Case o' The Week: Dias Infaustus = Defense Delight, Ressam and 3553 Analysis

Those admirable attorneys (including many JAG officers) who long have argued that different rules for terrorism prosecutions will undermine our entire legal system were right --- and were right in ways that they couldn't have anticipated. In the recent Ressam decision, the Ninth reverses a sentence of twenty-two years for a cooperating attempted-terrorist as "substantively unreasonable." United States v. Ressam, __ F.3d __, 2010 WL 347962 (9th Cir. Feb. 2, 2010), decision available here.

In a forceful dissent, Judge Fernandez warns that Ressam is ultimately an ends-driven decision; an opinion that opens wide the door for the Circuit to freely muck about with district court sentencing discretion. He's right: a tough break for Mr. Ressam provides great sentencing and appellate opportunities for other federal defendants.

Players: Hard-fought case by W.D. Wa. Defender Thomas Hillier and AFPD Lissa Shook. Decision by Senior Judge Alarcón; dissent by Judge Fernandez.

Facts: Ressam was convicted at trial of plotting to bomb LAX. His guideline range was 65 years to life. Id. at *1. He began cooperating post-conviction, gave information about terrorism and alQueda, and testified. Id. Two years into his cooperation he stopped, then began recanting. Id.

He was sentenced to 22 years; the parties cross-appealed. Id. The case went up to the Ninth, to the Supremes, and back down. On remand the district court imposed 22 years again. Id. The government appealed. Id.

Issue(s): “[The Government] contends that when the relevant § 3553(a) factors are applied to the facts of this case, the sentence imposed is insufficient to accomplish the purposes of the statute, which directs that ‘[t]he court shall impose a sentence sufficient but not greater than necessary’ to accomplish the purposes of 18 USC § 3553(a)(2).” Id.

Held: “We vacate the sentence and remand for resentencing by a different district court judge because we conclude that the district court committed procedural error in failing to address specific, nonfrivolous arguments raised by the Government in imposing a sentence that is well below the advisory Sentencing Guidelines range.” Id.

“We hold that we must review sentencing decisions for procedural error, even where no claim of procedural error is raised.” Id. at *17 (emphasis added). “Where the district court imposes a sentence significantly outside the Guidelines range, and it appears from the record that the district court did not remain cognizant of the Sentencing Guidelines throughout the sentencing process, it has committed procedural error.” Id. at *19 (quotations and citations omitted).

Of Note: Judge Fernandez (not a traditional defense ally) pens a must-read dissent. Id. at *36. He briefly, bluntly, and accurately ticks off each of the steps that the district court did correctly. Id.

Why, then, reversal? He writes, “[I]t seems to me that the majority just does not like the fact that this terrorist is to sit in prison for a mere twenty-two years.” Id. at *37.

The dissent (correctly) warns, “this case is not just about what befalls Ressam; it reflects another entry by appellate courts into territory that always lures them, but is always forbidden to them. Society, we, and the district courts will someday regret the results of our case-by-case trespassing onto lands we should stay out of; the day this decision becomes law will, indeed, be a dies infaustus.” Id. at *37.

Judge Fernandez is right: there’s much defense mischief to be made from this new sentencing opinion. Below are a few suggestions.

How to Use: There’s so much defense treasure to be mined from Ressam that we’ll simply list some handy propositions for use at sentencing and in appeals:

● A district court’s near-decade of experience with the case, and its explicit assurances that it had considered all the § 3553 factors, does not insulate it from reversal on procedural error. Id. at *14.

● The appellate court must review for procedural error sua sponte , even if procedural error is expressly disclaimed by the parties. Id. at *6 - *17.

● (For challenges to upward departures) - Merely calculating a guideline range correctly (twice, in separate hearings) and discussing the guidelines three times during the sentencing hearing is still insufficient to show that the district court remained “cognizant of the Guidelines throughout the sentencing process.” Id. at *26 - *27.

● A district court’s failure to expressly mention a § 3553 factor urged by a party can result in reversal, even if the sentencing court assures that it has considered the § 3553 factors. Id. at *31.

● An appellate court may reverse a district court’s sentence as substantively unreasonable if it simply disagrees with the relative weight given to the § 3553 factors. Id. at *33.

For Further Reading: Ressam’s cooperation went poorly. He spent years in solitary, cooperated, testified, went nutty, stopped, and recanted his prior testimony in an excruciating pro se exchange. Id. at *10-*12. Safe to predict that he’ll get more than 22 on remand.

As Umar Farouk Abdulmutallab – the “Christmas Bomber” – begins his snitching sorjourn, the Ressam experience and opinion are not exactly reassuring for his defense counsel. See article here.


Image of Ahmed Ressam from http://www.cbc.ca/news/background/osamabinladen/ressam_timeline.html, by CP Picture Archive/Le Journal de Montreal . Image of Umar Farouk Abdulmatallab from http://www.newstimeafrica.com/archives/9866

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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