United States v. Ressam

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-

JCC-1

AHMED RESSAM,

Defendant-Appellee.  ORDER

AMENDING

OPINION AND

AMENDED

 OPINION

Appeal from the United States District Court

for the Western District of Washington

John C. Coughenour, District Judge, Presiding

Argued and Submitted

September 21, 2011—San Francisco, California

Filed March 12, 2012

Amended May 4, 2012

Before: Alex Kozinski, Chief Judge, and

Mary M. Schroeder, Stephen Reinhardt, Susan P. Graber,

M. Margaret McKeown, Kim McLane Wardlaw,

Richard A. Paez, Marsha S. Berzon, Richard R. Clifton,

Jay S. Bybee, and Mary H. Murguia, Circuit Judges.

Opinion by Judge Clifton;

Concurrence by Judge Reinhardt;

Dissent by Judge Schroeder

4667

UNITED STATES v. RESSAM 4671

COUNSEL

Helen J. Brunner (argued), Assistant United States Attorney,

and Mark N. Bennett, First Assistant United States Attorney,

Seattle, Washington, for the plaintiff-appellant.

Thomas W. Hillier, II, Federal Public Defender, Seattle,

Washington, for the defendant-appellee.

ORDER

The majority opinion is amended as follows:

1. On page 2816 of the slip opinion, change the first sen-

tence of the last paragraph from:

Upon our review of the record, we have a definite

and firm conviction that the district court committed

4672 UNITED STATES v. RESSAM

a clear error of judgment in sentencing Ressam as it

did.

to

Upon our review of the record, we conclude that the

district court abused its discretion in sentencing Res-

sam as it did.

2. On page 2844 of the slip opinion, change the citation at

the end of the second paragraph from:

United States v. Hinkson, 611 F.3d 1098, 1114 (9th

Cir. 2010) (en banc) (internal quotation marks omit-

ted), cert. denied, 131 S.Ct. 2096.

to

United States v. Hinkson, 585 F.3d 1247, 1260 (9th

Cir. 2009) (en banc) (quoting United States v. 4.85

Acres of Land, More or Less, Situated in Lincoln

County, Mont., 546 F.3d 613, 617 (9th Cir.2008)),

cert. denied, 131 S.Ct. 2096 (2011).

Add a new footnote 8 at the end of that paragraph, following

the revised citation (renumbering subsequent footnotes

accordingly), as follows:

In Hinkson, we adopted a two-part objective test to

define in more precise terms what is required to sup-

port a conclusion that there was an abuse of discre-

tion. That test “requires us first to consider whether

the district court identified the correct legal standard

for decision of the issue before it. Second, the test

then requires us to 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 infer-

UNITED STATES v. RESSAM 4673

ences that may be drawn from facts in the record.”

Id. at 1251.

3. On page 2865 of the slip opinion, change the last para-

graph from:

Because we are left with a definite and firm con-

viction that the district court committed a clear error

of judgment in sentencing Ressam as it did, includ-

ing by basing that sentence on several findings that

were clearly erroneous, the sentence is vacated as

substantively unreasonable, and the case is remanded

to the district court for resentencing.

to

Because we conclude that the district court abused

its discretion in sentencing Ressam as it did, includ-

ing by basing that sentence on several findings that

were clearly erroneous, the sentence is vacated as

substantively unreasonable, and the case is remanded

to the district court for resentencing.

Footnote 10 (now re-numbered 11) is retained at the end of

the revised paragraph.

OPINION

CLIFTON, Circuit Judge:

The government appeals the sentence imposed by the dis-

trict court upon Ahmed Ressam, the so-called “Millennium

Bomber,” as substantively unreasonable. We review a chal-

lenge of that nature under what the Supreme Court has

described as “the familiar abuse-of-discretion standard of

review.” Gall v. United States, 552 U.S. 38, 46 (2007).

4674 UNITED STATES v. RESSAM

Ressam was convicted by a jury on nine counts of criminal

activity1 in connection with his plot to carry out an attack

against the United States by detonating explosives at the Los

Angeles International Airport, commonly known and referred

to by its airport code “LAX.” His plan was for the attack to

occur on the eve of the new millennium, December 31, 1999.

The advisory Sentencing Guidelines imprisonment range for

Ressam’s convictions was calculated by the district court to

be 65 years to life. That calculation has not been challenged

by either party. The district court sentenced Ressam to a term

of imprisonment of 22 years, plus five years of supervised

release.

Upon our review of the record, we conclude that the district

court abused its discretion in sentencing Ressam as it did. As

a result, we conclude that the sentence imposed by the district

court was substantively unreasonable. We vacate the sentence

and remand the case to the district court for resentencing.

I. Factual Background and Procedural History

As discussed below, our review of a sentence for substan-

tive reasonableness is to consider the “totality of the circum-

stances” regarding the particular defendant. Gall, 552 U.S. at

51; United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008)

1

Specifically, Ressam was convicted of (1) conspiring to commit an act

of terrorism transcending national boundaries, in violation of 18 U.S.C.

§ 2332b(a)(1)(B); (2) conspiring to place an explosive in proximity to a

terminal, in violation of 18 U.S.C. § 33; (3) possession of false identifica-

tion documents in connection with a crime of violence, in violation of 18

U.S.C. § 1028(a)(4) and (b)(3)(B); (4) use of a fictitious name for admis-

sion into the United States, in violation of 18 U.S.C. § 1546; (5) making

false statements on a customs declaration, in violation of 18 U.S.C.

§ 1001; (6) smuggling explosives into the United States contrary to law,

in violation of 18 U.S.C. § 545; (7) transportation of explosives, in viola-

tion of 18 U.S.C. §§ 842(a)(3)(A) and 844(a); (8) possession of an unreg-

istered destructive device, in violation of 26 U.S.C. §§ 5841, 5861(d), and

5871; and (9) carrying an explosive during the commission of a felony, in

violation of 18 U.S.C. § 844(h)(2).

UNITED STATES v. RESSAM 4675

(en banc). As a result, we will describe in some detail the rele-

vant circumstances, the arguments presented to the district

court, and the district court’s explanation of the sentence that

it imposed.

Ahmed Ressam is an Algerian national. Traveling on a

false Moroccan passport issued in the name of Nassar Res-

sam, he left Algeria in 1992 and went to France. In 1993

French authorities deported him to Morocco and banned him

from returning to France for three years. He was returned to

France by Moroccan authorities when it was determined that

he was not Moroccan.

In 1994 Ressam arrived at Mirabel Airport in Montreal,

Canada, using an illegally altered French passport. When

Canadian immigration personnel confronted him, he divulged

his true name and applied for refugee status, indicating on his

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. A moratorium on deportations from Can-

ada to Algeria allowed him to stay in Canada, however, under

conditions set by the Canadian government. He failed to com-

ply with those conditions, and in May 1998 a warrant was

issued for his arrest. He was not arrested, however, because

at the time the warrant issued, he was attending a terrorist

training camp in Afghanistan.

In March 1998, traveling under the name of Benni Noris,

Ressam left Montreal for Karachi, Pakistan. In Karachi, he

got in touch with Abu Zubeida, who was in charge of the

Afghan terrorist training camps. While he was in Afghanistan,

fatwahs were issued, including one by Sheikh Omar Abdel

Rahman, directing the terrorists to fight Americans and hit

their interests everywhere.

Between March 1998 and February 1999, Ressam attended

three training camps for Islamic terrorists in Afghanistan. He

4676 UNITED STATES v. 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 explosives,

and black plastic explosives), sabotage, the selection of tar-

gets, urban warfare, tactics (including assassinations), secur-

ity, and the use of poisons and poisonous gas. The sabotage

training included learning how to disrupt the infrastructure of

a country, by destroying locations such as electric plants, gas

plants, airports, railroads, and hotels. The urban warfare train-

ing instructed on how to carry out operations in cities, how to

block roads, how to assault buildings, and covered the strate-

gies used in these operations. Explosives training included

how to do surveillance, take pictures, and blend in by wearing

clothing that a tourist would wear. The weapons and ammuni-

tion 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 over the course of a month and a half in the manufac-

ture of explosives. He learned how to put chemical substances

together to form explosives and how to make electronic cir-

cuits to be used to blow things up.

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’s

members to travel separately and meet in Canada, where they

would carry out bank robberies to finance their operation in

the United States.

In February 1999, Ressam returned to Canada, traveling

under the name Benni Noris and carrying $12,000 in cash, a

chemical substance called Hexamine used as a booster in the

UNITED STATES v. RESSAM 4677

manufacture of explosives, and a notebook with instructions

on how to put together explosives.

In the summer of 1999, Abu Doha informed Ressam, from

London, that the other members of the Montreal cell had

decided to remain in Europe because they ran into immigra-

tion problems. Ressam decided to continue with the operation

without the other members of his cell. He chose LAX as his

target, 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. Ressam and Zemiri did surveillance on the bank. Res-

sam asked Zemiri and Samir Ait Mohamed to obtain a pistol

with a silencer and hand grenades to use during the bank rob-

bery. Ressam planned to throw a live hand grenade at the

police and run if he needed to do so in order to get away.

In November 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 Dahoumane

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, Res-

sam drove the car carrying the explosives onto an American

car ferry at Tsawwassen, B.C. The ferry arrived in Port Ange-

les, Washington, later that evening. Upon leaving the ferry,

Ressam was questioned by a U.S. customs inspector. She

detected nervousness and directed Ressam to a secondary

inspection area.

Ressam filled out a customs declaration form falsely, stat-

ing that his name was Benni Noris 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

4678 UNITED STATES v. RESSAM

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.

As the inspectors reached into the wheel well to remove the

contraband, Ressam ducked down behind the protection of the

police car’s door. 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.2

Following his arrest, the government indicted Ressam on

the nine counts identified above, at 4674, note 1. The statu-

tory maximum penalty for these offenses was 130 years in

prison.

Before trial, the government offered Ressam an agreement

to recommend a sentence of 25 years of imprisonment in

exchange for a guilty plea. The government considered the

sentence offered to be substantially discounted, taking into

2

As reported to the district court by the government, 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.

UNITED STATES v. RESSAM 4679

account the risk of trial. At that time, the government was

concerned that its evidence with regard to the most serious

charge and the one that carried the most weight, count one of

the indictment, alleging conspiracy to commit an act of terror-

ism transcending national boundaries, was thin. The govern-

ment was uncertain about its ability to prove what Ressam

intended to do once he crossed the border, using a phony

passport and carrying more than 100 pounds of explosives. It

was not until closer to the time of trial that some of the most

important evidence was developed with regard to what Res-

sam intended to do with the explosives. Ressam rejected the

pre-trial plea offer of 25 years.

Due to concern for possible prejudice because of public

sentiment in the Seattle area, the trial judge granted Ressam’s

motion to transfer the site of the trial to Los Angeles. Follow-

ing a 19-day trial involving approximately 120 witnesses and

more than 600 exhibits, a jury convicted Ressam on all counts

on April 6, 2001.

About one month after the jury verdict but before sentenc-

ing, counsel for Ressam informed the government that Res-

sam wished to cooperate with law enforcement authorities in

the investigation of terrorist activities. The following week,

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 coopera-

tion. On June 22, 2001, the United States Attorney responded

to Ressam’s offer with a proposed cooperation agreement.

Ressam signed the agreement the next day.

The cooperation agreement required Ressam’s full coopera-

tion with designated agencies and his truthful testimony in

court proceedings as requested by the government, including

but not limited to the trial of his co-conspirator, Mokhtar Hao-

uari. In exchange, the government agreed to file a U.S.S.G.

§ 5K1.1 motion asking the court for a downward departure

4680 UNITED STATES v. RESSAM

from the applicable Sentencing Guidelines range of 65 years

to life, a range which was then mandatory. The parties agreed

that neither side would request a sentence of less than 27

years or greater than the high end of the Guidelines range,

which was life imprisonment.

Between May 10, 2001, and September 11, 2001, Ressam

met with government agents approximately 22 times. In July

Ressam testified as a prosecution witness at the trial of Hau-

oari, who had recruited Abdelghani Meskini to support Res-

sam’s terrorist plot to bomb LAX. United States v. Haouari,

2001 WL 1154714, at *2-4 (S.D.N.Y. Sept. 28, 2001).

Meskini pleaded guilty and also testified against Hauoari. The

jury found Hauoari guilty, and he was sentenced to 24 years

in prison, two years short of the statutory maximum.

Based almost entirely upon information provided by Res-

sam, the government 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 extra-

dite Doha from England depended exclusively upon a com-

prehensive declaration provided by Ressam. The government

also relied on Ressam’s information to file a complaint

against Samir Ait Mohamed, and Ressam knew the success of

that proceeding would depend on his continued cooperation.

