United States v. Abu Ali

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4705

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

AHMED OMAR ABU ALI, a/k/a Reda, a/k/a Hani, a/k/a Abi Umar,
a/k/a Ashraf, a/k/a Abu Abdullah,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:05-cr-00053-GBL-1)

Argued: December 9, 2010 Decided: February 1, 2011

Before TRAXLER, Chief Judge, and WILKINSON and MOTZ, Circuit
Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Alice L. Fontier, JOSHUA L. DRATEL, PC, New York, New
York, for Appellant. Stephen Michael Campbell, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON
BRIEF: Joshua L. Dratel, JOSHUA L. DRATEL, PC, New York, New
York, for Appellant. Neil H. MacBride, United States Attorney,
Marla B. Tusk, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Ahmed Omar Abu Ali was convicted by a jury of nine offenses

based on his conspiracy to commit terrorist acts against the

United States, including one count of conspiracy to assassinate

the President in violation of 18 U.S.C. § 1751 and one count of

conspiracy to commit aircraft piracy in violation of 49 U.S.C.

§ 46502(a)(2). Abu Ali’s convictions stemmed from his

affiliation with an al Qaeda terrorist cell in Medina, Saudi

Arabia. While Abu Ali’s offenses gave rise to an advisory

Guidelines sentence of life imprisonment, the district court

imposed a below-Guidelines sentence of thirty years.

In United States v. Abu Ali, 528 F.3d 210 (4th Cir. 2008),

we affirmed all of Abu Ali’s convictions but vacated and

remanded the case for resentencing. On remand, the district

court sentenced Abu Ali to a term of life imprisonment. Abu Ali

now appeals that sentence, arguing that it was procedurally and

substantively unreasonable under Gall v. United States, 552 U.S.

38 (2007), and that it violates various constitutional

provisions. Finding Abu Ali’s arguments to be without merit, we

affirm the judgment of the district court.

I.

The facts of this case are detailed in our previous

opinion, so we need not repeat them here. See United States v.

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Abu Ali, 528 F.3d 210, 221-26 (4th Cir. 2008). With respect to

the trial proceedings, it suffices for purposes of this appeal

to note the nine charges on which Abu Ali was convicted:

• Conspiracy to provide material support and resources to a
designated foreign terrorist organization (al-Qaeda), in
violation of 18 U.S.C. § 2339B (Count 1);
• Providing material support and resources to a designated
foreign terrorist organization (al-Qaeda), in violation of
18 U.S.C. § 2339B (Count 2);
• Conspiracy to provide material support to terrorists, in
violation of 18 U.S.C. § 2339A (Count 3);
• Providing material support to terrorists, in violation of
18 U.S.C. § 2339A (Count 4);
• Contributing services to al-Qaeda, in violation of 50
U.S.C. § 1705(b) and 31 C.F.R. § 595.204 (Count 5);
• Receiving funds and services from al-Qaeda, in violation of
50 U.S.C. § 1705(b) and 31 C.F.R. § 595.204 (Count 6);
• Conspiracy to assassinate the President, in violation of 18
U.S.C. § 1751 (Count 7);
• Conspiracy to commit aircraft piracy, in violation of 49
U.S.C. § 46502(a)(2) (Count 8);
• Conspiracy to destroy aircraft, in violation of 18 U.S.C.
§ 32(b)(4) (Count 9).

See Abu Ali, 528 F.3d at 225. Both the 18 U.S.C. § 1751

conviction (conspiracy to assassinate the President) and the 49

U.S.C. § 46502(a)(2) conviction (conspiracy to commit aircraft

piracy) rendered Abu Ali eligible for a life sentence. See 18

U.S.C. § 1751(d); 49 U.S.C. § 46502(a)(2)(B).

The district court began the first sentencing proceeding by

calculating the applicable Guidelines range. Abu Ali’s offenses

and criminal history yielded a recommended sentence of life

imprisonment, and the aircraft piracy charge carried a mandatory

minimum twenty-year sentence. See 49 U.S.C. § 46502(a)(2)(A).

