FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 09-30000

Plaintiff-Appellant, D.C. No.

v. 2:99-cr-00666-

JCC-1 AHMED RESSAM,

Defendant-Appellee. ORDERS  AMENDING

OPINION AND

DISSENT AND

AMENDED

OPINION AND

DISSENT 

Appeal from the United States District Court

for the Western District of Washington

John C. Coughenour, District Judge, Presiding

Argued and Submitted

November 2, 2009—Seattle, Washington

Filed February 2, 2010

Amended December 10, 2010

Before: Arthur L. Alarcón, Ferdinand F. Fernandez and

Richard R. Clifton, Circuit Judges.

Opinion by Judge Alarcón;

Dissent by Judge Fernandez

19763
COUNSEL

Mark N. Bartlett, Helen J. Brunner (argued), Assistant United

States Attorneys, Seattle, Washington, for the plaintiffappellant.

UNITED STATES v. RESSAM 19767
Thomas W. Hillier, II (argued), Lissa W. Shook, Federal Public Defender, Seattle, Washington, for the defendant-appellee.

ORDER

This Court’s opinion, filed February 2, 2010, is amended as

follows:

1. The three paragraphs on slip Opinion page 1882, line 20

to page 1883, line 13 that read: 

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, 128 S. Ct. 1858, 1862 (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

19768 UNITED STATES v. RESSAM
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 (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 (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

UNITED STATES v. RESSAM 19769
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

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, 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

with:

5At 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. 

19770 UNITED STATES v. RESSAM
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

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

7Title 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 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 . . . 

UNITED STATES v. RESSAM 19771
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.

(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); United States v. Gall, 552 U.S. 38, 50 n.6 (2007))

(emphasis added). 

19772 UNITED STATES v. RESSAM
§ 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”).

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 procedurally erroneous or substantively unreasonable, we are persuaded

that it is necessary to analyze each of these two concepts in some detail.

A

In Gall, the Supreme Court instructed that 

[r]egardless of whether the sentence imposed is

inside or outside the Guidelines range, the appellate

court must review the sentence under an abuse-ofdiscretion standard. It must first ensure that the district court committed no significant procedural error,

such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the § 3553(a) factors,

selecting a sentence based on clearly erroneous

facts, or failing to adequately explain the chosen

sentence — including an explanation for any deviation from the Guidelines range. Assuming that the

district court’s sentencing decision is procedurally

sound, the appellate court should then consider the

UNITED STATES v. RESSAM 19773
substantive reasonableness of the sentence imposed

under an abuse-of-discretion standard.”

Gall, 552 U.S. at 51 (emphasis added).

The Supreme Court’s instruction implies that

appellate courts have a sua sponte duty to undertake

a review for procedural error even where, as here, no

such error is expressly asserted by the Government

in its appeal. As a preliminary matter, we now make

explicit what was implicit in Gall. We hold that we

must review sentencing decisions for procedural

error, even where no claim of procedural error is

raised. This holding is based upon our reading of the

language in Gall instructing that an appellate court

“must first ensure that the district court committed

no significant procedural error,” id. (emphasis

added), our extensive review of the cases applying

Gall, and our own holding in Carty. See Carty, 520

F.3d at 993 (“On appeal, we first consider whether

the district court committed significant procedural

error, then we consider the substantive reasonableness of the sentence.”). 

This requirement makes logical sense because

“[i]n determining substantive reasonableness, we are

to consider the totality of the circumstances, including the degree of variance for a sentence imposed

outside the Guidelines range.” Id. Thus, the substantive reasonableness analysis requires consideration

of information necessarily gleaned from the review

for procedural error, including the district court’s

calculation of the Sentencing Guidelines range and

its consideration of the § 3553(a) factors. Id. Indeed,

“substantive problems . . . [can be] a product of the

District Court’s procedurally flawed approach.”

United States v. Goff, 501 F.3d 250, 256 (3d Cir.

2007). “[I]f one cannot justify a result by the reasons

19774 UNITED STATES v. RESSAM
given, that result is, by definition, not a substantively

reasonable conclusion to the logical steps provided.”

