United States v. Daoud, s. 19-2174

• Decision Date: 05 March 2021
• Docket Number: Nos. 19-2174,19-2185 & 19-2186,s. 19-2174
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Adel DAOUD, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

989 F.3d 610 (Mem)

UNITED STATES of America, Plaintiff-Appellant,

v.Adel DAOUD, Defendant-Appellee.

Nos. 19-2174

19-2185 & 19-2186

United States Court of Appeals, Seventh Circuit.

Decided March 5, 2021

On Petition for Rehearing and Rehearing En Banc

St. Eve, Circuit Judge.

On consideration of the petition for rehearing and rehearing en banc filed by defendant-appellee on December 30, 2020, the judges on the original panel voted to deny rehearing. A judge in regular active service requested a vote on the petition for rehearing en banc. A majority of judges in regular active service voted to deny rehearing en banc. Judge Kenneth F. Ripple voted to deny rehearing but did not take part in the vote to rehear en banc. Judges Ilana Diamond Rovner, Diane P. Wood, and David F. Hamilton voted to grant rehearing en banc.

Accordingly, the petition for rehearing and rehearing en banc is DENIED.

Rovner, Circuit Judge, with whom Wood and Hamilton, Circuit Judges, join, dissenting from the denial of rehearing en banc.

As the saying goes, hard cases make bad law. This is a hard case, with disturbing facts. But it is in just these cases that we must hold even faster to the legal precedents that guide us without the distortion made by challenging facts. In this case, that guiding precedent is a standard of review that leaves district court judges broad discretion to impose sentences within their reasoned judgment, and restricts appellate court judges from supplanting that judgment with their own. And with good reason. Although appellate court judges review a cold, entombed, inflectionless record, district court judges interact with a living, breathing case and the humans before them, viewing not only the strict contours of the statutes and facts, but also intangible matters—the demeanor of the defendant, the sincerity of his remorse, incentives that he had to change his path, the demeanor of those speaking in mitigation and the support they might add to rehabilitation efforts, and how a defendant's mental health may have waxed or waned over the course of the proceedings.

Sentencing is one of the hardest parts of a district court's job and I suspect that if we surveyed all ten of the current active judges in this Circuit, we would find that each of us would have imposed a different sentence had we been sitting as the district court judge in this case. The Supreme Court, however, has instructed that our review of a district court's sentence is limited to determining whether it is reasonable.¹ Gall v. United States , 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). We do not substitute our judgment for that of the district court. United States v. Warner , 792 F.3d 847, 856 (7th Cir. 2015). And that is the standard we have applied in case after case after case in this circuit. Until now.

Adel Daoud was charged with the horrific crime of attempting to detonate a bomb as a part of an FBI sting to uncover acts of terrorism in the United States. Almost immediately after arriving at the Metropolitan Correctional Center in Chicago he was charged with soliciting the murder of the FBI agent involved in the sting, although this too was part of a government operation which solicited the assistance of Daoud's cellmate. And a few years after that, he was charged with a serious stabbing assault on another inmate, after the victim drew pictures of the prophet Mohammed.² About one year after the assault, Daoud was diagnosed with schizophrenia

and other mental health disorders. The proceedings extended for many years, in large part because Daoud was found to be mentally incompetent for a time. R. 216.³ It was not until his mental health stabilized with medication that the proceedings were able to continue in 2018. R. 237. At that time, Daoud pleaded guilty pursuant to North Carolina v. Alford , 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) which allows a defendant to enter a guilty plea, but continue to deny culpability. See

id. at 37, 91 S.Ct. 160. In all, the district court judge presided over Daoud's proceedings for seven years.

The government requested a forty-year sentence; Daoud requested nine. The probation office recommended fifteen years and a lengthy period of supervision. The district court judge held an extensive four-day sentencing hearing at which both parties submitted voluminous evidence, all of which the District Court reviewed and considered. At the end, she sentenced Daoud to one year more than the probation office's recommendation—sixteen years, plus a hefty forty-five years of supervised release.

In sentencing Daoud, the district court judge considered the nature and circumstances of all three crimes, but particularly noted the violent and heinous nature of the attempted bombing, stating that "[t]he seriousness of this offense cannot be understated or downplayed." R. 342 at 495–96. She also seriously considered the solicitation of murder of an undercover FBI agent whose job it is to protect the public, as well as the violent attack on a fellow prisoner. Id. at 496, 499–500. And she emphasized the pre-meditated nature of the attack on his fellow inmate that occurred when the victim was sleeping. Id. at 500.