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The district court then considered what sentence would be

“sufficient, but not greater than necessary, to comply with” the

other factors enunciated in 18 U.S.C. § 3553(a). See 18 U.S.C.

§ 3553(a). Ultimately, the court determined that a below-

Guidelines sentence was appropriate. It based this

determination on several factors, among which was a comparison

of Abu Ali’s conduct to that of three individuals: John Walker

Lindh (convicted of two charges in connection with his fighting

for the Taliban in Afghanistan), Timothy McVeigh (convicted for

perpetrating the Oklahoma City bombing), and Terry Nichols

(convicted for conspiring with McVeigh).

Abu Ali subsequently appealed his convictions, and the

government cross-appealed his sentence. While we affirmed Abu

Ali’s convictions, we concluded that the district court erred in

imposing the sentence that it did. In particular, we determined

that the comparisons that had driven the court’s sentencing

analysis were inappropriate. The reasons for that conclusion

were extensively set forth in our prior opinion, see Abu Ali,

528 F.3d at 262-65, and we need not repeat them here.

On resentencing, the district court reiterated some of the

same findings as before, but changed its view on three of the

§ 3553(a) factors. First, the court reweighed the need “to

protect the public from future crimes of the defendant.” 18

U.S.C. § 3553(a)(2)(c). The court concluded that a term of

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years sentence would not be sufficient to protect the public

from future crimes by Abu Ali in light of his admission to

“participating in the planning of heinous and potentially

catastrophic crimes to be committed against the United States

citizenry,” his confession to being “willing to be a martyr for

this cause,” and his unwillingness to “make any statement

expressing any remorse.”

Second, the court reweighed “the kinds of sentences

available.” 18 U.S.C. § 3553(a)(3). The district court

observed that thirty years in prison would “impact [Abu Ali’s]

mental and physical health, functioning and capacity,” and make

it difficult for him “to transition into a functioning society

30 years from now that will have essentially moved on without

him.” The court then made the following statement:

Therefore, when the Court considers Mr. Abu Ali’s
demonstrated unwillingness to renounce the beliefs
that led him to participate in terrorist activities as
well as the dire conditions in which he would be
released, the unknowns about his mental state, his
ability to [assimilate] and whether . . . we should
assume that he would mature out of his prior
confession and desire to martyrdom, there’s simply no
way for the Court to know what Mr. Abu Ali’s mental
state would be after 30 years of solitary confinement.
The risk . . . of the unknown from a term of
years sentence is too great in this case. I cannot
put the safety of [the] American citizenry at risk.
Nothing in three years has come forward to address
this concern.
I am not persuaded that a lengthy term of
supervised release following a term of years could or
would be a sufficient measure to protect [against] the
risk of recidivism.

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 Finally, the court reconsidered its prior findings

regarding “the need to avoid unwarranted sentence disparities

among defendants with similar records who have been found guilty

of similar conduct.” 18 U.S.C. § 3553(a)(6). The court made

the following determination:

Three years have passed since the original
sentencing in this case and this is a singular case.
I now regret that the Court of Appeals interpreted my
original judgment to be an attempt to compare Mr. Ali
to anyone. So I will not do that in this
resentencing.
My original sentencing orders addressed each of
the factors in a number of words and my judgment from
the bench and from my opinion did not drive the
sentence. The defense has properly pointed out . . .
a number of terrorism cases where sentences of less
than life have been imposed.
I acknowledge that there have been a number of
post-trial terrorism cases where sentences [of] less
than life were imposed by trial judges.
I am constrained by the Court of Appeals’ search
for a benchmark case that is substantial[ly] similar
in every respect to Mr. Abu Ali’s case. Such a case
does not exist.
Even if there were such a case, I do not think a
district judge is bound to impose a judgment in a case
based upon what another judge did in another court
because as Justice Stevens from the Supreme Court has
acknowledge[d, the] work of sentencing involves
individualized consideration of each case by the trial
judge who heard the case. And there is no legal error
in different judges reaching different sentences for
the individual case.