United States v. Levinson, 543 F.3d 190, 195 (3d Cir.

2008). Stated otherwise, it would be analytically

problematic, if not impossible, to review a sentence

for substantive reasonableness without having first

reviewed the sentencing decision for procedural

error. Accordingly, courts must review for procedural error even where the only claim raised on

appeal is the substantive reasonableness of the sentence. See, e.g., Overton, 573 F.3d at 699 (reviewing

for procedural error where appellant challenged his

sentence as substantively unreasonable but “alluded

to” procedural error); United States v. Shaw, 560

F.3d 1230, 1238 (11th Cir. 2009) (reviewing for procedural error even though the only contention on

appeal was that the sentence was substantively

unreasonable). Having concluded that we must first

review a sentence for procedural error, we now

address what that review entails.

are deleted and replaced by the following eight paragraphs:

The Government appeals the sentence imposed on

Ressam by the district court. It argues that “[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).”

6

 (Appellant’s

6Title 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; 

UNITED STATES v. RESSAM 19775
Opening Br. 36.) Specifically, the Government

argues that the sentence is substantively unreasonable because the district court failed adequately to

consider and weigh the relevant § 3553(a) factors,

including “the need [for the sentence imposed] . . .

to ensure the public is protected from future crimes

by this defendant.”

7

 (Id. at 51.)

(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 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). 

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 (citing 18 U.S.C. § 3553(a)(1)-(2));

Gall v. United States, 552 U.S. 38, 50 n.6 (2007)). 

7Thus, “[t]here is a procedural as well as a substantive element to this

argument.” United States v. Overton, 573 F.3d 679, 699 (9th Cir. 2009)

19776 UNITED STATES v. RESSAM
The Government also argues that: 

the [district] court’s stated reasons simply do not

establish the reasonableness of a sentence two-thirds

less than the low end of the advisory Guideline[s]

range for a defendant who was convicted after trial

of such extraordinary crimes, and then undermined

the prosecution of two terrorists about whom he provided information by refusing to finish his agreed

upon cooperation.

(Id. at 38.)

A

Ordinarily, when a sentence is appealed, “[o]n

appeal, we first consider whether the district court

committed significant procedural error, then we consider the substantive reasonableness of the sentence.” Carty, 520 F.3d at 993. In Gall, the Supreme

Court instructed that: 

[r]egardless of whether the sentence

imposed is inside or outside the Guidelines

(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”); 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).”). In its appeal, however, the Government has expressly waived any challenge to the procedural correctness of the sentence imposed by the district court.

(Appellant’s Opening Br. 36) (“The Court must first determine whether

the district court committed significant procedural error, a claim not

raised in this appeal. The Court must then consider whether the sentence

is substantively unreasonable, the issue raised here.”) (citations omitted)

(emphasis added); (Appellant’s Reply Br. 5) (“A sentence is reviewed first

for procedural error, although none is alleged here.”) (citation omitted)

(emphasis added). 

UNITED STATES v. RESSAM 19777
range, the appellate court must review the

sentence under an abuse-of-discretion standard. It must first ensure that the district

court committed no significant procedural

error, such as failing to calculate (or

improperly calculating) the Guidelines

range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately

explain the chosen sentence — including an

explanation for any deviation from the

Guidelines range. Assuming that the district

court’s sentencing decision is procedurally

sound, the appellate court should then consider the substantive reasonableness of the

sentence imposed under an abuse-ofdiscretion standard. When conducting this

review, the court will, of course, take into

account the totality of the circumstances,

including the extent of any variance from

the Guidelines range.

Gall, 552 U.S. at 51.

In this appeal the Government has elected not to

argue that the district court committed significant

procedural errors. Though the Government has identified many alleged missteps by the district court in

the course of sentencing, its opening brief affirmatively states that procedural error is “a claim not

raised on this appeal.” Id.

Ressam contends that as a result we are precluded

from considering procedural errors by the district

court, citing the decision of the Supreme Court in

Greenlaw v. United States, 554 U.S. 237, 128 S. Ct.

