Petition for Writ of Certiorari — Rami Ghanem, Petitioner v. United States
Supreme Court briefFeb 13, 2026
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No. 25IN THE
Supreme Court of the United States
RAMI GHANEM,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
On Petition for Writ of Certiorari to the United
States Court of Appeals for the Ninth Circuit
PETITION FOR A WRIT OF CERTIORARI
BENJAMIN L. COLEMAN
BENJAMIN L. COLEMAN
LAW PC
1350 Columbia Street,
Suite 600
San Diego, CA 92101
(619) 865-5106
blc@blcolemanlaw.com
NEAL KUMAR KATYAL
Counsel of Record
WILLIAM E. HAVEMANN
KRISTINA ALEKSEYEVA
NATALIE NOGUEIRA
MILBANK LLP
1101 New York Ave. NW
Washington, DC 20005
(202) 835-7500
nkatyal@milbank.com
Counsel for Petitioner
QUESTION PRESENTED
Whether the Fifth and Sixth Amendments prohibit
federal courts from increasing a criminal defendant’s
authorized punishment based on conduct—including
uncharged, dismissed, or acquitted conduct—that
was never admitted by the defendant or proven to the
jury beyond a reasonable doubt.
(i)
ii
PARTIES TO THE PROCEEDING
Rami Ghanem, petitioner on review, was the appellant below.
The United States of America, respondent on review, was the appellee below.
iii
STATEMENT OF RELATED PROCEEDINGS
U.S. Court of Appeals for the Ninth Circuit:
•
United States v. Ghanem, No. 22-50266 (9th
Cir. July 17, 2025) (reported at 143 F.4th 1114)
•
United States v. Ghanem, No. 19-50278 (9th
Cir. Apr. 12, 2021) (reported at 993 F.3d 1113)
U.S. District Court for the Central District of California:
•
United States v. Asad-Ghanem, No. 2:15-cr00704-FLA-1 (C.D. Cal. Nov. 17, 2022) (not reported)
iv
TABLE OF CONTENTS
Page
QUESTION PRESENTED ......................................... i
PARTIES TO THE PROCEEDING ........................... ii
STATEMENT OF RELATED PROCEEDINGS ...... iii
TABLE OF AUTHORITIES .......................................v
OPINIONS BELOW ....................................................1
JURISDICTION ..........................................................2
CONSTITUTIONAL PROVISIONS INVOLVED ......2
INTRODUCTION .......................................................2
STATEMENT ..............................................................6
REASONS FOR GRANTING THE PETITION .........9
I. USE OF UNCHARGED, DISMISSED, AND
ACQUITTED CONDUCT TO INCREASE A
DEFENDANT’S AUTHORIZED PUNISHMENT
VIOLATES THE CONSTITUTION ................................9
A. Relying On Judge-Found Facts To
Increase A Defendant’s Authorized
Punishment Violates The Sixth And
Fifth Amendments .........................................10
B. The Ninth Circuit, Like The Other
Circuits, Has Misinterpreted This
Court’s Precedent ...........................................14
II. SEVERAL STATE SUPREME COURTS HAVE
SPLIT FROM THE FEDERAL COURTS OF
APPEALS ................................................................17
III.ONLY THIS COURT CAN RESOLVE THE
IMPORTANT QUESTION PRESENTED, AND
THIS CASE IS AN EXCELLENT VEHICLE
TO DO SO ..............................................................20
CONCLUSION ..........................................................28
v
TABLE OF AUTHORITIES
Page(s)
CASES:
Alleyne v. United States,
570 U.S. 99 (2013) ..........................................11, 15
Apprendi v. New Jersey,
530 U.S. 466 (2000) .............................. 3, 11, 12, 13
Batson v. Kentucky,
476 U.S. 79 (1986) ................................................10
Blakely v. Washington,
542 U.S. 296 (2004) .................................... 2, 10, 12
Connecticut v. Doehr,
501 U.S. 1 (1991) ..................................................15
Cunningham v. California,
549 U.S. 270 (2007) ..............................................15
Duncan v. Louisiana,
391 U.S. 145 (1968) ..............................................11
Erlinger v. United States,
602 U.S. 821 (2024) ..........................................3, 11
Hurst v. Florida,
577 U.S. 92 (2016) ................................................15
In re Winship,
397 U.S. 358 (1970) ........................................10, 13
Jones v. United States,
526 U.S. 227 (1999) ..............................................11
Jones v. United States,
574 U.S. 948 (2014) ............................. 4, 5, 6, 7, 12,
14, 20, 21, 27
Mathis v. United States,
579 U.S. 500 (2016) ..............................................13
vi
TABLE OF AUTHORITIES—Continued
Page(s)
McClinton v. United States,
143 S. Ct. 2400 (2023).......................... 5, 21, 24, 25
People v. Beck,
939 N.W.2d 213 (Mich. 2019) ..............................16
Ring v. Arizona,
536 U.S. 584 (2002) ..............................................15
Rita v. United States,
551 U.S. 338 (2007) ..........................................3, 16
State v. Barnes,
313 N.W.2d 1 (Minn. 1981) .................................18
State v. Bunn,
No. A-2206-18, 2022 WL 3022381
(N.J. Super. Ct. App. Div. Aug. 1, 2022) .......19, 20
State v. Chase,
343 N.W.2d 695 (Minn. Ct. App. 1984) ...............18
State v. Mack,
359 S.E.2d 485 (N.C. Ct. App. 1987) ...................19
State v. Marley,
364 S.E.2d 133 (N.C. 1988) ...........................18, 19
State v. Melvin,
258 A.3d 1075 (N.J. 2021) ....................... 16, 19, 20
State v. Ott,
341 N.W.2d 883 (Minn. 1984)..............................18
State v. Peterson,
329 N.W.2d 58 (Minn. 1983) ...............................18
State v. Simpson,
No. COA24-1092, 2026 WL 40886
(N.C. Ct. App. Jan. 7, 2026) ................................19
Taylor v. State,
670 N.W.2d 584 (Minn. 2003)........................17, 18
vii
TABLE OF AUTHORITIES—Continued
Page(s)
Townsend v. Burke,
334 U.S. 736 (1948) ..............................................13
United States v. Baylor,
97 F.3d 542 (D.C. Cir. 1996) ..........................21, 22
United States v. Bell,
808 F.3d 926 (D.C. Cir. 2015) .............. 5, 21, 22, 24
United States v. Booker,
543 U.S. 220 (2005) ................................ 8, 9, 15, 17
United States v. Canania,
532 F.3d 764 (8th Cir. 2008).................... 12, 21, 22
United States v. Ciavarella,
716 F.3d 705 (3d Cir. 2013) .................................22
United States v. Constantine,
263 F.3d 1122 (10th Cir. 2001)............................22
United States v. Farias,
469 F.3d 393 (5th Cir. 2006)................................22
United States v. Faust,
456 F.3d 1342 (11th Cir. 2006).......... 13, 21, 22, 27
United States v. Fisher,
502 F.3d 293 (3d Cir. 2007) .................................13
United States v. Gaudin,
515 U.S. 506 (1995) ..............................................11
United States v. Ghanem,
993 F.3d 1113 (9th Cir. 2021)................................6
United States v. González,
857 F.3d 46 (1st Cir. 2017) ..................................22
United States v. Grubbs,
585 F.3d 793 (4th Cir. 2009)................................22
viii
TABLE OF AUTHORITIES—Continued
Page(s)
United States v. Haymond,
588 U.S. 634 (2019) .................................... 3, 11, 12
United States v. Hebert,
813 F.3d 551 (5th Cir. 2015)..........................23, 24
United States v. Ibanga,
271 F. App’x 298 (4th Cir. 2008) .........................24
United States v. Lucas,
101 F.4th 1158 (9th Cir. 2024) ............................22
United States v. Mercado,
474 F.3d 654 (9th Cir. 2007)............................8, 16
United States v. Norman,
926 F.3d 804 (D.C. Cir. 2019) ........................21, 22
United States v. Perez,
962 F.3d 420 (9th Cir. 2020)................................16
United States v. Ralston,
110 F.4th 909 (6th Cir. 2024) ........................25, 26
United States v. Sabillon-Umana,
772 F.3d 1328 (10th Cir. 2014)........................5, 21
United States v. Settles,
530 F.3d 920 (D.C. Cir. 2008) ........................12, 22
United States v. Siegelman,
786 F.3d 1322 (11th Cir. 2015)............................22
United States v. Sikes,
824 F. App’x 805 (11th Cir. 2020) .......................23
United States v. Sims,
299 F. App’x 945 (11th Cir. 2008) .......................23
United States v. Sims,
309 F. App’x 384 (11th Cir. 2009) .......................23
ix
TABLE OF AUTHORITIES—Continued
Page(s)
United States v. Texidor,
164 F.4th 248 (3d Cir. 2026)................................25
United States v. Treadwell,
593 F.3d 990 (9th Cir. 2010)..................................8
United States v. Vaughn,
430 F.3d 518 (2d Cir. 2005) ...........................22, 24
United States v. Waller,
689 F.3d 947 (8th Cir. 2012)................................22
United States v. Waltower,
643 F.3d 572 (7th Cir. 2011)................................22
United States v. Ware,
141 F.4th 970 (8th Cir. 2025) ..............................26
United States v. Watts,
519 U.S. 148 (1997) ............................................5, 8
United States v. White,
551 F.3d 381 (6th Cir. 2008).............. 16, 17, 21, 22
CONSTITUTIONAL PROVISIONS:
U.S. Const. amend. V ..............................................2, 3
U.S. Const. amend. VI ............................................2, 3
STATUTES:
18 U.S.C. § 554(a)........................................................6
18 U.S.C. § 1956(a)(2)(A) ............................................6
18 U.S.C. § 2332g ..................................................6, 14
18 U.S.C. § 3553(a)..............................................25, 26
18 U.S.C. § 3661 ........................................................26
28 U.S.C. § 1254(1)......................................................2
SENTENCING GUIDELINES:
U.S.S.G. § 1B1.3(c) ..............................................25, 26
x
TABLE OF AUTHORITIES—Continued
Page(s)
U.S.S.G. amend. 826 .................................................25
OTHER AUTHORITIES:
3 William Blackstone, Commentaries ......................11
4 William Blackstone, Commentaries ................11, 14
Public Meeting, United States Sentencing Commission (Apr. 17, 2024),
https://www.ussc.gov/sites/default/files/pdf/amendment-process/public-hearings-and-meetings/20240417/transcript.pdf .......25
The Federalist No. 83 (Alexander Hamilton)
(C. Rossiter ed. 1961) ...........................................17
IN THE
Supreme Court of the United States
No. 25RAMI GHANEM,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
On Petition for Writ of Certiorari to the United
States Court of Appeals for the Ninth Circuit
PETITION FOR A WRIT OF CERTIORARI
Rami Ghanem respectfully petitions for a writ of
certiorari to review the judgment of the United States
Court of Appeals for the Ninth Circuit in this case.
OPINIONS BELOW
The Ninth Circuit’s decision is reported at 143 F.4th
1114. Pet. App. 1a-38a. That court’s order denying
rehearing and rehearing en banc is not reported but
is available at United States v. Ghanem, No. 22-50266
(9th Cir. Oct. 16, 2025), Dkt. No. 56. Pet. App. 92a93a. The transcript of the district court’s resentencing hearing is available at United States v. AsadGhanem, No. 2:15-cr-00704-FLA-1 (C.D. Cal. Nov. 17,
2022), Dkt. No. 527. Pet. App. 39a-91a.
(1)
2
JURISDICTION
The Ninth Circuit entered judgment on July 17,
2025. Pet. App. 1a-38a. Mr. Ghanem sought panel
rehearing and rehearing en banc, which the court denied on October 16, 2025. Pet. App. 92a-93a. On December 1, 2025, Justice Kagan granted a 30-day extension of the period for filing this petition to February 13, 2026. This Court has jurisdiction under 28
U.S.C. § 1254(1).
CONSTITUTIONAL PROVISIONS INVOLVED
The Fifth Amendment to the United States Constitution provides, in relevant part:
No person shall * * * be deprived of life, liberty,
or property, without due process of law * * * .
U.S. Const. amend. V.
The Sixth Amendment to the United States Constitution provides, in relevant part:
In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by
an impartial jury * * * .
U.S. Const. amend. VI.
INTRODUCTION
This petition asks the Court to finally end a constitutionally indefensible sentencing practice: the use of
judicially found facts—including facts underlying
charges that were dismissed or for which the defendant was acquitted—to enhance a criminal defendant’s
authorized punishment.
The jury-trial right is “a fundamental reservation of
power in our constitutional structure” that “ensures
the people’s ultimate control” in the judiciary.
Blakely v. Washington, 542 U.S. 296, 305-306 (2004).
3
To safeguard that fundamental right, the Framers enacted the Sixth Amendment, promising that “[i]n all
criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial
jury.” U.S. Const. amend. VI. And in the Fifth
Amendment, the Framers added that no person may
be deprived of liberty without “due process of law.”
U.S. Const. amend. V. “Together, these pillars of the
Bill of Rights ensure that the government must prove
to a jury every criminal charge beyond a reasonable
doubt, an ancient rule that has ‘extended down centuries.’ ” United States v. Haymond, 588 U.S. 634, 641
(2019) (plurality op.) (brackets omitted) (quoting Apprendi v. New Jersey, 530 U.S. 466, 477 (2000)).
Consistent with that history, this Court has held
that “[j]udges may not assume the jury’s factfinding
function for themselves.” Erlinger v. United States,
602 U.S. 821, 834 (2024). Of course, “judges can find
facts that help guide their discretion within the sentencing range that is authorized by the facts found by
the jury or admitted by the defendant.” Rita v. United
States, 551 U.S. 338, 373 (2007) (Scalia, J., joined by
Thomas, J., concurring in part and concurring in the
judgment). But sentences that would be unlawful but
for a judge-found fact violate the Constitution; any
other rule “would intrude on a power the Fifth and
Sixth Amendments reserve to the American people.”
Erlinger, 602 U.S. at 835.
In the decision below, however, a Ninth Circuit
panel deemed itself obligated under circuit precedent
to uphold a 22-year sentencing enhancement—more
than three times the upper limit of the Guidelines
range—based on conduct underlying a conviction that
had been vacated in a prior appeal. Although the
Government did not retry the defendant on the
4
vacated charge, the district court on remand, applying
the relaxed preponderance-of-the-evidence standard,
imposed the exact same sentence anyway. Judge Collins authored the panel opinion, explaining that he
understood himself to be compelled by precedent to
affirm the sentence. But Judge Collins took the extraordinary step of concurring in his own opinion to
emphasize that the sentence was “patently unlawful”
and to highlight the “very troubling feature of the
precedent we must apply.” Pet. App. 33a, 37a.
The decision below is the most recent contribution
to a line of circuit decisions permitting judicial factfinding at sentencing based on uncharged, vacated,
and acquitted conduct. Like the panel below, other
federal courts of appeals have taken this Court’s “continuing silence to suggest that the Constitution does
permit otherwise unreasonable sentences supported
by judicial factfinding, so long as they are within the
statutory range.” Jones v. United States, 574 U.S.
948, 949 (2014) (Scalia, J., joined by Thomas and
Ginsburg, JJ., dissenting from denial of certiorari).
The circuits permit such judicial fact-finding even
where, as here, it produces a severalfold increase to
the defendant’s sentence, and even where, as here,
the facts found by the judge could constitute an entirely separate offense under the U.S. Code.
The Ninth Circuit, like the other circuits, has misread this Court’s precedent in permitting this practice, which cannot be reconciled with our Nation’s constitutional commitment to jury fact-finding beyond a
reasonable doubt. This practice also splits from decisions of several state supreme courts, which have correctly interpreted the federal constitution to prohibit
the use of uncharged and acquitted conduct to increase a defendant’s authorized punishment.
5
This issue is exceptionally important, affecting
countless defendants across the country. Members of
this Court have repeatedly called the practice into
question. E.g., McClinton v. United States, 143 S. Ct.
2400, 2401-03 (2023) (Sotomayor, J., respecting denial of certiorari); id. at 2403 (Kavanaugh, J., joined
by Gorsuch and Barrett, JJ., respecting denial of certiorari); United States v. Watts, 519 U.S. 148, 170
(1997) (Stevens, J., dissenting); id. (Kennedy, J., dissenting); Jones, 574 U.S. at 949 (Scalia, J., joined by
Thomas and Ginsburg, JJ., dissenting from denial of
certiorari); United States v. Bell, 808 F.3d 926, 928
(D.C. Cir. 2015) (Kavanaugh, J., concurring in denial
of rehearing en banc); United States v. SabillonUmana, 772 F.3d 1328, 1331 (10th Cir. 2014) (Gorsuch, J.). Lower court judges, too, routinely criticize
sentencing enhancements based on judge-found facts
but are compelled to uphold them based on circuit
precedent. As Judge Collins explained, only this
Court can resolve this “disquieting anomaly.” Pet.
App. 38a.
This case is an excellent vehicle to do so. The Ninth
Circuit panel openly acknowledged that Mr.
Ghanem’s sentence was predicated on conduct “that
underlay the now-vacated conviction” and that his
sentence would be “substantively unreasonable” without judge-found facts. Pet. App. 29a, 31a-32a. And
although this Court denied a similar petition three
Terms ago to give the Sentencing Commission an opportunity to consider the issue, the Commission has
now acted but failed to fix the constitutional problem.
More than a decade ago, Justice Scalia concluded
that the practice of increasing criminal defendants’
authorized punishments based on judge-found facts
“has gone on long enough.” Jones, 574 U.S. at 949
6
(Scalia, J., joined by Thomas and Ginsburg, JJ., dissenting from denial of certiorari). The Court should
grant the petition.
STATEMENT
Rami Ghanem pleaded guilty to criminal charges related to his attempt to export pistols, ammunition,
night-vision goggles, and machine guns out of the
United States without the necessary license. See 18
U.S.C. §§ 554(a), 1956(a)(2)(A); Pet. App. 4a. In all,
Mr. Ghanem made two payments, each just under
$90,000, to an undercover federal agent for equipment he believed he would be exporting. Pet. App. 4a,
6a-7a.
