U.S. v. Ressam

• Decision Date: 02 February 2010
• Docket Number: No. 09-30000.,09-30000.
• Citation: 593 F.3d 1095
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Ahmed RESSAM, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

593 F.3d 1095 UNITED STATES of America, Plaintiff-Appellant,
v.
Ahmed RESSAM, Defendant-Appellee. No. 09-30000. United States Court of Appeals, Ninth Circuit. Argued and Submitted November 2, 2009. Filed February 2, 2010.

[593 F.3d 1098]

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. ALARCÓN, FERDINAND F. FERNANDEZ and RICHARD R. CLIFTON, Circuit Judges.

ALARCÓN, Senior Circuit Judge:

Ahmed Ressam was convicted by a jury on nine counts of criminal activity in connection with his plot to carry out an attack against the United States by detonating explosives at the Los Angeles International Airport ("LAX") on the eve of the new Millennium, December 31, 1999. Ressam's crimes of conviction carry an advisory Sentencing Guidelines range of 65 years to life in prison, and a statutory maximum penalty of 130 years in prison.

In 2001, following his conviction, Ressam entered into a cooperation agreement with the Government. Under the terms of the agreement, the Government was to recommend a reduction in Ressam's sentence in exchange for his truthful and complete cooperation. Ressam provided information to law enforcement officials of the United States and of other countries concerning the organization, recruitment, and training activities of the worldwide terrorist network known as alQaeda. Ressam also testified against one of his co-conspirators, Mokhtar Haouari. After providing assistance to the Government for approximately two years, Ressam decided to cease cooperating and began recanting his prior testimony. The district court sentenced Ressam to 22 years in prison to be followed by five years of supervised release.

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,

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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.

I A

Ahmed Ressam is an Algerian national. Traveling on a false Moroccan passport issued in the name of Nassar Ressam, Ressam left Algeria in 1992 and went to France. On November 8, 1993, French authorities deported Ressam to Morocco and banned him from returning to France for three years. Ressam was returned to France by Moroccan authorities when it was determined that he was not Moroccan.

On February 20, 1994, Ressam arrived at Mirabel Airport in Montreal, Canada, using an illegally altered French passport in the name of Anjer Tahar Medjadi. The passport was altered in that Ressam's photo had been inserted to replace that of the original bearer. When Canadian immigration personnel confronted Ressam with the altered passport, Ressam divulged his true name. Ressam applied for refugee status with Canadian Immigration, indicating on this 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 on June 6, 1995. His appeal was also denied. A moratorium on deportations from Canada to Algeria, however, allowed Ressam to stay in Canada under conditions set by Citizenship and Immigration Canada (CIC). Ressam failed to comply with these conditions, and on May 4, 1998, a warrant was issued by CIC for Ressam's arrest. Ressam was not arrested however, because at the time the warrant was issued, he was attending a terrorist training camp in Afghanistan.

On March 17, 1998, traveling under the name of Benni Noris, Ressam went from Montreal to Karachi, Pakistan. In Karachi, Ressam got in touch with Abu Zubeida who was in charge of the Afghan terrorist training camps. Ressam was told to grow a beard and wear Afghani clothes, prior to being transported across the border from Pakistan into Afghanistan. While Ressam 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. Ressam first received instruction at Khalden Camp in light weapons (handguns, machine guns, and rocket launchers), the making of explosive devices (including

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TNT, C4 (plastic explosive), 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 blow up the infrastructure of a country, including the enemies' special and military installations, such as electric plants, gas plants, airports, railroads, and hotels where conferences are held. 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 in the manufacture of explosives over the course of a month and a half. Ressam 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 members to travel separately and meet in Canada where they would carry out bank robberies to finance their operation in the United States. Other cells were planning operations in Europe and in the Persian Gulf against the United States and Israeli interests to be carried out before the year 2000.

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

In the spring of 1999, French authorities were conducting an investigation of radical Islamic fundamentalists living in Montreal who were believed to be providing support to Islamic terrorist organizations in Europe. The Montreal "cell" was involved in stealing passports and other identification documents and sending them to other cells in Europe to allow fellow Islamic extremists to travel internationally. The French authorities requested an interview of Ressam but the Canadian authorities were unable to locate him because he was living under his false name of Benni Noris.

In the summer of 1999, Abu Doha informed Ressam, from London, that the other members of the Montreal cell decided to remain in Europe because they ran into problems with Immigration. Ressam decided to continue with the operation without the other members of his cell. Ressam targeted an airport, 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 get 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.

On November 17, 1999, Ressam and his co-conspirator, Abdel Dahoumane, traveled from Montreal to Vancouver, B.C., where

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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...