2559 (2008). In that case the Eighth Circuit sua

19778 UNITED STATES v. RESSAM
sponte ordered the imposition of a longer criminal

sentence based on the failure of the district court to

impose a mandatory minimum sentence, which the

court of appeals identified as a plain error even

though the Government had not appealed the sentence. The sentence was before the court of appeals

because the defendant had challenged the sentence,

contending that it was too long. The Supreme Court

held that the court of appeals had erred by acting in

the absence of a Government appeal or cross-appeal.

Greenlaw, 128 S. Ct. at 2570. But that is not the situation here. The Government has appealed Ressam’s

sentence. That it has elected to focus on the substantive reasonableness of the sentence means that we

are not required to review for procedural errors, but

it does not mean that we are precluded from looking

at the process that produced that sentence.

That is especially true here, where the Government’s opening brief on appeal complains about a

number of actions or failures by the district court

that arguably constitute procedural errors. See

United States v. Overton, 573 F.3d 679, 699 (9th Cir.

2009) (reviewing for procedural error where appellant challenged his sentence as substantively unreasonable but “allude[d] to procedural error by

accusing the district court of failing to address the

§ 3553(a) factors and adequately explain the sentence imposed”); United States v. Shaw, 560 F.3d

1230, 1238 (11th Cir. 2009) (reviewing for procedural error even though the only contention on

appeal was that the sentence was substantively

unreasonable). Notably, the Government’s arguments in this case are largely 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

UNITED STATES v. RESSAM 19779
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).

It should not be surprising that a challenge to the

substantive reasonableness of a sentence will, in at

least some cases, invite consideration of the process

that produced the sentence. How a decision is

arrived at can often shed light on the merit of the

decision itself. Indeed, “substantive problems . . .

[can be] a product of the District Court’s procedurally flawed approach.” United States v. Goff, 501

F.3d 250, 256 (3d Cir. 2007). In Carty we held that

“[i]n determining substantive reasonableness, we are

to consider the totality of the circumstances, including the degree of variance for a sentence imposed

outside the Guidelines range.” Carty, 520 F.3d at

993. The totality of circumstances to be considered

in determining substantive reasonableness may

surely include an examination of the sentencing process as a whole.

B

To better understand the relationship between

alleged procedural errors and substantive unreasonableness, it would be useful to analyze each of the

two concepts in some detail.

4. On slip Opinion page 1929, line 15, please replace: 

There are four procedural errors in the district

court’s analysis: 

19780 UNITED STATES v. RESSAM
with:

There are four procedural errors in the district

court’s analysis that are serious enough to cause us

to lack confidence in the substantive reasonableness

of the sentence that was imposed:

5. On slip Opinion page 1948, line 30, please replace: 

Paul, 561 F.3d at 975.

with: 

Paul, 561 F.3d at 975; see also United States v.

Vrdolyak, 593 F.3d 676, 684 (7th Cir. 2010) (holding

that “a judge’s errors in calculating [a sentence] are

indicative of an idee fixe” where the judge appears

unwilling to waver in his conviction that a particular

sentence is warranted).

6. On slip Opinion page 1949, beginning at line 5, please

replace: 

For these reasons, we direct that the case be reassigned to a different judge for resentencing.

Conclusion

Because the district court procedurally erred by

failing to address specific arguments raised by the

Government, or otherwise justify the extent of its

departure from the advisory Guidelines, we must

vacate the 22-year sentence imposed by the district

court. 

with:

For these reasons, we direct that the case be reassigned to a different judge for resentencing. We

UNITED STATES v. RESSAM 19781
intimate no view on what a proper sentence would

be.

Conclusion

We vacated the district court’s original sentence

of 22 years of imprisonment because it failed to permit this Court to conduct a meaningful review of the

Government’s challenge to the reasonableness of

Ressam’s sentence. Ressam, 538 F.3d at 1167. Prior

to the sentencing hearing on July 27, 2005, Ressam

argued that he had ceased cooperating with the Government because he was having trouble remembering

details as the result of a combination of solitary confinement and repeated interrogation. 