At the same time, she considered Daoud's social awkwardness and immaturity which she surmised had led the lonely seventeen-year-old boy to seek friendship and affirmation on line, and to "talk big" about things that ended up sounding like juvenile nonsense—ideas such as using flying cars as a weapon of Jihad. Id. at 497. She considered his obedience to his parents, and religious leaders. Id. at 498. She concluded that the defendant was not mentally ill in 2012 when he agreed to detonate the bomb, and that he clearly understood what he was doing and believed it "would put him in a place of favor with the Prophet Muhammad, Allah himself, or his religion." Id. at 498. She also, however, considered his mental instability and diagnoses. Id. at 499, 502, 506. She considered the abuse by his cellmate. Id. at 499. She considered the 400 days he spent in special housing and the traumatic effect of witnessing his cellmate's suicide. Id. at 502. And of course she considered the entirety of her own experience with Daoud over the seven years that she presided over his case.

Despite the district court's careful consideration, the panel vacated and remanded the district court sentence (and took the unusual step of reassigning the case on remand to a different judge, despite the lack of such a request by the government). The effect of that decision is that the panel necessarily found that sentence was plainly unreasonable, and that no reasonable jurist would have sentenced Daoud to this term. Gall , 552 U.S. at 46, 128 S.Ct. 586 ; United States v. Purnell , 701 F.3d 1186, 1189 (7th Cir. 2012). Given the care and thoroughness with which the district court considered Daoud's sentence, I find that position untenable.

The Supreme Court decision in Gall provides a close comparison for the situation before the court here. In Gall , the Court reviewed the appellate panel's reversal and remand to the district court for sentencing. The appellate court in Gall did not approve of the district court's light sentence. It concluded that the district court gave too much weight to the defendant's withdrawal from the conspiracy, to his age and immaturity, and to his post-offense rehabilitation. The appellate court also asserted that the district court gave too much weight to some mitigation factors and did not "properly weigh" the seriousness of the defendant's offense. Gall , 552 U.S. at 45, 128 S.Ct. 586. The appellate court's objection to the district court's sentence in Gall is remarkably similar to that of the panel's objections here—particularly the appellate court's disapproval of the weight the district court gave to the defendant's immaturity at the time of the crime and later rehabilitation, and its concern that the district court did not properly account for the severity of the crime. Nevertheless, the Supreme Court emphasized that

[t]he sentencing judge is in a superior position to find facts and judge their import under § 3553(a) in the individual case. The judge sees and hears the evidence, makes credibility determinations, has full knowledge of the facts and gains insights not conveyed by the record ... The sentencing judge has access to, and greater familiarity with, the individual case and the individual defendant before him than the Commission or the appeals court. Moreover, district courts have an institutional advantage over appellate courts in making these sorts of determinations, especially as they see so many more Guidelines cases than appellate courts do.

Gall , 552 U.S. at 51–52, 128 S.Ct. 586.

We have echoed Gall's deferential standard of review time and again, in various words and phrases. See, e.g. , United States v. Dawson, 980 F.3d 1156, 1165 (7th Cir. 2020) (noting that an appellate court's review of the substantive reasonableness of a sentence is highly deferential, asking only whether the sentence was plainly unreasonable); United States v. Durham , 967 F.3d 575, 580 (7th Cir. 2020) (same); United States v. De La Torre , 940 F.3d 938, 954 (7th Cir. 2019) (noting that if a district court's sentencing is procedurally sound and the judge adequately explained the reasons for the sentence, the appellate court's "only task, then, is to review whether the district court abused its discretion."). "The issue is not whether we would reach the same decision as the district court but whether the district court's reasoning process and result were within broad bounds of reasonableness." Purnell , 701 F.3d at 1189. That means that an appellate court must uphold any sentence where the judge offers an adequate statement of his reasons that is both logical and consistent with the sentencing factors enumerated in 18 U.S.C. § 3553(a). United States v. Bonk , 967 F.3d 643, 650 (7th Cir. 2020). We cannot overturn a district court's discretion in...