In a superseding indictment, however, the Government further charged Mr. Ghanem with conspiring to
acquire, transport, and use surface-to-air missiles in
violation of 18 U.S.C. § 2332g, which carries a 25-year
mandatory minimum. Pet. App. 4a. Mr. Ghanem vigorously disputed his guilt of that charge and went to
trial on it. Pet. App. 4a. The jury convicted him, and
the district court sentenced him to a term of 30 years’
imprisonment based on a Guidelines range of 292-365
months. Pet. App. 4a.
The Ninth Circuit subsequently vacated Mr.
Ghanem’s § 2332g conviction because the jury had
been improperly instructed. Pet. App. 5a. The court
concluded that there was “a reasonable likelihood
that the jury may have acquitted Mr. Ghanem” but
for the erroneous instruction. United States v.
Ghanem, 993 F.3d 1113, 1130 (9th Cir. 2021).
On remand, the Government opted not to retry Mr.
Ghanem on the § 2332g charge, and the Probation Office calculated Mr. Ghanem’s Guidelines range on the
remaining counts as 78-97 months. Pet. App. 11a-
7
12a. The Government, however, asked the district
court—a different court than had presided over Mr.
Ghanem’s trial—to re-impose the same 30-year sentence, which was 22 years longer than the top end of
the Guidelines range for the charges to which Mr.
Ghanem pleaded guilty. Pet. App. 12a. According to
the Government, Mr. Ghanem’s relevant “conduct remain[ed] exactly the same” as at the first sentencing
despite the vacatur of the § 2332g conviction, so “the
appropriate sentence for that conduct also remain[ed]
the same.” Pet. App. 12a (brackets omitted).
The district court agreed, sentencing Mr. Ghanem
to 30 years’ imprisonment over Mr. Ghanem’s objections. Pet. App. 12a. The court reasoned that “it was
allowed to consider the conduct underlying the vacated § 2332g count,” and determined that an upward
variance was appropriate due to the “extreme facts”
underlying the vacated conviction. Pet. App. 13a.
Mr. Ghanem appealed his sentence, maintaining
that the 22-year enhancement violated his due process and jury-trial rights under the Fifth and Sixth
Amendments. He emphasized that, had the district
court sentenced him to 30 years based solely on the
conduct he admitted in his plea, that sentence would
have been substantively unreasonable.
As Mr.
Ghanem explained, the district court imposed that exorbitant sentence only by making its own findings of
fact related to the vacated charge. That was unconstitutional: “any fact necessary to prevent a sentence
from being substantively unreasonable” “is an element that must be either admitted by the defendant
or found by the jury.” Jones, 574 U.S. at 949 (Scalia,
J., joined by Thomas and Ginsburg, JJ., dissenting
from denial of certiorari). And Mr. Ghanem explained
that his sentence enhancement was particularly
8
egregious because it was based on conduct underlying
a charge the government had been forced to dismiss.
In a majority opinion authored by Judge Collins, the
Ninth Circuit affirmed. The court acknowledged that,
“[g]iven the loadbearing weight that we have placed
on the district court’s factual findings in concluding
that Ghanem’s sentence is substantively reasonable,
his sentence here would violate the Sixth Amendment
under Justice Scalia’s view.” Pet. App. 32a. But the
panel held that “Justice Scalia’s position has not commanded a majority of the Supreme Court,” and that
the panel was bound by Ninth Circuit precedent applying this Court’s decisions in Watts, 519 U.S. 148,
and United States v. Booker, 543 U.S. 220 (2005). Pet.
App. 31a-32a. For example, the Ninth Circuit in
United States v. Mercado, 474 F.3d 654 (9th Cir.
2007), determined that “Booker has not abrogated the
previously prevailing constitutional jurisprudence
that allowed sentencing courts to consider conduct
underlying acquitted criminal charges.” Id. at 658.
And United States v. Treadwell, 593 F.3d 990 (9th Cir.
2010), permitted district courts to “impose a sentence
anywhere within the range established by the statute
of conviction.” Id. at 1017.
Judge Collins concurred in his own majority opinion. He reiterated that the “discrete” and “limited”
facts underlying Mr. Ghanem’s guilty plea “support,
at most, a guidelines range of 78–97 months, and
therefore any upward departure from that range
would require additional fact-finding that,” under the
Sixth Amendment, “only a jury may make.” Pet. App.
35a-36a. Judge Collins therefore concluded that allowing “a district judge to make the findings necessary to raise Ghanem’s sentence above the 97-month
cap” was “patently unlawful” and “a flagrant violation
9
of Ghanem’s Sixth Amendment rights.” Pet. App.
36a-37a. Judge Collins further observed that “even
the Government’s lawyer candidly conceded at oral
argument” that Mr. Ghanem’s 30-year sentence “was
‘absolutely’ unlawful under” the Guidelines as originally written by Congress. Pet. App. 38a. Nonetheless, Judge Collins understood himself to be “required
to affirm” the sentence under Watts, Booker, and circuit precedent applying those decisions. Pet. App.
38a. “Only the Supreme Court has the authority, if it
sees fit, to address this disquieting anomaly.” Pet.
App. 38a.
Mr. Ghanem sought rehearing and rehearing en
banc, explaining that the panel misread Watts and
Booker and disregarded this Court’s precedent prohibiting the use of uncharged, vacated, and acquitted
conduct to increase a defendant’s authorized punishment. The Ninth Circuit denied Mr. Ghanem’s petition. Pet. App. 92a-93a.
REASONS FOR GRANTING THE PETITION
I.
USE OF UNCHARGED, DISMISSED, AND ACQUITTED CONDUCT TO INCREASE A DEFENDANT’S AUTHORIZED PUNISHMENT VIOLATES THE CONSTITUTION.
Courts have broad authority to impose a sentence
that reflects the seriousness of a defendant’s offense,
but courts may not use judge-found facts to impose a
sentence that would be unlawful without those facts.
As the Court explained in Booker: “Any fact (other
than a prior conviction) which is necessary to support
a sentence exceeding the maximum authorized by the
facts established by a plea of guilty or a jury verdict
must be admitted by the defendant or proved to a jury
beyond a reasonable doubt.” 543 U.S. at 244.
10
The panel below affirmed a 30-year sentence that
was “more than triple the top of the guidelines range”
based on conduct underlying a conviction that had
been vacated in a prior appeal. Pet. App. 36a (emphasis added). The panel recognized that this sentence
would be “substantively unreasonable” absent judgefound facts regarding the vacated charge, but understood itself to be bound by circuit precedent to affirm
the sentence anyway. Pet. App. 31a-32a. As Judge
Collins explained concurring in his own majority
opinion, Mr. Ghanem’s sentence was “patently unlawful.” Pet. App. 37a. The Court should grant certiorari
and resolve the “disquieting anomaly” underlying it.
Pet. App. 38a.
A. Relying On Judge-Found Facts To Increase A Defendant’s Authorized Punishment Violates The Sixth And Fifth
Amendments.
The Sixth Amendment’s jury-trial right is one of the
most “fundamental reservation[s] of power in our constitutional structure.” Blakely, 542 U.S. at 305-306.
It guarantees citizens’ “control in the judiciary,” id. at
306, and “safeguard[s] a person accused of crime
against the arbitrary exercise of power by prosecutor
or judge,” Batson v. Kentucky, 476 U.S. 79, 86 (1986).
The Sixth Amendment’s jury-trial right works in tandem with the Fifth Amendment right to due process,
which “protects the accused against conviction except
upon proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which he is
charged.” In re Winship, 397 U.S. 358, 364 (1970). Increasing a defendant’s authorized punishment based
on acquitted or uncharged conduct is a manifest violation of these principles.
11
1. The Sixth Amendment “gives a criminal defendant the right to demand that a jury find him guilty of
all the elements of the crime with which he is
charged.” United States v. Gaudin, 515 U.S. 506, 511
(1995). That right grew from a centuries-long AngloAmerican common-law tradition that viewed the right
to jury trial as an “inestimable safeguard against the
corrupt or overzealous prosecutor and against the
compliant, biased, or eccentric judge.” Duncan v. Louisiana, 391 U.S. 145, 156 (1968).
Common-law juries acted as the conscience of the
community not only through “flat-out acquittals,” but
also by “indirectly check[ing]” the “severity of sentences” by issuing “what today we would call verdicts
of guilty to lesser included offenses.” Jones v. United
States, 526 U.S. 227, 245 (1999). Juries, for example,
would “often * * * bring in larceny to be under the
value of twelvepence” to avoid a mandatory death sentence. 4 William Blackstone, Commentaries 248.
Early American statutes similarly “left judges with
little sentencing discretion: once the facts of the offense were determined by the jury, the ‘judge was
meant simply to impose [the prescribed] sentence.’ ”
Alleyne v. United States, 570 U.S. 99, 108 (2013) (discussing 3 William Blackstone, Commentaries 396). A
judge could not “swell the penalty above what the law
* * * provided for the acts” found by a jury of the defendant’s peers. Apprendi, 530 U.S. at 519 (Thomas,
J., concurring) (citation omitted).
In recent decades, however, legislatures have experimented with sentencing provisions that cut juries out
of the sentencing process. Erlinger, 602 U.S. at 832.
This Court responded to this experimentation decisively, insisting on jury fact-finding in sentencing
12
because “the Constitution’s guarantees cannot mean
less today than they did the day they were adopted.”
Haymond, 588 U.S. at 642 (plurality op.). In Apprendi, the Court thus held that “the relevant inquiry” in every case is whether “the required finding
expose[s] the defendant to a greater punishment than
that authorized by the jury’s guilty verdict.” 530 U.S.
at 494. And in Blakely, the Court made clear “that
the judge’s authority to sentence derives wholly from
the jury’s verdict” or guilty plea. 542 U.S. at 306.
Thus, it “unavoidably follows that any fact necessary
to prevent a sentence from being substantively unreasonable—thereby exposing the defendant to the
longer sentence—is an element that must be either
admitted by the defendant or found by the jury. It
may not be found by a judge.” Jones, 574 U.S. at 949
(Scalia, J., joined by Thomas and Ginsburg, JJ., dissenting from denial of certiorari).
The use of uncharged and acquitted conduct at sentencing not only infringes criminal defendants’ jurytrial rights. It also “undermines respect for the law
and the jury system.” United States v. Settles, 530
F.3d 920, 924 (D.C. Cir. 2008) (Kavanaugh, J.). Increasing a defendant’s sentence based on judicial factfinding deprives the sentence of the legitimacy that
follows from a jury verdict and “divest[s] the people at
large * * * of their constitutional authority to set the
metes and bounds of judicially administered criminal
punishments.” Haymond, 588 U.S. at 646 (plurality
op.) (quotation marks and citation omitted); see
United States v. Canania, 532 F.3d 764, 778 n.4 (8th
Cir. 2008) (Bright, J., concurring) (quoting letter from
juror to judge calling the use of acquitted conduct a
“tragedy” that denigrates “our contribution as jurors”).
13
2. Relying on acquitted, dismissed, and uncharged
conduct to increase a defendant’s authorized punishment also violates due process. The Fifth Amendment
“protects the accused against conviction except upon
proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”
Winship, 397 U.S. at 364. That standard of proof “provides concrete substance for the presumption of innocence.” Id. at 363.
Judicial fact-finding, however, permits a preponderance-of-the-evidence standard. Increasing a defendant’s authorized punishment based on findings made
by a preponderance causes “unusual and serious procedural unfairness,” Apprendi, 530 U.S. at 562-563
(Breyer, J., joined by Roberts, C.J., dissenting)—particularly where that conduct could “constitute entirely
free-standing offenses under the applicable law,”
United States v. Faust, 456 F.3d 1342, 1352 (11th Cir.
2006) (Barkett, J., specially concurring); see United
States v. Fisher, 502 F.3d 293, 311-312 (3d Cir. 2007)
(Rendell, J., concurring) (similar).
Finally, fact-finding by a preponderance of the evidence increases the risk of inaccurate sentencing.
Even where a defendant has previously been convicted of a crime, this Court has cautioned that reliance on facts underlying those prior convictions may
raise concerns about “unfairness” and lead to “error.”
Mathis v. United States, 579 U.S. 500, 501 (2016).
Those same concerns obviously apply when the court
relies on facts underlying uncharged, vacated, and acquitted conduct—facts the Government has not
proven. “Such a result * * * is inconsistent with due
process of law.” Townsend v. Burke, 334 U.S. 736, 741
(1948).
14
B. The Ninth Circuit, Like The Other Circuits, Has Misinterpreted This Court’s
Precedent.
1. The decision below cannot be reconciled with the
Sixth and Fifth Amendments’ basic guarantees. The
panel approved a criminal sentence that was “more
than triple”—22 years above—“the top of the guidelines range” based on judge-found facts that Mr.
Ghanem never admitted in the plea and that were
never proven to the jury beyond a reasonable doubt.
Pet. App. 36a. The panel acknowledged that the sentence would have been “substantively unreasonable”
without those judge-found facts. Pet. App. 31a-32a
(citing Jones, 574 U.S. at 949-950 (Scalia, J., joined by
Thomas and Ginsburg, JJ., dissenting from denial of
certiorari)). And those facts were based on a charge
underlying an entirely separate provision of the U.S.
Code that had been vacated in a prior appeal. See 18
U.S.C. § 2332g.
These proceedings deprived Mr. Ghanem of his constitutional right to have his punishment determined
by a jury beyond a reasonable doubt. The Government prosecuted Mr. Ghanem under Section 2332g
but the conviction was vacated, rendering it a nullity.
Rather than retry Mr. Ghanem, the Government prevailed on the district court to impose “exactly the
same” sentence based on “exactly the same” conduct
anyway—a sentence that the Ninth Circuit recognized would have been unlawful based on the conduct
Mr. Ghanem admitted in his plea. Pet. App. 12a. The
Government may not short-circuit constitutional
guardrails in this manner for the sake of convenience.
4 Blackstone, supra, at 344.
15
2. In upholding Mr. Ghanem’s sentencing enhancement, the panel understood itself to be bound by
Ninth Circuit precedent that has construed this
Court’s cases to permit judicial fact-finding to increase a defendant’s authorized punishment. But the
Ninth Circuit has misunderstood this Court’s cases
and federal law.
First, the Ninth Circuit has relied on this Court’s
decision in Watts to justify judicial fact-finding to increase a defendant’s authorized punishment. But this
Court has already explained that Watts did not sanction “sentencing enhancement[s]” that exceed the
punishment “authorized by the jury verdict.” Booker,
543 U.S. at 240. Rather, Watts decided a “very narrow
question regarding the interaction of the Guidelines
with the Double Jeopardy Clause.” Id. at 240 n.4. Indeed, this Court has specifically warned against overreliance on Watts, which “did not even have the benefit of full briefing or oral argument.” Id.; see also, e.g.,
Connecticut v. Doehr, 501 U.S. 1, 12 n.4 (1991) (summary dispositions do “not enjoy the full precedential
value of a case argued on the merits”).
Watts is also out of step with the Court’s modern
Sixth Amendment jurisprudence. See supra pp. 1112; see also Hurst v. Florida, 577 U.S. 92, 98-99 (2016)
(jury must make critical findings needed to impose a
death sentence); Alleyne, 570 U.S. at 117 (jury must
find facts increasing mandatory minimum); Cunningham v. California, 549 U.S. 270, 293 (2007) (jury must
find facts exposing defendant to longer sentence);
Ring v. Arizona, 536 U.S. 584, 602 (2002) (any “increase in a defendant’s authorized punishment contingent on the finding of a fact” requires a jury finding).
16
The Ninth Circuit’s uncritical reliance on Watts is
therefore “misplaced.” Mercado, 474 F.3d at 661
(Fletcher, J., dissenting); accord, e.g., United States v.
White, 551 F.3d 381, 392 (6th Cir. 2008) (Merritt, J.,
dissenting) (“reliance on Watts as authority for enhancements based on acquitted conduct is obviously a
mistake”); State v. Melvin, 258 A.3d 1075, 1090 (N.J.
2021) (“Watts is not dispositive of the due process
challenge presently before this Court”); People v.
Beck, 939 N.W.2d 213, 224 (Mich. 2019) (finding
“Watts unhelpful in resolving whether the use of acquitted conduct at sentencing violates due process”
because “Watts addressed only a double-jeopardy
challenge”).
Second, the Ninth Circuit has concluded that
Booker’s remedial opinion, authored by Justice
Breyer, permits judges to rely on uncharged and acquitted conduct so long as the sentence ultimately
does not exceed the statutory maximum, because
Booker declined to engraft a jury-trial requirement
onto the Guidelines. See United States v. Perez, 962
F.3d 420, 454 (9th Cir. 2020); Pet. App. 33a-38a; see
also White, 551 F.3d at 384.
But nothing about Booker’s remedial opinion—or
the Court’s precedent applying it—forecloses “as-applied Sixth Amendment challenges to sentences that
would not have been upheld as reasonable on the facts
encompassed by the jury verdict or guilty plea.” Rita,
551 U.S. at 375 (Scalia, J., joined by Thomas, J., concurring in part and concurring in the judgment); see
also White, 551 F.3d at 389 (Merritt, J., dissenting)
(“it is clear that the post-Booker development of reasonableness review has opened the door for Sixth
Amendment challenges” even “to sentences within
17
the statutory range authorized by the jury’s verdict”
(emphasis added)).
Booker’s constitutional opinion, moreover, specifically rejected the government’s attempt to downplay
Apprendi. The government had argued that Apprendi
was not controlling because it addressed only the statutory maximum and not the Guidelines. The Court
disagreed, explaining that the government was wrong
to fixate on the particular “language used in our holding in Apprendi.” Booker, 543 U.S. at 238. “More important” were the principles the Court “sought to vindicate” in that case, like averting “the threat of ‘judicial despotism’ that could arise from ‘arbitrary punishments upon arbitrary convictions’ without the benefit of a jury in criminal cases.” Id. at 238-239 (quoting The Federalist No. 83, at 499 (Alexander Hamilton) (C. Rossiter ed. 1961)). “Those principles are unquestionably applicable to the Guidelines” as well. Id.
at 238.
