses to the
very people Congress intended to subject to greater
regulation in the name of national security; and (3)
that unlike in the case of a DMV employee, who
could not return to his or her prior position after con-
viction, there were no safeguards to prevent middle-
men like Valnor from returning to the unregulated
market of illegally obtaining and selling driver’s
licenses.
Id. at 751. The district court’s discussion of the facts relevant
to its analysis of the § 3553(a) factors in Valnor is illustrative
of the kind of discussion required to enable meaningful appel-
UNITED STATES v. RESSAM 19845
late review. See also United States v. Shy, 538 F.3d 933, 937
(8th Cir. 2008) (remanding for resentencing “to allow the dis-
trict court to consider all of Shy’s conduct,” because meaning-
ful review of the sentence is impossible where the district
court failed adequately to explain Shy’s sentence with suffi-
cient justifications for the downward variance); United States
v. Thomas, 498 F.3d 336, 341 (6th Cir. 2007) (vacating and
remanding sentence where the district court failed to address
a number of arguments raised in defendant’s sentencing mem-
orandum regarding application of the § 3553(a) factors, “save
the general statement by the district court that it had received,
read, and understood the sentencing memorandum” and where
“the context and the record [did] not make clear the [district]
court’s reasoning”).
C
[16] The procedural errors identified in the district court’s
decision rendered the sentence imposed on Ressam both pro-
cedurally and substantively unreasonable. Because the sen-
tence is procedurally flawed, meaningful appellate review is
foreclosed. Based upon our review of the record before us,
however, it appears that the district court abused its discretion
in weighing the relevant factors by giving too much weight to
Ressam’s cooperation and not enough weight to the other rel-
evant § 3553(a) factors, including the need to protect the pub-
lic. See, e.g., Paul, 561 F.3d at 975 (vacating and remanding
sentence as substantively unreasonable where the district
court gave excessive weight to one factor “while not giving
sufficient consideration to other [mitigating] factors” in
imposing a sentence at the top end of the Guidelines range);
United States v. Omole, 523 F.3d 691, 698-700 (7th Cir.
2008) (vacating and remanding sentence that was 51 months
below the bottom of the Guidelines range as substantively
unreasonable where the sentencing judge failed to offer a
compelling justification for a sentence so far below the range
and nothing in the record supported such a reduced sentence);
United States v. Rattoballi, 452 F.3d 127, 136-37 (2d Cir.
19846 UNITED STATES v. RESSAM
2006) (vacating and remanding sentence as unreasonably low
where the district court relied upon the history and character-
istics of defendant which were neither sufficiently compelling
nor present to the degree necessary to support the sentence
imposed); United States v. Crisp, 454 F.3d 1285, 1289-90
(11th Cir. 2006) (vacating and remanding sentence as sub-
stantively unreasonable where the district court gave control-
ling weight to the need for restitution and did not discuss any
of the U.S. Sentencing Guidelines Manual § 5K1.1(a)
assistance-related factors when calculating the extent of a
U.S. Sentencing Guidelines Manual § 5K1.1(a) departure);
United States v. Hampton, 441 F.3d 284, 288-89 (4th Cir.
2006) (vacating and remanding sentence where the district
court’s explanation for dramatic downward variance could not
withstand “reasonableness scrutiny” because the sentence was
not “supported by compelling justifications related to
§ 3553(a) factors,” and “excessive weight” was given to a sin-
gle factor); United States v. Givens, 443 F.3d 642, 646 (8th
Cir. 2006) (vacating and remanding sentence as substantively
unreasonable where the district court gave “too much weight”
to “defendant’s history and characteristics and showed a great
deal of sympathy toward him” and gave “not enough [weight]
to the other portions of section 3553(a)”); United States v.
Ture, 450 F.3d 352, 358-59 (8th Cir. 2006) (vacating and
remanding sentence as substantively unreasonable where the
18 U.S.C. § 3553(a) factors and the U.S. Sentencing Guide-
lines Manual did not support the district court’s extreme devi-
ation from the recommended Guidelines range and where the
district court failed to accord significant weight to the Guide-
lines range, to the seriousness of the offense, or to the need
to avoid unwarranted sentencing disparities).
