United States v. Ressam

• Decision Date: 04 May 2012
• Docket Number: No. 09–30000.,09–30000.
• Citation: 2012 Daily Journal D.A.R. 5860,679 F.3d 1069,12 Cal. Daily Op. Serv. 4910
• Parties: UNITED STATES of America, Plaintiff–Appellant, v. Ahmed RESSAM, Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

679 F.3d 1069

12 Cal. Daily Op. Serv. 4910

2012 Daily Journal D.A.R. 5860

UNITED STATES of America, Plaintiff–Appellant,

v.Ahmed RESSAM, Defendant–Appellee.

No. 09–30000.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 21, 2011.

Filed March 12, 2012.

Amended May 4, 2012.

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

Thomas W. Hillier, II, 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: ALEX KOZINSKI, Chief Judge, and MARY M. SCHROEDER, STEPHEN REINHARDT, SUSAN P. GRABER, M. MARGARET MCKEOWN, KIM MCLANE WARDLAW, RICHARD A. PAEZ, MARSHA S. BERZON, RICHARD R. CLIFTON, JAY S. BYBEE, and MARY H. MURGUIA, Circuit Judges.

Opinion by Judge CLIFTON; Concurrence by Judge REINHARDT; Dissent by Judge SCHROEDER.

OPINION

CLIFTON, Circuit Judge:

The government appeals the sentence imposed by the district court upon Ahmed Ressam, the so-called “Millennium Bomber,” as substantively unreasonable. We review a challenge of that nature under what the Supreme Court has described as “the familiar abuse-of-discretion standard of review.” Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).

Ressam was convicted by a jury on nine counts of criminal activity ¹ in connection with his plot to carry out an attack against the United States by detonating explosives at the Los Angeles International Airport, commonly known and referred to by its airport code “LAX.” His plan was for the attack to occur on the eve of the new millennium, December 31, 1999. The advisory Sentencing Guidelines imprisonment range for Ressam's convictions was calculated by the district court to be 65 years to life. That calculation has not been challenged by either party. The district court sentenced Ressam to a term of imprisonment of 22 years, plus five years of supervised release.

Upon our review of the record, we conclude that the district court abused its discretion in sentencing Ressam as it did. As a result, we conclude that the sentence imposed by the district court was substantively unreasonable. We vacate the sentence and remand the case to the district court for resentencing.

I. Factual Background and Procedural History

As discussed below, our review of a sentence for substantive reasonableness is to consider the “totality of the circumstances” regarding the particular defendant. Gall, 552 U.S. at 51, 128 S.Ct. 586;United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc). As a result, we will describe in some detail the relevant circumstances, the arguments presented to the district court, and the district court's explanation of the sentence that it imposed.

Ahmed Ressam is an Algerian national. Traveling on a false Moroccan passport issued in the name of Nassar Ressam, he left Algeria in 1992 and went to France. In 1993 French authorities deported him to Morocco and banned him from returning to France for three years. He was returned to France by Moroccan authorities when it was determined that he was not Moroccan.

In 1994 Ressam arrived at Mirabel Airport in Montreal, Canada, using an illegally altered French passport. When Canadian immigration personnel confronted him, he divulged his true name and applied for refugee status, indicating on his application that he left Algeria in December 1993 after having been arrested and jailed for 15 months for arms trafficking to terrorists in Algeria. Ressam's request for refugee status in Canada was denied. A moratorium on deportations from Canada to Algeria allowed him to stay in Canada, however, under conditions set by the Canadian government. He failed to comply with those conditions, and in May 1998 a warrant was issued for his arrest. He was not arrested, however, because at the time the warrant issued, he was attending a terrorist training camp in Afghanistan.

In March 1998, traveling under the name of Benni Noris, Ressam left Montreal for Karachi, Pakistan. In Karachi, he got in touch with Abu Zubeida, who was in charge of the Afghan terrorist training camps. While he was in Afghanistan, fatwahs were issued, including one by Sheikh Omar Abdel Rahman, directing the terrorists to fight Americans and hit their interests everywhere.