II.
SEVERAL STATE SUPREME COURTS HAVE
SPLIT FROM THE FEDERAL COURTS OF APPEALS.
While the federal courts consistently impose sentencing enhancements based on acquitted, dismissed,
and uncharged conduct, several States have interpreted the U.S. Constitution to prohibit the use of
judge-found facts to impose a sentence that would be
substantively unreasonable without those facts.
The Minnesota Supreme Court has repeatedly held
that, while a court may “consider the conduct underlying the charge of which the defendant is convicted,”
“reliance on other offenses that are not part of the
charge and of which the defendant was not convicted
is not a permissible basis” for a sentencing
18
enhancement. Taylor v. State, 670 N.W.2d 584, 588
(Minn. 2003). In Taylor, for example, the defendant
pleaded guilty to one count of sexual misconduct. Id.
at 585. At sentencing, the State requested a 3-year
upward departure based on evidence of a prior uncharged sex offense that the defendant did not admit
in the plea. Id. at 586. The trial court increased the
defendant’s sentence accordingly, but the Minnesota
Supreme Court reversed. “To use prior uncharged sex
offenses would amount to improper sentencing for
crimes of which the defendant was not convicted,” the
court explained. Id. at 588. Where “the evidence ‘only
supports defendant’s guilt of some other offense but
does not support the conclusion that the defendant
committed the instant offense for which he is being
sentenced in a particularly serious way, then it cannot be relied upon as a ground for departure.’ ” Id.
(quoting State v. Ott, 341 N.W.2d 883, 884 (Minn.
1984)); see also, e.g., State v. Peterson, 329 N.W.2d 58,
60 (Minn. 1983); State v. Barnes, 313 N.W.2d 1, 3
(Minn. 1981); State v. Chase, 343 N.W.2d 695, 697
(Minn. Ct. App. 1984) (all reiterating the same rule).
“If the state has evidence” of the additional violations,
“the state should charge defendant.” Barnes, 313
N.W.2d at 3.
The North Carolina Supreme Court has similarly
held that “due process and fundamental fairness preclude[ ] the trial court from aggravating [a] defendant’s sentence” based on uncharged or acquitted conduct. State v. Marley, 364 S.E.2d 133, 138-139 (N.C.
1988). In Marley, the jury acquitted the defendant of
first-degree murder, but the trial court nevertheless
imposed a life sentence based on its own finding of
“premeditation and deliberation as an aggravating
factor.” Id. at 134, 137. The North Carolina Supreme
19
Court reversed. As the court put it, the “use at sentencing [of] an essential element of a greater offense
as an aggravating factor, when the presumption of innocence was not, at trial, overcome as to this element,
is fundamentally inconsistent with the presumption
of innocence itself.” Id. at 139; accord State v. Mack,
359 S.E.2d 485, 489-490 (N.C. Ct. App. 1987) (that a
defendant may be guilty of another offense “is not itself an unenumerated aggravating factor reasonably
related to the purposes of sentencing” (quotation
marks and citation omitted)); State v. Simpson, No.
COA24-1092, 2026 WL 40886, at *5-6 (N.C. Ct. App.
Jan. 7, 2026) (although the trial court has “wide latitude” to consider such “matters as the age, character,
education, environment, habits, mentality, propensities and record of the defendant,” it may not significantly increase a sentence based on “conduct not alleged in the indictment” (quotation marks and citations omitted)).
New Jersey follows the same rule. In Melvin, the
New Jersey Supreme Court concluded that neither
the New Jersey nor the federal constitution allows
trial courts to rely on acquitted or uncharged conduct
at sentencing, because “the right to a criminal trial by
jury is inviolate.” 258 A.3d at 1092 (quotation marks
and citation omitted). Permitting “re-litigation of
facts in a criminal case under the lower preponderance of the evidence standard” therefore “would render the jury’s role in the criminal justice process null
and would be fundamentally unfair.” Id. The court
considered whether Watts requires it to affirm the
sentence, and determined that it does not. “As clarified in Booker, Watts was cabined specifically to the
question of whether the practice of using acquitted
conduct at sentencing was inconsistent with double
20
jeopardy.” Id. at 1090; see also State v. Bunn, No. A2206-18, 2022 WL 3022381, at *3 (N.J. Super. Ct.
App. Div. Aug. 1, 2022) (vacating a sentence based on
“acquitted and uncharged conduct”).
***
The decision below thus entrenched a split between
federal and state courts, giving criminal defendants
in federal court diminished rights under the Fifth and
Sixth Amendments relative to defendants in Minnesota, North Carolina, and New Jersey. This split is
particularly intolerable for defendants in those three
States, whose Sixth Amendment protections vary depending on whether they are charged in federal or
state court.
III.
ONLY THIS COURT CAN RESOLVE THE IMPORTANT QUESTION PRESENTED, AND
THIS CASE IS AN EXCELLENT VEHICLE TO
DO SO.
1. This case raises exceptionally important constitutional issues that affect the rights of criminal defendants in both federal and state courts. Multiple Justices of this Court have expressed concern over using
acquitted, dismissed, and uncharged conduct to increase a defendant’s sentence and have called on the
Court to put an end to this practice.
Over a decade ago, Justices Scalia, Thomas, and
Ginsburg dissented from denial of certiorari in Jones,
explaining that “[a]ny fact that increases the penalty
to which a defendant is exposed constitutes an element of a crime” that “must be found by a jury, not a
judge.” 574 U.S. at 948 (quotation marks and citations omitted). Yet, the Justices observed, “the Courts
of Appeals have uniformly taken our continuing silence to suggest that the Constitution does permit
21
otherwise unreasonable sentences supported by judicial factfinding, so long as they are within the statutory range.” Id. at 949. The Justices urged the Court
to weigh in and “put an end to the unbroken string of
cases disregarding the Sixth Amendment.” Id. at 950.
Justices Sotomayor, Kavanaugh, Gorsuch, and Barrett echoed those same concerns three Terms ago, explaining that the use of acquitted conduct at sentencing raised important issues “that go to the fairness
and perceived fairness of the criminal justice system”
warranting this Court’s review. McClinton, 143 S. Ct.
at 2401 (Sotomayor, J., respecting denial of certiorari); see id. at 2403 (Kavanaugh, J., joined by Gorsuch and Barrett, JJ., respecting denial of certiorari)
(similar). Justices have consistently raised these concerns—not only as to acquitted conduct, but as to vacated and other uncharged conduct as well. See Bell,
808 F.3d at 928 (Kavanaugh, J., concurring in denial
of rehearing en banc) (“Allowing judges to rely on acquitted or uncharged conduct to impose higher sentences than they otherwise would impose seems a dubious infringement of the rights to due process and to
a jury trial.”); Sabillon-Umana, 772 F.3d at 1331
(Gorsuch, J.) (“It is far from certain whether the Constitution allows” a district judge to increase a defendant’s sentence within the statutorily authorized range
“based on facts the judge finds without the aid of a
jury or the defendant’s consent.”).
Lower-court judges have also repeatedly and emphatically called on this Court to address the unfairness of allowing uncharged, vacated, or acquitted conduct to drive a defendant’s sentence. See United
States v. Baylor, 97 F.3d 542, 550 (D.C. Cir. 1996)
(Wald, J., concurring specially) (“the use of acquitted
conduct in an identical fashion with convicted conduct
22
in computing an offender’s sentence leaves such a jagged scar on our constitutional complexion that periodically its presence must be highlighted and reevaluated in the hopes that someone will eventually pay
attention, [for example] through a grant of certiorari”); Bell, 808 F.3d at 932 (Millett, J., concurring in
denial of rehearing en banc) (observing that “only the
Supreme Court can resolve the contradictions in the
current state of the law” and urging the Court “to take
up this important, frequently recurring, and troubling contradiction in sentencing law”); United States
v. Norman, 926 F.3d 804, 811 (D.C. Cir. 2019) (Sentelle, J.) (affirming sentence only because “[t]he Supreme Court has not yet done what Justice Scalia suggested”); White, 551 F.3d at 387 (Merritt, J., dissenting) (similar); Faust, 456 F.3d at 1349 (Barkett, J.,
specially concurring) (similar); Canania, 532 F.3d at
776-778 (Bright, J., concurring) (similar); Pet. App.
38a (similar).
As Justices Scalia, Thomas, and Ginsburg anticipated, federal courts of appeals have continued to understand this Court’s silence regarding the practice as
approval of it, holding that the use of uncharged, vacated, and acquitted conduct to increase a defendant’s
authorized punishment is permissible. Every circuit
with criminal jurisdiction has blessed this practice.1
1 See United States v. González, 857 F.3d 46, 58 (1st Cir. 2017);
United States v. Vaughn, 430 F.3d 518, 526-527 (2d Cir. 2005);
United States v. Ciavarella, 716 F.3d 705, 735-736 (3d Cir. 2013);
United States v. Grubbs, 585 F.3d 793, 798-799 (4th Cir. 2009);
United States v. Farias, 469 F.3d 393, 399-400 & n.17 (5th Cir.
2006); White, 551 F.3d at 386 (6th Cir.); United States v.
Waltower, 643 F.3d 572, 575-578 (7th Cir. 2011); United States
v. Waller, 689 F.3d 947, 958-960 (8th Cir. 2012); United States v.
Lucas, 101 F.4th 1158, 1162-63 (9th Cir. 2024); United States v.
Constantine, 263 F.3d 1122, 1125 n.2 (10th Cir. 2001); United
23
And every circuit has refused to reconsider the question en banc.2 Thus, while the federal and state courts
are split on the question, there is no prospect that any
circuit will change its position absent this Court’s intervention.
Lower-court judges therefore have no choice but to
affirm extraordinary sentencing enhancements not
because they believe them to be constitutional but because they are compelled to do so by circuit precedent.
See, e.g., United States v. Sikes, 824 F. App’x 805, 810
(11th Cir. 2020) (per curiam) (affirming a sentence
double the Guidelines range for mail fraud based on
evidence of uncharged conduct because, “even if th[e]
jurists and scholars are correct” that “the Fifth and
Sixth Amendments preclude district courts from considering uncharged conduct at sentencing,” “we would
not be permitted to overlook” binding precedent);
United States v. Hebert, 813 F.3d 551, 564-565 (5th
States v. Siegelman, 786 F.3d 1322, 1332-33 & n.12 (11th Cir.
2015); Settles, 530 F.3d at 923-924 (D.C. Cir.).
2 See United States v. Cortes-Medina., No. 14-1101 (1st Cir. June
28, 2016), Dkt. No. 58; United States v. Jones, No. 18-1794 (2d
Cir. Aug. 13, 2021), Dkt. No. 420; United States v. Lynch, No. 171144 (3d Cir. June 26, 2018), Dkt. No. 91; United States v.
Benkahla, No. 07-4778 (4th Cir. July 22, 2008), Dkt. No. 32;
United States v. Redd, No. 06-60806 (5th Cir. Mar. 17, 2009),
Dkt. No. 272; United States v. Baquedano, No. 13-1007 (6th Cir.
Nov. 27, 2013), Dkt. No. 66; United States v. Ashqar, No. 07-3879
(7th Cir. Oct. 28, 2009), Dkt. No. 60; United States v. Shield, No.
15-2341 (8th Cir. Sep. 29, 2016), Dkt. No. 61; United States v.
Fitch, No. 07-10607 (9th Cir. Feb. 22, 2012), Dkt. No. 142; United
States v. Ray, No. 11-3383 (10th Cir. Feb. 1, 2013), Dkt. No. 48;
United States v. Sims, 299 F. App’x 945 (11th Cir. 2008), reh’g en
banc denied, 309 F. App’x 384 (11th Cir. 2009) (Table); United
States v. Browne, No. 18-3073 (D.C. Cir. June 12, 2020), Dkt. No.
46.
24
Cir. 2015) (upholding a sentence eighty-six years
above the Guidelines range because judicial fact-finding did not violate the defendant’s “due process right
and constitutional right to a jury trial” under the
court’s “precedent”).
Even district judges cannot “disclaim reliance on acquitted or uncharged conduct,” because circuit courts
do not merely permit district judges to increase defendants’ sentences based on judge-found facts; they
require them to do so. Bell, 808 F.3d at 928 (Kavanaugh, J., concurring in denial of rehearing en
banc). In United States v. Ibanga, 271 F. App’x 298
(4th Cir. 2008) (per curiam), for example, the district
court “refus[ed] to consider acquitted conduct * * * in
determining [a defendant’s] sentence.” Id. at 299.
The Fourth Circuit reversed, finding that the district
court “committed significant procedural error by categorically excluding acquitted conduct from the information that it could consider in the sentencing process.” Id. at 301 (citation omitted). Likewise in
United States v. Vaughn, 430 F.3d 518 (2d Cir. 2005),
the Second Circuit vacated the district court’s sentence and ordered the district court “to consider all
facts relevant to sentencing it determines to have
been established by a preponderance of the evidence
as it did pre-Booker, even those relating to acquitted
conduct.” Id. at 527.
2. Denying certiorari in McClinton, Justices Sotomayor, Gorsuch, Kavanaugh, and Barrett explained
that the case “raise[d] important questions” but that
review was unwarranted because the Sentencing
Commission was “considering the issue.” 143 S. Ct.
at 2403 (Kavanaugh, J., joined by Gorsuch and Barrett, JJ., respecting denial of certiorari); see id. at
2402-03 (Sotomayor, J., respecting denial of
25
certiorari) (“If the Commission does not act expeditiously or chooses not to act, however, this Court may
need to take up the constitutional issues presented.”).
In 2024, the Commission amended the Guidelines to
provide that “[r]elevant conduct does not include conduct for which the defendant was criminally charged
and acquitted in federal court.” U.S.S.G. § 1B1.3(c).
That amendment, however, did not cure the constitutional problem. For one thing, the amendment prohibits sentencing enhancements only based on acquitted conduct; it “does not comment on the use of uncharged, dismissed, or other relevant conduct.”
U.S.S.G. amend. 826.3 The amendment therefore
does not reach cases like Mr. Ghanem’s.
More fundamentally, the amendment’s “plain text
does not limit the consideration of acquitted conduct
in contexts other than calculating the Guidelines
range,” so even “acquitted conduct may still be considered when determining the appropriate sentence.”
United States v. Texidor, 164 F.4th 248, 255 (3d Cir.
2026); see Public Meeting at 14, United States Sentencing Commission (Apr. 17, 2024) (statement of
Vice Chair Murray) (clarifying that a court can consider acquitted conduct when “imposing a sentence”).4
Only this Court—not the Commission—can enforce
the limits of the Fifth and Sixth Amendments. The
Commission can only “preclude[ ] consideration of acquitted conduct in the context of calculating the
Guidelines”; it cannot prohibit courts from relying on
3 Available at https://www.ussc.gov/guidelines/amendment/826.
Available at https://www.ussc.gov/sites/default/files/pdf/
amendment-process/public-hearings-and-meetings/20240417/
transcript.pdf.
4
26
uncharged or acquitted conduct when varying upwards from the Guidelines under the 18 U.S.C.
§ 3553(a) factors. United States v. Ralston, 110 F.4th
909, 921 (6th Cir. 2024) (brackets and citation omitted); accord United States v. Ware, 141 F.4th 970, 974
n.2 (8th Cir. 2025) (§ 1B1.3(c) “does not prohibit a
court from considering acquitted conduct when analyzing the factors from § 3553(a)”). Indeed, Congress
has provided that “[n]o limitation shall be placed on
the information concerning the background, character, and conduct of a person convicted of an offense
which a court of the United States may receive and
consider for the purpose of imposing an appropriate
sentence.” 18 U.S.C. § 3661.
Circuit courts accordingly have continued to impose
substantially increased sentences based on acquitted
and uncharged conduct even after the amendment.
E.g., Pet. App. 28a; Ralston, 110 F.4th at 921-922;
Ware, 141 F.4th at 974 n.2. Only this Court can end
that practice.
3. This case is an ideal vehicle to resolve these constitutional questions. Mr. Ghanem’s sentence was indisputably based on dismissed conduct. Pet. App.
12a-13a, 31a-32a. And the panel majority candidly
acknowledged that the sentence would be substantively unreasonable without judge-found facts and
“would violate the Sixth Amendment” under the
proper analysis. Pet. App. 31a-32a. As Judge Collins
explained, the facts underlying Mr. Ghanem’s guilty
plea “support, at most, a guidelines range of 78–97
months,” and the district court tripled Mr. Ghanem’s
punishment only because it engaged in “additional
fact-finding.” Pet. App. 36a. The question presented
is therefore dispositive.
27
The sentencing enhancement, moreover, was particularly egregious here because Mr. Ghanem’s 30-year
sentence was “more than triple the top of the guidelines range,” Pet. App. 36a, and the facts underlying
his conviction “could, in themselves, constitute entirely free-standing offenses under the applicable
law,” Faust, 456 F.3d at 1352 (Barkett, J., specially
concurring). That distinguishes Mr. Ghanem’s petition from similar petitions the Court has declined to
consider. The Court “should grant certiorari to put an
end to the unbroken string of cases disregarding” the
Constitution and this Court’s precedents. Jones, 574
U.S. at 950 (Scalia, J., joined by Thomas and Ginsburg, JJ., dissenting from denial of certiorari).
28
CONCLUSION
The Court should grant the petition for certiorari
and reverse the decision below.
Respectfully submitted,
BENJAMIN L. COLEMAN
BENJAMIN L. COLEMAN
LAW PC
1350 Columbia Street,
Suite 600
San Diego, CA 92101
(619) 865-5106
blc@blcolemanlaw.com
NEAL KUMAR KATYAL
Counsel of Record
WILLIAM E. HAVEMANN
KRISTINA ALEKSEYEVA
NATALIE NOGUEIRA
MILBANK LLP
1101 New York Ave. NW
Washington, DC 20005
(202) 835-7500
nkatyal@milbank.com
Counsel for Petitioner
February 13, 2026
APPENDIX
TABLE OF CONTENTS
APPENDIX A—Ninth Circuit Opinion
(July 17, 2025)................................................... 1a
APPENDIX B—C.D. Cal. Resentencing
Hearing Transcript
(Oct. 21, 2022) .................................................. 39a
APPENDIX C—Ninth Circuit Order
Denying Rehearing En Banc
(Oct. 16, 2025) ................................................. 92a
1a
APPENDIX A
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
United States of America,
Plaintiff-Appellee,
v.