After the terrorist attacks that occurred on September 11,

2001, Ressam identified Zacarias Moussaoui from a photo-

graph as an individual whom he had met at the Khalden train-

ing 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.

Six months after entering into the cooperation agreement

with the government, Ressam began to show reluctance to

discuss certain matters. FBI Special Agent Humphries, who

UNITED STATES v. RESSAM 4681

worked with Ressam from the commencement of his coopera-

tion with the government, testified that in a June 2001 inter-

view, Ressam had talked with him at length about Nacer

Hamaidi, an individual in Vancouver, B.C., who had assisted

Ressam. This information was passed on to Canadian authori-

ties, but when officers from the Royal Canadian Mounted

Police traveled to the United States to interview him, Ressam

would no longer discuss Hamaidi, despite Agent Humphries’

effort to encourage him to do so. Agent Humphries later testi-

fied 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.

In February 2002, nine months after Ressam began his

cooperation with the government, Ressam’s counsel met with

federal prosecutors and sought to renegotiate the terms of the

parties’ cooperation agreement, particularly its 27-year floor.

According to Ressam’s counsel, Ressam was suffering from

anxiety related to his impending sentence, his conditions of

confinement were compromising his physical and mental

well-being, and he wanted closure. The prosecutors stated that

Ressam’s cooperation to date was not of a nature to lead them

to consider recommending a sentence at the agreement’s 27-

year floor, let alone dissolving that floor. The government

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 serious charges on which

he had been convicted. The government offered to assist Res-

sam in getting into the witness security program for prisoners

in federal custody, which could result in a less onerous hous-

ing situation, albeit at some distance from Seattle. Ressam

declined the offer.

4682 UNITED STATES v. RESSAM

The district court granted several sentencing continuances

to allow Ressam to cooperate further with the government. He

continued cooperating to some degree 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. He provided information to the governments

of seven different countries and testified in two trials, both of

which ended in convictions of the defendants. He provided

names of at least 150 people involved in terrorism and

described many others. He also provided information about

explosives that potentially saved the lives of law enforcement

agents, and extensive information about the mechanics of

global terrorism operations.

In February 2003 the government filed a motion for a fur-

ther continuance of Ressam’s sentencing and requested an

adjournment pursuant to the terms of his cooperation agree-

ment with the government. The government informed the dis-

trict court that, relying on Ressam’s promise to cooperate,

Abu Doha had been ordered extradited by a court in London

to the United States for prosecution, and the government was

in the process of extraditing Samir Ait Mohamed from Can-

ada. The government 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 at that time, the government

would likely make a sentencing recommendation calling for

a considerably longer period of incarceration than it might

had Ressam completed his promised cooperation.

On February 26, 2003, the district court held a hearing on

the government’s motion for a continuance. At the hearing,

the district court told the government it would grant a continu-

ance conditioned upon the immediate filing of a § 5K1.1

motion for a downward departure based upon Ressam’s coop-

eration. The government filed a § 5K1.1 motion that same

day, based on his substantial assistance in the Haouari prose-

cution.

UNITED STATES v. RESSAM 4683

Nevertheless, Ressam was unwilling to continue coopera-

tion. 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 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 Attorney’s

Office, and behavioral science experts from the FBI.

It was decided that Ressam would be moved to a prison

environment that would afford him more environmental,

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 less tense

and that his thinking was strikingly clearer. Dr. Grassian

reported that Ressam realized that he had made a solemn

promise to cooperate, and that his continued refusal to testify

and speak with the government could have serious adverse

consequences in regard to his sentence and his custody status.

He did not resume cooperation, however, and 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. Contrary

to the terms set forth in the June 23, 2001 cooperation agree-

ment, which provided that neither party would recommend a

sentence of less than 27 years, Ressam requested a sentence

of 12-1/2 years (150 months) of imprisonment. His position

was that the starting point should be the government’s pre-

trial plea offer of 25 years, rather than the Sentencing Guide-

lines range of 65 years to life.

The government recommended a sentence of 35 years of

imprisonment, noting that by ending his cooperation, Ressam

had effectively terminated at least two criminal cases of vital

4684 UNITED STATES v. RESSAM

interest to national security. The government acknowledged

that Ressam had provided valuable assistance to the United

States and to foreign authorities, and it filed a summary of

debriefings, proffers, and testimony provided by him. Based

on that assistance, the government recommended a sentence

that represented a substantial reduction from the 65-year bot-

tom of the Guidelines range, despite his breach of the cooper-

ation agreement.

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

providing a personal account of his movement from North

America through Europe and into Afghanistan via safe houses

in Pakistan. He also testified that most of the information Res-

sam provided to the FBI was already known within the U.S.

intelligence community from classified sources, but Ressam

served as an unclassified source, which permitted the federal

government to provide the previously classified information

to other law enforcement and intelligence services throughout

the world without the same risk of exposing the original clas-

sified source.

Ressam argued that his cooperation was worth a greater

reduction in his sentence. He claimed that he had ceased

cooperating, in part, because he was having trouble remem-

bering details. Ressam submitted a psychiatric report prepared

by Dr. Grassian wherein he opined that the combination of

solitary confinement and repeated interrogations had a nega-

tive effect on Ressam’s mental health, though the district

court commented that “it strikes me that a lot of the details

that he’s not remembering now are things that one would not

forget.” Dr. Grassian further stated that Ressam’s history pro-

vided strong evidence that he would not be a danger to the

community.

At the district court’s urging, Ressam asked for a three-

month continuance of the sentencing hearing to allow him to

UNITED STATES v. RESSAM 4685

consider whether he was willing to cooperate further in the

prosecutions of Doha and Mohamed. Over the government’s

objection, the district court continued the hearing.

Ressam’s cooperation did not improve during the three

months that followed. On July 27, 2005, the district court held

another sentencing hearing and heard argument from both

sides, which largely repeated the arguments presented at the

April 27, 2005 hearing.

At the conclusion of the hearing, the district court sen-

tenced Ressam to 22 years of imprisonment, plus five years

of supervised release. After pronouncing the sentence, the dis-

trict court provided the following explanation:

Okay. Let me say a few things. First of all, it will

come as no surprise to anybody that this sentencing

is one that I have struggled with a great deal, more

than any other sentencing that I’ve had in the 24

years I’ve been on the bench.

I’ve done my very best to arrive at a period of

confinement that appropriately recognizes the sever-

ity of the intended offense, but also recognizes the

practicalities of the parties’ positions before trial and

the cooperation of Mr. Ressam, even though it did

terminate prematurely.

The message I would hope to convey in today’s

sentencing is two-fold: First, that we have the

resolve in this country to deal with the subject of ter-

rorism and people who engage in it should be pre-

pared to sacrifice a major portion of their life in

confinement.

Secondly, though, I would like to convey the mes-

sage that our system works. We did not need to use

a secret military tribunal, or detain the defendant

4686 UNITED STATES v. RESSAM

indefinitely as an enemy combatant, or deny him the

right to counsel, or invoke any proceedings beyond

those guaranteed by or contrary to the United States

Constitution.

I would suggest that the message to the world

from today’s sentencing is that our courts have not

abandoned our commitment to the ideals that set our

nation apart. We can deal with the threats to our

national security without denying the accused funda-

mental constitutional protections.

Despite the fact that Mr. Ressarn is not an Ameri-

can citizen and despite the fact that he entered this

country intent upon killing American citizens, he

received an effective, vigorous defense, and the

opportunity to have his guilt or innocence deter-

mined by a jury of 12 ordinary citizens.

Most importantly, all of this occurred in the sun-

light of a public trial. There were no secret proceed-

ings, no indefinite detention, no denial of counsel.

The tragedy of September 11th shook our sense of

security and made us realize that we, too, are vulner-

able to acts of terrorism. Unfortunately, some

believe that this threat renders our Constitution obso-

lete. This is a Constitution for which men and

women have died and continue to die and which has

made us a model among nations. If that view is

allowed to prevail, the terrorists will have won.

It is my sworn duty, and as long as there is breath

in my body I’ll perform it, to support and defend the

Constitution of the United States.

Ressam appealed from his conviction on count nine of the

indictment, for carrying an explosive during the commission

UNITED STATES v. RESSAM 4687

of a felony. In a cross-appeal, the government challenged

Ressam’s sentence as substantively unreasonable. We

reversed the conviction on count nine. United States v. Res-

sam, 474 F.3d 597 (9th Cir. 2007). Because that reversal

required resentencing, we vacated Ressam’s sentence and

remanded without discussing the merits of the government’s

argument that the sentence was unreasonable. Id. at 604.

The Supreme Court reversed this court’s decision and rein-

stated the conviction on count nine. United States v. Ressam,

553 U.S. 272 (2008). On remand, we vacated the sentence and

remanded for resentencing because the district court had not

determined the applicable Guidelines range, as required under

our intervening en banc panel decision in Carty. United States

v. Ressam, 538 F.3d 1166, 1167 (9th Cir. 2008) (order).

While the matter was on appeal, Ressam sent a letter to the

district court recanting his prior testimony implicating Ahcene

Zemiri in his terrorist plot. Similarly, in a letter to the United

States Attorney’s Office, Ressam recanted his previous testi-

mony against Haouari. In the letter, Ressam claimed 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. 2007). Haouari submitted

Ressam’s letter as “newly discovered evidence” sufficient to

warrant the filing of a second or successive 28 U.S.C. § 2255

petition, but that motion was denied. Id. at 352, 354.

After the imposition of the original sentence in July 2005

but before the resentencing hearing that was ultimately held

on December 3, 2008, the district judge joined the public

debate over the proper place to try persons accused of being

terrorists, in testimony before the Senate Judiciary Committee

and in op-ed columns in national newspapers. See Improving

Detainee Policy: Handling Terrorism Detainees within the

American Justice System Before the Senate Comm. on the

Judiciary, 110th Cong. 110-455 (2008); John C. Coughenour,

4688 UNITED STATES v. RESSAM

How to Try a Terrorist, N.Y. Times, Nov. 1, 2007;3 John C.

Coughenour, The Right Place to Try Terrorism Cases, Wash.

Post, July 27, 2008.4 In those statements, the judge cited his

experience with the Ressam case in support of his opinion that

traditional federal courts were the appropriate place to put

accused terrorists on trial.5

The resentencing hearing was held on December 3, 2008.

The district court began by calculating the applicable Sentenc-

ing Guidelines range for Ressam’s crimes of conviction at 65

years to life, including a ten-year mandatory prison sentence

for count nine to run consecutively to the sentences for all

other charges. Before imposing sentence, the district court

heard from the parties.

Appearing without counsel, by his own choice, Ressam told

the district court that he recanted his testimony against Maktar

Haouari and all statements implicating Abu Doha and Samir

Ait Mohamed. Ressam made the following statement before

the district court at his sentencing hearing:

3

Available at http://www.nytimes.com/2007/11/01/opinion/01coughe-

nour.html (last visited Nov. 10, 2011).

4

Available at http://www.washingtonpost.com/wp-dyn/content/article/

2008/07/25/AR2008072502759.html (last visited Nov. 10, 2011).

5

The Washington Post column of July 27, 2008, for instance, began

with the following paragraph:

I have spent 27 years on the federal bench. In particular, my

experience with the trial of Ahmed Ressam, the “millennium

bomber,” leads me to worry about Attorney General Michael

Mukasey’s comments last week, urging Congress to pass legisla-

tion outlining judicial procedures for reviewing Guantanamo

detainees’ habeas petitions. As constituted, U.S. courts are not

only an adequate venue for trying terrorism suspects but are also

a tremendous asset in combating terrorism. Congress risks a

grave error in creating a parallel system of terrorism courts

unmoored from the constitutional values that have served our

country so well for so long.

UNITED STATES v. RESSAM 4689

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

statement that was put in my mouth, which I said

yes, because—due to the extreme mental exhaustion

I was going through. I also am subject of pressures

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 or a threat or

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. I did not do that in order to win

or to 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

4690 UNITED STATES v. RESSAM

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 the 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 the 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

also in order to appear at the earliest possible time in

the 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 that I made in

the past as to Abu Doha and Samir Mohamed. I indi-

cate in my earlier statement because I did not know

what I was saying.

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 sentence.”

In its argument, the government retracted the position

stated in the sentencing memorandum filed before the hear-

ing, which recommended a sentence of 45 years. The govern-

ment instead recommended that Ressam serve a term of life

UNITED STATES v. RESSAM 4691

imprisonment, emphasizing the seriousness of the crimes, his

further recantation and attempts to distance himself from his

earlier cooperation, and the need to protect the public from

further crimes.

With regard to the seriousness of the crimes, the govern-

ment in its sentencing memorandum urged the district court

to consider that “all of the crimes of which Ressam was

charged and convicted were directed at achieving his goal of

placing a bomb at [LAX].” The government underscored the

serious treatment given to crimes of terrorism under the Sen-

tencing Guidelines. It quoted United States v. Meskini, 319

F.3d 88, 92 (2d Cir. 2003), which noted:

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 incapac-

itated for a longer period of time.

