Sunday, March 18, 2012

Case o' The Week: 22, a Tad Too Few -- Ressam and Substantive Reasonableness Review

In an en banc opinion, the Ninth last week delivered a watershed sentencing decision that will control all future sentencing appeals in the Circuit.

(If the appeal involves recanting cooperating Algerian terrorists caught at the Canadian border). United States v. Ressam, 2012 WL 762986 (9th Cir. Mar. 12, 2012), decision available here.

Thomas Hillier II
Players: Righteous fight by Thomas Hillier, II, Fed. Public Defender W.D. Wa. Majority decision by Judge Clifton, joined by Judges Graber McKeown and Bybee. Concurrence by Judge Reinhardt, joined by Chief Judge Kozinski and Judge Wardlaw. Dissent by Judge Schroeder, joined by Judges Paez, Berzon, and Murguia.

Facts: Ressam, an Algerian terrorist, planned to blow-up LAX. Id. at *1-*2. He was caught at the Canadian border with a car full of explosives. Id. The trial resulted in a guilty verdict, and soon after Ressam began cooperating against other terrorists. Id. at *4. His cooperation was extensive: over 280 hours of trial testimony, depos, and debriefings. Id. at *5. After long confinement under tough conditions Ressam=s mental state deteriorated B he ultimately refused to continue to cooperate and recanted previous allegations. Id. at *6. After a tortured appellate procedural history, Ressam finally faced sentencing with a 65-life guideline range. Id. at *9. The experienced district judge B who had lived with the case twelve years B varied downwards to twenty-two years. Id. at *12. The court at sentencing conducted an extensive ' 3553(a) analysis and review of the cooperation efforts of Ressam. Id. at *12-*15.

Hon. Richard Clifton
Issue(s): AThe government appeals the sentence imposed by the district court upon  . . . Ressam . . . as substantively unreasonable.@ Id. at *1.

Held: ARecognizing the deference owed to the district court, it is our conclusion that the sentence imposed by the district court in this case was substantively unreasonable. We reach that conclusion after examining the 'totality of circumstances' as directed by Gall . . . and Carty.@ Id. at *8 (citations omitted).

Of Note: In a potent dissent, Judge Schroeder persuasively argues that A[t]he majority=s implicit assumption that terrorism is different, and must be treated differently . . . flies in the face of the congressionally sanctioned structure of sentencing that applies to terrorism as well as all other kinds of federal criminal offenses.@ Id. at *26. 

   Want an example? 

   In Ressam, a downward departure to one-third of the guideline range was Asubstantively unreasonable.@ Id. at *18. But just five months ago, in Fitch (a non-terrorism case), the Ninth upheld an upward departure over five times the guideline range (from four years to twenty-one years) as Asubstantively reasonable.@ See United States v. Fitch, 659 F.3d 788 (9th Cir. 2011), decision available here (2011); see generally blog here.

  ADeath is different@ B maybe, implicitly, terrorism is, too.

How to Use: Volumes will be written on Ressam, but here=s the bottom line: it is probably a one-off. 

Hon. Stephen Reinhardt
  With only four votes, Judge Clifton=s majority needed the additional votes of Judge Reinhardt's three concurring judges to reverse the district court's sentence. (Takes six to win an en banc).

   In an earlier opinion, Bradley, Judge Clifton himself clearly explained the limited precedential value of a fractured en banc decision: AThe plurality opinion has been joined by only five of the eleven judges on this limited en banc panel. Because that constitutes less than a majority of the panel, that opinion does not announce the law of the circuit. The precedential effect of this decision does not extend beyond the conclusions expressed in this separate opinion, which concurs in the judgment on more narrow grounds.@ Bradley v. Henry, 518 F.3d 657 (9th Cir. 2008) (ord. amend. and denying rh=g en banc), available here; see also blog here. 

  Bradley means that Judge Reinhardt=s concurrence is likely the only Atrue@ holding of Ressam. That concurrence emphasizes that Ressam is not the case "in which to establish general principles governing when 'substantive unreasonableness= will warrant vacating a sentence imposed by the district court.@ Id. at *27 (Reinhardt, J., concurring). Judge Reinhardt goes to great lengths to limit his concurrence to this case and these facts, for a Aforeign enemy terrorist.@ Id. at *30. In short, Judge Clifton=s long and thoughtful discussion of substantive reasonableness, id. at *16-*25,  B though interesting B is probably dicta given the extraordinarily narrow language of Judge Reinhardt=s concurrence.

For Further Reading: Prosecutors, Beware the Ides of March. On March 15, a court-ordered report on the Brady violations from the Alaska Stevens case was released. Over five-hundred pages long, the report is the result of a comprehensive two-year investigation. 

How profound were the Brady violations in Stevens? Bad enough to immediately spark new Brady reform legislation in the Senate. For a comprehensive review of the Stevens case and the need for Brady reform, with helpful summaries, links to the Stevens report, and to Senate Bill 2197, see NACDL=s great posting here

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

Image of Federal Public Defender Thomas Hillier from
Image of the Honorable Richard Clifton from
Image of the Honorable Stephen Reinhardt from
Image of the "Ides of March" from‑ides‑of‑march.jpg


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