Rami Ghanem,
Defendant-Appellant.
No. 22-50266
D.C. No. 2:15-cr-00704-FLA-1
OPINION
Appeal from the United States District Court
for the Central District of California
Fernando L. Aenlle-Rocha, District Judge, Presiding
Argued and Submitted June 7, 2024
Pasadena, California
Filed July 17, 2025
Before: Richard R. Clifton, Daniel P. Collins, and
Kenneth K. Lee, Circuit Judges.
Opinion by Judge Collins;
Concurrence by Judge Collins
2a
SUMMARY*
Criminal Law
The panel affirmed the 360-month sentence
imposed at resentencing on six counts to which Rami
Ghanem pleaded guilty in a case in which Ghanem
sought to export military equipment from the United
States to Libya.
The district court resentenced Ghanem on remand
after this court vacated his jury conviction for
conspiring to acquire, transport, and use surface-toair missiles in violation of 18 U.S.C. § 2332g.
The panel rejected all of Ghanem’s arguments that
the district court committed significant procedural
error at resentencing. The panel held that the district
court applied the correct legal standards in declining
to reduce Ghanem’s offense level under U.S.S.G. §
3E1.1 for acceptance of responsibility, and did not
clearly err in finding that evidence of Ghanem’s
failure to accept responsibility outweighed his guilty
plea and truthful admissions. As to the district court’s
decision to depart and vary from the Sentencing
Guidelines range, the panel held that (1) the district
court adequately explained its sentencing decision, (2)
the district court did not fail to address Ghanem’s
argument that a significant upward deviation from
the guidelines was inconsistent with the need to avoid
unwarranted sentencing disparities among similarly
* This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the
reader.
3a
situated defendants, (3) no special procedural
limitations apply to the consideration of large
enhancements based on conduct underlying
dismissed charges, and (4) because § 2332g applies
extraterritorially to Ghanem’s overseas conduct, the
district court did not err “by relying on foreign
conduct that may not even have been criminal.”
Rejecting Ghanem’s argument that the sentence is
substantively unreasonable, the panel held that the
district court did not abuse its discretion in
concluding that a 360-month sentence was warranted
under the 18 U.S.C. § 3553(a) factors.
The panel rejected Ghanem’s arguments that, under
Apprendi v. New Jersey, 530 U.S. 466 (2000), and its
progeny, his sentence violates the Fifth Amendment
Due Process Clause and the Sixth Amendment right
to a jury trial.
Concurring, Judge Collins wrote separately to point
out how this case illustrates a troubling feature of the
precedent this court must apply. Under the statutes
enacted by Congress and under the Sixth Amendment
as construed in Part I of the opinion in Booker v.
United States, 543 U.S. 220 (2005), Ghanem’s
sentence is patently unlawful, because the facts
necessary to justify exceeding the guidelines range
were found by the district judge rather than
established by a jury verdict or by the defendant’s
admissions. But the panel must uphold the sentence
because Part II of Booker eliminated the predicate for
Ghanem’s Sixth Amendment claim by deleting two of
the Sentencing Reform Act’s provisions and then
adding a new, judge-made “reasonableness” review
requirement.
4a
COUNSEL
A. Carley Palmer (argued) and Annamartine Salick,
Assistant United States Attorneys; Bram M. Alden,
Assistant United States Attorney, Chief; Criminal
Appeals Section; E. Martin Estrada, United States
Attorney; Office of the United States Attorney, United
States Department of Justice, Los Angeles,
California; for Plaintiff-Appellee.
Benjamin L. Coleman (argued), Benjamin L. Coleman
Law PC, San Diego, California, for DefendantAppellant.
OPINION
COLLINS, Circuit Judge:
After undercover federal agents conducted a sting
operation in which Defendant Rami Ghanem sought
to export military equipment from the United States
to Libya, Ghanem pleaded guilty to two counts of
violating the Arms Export Control Act (“AECA”), see
22 U.S.C. § 2778; one count of conspiring to violate the
AECA and its regulations, see 18 U.S.C. § 371; one
count of unlawful smuggling, see 18 U.S.C. § 554; and
two counts of money laundering, see 18 U.S.C. §
1956(a)(2)(A). But Ghanem proceeded to trial on a
remaining charge that he had conspired to acquire,
transport, and use surface-to-air anti-aircraft
missiles (again for use in Libya) in violation of 18
U.S.C. § 2332g, which carries a 25-year mandatory
minimum. Ghanem was found guilty and was
sentenced to 360 months of imprisonment, which was
within the applicable guidelines range of 292–365
months. The 360-month total sentence rested on two
5a
independent concurrent groups of sentences: (1) a
360-month sentence for the § 2332g count alone; and
(2) a package of concurrent and consecutive sentences
on the remaining six counts that also yielded an
aggregate 360-month sentence. On appeal, we
vacated Ghanem’s § 2332g conviction due to a
defective jury instruction on venue, and we remanded
for resentencing. United States v. Ghanem, 993 F.3d
1113 (9th Cir. 2021). At resentencing on the
remaining six counts, the district court calculated the
guidelines range as now being 78–97 months.
Nonetheless, the court ultimately adopted the same
above-described second package of sentences as
before, and Ghanem was once again sentenced to 360
months of imprisonment.
Ghanem appeals, challenging his sentence on
multiple grounds. We affirm.
I
A
Defendant Rami Ghanem, a Jordanian-born
naturalized U.S. citizen, first came to the attention of
federal authorities in May 2014, shortly after he sent
an email to a “Los Angeles-based manufacturer of
military equipment” seeking to establish, as he put it,
a “cooperative relationship to supply our customers in
Jordan (military and security) with your line of
products.” Federal authorities quickly verified that
Ghanem lacked any license from the U.S. to engage in
international arms transactions, and they decided to
investigate further.
Shortly thereafter, an undercover federal agent,
posing as a business owner who sold weapons on the
“black market,” began contacting Ghanem. They had
a series of telephone conversations over the ensuing
6a
months, and they met in person in Athens, Greece on
March 10 and 11, 2015. In telephone conversations in
August 2015, they discussed their first planned
shipment, which would involve shipping pistols,
rifles, ammunition, and “night vision” goggles or
scopes to Libya. They agreed that the shipment would
be falsely labeled, ultimately deciding to list the
contents in the shipping documents as “industrial
equipment.” On December 8, 2015, Ghanem arrived
at a warehouse in Athens to inspect the planned
shipment, but upon arrival he was instead arrested
by Greek authorities. These authorities seized two
cell phones that were in Ghanem’s possession, and
they conducted a later search of his Athens hotel room
that yielded multiple other electronic devices
containing a wealth of information about Ghanem’s
arms-trafficking activities.
Two weeks later, Ghanem was indicted in the
Central District of California on four charges arising
from the planned weapons sale. Ghanem was
subsequently extradited from Greece and was
arraigned in the Central District in April 2016. A
superseding indictment adding three additional
charges was filed in March 2017. On the day before
his scheduled trial in October 2018, Ghanem pleaded
guilty, without a plea agreement, to all four of the
counts in the original indictment and to two of the
three counts in the superseding indictment.
Count one of the original indictment charged
Ghanem with attempted export of various munitions
without the necessary license, in violation of the
AECA, 22 U.S.C. § 2778(b)(2), (c). At the plea hearing,
the factual basis for this charge was that Ghanem,
with the intent to accomplish the unlicensed export to
7a
Libya, “took a substantial step toward actually
exporting”
the
designated
“pistols,
rifles,
ammunition, and night-vision goggles” by causing a
co-conspirator on September 2, 2015 “to wire $89,971
from a bank account in Jordan” to the undercover
agent’s bank account in the Central District. Based on
the same wire transfer and on Ghanem’s agreement
to falsely identify the shipment on the export
documents, Ghanem also pleaded guilty to a violation
of 18 U.S.C. § 554(a), namely, his attempted buying of
such items for subsequent unlawful export in
violation of the AECA (count two). Counts three and
four alleged two counts of money laundering in
violation of 18 U.S.C. § 1956(a)(2)(A), namely the
transferring of funds from outside the United States
to an account inside the United States with the intent
to promote the violations alleged in counts one and
two. The factual basis for Ghanem’s plea to these
charges was the above-mentioned wire transfer
(count three) and a subsequent wire transfer in the
same amount on October 22, 2015 (count four).
Count one of the superseding indictment alleged a
conspiracy, in violation of 18 U.S.C. § 371, to violate
(1) the AECA’s requirement, in 22 U.S.C. § 2778(b)(1),
to obtain a license before engaging in “brokering
activities” involving designated defense articles; (2)
the AECA’s prohibition on unlicensed export of such
defense articles in violation of 22 U.S.C. § 2778(b)(2);
and (3) the prohibition, in the AECA’s implementing
regulations, on making certain proposals to export
such defense articles without a license, see 22 C.F.R.
§ 126.1(e)(1). At the plea hearing, Ghanem agreed
that he “became a member of the conspiracy knowing
of these objects.” The indictment alleged 44 overt acts
8a
in support of this conspiracy, but Ghanem’s plea to
this count was taken based on only one of them,
namely, that on March 11, 2015, he met with the
undercover agent for the purpose of purchasing and
exporting, without the required license, “PVS-27
night-vision weapon sights.” Count two of the
superseding indictment charged Ghanem with
engaging in brokering activities with respect to 100
different types of defense articles, without the
required license, in violation of 22 U.S.C. §
2778(b)(1)(A)(ii). In articulating a factual basis for
this charge, the prosecutor only identified one such
category that Ghanem had brokered, namely, “12.7
millimeter NSVT machine guns.”
B
The third and last count of the superseding
indictment alleged a conspiracy to acquire, transfer,
and use surface-to-air missiles designed to destroy
aircraft (“SAMs”), in violation of 18 U.S.C. § 2332g.
Ghanem proceeded to trial on this charge. The
evidence at trial showed that Ghanem, while working
for a Jordanian company called “Gateway to MENA”
(referring to the Middle East and North Africa), was
involved in several transactions involving SAMs.
For example, Ghanem arranged in 2015 for SAMs to
be transferred to “Libya Dawn,” an insurgent group
that claimed to be the government of Libya and that
was fighting against the U.S.-recognized government.
In connection with this transaction, Ghanem worked
with another employee of Gateway to MENA in
preparing an “end-user certificate,” which is a
document needed in international arms transactions
to identify the ultimate user of the weapons involved.
Ghanem handwrote a draft of the document,
9a
purporting to be from the unrecognized, insurgent
Libyan government, and later sent an official-looking
version to a Ukrainian state-owned arms company
with a cover letter asking about purchasing the items
listed. Among the items requested were 50 “Igla”
SAMs and five Igla launchers. Around the same time,
he sent a photograph of a SAMs launcher to a
Georgian weapons broker, who worked through a
company registered in Belize. About a week later, the
Georgian responded by sending back both Ghanem’s
end-user certificate listing the SAMs and launcher, as
well an invoice for $297,000 from his Belize-registered
company, ostensibly for 1200 computer hard drives. A
federal agent opined that this invoice was not, in fact,
for hard drives, but for the purchase of weapons
associated with the fraudulent end-user certificate.
A few weeks after that, Ghanem also had a series of
email exchanges with the Georgian broker about
hiring a crew to operate Igla SAMs and other
equipment in Libya. In the same time frame, Ghanem
also communicated with a retired general from the
Jordanian army about Ghanem’s efforts to acquire
crew members to operate Iglas in Libya. In one such
email to the retired general, Ghanem attached a
$409,000 invoice for “training” from the Georgian’s
Belize company, and Ghanem explained that it would
cover a variety of systems, including Iglas. The
general responded by stating that he thought, based
on the cost of each item (including the $30,000 he
attributed to the Igla crews), the total invoice should
only be for $398,000. Shortly thereafter, $398,000 was
wired from Gateway to MENA to the Georgian’s
Belize company.
10a
Two months later, in April 2015, Ghanem had a
further email exchange with the Georgian broker, in
which Ghanem complained about changes in pricing
for the Igla operators. Ghanem told the broker, “[w]e
agreed on the following: One operator for Igla[.] [H]e
gets 10,000 for 2 months and they get as a bonus
50,000 for each plan[e] he sh[o]t[]down.” Later that
month, Ghanem communicated by email with the
Jordanian retired general about passports and travel
arrangements to Libya for two SAMs operators and a
third person who recruited them. Ghanem then
reached out directly to the recruiter about the travel
arrangements. Deposition testimony from these two
SAMs operators and the recruiter was played at trial.
One of the operators described the SAMs as being
“Strela systems” rather than “Igla systems,” although
he acknowledged that the two were “almost identical.”
The recruiter explained that the Igla systems they
saw in Libya were inoperable but that the Strela
systems were in “very good condition.” The recruiter
also confirmed Ghanem’s role in arranging travel and
payment for the operators, and he specifically
confirmed that Ghanem agreed to pay a $50,000
bonus for each aircraft shot down. However, the
recruiter testified that, to his knowledge, neither of
the operators shot down any aircraft.
The jury convicted Ghanem on the § 2332g charge.
In August 2019, the district court sentenced Ghanem
to 360 months of imprisonment. Specifically, Ghanem
was sentenced to 240 months of imprisonment on
count one of the indictment (the § 2778(b)(2)
munitions export charge), to run consecutively with
120 months of imprisonment on count two (the §
554(a) smuggling charge). As to the remaining counts
11a
of conviction, which all ran concurrently, Ghanem
was sentenced to 240 months on each of the two §
1956(a)(2)(A) money laundering charges (counts three
and four of the indictment), 60 months on the § 371
conspiracy charge (count one of the superseding
indictment), 240 months on the § 2778(b)(1)(A)(ii)
brokering charge (count two of the superseding
indictment), and 360 months on the § 2332g charge
(count three of the superseding indictment). This total
sentence was five years above the statutory
mandatory minimum for the § 2332g charge, see 18
U.S.C. § 2332g(c)(1), and within the applicable
guidelines range, which was 292–365 months.
C
On appeal, we vacated Ghanem’s § 2332g conviction
on the ground that the jury had received improper
instructions with respect to the disputed issue of
venue. Ghanem, 993 F.3d at 1130, 1133–34. On
remand, the Government agreed to dismiss the §
2332g charge without prejudice. Because the district
judge who presided at Ghanem’s trial had retired, a
different judge presided at Ghanem’s resentencing.
The Probation Office’s presentence investigation
report (“PSR”) calculated Ghanem’s sentencing
guidelines range as follows. The PSR noted that,
under United States Sentencing Guidelines
(“U.S.S.G.”) § 2S1.1(a)(1), the base offense level for
the money laundering counts would be determined by
the offense level for the arms-trafficking counts,
which, under U.S.S.G. § 2M5.2(a)(1), was 26. The PSR
then added two levels because Ghanem was convicted
under 18 U.S.C. § 1956. See U.S.S.G. § 2S1.1(b)(2)(B).
The result was an offense level of 28 for the money
laundering counts, and because all of the offenses
12a
grouped together under U.S.S.G. § 3D1.2, that
became the final offense level under the PSR’s
calculations. Because Ghanem had no criminal
history, his criminal history category was I, and his
resulting sentencing range was 78–97 months.
However, the probation officer recommended that the
district court depart or vary upward from the
guidelines and impose an aggregate sentence of 240
months.
In his sentencing papers, Ghanem argued that he
should receive a two-level reduction for acceptance of
responsibility under U.S.S.G. § 3E1.1, which would
yield a guidelines range of 63–78 months, and he
sought a within-range sentence of 77 months. The
Government sought an aggregate sentence of 360
months, arguing that, despite the vacatur of the jury
verdict, Ghanem’s relevant “conduct remains exactly
the same” as at the first sentencing and that “[t]he
appropriate sentence for that conduct also remains
the same.”
At Ghanem’s resentencing hearing, the district
court “decline[d] to apply the two-level downward
adjustment for acceptance of responsibility.” The
district court therefore agreed with the PSR’s
calculation of the guidelines range as being 78–97
months. The district court nonetheless sentenced
Ghanem to an aggregate term of 360 months of
incarceration, to be followed by a three-year term of
supervised release. Specifically, with the exception of
deleting the prior concurrent sentence on the nowvacated § 2332g charge, the district court imposed the
exact same term of imprisonment on each of the
remaining six counts as had been imposed at the
previous sentencing: 240 months on the § 2778(b)(2)
13a
munitions export charge, followed by a consecutive
120-month sentence on the § 554(a) smuggling
charge; concurrent sentences of 240 months on each
of the money laundering charges; a concurrent
sentence of 60 months on the conspiracy charge; and
a concurrent sentence of 240 months on the §
2778(b)(1)(A)(ii) brokering charge.
In imposing this above-guidelines sentence, the
court stated that there were grounds for both an
upward departure and an upward variance. The
district court noted at the outset that it was allowed
to consider the conduct underlying the vacated §
2332g count, either for purposes of choosing a
sentence within the guidelines range or for purposes
of deciding whether to depart or vary from that range.
See U.S.S.G. § 1B1.4 (citing 18 U.S.C. § 3661); see also
U.S.S.G. § 5K2.21. The court therefore concluded that
Ghanem’s “relevant conduct remains unchanged from
the time that Judge Otero, the trial judge, imposed
sentence in 2019.” As specific grounds for departure,
the court pointed first to application note 2 to § 2M5.2,
which authorizes an upward departure when certain
aggravating features, such as the “volume of
commerce involved,” are “present in an extreme
form.” U.S.S.G. § 2M5.2, cmt. n.2. It also cited §
5K2.14, which allows for an upward departure when
“national security . . . was significantly endangered.”
U.S.S.G. § 5K2.14.