Along similar lines, the government also argued:

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.

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

4692 UNITED STATES v. RESSAM

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 will Ressam no longer pose a threat to

the people of the United States.

The government acknowledged that Ressam’s cooperation,

while it lasted, had been useful, but only to a degree. It

emphasized the termination of Ressam’s cooperation and

observed that much of the value had been undermined or

entirely lost as a result of his affirmative recantations subse-

quent to the 2005 sentencing hearings. It 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.

Perhaps his most valuable information—that lead-

ing to the charges against Doha and Mohamed—

UNITED STATES v. RESSAM 4693

cannot be credited. Ressam undermined that value

when he chose to end his cooperation leading to the

dismissal of these charges. . . . [H]e has also under-

mined his other cooperation by recanting earlier

statements.

The government stated that Ressam’s recantation of his

prior statements regarding his terrorist training and the activi-

ties of other terrorists, and his decision to cease cooperating,

forced the government to dismiss criminal charges against

Doha and Mohamed. The government noted that as a high-

ranking al-Qaeda member with close ties to Osama Bin

Laden, Doha was one of the most dangerous terrorists ever

charged by the United States. After the dismissal of the

charges against him, Doha was released from custody and left

the United States.

On the subject of Ressam’s cooperation, the government

argued that it would not have entered into the cooperation

agreement with Ressam if it had known what was going to

happen. It argued that “[a]ny benefit he provided initially has

been substantially outweighed by his reversal, and [he] now

attempts to use his position as a cooperating defendant to help

his fellow terrorists.”

Regarding the need to protect the public, the government

explained that Ressam would still be relatively young upon

release from prison if he were given a sentence similar to the

one originally imposed by the district court in 2005:

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

4694 UNITED STATES v. RESSAM

decision to affirmatively help Hassan Zemiri and

Adil Charkaoui, and as of today his attempt to with-

draw even his cooperation in the trial against Hao-

uari.

The government urged the district court to “send the defen-

dant away for a long enough period of time so there is no

chance he will ever target innocent victims again.”

After hearing from the parties, the district court again sen-

tenced Ressam to 22 years in prison. The court’s explanation,

in full, was 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-

UNITED STATES v. RESSAM 4695

sam was carrying out at the time of his arrest cannot

be understated.

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 a 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 el Motassadeq. I am

butchering that name. I will spell it. It is M-O-U-N-

I-R, E-L M-O-T-A-S-S-A-D-E-Q. In 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-

4696 UNITED STATES v. RESSAM

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

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 years in solitary confinement

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. Hilli-

er’s 2005 sentencing memorandum and the report

from Dr. Grassian leads me to the conclusion that

Mr. Ressam’s life history and personal characteris-

tics support favorable sentencing consideration. His

UNITED STATES v. RESSAM 4697

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. Hillier describes a

quiet, solitary and devout man whose true character

is manifest in his decision to cooperate. Through the

course of the trial and immediately thereafter, Mr.

Ressam wrestled with what he had done and why. As

Mr. Hillier put it, Mr. Ressam determined that vio-

lent 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 mental health deteriorated

somewhat from the isolation of his confinement and

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. Mr. Haouari, for example, was sen-

tenced to 24 years for his involvement in the same

plot. Abdel Meskini, also indicted based on his con-

nection to Mr. Ressam and prosecuted in the South-

ern District of New York, pled guilty and received

a sentence of six years.

Finally, I have spent a good deal of time since Mr.

Ressam’s previous sentencing reviewing other

4698 UNITED STATES v. RESSAM

terrorism-related prosecutions around the country.

According to a recent study of 124 defendants sen-

tenced in terrorism trials in American federal courts

since September 12, 2001 to December 31, 2007, a

paper that was prepared by two former federal prose-

cutors, the average term of imprisonment was a little

over eight years. These cases involved different sets

of facts and did not influence my decision in deter-

mining an appropriate sentence in this case. How-

ever, I mention a few of them here to provide a

backdrop against which Mr. Ressam’s conviction

and sentence may be viewed. For example, John

Walker Lindh was captured during the 2001 invasion

of Afghanistan while he was fighting in the Taliban

army. Mr. Lindh was trained by al Qaeda and fought

on the front lines in Afghanistan against the North-

ern Alliance. The notoriety of his case stemmed in

part from his involvement in a violent uprising in

Afghanistan in which a CIA agent was killed. He

was later brought to the United States and indicted

on ten charges in the Eastern District of Virginia.

Ultimately, he pled guilty to supplying services to

the Taliban army and carrying an explosive during

the commission of a felony. He received a sentence

of 20 years.

In 2002, Imran Mandhai pled guilty in the South-

ern District of Florida to conspiring to destroy elec-

trical power stations by means of fire and explosives

in retaliation for the US government’s support of

Israel and in an effort to secure the release of Mus-

lim prisoners. After numerous sentencing appeals

Mr. Mandhai received a sentence of 14 years.

In 2005, after being held for three years as an

enemy combatant, Jose Padilla was indicted in the

Southern District of Florida on federal terrorism

charges. After a four-month jury trial, he was con-

UNITED STATES v. RESSAM 4699

victed of conspiracy to murder, kidnap and maim,

and conspiracy to provide material support to terror-

ists. The conviction resulted in a sentencing

[G]uideline[s] range of 360 months to life. Mr.

Padilla received a sentence of 17 years and four

months. In imposing the sentence, the Court consid-

ered the fact that Mr. Padilla had been held in soli-

tary confinement under harsh conditions for a

significant period of time and would likely be held

under similar conditions in the future. Mr. Padilla’s

co-conspirators, Mr. Hassoun and Mr. Jayyousi,

received sentences of 15 years and eight months and

12 years and eight months, respectively.

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

[G]uideline[s] range.

Therefore, based on all the factors listed in 18

USC 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 [G]uideline[s] range. However, I

believe the factors I have examined on the record are

4700 UNITED STATES v. RESSAM

sufficiently compelling to support the degree of the

variance.

After the sentencing, the government moved to withdraw

its § 5K1.1 motion, relying on language in the agreement that

gave the government the right to withdraw the motion

“[s]hould it be determined by the government that Mr. Res-

sam has violated any provision of this agreement.” The dis-

trict court denied the motion as untimely.

After advising Ressam of his right to appeal the sentence,

the district court offered some concluding remarks:

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. Mr. Ressam’s trial and

the outstanding professionalism of both the prosecu-

tion and defense throughout this case illuminate how

our country can deal with threats to our national

security without denying the accused constitutional

fundamental protections within the framework of our

federal court system.

As our nation prepares for a new chapter of Amer-

ican history with a new president, it is my hope that

those with the power to affect the way terrorism tri-

als are conducted in this country will look favorably

upon this case and share my view.

The government appealed the sentence imposed upon Res-

sam. A three-judge panel of this court, by a 2-1 majority,

vacated the sentence and remanded for resentencing before a

different district judge. United States v. Ressam, 593 F.3d

UNITED STATES v. RESSAM 4701

1095 (9th Cir.), amended by 629 F.3d 793 (9th Cir. 2010).6

We granted Ressam’s petition for rehearing en banc. United

States v. Ressam, 653 F.3d 963 (9th Cir. 2011).

II. The Government’s Appeal

Ordinarily, when a sentence is appealed, “we first consider

whether the district court committed significant procedural

error, then we consider the substantive reasonableness of the

sentence.” Carty, 520 F.3d at 993. In this appeal, however, the

government has expressly disclaimed any procedural chal-

lenge to the sentence imposed by the district court. In its

opening brief, at 36, the government described the usual two-

step process but made clear that it raised only a substantive

challenge in this case: “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 reasonable, the

issue raised here.” (Citation omitted.) That stance was reiter-

ated in the government’s reply brief, at 5: “A sentence is

reviewed first for procedural error, although none is alleged

here.” (Citation omitted.) As described in the opening brief,

“[t]he sole issue presented 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),” the statute that specifies the factors to be

considered in imposing a sentence. Government counsel

repeated the one-issue limitation at oral argument. As the gov-

ernment has decided to focus solely on the substantive reason-

ableness of the sentence, we elect to do the same.7

6

Parts of this opinion, particularly large portions of the factual back-

ground, are drawn directly from the panel opinion authored by Judge

Arthur Alarcón. His contribution is appreciated.

7

We express no view on the question whether we could properly, on

appellate review, vacate a sentence because of procedural errors even

when the government does not argue procedural error and limits its argu-

ment to substantive unreasonableness, nor do we comment on the standard

of review to be applied in such a situation.

4702 UNITED STATES v. RESSAM

III. Standard of Review

As noted at the outset of this opinion, we review the sub-

stantive reasonableness of a criminal sentence under what the

Supreme Court has described as “the familiar abuse-of-

discretion standard of review.” Gall, 552 U.S. at 46. That it

might be familiar does not mean that it is always clear or sim-

ple to apply.

In general terms we have held that “[a] district court abuses

its discretion when it makes an error of law, when it rests its

decision on clearly erroneous findings of fact, or when we are

left with a definite and firm conviction that the district court

committed a clear error of judgment.” United States v. Hink-

son, 585 F.3d 1247, 1260 (9th Cir. 2009) (en banc) (quoting

United States v. 4.85 Acres of Land, More or Less, Situated

in Lincoln County, Mont., 546 F.3d 613, 617 (9th Cir.2008)),

cert. denied, 131 S.Ct. 2096 (2011).8

In the sentencing context, the abuse of discretion standard

is intended to chart a course between two extremes. It is clear

that we are to afford significant deference to a district court’s

sentencing decision. As stated in Carty, “we may not reverse

just because we think a different sentence is appropriate.” 520

F.3d at 993. The Supreme Court explained this principle in

Gall:

Practical considerations also underlie this legal

principle. The sentencing judge is in a superior posi-

tion to find facts and judge their import under

8

In Hinkson, we adopted a two-part objective test to define in more pre-

cise terms what is required to support a conclusion that there was an abuse

of discretion. That test “requires us first to consider whether the district

court identified the correct legal standard for decision of the issue before

it. Second, the test then requires us to 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.

UNITED STATES v. RESSAM 4703

§ 3553(a) in the individual case. The judge sees and

hears the evidence, makes credibility determinations,

has full knowledge of the facts and gains insights not

conveyed by the record. The sentencing judge has

access to, and greater familiarity with, the individual

case and the individual defendant before him than

the Commission or the appeals court. Moreover,

[d]istrict courts have an institutional advantage over

appellate courts in making these sorts of determina-

tions, especially as they see so many more Guide-

lines sentences than appellate courts do.

552 U.S. at 51-52 (internal quotation marks and citations

omitted).

At the same time, our deference to the district court is not

total. When it introduced the advisory Guidelines system in

United States v. Booker, 543 U.S. 220 (2005), the Court made

clear that appellate review of a sentence imposed by the dis-

trict court was not eliminated. Rather, a sentence is subject to

review by the courts of appeals for “reasonableness.” Id. at

261-62.

This is, we believe, where the dissenting opinion goes

astray. It appears to our dissenting colleagues to be enough

that the district court said that it considered the factors set

forth in 18 U.S.C. § 3553(a) and provided some explanation

of its reasoning. Practically speaking, the dissent would limit

its review of a sentence imposed by a district court to proce-

dural regularity. The dissent characterizes our conclusion that

the district court abused its discretion as a simple disagree-

ment that amounts to an improper re-weighing by this court

of the relevant factors and asserts, repeatedly, that our deci-

sion violates the Supreme Court’s directions in Gall. See, e.g.,

Dissenting op. at 4731. The dissent thus emphasizes “how

scrupulously the district court followed § 3553(a) in weighing

each of its factors.” Id. at 4735. But Gall explicitly confirmed

the responsibility of the court of appeals to review not only

4704 UNITED STATES v. RESSAM

the process by which the sentence was imposed but also the

substance of the sentence: “Assuming that the district court’s

sentencing decision is procedurally sound, the appellate court

should then consider the substantive reasonableness of the

sentence imposed under an abuse-of-discretion standard.”

Gall, 552 U.S. at 51; see Carty, 520 F.3d at 993. That the dis-

trict court followed the proper procedure in imposing the sen-

tence does not end our review.