(internal quotations omitted). The court thus determined that

the Guidelines sentence of life imprisonment was appropriate.

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 II.

Abu Ali’s primary contention on appeal is that his sentence

was both procedurally and substantively unreasonable.

A.

As the Supreme Court has made clear, the overarching

principle behind “‘reasonableness’ review” is that all sentences

should be examined under a “deferential abuse-of-discretion

standard,” regardless of whether they are inside or outside the

prescribed Guidelines range. Gall v. United States, 552 U.S.

38, 41, 46 (2007).

In Gall, the Court set forth the precise steps involved in

reviewing a sentence for reasonableness. First, an appellate

court should review a sentence for “procedural” reasonableness,

ensuring that the district court committed “no significant

procedural error” such as “failing to calculate (or improperly

calculating) 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.” Id. at 51; see United

States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009).

Next, the court should examine the “substantive

reasonableness of the sentence imposed” under “the totality of

the circumstances.” Gall, 552 U.S. at 51. A sentence falling

7
within a correctly calculated Guidelines range may be presumed

reasonable on appeal. Id.; see Rita v. United States, 551 U.S.

338, 347 (2007); United States v. Johnson, 445 F.3d 339, 341

(4th Cir. 2006) (applying such a presumption in the Fourth

Circuit). But while the reviewing court may “consider the

extent of the deviation,” a non-Guidelines sentence is not

presumptively unreasonable. Gall, 552 U.S. at 51. In either

case, we must apply the abuse of discretion standard to “give

due deference to the district court’s decision”; the fact that

we “might reasonably have concluded that a different sentence

was appropriate” does not itself provide a sufficient basis for

reversal. Id.; see United States v. Pauley, 511 F.3d 468, 473-

74 (4th Cir. 2007).

With these principles in mind, we turn to reviewing Abu

Ali’s challenges to his sentence.

B.

We first consider Abu Ali’s argument that the district

court committed a “significant procedural error” at resentencing

by refusing to consider 18 U.S.C. § 3553(a)(6). Gall, 552 U.S.

at 51. While Abu Ali presented evidence of allegedly comparable

cases under § 3553(a)(6), he argues that the court “eliminated

that factor from consideration altogether.” In making this

argument, Abu Ali relies on certain statements made by the

8
district court at the resentencing hearing, chief among which is

the following:

Three years have passed since the original
sentencing in this case and this is a singular case.
I now regret that the Court of Appeals interpreted my
original judgment to be an attempt to compare Mr. Ali
to anyone. So I will not do that in this
resentencing.

Abu Ali further contends that the court ignored § 3553(a)(6)

because of its erroneous belief that it could only consider

cases that are “substantial[ly] similar in every respect to Mr.

Abu Ali’s case.”

It is clear, however, that the district court adequately

considered § 3553(a)(6) even over and above its calculation and

consideration of the applicable Guidelines range. For one

thing, the district court explicitly stated that it had

“considered all of the 3553(a) factors.” Moreover, the district

court noted that “[t]he defense has properly pointed out . . . a

number of terrorism cases where sentences of less than life have

been imposed,” and further observed the “number of post-trial

terrorism cases where sentences [of] less than life were imposed

by trial judges.” (emphasis added). Ultimately, however, the

court concluded that “this is a singular case” and that there

was no “substantial[ly] similar” benchmark case to which to

compare Abu Ali’s. But neither that conclusion nor the

supporting analysis evince “complete[ ] disregard[ ]” for

9
§ 3553(a)(6); instead, the district court considered the

comparators presented by Abu Ali before concluding that his case

was without peer.

In that light, it is helpful to contrast this case with

United States v. Clark, 434 F.3d 684 (4th Cir. 2006), a case on

which Abu Ali relies. In Clark, we reversed the district

court’s sentencing determination based on the court’s failure to

consider 18 U.S.C. § 3553(a)(6). See Clark, 434 F.3d at 685.