In finding these departure grounds applicable here,
and in deciding to vary from the guidelines under 18
U.S.C. § 3553, the court emphasized what it
considered to be the “extreme facts” of this case. As
the court found, Ghanem had made his living for
several years as a “black market arms trafficker,”
14a
dealing in a variety of “weapons of war, including
trading in machine guns and assault rifles and
rockets and mortars and rocket-propelled grenades
and anti-tank weapons.” The district court
summarized the above-described two main
transactions that were a focus of the charges, namely,
the planned shipment of various arms from Greece to
Libya through an undercover federal agent and the
deal with the Georgian broker concerning the delivery
and operation of SAMs in Libya. The district court
also cited several additional examples of Ghanem’s
black-market arms-trafficking activities. These
included Ghanem’s efforts in September 2013 “to
acquire surface-to-air missiles and missile launchers
on behalf of a foreign government” that would be
“covertly supplied” to, inter alia, “the Kurdish region
of Iraq,” and Ghanem’s “repeated offers to a foreign
government” in July 2014 “to sell weapons, including
400 Strela . . . surface-to-air missiles” that Ghanem
said were “available for immediate shipment.” The
district court also alluded to evidence showing that
Ghanem had mentioned, in his discussions with the
undercover agent, that he was able to deliver arms on
a massive scale, including a deal involving “100
million” rounds of AK-47 ammunition; that Ghanem
at one point sought from the agent “as many as you
have” of a variety of heavy arms; and that Ghanem
also bragged to the agent about his ties to various
governments and militias, including Hezbollah.
The district court stated that, in undertaking his
black-market
arms-trafficking,
Ghanem
was
“indifferent to the consequences of his actions” and
“was motivated solely by profit.” According to the
court, “Ghanem’s own words, written and spoken,
15a
demonstrated a lack of respect for human life.” The
court further found that “Ghanem’s conduct
unequivocally endangered the security and foreign
policy interests of the United States as well as the
safety and security of far less stable nations.”
The district court described Ghanem’s personal
history, medical problems, and various letters
submitted on his behalf, and the court stated that it
had considered this “personal history and background
in determining the appropriate sentence.” Despite
these considerations, the district court concluded that
“a significant upward variance and departure is
warranted given the extremely serious and callous
nature, breadth, volume, duration, planning, and
sophistication of Mr. Ghanem’s offenses, and the
threat to the security and foreign policy interest of the
United States and the security of more vulnerable
nations.” The court also rejected Ghanem’s argument
that a 360-month sentence would produce
unwarranted sentencing disparities. Cf. 18 U.S.C. §
3553(a)(6).
Ghanem timely appealed his sentence. We have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. §
3742(a).
II
Before reviewing the substantive reasonableness of
Ghanem’s sentence, “we first consider whether the
district court committed significant procedural error,”
United States v. Carty, 520 F.3d 984, 993 (9th Cir.
2008) (en banc), “such as failing to calculate (or
improperly calculating) the [g]uidelines range,
treating the [g]uidelines as mandatory, failing to
consider the § 3553(a) factors, selecting a sentence
based on clearly erroneous facts, or failing to
16a
adequately explain the chosen sentence—including
an explanation for any deviation from the [g]uidelines
range,” Gall v. United States, 552 U.S. 38, 51 (2007).
Ghanem asserts a variety of procedural challenges on
appeal, but none of them are meritorious.1
A
Because the federal sentencing guidelines are “the
starting point and the initial benchmark” in “all
sentencing proceedings,” we first address Ghanem’s
contention that the district court committed the
procedural error of failing to “correctly calculat[e] the
applicable [g]uidelines range.” Gall, 552 U.S. at 49.
Specifically, Ghanem contends that the district court
erred in failing to reduce his offense level by two
levels under U.S.S.G. § 3E1.1 for acceptance of
responsibility. “A district court’s decision about
whether a defendant has accepted responsibility is a
factual determination reviewed for clear error,”
United States v. Rosas, 615 F.3d 1058, 1066 (9th Cir.
2010) (citation omitted), but we “review de novo
whether the district court misapprehended the law
with respect to the acceptance of responsibility
reduction,” United States v. Green, 940 F.3d 1038,
1041 (9th Cir. 2019) (citation omitted). Applying these
1 We generally review procedural challenges to a sentence for
abuse of discretion, and we review the factual determinations
underlying a sentence for clear error. United States v. Spangle,
626 F.3d 488, 497 (9th Cir. 2010). The Government argues,
however, that most of Ghanem’s procedural claims “were not
raised before the district court and are therefore reviewed for
plain error only.” Ghanem vigorously disagrees, contending that
he adequately preserved all of his claims of error in the district
court. We need not resolve this issue. Even applying arguendo
the more favorable standards of review that Ghanem advocates,
we conclude that his procedural claims all fail.
17a
standards, we uphold the district court’s decision not
to apply the two-level adjustment.
1
Before turning to Ghanem’s particular arguments
on this score, we first summarize the district court’s
stated reasons for denying an adjustment for
acceptance of responsibility.
In addressing this issue, the court first examined
several of the “considerations” that the guidelines’
commentary identifies, in application note 1, as being
relevant to the issue of acceptance of responsibility.
See U.S.S.G. § 3E1.1, cmt. n.1. The court concluded
that Ghanem’s “decision to plead guilty does not
demonstrate timeliness in accepting responsibility”
because “he did so on the eve of trial after several
years of litigation.” The court also stated that
Ghanem “did not voluntarily terminate his criminal
conduct,” did not make voluntary restitution, or
“voluntarily surrender to authorities or assist
authorities in the recovery of the fruits and
instrumentalities of his offenses,” and that he
“declined to speak about the offense” with the
probation officer who was preparing his presentence
report.
Having ticked through the various factors in
application note 1, the court then turned to
application note 3 to § 3E1.1. Paraphrasing that note,
the district court stated that “entry of a guilty plea
prior to commencement of trial and truthfully
admitting the conduct comprising the offenses of
conviction, combined with truthfully admitting or not
falsely denying additional relevant conduct, is
evidence of acceptance of responsibility,” but that
“this evidence may be outweighed by conduct that is
18a
inconsistent with acceptance of responsibility.” The
district court then held that, based on its “review of
this file,” Ghanem had not “accepted true
responsibility for the full scope of his conduct.”
Rather, the court explained, he had “minimized his
involvement,” by arguing, for example, that “he was
not an international arms dealer” and that his foreign
conduct merely involved discussions of deals with
“foreign governments” that never “materialized.”
Finally, the court noted that Ghanem had “declined to
speak with the Probation Office about the offenses to
which he pleaded guilty.”
2
At the outset, Ghanem argues that the district court
applied the wrong legal standards in assessing
acceptance of responsibility, because it failed to start
from the premise that “a guilty plea supported by
truthful admissions by the defendant creates a
presumption that the defendant will receive the
acceptance-of-responsibility reduction.” Green, 940
F.3d at 1042. We disagree.
In stating that the guidelines “suggest” such a
presumption, we relied in Green on application note
3. See 940 F.3d at 1042 (citing U.S.S.G. § 3E1.1, cmt.
n.3 and United States v. Vance, 62 F.3d 1152, 1158
(9th Cir. 1995) (also relying upon U.S.S.G. § 3E1.1,
cmt. n.3)). That application note states, in full:
Entry of a plea of guilty prior to the
commencement of trial combined with
truthfully admitting the conduct comprising
the offense of conviction, and truthfully
admitting or not falsely denying any additional
relevant conduct for which he is accountable
under §1B1.3 (Relevant Conduct) (see
19a
Application Note 1(A)), will constitute
significant
evidence
of
acceptance
of
responsibility for the purposes of subsection
(a). However, this evidence may be outweighed
by conduct of the defendant that is inconsistent
with such acceptance of responsibility. A
defendant who enters a guilty plea is not
entitled to an adjustment under this section as
a matter of right.
U.S.S.G. § 3E1.1, cmt. n.3 (emphasis added). Here, as
noted, the district court specifically cited this note and
paraphrased all three of its sentences, sometimes
replicating verbatim entire phrases. In nonetheless
arguing that the court failed to apply the note’s
standards, Ghanem emphasizes that, in its
paraphrase of the first sentence, the district court
omitted the word “significant” and instead said only
that a guilty plea accompanied by truthful admissions
“is evidence of acceptance of responsibility” (emphasis
added). Considering the district court’s comments in
full context, we reject Ghanem’s effort to attach
talismanic significance to the omission of this one
word. The overall thrust of the court’s recitation
reflects its awareness that the central question was
whether there was “conduct of [Ghanem] that is
inconsistent with . . . acceptance of responsibility” and
that “outweighs” the showing otherwise established
by his guilty plea and truthful admission to the
factual basis for the convictions. Id. We are therefore
satisfied that the court applied the correct legal
standards under Green.
Moreover, we discern no clear error in the district
court’s ultimate finding that there was sufficient
countervailing evidence that Ghanem had failed to
20a
accept responsibility. Conduct that is “inconsistent”
with acceptance of responsibility “can include, for
example, falsely denying, or frivolously contesting,
relevant conduct that the court determines to be
true.” Green, 940 F.3d at 1042–43 (simplified).
Another “example of inconsistent conduct that weighs
against a finding of acceptance of responsibility is a
defendant’s attempt to minimize his own involvement
in the offense,” including “through his lawyer.” United
States v. Scrivener, 189 F.3d 944, 948 (9th Cir. 1999).
Here, the district court pointed to such evidence in the
record, specifically noting that Ghanem’s counsel at
the first sentencing had “minimized Mr. Ghanem’s
involvement” by “argu[ing] that he was not an
international arms dealer” (emphasis added), and
that Ghanem’s papers in connection with the
resentencing similarly argued that “virtually[] all of
his foreign conduct involved discussions” about arms
deals “almost none of [which] ever materialized.” The
district court did not clearly err in rejecting this
minimization, which was flatly inconsistent with its
findings that Ghanem’s offenses of conviction were
part of a pattern of black-market arms dealing that
had gone on for several years. And those latter
findings are amply supported by the record evidence
we have summarized above, including Ghanem’s own
many statements to the undercover federal agent
about his activities. See supra at 13–14.
Ghanem further argues that the district court erred
by reciting and relying upon additional factors that
did not properly bear on whether he had accepted
responsibility. We reject this contention. As we have
explained, prior to turning to application note 3, the
district court began by ticking through the various
21a
“considerations” that are enumerated in application
note 1 as being potentially reflective of acceptance of
responsibility, including “voluntary termination [of]
criminal conduct” or “voluntary payment of
restitution.” See U.S.S.G. § 3E1.1, cmt. n.1(A)–(H). As
the district court recognized as it worked through this
checklist, most of these considerations were
inapplicable here. We do not construe the district
court’s discussion on this score as signaling that the
court was thereby faulting Ghanem and weighing the
absence of such factors affirmatively against him.
Rather, the court was simply noting the absence of
these particular types of “evidence supporting the
defendant’s claim of acceptance, but that is not the
same thing as treating [that absence] as a factor
weighing against him.” Vance, 62 F.3d at 1157.
Having thus recognized that the affirmative evidence
of acceptance of responsibility came down simply to
Ghanem’s guilty plea to all remaining charges and his
associated admissions, the district court then turned
to application note 3, which addresses how to analyze
that issue. While the district court’s examination of
the various considerations listed in application note 1
was perhaps unnecessary, we cannot say that it
introduced prejudicial error into the court’s analysis
of the acceptance-of-responsibility issue.2
2 The only factor from application note 1 that the district court
referenced in its analysis under application note 3 was Ghanem’s
declining to speak with the probation office. But given the
district court’s earlier express acknowledgement that Ghanem
did so “on the advice of [c]ounsel, which, of course, he is entitled
to follow and invoke,” we view this comment in context as simply
reiterating the lack of additional affirmative evidence of
acceptance of responsibility beyond Ghanem’s guilty plea and
associated admissions. See Vance, 62 F.3d at 1157 (stating that
22a
The district court did not commit clear error in
declining to apply an adjustment for acceptance of
responsibility. It therefore correctly determined that
the applicable guidelines range was 78–97 months.
B
Ghanem’s remaining procedural challenges all
relate to the district court’s decision to depart and
vary from the guidelines range. We conclude that
these challenges also fail.
First, Ghanem contends that the district court
procedurally erred by “fail[ing] adequately to explain
the sentence selected, including any deviation from
the [g]uidelines range.” United States v. Taylor, 78
F.4th 1132, 1136 (9th Cir. 2023) (citation omitted).
However, “[a] district court need not provide a lengthy
explanation of the [sentencing] factors in order for its
explanation to be sufficient.” United States v. Ali, 620
F.3d 1062, 1074 (9th Cir. 2010). Instead, it need only
“set forth enough to satisfy the appellate court that
[it] has considered the parties’ arguments and has a
reasoned basis for exercising [its] own legal
decisionmaking authority.” Rita v. United States, 551
U.S. 338, 356 (2007). Under that standard, the
district court’s explanation was sufficient.
Here, the district court stated that it was relying
upon the same scope of relevant conduct as at the
prior sentencing, including Ghanem’s involvement in
a deal for delivery and operation of SAMs in Libya.
The court summarized the basic facts concerning that
deal, including Ghanem’s offer of a $50,000 bonus for
“[a] defendant’s refusal to discuss the offense conduct with the
probation officer may reduce the amount of evidence supporting
the defendant’s claim of acceptance”).
23a
each aircraft shot down by the SAMs operators. It also
outlined Ghanem’s actions in arranging the deal with
the undercover agent to send arms to Libya in 2015,
as well as other examples that underscored the
breadth and scope of Ghanem’s arms-trafficking
activities. In light of this review of the facts
concerning Ghanem’s relevant conduct, which we
have summarized above, see supra at 13–14, the
district court concluded that its “significant upward
variance and departure is warranted” in light of the
nature and scope of Ghanem’s activities and the harm
to the national security and foreign policy interests of
the United States. The court also considered
mitigating factors, including Ghanem’s medical
problems and statements from his family, but the
court explained that these were significantly
outweighed by the gravity of Ghanem’s conduct. The
extent of the deviation from the guidelines range was
also adequately explained: the district court expressly
stated that the relevant conduct had not changed
from the prior sentencing, and the variance the court
selected effectively replicated the prior sentence.
Second, Ghanem argues that the district court failed
to address his argument that a significant upward
deviation from the guidelines was inconsistent with
18 U.S.C. § 3553(a)(6), which requires courts to
consider “the need to avoid unwarranted sentence
disparities among defendants with similar records
who have been found guilty of similar conduct.” The
record refutes this contention. Ghanem’s sentencingdisparity argument below relied heavily on the
contention that other arms-trafficking defendants
had received less severe sentences, and he cited as
examples the published decisions in United States v.
24a
Pedrioli, 978 F.2d 457 (9th Cir. 1992), and United
States v. Tsai, 954 F.2d 155 (3d Cir. 1992). Although
the district court did not explicitly use the phrase
“sentencing disparities” in explaining its sentence, it
specifically explained why it believed that the
circumstances
of
Pedrioli
and
Tsai
were
distinguishable from Ghanem’s case. As the district
court explained, Pedrioli involved a defendant who
unlawfully exported a total of around 800 guns during
a two-year period, see 978 F.2d at 458, which was
substantially less serious than Ghanem’s conduct.
Likewise, although Tsai involved military equipment,
the district court noted that the scale of the
defendant’s activities was not comparable. See Tsai,
954 F.2d at 165–66 (“No evidence suggests that the
volume and scope of exports involved in this case were
extremely large.”).
Third, Ghanem argues that, even if consideration of
the conduct underlying a dismissed charge is
constitutionally permissible at a sentencing on the
remaining charges, such consideration should be
disallowed as procedurally unreasonable where “the
sentencing enhancement [is] ‘a tail which wags the
dog of the substantive offense.’” United States v.
Watts, 519 U.S. 148, 156 n.2 (1997) (quoting McMillan
v. Pennsylvania, 477 U.S. 79, 88 (1986)); see also id.
at 156–57 (reserving the question, on which the
circuits were then split, “as to whether, in extreme
circumstances, relevant conduct that would
dramatically increase the sentence must be based on
clear and convincing evidence”). We disagree.
As we recently held, en banc, the advisory nature of
the guidelines after United States v. Booker, 543 U.S.
220 (2005), vitiates any argument for imposing, as a
25a
matter of due process, any special procedural rules
concerning “large enhancements,” and we therefore
overruled our prior caselaw holding that sentencing
courts must “make factual findings by clear and
convincing evidence ‘when a sentencing factor has an
extremely disproportionate effect on the sentence
relative to the conviction.’” United States v. Lucas,
101 F.4th 1158, 1159, 1163 (9th Cir. 2024) (en banc)
(citation omitted).3 Rather, Lucas held, “challenges to
‘large enhancements . . . should be viewed through the
lens of Booker reasonableness rather than that of due
process.’” Id. at 1163 (quoting United States v.
Grubbs, 585 F.3d 793, 802–03 (4th Cir. 2009), and
United States v. Brika, 487 F.3d 450, 462 (6th Cir.
2007)). Although Lucas focused on whether a
heightened pleading standard was required as a
matter of due process, its logic applies equally here.
The concern about a factor’s disproportionate impact
on the sentence is ultimately one of substantive
reasonableness, and should be reviewed under that
rubric. See Brika, 487 F.3d at 462 (confirming that the
relevant “Booker reasonableness” review asks
whether the large enhancement renders the sentence
“substantively unreasonable” (emphasis added)); see
also Lucas, 101 F.4th at 1163 (endorsing Brika). We
thus reject Ghanem’s contention that special
procedural limitations apply to the consideration of
3 Lucas thus squarely forecloses Ghanem’s further argument
that a clear-and-convincing evidence standard should have been
applied here.
26a
large enhancements based on conduct underlying
dismissed charges.4
Fourth, Ghanem argues that the district court erred
“by relying on foreign conduct that may not have even
been criminal.” Ghanem relies on United States v.
Chao Fan Xu, 706 F.3d 965 (9th Cir. 2013), which held
that, under the circumstances of that case, the district
court procedurally erred in basing the defendant’s
guidelines offense level on foreign fraudulent conduct
that did not violate extraterritorially applicable U.S.
law. Id. at 992–93.5 This principle has no application
to the district court’s consideration of the conduct
underlying the dismissed § 2332g charge, because we
explicitly held, in Ghanem’s prior appeal, that this
statute does apply extraterritorially to Ghanem’s
overseas conduct. See Ghanem, 993 F.3d at 1131–32.