The abuse of discretion standard is deferential, but it does

not mean anything goes. The Court held in Gall that the dis-

trict court had not abused its discretion in that case, but it did

not hold that discretion could never be abused. The dissenting

opinion appears prepared to affirm the sentence imposed by

the district court because it was imposed in a procedurally

proper manner, but, as other courts have cautioned, appellate

review for substantive reasonableness should not be such a

“rubber stamp.” See United States v. Pinson, 542 F.3d 822,

836 (10th Cir. 2008) (“[U]ntil the Supreme Court tells us oth-

erwise[,] appellate review continues to have an important role

to play and must not be regarded as a rubber stamp.”); United

States v. Rattoballi, 452 F.3d 127, 132 (2d Cir. 2006) (“Our

own review for reasonableness, though deferential, will not

equate to a ‘rubber stamp.’ ”); United States v. Moreland, 437

F.3d 424, 433 (4th Cir. 2006) (“Although [a reasonableness]

standard clearly requires us to afford a degree of deference to

the sentencing decisions of the district court, ‘reasonableness’

is not a code-word for ‘rubber stamp.’ ”).

We have, on rare occasion, vacated a sentence on the

ground that it was substantively unreasonable. In United

States v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009),

for instance, we vacated a 52-month sentence imposed for a

conviction of an alien for attempting to reenter the United

States unlawfully. The sentence imposed by the district court

fell within the applicable Guidelines range, but we concluded

that it was substantively unreasonable, nonetheless, largely

because it was unduly influenced by a prior conviction that

UNITED STATES v. RESSAM 4705

was more than twenty years old. Recognizing that a simple

disagreement with the district court’s sentencing decision was

not enough under the abuse of discretion standard to support

a conclusion that the sentence was substantively unreason-

able, we held that “we may reverse if, upon reviewing the

record, we have a definite and firm conviction that the district

court committed a clear error of judgment in the conclusion

it reached upon weighing the relevant factors.” Id. at 1055.

We adhere to the formulation announced in Amezcua-

Vasquez. That requirement for “a definite and firm conviction

that the district court committed a clear error of judgment” is

consistent with the general description of the abuse of discre-

tion standard we recently articulated in Hinkson, as quoted

above at 4702.

As the Second Circuit has explained, the substantive rea-

sonableness standard has much in common with other defer-

ential standards applied in other contexts, such as the

“manifest-injustice” and “shocks-the-conscience” standards:

First, they are deferential to district courts and pro-

vide relief only in the proverbial “rare case.” Second,

they are highly contextual and do not permit easy

repetition in successive cases. Third, they are depen-

dent on the informed intuition of the appellate panel

that applies these standards. In sum, these standards

provide a backstop for those few cases that, although

procedurally correct, would nonetheless damage the

administration of justice because the sentence

imposed was shockingly high, shockingly low, or

otherwise unsupportable as a matter of law. Of

course, an “intuitive” review cannot be an invitation

to mischief by tinkering with any sentence that

appellate judges simply do not like. Responsible

appellate review of sentences necessarily places

great trust in sentencing courts while still recogniz-

ing the responsibility to examine the actual sentence

4706 UNITED STATES v. RESSAM

itself (quite apart from the procedures employed in

arriving at the sentence).

United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009) (cita-

tions and footnote omitted), cert. denied 131 S. Ct. 140

(2010).

In sum, our review of the substantive reasonableness of a

sentence is deferential and will provide relief only in rare

cases. Such appellate review necessarily turns on the particu-

lars of each case.9

IV. Ressam’s Sentence

Recognizing the deference owed to the district court, it is

our conclusion that the sentence imposed by the district court

in this case was substantively unreasonable. We reach that

conclusion after examining the “totality of circumstances,” as

directed by Gall, 552 U.S. at 50, and Carty, 520 F.3d at 993.

A. Section 3553(a) Factors and the Guidelines Range

To put the sentence imposed on Ressam in context, we

9

Rigas contains another useful observation regarding the appropriate

standard of review that we believe is worth noting and with which we

agree:

To say that a sentence is “substantively unreasonable” is not to

say that “no reasonable person” would have imposed such a sen-

tence. We may generally assume that federal judges are “reason-

able” people in the commonsense definition of the term.

Nonetheless, even reasonable individuals can make unreasonable

decisions on occasion. The Supreme Court recognizes this and

has charged the Courts of Appeals with reviewing the substance

of sentences for reasonableness, and we cannot employ a defini-

tion of “substantive unreasonableness” that would render the

required review a dead letter.

583 F.3d at 123 n. 5. The law imposes a “no reasonable person” standard

in other contexts, but it does not apply here.

UNITED STATES v. RESSAM 4707

begin with the factors to be considered by the district court in

sentencing, as set forth in 18 U.S.C. § 3553(a), and the now-

advisory Sentencing Guidelines range.

In our en banc decision in Carty, we outlined in bullet

points our understanding of basic sentencing principles drawn

from the relevant Supreme Court precedents regarding sen-

tencing, notably Booker, Gall, Rita v. United States, 551 U.S.

338 (2007), and Kimbrough v. United States, 552 U.S. 85

(2007). Two of those bullet points described the district

court’s responsibility with explicit reference to § 3553(a):

• The 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 deterrence; to

protect the public; and to provide the defendant with

needed educational or vocational training, medical

care, or other correctional treatment. 18 U.S.C.

§ 3553(a) and (a)(2).

....

• The district court should then consider the

§ 3553(a) factors to decide if they support the sen-

tence suggested by the parties, i.e., it should consider

the nature and circumstances of the offense and the

history and characteristics of the defendant; the need

for the sentence imposed; the kinds of sentences

available; the kinds of sentence and the sentencing

range established in the Guidelines; any pertinent

policy statement issued by the Sentencing Commis-

sion; the need to avoid unwarranted sentence dispari-

ties among defendants with similar records who have

been found guilty of similar conduct; and the need to

provide restitution to any victims. 18 U.S.C.

§ 3553(a)(1)-(7); Gall, 552 U.S. at 50 n.6.

4708 UNITED STATES v. RESSAM

Carty, 520 F.3d at 991.

[1] “A substantively reasonable sentence is one that is ‘suf-

ficient, 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)). “The touchstone of ‘reasonableness’ is whether

the record as a whole reflects rational and meaningful consid-

eration of the factors enumerated in 18 U.S.C. § 3553(a).”

United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en

banc) (internal quotation marks and alterations omitted). “In

determining substantive reasonableness, we are to consider

the totality of the circumstances, including the degree of vari-

ance for a sentence imposed outside the Guidelines range.”

Carty, 520 F.3d at 993.

[2] In addition to the requirement to consider and apply the

§ 3553(a) factors, noted above, it is also well established that

the district court must begin the sentencing process “by deter-

mining the applicable Guidelines range.” Carty, 520 F.3d at

991. In reaching its sentencing decision, the “district court[ ]

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” (citing Gall)).

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 variance.’ ” Carty,

520 F.3d at 991 (quoting Gall, 552 U.S. at 50). As the Court

explained in Gall, “a major departure should be supported by

a more significant justification than a minor one.” 552 U.S. at

50.

[3] The Guidelines range for the term of imprisonment for

Ressam, as calculated by the district court and not challenged

by either party, was 65 years to life imprisonment. The district

UNITED STATES v. RESSAM 4709

court did not express any policy disagreements with the

Guidelines and their treatment of Ressam’s crimes, as it could

have under Kimbrough.

[4] Ressam’s sentence of 22 years thus represented a major

departure. We acknowledge that 22 years is not a trivial

period of time, but that sentence still amounted to a reduction

of 43 years, or two-thirds, from the low end of the Guidelines

range. Moreover, 10 of Ressam’s 22 years represent a manda-

tory, consecutive sentence for violation of 18 U.S.C.

§ 844(h)(2). For his other crimes of conviction, the total appli-

cable Guidelines range was 55 years to life, but he received

only 12 more years—a downward departure of more than

three-fourths as to the counts on which the sentencing judge

had discretion.

[5] The Supreme Court has explicitly rejected “the use of

a rigid mathematical formula that uses the percentage of a

departure as the standard for determining the strength of the

justifications required for a specific sentence.” Gall, 552 U.S.

at 47. It has made clear, nonetheless, that we are to consider

the “extent of the deviation and ensure that the justification is

sufficiently compelling to support the degree of the variance.”

Id. at 50. It is in that light that we must assess the district

court’s consideration of the § 3553(a) factors.

B. Nature and Circumstances of the Offense

[6] The first factor identified in § 3553(a) to be considered

in sentencing is “the nature and circumstances of the offense.”

The crimes that Ressam sought to commit were horrific. The

most important reason for our conclusion that the sentence

imposed by the district court was substantively unreasonable

is that the sentence did not properly account for those crimes.

Had Ressam succeeded in his plot to blow up LAX, it

would have resulted in many deaths and injuries, substantial

property damage, and enormous disruption to the nation’s

4710 UNITED STATES v. RESSAM

transportation system. The district court acknowledged that

“Mr. Ressam’s crimes, if carried to their intended conclusion,

would have resulted in the deaths and injuries of hundreds of

innocent people and instilled fear across the country and even

the world.” Many common criminals have been sentenced to

much longer terms for offenses with much less serious conse-

quences.

[7] That Ressam’s crimes were in furtherance of a terrorist

attack compounded the severity of the crimes. Had Ressam

succeeded, “LAX” may well have entered our vocabulary as

a term analogous to “the Oklahoma City bombing” or “9/11.”

His clear intent was to intimidate this nation and the world,

and he sought to influence world events and the conduct of

the United States government through that intimidation. The

Sentencing Guidelines specifically provide for a substantial

upward adjustment for federal crimes of terrorism. U.S.S.G.

§ 3A1.4. The sentence imposed by the district court effec-

tively negated that adjustment.

C. Protection of the Public

[8] Section 3553(a)(2)(C) provides that, in imposing a sen-

tence, the district court should consider the need “to protect

the public from further crimes.” Concern for the threat that

Ressam could pose to our nation is particularly powerful

because under the district court’s sentence, he would be only

51 years old upon his release from prison. Most people are

sufficiently active and capable at age 51 to do considerable

damage, if they are so inclined, and Ressam demonstrated

strongly held beliefs and a willingness to attack American

interests. If and when he is released, he could try again to

blow up LAX or to launch some other attack. To be sure, his

release would come only after many years of imprisonment,

but Ressam would likely be capable of organizing another

attack at that point. Ressam’s release at age 51 could therefore

pose another danger that the district court did not fully take

into proper account.

UNITED STATES v. RESSAM 4711

We share the concern expressed by the Eleventh Circuit in

its recent decision overturning the sentence of Jose Padilla.

United States v. Jayyousi, 657 F.3d 1085, 1117-19 (11th Cir.

2011). Among the reasons cited by that court in holding the

sentence of 17 years and 4 months to be substantively unrea-

sonable was its conclusion that the sentence imposed failed to

protect the public from further crimes. Id. at 1117. The court

pointed out that

[a]lthough recidivism ordinarily decreases with age,

we have rejected this reasoning as a basis for a sen-

tencing departure for certain classes of criminals,

namely sex offenders. We also reject this reasoning

here. “Terrorists, even those with no prior criminal

behavior, are unique among criminals in the likeli-

hood of recidivism, the difficulty of rehabilitation,

and the need for incapacitation.” Padilla poses a

heightened risk of future dangerousness due to his

al-Qaeda training. He is far more sophisticated than

an individual convicted of an ordinary street crime.

Id. (citations and brackets omitted) (quoting Meskini, 319

F.3d at 92); see also United States v. Abu Ali, 528 F.3d 210,

258-65 (4th Cir. 2008) (holding 30-year sentence to be sub-

stantively unreasonable after conviction of conspiracy to

inflict mass civilian casualties and assassination of high pub-

lic officials in the United States, because of recidivism con-

cerns and impermissible comparisons to other terrorism-

related cases), resentencing aff’d, 410 F. App’x 673, 682 (4th

Cir. 2011) (per curiam) (affirming the district court’s imposi-

tion of a life sentence). We follow that reasoning here.

In addition, even if Ressam were incapacitated by the time

of his release, the attention to be generated by his release and

likely return to Algeria could inspire others to try to complete

his mission or to embark on a different attack. The release of

the Lockerbie bomber, Abdelbaset al-Megrahi, from prison in

Scotland because of ill health in 2009 and his subsequent

4712 UNITED STATES v. RESSAM

return to Libya produced an uproar because of precisely that

fear. Although Megrahi may have been in no condition to

launch a new attack himself, there was understandable con-

cern that his presence in Libya could inspire others. Under the

sentence imposed by the district court, Ressam’s release date,

currently projected by the Bureau of Prisons to be July 15,

2019, is not so many years away. His release at that time

would pose a significant danger that the district court failed

to take into account.

D. Ressam’s Cooperation and Character

[9] Section 3553(a)(1) identifies “the history and charac-

teristics of the defendant” as one of the factors to consider in

imposing a sentence. That factor may include the defendant’s

cooperation with authorities.10 The only justifications for the

district court’s substantial downward departure in sentencing

Ressam were his cooperation and, more broadly, his history

and personal characteristics, as expressed in the court’s expla-

nation for the sentence. It was appropriate for the district

court to consider those factors.