But Clark is a far cry from this case. There, the district

court did not mention § 3553(a)(6). See id. at 686. Moreover,

the only “unwarranted sentencing disparities” the Clark court

considered were the disparities between Clark and similarly

situated state defendants, notwithstanding the fact that “[t]he

sole concern of section 3553(a)(6) is with sentencing

disparities among federal defendants.” Id. at 687 (emphasis

omitted). Here, by contrast, the court discussed § 3553(a)(6)

and took note of the allegedly comparable federal cases brought

forth by Abu Ali before concluding that his case was “singular.”

Rather than supporting Abu Ali’s position, Clark confirms the

reasonableness of the district court’s approach here.

Abu Ali’s final argument on the procedural front is that

the district court erred in observing that it was “constrained

by the Court of Appeals’ search for a benchmark case that is

substantial[ly] similar in every respect to Mr. Abu Ali’s case.”

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According to Abu Ali, this statement shows that the district

court “incorrectly interpreted this Court’s ruling” as requiring

cases “essentially identical to Mr. Abu Ali’s” for purposes of

§ 3553(a)(6). Abu Ali is incorrect. The district court never

required comparator cases to be “essentially identical”;

instead, it stated merely that it was looking for a

“substantial[ly] similar” case. By its own terms, § 3553(a)(6)

commands judges to consider “the need to avoid unwarranted

sentence disparities among defendants with similar records who

have been found guilty of similar conduct.” 18 U.S.C.

§ 3553(a)(6) (emphasis added). It would be quite a stretch to

argue that the district court abused its discretion by

interpreting that statutory mandate to require “substantial[ ]

similar[ity].” To reach such a conclusion, we would have to put

dispositive weight on whatever shadowy differences might lie

between § 3553(a)(6)’s requirement of “similar records” and

“similar conduct” and the district court’s search for a

“substantial[ly] similar” case. But nothing in Gall or Rita

forces us to engage in such wordplay; to the contrary, those

cases require us to eschew microscopic scrutiny of the district

court’s reasoning.

At bottom, Abu Ali’s arguments about procedural

reasonableness do not stem from actual errors committed by the

district court, but from Abu Ali’s substantive disagreements

11
with the district court’s decisions. But even assuming we

shared those disagreements, Gall makes clear that they would

still not provide any basis for overturning Abu Ali’s sentence

as procedurally unreasonable. See Gall, 552 U.S. at 51 (“The

fact that the appellate court might reasonably have concluded

that a different sentence was appropriate is insufficient to

justify reversal of the district court.”). We therefore reject

Abu Ali’s challenge on this score.

C.

We next consider Abu Ali’s claim that his sentence was

substantively unreasonable insofar as it was dramatically longer

than other terrorism sentences imposed since September 11, 2001

and thus created an unwarranted sentencing disparity under

§ 3553(a)(6). In pressing this argument below, Abu Ali

presented evidence from more than twenty allegedly comparable

cases where defendants received sentences ranging from 57 months

to 30 years’ imprisonment. In addition, Abu Ali brought forth a

study chronicling the average sentences meted out for terrorism-

related offenses. According to the study, the average sentence

for a defendant convicted of a terrorism charge is approximately

12 years and 8 months.

Based on this evidence, however, we cannot conclude that

the district judge abused its discretion in sentencing Abu Ali

12
to life imprisonment. First, 19 of the 25 defendants discussed

by Abu Ali pled guilty to their crimes of conviction. As we

observed in Abu Ali’s first appeal, defendants sentenced

pursuant to a plea agreement are not necessarily similarly

situated to defendants sentenced after trial. See Abu Ali, 528

F.3d at 263. That is especially true where, as here, the

defendant refused to express remorse or accept responsibility

for his crimes.

