629 F.3d 793 (9th Cir. 2010), 09-30000, United States v. Ressam

Docket Nº:09-30000.
Citation:629 F.3d 793
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Ahmed RESSAM, Defendant-Appellee.
Attorney:Mark N. Bartlett, Helen J. Brunner (argued), Assistant United States Attorneys, Seattle, WA, for the plaintiff-appellant. Thomas W. Hillier, II (argued), Lissa W. Shook, Federal Public Defender, Seattle, WA, for the defendant-appellee.
Judge Panel:Before: ARTHUR L. ALARC
Case Date:February 02, 2010
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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629 F.3d 793 (9th Cir. 2010)

UNITED STATES of America, Plaintiff-Appellant,

v.

Ahmed RESSAM, Defendant-Appellee.

No. 09-30000.

United States Court of Appeals, Ninth Circuit.

February 2, 2010

Argued and Submitted Nov. 2, 2009.

Amended Dec. 10, 2010.

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Mark N. Bartlett, Helen J. Brunner (argued), Assistant United States Attorneys, Seattle, WA, for the plaintiff-appellant.

Thomas W. Hillier, II (argued), Lissa W. Shook, Federal Public Defender, Seattle, WA, for the defendant-appellee.

Appeal from the United States District Court for the Western District of Washington, John C. Coughenour, District Judge, Presiding. D.C. No. 2:99-cr-00666-JCC-1.

Before: ARTHUR L. ALARCÓ N, FERDINAND F. FERNANDEZ and RICHARD R. CLIFTON, Circuit Judges.

Opinion by Judge ALARCÓ N; Dissent by Judge FERNANDEZ.

ORDER

This Court's opinion, filed February 2, 2010 [ 593 F.3d 1095], is amended as follows:

1. The three paragraphs on slip Opinion page 1882, line 20 to page 1883, line 13 [ 593 F.3d at 1098-99] that read:

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Both parties appealed to this Court. Ressam challenged his conviction while the Government challenged the reasonableness of the sentence. This Court vacated Ressam's conviction as to Count Nine, and remanded for resentencing without addressing the merits of the Government's arguments. United States v. Ressam, 474 F.3d 597(9th Cir.2007). The United States Supreme Court reversed this Court's decision and affirmed Ressam's conviction of Count Nine. United States v. Ressam [553 U.S. 272], 128 S.Ct. 1858, 1862 [170 L.Ed.2d 640] (2008). Upon remand, this Court vacated the 22-year sentence, holding that the district court failed to determine the applicable Sentencing Guidelines range at the beginning of sentencing, as required by United States v. Carty, 520 F.3d 984 (9th Cir.2008). United States v. Ressam, 538 F.3d 1166, 1167 (9th Cir.2008).

Upon remand, the district court again imposed a sentence of 22 years in prison, followed by five years of supervised release. The Government has appealed from this decision. It 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 U.S. C. § 3553(a)(2).

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.

are deleted and replaced by the following three paragraphs:

Both parties appealed to this Court. Ressam challenged his conviction while the Government challenged the reasonableness of the sentence. This Court vacated Ressam's conviction as to Count Nine, and remanded for resentencing without addressing the merits of the Government's arguments. United States v. Ressam, 474 F.3d 597, 604 (9th Cir.2007). The United States Supreme Court reversed this Court's decision and affirmed Ressam's conviction as to Count Nine. United States v. Ressam, 553 U.S. 272, 277 [128 S.Ct. 1858, 170 L.Ed.2d 640] (2008). Upon remand, this Court vacated the 22-year sentence, without addressing the Government's challenge to the reasonableness of Ressam's sentence, because the district court failed to determine the applicable Sentencing Guidelines range at the beginning of sentencing, as required by United States v. Carty, 520 F.3d 984, 991 (9th Cir.) (en banc), cert. denied, 553 U.S. 1061 [128 S.Ct. 2491, 171 L.Ed.2d 780] (2008); United States v. Ressam, 538 F.3d 1166, 1167 (9th Cir.2008).

At the resentencing hearing, the district court again imposed the same sentence. The Government has appealed from this decision. It 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 U.S. C. § 3553(a)(2). It complains in particular about the district court's failure to give appropriate consideration to Ressam's recantations and disavowal of his previous cooperation.