When imposing a sentence that is well below the Guide-

lines range because of the assistance provided by a defendant,

however, there must be some indication that the extent of

departure is justified. See United States v. Haack, 403 F.3d

10

A defendant’s cooperation may be taken into account in calculating a

Guidelines sentencing range, after granting a motion for a departure under

§ 5K1.1 of the Guidelines. Alternatively, cooperation may be included as

part of consideration of § 3553(a) factors after a Guidelines sentencing

range is calculated. See e.g., United States v. Zolp, 479 F.3d 715, 721 (9th

Cir. 2007) (“the district court did not err by considering [defendant’s]

cooperation as part of its analysis under 18 U.S.C. § 3553(a) rather than

as part of its advisory guidelines calculation”). This is because “ ‘the

scheme of downward and upward ‘departures’ [is treated] as essentially

replaced by the requirement that judges impose a ‘reasonable” sentence.’ ”

Id. at 722 (quoting United States v. Mohamed, 459 F.3d 979, 986 (9th Cir.

2006)).

UNITED STATES v. RESSAM 4713

997 (8th Cir. 2005) (examining the reasonableness of the sen-

tence against the five factors outlined in U.S.S.G. § 5K1.1 and

concluding that the imposition of a 78-month sentence 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).

There is no doubt that Ressam cooperated with the federal

government and with governments of some other allied

nations, for a period of time. But he did not begin to cooperate

until after he was convicted by the jury and faced life in

prison. The timing of Ressam’s cooperation suggests that it

was prompted by his desire to make the best of a bad situa-

tion, not some altruistic motive, sincere regret, or deeper good

nature.

Moreover, Ressam stopped cooperating. This made it

impossible for the government to proceed with certain prose-

cutions and led to the release of certain suspected terrorists.

At the time his sentence was originally imposed in 2005, there

remained some hope that Ressam might live up to the cooper-

ation agreement that he had signed. That hope was extin-

guished by the time of Ressam’s resentencing in 2008. He

had, in the interim, affirmatively repudiated his agreement to

cooperate, recanted his testimony, and done everything he

could to diminish the assistance he had already provided.

[10] Yet the district court imposed exactly the same sen-

tence in 2008 as it had in 2005, failing to account for the dra-

matic change in circumstances. The court stated in 2008 that

“Ressam’s cooperation, unique in its breadth and scope,

weighed heavily in my initial sentencing decision and its

import has not changed in my analysis today.” Treated as a

factual finding, the district court’s assessment of Ressam’s

cooperation was clearly erroneous.

The district court significantly overvalued the cooperation

provided by Ressam during the time that he provided assis-

4714 UNITED STATES v. RESSAM

tance. “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) (alter-

ations in original; some internal quotation marks omitted); 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”).

The district court failed to give “substantial weight” to the

government’s evaluation of the extent of the defendant’s

assistance. Instead, the court credited Ressam’s assessment of

the value of his own cooperation, expressly relying on the

“defendant’s sentencing memorandum submitted before the

July 2005 sentencing hearing” as the basis for its assessment

of the “far-reaching impact of Mr. Ressam’s cooperation on

the investigations and prosecutions of terrorist activities in

this country and abroad.” That consideration failed to take

into account the effect of Ressam’s subsequent recantations.

More broadly, Ressam and his counsel were in no position

to evaluate the effects of and benefits from his cooperation.

Notably, they could not know what the government already

knew or would have been able to learn from other sources.

That is why the Guidelines expressly require district courts to

give substantial weight to the evaluation by the government.

It is the government that is in the position to know the effects

of defendants’ provided information, and that is especially

true with information of the kind provided by Ressam.

Much of the information Ressam provided was not unique

to him, according to the government. Moreover, as the gov-

ernment argued, Ressam’s “most valuable information—that

leading to the charges against Doha and Mohamed—cannot

be credited [because] Ressam undermined that value when he

UNITED STATES v. RESSAM 4715

chose to end his cooperation leading to the dismissal of these

charges.”

Similarly, the district court significantly understated the

impact of Ressam’s repudiation of the cooperation agreement

and recantations of his prior statements. The district court

acknowledged “that Mr. Ressam’s later decision to end his

cooperation resulted in the dismissal of two pending prosecu-

tions and the retraction of certain of his statements against

two other terrorist suspects.” But the district court failed to

take into proper account the effect of Ressam’s early cessa-

tion of cooperation or recantations and failed to adjust the

sentence in response.

The district court expressed concern that “[d]ownplaying

the cooperation that Mr. Ressam provided the government

would diminish the likelihood of future cooperation by other

apprehended terrorists.” That assessment appears to us woe-

fully misguided and, if intended as a finding of fact, clearly

erroneous.

Ressam voluntarily, and with advice from counsel, entered

into an agreement with the government in which he promised

full cooperation. Under the terms of that agreement, both par-

ties committed to seeking a sentence of not less than 27 years.

Ressam may have believed, with some justification, that he

could later ask the government to agree to reduce the mini-

mum term, but the agreement he entered into set 27 years as

a floor for the term of imprisonment that either party would

recommend to the court.

But Ressam violated the agreement. Most importantly, he

withheld his cooperation. He compounded the potential ill

effects of his withdrawal by affirmatively disavowing the

information he had already provided. He then argued for a

sentence substantially lower than the 27-year term which the

cooperation agreement provided would be the minimum that

4716 UNITED STATES v. RESSAM

either side would recommend, thus breaching the agreement

in yet another way.

After all that, the district court gave him a sentence well

below the 27-year minimum that was premised on full coop-

eration. The far more likely inference to be drawn from the

court’s sentencing is that a defendant might be able to repudi-

ate a cooperation agreement and recant previous testimony

with no ill effects. Indeed, Ressam appeared to come out

ahead.

It is hard to perceive what reason there is to provide any

reward to a defendant who terminates his cooperation in

breach of the agreement into which he entered and who affir-

matively acts, as Ressam did, to undermine the value of state-

ments that he had already provided. Rewarding such conduct

sends precisely the wrong message to other offenders.

[11] We also find unreasonable and clearly erroneous the

district court’s finding that “Mr. Ressam’s life history and

personal characteristics support favorable sentencing consid-

eration,” in view of the substantial evidence, including the

information contained in the Presentence Report, that Ressam

had for many years violated the laws of many nations and led

a life dedicated to terrorist causes. The district court credited

Dr. Grassian’s favorable report and Ressam’s own character-

ization in his 2005 sentencing memorandum that “by naming

and identifying 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.” But Ressam’s

subsequent recantations squarely undermined that assessment.

In finding that Ressam was “a quiet, solitary and devout

man whose true character is manifest in his decision to coop-

erate,” the district court simply did not come to grips with the

many facts demonstrating the contrary. Even leaving aside his

plan to blow up LAX, it cannot be overlooked that Ressam

spent nearly a year attending three training camps for Islamic

UNITED STATES v. RESSAM 4717

terrorists in Afghanistan, conspired with other would-be ter-

rorists, used forged documents and false identities on multiple

occasions, had been deported from France as early as 1993,

violated the immigration laws of the United States, France,

and Canada, and planned to rob a bank to obtain funds to

carry out his mission. In the course of robbing the bank, Res-

sam intended to throw a live hand grenade and run if neces-

sary to get away. These facts and others directly refute the

district court’s finding that Ressam is “a quiet, solitary and

devout man whose true character is manifest in his decision

to cooperate.”

Indeed, based on this record, if there was a period of aber-

rant behavior in Ressam’s adult life, it was during the rela-

tively brief time following his conviction when Ressam

provided assistance to the government. His conduct before

and after that limited period contradicts the district court’s

assessment of his character.

[12] Even if, in the end, it might be determined that Res-

sam should be given some credit for his cooperation and per-

sonal characteristics, that credit is not nearly strong enough to

justify the substantial downward departure provided in the

district court’s 22-year sentence.

E. The Need to Avoid Unwarranted Sentencing

Disparities

[13] A factor the district court should consider in fashion-

ing an appropriate sentence is “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 explanation given by the district court for

the sentence imposed on Ressam referred to sentences

imposed on his co-conspirators, Haouari and Meskini, and on

others convicted for similar misconduct, John Walker Lindh,

Imran Mandhai, and most significantly, Jose Padilla. The dis-

trict court expressly prefaced its discussion of others con-

4718 UNITED STATES v. RESSAM

victed of similar misconduct with the caveat that “[t]hese

cases involved different sets of facts and did not influence my

decision in determining an appropriate sentence in this case,”

but the court nonetheless went on to describe the sentences at

some length and compare each case to Ressam’s. It is thus

appropriate for us to do so as well. We conclude that those

comparisons did not justify Ressam’s sentence.

Ressam’s co-conspirators presented very different circum-

stances. Haouari did not present a parallel case because

Haourai did not participate in the plan to blow up LAX nearly

to the extent that Ressam did. Haouari was convicted of con-

spiracy for providing material support to Ressam on the

strength of evidence showing that Ressam had made several

remarks to Haouari indicating that Ressam was engaged in

“important” business in America that involved “fear and dan-

ger.” Haouari, 2001 WL 1154714, at *2. Providing support to

Ressam with the knowledge that Ressam was engaged in

some kind of dangerous business in the United States was not

the equivalent of planning out and taking several material

steps toward the actual bombing of LAX. As for Meskini,

while Ressam rejected a pre-trial plea offer and elected to put

the government to its burden of proof, Meskini pled guilty to

the charges in the indictment. Meskini, 319 F.3d at 91.

The sentences of Irham Mandhai, John Walker Lindh, and

Jose Padilla, other sentences identified by the district court,

did not offer appropriate comparisons, either. Like Meskini,

Mandhai and Lindh pled guilty. See United States v. Mandhai,

375 F.3d 1243, 1245 (11th Cir. 2004) (noting that Mandhai

pled guilty and received 11 years and 8 months); United

States v. Lindh, 227 F. Supp. 2d 565, 566, 571-72 (E.D. Va.

2002) (sentencing Lindh, after he entered a plea of guilty, to

20 years, the statutory maximum on the counts charged).

[14] As noted above, the sentence of Jose Padilla was

recently overturned by the Eleventh Circuit as substantively

unreasonable, so that comparison is no longer available to

UNITED STATES v. RESSAM 4719

support the sentence imposed on Ressam by the district court.

More importantly, the decision was based in substantial part

on comparisons to sentences imposed in other terrorism cases

drawn by the district court in sentencing Padilla that were

held by the Eleventh Circuit to be “impermissible.” Jayyousi,

657 F.3d at 1117. “In comparing Padilla to criminals like

David Hicks, Yahya Goba, and Imran Mandhai who had

either been convicted of less serious offenses, lacked exten-

sive criminal histories, or had pleaded guilty, the district court

erred.” Id. at 1118. We agree and reject the comparison of

Ressam’s sentence to defendants who pleaded guilty or were

convicted of much less serious offenses.

F. Recommendations and Offers by the Government

[15] It is for the same reason that we reject any comparison

with the offer made by the government to Ressam, before

trial, of 25 years in exchange for a guilty plea. Ressam argued

at sentencing that the starting point to determine the appropri-

ate downward departure for his cooperation should be that

offer of 25 years, made at a time the government was uncer-

tain of its ability to obtain a conviction. But Ressam rejected

the offer, electing to require the government to prove its case.

It did.

After the conviction, the government made different sen-

tencing recommendations at different times. At the 2005 sen-

tencing, the government recommended a sentence of 35 years.

In 2008, the government’s sentencing memorandum filed in

advance of the sentencing hearing recommended 45 years. At

the hearing itself, the government withdrew that position and

recommended life imprisonment.

The district court did not cite any recommendation made by

the government in explaining the sentence it imposed in either

2005 or 2008, and the government’s recommendations were

not binding on the district court in any event. Nonetheless, the

pre-trial offer and the post-conviction recommendations have

4720 UNITED STATES v. RESSAM

been referred to frequently in the argument on appeal, and the

dissenting opinion refers, at 4728, to the 35-year recommen-

dation made by the government in 2005. Ressam pointed to

them to suggest that the district court’s sentence of 22 years

was reasonable because it was within a reasonable range of

what the government itself sought. The government

responded that it should not be bound, and that we should not

be persuaded, by recommendations it made when the relevant

circumstances appeared different. That was certainly true for

the pre-trial plea offer, as discussed above. It was also true for

the recommendation made in 2005, when there remained hope

that Ressam might resume cooperation.

[16] We do not need to comment on the comparisons to the

government’s recommendations in 2008 of 45 years and then

of life imprisonment. The 22-year sentence imposed by the

district court in 2008 is too far below both of the sentence rec-

ommendations by the government at that time to obtain any

support from them.

V. The Dissenting Opinion

As noted above, at 4703-04, we believe that the dissenting

opinion is mistaken primarily because it disregards our

responsibility to review a sentence for substantive reasonable-

ness. It offers little defense on the merits of the sentence

imposed by the district court, perhaps in recognition that it is

a difficult sentence to defend.