IV
[17] We conclude that it is appropriate to exercise our
supervisory powers under 28 U.S.C. § 2106 and remand this
case for resentencing to a different judge. See, e.g., United
States v. Quach, 302 F.3d 1096, 1103 (9th Cir. 2002)
UNITED STATES v. RESSAM 19847
(“Although we generally remand for resentencing to the origi-
nal district judge, we remand to a different judge if there are
‘unusual circumstances.’ ”) (quoting United States v. Mik-
aelian, 168 F.3d 380, 387 (9th Cir. 1999). In Mikaelian, this
Court explained that there is a three-factor test to determine
whether it is appropriate to remand to a new judge for resen-
tencing:
(1) whether the original judge would reasonably be
expected upon remand to have substantial difficulty
in putting out of his or her mind previously
expressed views or findings determined to be errone-
ous or based on evidence that must be rejected, (2)
whether reassignment is advisable to preserve the
appearance of justice, and (3) whether reassignment
would entail waste and duplication out of proportion
to any gain in preserving the appearance of fairness.
168 F.3d at 387-88 (quoting United States v. Alverson, 666
F.2d 341, 349 (9th Cir. 1982)). See also Paul, 561 F.3d at
975; United States v. Atondo-Santos, 385 F.3d 1199, 1201
(9th Cir. 2004); United States v. Working, 287 F.3d 801, 810
(9th Cir. 2002); United States v. Arnett, 628 F.2d 1162, 1165
(9th Cir. 1979).
In Paul, the district court originally sentenced Paul to a
high-end Guidelines range of 16 months in prison on his con-
viction for misappropriation of federal program funds. Paul,
561 F.3d at 972. On appeal, this Court determined that the
district court failed adequately to consider numerous factors,
causing the sentence to be unreasonably high. Id. On remand,
the original sentencing court ordered a prison term of 15
months, removing only one month from the original sentence.
Id. at 973. On a second appeal, we again vacated the sentence
and remanded for a third sentencing in front of a different dis-
trict judge. We held that “the appearance of justice will be
best preserved by remanding to a different judge.” Id. at 975.
Although on remand the original sentencing judge explained
19848 UNITED STATES v. RESSAM
some of the reasoning for imposing a fifteen month sentence,
“he clearly did not put out of his mind his previously
expressed view that the defendant’s abuse of trust trumped all
other mitigation factors combined, as shown by the fact that
he again sentenced Paul to a prison sentence at the top of the
Guidelines range.” Id.
Similarly, in United States v. Working, the defendant’s sen-
tence was twice vacated and remanded for a third sentencing
before a different judge. Working was originally sentenced to
one day in prison for assault with intent to commit first degree
murder, and a mandatory five-year prison term for use of a
firearm during a crime of violence. Id. at 805. On appeal from
the one-day sentence, this Court held that the district court
was within its discretion to grant a downward departure from
the Guidelines, but the district court must give reasons to jus-
tify the extent of the departure. Id. Upon remand, the district
court again imposed a one-day sentence, basing its decision
on numerous factors. Id. On the second appeal, we determined
that the district court improperly took into account the inter-
play between 18 U.S.C. § 924(c) and the Guidelines, as well
as Working’s low risk of recidivism, because both factors
were already considered by the Guidelines. Id. at 807-808.
We also concluded that the record did not provide any other
reasons that would justify the one-day sentence. Id. at 808.
This Court remanded and reassigned the case to a different
judge for resentencing. Id. at 809. We held that after imposing
the same sentence twice, the original judge “would have sub-
stantial difficulty disregarding the view that a one-day sen-
tence was sufficient.” Id. at 809-10. Our concern that the
original judge would be “unlikely to disregard improper fac-
tors when fashioning a sentence” was “heightened” by certain
statements made by the trial judge. Id. at 810. The trial judge
stated that he “did not accept the fact that [Working’s hus-
band] was the victim.” Id. The record further indicated that
“the district court would be unlikely to set aside consider-
ations of Working’s sex, a clearly prohibited factor under the
Guidelines, when resentencing.” Id.
UNITED STATES v. RESSAM 19849
The facts of this case similarly support exercise of this
Court’s power to reassign Ressam’s resentencing to a differ-
ent district court judge. The trial judge originally sentenced
Ressam to 22 years in prison. On appeal, we noted that the
district court did not begin the sentencing proceeding by first
determining the applicable Guidelines range, as required by
Carty. Ressam, 538 F.3d at 1167. Accordingly, we vacated
the sentence and remanded for resentencing in accordance
with Carty. Id. Upon remand, the district court again imposed
a 22-year sentence. At Ressam’s resentencing the sentencing
judge stated:
As I said at Mr. Ressam’s previous sentencing in
2005, determining an appropriate sentence in this
case is a decision I struggled with more than any
other sentencing decision I have made in my 27
years on the bench. In the time since Mr. Ressam’s
first sentencing, however, I have come to feel even
more confident that the sentence I originally
imposed was the correct one.
Sentencing Hr’g Tr. at 40-41, December 3, 2008.