Between March 1998 and February 1999, Ressam attended three training camps for Islamic terrorists in Afghanistan. He first received instruction at Khalden Camp in light weapons (handguns, machine guns, and rocket launchers), the making of explosive devices (including TNT, C4 plastic explosives, and black plastic explosives), sabotage, the selection of targets, urban warfare, tactics (including assassinations), security, and the use of poisons and poisonous gas. The sabotage training included learning how to disrupt the infrastructure of a country, by destroying locations such as electric plants, gas plants, airports, railroads, and hotels. The urban warfare training instructed on how to carry out operations in cities, how to block roads, how to assault buildings, and covered the strategies used in these operations. Explosives training included how to do surveillance, take pictures, and blend in by wearing clothing that a tourist would wear. The weapons and ammunition used at the camps were supplied by the Taliban. Plans were underway to carry out terrorist operations in Europe and elsewhere.

After attending Khalden Camp, Ressam moved to Toronta Camp located outside Jalalabad, Afghanistan, where he was trained over the course of a month and a half in the manufacture of explosives. He learned how to put chemical substances together to form explosives and how to make electronic circuits to be used to blow things up.

Ressam and five other terrorists were part of a cell charged with carrying out an operation against a target in the United States—an airport or a consulate—before the end of 1999. The leader of the cell was to stay in touch with Abu Jaffar in Pakistan and Abu Doha in Europe. The plan was for the cell's members to travel separately and meet in Canada, where they would carry out bank robberies to finance their operation in the United States.

In February 1999, Ressam returned to Canada, traveling under the name Benni Noris and carrying $12,000 in cash, a chemical substance called Hexamine used as a booster in the manufacture of explosives, and a notebook with instructions on how to put together explosives.

In the summer of 1999, Abu Doha informed Ressam, from London, that the other members of the Montreal cell had decided to remain in Europe because they ran into immigration problems. Ressam decided to continue with the operation without the other members of his cell. He chose LAX as his target, knowing that, as a result, many civilians would die.

While planning the operation, Ressam worked with his friend, Ahcene Zemiri, who helped him plan a bank robbery intended to secure funds to finance the attack in the United States. Ressam and Zemiri did surveillance on the bank. Ressam asked Zemiri and Samir Ait Mohamed to obtain a pistol with a silencer and hand grenades to use during the bank robbery. Ressam planned to throw a live hand grenade at the police and run if he needed to do so in order to get away.

In November 1999, Ressam and his co-conspirator, Abdel Dahoumane, traveled from Montreal to Vancouver, B.C., where they prepared explosives for the LAX bomb in a rented cottage. On December 14, 1999, Ressam and Dahoumane traveled from Vancouver to Victoria, B.C., with all of the components of the bomb, including explosives, hidden in the wheel well of the trunk of a rental car. Continuing alone, Ressam drove the car carrying the explosives onto an American car ferry at Tsawwassen, B.C. The ferry arrived in Port Angeles, Washington, later that evening. Upon leaving the ferry, Ressam was questioned by a U.S. customs inspector. She detected nervousness and directed Ressam to a secondary inspection area.

Ressam filled out a customs declaration form falsely, stating that his name was Benni Noris and that he was a Canadian citizen. One customs inspector conducted a pat-down search on Ressam as others were searching the car. When an inspector discovered what appeared to be contraband in the wheel well of the trunk, Ressam fled on foot. Customs inspectors gave chase. In the course of the chase, Ressam attempted to carjack a vehicle. He was apprehended by the customs inspectors and returned to the inspection area in a police car. The inspectors resumed searching the trunk of Ressam's car.

As the inspectors reached into the wheel well to remove the contraband, Ressam ducked down behind the protection of the police car's door. An explosives expert later determined that the materials found in the car were capable of producing a blast forty times greater than that of a devastating car bomb.²

Following his arrest, the government indicted Ressam on the nine counts identified above, at 4674, note 1. The statutory maximum penalty for these offenses was 130 years in prison.

Before trial, the government offered Ressam an agreement to recommend a sentence of 25 years of imprisonment in exchange for a guilty plea. The government considered the sentence offered to be substantially discounted, taking into account the risk of trial. At that time, the government was concerned that its evidence with regard to the most serious charge and the one that carried the most weight, count one of the indictment, alleging conspiracy to commit an act of terrorism transcending national boundaries, was thin. The government was uncertain about its ability to prove what Ressam intended to do once he crossed the border, using a phony passport and carrying more than 100 pounds of explosives. It was not until closer to the time of trial that some of...