It is not true that the district court’s sentence was based on

“nothing that could be said to be ‘illogical, implausible, or

without support in the record.’ ” Dissenting op. at 4733 (citing

Hinkson, 585 F.3d at 1251). All of those descriptions apply,

as we have detailed over the last several pages. We highlight

here just a few points of our disagreement with the dissenting

opinion.

[17] The dissent complains that we failed to give sufficient

regard to the district court’s evaluation of Ressam’s coopera-

UNITED STATES v. RESSAM 4721

tion and its termination. It contends that “the district court’s

assessment of the net value and the weight it assigned that

value as a sentencing factor were matters within its discretion

to decide.” Dissenting op. at 4734. We agree, but the exercise

of that discretion is subject to review, and we conclude that

the district court abused its discretion. To begin with, the dis-

senting opinion fails to explain why Ressam should be given

any credit for assistance after he breached the cooperation

agreement, stopped providing assistance, and did everything

he could to undermine the value of testimony and information

he had previously provided, let alone why he received exactly

the same credit he was previously given by the district court

in 2005, prior to his repudiation. That behavior did not reflect

personal history and characteristics that merited reward. More

specifically, we conclude that the district court abused its dis-

cretion because it overvalued Ressam’s cooperation and

undervalued the impact of his later repudiation, for the rea-

sons discussed above, at 4713-15. We do not suggest that “the

district court must rubber-stamp the government’s sentencing

positions,” Dissenting op. at 4735, but the district court must

give “ ‘substantial weight . . . to the government’s evaluation’

of that assistance,” Awad, 371 F.3d at 586-87 (citing U.S.S.G.

§ 5K1.1(a)(1) & cmt. background), and it failed to do so here.

The dissent takes issue with what it describes as our evalua-

tion of Ressam’s character. It argues that we were wrong in

finding clearly erroneous the district court’s description of

Ressam as “quiet, solitary, and devout” and its conclusion that

this history supported favorable sentencing consideration. It

argues that the district court was, in that characterization, “ac-

curately describing what the record showed about the defen-

dant’s life before his mid-twenties.” Dissenting op. at 4739.

But, as we described above, notably at 4716-17, the record

demonstrates that Ressam for many years violated the laws of

many nations and dedicated his life to terrorist causes. That

history does not support favorable sentencing consideration.

That Ressam may have been “quiet, solitary, and devout” in

his younger years is beside the point.

4722 UNITED STATES v. RESSAM

Moreover, that a defendant may be “quiet” and “solitary”

does not itself justify a lighter sentence. Loners are not neces-

sarily law-abiding; some of the worst offenders have been

“quiet” and “solitary.” Besides, Ressam was not all that quiet

and solitary. He conspired with others in his criminal activi-

ties, through which he sought to make a very large noise. To

the extent that he acted alone in these crimes it was because

the other members of his cell had immigration problems and

could not get to Canada. That does not justify a lighter sen-

tence. Nor is being “pious” necessarily a virtue. Ordinarily,

religious faith is a positive influence, but Ressam’s extreme

and warped beliefs motivated him to wage war on this country

and to try to kill innocent people. That does not justify a

lighter sentence, either.

The dissent contends that our decision improperly treats

terrorism differently from other offenses and “thus flies in the

face of the Congressionally sanctioned structure of sentencing

that applies to terrorism as well as all other kinds of federal

criminal offenses.” Dissenting op. at 4739. But it was the dis-

trict court that treated these crimes differently by disregarding

the established sentencing structure. The seriousness of Res-

sam’s offense is taken into account in the criminal statutes

and in the Sentencing Guidelines, but the district court paid

essentially no attention to the advisory sentencing range,

imposing a sentence 43 years, or two-thirds, below the low

end of the range—exactly the same sentence that it had

imposed in 2005 when it failed to calculate the Guidelines

range.

The Supreme Court in Gall explicitly instructed us to con-

sider, on appellate review, the “extent of the deviation [from

the Guidelines range] and ensure that the justification is suffi-

ciently compelling to support the degree of the variance.”

Gall, 552 U.S. at 47. The justification provided by the district

court is not nearly compelling enough to justify the degree of

variance here.

UNITED STATES v. RESSAM 4723

VI. Conclusion

[18] Because we conclude that the district court abused its

discretion in sentencing Ressam as it did, including by basing

that sentence on several findings that were clearly erroneous,

the sentence is vacated as substantively unreasonable, and the

case is remanded to the district court for resentencing.11

SENTENCE VACATED; REMANDED FOR RESEN-

TENCING.

REINHARDT, Circuit Judge, with whom KOZINSKI, Chief

Judge, and WARDLAW, Circuit Judge, join, specially con-

curring:

Although I concur in Judge Clifton’s majority opinion, I

write separately to explain the reasons for my hesitation in

doing so.

I do not believe that this is an appropriate case in which to

establish general principles governing when “substantive

unreasonableness” will warrant vacating a sentence imposed

by the district court. As the majority opinion states, decisions

made under the standard applicable to substantive unreason-

ableness are “highly contextual and do not permit easy repeti-

tion in successive cases.” Majority op. at 4705 (quoting

United States v. Rigas, 583 F.3d 108, 123 (2d. Cir. 2009)). I

agree that in substantive unreasonableness cases, as in certain

other categories of cases, legal principles developed in one

case or set of cases are not easily extrapolated and applied to

11

The previous opinion for our court by the three-judge panel also

directed that on remand the case be assigned to a different district judge.

The government did not request that order of reassignment, and it reiter-

ated that position during oral argument before this en banc panel. With

confidence that the district court will take heed of this opinion, we do not

order such reassignment.

4724 UNITED STATES v. RESSAM

other cases. The more specific we try to be as to how we must

go about determining whether a sentence is substantively

unreasonable, the less likely that the rules we adopt will bring

us to a just and fair result in the wide range of cases that will

come before us. Here, this principle is at its apex.

No case could be more atypical and less suited for the

development of general substantive unreasonableness rules

than the case of a foreign enemy terrorist who enters the

United States to wage war on this nation. Our general sen-

tencing principles do not easily fit this category of defendant,

much less our principles regarding substantive unreasonable-

ness. For example, as the majority opinion correctly states, the

“overarching statutory charge for a district court is to ‘impose

a sentence sufficient but not greater than necessary’ ” to fulfill

certain objectives, one of which is “to provide the defendant

with needed educational or vocational training, medical care,

or other correctional treatment.” Majority op. at 4707 (quoting

United States v. Carty, 520 F.3d 984, 991 (9th Cir. 2008) (en

banc) (quoting 18 U.S.C. § 3553(a))). Surely, this objective is

wholly inapplicable in the case of a foreign enemy terrorist.

Similarly, a significant factor in determining the appropriate

length of a sentence for those committing criminal offenses is

ordinarily their past criminal history. See id. at 4707-08. What

is a reasonable sentence for a first time offender will often be

unreasonable for a defendant with a lengthy criminal record,

and vice-versa. This is surely not the case with a foreign

enemy terrorist. His previous criminal record is wholly irrele-

vant. Likewise, the need to “afford adequate deterrence” has

little relevance in the case of a foreign enemy terrorist: the

likelihood that those who seek at the behest of Al Qaeda or

similar groups to damage our country will pay any heed to the

length of the sentence they may face is nil.

Nevertheless, we must decide what is a substantively

unreasonable sentence in Ressam’s case. Because we do not

distinguish in our statutes or guidelines between the length of

sentences for ordinary criminals and foreign enemy terrorists,

UNITED STATES v. RESSAM 4725

we start with the applicable statutes, which in most cases give

the district court a wide amount of discretion. We then apply

the Sentencing Guidelines, which although advisory, provide

a starting point from which the district court may, in its dis-

cretion, vary upwards or downwards after considering the

statutes, Guidelines sentencing principles, and applicable

Supreme Court and other controlling precedent. In Ressam’s

case, however, almost one half of the 22 year sentence

imposed by the district court was non-discretionary because

Ressam’s conviction under 18 U.S.C. § 844(h)(2) for carrying

an explosive in the commission of a felony subjected him to

a mandatory consecutive sentence of ten years.

I find very little that would instruct a district court as to

how to treat a foreign enemy terrorist other than to apply the

terms of the statute under which he is convicted and next to

consider the applicable guidelines range. I agree with both

parties and the district judge that the extent to which the con-

victed foreign enemy terrorist has cooperated with and pro-

vided assistance to the United States in its war on terror may

be a significant factor in reducing what might otherwise be an

extremely lengthy sentence to a somewhat lesser one. Here,

the defendant’s sentence under the statute and the advisory

guidelines would in the absence of such cooperation or other

mitigating factors be a minimum of 65 years and a maximum

of life in prison.

It appears to me that aside from cooperation with the gov-

ernment there are no other mitigating factors in the case of a

foreign enemy terrorist, Ressam or any other. Whether when

captured on American soil such foreign nationals should be

sentenced under our general criminal statutes and afforded the

same sentencing treatment as domestic criminals or whether

their sentencing should be pursuant to special statutes or rules

designed to afford particularized treatment to foreign enemies

of the state is another matter — a matter for Congress, or pos-

sibly in some cases the Executive Branch. As long, however,

as courts are required to sentence such defendants under laws

4726 UNITED STATES v. RESSAM

and rules applicable to ordinary domestic criminals, there

seems to be little about the case of a foreign terrorist that

would ordinarily justify less than a guideline sentence, other

than his cooperation with the government or possibly a

change of heart on his part. Here, the record clearly does not

reflect the latter.

I agree with the majority that it is clear that the district

court erroneously evaluated the extent of Ressam’s coopera-

tion. In particular, I find that his undermining of the prosecu-

tion of Abu Doha, a significant Al Qaeda figure, and Samir

Ait Mohamed, a less important operative, in violation of his

cooperation agreement, as well as his repudiation of the

agreement itself, served to lessen significantly whatever credit

he might otherwise have received for his limited implementa-

tion of the agreement. In any event, I would conclude that to

the extent that the sentence was reduced substantially on

account of his purported cooperation with the government,

that reduction was clearly excessive and led directly to a sen-

tence that was substantively unreasonable.

As the majority opinion notes, “[W]e review the substan-

tive reasonableness of a criminal sentence under what the

Supreme Court has described as the ‘familiar abuse-of-

discretion’ standard of review.” Majority op. at 4702 (quoting

Gall v. United States, 552 U.S. 38, 46 (2007)). We have held

that a district court abuses its discretion where it fails to

“identif[y] the correct legal rule,” United States v. Hinkson,

585 F.3d 1247, 1262 (9th Cir. 2009) (en banc), or where, hav-

ing identified the applicable legal standard, it applies the stan-

dard in such a way as to leave us with “the definite and firm

conviction that a mistake has been committed,” id. (quoting

United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).1

1

In Hinkson, we noted that in reviewing the factual aspects of the dis-

trict court’s determination we may feel such a “definite and firm convic-

tion” only when the district court’s application of the applicable legal rule

was “(1) ‘illogical,’ (2) ‘implausible,’ or (3) without ‘support in inferences

that may be drawn from facts in the record.’ ” Id. (quoting Anderson v.

Bessemer City, 470 U.S. 564, 577 (1985)).

UNITED STATES v. RESSAM 4727

In the end, in this case the statute and the guidelines leave

us with a guideline range of 65 years to life. Treating Res-

sam’s conviction, as we must, as ordinary criminal offenses

rather than as acts of war, the offenses are indeed, as the

majority states, “horrific.” Majority op. at 4709. Taking into

account a modest reduction for his initial cooperation with the

government, I nevertheless have a “definite and firm convic-

tion” that in this case a sentence of 22 years is without support

in inferences that may be drawn from facts in the record and,

without question, substantively unreasonable. In fact, treating

the offense as ordinary criminal conduct, as I must, my defi-

nite and firm conviction would be that any sentence lower

than one within the guideline range would meet that descrip-

tion.

An abuse of discretion standard is, as the majority opinion

acknowledges, not always “clear or simple to apply.” Major-

ity op. at 4702. This is especially true in determining when we

are left with “a definite and firm conviction” that the district

court committed a clear error of judgment. Here, however, I

have no difficulty in concluding without any reservation that

under our ordinary criminal law the offense of which Ressam

was convicted, specifically his participating in the conspiracy

to blow up the Los Angeles International Airport on New

Year’s Day of the year 2000, and to murder hundreds or thou-

sands of travelers and workers so as to create a state of chaos

nationwide if not worldwide, mandates a sentence no less than

that within the guideline range of 65 years to life.

In short, I concur generally with the majority and agree that

the 22 year sentence must be vacated as substantively unrea-

sonable, given that we are compelled to treat a foreign enemy

terrorist in the same manner as we would a domestic criminal.