At the resentencing hearing, however, Ressam

informed the district court that he “[retracted] almost

all the statements he had made in the past” against

two persons accused of terrorism in order to “cause

their cases to be dismissed.” Once again, the district

court imposed the same 22-year sentence that this

Court previously vacated because we could not

decide whether it was reasonable based on the record

of the original sentencing proceedings. In doing so,

the district court failed to provide any reasons for

rejecting the Government’s arguments tethered to

relevant § 3553(a) factors, including the value to be

given to Ressam’s early cooperation with the Government in view of his subsequent recantations and

the need to protect the public from Ressam’s potential to commit future terrorist crimes, as he will be

only 53 years old upon his release. Without such

explanations, we cannot conduct a meaningful

review under the abuse of discretion standard to

determine whether a sentence that is 43 years below

the advisory Sentencing Guidelines is substantively

reasonable, or whether a longer sentence is needed to

19782 UNITED STATES v. RESSAM
protect the public from future terrorist crimes by

Ressam.

Because the trial judge’s previously expressed

views appear too entrenched to allow for the appearance of fairness on remand, we direct that the case

be re-assigned to a different judge for resentencing.

ORDER

My dissenting opinion, which commences at slip op. 1877,

1949 [593 F.3d 1095, 1134 (9th Cir. 2010)] is hereby

amended as follows:

(1) Footnote 1 at slip op. 1949 [593 F.3d at 1134] is hereby

revoked and the following is substituted in its place:

The government has expressly conceded that the sole

issue on appeal is substantive reasonableness. That is

all we should consider. In part II of the opinion,

however, the majority, indicates that, despite the

government’s concession, it must and will take up

procedural error, but shrouds that determination with

a brume of words whereby it suggests that procedure

must be melded into the substantive reasonableness

determination. The result is a gallimaufry that, by

mistake or design, will (as it does here) require

courts to consider far more than substantive reasonableness, even when the parties raise only that. No

doubt that hodgepodge has contributed to the majority’s ultimate erroneous decision here. Unfortunately,

it is also a disagreeable gift to the law, and it will

keep on giving. 

(2) Footnote reference 11 is added at the end of the penultimate paragraph on slip op. 1951 [593 F.3d at 1135]. 

UNITED STATES v. RESSAM 19783
(3) Footnote 11 is added at slip op. 1951 [593 F.3d at 1135]

as follows:

Even if I were to agree with the majority on the sentencing issue itself, I could not agree with its decision to remove Judge Coughenour because I do not

see his approach to Ressam’s sentencing as either

indurate or inexplicable. I would not order transfer

of this complex, long-standing (over ten years) case

to a different district judge.

OPINION

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 coconspirators, Mokhtar Haouari. After providing assistance to

the Government for approximately two years, Ressam decided

to cease cooperating and began recanting his prior testimony.

19784 UNITED STATES v. RESSAM
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, 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 (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

(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 failure to explain

its reasons for rejecting the Government’s argument that a

longer sentence is needed to protect the public from future terUNITED STATES v. RESSAM 19785
rorist 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.

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. 

19786 UNITED STATES v. RESSAM
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 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. 

UNITED STATES v. RESSAM 19787
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

19788 UNITED STATES v. RESSAM
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 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, M/V COHO, at Tswassen, B.C. Before boarding

the ferry, a U.S. Immigration and Naturalization Service

inspector checked Ressam’s documentation and destination.

Ressam provided the inspector with a fraudulent Canadian

passport in the name of Benni Noris and stated that he was

heading to Seattle. Because the ferry was not the typical route

from Vancouver to Seattle, the inspector decided to search the

car. The inspector failed to check the hidden wheel well in the

trunk, however, and Ressam was allowed to board the ferry.

The M/V COHO arrived in Port Angeles, Washington later

that evening. Upon leaving the ferry, Ressam was questioned

by U.S. Customs Inspector Diane Dean. Inspector Dean

detected nervousness and directed Ressam to a secondary

inspection area. 