Moreover, Chao Fan Xu’s limitations on consideration
of foreign conduct in setting the guidelines offense
level for an offense under a statute that does not apply
extraterritorially do not support Ghanem’s view that
unlawful foreign acts—such as black-market arms
dealing using front corporations and fraudulent
documents—may not be considered at sentencing at
all. Such a categorical limitation would be hard to
square with 18 U.S.C. § 3661, which states that “[n]o
limitation shall be placed on the information
4 We address Ghanem’s substantive reasonableness arguments
in section III, infra. We address his Sixth Amendment challenge
in section IV, infra.
5 Chao Fan Xu’s predicate holding that the overseas fraudulent
activity did not violate an extraterritorially applicable U.S. law
was based on its categorical conclusion that the RICO statute
does not apply extraterritorially. See 706 F.3d at 974–75.
However, Chao Fan Xu was expressly abrogated on that point in
RJR Nabisco v. European Community, 579 U.S. 325, 335 (2016).
27a
concerning the background, character, and conduct of
a person convicted of an offense which a court of the
United States may receive and consider for the
purpose of imposing an appropriate sentence.”
Accordingly, we reject all of Ghanem’s arguments
that the district court “committed significant
procedural error.” Carty, 520 F.3d at 993.
III
Ghanem also argues that the district court’s 360month sentence was substantively unreasonable. We
review this issue only for abuse of discretion, see
United States v. Brown, 42 F.4th 1142, 1145 (9th Cir.
2022), meaning 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,” United States v.
Ressam, 679 F.3d 1069, 1087 (9th Cir. 2012) (en banc)
(citation omitted). We find no abuse of discretion here.
“Congress has instructed sentencing courts to
impose sentences that are ‘sufficient, but not greater
than necessary, to comply with’ (among other things)
certain basic objectives, including the need for “just
punishment, deterrence, protection of the public, and
rehabilitation.” Holguin-Hernandez v. United States,
589 U.S. 169, 173 (2020) (quoting 18 U.S.C. §
3553(a)(2) (further citation and internal quotation
marks omitted)). In assessing whether the district
court’s sentence reflects a substantively unreasonable
weighing of the sentencing factors listed in § 3553(a),
we must “take into account the totality of the
circumstances, including the extent of any variance
from the [g]uidelines range.” Gall, 552 U.S. at 51.
Where, as here, there was a substantial departure
28a
from the guidelines range, our reasonableness review
requires that we “give due deference to the district
court’s decision that the § 3553(a) factors, on [the]
whole, justify the extent of the variance.” Id.; see also
United States v. Gutierrez-Sanchez, 587 F.3d 904, 908
(9th Cir. 2009) (“The weight to be given the various [§
3553(a)] factors in a particular case is for the
discretion of the district court.”).
Under these standards, we conclude that the
district court did not abuse its discretion in
concluding that a 360-month sentence was warranted
under the § 3553(a) factors. The district court
permissibly put great weight on the fact that the
offense conduct, which specifically concerned planned
unlawful arms exports to Libya, was part of a broader
pattern of high-volume, black-market armstrafficking. That trafficking included Ghanem’s
dealings with a Georgian arms broker to send SAMs
to, and operate them in, Libya. The court properly
considered that Ghanem had acted with a callous
“lack of respect for human life” and that he had
“turned a blind eye to the ultimate destination of the
arms he brokered and sold and was indifferent as to
whether those weapons were obtained by terrorist
organizations or used against civilian targets.” The
court further stated that, by sending arms to “less
stable nations” such as Libya and doing so without
regard to whether they landed in the hands of
terrorists,
Ghanem’s
“conduct
unequivocally
endangered the security and foreign policy interests
of the United States.” The court expressly considered
mitigating considerations such as Ghanem’s medical
conditions and the support of his family members, but
found them to be outweighed by the other
29a
considerations it had identified. These reasons for
substantially varying from the guidelines range
reflect a reasonable weighing of the guidelines factor,
see 18 U.S.C. § 3553(a)(4), in light of the “nature and
circumstances of the offense,” the defendant’s “history
and characteristics,” the “seriousness of the offense,”
and the need for “adequate deterrence,” see id. §
3553(a)(1), (2)(A)–(B).
Contrary to what Ghanem suggests, the district
court did not simply disregard the guidelines factor
and arbitrarily pick a sentence that was untethered
to any objective benchmark. As we have explained,
the district court viewed the relevant conduct as being
the same as at the prior sentencing. The district court
had before it the entire record of the trial, and it found
by a preponderance of the evidence that Ghanem had
been involved in the delivery and operation of SAMs
in Libya that underlay the now-vacated conviction
under § 2332g. Congress’s assessment is that such
conduct merits at least a 25-year sentence, see 18
U.S.C. § 2332g(c)(1), but the district court was not
bound by that congressional judgment here (given
that Ghanem’s § 2332g conviction was set aside due
to improper venue). But in light of that judgment, we
are hard-pressed to say that, under the extreme
circumstances of this case, the district court abused
its discretion in deciding to fix the extent of its
variance from the guidelines range by deciding simply
to replicate the prior sentence. Given the facts of this
case, and the deference owed to the district court, we
conclude that the district court’s “justification is
30a
sufficiently compelling to support the degree of the
variance.” Gall, 552 U.S. at 50.6
Ghanem is also wrong in asserting that the district
court’s sentence fails to give appropriate weight to the
need to avoid unwarranted sentencing disparities. 18
U.S.C. § 3553(a)(6). The district court essentially
concluded that, due to the unique and extreme facts
of this case, a 360-month sentence would not produce
an unwarranted sentencing disparity when compared
with other defendants convicted of arms-export and
money-laundering offenses. On this record, that
judgment was not an abuse of discretion. Moreover,
even if the disparity in this case “were assumed to be
unwarranted, . . . that factor alone would not render
[Ghanem’s] sentence[] unreasonable; the need to
avoid unwarranted sentencing disparities is only one
factor a district court is to consider in imposing a
sentence.” United States v. Marcial-Santiago, 447
F.3d 715, 719 (9th Cir. 2006).
IV
Finally, Ghanem argues that, under Apprendi v.
New Jersey, 530 U.S. 466 (2000), and its progeny, his
sentence is unconstitutional in violation of the Fifth
6 Nor do we view this case as an impermissible example of a
sentencing factor serving as a “tail which wags the dog of the
substantive offense.” McMillan, 477 U.S. at 88. To treat the
guidelines range as the “dog” and all of the other considerations
noted by the district court as a “tail” would be inconsistent with
the established rule that the “[g]uidelines factor” should not “be
given more or less weight than any other.” Carty, 520 F.3d at
991. In all events, the district court did not abuse its discretion
in deciding that, when considered against the surrounding
context of uncharged or dismissed conduct, the guidelines range
calculation substantially understated the seriousness of
Ghanem’s offense conduct.
31a
Amendment Due Process Clause and the Sixth
Amendment right to a jury trial.
To the extent that Ghanem argues that there is
something uniquely suspect about relying on conduct
underlying a dismissed charge, his argument cannot
be squared with Watts. There, the Court held that
conduct underlying a charge of which the defendant
was acquitted may be considered at sentencing, where
the burden of proof is only a preponderance of the
evidence. Watts, 519 U.S. at 156–57; see also United
States v. Mercado, 474 F.3d 654, 658 (9th Cir. 2007)
(“We hold that Booker has not abrogated the
previously prevailing constitutional jurisprudence
that allowed sentencing courts to consider conduct
underlying acquitted criminal charges.”). Ghanem
has presented no argument as to why conduct
underlying a dismissed charge should be treated with
more solicitude than conduct underlying a charge
rejected by acquittal. See United States v.
Bridgewater, 950 F.3d 928, 938 (7th Cir. 2020) (“A
district court may consider a wide range of conduct at
sentencing, including acquitted conduct and
dismissed offenses.” (citation omitted)).
Ghanem also argues, however, for a broader Sixth
Amendment rule that would equally apply to conduct
underlying acquittals and dismissed charges and,
indeed, to any conduct not found by a jury or admitted
by the defendant. Specifically, Ghanem urges us to
adopt Justice Scalia’s view that “any fact necessary to
prevent a sentence from being substantively
unreasonable [under Booker]—thereby exposing the
defendant to the longer sentence—is an element that
must be either admitted by the defendant or found by
the jury.” Jones v. United States, 574 U.S. 948, 949–
32a
50 (2014) (Scalia, J., dissenting from the denial of
certiorari) (emphasis added).7 Given the loadbearing
weight that we have placed on the district court’s
factual findings in concluding that Ghanem’s
sentence is substantively reasonable, his sentence
here would violate the Sixth Amendment under
Justice Scalia’s view.
But Justice Scalia’s position has not commanded a
majority of the Supreme Court, and this court has
squarely rejected it:
The defendants have adopted an argument
that Justice Scalia, writing separately, has
encouraged litigants to raise in several recent
Supreme Court sentencing decisions. . . .
Defendants argue that in their case, the
relevant maximum sentence is not the
maximum established by the [criminal]
statutes, but rather the maximum of what we
would consider “reasonable” when reviewing
their sentences under § 3553(a) if we were to
rely solely on the facts found by the jury. . . .
We reject the defendants’ argument, and
join the Fourth, Sixth, and Seventh Circuits in
holding that “this argument is too creative for
the law as it stands.” . . . In Booker, the
7 See also Gall, 552 U.S. at 60 (Scalia, J., concurring) (“The door
therefore remains open for a defendant to demonstrate that his
sentence, whether inside or outside the advisory [g]uidelines
range, would not have been upheld but for the existence of a fact
found by the sentencing judge and not by the jury.”); Rita, 551
U.S. at 374 (Scalia, J., concurring in part and concurring in the
judgment) (arguing that the Sixth Amendment would be violated
by a sentence that survives Booker reasonableness review only
by virtue of the district court’s reliance on facts that had neither
been found by a jury nor admitted by the defendant).
33a
Supreme Court rendered the [g]uidelines
advisory, permitting a district court to impose
a sentence anywhere within the range
established by the statute of conviction without
violating the Sixth Amendment. The mere fact
that, on appeal, we review the sentence
imposed for “reasonableness” does not lower
the relevant statutory maximum below that set
by the United States Code.
United States v. Treadwell, 593 F.3d 990, 1017 (9th
Cir. 2010) (citation omitted), abrogated on other
grounds by United States v. Miller, 953 F.3d 1095,
1102 (9th Cir. 2020).
* * *
For the foregoing reasons, we affirm Ghanem’s
sentence.
AFFIRMED.
COLLINS, Circuit Judge, concurring:
In upholding Ghanem’s sentence in this case, my
opinion for the panel faithfully applies current
precedent concerning the review of federal sentences.
I write separately only to point out how this case
starkly illustrates a very troubling feature of the
precedent we must apply.
In Booker v. United States, 543 U.S. 220 (2005), a
five-Justice majority of the Supreme Court held, in an
opinion by Justice Stevens, that the following core
holding of Apprendi v. New Jersey, 530 U.S. 466
(2000), applied to the application of the federal
sentencing guidelines: “Any fact (other than a prior
conviction) which is necessary to support a sentence
exceeding the maximum authorized by the facts
34a
established by a plea of guilty or a jury verdict must
be admitted by the defendant or proved to a jury
beyond a reasonable doubt.” Booker, 543 U.S. at 244.
Put another way, the jury trial right in “the Sixth
Amendment is violated by the imposition of an
enhanced sentence under the United States
Sentencing Guidelines based on the sentencing
judge’s determination of a fact (other than a prior
conviction) that was not found by the jury or admitted
by the defendant.” Id. at 245 (further opin. for the
Court by Breyer, J.) (citation omitted) (summarizing
the holding of Justice Stevens’s opinion for the Court).
Having found that the guidelines violated the Sixth
Amendment to the extent that they relied on judicial
fact-finding to increase the maximum permissible
sentence, the Court then confronted the question of
the proper “remedy” for this Sixth Amendment
violation. Id. at 245. In an opinion for the Court by
Justice Breyer, a different five-Justice majority
(consisting of the four dissenters to Booker’s Sixth
Amendment holding plus Justice Ginsburg) settled on
the following remedy:
We answer the question of remedy by
finding the provision of the federal sentencing
statute that makes the [g]uidelines mandatory,
18 U.S.C. § 3553(b)(1) (Supp. IV), incompatible
with today’s constitutional holding. We
conclude that this provision must be severed
and excised, as must one other statutory
section, § 3742(e) (2000 ed. and Supp. IV),
which depends upon the [g]uidelines’
mandatory nature. So modified, the federal
sentencing statute, see Sentencing Reform Act
of 1984 (Sentencing Act), as amended, 18
35a
U.S.C. § 3551 et seq., 28 U.S.C. § 991 et seq.,
makes the [g]uidelines effectively advisory. It
requires a sentencing court to consider
[g]uidelines ranges, see 18 U.S.C. § 3553(a)(4)
(Supp. 2004), but it permits the court to tailor
the sentence in light of other statutory
concerns as well, see § 3553(a).
543 U.S. at 245–46. Having excised § 3742(e)’s
instruction that the threshold decision to depart from
the guidelines should be reviewed de novo, the Court
instead adopted an across-the-board instruction to
review all sentences for “reasonableness.” Id. at 262.
The Court also expressly declined to limit its remedy
to those cases in which the application of the
guidelines would violate the Sixth Amendment and to
thereby “leave the [g]uidelines as binding in other
cases.” Id. at 266. Accordingly, the Court held that its
remedial revision of the statute would apply
systemically in all cases. Id.
As applied to the facts of this case, the two portions
of the Booker opinion produce a disturbing
incongruity. Under Justice Stevens’s majority opinion
in Booker (which, for convenience, I will call “Booker
Part I”), Ghanem has a constitutional right under the
Sixth Amendment to have a jury find any fact that
would increase his sentence beyond what is allowed
under the guidelines regime in light of “the facts
established by [his] plea of guilty or a jury verdict.”
Booker, 543 U.S. at 244. Here, there are no facts
established by a “jury verdict,” because the jury’s
conviction of Ghanem on the § 2332g charge was
vacated on appeal. Moreover, as the panel opinion
explains, see Opin. at 6–8, the “facts established by
[Ghanem’s] plea of guilty” are quite limited. Booker,
36a
543 U.S. at 244. Those discrete facts support, at most,
a guidelines range of 78–97 months, and therefore
any upward departure from that range would require
additional fact-finding that, under Booker Part I, only
a jury may make. Thus, under Booker Part I, it would
be a flagrant violation of Ghanem’s Sixth Amendment
rights to allow a district judge to make the findings
necessary to raise Ghanem’s sentence above the 97month cap that applies under the mandatory
guidelines system created by Congress.
But under Justice Breyer’s further majority opinion
(which I will call “Booker Part II”), the “remedy” for
this violation of Ghanem’s Sixth Amendment rights is
to eliminate the very feature of the guidelines that
gives rise to that Sixth Amendment right—namely,
the mandatory nature of the guidelines. That is, the
“remedy” for the Sixth Amendment violation that
would result from allowing the district judge to find
the facts that would waive the guidelines’ 97-month
cap in Ghanem’s case is simply to waive that cap in
all cases—thereby allowing the district judge to freely
impose a 360-month sentence that is more than triple
the top of the guidelines range. The logic of this
syllogism is difficult to follow: it effectively eliminates
the Sixth Amendment violation by getting rid of the
relevant Sixth Amendment right. That is akin to
“curing” a patient’s illness by killing the patient—
that certainly gets rid of the illness, but it loses sight
of what is at stake.
One can understand why the four dissenters from
Booker Part I—who rejected the premise that there
was a right to jury fact-finding in connection with the
operation of the guidelines system—would prefer this
so-called “remedy” to the alternative remedy that
37a
would “engraft” Booker Part I’s “constitutional
requirement” of jury fact-finding “onto th[e] statutory
scheme” that Congress created. Booker, 543 U.S. at
265. And one can likewise understand how four of the
Justices in the Booker Part I majority concluded that
the Booker Part II remedy was flawed because, inter
alia, it “effectively eliminated the very constitutional
right Apprendi sought to vindicate.” Id. at 302
(Stevens, J., dissenting); see also id. at 313 (Thomas,
J., dissenting) (agreeing with much of the analysis in
Justice Stevens’s dissent). Only one Justice—Justice
Ginsburg—joined both parts of Booker, but she did not
write separately to explain how to reconcile the right
recognized in Booker Part I with the effective
elimination of that right in Booker Part II. See Susan
R. Klein, The Return of Judicial Discretion in
Criminal Sentencing, 39 VALPARAISO U. L. REV.
693, 695 (2005) (describing Justice Ginsburg’s joinder
in “both competing majority opinions in Booker” as
“inexplicabl[e]”).
We are thus left with a situation in which, under the
statutes enacted by Congress and under the Sixth
Amendment as construed in Booker Part I, Ghanem’s
sentence in this case is patently unlawful. But we
must nonetheless uphold it because Booker Part II
eliminated the predicate for Ghanem’s Sixth
Amendment claim by “engag[ing] in a wholesale
rewriting” of the Sentencing Reform Act by facially
deleting two of the Act’s provisions and then adding—
again, across the board—a new, judge-made
“reasonableness” review requirement. Booker, 543
U.S. at 284 (Stevens, J., dissenting); see also id. at 272
(objecting that the Booker Part II majority had
effectively
“repeal[ed]
these
two
statutory
38a
provisions”). Justice Stevens’s dissent explained at
length why the Booker Part II remedy was wholly
unprecedented, could not be justified by the
severability doctrines the majority invoked, and was,
at bottom, “an exercise of legislative, rather than
judicial, power.” Id. at 274–91. And, as the facts of
this case make clear, the two parts of Booker are
logically irreconcilable.
As a judge on a court that is “inferior” to the “one
supreme Court,” see U.S. CONST. art. III § 1, I am
constrained to follow the clear holding of Booker Part
II, no matter how flawed it may seem, and I have
faithfully done so. But I cannot help but note that, in
applying Booker Part II, I have been required to
affirm a sentence that even the Government’s lawyer
candidly conceded at oral argument was “absolutely”
unlawful under the statute as written by Congress.