What sentence I might otherwise find reasonable or unreason-

able for a foreign enemy terrorist is of no import here and is

a question that I am glad that I do not have to answer. Acts

of war are indeed different from ordinary crimes, and our cur-

rent war with terrorism is indeed different from ordinary wars.

4728 UNITED STATES v. RESSAM

I am far from certain that our government or our citizens have

yet determined how to deal with these differences.2

Although I am concerned that a district judge might ordi-

narily have difficulty on remand in viewing this matter afresh

given the sentencing history in this case, the district judge

here is a dedicated, experienced and highly respected jurist

who is fully capable of completing the assignment with which

he has so dutifully struggled for the past 12 years. Accord-

ingly, I, like the majority, would not remand to another judge.

SCHROEDER, Senior Circuit Judge, joined by PAEZ,

BERZON and MURGUIA, Circuit Judges, dissenting:

I respectfully dissent. The majority holds substantively

unreasonable a 22-year sentence that is 13 years less than the

government’s request in its sentencing memorandum, and

only 8 years less than what the government conceded at oral

argument it would have accepted without appealing to this

court. In light of the district court’s sentencing discretion, I

would exercise a more appropriate level of deference, and

affirm.

The district court’s explanation of this sentence shows that

the court followed this circuit’s law. See United States v.

Maier, 646 F.3d 1148, 1156 (9th Cir. 2011) (citing United

States v. Hinkson, 585 F.3d 1247, 1261-62 (9th Cir. 2009) (en

banc)). The court noted it could not presume that the advisory

Guidelines range is reasonable. See United States v. Carty,

520 F.3d 984, 991 (9th Cir. 2008) (en banc). The court said

2

Indeed, both Congress and the Executive Branch continue to be

engaged in determining how foreign enemy terrorists should be treated.

See, e.g., Statement by the President on H.R. 1540 (Dec. 31, 2011), avail-

able at http://www.whitehouse.gov/the-press-office/2011/12/31/statement-

president-hr-1540.

UNITED STATES v. RESSAM 4729

that it had considered the 18 U.S.C. § 3553(a) factors, in addi-

tion to the Guidelines, in arriving at the sentence it imposed.

It went through each of those factors, explaining the weight

it assigned to each, and why. The district court had lived with

the case for nine years and its explanation reflects its familiar-

ity with the history of the case and with the defendant.

The government has at no time contended that the district

court committed procedural error in imposing this sentence,

or that it made any clearly erroneous findings. In their sen-

tencing memoranda, both sides sought sentences that

amounted to substantial downward variances from the bottom

end of the Guidelines range, which was 65 years. The defen-

dant asked for a sentence of 15 years, and the government for

45. The 22-year sentence imposed was thus well within the

range of alternatives proposed to the district court. (At the

sentencing colloquy, only after the defendant said he would

not object to any sentence that the district court imposed—

even life—did the government up its recommendation to life.)

To justify its conclusion that the sentence is too low, the

majority focuses on the district court’s explanation of the

weight it gave two of the relevant § 3553(a) factors.1 The

1

Section 3553(a) directs a court to “impose a sentence sufficient, but not

greater than necessary, to comply with the purposes set forth in paragraph

(2) of this subsection. The court, in determining the particular sentence to

be imposed, shall consider—

(1) the nature and circumstances of the offense and the history

and characteristics of the offender;

(2) the need for the sentence imposed—(A) to reflect the serious-

ness 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 defendant; and (D) to provide the defendant with needed

educational or vocational training, medical care, or other correc-

tional treatment in the most effective manner;

(3) the kinds of sentences available;

4730 UNITED STATES v. RESSAM

majority insists, though the government has never argued, that

the explanation included at least two “findings of fact” that

were “clearly erroneous.” The first and most important was

the weight given to Ressam’s cooperation, and a second was

the court’s characterization of the life Ressam lived before his

offense conduct. Yet these were not findings of fact, but part

of the court’s explanation of how it weighed the statutory sen-

tencing factors.

The majority undoes the district court’s sentence, and in so

doing commits the same error that the Supreme Court

ascribed to the Eighth Circuit in Gall v. United States, 552

U.S. 38 (2007). The Supreme Court faulted that circuit court

for reweighing the § 3553(a) factors when the circuit court

didn’t like a district court sentence that was far below the

(4) the kinds of sentence and the sentencing range established for

—(A) the applicable category of offense committed by the appli-

cable category of defendant as set forth in the guidelines— (I)

issued by the Sentencing Commission pursuant to section

994(a)(1) of title 28, United States Code, subject to any amend-

ments made to such guidelines by act of Congress (regardless of

whether such amendments have yet to be incorporated by the

Sentencing Commission into amendments issued under section

994(p) of title 28); and (ii) that, except as provided in section

3742(g), are in effect on the date the defendant is sentenced

...;

(5) any pertinent policy statement—(A) issued by the Sentencing

Commission pursuant to section 994(a)(2) of title 28, United

States Code, subject to any amendments made to such policy

statement by act of Congress (regardless of whether such amend-

ments have yet to be incorporated by the Sentencing Commission

into amendments issued under section 994(p) of title 28); and (B)

that, except as provided in section 3742(g), is in effect on the date

the defendant is sentenced;

(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.”

UNITED STATES v. RESSAM 4731

Guidelines range. In Gall the district court had given proba-

tion to a defendant involved in a large drug conspiracy and

facing a Guidelines minimum of 30 months. The Supreme

Court said:

The Court of Appeals clearly disagreed with the dis-

trict judge’s conclusion that consideration of the

§ 3553(a) factors justified a sentence of probation; it

believed that the circumstances presented here were

insufficient to sustain such a marked deviation from

the Guidelines range. But it is not for the Court of

Appeals to decide de novo whether the justification

for a variance is sufficient or the sentence reason-

able. On abuse-of-discretion review, the Court of

Appeals should have given due deference to the Dis-

trict Court’s reasoned and reasonable conclusion that

the § 3553(a) factors, on the whole, justified the sen-

tence. Accordingly, the judgment of the Court of

Appeals is reversed.

Id. at 59-60.

The majority makes the same mistake. When the three-

judge panel reversed Ressam’s sentence, we voted to take this

case en banc because, presumably, a majority of our active

judges had serious reservations about the wisdom of the panel

majority’s reversal, given the discretion the district court

enjoys in sentencing. The dissent of Judge Fernandez from the

original panel opinion had it right:

So where does that leave the majority? Simply put,

it seems to me that the majority just does not like the

fact that this terrorist is to sit in prison for a mere

twenty-two years. What number would the majority

choose; who knows? But although many federal sen-

tences 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

4732 UNITED STATES v. RESSAM

wrist, especially if the confinement conditions will

be especially 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. . . .

In short, the sentence was neither procedurally erro-

neous 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.

As well we should have had reservations about the panel

majority’s reversal of the district court’s sentence. Only a year

or so earlier, our court had gone en banc in Hinkson, to con-

sider how the “abuse of discretion” standard of review “limits

our power as an appellate court to substitute our view of the

facts, and the application of those facts to law, for that of the

district court.” 585 F.3d at 1250. We said that we were

approving a “newly stated ‘abuse of discretion’ test [that]

requires us first to consider whether the district court identi-

fied the correct legal standard for decision of the issue before

it . . . [and] then requires us to 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; see also Maier, 646 F.3d at 1156

n.3.

Such review for abuse of discretion is not rubber-stamping.

It is the role of the appellate courts as mandated by the

Supreme Court. See Gall, 552 U.S. at 57 (after review for pro-

cedural error, the appellate court then considers “substantive

reasonableness . . . under an abuse-of-discretion standard”).

Thus to me the majority opinion is all the more disturbing,

because while it cites Hinkson, it never comes to grips with

the impact Hinkson’s holding should have had on this case.

UNITED STATES v. RESSAM 4733

There is no question in my mind that the district court in this

case identified the correct legal standard for its decision, as

laid down by the Guidelines and § 3553(a). It applied that

standard to the facts before it, explaining its application of the

§ 3553(a) factors and relying on nothing that could be said to

be “illogical, implausible, or without support” in the record.

Hinkson, 585 F.3d at 1251.

This is best illustrated by comparing the way the district

court evaluated the defendant’s cooperation with the way the

majority attempts to disregard it. The majority’s obsession

with the magnitude of the crime the conspiracy planned to

commit has led the majority to distort both the record and

how the district court exercised its discretion on the basis of

that record. The majority has apparently decided that the dis-

trict court both weighed Ressam’s cooperation too heavily

and failed adequately to account for the fact that it ended. The

district court’s explanation of how it weighed Ressam’s coop-

eration, however, was not a finding of fact susceptible to clear

error review. Rather, the court explained how it weighed the

statutory sentencing factors, which must include, in addition

to the nature and circumstances of the crime, the defendant’s

history and characteristics. § 3553(a)(1). The Guidelines, in

§ 5K1.1, allow the government to request a downward depar-

ture for substantial assistance, and the government asked for

one here. At sentencing, the district court reviewed Ressam’s

history of cooperation, including the benefits of his coopera-

tion and the unfortunate consequences of his cessation and

partial recantation. That history is fully in accord with the

record in this case.

Of particular salience to the district court was the intelli-

gence Ressam provided to the United States and to foreign

governments about terrorist methods and organizations. The

majority brushes this information aside by noting the govern-

ment’s assertion that the information Ressam provided was

not unique to him. While some of this information was previ-

ously known to the United States intelligence community,

4734 UNITED STATES v. RESSAM

Ressam’s position as an unclassified source permitted the

United States to disseminate this intelligence to foreign allies.

That was what the district court relied upon.

Other evidence in the record supports the district court’s

assessment of the overall value of Ressam’s cooperation. The

United States Attorney for the Southern District of New York

filed a thirty-nine page letter with the court below, detailing

how Ressam had earlier provided extensive cooperation.

Although the end of Ressam’s cooperation burdened the gov-

ernment’s ability to pursue several criminal prosecutions, he

provided a wealth of information otherwise not susceptible to

later recantation or retraction. Ressam also provided, for

example, operational assistance to investigators tasked with

defusing the explosive device carried by Richard Reid, the

“shoe bomber.” The district court therefore accurately charac-

terized Ressam’s role as an informant as having contributed

“extensive intelligence that proved to be invaluable in the

fight against international terrorism.”

Having concluded, incorrectly, that Ressam’s information

had no value, the majority dismisses as “clearly erroneous”

the district court’s observation that recognizing the value of

Ressam’s cooperation would serve as an incentive for future

terrorist informants. The problem is that while the district

court focused on the net value to the government of Ressam’s

cooperation—taking into account its cessation—the majority

focuses on the cessation and never confronts the district

court’s assessment of net value.

The majority goes so far as to suggest that the district court

abused its discretion by not adopting the government’s posi-

tion that Ressam should receive no credit for his cooperation

because it did not continue. The majority may disagree with

the weight the district court assigned to the net value of Res-

sam’s cooperation, yet the district court’s assessment of the

net value and the weight it assigned that value as a sentencing

factor were matters within its discretion to decide. See United

UNITED STATES v. RESSAM 4735

States v. Gutierrez-Sanchez, 587 F.3d 904, 908 (9th Cir.

2009). The district court considered the entire history of Res-

sam’s cooperation. Just as we should not rubber-stamp the

district court, we should not suggest the district court must

rubber-stamp the government’s sentencing positions. See,

e.g., United States v. Livesay, 525 F.3d 1081, 1091 (11th Cir.

2008) (“[A]fter the government has made a motion for down-

ward departure pursuant to U.S.S.G. § 5K1.1 the government

has no control over whether and to what extent the district

court will depart from the Guidelines.”). The Guidelines

require the court to give “substantial weight” to the govern-

ment’s assessment, U.S.S.G. § 5K1.1, cmt. 3, but any such

assessment must reflect the entire history of cooperation up to

the time of sentencing. See United States v. Awad, 371 F.3d

583, 588 (9th Cir. 2004).

It is thus important to comprehend fully how scrupulously

the district court followed § 3553(a) in weighing each of its

factors. I therefore turn first to the district court’s analysis,

and then, sadly, observe the similarities of this case to Gall—

a further illustration of Santayana’s adage that those who do

not study history are condemned to repeat it. George Santa-

yana, 1 The Life of Reason 284 (1905).

The district court, true to the commands of § 3553(a),

expressly recognized the need for the sentence to reflect the

seriousness of Ressam’s offenses, and to provide just punish-

ment and promote respect for the law. The court began by set-

ting forth the legal standard:

The Ninth Circuit has made clear that the Sentencing

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

4736 UNITED STATES v. RESSAM

have also considered the other Section 3553 factors

in arriving at the sentence I am imposing today.

The district court then turned to the seriousness of Ressam’s

offenses:

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 worth 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.