Ressam filled out a custom’s declaration form falsely, stating his name was Benni Norris 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. 

UNITED STATES v. RESSAM 19789
Believing the contraband to be narcotics, the inspectors did

not handle the items as carefully as one would handle explosives. As the inspectors reached into the wheel well to remove

the items, Ressam ducked down behind the protection of the

police car door.1 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.

Following his arrest, Ressam was indicted on nine counts

relating to his attempt to carry out an act of terrorism transcending a national boundary. The statutory maximum penalty for these offenses was 130 years in prison. 

Before trial, the Government offered Ressam a sentence of

25 years imprisonment in exchange for a guilty plea. The

Government considered the sentence offered to be a substantially discounted offer, taking into account the risk of litigation. Prior to trial, the Government characterized its evidence

with regard to Count One, Conspiracy to Commit an International Act of Terrorism Transcending National Boundaries,

1The following items were found in Ressam’s car: 

two lozenge bottles filled with primary explosives, one of which

contained hexamethylene triperoxide diamine (HMTD) and the

other of which contained cyclotrimethylene trinitramine (RDX);

10 plastic bags of approximately 118 pounds total of urea in fine

white powder form, which is a fertilizer that, when nitrated, can

be used as a fuel in explosives; 2 plastic bags of about 14 pounds

total of a crystalline powder determined to be aluminum sulfate;

two 22-ounce olive jars each filled approximately 3/4 full of a

golden brown liquid covered with a sawdust like substance,

which liquified was determined to be an explosive, etheylene glycol dinitrate (EGDN). Also discovered with these chemicals were

four timing devices, comprised of small black boxes which each

contained a circuit board connected to a Casio watch and ninevolt battery connector. Tests later confirmed that the timing

devices were operational. Ressam’s fingerprints and hair were

found in some of the timing devices. 

Government’s Ex Parte Motion and Order re: Letters Rogatory, March 3,

2000. 

19790 UNITED STATES v. RESSAM
the most serious charge and the one that carried the most

weight, as very thin. The Government was concerned about

its ability to prove what Ressam intended to do once he

crossed the border, using a phony passport and carrying over

100 pounds of explosives. It was in fact not until during trial,

that some of the most important evidence was developed with

regard to what Ressam intended to do with the explosives.

Ressam rejected the pre-trial plea offer of 25 years. 

In preparing its case for trial, the Government enlisted the

services of judicial and law enforcement agencies from several other countries. Due to the unavailability of certain law

enforcement witnesses in Canada, and the fact that certain

other witnesses expressed fear of testifying against Ressam at

trial, the district court granted the Government’s motion to

take foreign depositions in Canada. Order of District Court

granting Government’s motion for foreign depositions, June

23, 2000. Due to possible prejudice by public sentiment in the

Seattle area, the trial judge granted Ressam’s motion to transfer the site of the trial to Los Angeles. On April 6, 2001, following a 19-day trial involving approximately 120 witnesses

and over 600 exhibits, a jury convicted Ressam on all counts.

The sentence exposure for these convictions under the thenmandatory Sentencing Guidelines was 65 years to life.

B

On May 4, 2001, prior to sentencing, counsel for Ressam

informed the United States Attorneys’ Office that Ressam

wished to cooperate with it and law enforcement authorities

in the investigation of terrorist activities. On May 10, 2001,

Ressam began meeting with Government agents in an attempt

to cooperate. Ressam’s position was that the United States

Attorney should agree upon a sentencing range of 10 to 15

years in prison in exchange for his cooperation. On June 22,

2001, the United States Attorney responded to Ressam’s offer

with a letter agreement memorializing the parties’ understanding that Ressam would cooperate with law enforcement “in

UNITED STATES v. RESSAM 19791
hopes of earning a motion for a downward departure [in his

sentence] pursuant to U.S.S.G. 5K1.1.” Ressam signed the

agreement the next day. The cooperation agreement required

Ressam’s full compliance with the terms of the agreement, his

full cooperation with designated agencies, and his truthful testimony before the grand jury, and in other court proceedings

with respect to any matters as requested by the U. S. Attorney’s Office for the Western District of Washington or the

Southern District of New York, including but not limited to

the trial of his accomplice and co-conspirator Mokhtar Haouari and any future prosecutions brought in connection with

the participation by Ressam and others in Canada, Afghanistan, and elsewhere in a conspiracy to kill United States

nationals.