Only the Supreme Court has the authority, if it sees
fit, to address this disquieting anomaly.
39a
APPENDIX B
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
-o0oHONORABLE FERNANDO AENLLE-ROCHA,
UNITED STATES DISTRICT JUDGE
UNITED STATES OF AMERICA,
Plaintiff,
v.
RAMI GHANEM, also known as
RAMI NAJM ASAD GHANEM,
Defendant.
No. 2:15-CR-00704-FLA
REPORTER’S TRANSCRIPT OF SENTENCING
LOS ANGELES, CALIFORNIA
OCTOBER 21, 2022
SUZANNE M. McKENNON, CRR, RMR
UNITED STATES COURT REPORTER
UNITED STATES COURTHOUSE
350 W 1st STREET, ROOM 3411
LOS ANGELES, CALIFORNIA 90012
(213) 894-90012
suzanne@ears2hands.com
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APPEARANCES:
On Behalf of the Government:
ANNAMARTINE SALICK, Assistant United
States Attorney
ALEXANDER ROBBINS, Assistant United States
Attorney
United States Attorney's Office
Terrorism and Export Crimes Section
312 N Spring Street, Suite 1200
Los Angeles, California 90012
Also on Behalf of the Government: Jolinda
Pasciucco, HSI
On Behalf of the Defendant:
BENJAMIN L. COLEMAN, Attorney at Law
Benjamin L. Coleman Law PC
1350 Columbia Street, Suite 600
San Diego, California 92101
MEGHAN A. BLANCO, Attorney at Law
Law Offices of Meghan Blanco
28202 Cabot Road, Suite 300
Laguna Niguel, California 92677
(Proceedings commenced on October 21, 2022 at
10:10 a.m.)
THE COURTROOM DEPUTY: Calling Item
Number 2, LA CR-15-00704, United States of
America versus Rami Najm Asad Ghanem.
Counsel, please make your appearances beginning
with the government.
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MS. SALICK: Good afternoon -- or good morning,
Your Honor. Annamartine Salick on behalf of the
United States. I'm joined at counsel table by HSI
Special Agent Jolinda Pasciucco, and AUSA Alex
Robbins, who represented the government in the
appeal.
THE COURT: Good morning.
MR. COLEMAN: Good morning, Your Honor. Ben
Coleman for Mr. Ghanem, who is present. Also at
counsel table with me is Megan Blanco.
THE COURT: Good morning to everyone. Welcome.
MS. BLANCO: Good morning.
THE COURT: Good morning. All right. I'm going to
ask Counsel and Mr. Ghanem to go to the lectern,
please. If Mr. Ghanem is uncomfortable standing, he's
welcome to sit. I typically have defendants stand at
the lectern for sentencing, but if it's physically
challenging for him in any way, he's welcome to sit.
Okay?
THE DEFENDANT: As you wish, Your Honor.
THE COURT: However, you're most comfortable,
sir.
THE DEFENDANT: I can stand.
THE COURT: This might take a while, just so you
understand.
THE DEFENDANT: Thank you.
THE COURT: So you're welcome to sit, if not now,
at any time. All right?
THE DEFENDANT: Thank you.
THE COURT: It's not a problem.
THE DEFENDANT: Thank you.
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THE COURT: All right. So, Mr. Ghanem, I am
Judge Aenlle-Rocha, and we're here today for your resentencing. This case was previously before Judge
Otero, as I know you know.
On October 29 of 2018, Mr. Ghanem pleaded guilty
to a four count indictment, along with Counts 1 and 2
of a first superseding indictment.
And on October 30, the next day, trial began as to
Count 3 of the first superseding indictment.
On November the 15th of 2018, the jury returned a
guilty verdict on Count 3.
And on August 19 of 2019, Judge Otero held a
sentencing hearing and imposed a 30-year term of
imprisonment. Judge Otero imposed a sentence of 360
months as to Count 3 of the first superseding
indictment. He imposed the statutory maximum as to
the remaining counts of conviction with Counts 1 and
2 to run consecutively and the remaining counts to
run concurrently.
Count 1, the sentence for each count was, as to
Count 1, 240 months; Count 2, 120 months. And those
two counts ran consecutively. And then all other
counts ran concurrently, Count 3 was 240 months;
Count 4 was 240 months; the first superseding
indictment, Count 1, was 60 months; and the first
superseding indictment, Count 2, was 240 months.
Mr. Ghanem appealed his conviction. And on
appeal, the Ninth Circuit vacated Mr. Ghanem's
conviction as to Count 3 of the first superseding
indictment, which was a conspiracy to use and to
transfer antiaircraft missiles, on the ground that the
Court's jury instruction on extraterritorial venue was
erroneous. Jurisdiction was returned to this District
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Court for the purpose of re-sentencing on the
remaining six counts of conviction.
As a result of Judge Otero's retirement in 2020, the
case was reassigned to me on July 7 of 2021.
So, Mr. Ghanem, I want to explain to you a little bit
about how the re-sentencing hearing will be going
forward today. You may already be familiar with
some of what I'm about to say as a result of your first
sentencing hearing before Judge Otero in August of
2019.
Under the Sentencing Reform Act of 1984, the
United States Sentencing Commission issued
guidelines for judges to consider when sentencing an
individual in a criminal case. The sentencing
guidelines are advisory, which means that they are
not binding on judges. Even though they are not
mandatory, I am still required to arrive at a
sentencing guideline range and to consider that
range, along with a number of other factors, before
imposing a final sentence.
As a result, during this re-sentencing hearing, I will
be making calculations under the sentencing
guidelines and arriving at a guideline range, and I
will consider that range. I will also consider a number
of other factors. In your case, I do not believe there
was a plea agreement, so I will not need to consider
the impact of a plea agreement.
If there are objections to the sentencing guidelines,
-- and I know that your attorneys have filed objections
to at least some aspect of the sentencing guideline
calculation -- I will consider those objections, and I
will rule on the objections during this hearing.
I will also consider and hear statements made by the
prosecutor and by your attorneys, and I will hear any
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statement that you may wish to make. You are not
obligated to make a statement. I will consider the
recommendation of the probation officer. I will
consider whether the sentencing guideline sentence is
appropriate after determining whether an upward or
a downward departure from the guideline range is
appropriate in your case.
I will, also, consider a number of factors, that are set
forth at Title 18 United States Code section 3553(a),
to determine whether I should impose a sentence
within the guidelines or outside the guidelines. And
those factors include all of the following: the nature
and circumstances of the offense or offenses in your
case and your history and characteristics, the need for
the sentence imposed to reflect the seriousness of the
offenses, to promote respect for the law, and to
provide a just punishment for the offenses, to afford
adequate deterrence to criminal conduct, to protect
the public from further crimes by you, and to provide
you with needed educational or vocational training,
medical care, or other correctional treatment in the
most effective manner.
The factors I am required to consider also include
the kinds of sentences available and the need to avoid
a sentencing disparity among defendants with similar
records who have been convicted of similar conduct,
along with the need to provide restitution to victims
of the offenses. Not all of these factors, that I have just
set forth and described to you, may apply in your case.
So in preparing for today's hearing, I have read and
considered the reports and recommendations of the
United States Probation Office, the sentencing
memoranda that was filed by the prosecutor and by
your attorney, along with a classified document that
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was filed by your attorney. So we will now move
forward.
I will ask the government: Are there any victims in
this case?
MS. SALICK: No, Your Honor.
THE COURT: Okay. Have both parties received and
reviewed the final presentence report?
MS. SALICK: Yes, Your Honor.
MR. COLEMAN: Yes, Your Honor.
THE COURT: And, Counsel, have you had sufficient
time to read and discuss the final presentence report
and recommendation with your client, Mr. Ghanem?
MR. COLEMAN: Yes, Your Honor.
THE COURT: I am going to summarize the
presentence report's guideline recommendations. The
report provides for a base offense level of 26, a twolevel increase because Mr. Ghanem was convicted of
the money laundering offense at 18 U.S.C. section
1956, and that results in an adjusted and in a total
offense level of 28. He has no criminal history points,
and thus he is a Criminal History Category I.
So this results in a sentencing guideline range of 78
to 97 months, a supervised release guideline range of
one to three years, a guideline fine range of $25,000
to $1 million, a special assessment of $100 for each
count of conviction. And based on my review of the
parties' sentencing memoranda, it appears that the
parties are in agreement as to the sentencing
guideline calculations including the total offense
level, the criminal history, and each of the
adjustments I just summarized, and that Mr.
Ghanem's only objection is to the probation officer's
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failure to apply a two-level downward adjustment for
acceptance of responsibility.
Is that correct?
MR. COLEMAN: Yes, Your Honor.
THE COURT: So, Counsel, would you like to
address -- first of all, your client's objections to the
sentencing guideline calculation or the failure to
apply a two-level downward adjustment for
acceptance of responsibility?
MR. COLEMAN: Yes, Your Honor. The reasoning in
the presentence report, I believe, is that Mr. Ghanem
pled guilty late, on the eve of trial, and, therefore, he
shouldn't get acceptance of responsibility. We believe
both the guidelines and the case law are clear that
that issue affects whether he gets a third point for
acceptance, but it doesn't bear on whether he gets two
points for acceptance, and we are not asking for the
third point. We recognize that the plea came, you
know, relatively late in the day. We're just asking for
two points. So that, I guess, complaint or issue with
acceptance really is legally invalid.
I know the government has made much in their
briefs that there was a comment at the initial
presentence interview that Mr. Ghanem had said that
he had never seen or touched any military equipment,
and, therefore, the government is claiming that he
said something that was false to the probation officer,
and that that is a basis to deny acceptance of
responsibility. And I just think that there is just a
simple misunderstanding of what was said.
And if you look at that part of the presentence
report, what Mr. Ghanem was saying is that, before
he got into this business, he knew nothing about
military equipment and had not seen or touched
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military equipment, and so he had to research a lot of
it on the Internet for him to begin to understand what
the business entailed and the different types of
equipment that were involved.
So I don't think that there was any type of
intentional misrepresentation to the probation office.
I think it was just a lack of communication if that's,
in fact, what the probation officer meant because,
when you look at the context, he's clearly saying, "I
didn't know about this before I got in the business,
and then I proceeded to do a lot of Internet research
on the various equipment to understand what is going
on." And, of course, a lot of that research on the
Internet is reflected in the various documents that the
government has produced as far as their sentencing
memo was concerned.
So it's our position that the two levels -- he pled
guilty to all the counts that he is being sentenced on - that the two levels should apply. There is a
presumption that acceptance applies when a
defendant pleads guilty, and we think the
presumption has not been rebutted in this case.
THE COURT: All right. Thank you.
Would the government like to be heard on the issue
of acceptance of responsibility?
MS. SALICK: Yes, Your Honor.
THE COURT: You may. All right. You're welcome to
use the lectern if you'd wish.
I don't want to -- and, again, you are welcome to sit
down, Mr. Ghanem, if more comfortable.
MS. SALICK: Thank you, Your Honor.
The government is in agreement with the U.S.
Probation Office's conclusion that 3E1.1 for
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acceptance of responsibility is simply not applicable
in this case. I believe that the government has fully
delineated the evidence showing how the defendant's
statements to the probation officers were false, so I
will leave that to the papers.
What I would just like to note is that not only does
a level two reduction require truthful admission for
the conduct of the conviction, it, also, under Note 3,
requires truthful admission of the conduct comprising
the offense of conviction and not falsely denying any
relevant conduct, which is accountable under 1B1.3.
Everything that is being litigated today is putting
into doubt, is contesting the relevant conduct. On that
basis alone, the government submits that any
application or adjustment for acceptance of
responsibility is simply unavailable.
I would also just briefly note, because these are
delineated in our papers -- and I won't take anymore
of the Court's time -- that in addition to those false
statements, the defendant spent several years
contesting the offenses, litigating the offenses, crossexamining witnesses at a four-week trial, has
continued to fight the convictions, and as evidenced
from the sentencing paper his Counsel submitted in
connection with today's hearing, continues to attempt
to minimize or sanitize his conduct.
And so for those reasons and the reasons in our brief
addressing this point, we agree with the probation's
calculation that any credit for acceptance of
responsibility is absolutely not applicable in this case.
THE COURT: All right. Anything else on this point,
Mr. Coleman?
MR. COLEMAN: No, Your Honor.
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THE COURT: All right. I would like to give each
side and, of course, Mr. Ghanem an opportunity to
speak before I impose sentence.
So, Mr. Coleman, would you like to -- I imagine you
would. And I also want to be clear. I view this as a
very serious case, a very significant case, so there is
no urgency here. I want to give each side a fair and
complete opportunity to be heard. Okay?
MR. COLEMAN: Understood, Your Honor.
THE COURT: We're not under any rush.
MR. COLEMAN: Thank you, Your Honor.
Before I begin, I just wanted to note that Mr.
Ghanem's daughter is here. His grandson, who he has
never seen because he was in custody for so long, he
saw him for the first time today, he is also here but, I
think he is out in the well so that he won't disturb the
proceedings. So I just wanted to note that family
support before I begin.
The first issue that I wanted to address is that really
the only case that the government cites to justify what
they're asking for here, which is, in essence, a 20- to
25-year upward departure or variance, is a case called
Johnson out of the First Circuit. And we believe
Johnson actually supports our position.
Before I explain that, I just wanted to indicate that
what happened in Johnson was that there were
defendants who were on U.S. soil who were plotting
to use surface-to-air missiles to blow up British
helicopters. So you have a difference in that these are
people on U.S. soil plotting to do this. And the
defendants in that case didn't plead guilty to the
offenses of conviction like Mr. Ghanem has; they went
to trial.
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So the case is different, but the interesting thing, in
the government's memorandum, is that they never
say what those defendants received for their
sentences. And one defendant received eight years
and the other defendant received ten years. That is
sort of in line with the recommendation that we are
making. So to say that Johnson supports the
government, a 30-year sentence, when those
defendants got eight and ten years which are very
much in line with the sentence that we're proposing,
I just don't think that that, you know, does enough
work for the government. If anything, that case
supports our position with respect to the general
sentence that we're recommending. So I wanted to
first address that particular issue.
I also wanted to address, again, to show how
extraordinary and unusual the government's request
is to look at some of the cases that they cited in
explaining why under 3553(a)(6) there would be no
sentencing disparity here. And, again, all of those
cases support our position; they do not support the
government's position.
Of course, the Court articulated the 3553(a)(6)
standard when you were going over the factors with
Mr. Ghanem. And the important thing in 3553(a)(6)
is that it's defendants with similar records who have,
in fact, been convicted of certain conduct. And what
the government has done is cited a series of cases
where the defendants had 2332g convictions, which
we don't have here anymore, that conviction has been
vacated, and where the guidelines range -- there were
a 25-year minimum, mandatory minimums
applicable -- and where the guidelines range was life
in prison. So, again, we're talking about apples and
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oranges. They're citing cases that are directly
contrary to the 3553(a)(6) standard.
So not only is there a significant legal flaw in that
analysis, but if you also looked at the facts of those
cases, you will see why those sentences were higher.
And I'm not going to go through all of them, because I
don't want to take too much time, but I will go through
several just to make the point.
The first case they cite is the Hammadi case out of
Sixth Circuit. Now, again, the guideline range in that
case was life in prison. And so the defendants got
what the guideline range was. In addition, those were
defendants who were on U.S. soil in Kentucky, and
they were conspiring to kill U.S. officers and a U.S.
Army Captain. We have none of that here. There is no
conspiracy to kill any U.S. Citizens or U.S. officers.
They were also sending the equipment from
Kentucky, or were trying to send it to, al-Qaeda.
Again, we don't have any of that here. So, number one,
the facts are extraordinarily different; and, number 2,
the convictions are completely different; and, number
3, the guideline range is completely different.
The second case they cite is United States versus
Bout, and I did want to briefly discuss this case
because Victor Bout was the defendant, and he's been
in the news a little bit lately because there has been
discussion about whether the U.S. should conduct a
prison transfer and send Mr. Bout back to Russia so
that they could get the women's MBA star from
Russia back to the United States. There's been that
discussion in the news.
And the interesting thing about that discussion is
that the district judge who sentenced Mr. Bout was
interviewed to see if she would support the prison
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transfer. She had since stepped down from the bench
and gone into private practice. And what she said was
she fully supported it because, number one, she felt
that Mr. Bout got too much time, and she only
sentenced him to 25 years because that was the
mandatory minimum; and, number two -- and if she
could have, she would have sentenced him to less -and, number two, given that he's been in custody for
several years, she didn't think that he had the
contacts or anything to go back into the business, and
she felt that the U.S. should conduct a prison transfer.
I would also note that, in the Victor Bout case, not
only did he have the 2332g conviction with the 25year minimum.
(Interruption by court reporter.)
MR. COLEMAN: I'm sorry.
But he was also convicted of conspiring to kill U.S.
nationals and U.S. officers, something we don't have
here. So, again, the government is citing a case that
is completely different from this case.
I'll go through one more. I could say a lot about all
of them, but I'm just going in the order that they're
listed. And they all have the same themes, which is
that the defendants were convicted of 25-year
minimums with a guideline range of life in prison.
But I'll take the Cromitie case, which is spelled C-ro-m-i-t-i-e, the Second Circuit case, that is the third
case that they've cited. Again, defendant's convicted
of 25-year mandatory minimums. We're talking about
domestic terrorism. These are defendants in New
York who are plotting to blow up a synagogue in
Riverdale, New York, and plotting to send explosives
and explode a military airport in New York. I believe
it was in Newburgh, New York. I think it's Stewart
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Airport Base. That's what they were doing in the
United States, plotting to kill innocent, observing
Jews in New York at a synagogue, and then to blow
up a military airport in New York. Those defendants
were -- they got the 25 years, and that was the
minimum because they were convicted of 2332g
counts.
So we're talking about drastically different types of
cases that they're using to try to justify the
extraordinary upward departure or variance in this
case. We've cited the cases that have explained that
the guidelines contemplate -- the guidelines, that
apply in this case, contemplate that the conduct will
implicate national security. That's already taken into
account under the guidelines.