The district court made the point of describing the original
sentence as “correct” without apparent regard for develop-
ments since the original sentence was imposed. As described
above, Ressam explicitly recanted his prior cooperation and
affirmatively tried to aid those against whom he had testified
previously. In his statement to the district court at the hearing
at which the 22-year sentence was reimposed, Ressam dis-
avowed the cooperation he had previously given, describing
it as the product of mental incompetence and pressure put
upon him, and claiming that he did not know what he was
saying and that what he had said could not be relied upon.
The prosecution reacted by contending that it never would
have entered into cooperation with Ressam in the first place
if it had known how it would turn out.
19850 UNITED STATES v. RESSAM
[18] It is unclear what reason there is to reward a defendant
at all for cooperation at the same time that the defendant is
disavowing having intended to cooperate and loudly pro-
claiming that his statements should not be believed. The dis-
trict court gave no explanation of how, if at all, the
subsequent developments were weighed in the new sentenc-
ing decision. The district court expressed concern that
“[d]ownplaying the cooperation that Mr. Ressam provided the
government would diminish the likelihood of future coopera-
tion by other apprehended terrorists,” but the court itself
appeared to disregard the possible impact on other appre-
hended terrorists of reimposing the same sentence despite
Ressam’s subsequent disavowals. In short, the attachment of
the district court to the sentence that was originally imposed
was very powerful. The district judge “clearly did not put out
of his mind his previously expressed view that [Ressam’s
cooperation] trumped all other [aggravating] factors com-
bined, as shown by the fact that he again sentenced [Ressam]
to a prison sentence [well below the bottom] of the Guidelines
range.” Paul, 561 F.3d at 975; see also United States v. Vrdo-
lyak, 593 F.3d 676, 684 (7th Cir. 2010) (holding that “a
judge’s errors in calculating [a sentence] are indicative of an
idee fixe” where the judge appears unwilling to waver in his
conviction that a particular sentence is warranted).
[19] We must also consider “whether reassignment would
entail waste and duplication out of proportion to any gain in
preserving the appearance of fairness.” Mikaelian, 168 F.3d at
387-88. We are mindful that the district judge has spent
nearly a decade with this complex case, that the record is sub-
stantial, and that the next judge will have to duplicate some
of the prior effort. Even so, we have determined that the bene-
fit of reassignment is worth the cost in duplication. The dis-
trict judge’s previously expressed views appear too
entrenched to allow for the appearance of fairness on remand.
For these reasons, we direct that the case be re-assigned to a
different judge for resentencing. We intimate no view on what
a proper sentence would be.
UNITED STATES v. RESSAM 19851
Conclusion
We vacated the district court’s original sentence of 22 years
of imprisonment because it failed to permit this Court to con-
duct a meaningful review of the Government’s challenge to
the reasonableness of Ressam’s sentence. Ressam, 538 F.3d at
1167. Prior to the sentencing hearing on July 27, 2005, Res-
sam argued that he had ceased cooperating with the Govern-
ment because he was having trouble remembering details as
the result of a combination of solitary confinement and
repeated interrogation.
At the resentencing hearing, however, Ressam informed the
district court that he “[retracted] almost all the statements he
had made in the past” against two persons accused of terror-
ism in order to “cause their cases to be dismissed.” Once
again, the district court imposed the same 22-year sentence
that this Court previously vacated because we could not
decide whether it was reasonable based on the record of the
original sentencing proceedings. In doing so, the district court
failed to provide any reasons for rejecting the Government’s
arguments tethered to relevant § 3553(a) factors, including the
value to be given to Ressam’s early cooperation with the Gov-
ernment in view of his subsequent recantations and the need
to protect the public from Ressam’s potential to commit
future terrorist crimes, as he will be only 53 years old upon
his release. Without such explanations, we cannot conduct a
meaningful review under the abuse of discretion standard to
determine whether a sentence that is 43 years below the advi-
sory Sentencing Guidelines is substantively reasonable, or
whether a longer sentence is needed to protect the public from
future terrorist crimes by Ressam.
Because the trial judge’s previously expressed views
appear too entrenched to allow for the appearance of fairness
on remand, we direct that the case be re-assigned to a differ-
ent judge for resentencing.
19852 UNITED STATES v. RESSAM
SENTENCE VACATED, REMANDED FOR RE-
ASSIGNMENT AND RESENTENCING.