We vacate the sentence and remand for resentencing because we conclude that the sentencing process was seriously flawed, notably by the district court's

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failure to explain its reasons for rejecting the Government's argument that a longer sentence is needed to protect the public from future terrorist crimes by Ressam and imposing a sentence that is 43 years below the advisory Sentencing Guidelines. In addition, we conclude that the case should be assigned on remand to a different district judge because it appears that the original judge would have difficulties putting out of his mind previously expressed views as to an appropriate sentence.

2. On slip Opinion page 1902, line 28-30 [ 593 F.3d at 1109], please replace:

In its argument, the prosecution reiterated the points raised in its November 28, 2008 sentencing memorandum wherein it recommended a sentence of 45 years in prison.5

FN5 At Ressam's December 3, 2008 resentencing hearing, the Government recommended that Ressam serve a term of life imprisonment, based upon his further recantation and attempts to distance himself from his earlier cooperation.

with:

In its argument, the prosecution reiterated the points raised in its November 28, 2008 sentencing memorandum and recommended that Ressam serve a term of life imprisonment, based upon his further recantation and attempts to distance himself from his earlier cooperation.

3. The five paragraphs on slip Opinion pages 1912-1916 [ 593 F.3d at 1114-16] that read:

The Government asserts " [t]he sole issue presented in this case is whether the sentence imposed on Ahmed Ressam is substantively unreasonable in light of the facts of this case and the factors set forth in 18 U.S. C. § 3553(a)." 7 Appellant's Opening Brief at 36. While recognizing that we " must first determine whether the district court committed significant procedural error," the Government maintains that procedural error is " a claim not raised in this appeal." Id. By our reading of the issue on appeal, however, the Government is also impliedly challenging the sentence as procedurally unsound because its arguments are grounded upon the district court's alleged failure adequately to consider and weigh each of the relevant § 3553(a) factors, including " to protect the public from further crimes of the defendant," and to explain its reasons for imposing a sentence 43 years below the low end of the Sentencing Guidelines range. See Carty, 520 F.3d at 993 (holding that " [i]t would be procedural error for a district court to fail to ... consider the § 3553(a) factors ... or to fail adequately to explain the sentence selected, including any deviation from the Guidelines range" ) (citing Gall, 128 S.Ct. at 596-97); see also United States v. Paul, 561 F.3d 970, 974 n. 2 (9th Cir.2009) (" It is the procedural provisions of 18 U.S. C. § 3553(c) that require engagement with the [parties'] arguments, not the substantive provisions of 18 U.S. C. § 3553(a)" ); United States v. Overton, 573 F.3d 679, 699 (9th Cir.2009) (concluding that appellant " allude[d] to procedural error by accusing the district court of failing to address the § 3553(a) factors and adequately explain the sentence imposed" ).

FN7 Title 18 U.S. C. § 3553(a) requires that a sentencing court consider the following factors: (1) the nature and circumstances of the offense and the history and characteristics of the defendant;

(2) the need for the sentence imposed-

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, medical

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care, or other correctional treatment in the most effective manner;

(3) the kinds of sentences available;

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

(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines ...

(5) any pertinent policy statement ...

(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and

(7) the need to provide restitution to any victims of the offense.

18 U.S. C. § 3553(a) (emphasis added).

Accordingly, in Carty, we instructed that " [t]he overarching statutory charge for a district court is to ‘ impose a sentence sufficient, but not greater than necessary’ to reflect the seriousness of the offense, promote respect for the law, and provide just punishment; to afford adequate deterrence; to protect the public; and to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment." Carty, 520 F.3d at 991 (9th Cir.2008) (citing 18 U.S. C. § 3553(a)(1)-(7); Gall v. United States, 552 U.S. 38, 50 n. 6, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)) (emphasis added).

We believe that the Government may have framed the issue on appeal as it did because more clarity is needed in defining what constitutes procedural error in imposing a sentence that is significantly below the Sentencing Guidelines range. Accordingly, before addressing the question whether the district court's decision in Ressam's case was...

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