The court described Ressam’s cooperation in cases that

were successfully prosecuted, and the basis of the govern-

ment’s motion for a downward departure:

On the other hand, I recognize Mr. Ressam’s exten-

sive and valuable cooperation in the fight against ter-

rorism 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 a downward departure from the

Sentencing Guidelines based on Mr. Ressam’s sub-

stantial assistance in the case of United States versus

UNITED STATES v. RESSAM 4737

Moktar Haoauri, a matter prosecuted in the Southern

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 cooperation

in that case Mr. Ressam also testified before a Ger-

man tribunal on behalf of the German government in

the trial against Mounir el Motassadeq . . . in

December 2002, which resulted in a conviction and

sentence of 15 years.

The district court then acknowledged the negative effects of

Ressam’s decision to end cooperation and retract his state-

ments, a decision that led to dismissal of two prosecutions. It

concluded other information Ressam provided about interna-

tional terrorist activity outweighed those negative effects:

The Court recognizes that Mr. Ressam’s later deci-

sion 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. However, Mr. Ressam’s cooperation, while

it lasted, provided the United States government and

the governments of Great Britain, Spain, Italy, Ger-

many, France and Canada extensive intelligence that

proved to be invaluable in the fight against interna-

tional terrorism. The defendant’s sentencing memo-

randum submitted before the July 2005 sentencing

hearing summarizes the far-reaching impact of Mr.

Ressam’s cooperation on the investigations and pros-

ecutions of terrorist activities in this country and

abroad.

4738 UNITED STATES v. RESSAM

Finally, the district court turned to the subject of fairness

and of the impact of confinement Ressam had already and

would continue to experience:

Downplaying the cooperation that Mr. Ressam pro-

vided the government would diminish the likelihood

of future cooperation by other apprehended terror-

ists. Further, doing so would not be fair to Mr. Res-

sam. 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 years in solitary confinement in a country

far from his family and loved ones and will, by any

measure, be sacrificing a large portion of his life for

his crimes.

The majority thinks that the district court gave too much

weight to the value of Ressam’s cooperation, and too little

weight to the effect of his cessation of cooperation. Yet, as the

discussion above reveals, its position mirrors that of the

Eighth Circuit in Gall, where the Supreme Court described

such reweighing as de novo review that failed to give ade-

quate deference to the district court. The Eighth Circuit in

Gall, for example, had erred by saying that the district court

gave “too much weight to Gall’s withdrawal from the conspir-

acy.” 552 U.S. at 45. The majority here says that the district

court gave too much weight to the information Ressam pro-

vided during his cooperation. If the Eighth Circuit’s conclu-

sion was improper de novo review, then so is the majority’s.

The majority also concludes that the district court was

“clearly erroneous” in characterizing Ressam’s prior life as

“quiet, solitary, and devout,” and that this history “sup-

port[ed] favorable sentencing consideration.” The district

UNITED STATES v. RESSAM 4739

court was accurately describing what the record showed about

the defendant’s life before his mid-twenties, and, in any event,

gave it no undue weight. The district court was following the

statutory requirement that it look both to “the nature and cir-

cumstances of the offense and the history and characteristics

of the defendant.” § 3553(a)(1).

The majority appears to justify its focus on the nature of the

offense, rather than on any of the other relevant statutory fac-

tors, because the majority apparently thinks—as my colleague

Judge Reinhardt’s concurrence makes explicit—that terrorism

is different, and Ressam’s offense more terrible than the dis-

trict court appreciated. Nothing in the record bears this out.

The district court was well aware of the statutory command

to consider the circumstances and seriousness of the offense

in sentencing. § 3553(a)(1). It did consider them, explaining

that the “seriousness and heinousness of the act of terrorism

Mr. Ressam was carrying out at the time of his arrest cannot

be understated.” The district court had to weigh all the factors

in arriving at a sentence sufficient, but not greater than neces-

sary, to serve the purposes of punishment. § 3553(a).

The statutes and Guidelines treat terrorism as a matter of

serious criminal concern, but not as something new and dif-

ferent. The majority’s implicit assumption that terrorism is

different, and must be treated differently, thus flies in the face

of the congressionally sanctioned structure of sentencing that

applies to terrorism as well as all other kinds of federal crimi-

nal offenses. Our courts are well equipped to treat each

offense and offender individually, and we should not create

special sentencing rules and procedures for terrorists. In pre-

siding over the many terrorism-related cases on their dockets,

courts have treated other issues in terrorism cases in ways that

do not differ appreciably from more broadly applicable doc-

trines. See, e.g., Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2079,

2083 (2011) (holding that ordinary qualified immunity stan-

dard protects officials in a suit alleging an unconstitutional

use of the material witness statute for detaining terrorism sus-

4740 UNITED STATES v. RESSAM

pects); Jewel v. Nat’l Sec. Agency, ___ F.3d ___, 2011 WL

6848406, *1, 3-7 (9th Cir. 2011) (concluding that a putative

class representative had constitutional and prudential standing

to challenge the government’s post-September 11 policy of

widespread warrantless eavesdropping); In re Terrorist Bomb-

ings of U.S. Embassies in East Africa, 552 F.3d 157, 167 (2d

Cir. 2008) (applying traditional principles to hold that the

Fourth Amendment’s Warrant Clause has no extraterritorial

application and that foreign searches of U.S. citizens con-

ducted by U.S. agents are subject only to the Fourth Amend-

ment’s requirement of reasonableness); MacWade v. Kelly,

460 F.3d 260, 263 (2d Cir. 2006) (upholding government’s

use of random, suspicionless container searches in the New

York City subway system, on grounds that preventing a sub-

way terrorist attack is a non-investigative special need within

the meaning of Fourth Amendment doctrine); see also Aziz

Huq, Against National Security Exceptionalism, 2009 Sup. Ct.

Rev. 225, 226 (concluding that courts’ responses to national

security emergencies do not treat terrorism as different, but

rather “align more closely with . . . judicial responses to non-

security emergencies”). Just as we have resisted treating ter-

rorism differently in these cases, we ought to resist doing so

in reviewing sentences for reasonableness as well.

The majority expresses concern that the 22 years meted out,

including years already served, means that Ressam will be

only 51 years old at the time of his release. The district court,

of course, was well aware of Ressam’s age, having presided

over his case for nine years and having faced him at two sen-

tencings. The district court thus took into account what the

majority does not: precisely because Ressam is a convicted

terrorist, he will be kept in solitary confinement “in a country

far from his family . . . and will by any measure, be sacrific-

ing a large portion of his life for his crimes.” Ressam is cur-

rently confined at the Administrative Maximum Facility in

Florence, Colorado, where a number of terrorist offenders are

held. There inmates are “sealed off for 23 hours a day in cells

with four-inch-wide windows and concrete furniture,” and

UNITED STATES v. RESSAM 4741

may receive “an hour’s exercise each day in a tiny yard, . . .

alone, . . . if they behave.” Judith Resnik, Essay, Detention,

The War on Terror, and the Federal Courts, 110 Colum. L.

Rev. 579, 678 n.425 (2010) (quoting Peter Finn, Detainees

Face Severe Conditions if Moved to U.S., Wash. Post, Oct. 4,

2009, at A6).

The majority’s assumption that upon release from prison

after decades of such confinement, Ressam would engage in

further terrorist conduct, is speculative, unwarranted, and

without support in the record, including the sealed presen-

tence report. The available evidence in the record reflects

experts’ beliefs that Ressam posed little threat of future dan-

gerousness to himself or others. The sealed presentence report

noted that monthly psychological evaluations were conducted

during Ressam’s time in custody. Ressam’s counsel engaged

Dr. Stuart Grassian, a psychiatrist, to evaluate his mental state

in 2003 and 2004. Dr. Grassian’s report concluded that Res-

sam would not be a danger to the community upon release.

The majority’s assumption of future dangerousness is, there-

fore, contradicted by the record evidence. Its further predic-

tion that Ressam would return to Algeria upon release to

inspire future terrorists, is pure speculation unsupported by

any record evidence.

The majority cites the Eleventh Circuit in United States v.

Jayyousi, 657 F.3d 1085 (11th Cir. 2011), where that court

made a similar assumption of future dangerousness. Although

the Eleventh Circuit acknowledged the general presumption

that recidivism rates decrease as offender age increases, it

relied on its previous holding that the presumption does not

apply to certain sex offenders, and held the presumption

should not apply to terrorists either. The comparison of terror-

ists to sex offenders in terms of their recidivism is criticized

in Judge Barkett’s dissent, and I believe the dissent has the

better of the argument. See id. at 1117-19 (noting that the pre-

vious holding as to sex offenders had been based on empirical

studies about recidivism, and explaining that the assumption

4742 UNITED STATES v. RESSAM

about terrorists was without any support in the record). Here,

as in Jayyousi, the majority faults the district court for failing

to make findings that would have had no basis in the record.

The district court here made no such error, and its reasoning

reflects a measured consideration of the record.

The majority also takes the district court to task for looking

to sentences given to other terrorists. The district court com-

pared Ressam’s case to other terrorist prosecutions that were,

of course, different from Ressam’s in that the other defen-

dants pleaded guilty or were convicted of less serious

offenses. Those defendants also did not cooperate with the

government, as Ressam did for a considerable period. One

can speculate that the district court placed too much emphasis

on these comparisons, even given the statutory admonition

that the court consider “the need to avoid unwarranted sen-

tence disparities among defendants with similar records who

have been found guilty of similar conduct.” § 3553(a)(6). The

important point, however, is the factor was one that the dis-

trict court had to weigh, and is not for us to reweigh. See Gall,

552 U.S. at 51. The district court did the best it could to eval-

uate possible disparities with sentences of other convicted ter-

rorists while remaining fully aware of the fact that Ressam’s

case was not similar to those in all respects. Its efforts to fol-

low the statutory sentencing factors lend no support for the

majority’s conclusion that the district court’s sentence was

unreasonably low.

In avoiding unwarranted disparities, as in evaluating other

key sentencing factors, district courts have enormous discre-

tion. The Supreme Court has consistently instructed us, and

we have reminded ourselves, that the appellate courts cannot

substitute their judgment for that of the district judge. See,

e.g., id. at 51 (“The fact that the appellate court might reason-

ably have concluded that a different sentence was appropriate

is insufficient to justify reversal of the district court.”); see

also Koon v. United States, 518 U.S. 81, 97 (1996) (“[I]t is

not the role of an appellate court to substitute its judgment for

UNITED STATES v. RESSAM 4743

that of the sentencing court as to the appropriateness of a par-

ticular sentence.”) (citations omitted); accord Carty, 520 F.3d

at 993 (“We may not reverse just because we think a different

sentence is appropriate.”); United States v. Whitehead, 532

F.3d 991, 993 (9th Cir. 2008) (per curiam) (“Even if we are

certain that we would have imposed a different sentence had

we worn the district judge’s robe, we can’t reverse on that

basis.”) (emphasis added). The majority seemingly ignores all

this law.

The majority’s criticisms of the district court, and this dis-

sent, amount to no more than disagreement with the 22-year

sentence imposed. That is not enough to warrant reversal. The

district court carefully explained its reasons for imposing that

sentence, as we have required in order to facilitate “meaning-

ful appellate review.” Carty, 520 F.3d at 992. But the burden

is not on the district court to establish that its sentence is rea-

sonable. Rather, the appellate court must affirm unless the

district court committed procedural error or imposed a sub-

stantively unreasonable sentence. See id. at 993; Gall, 552

U.S. at 51. The majority has not satisfied its burden of show-

ing the district court’s sentence was unreasonable.

Not only does the majority make the same mistakes for

which the Supreme Court reversed the Eighth Circuit in Gall,

but it overlooks another, somewhat eerie, similarity between

this case and Gall. As the Supreme Court noted, the trial

judge in Gall was extremely experienced, having sentenced

nearly 1000 offenders. See 552 U.S. at 52 n.7. The district

judge’s experience in this case is comparable, for a search of

LexisNexis Analyzer docket records showed that this judge

has presided over at least 1000 criminal dockets. The district

court’s experience here, as in Gall, should make us even more

cautious in our deferential review. We defer to the district

courts’ exercise of discretion—regardless of experience—

because of the differing day-to-day roles of trial and appellate

judges. See Hinkson, 585 F.3d at 1259-60. In Hinkson, we

explained why we apply deferential review to the district

4744 UNITED STATES v. RESSAM

courts’ factual and discretionary decisions, referring to the

district courts’ “experience with the mainsprings of human

conduct,” so that “the concerns of judicial administration will

favor the district court.” Id.

The majority disregards that wisdom, and contorts our

proper institutional role here. In our everyday lives we often

say that we should all practice what we preach. As an appel-

late court we are bound by law either to practice what we

have preached, or to repudiate it. The majority does neither.

I therefore must respectfully, but regretfully, dissent.