Second, Abu Ali was convicted of two offenses that made him

eligible for a life sentence: conspiracy to assassinate the

President in violation of 18 U.S.C. § 1751 and conspiracy to

commit aircraft piracy in violation of 49 U.S.C. § 46502(a)(2).

See 18 U.S.C. § 1751(d); 49 U.S.C. § 46502(a)(2)(B). By

contrast, only one of the twenty-five federal defendants Abu Ali

cites as comparable was convicted of an offense carrying a

potential life sentence. Abu Ali’s crimes of conviction are

thus more severe than those committed by the defendants in the

cases he brought forth.

Finally, Abu Ali’s conduct was different in degree and kind

from the conduct of his proposed comparators. Abu Ali conspired

to commit acts on our nation’s soil that would inflict massive

civilian casualties, acts that ranged from plotting attacks on

nuclear power plants to hijacking airplanes with the intent to

replicate the attacks of September 11, 2001. Further, Abu Ali

13
conspired to cripple the United States government by

assassinating members of the Senate, the Army, the Executive

Branch, and even the President himself. In short, as the trial

court noted, Abu Ali sought to inflict harm of a singular sort.

By contrast, the defendants Abu Ali cites as comparable

committed offenses that were more limited in scope and severity.

Several of the defendants, for example, attended al Qaeda

training camps with the goal of learning terrorism tactics or

traveled to Afghanistan or Iraq in order to aid the war effort

against the United States. Others committed even more serious

offenses, from conspiring to destroy the Brooklyn Bridge to

abetting the purchase of a missile intended to be used in an

attack against New York City. We by no means seek to underplay

these destructive and reprehensible acts, but note that none of

the cases Abu Ali wants to use as comparators involved a

conspiracy to kill countless civilians and visit harm upon the

highest officials of our government. As the First Circuit has

observed, for any given case, there is “a range of reasonable

sentences,” and an appellate court should only reverse when the

“sentencing court’s ultimate determination falls outside the

expansive boundaries of that universe.” United States v.

Martin, 520 F.3d 87, 92 (1st Cir. 2008). The district court’s

sentence was well within the range of reasonableness here.

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 D.

While Abu Ali’s arguments focus entirely upon his analysis

of § 3553(a)(6), it is well that we not lose sight of the

sentencing process as a whole. After all, § 3553(a)(6) is just

one of many factors that the district court should consider

before imposing a sentence. Here, the district court correctly

calculated the applicable Guidelines sentence of life

imprisonment. The court then analyzed the § 3553(a) factors,

taking account of the seriousness of Abu Ali’s offense, his

history and characteristics, the kinds of sentences available,

the need to deter future criminal conduct, the need to protect

the public from further crimes by Abu Ali, and the need to

impose a sentence that promotes respect for the law and provides

just punishment. See 18 U.S.C. § 3553(a)(1)-(3). Additionally,

the court evaluated Abu Ali’s sentence under § 3553(a)(6),

concluding that his case was “singular” and that his proposed

comparators were inapposite. In light of all these

considerations, the court concluded that a life sentence was

appropriate.

Viewing the case holistically, we cannot say that the

district judge abused its discretion. The court adequately

considered the relevant § 3553 factors – including § 3553(a)(6)

– and determined that the Guidelines sentence of life

imprisonment was proper. It then explained its decision in a

15
sentencing order that discussed the salient § 3553(a) factors in

a particular, not a generic, fashion. On appeal, we may presume

Guidelines sentences to be reasonable, and the district court’s

conduct affords no reason to overturn that presumption in this

case. See Johnson, 445 F.3d at 341.

III.

Abu Ali’s remaining arguments stem from his constitutional

challenges to the district court’s sentencing determination.

A.

First, Abu Ali argues that the district court increased his

sentence as a penalty for exercising his Sixth Amendment right

to a jury trial and his Fifth Amendment right to remain silent.

It is true that a court may not penalize a defendant for

exercising his constitutional rights, but that is not what

happened here. The comments Abu Ali objects to reflect the

district court’s consideration of Abu Ali’s lack of remorse and

his unwillingness to accept responsibility for his crimes.