FERNANDEZ, Circuit Judge, dissenting:
We are required to give due deference to a district court’s
sentencing decisions. See United States v. Carty, 520 F.3d
984, 993 (9th Cir. 2008) (en banc). That does not mean a
grudging deference; it means that even if we would prefer a
different sentence, we may not reverse. Id. In fact, “[e]ven if
we are certain that we would have imposed a different sen-
tence had we worn the district judge’s robe, we can’t reverse
on that basis.” United States v. Whitehead, 532 F.3d 991, 993
(9th Cir. 2008). As I see it, that requires us to approach our
review of a substantive reasonableness1 issue with a great deal
of humility. It is not always easy to avoid consulting oneself
about what one would do if one were the sentencing judge. A
case like this is especially tempting in that regard, and I fear
that the majority has not resisted the temptation into which it
has been led.
The record here makes it apparent that the district court,
which lived with this case for many years, considered the
materials placed before it and touched all of the procedural
bases.2 The court calculated the guideline range,3 and no one
1
The government has expressly conceded that the sole issue on appeal
is substantive reasonableness. That is all we should consider. In part II of
the opinion, however, the majority, indicates that, despite the govern-
ment’s concession, it must and will take up procedural error, but shrouds
that determination with a brume of words whereby it suggests that proce-
dure must be melded into the substantive reasonableness determination.
The result is a gallimaufry that, by mistake or design, will (as it does here)
require courts to consider far more than substantive reasonableness, even
when the parties raise only that. No doubt that hodgepodge has contributed
to the majority’s ultimate erroneous decision here. Unfortunately, it is also
a disagreeable gift to the law, and it will keep on giving.
2
Again, the government does not even contend on appeal that there was
reversible procedural error.
3
See 18 U.S.C. § 3553(a)(4).
UNITED STATES v. RESSAM 19853
says that it did so improperly. It also considered that range.
It then expressly considered the nature and circumstances of
Ressam’s heinous offense and the history and characteristics
of Ressam;4 the seriousness of the offense, the need to pro-
mote respect for the law, and the need to impose a just punish-
ment;5 the need to adequately deter others;6 and the need to
avoid sentence disparities.7 And, while it did not specifically
discuss the need to protect the public,8 it did note that it had
to consider that, and we have nothing to indicate that it did
not do so. The same is true of the provision regarding treat-
ment of Ressam in the most effective manner,9 although the
court’s reflection on the onerous conditions of Ressam’s
incarceration might be seen as touching on that issue. And,
while the court did not specifically mention the kinds of sen-
tences available,10 that does seem rather obvious in this case.
Of course, it is not even necessary for a district court to refer
to each and every item in § 3553 when it sentences a miscre-
ant. See Carty, 520 F.3d at 992. We do, after all, “assume that
district judges know the law and understand their obligation
to consider all of the § 3553(a) factors . . . .” Id.
So where does that leave the majority? Simply put, it seems
to me that the majority just does not like the fact that this ter-
rorist is to sit in prison for a mere twenty-two years. What
number would the majority choose; who knows? But although
many federal sentences are even more draconian, twenty-two
years seems like a long time to me, whether a defendant is
young or old to start with. It is not a mere slap on the wrist,
especially if the confinement conditions will be especially
4
See id. § 3553(a)(1).
5
Id. § 3553(a)(2)(A).
6
Id. § 3553(a)(2)(B).
7
Id. § 3553(a)(6).
8
Id. § 3553(a)(2)(C).
9
Id. § 3553(a)(2)(D).
10
Id. § 3553(a)(3).
19854 UNITED STATES v. RESSAM
harsh, as the district court predicted they would be. Yet, when
all is said and done, the majority simply does not like the way
the district court weighed the evidence before it; obviously
the majority would have done it differently.
Would I give Ressam that “light” a sentence? I somehow
doubt it, but that is not the point. The point is that there are
many sites within the borders of reasonable sentencing terri-
tory, and our job is to patrol those borders to assure that the
district court has not slipped over them and into the land of
abusers of discretion. That will rarely happen; it did not hap-
pen here. Unfortunately, this case is not just about what
befalls Ressam; it reflects another entry by appellate courts
into territory that always lures them, but is always forbidden
to them. Society, we, and the district courts will someday
regret the results of our case-by-case trespassing onto lands
we should stay out of; the day this decision becomes law will,
indeed, be a dies infaustus.
In short, the sentence was neither procedurally erroneous
nor substantively unreasonable. See Carty, 520 F.3d at 993.
Even if we have to grit our teeth to do so, we should let it be.11
Thus, I respectfully dissent.
11
Even if I were to agree with the majority on the sentencing issue itself,
I could not agree with its decision to remove Judge Coughenour because
I do not see his approach to Ressam’s sentencing as either indurate or
inexplicable. I would not order transfer of this complex, long-standing
(over ten years) case to a different district judge.