And if the Court -- and I understand the Court has
said it's a serious case, and we understand it's a
serious case. If the Court thinks that -- and while we
don't agree; we think that a sentence at upper end of
the range would be appropriate -- but if the Court
thinks that an upward departure or an upward
variance is appropriate, the kind that the government
is talking about, a 20- to 25-year upward departure or
upward variance, they've cited no case to ever support
that type of upward departure or variance.
So maybe a modest upward departure or variance
would be in order. We don't believe so. We think that
the guidelines adequately take the conduct into
account and at least the upper end of the guideline
range is sufficient and not greater than necessary,
which is the standard for 3553(a), but certainly not
the type of upward departure or variance that the
government is asking for.
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In addition, Mr. Ghanem has been in custody for
nearly seven years now. He's 56 years old. He's not in
good health. You can even just look at his teeth. He's
almost missing all of them. A sentence of 20 or 30
years will effectively be a life sentence. You know, if
he is able to survive that type of sentence with his
medical conditions, I don't think he'll live long
afterward. And, again, the 3553(a) test is sufficient
but not greater than necessary. And a sentence of
essentially life in prison, which is what the
government is asking, is certainly greater than
necessary when the guideline range is, if the Court
gives acceptance, 63 to 78 months; if it doesn't, 78 to
97 months, I believe it is, significantly greater than
necessary.
And those are the main points that I wanted to
make, Your Honor.
THE COURT: Okay. Thank you very much.
Would Mr. Ghanem like to address the Court?
Obviously, he's not obligated to make a statement, but
he is most welcome to make a statement. And
Counsel, of course, is ably representing him. But I am
happy to hear any statement Mr. Ghanem would like
to make if he wishes to make one.
MR. COLEMAN: Let me just one moment speak to
Mr. Ghanem.
THE COURT: Yes.
(A discussion off the record between Counsel and
Defendant.)
MR. COLEMAN: He'll make a brief statement, Your
Honor.
Would you like him to come to the podium?
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THE COURT: However, he's most comfortable. If he
wishes to make it from his seat, he may do that.
THE DEFENDANT: Thank you, Your Honor.
First of all, I'm a U.S. Citizen. I used to live in
Arlington, Texas. The girl down -- that is my girl, my
sweetheart. She was born in Arlington, Texas. I will
never, ever, make no mistake, be a part or associate
with anybody that would harm this country. So it give
me a goose bump when I hear, when they talking
about cases related to somebody tried to harm this
country. I just want to make sure to tell you I will
never, ever be a part of that. And thank you for your
time, Your Honor.
THE COURT: Thank you. Thank you, Mr. Ghanem.
And thank you, Counsel.
All right. Ms. Salick, would you like to be heard?
MS. SALICK: Yes, Your Honor.
THE COURT: You may.
I do have -- a couple of questions come to mind, and
I don't mean to take you off of whatever points you
wish to make, which you are free to make. But,
obviously, I did not have the benefit of being the trial
Judge in the case and hearing the evidence presented
at trial.
And just in my review of the case, the case law, these
cases do seem to be sort of far and few between. There
aren't a lot of them. A number of them are pre-Booker,
and, of course, the landscape was a bit different then.
So if you have any insight as to -- you know, Counsel
has addressed, defense Counsel has addressed, the
facts in a number of these cases, you know, and harm
intended or aimed at the United States versus, you
know, our case. It appears that the conduct is directed
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at other countries that are enduring civil war and
other forms of instability. So if you have any insights
to that.
And, of course, Mr. Coleman, if you have anything
else to add, I will give you an opportunity to add that.
Go ahead. And anything else you want me to hear.
MS. SALICK: Thank you, Your Honor. And I will
happily address those two points. And like you, I was
not the representative from the government during
this trial, but I followed the case well and also have
reviewed everything that has been submitted, so I will
assist the Court in any way that I can and address
those two specific questions that the Court raised.
By way of introduction, I want to begin by returning
to the six counts to which the defendant pleaded
guilty for which we are here to resentence him. And
these six counts barely begin to capture the
defendant's decades-long career as an international
arms trafficker at the highest level. They barely
capture the extent of the defendant's career made by
exploiting human suffering by indiscriminately
trading in weapons of war and instruments of death
by fueling militias, a foreign terrorist organization
designated by the United States government and our
country's foreign adversaries.
He defendant chose, he purposefully inserted
himself, into theaters of war both internal and
international armed conflict. And through the types
of weapons but also the amount of weapons and
ammunition the defendant traded in, he quite
literally had the ability to change the balance of
power, to bring down governments, to prop up
autocratic regimes, and to decimate civilian
populations suffering in the grips of civil war.
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Most significantly, defendants only motive was
greed. He was not motivated by ideology or patriotism
or nationalism. Instead he supplied massive
quantities of weapons and ammunition across the
globe for one purpose, greed. And he prided himself
on being willfully blind to the end result of the
weapons that he sold. And at other times he, in fact,
requested confirmation that his articles, his weapons
of war obtained their deadly goal.
Defendant was a profiteer, to borrow Judge Otero's
words at the 2019 sentencing hearing, and most
devastatingly displayed a chilling indifference to the
human cost his arms business took to human life.
Now, although the Ninth Circuit vacated one count
of conviction, the 2332g antiaircraft charge, which the
jury found defendant guilty of beyond a reasonable
doubt after a four-week trial, defendant's conduct, the
conduct to which he is being sentenced, has not
changed. And for the purpose of today's argument
only, I want to put aside all the evidence and all the
records related to the 2332 count. It is a small fraction
of the defendant's decades-long career as an arms
trafficker.
And for the reasons briefed in the sentencing paper
and as detailed in the PSR and the U.S. Probation
Office recommendation letter, the government
requests an admittedly extraordinary departure from
the applicable guidelines and that is because this is
an extraordinary case which gets directly to this
Court's question as to the dearth of similar situated
cases.
Defendant's conduct is so extraordinarily
aggravating both in the scope of the deals he made
and in the amount of weapons and ammunition he
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personally transferred. They cannot be captured -- his
conduct cannot be captured by the guidelines range.
And his conduct, again, speaking only about the
charged conduct, is of such an insidious nature as to
warrant the significant upward departure the
government is requesting.
And to underscore the point, while the government
submits this Court should and may consider and is
within its legal authority to consider all of the
evidence supporting the dismissed -- excuse me, the
vacated conviction, the Court need not even look at
those facts to reach the sentence the government is
seeking based on the conduct as charged and as the
defendant has admitted in the six counts of conviction
that we are here today to resentence on.
I want to just very briefly offer, as detailed in both
the government's papers and the Probation Office's
letter and PSR, that the Court may achieve this
sentence, may account for the inability of the
guidelines to capture the defendant's conduct in one
of three ways, any of which is sufficient to legally
support the Court's acceptance of an admittedly
extreme departure from the guidelines range. And I
believe it is noteworthy that the defendant's conduct,
while not adequately captured by the guidelines,
easily falls within one of these three methods to
support a significant upward departure.
First, under relevant conduct, under 1B1.3, and,
again, focusing solely on the relevant conduct
underlying the six counts of conviction to which the
defendant pleaded guilty, there is a sufficient basis to
depart from the guidelines.
Second, the Court may make an upward departure
under either 5K2.14 or 2M5.2, Note 2. These are the
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provisions which related to harms to national security
and foreign security.
And, third, the Court may make an upward variance
under 3553, either based on the nature and
circumstances of this offense, the scope, and the
breadth of the defendant's conduct and the history
and characteristics of the defendant; the defendant's
continued inability to take responsibility and to
accept the grave damage, as we just heard, his action
caused to foreign nations and to our own or based on
the aggravated -- based on 3553(b)(1), the aggravating
circumstances not adequately considered by the
guidelines.
Defendant's efforts to sanitize his conduct are
unavailing. We have discussed this at length, but I
wanted to focus on two items that the Court inquired
about. The first is whether the defendant should be
allowed leniency because his conduct did not occur on
U.S. soil. It is simply illogical to believe that the
defendant's conduct did not touch, did not affect, did
not significantly impact the security of the United
States.
At a very base level, the defendant himself is a
United States citizen. As the defendant just stated, he
is a citizen and previously resided in Texas. But the
defendant chose, he inserted himself into
international foreign armed conflicts. And he affected
our nation's security when he, at numerous instances
as captured and as detailed in all of the exhibits and
records attached to the sentencing memoranda, took
sides, inserted himself into ongoing foreign conflicts,
supplied arms to individuals who purported to be
leaders of militant factions, militant factions that
were fighting against nations supported by the U.S.
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government and in some cases even supported by U.S.
personnel.
The defendant also had no qualms as demonstrated
in the recorded statements introduced at trial and
attached in the transcripts to the sentencing memo to
supply these arms, these weapons in astonishing
numbers to a designated foreign terrorist
organization, a designation the United States
government makes at the highest levels of our
government after determining that that organization
is engaged in terrorism which by its nature affects the
United States.
With respect to defendant's claims that the sentence
the government is asking for would result in an
unwarranted disparity and this Court's request or
inquiry related to other cases where similar facts are
adduced, I, one, note all of the 25-year plus sentences
that the government recited in its sentencing position
paper -- and I can point the Court to those cases
although I know the Court is well-aware of those
cases. And I would also note that one of the reasons
that we cannot find a case or that a case is not easily
found with the same facts is because the defendant's
conduct is so exceptional.
The lack -- or I should say the limited support -- and
I'm not even comfortable with that word because I
think there is significant support for our position. But
it is correct that this is not a drug case or a felon in
possession case where we can look to many, many
cases. And that is because this case is so exceptional
in nature.
I would also note that these arguments were
similarly made to Judge Otero. And in his wisdom, in
2019, he placed no merit on these claims because he,
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too, as the Probation Office and the government have
repeatedly shown, was taken aback by the breadth
and scope of the defendant's decades-long career as an
international arms trader.
I wanted to quickly note a clarification to the
defendant's recitation of the facts in Johnson and to
an attempt to sanitize the defendant's conduct
because it occurred overseas. The United States
government prosecutes many serious cases where the
conduct occurs overseas. In today's world, it is simply
impossible to divorce conduct that is specifically
aimed at the balance of power between nations and
conduct that is specifically aimed at changing
governments and supporting autocratic regimes. It is
simply impossible to attempt to say that such conduct
somehow did not touch the United States.
For all of the reasons -- and I won't take anymore
time on this issue because I do believe it is fully
briefed and supported by the evidence -- there is no
basis to allow leniency based on the idea that the
defendant's conduct did not touch the soil of the
United States government -- of the United States.
I also -- just with respect to the Johnson case,
because defense took issue with that, I would note
that in that case the defendant was convicted of
supplying bomb-making parts. And it would be
illogical to equate the supplying of bomb-making
parts to the millions of rounds of ammunition and the
hundreds of thousands of weapons of war that the
defendant traded in.
Before I stop there, I am ready to address any
additional questions the Court may have, but in
preparing for this, I wanted to return not to further
argument from the government but to the defendant's
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own reflections on his career as an international arms
dealer.
In a 2005 recorded conversation that was played at
trial and transcripts of which were attached to the
government's sentencing memoranda, the defendant
stated in discussing his criminal conduct: "I wake up
every day in the morning. I go to the news. If there is
peace, I go to sleep. If there is war, I wake up. I am
happy. There is more business for me. I love war
because it is business."
With that, Your Honor, the government asks that
you make an exceptional upward variance because
this case is exceptional. And I am happy to answer
any other questions the Court may have.
THE COURT: All right. Thank you, Counsel.
Mr. Coleman or Ms. Blanco, anything else?
MR. COLEMAN: Yes, Your Honor. I did want to
make a few points. Some of the things that were said
and said in very sort of grandiose and generalized
terminology is just not true. I think perhaps five or six
times the government repeated that Mr. Ghanem was
a decades-long arms trafficker. That's just not true.
The conspiracies here are from 2013 to 2015. Maybe
he got into the business about 2011, 2012 and was
arrested in 2015, three to four years. He was not a
decades-long arms trafficker. That is just flat out
incorrect.
The government made -- concluded with a
statement that they said was made in 2005. It wasn't.
It was made in 2015 on the day he was arrested.
So it's this tendency to exaggerate some of the
things and our position that I would like -- and I
understand the government wants to do that, because
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they're asking for something is that's exaggerated and
extraordinary. But I would like to bring it back down
to the specific legal principles and some of the specific
facts in the case.
The government said we're asking for leniency.
We're asking for the guideline sentence. We're not
asking for a downward departure. We're not asking
for downward variance. We're asking for the
guidelines. So in that sense we're not asking for
leniency.
And so when the government says, "Well, Judge
Otero gave a particular sentence," well, yes, he did
when there was a 25-year minimum and guidelines
range of life in prison. That's a lot different than when
the guideline range is in the neighborhood that we're
talking about of five to eight years depending on
whether he gets acceptance of responsibility. It's a
completely different legal landscape.
The Court had asked about the fact that some of
these cases or most of them are pre-Booker, and some
of them, I think, are pre-Booker or most of them are
pre-Booker, but I think even under a 3553(a) analysis,
the point of those cases is captured. And that is why I
went to 3553(a)(6), which is that, when you're doing a
comparative analysis in trying to make sure that
there is not unwarranted disparity, which is the
essential purpose of the guidelines is to make sure
that we're not sentencing different people to
dramatically different things, you need to look at the
counts of conviction. It's what the defendant has been
convicted of. And so I think the same analysis that
occurred in those pre-Booker cases carries over into
the 3553(a) world when you look at 3553(a)(6).
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I wanted to make one point about sort of the foreign
conduct aspect. Yes, the government prosecutes
extraterritorial cases, and this is a very vigorous
extension of extraterritorial prosecution. I think the
point that we've been trying to make is that, when you
start to do that and there is no direct emphasis or
focus on U.S. citizens or U.S. military, you start to fall
into a bit of a gray area for some of these things.
And as an example, the government makes much of
the fact that Mr. Ghanem, while living in Egypt, was
hired by the Egyptian military to seek out military
weapons. The government has not explained how that
is a violation of U.S. law. If Mr. Ghanem is in Egypt
and the Egyptian military is asking him to look into
that, it is not clear to me, at least, when you look at
this very difficult regulatory regime of figuring out
what you can and can't do, that it is a violation of
American law. But if it is -- and let's assume that it is
-- it's not the basis for 20- to 25-year upward
departure when there is no indication that there is
any specific intent to harm a U.S. individual or U.S.
military.
So the point that we're making is that this case is
far different than even the other cases where
defendants were convicted of 2332g and with
conspiracy to kill U.S. citizens or U.S. military. We
don't have that here. This is a vigorous extension of
extraterritorial prosecution abroad.
Is the conduct serious? Yes, it is. We're not saying
it's not, and we're not asking for any leniency. We're
asking the Court to follow the guidelines. If the Court
feels that the guidelines are not sufficient and an
upward departure or variance is appropriate, then an
upward departure or variance of the type that is often
65a
taken in cases, whether it's two levels or four levels,
then that degree of magnitude would be certainly
sufficient and not greater than necessary.
But to add on dozens of levels and decades of time
in prison, when there is no direct intent to threaten or
kill a U.S. military person or a U.S. citizen, we believe
would be creating not only an unwarranted disparity
under 3553(a)(6) but would also be contrary to the
guidelines regime. Thank you.
THE COURT: Thank you.
Ms. Salick, anything else?
MS. SALICK: Just to -- I did misspeak. My apologies
for that. The quote was from 2015. I did not mean to
mislead the Court. And that is stated as a 2015 date
in all of our papers.
THE COURT: All right. Thank you.
All right. Thank you, Counsel and Mr. Ghanem.
Obviously, this is a very significant case involving
very serious acts.
Does either Counsel know of any reason why
sentence should not now be imposed?
MR. COLEMAN: No, Your Honor.
MS. SALICK: No, Your Honor.
THE COURT: All right. Because I was not the trial
Judge, I have spent what I consider a meaningful
amount of time in reviewing the parties' papers and
the underlying trial exhibits to try to give myself a
sense of what it was like to sit in Judge Otero's chair
during that trial.
And I will do the best I can with the knowledge that
I've acquired to date and the benefit of Counsels'
arguments today. I will begin first by calculating the
appropriate sentencing guideline range, and I will
66a
then impose my sentence and state the reasons for my
sentence. Because of the significant factual history in
the case, I expect it will take me a little bit of time to
go through the various sentencing factors and the
underlying facts.
And I want you to know, Mr. Ghanem, that I do
appreciate the fact that you are a United States
citizen, and at least I think you believe that the
conduct that you engaged in was not intended to
injure the United States, but I'm afraid, I think, it
indirectly injured the interests of the United States.
So I am consulting and taking into account the 2021
edition of the sentencing guidelines, and I adopt the
following
sentencing
guideline
factors
and
calculations. The parties do not object to the
Probation Office's criminal history calculation, so I
find it to be accurate in statement.
I adopt the criminal history calculation. Mr.
Ghanem has zero criminal history points; thus, he
will receive a Criminal History Category of I.
The parties disagree about the total offense level in
this action. The Probation Office and the government
calculate the total offense level as 28. The defense
calculates the total offense level as 26. The parties
agree that pursuant to guidelines section 2M5.2(a)(1),
that the base offense level is 26 and that a two-level
increase applies because Mr. Ghanem was convicted
for a violation of 18 U.S.C. section 1956.
As stated today during the hearing and the papers,
Mr. Ghanem believes a two-level reduction applies for
acceptance of responsibility under Section 3E1.1
because, essentially, he pleaded guilty to all counts of
conviction. Mr. Ghanem pleaded guilty to six of the
seven counts in the indictment and the first
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superseding indictment on Friday, October 16 of
2018. Four days before the case was set to begin trial
the following Tuesday, October 20 of 2018, Mr.
Ghanem informed the prosecutor that he intended to
enter a plea of guilty. On Monday, October 19, 2018,
the day before trial, Mr. Ghanem pleaded guilty to six
of the seven counts.
And as to Count 3 of the first superseding
indictment, Mr. Ghanem exercised his constitutional
right to a jury trial. And although the Ninth Circuit
vacated Mr. Ghanem's conviction as to Count 3 of the
first superseding indictment, I still may consider the
evidence underlying t
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