Courts have routinely considered such factors in sentencing, and

rightly so: a defendant’s unwillingness to acknowledge

responsibility and express regret reflect directly on the

likelihood of recidivism, and the danger a defendant might pose

to others if released. See, e.g., United States v. Cruzado-

16
Laureano, 527 F.3d 231, 237 (1st Cir. 2008) (district court’s

consideration of a defendant’s lack of remorse did not

“violate[ ] his constitutional right to maintain his innocence”

because “it is well established that lack of remorse is a proper

consideration in sentencing”); United States v. Johnson, 903

F.2d 1084, 1090 (7th Cir. 1990) (same).

The district court adhered to these established sentencing

principles in deciding to impose a life sentence on Abu Ali.

After all, Abu Ali refused to acknowledge his crimes even after

a jury had found him guilty beyond a reasonable doubt and, in

the district court’s words, never once recanted his “previously-

confessed desire to commit terrorist acts and desire to achieve

martyrdom.” When given the opportunity to allocute before

imposition of sentence, Abu Ali appeared, if anything, more

firmly committed to the course that brought him into the

criminal justice system. In view of this, the district court

reasonably concluded that Abu Ali would remain a threat to

society if released from prison after a term of years.

B.

Finally, Abu Ali contends that his sentence violates the

Eighth Amendment’s prohibition on cruel and unusual punishment.

Abu Ali is currently incarcerated in a maximum security

facility. At resentencing, Abu Ali presented evidence regarding

17
the negative physiological and psychological effects that stem

from spending protracted periods of time in such a facility. He

argues that it would violate the Eighth Amendment to sentence a

prisoner to a longer term of years on the theory that his

conditions of confinement will make him unfit to rejoin society

at an earlier date.

Before imposing sentence, the district court made the

following observations:

Most certainly 30 years of incarceration under
such restricted conditions would impact [Abu Ali’s]
mental and physical health, functioning and capacity.
Without a doubt, Mr. Abu Ali will struggle to
transition into a functioning society 30 years from
now that will have essentially moved on without him.
He will be released into a world that will bear only a
limited resemblance to the world he left behind, a
world with little if any friends or family left to
support him at the end of 30 years. He will be a
middle aged man with no skills, experiences or social
network.
Therefore, when the Court considers Mr. Abu Ali’s
demonstrated unwillingness to renounce the beliefs
that led him to participate in terrorist activities as
well as the dire conditions in which he would be
released, the unknowns about his mental state, his
ability to [assimilate] and whether . . . we should
assume that he will mature out of his prior confession
and desire to martyrdom, there’s simply no way for the
Court to know what Mr. Abu Ali’s mental state would be
after 30 years of solitary confinement.
The risk . . . of the unknown from a term of
years sentence is too great in this case. I cannot
put the safety of [the] American citizenry at risk.

Viewing these statements as a whole, it is apparent that the

court did not impose a life sentence to penalize Abu Ali for the

effects of his confinement. The court only discussed Abu Ali’s

18
“mental state” in the context of weighing his chances of

rehabilitation against the risks of recidivism. The court

properly considered the tenacity of Abu Ali’s violent beliefs

and the likelihood that time in prison would entrench those

beliefs in analyzing the probability that Abu Ali would again

act on those beliefs if released. In light of Congress’s

instruction for courts to consider the need to “protect the

public from further crimes of the defendant” in imposing a

sentence, it is hard to see how the district court’s actions

were erroneous. See 18 U.S.C. § 3553(a)(2)(C). The court’s

decision to impose a life sentence was therefore the product of

run-of-the-mill sentencing analysis, not some novel form of

Eighth Amendment violation.

IV.

In sum, the resentencing in this case proceeded within

well-established boundaries and reveals no abuse of discretion

on the part of the district court. For the foregoing reasons,

we affirm the judgment.

AFFIRMED

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