In exchange, the United States Attorney agreed to file a

5K1.1 motion asking the judge for a downward departure

from the then-mandatory Sentencing Guidelines. Id. The parties agreed that neither side would request a sentence less than

27 years imprisonment. Id.

Between May 10, 2001 and September 11, 2001, Ressam

met with Government agents approximately 22 times. On July

5, 2001 and July 6, 2001, Ressam testified as a prosecution

witness at the trial of his co-conspirator, Mokhtar Hauoari.

The evidence at Haouari’s trial established that he conspired

with Ressam and Abdelghani Meskini to support Ressam’s

terrorist plot to bomb LAX. United States v. Mokhtar Haouari, S4-00-cr-15, 2001 WL 1154714, at *2-4 (S.D.N.Y. Sept.

28, 2001). Hauoari supported Ressam by recruiting Meskini

to assist Ressam in the United States, and by providing him

with money, a credit card and false identification. Meskini

pleaded guilty and also testified against Hauoari. Under the

terms of Meskini’s plea agreement, he received six years

imprisonment. Hauoari was sentenced to 24 years in prison,

two years short of the statutory maximum. 

On July 2, 2001, based almost entirely upon information

provided by Ressam, the United States Attorney for the

19792 UNITED STATES v. RESSAM
Southern District of New York filed a complaint against Abu

Doha, a major player in the arena of terrorist activity. Ressam

was aware that the success of the Government’s attempts to

extradite Doha from England depended exclusively upon a

comprehensive declaration provided by Ressam. 

After the terrorist attacks that occurred on September 11,

2001, Ressam identified Zacarias Moussaoui from a photograph as an individual he had met at the Khalden training

camp. Ressam also provided information that assisted law

enforcement in determining that the shoe confiscated from

Richard Reid, the so-called “Shoe Bomber,” was a complete

device that needed to be disarmed before being put on a plane

for transport to a lab for analysis. 

Relying on Ressam’s continued cooperation, on October

26, 2001, the United States Attorney for the Southern District

of New York filed a complaint against Samir Ait Mohamed.

Ressam was aware that he would figure as a prominent Government witness in that case. 

By November 28, 2001, six months after entering into the

cooperation agreement with the United States Attorney, Ressam began showing reluctance to discuss certain matters. FBI

Special Agent Humphries, who worked with Ressam from the

commencement of his cooperation with the Government, testified that in a June 23, 2001 interview, Ressam had talked

with him at length about Nacer Hamaidi, an individual in

Vancouver, British Columbia, who had assisted Ressam in:

obtaining fraudulent Canadian social security numbers; driving Ressam to the DMV for the purpose of obtaining a driver’s license in a fraudulent name, the Benni Antoine Noris

name; driving him to the Royal Bank, where he opened an

account under the Benni Antoine Noris name; driving Ressam

to the downtown Vancouver business licensing office where

he was able to apply for and obtain the Benni import/export

license. Ressam explained to Agent Humphries that Hamaidi

advised him on an individual living in Alberta, Canada, who

UNITED STATES v. RESSAM 19793
worked for the DMV, which is privatized in Alberta, and who

for a sum of $500 furnished Mr. Ressam with a true Alberta

driver’s license in the name Benni Antoine Noris. That license

was subsequently surrendered to the Quebec driver’s license

authority to obtain a Quebec driver’s license in that name.

Hamaidi knew that Ressam had been to the training camps

because he drove him to the bus station the night he left Canada to go to Afghanistan for training. And he was the first

person in Vancouver Ressam met and called upon when he

came back into North America from Afghanistan training

camps. 

This information was passed on to Canadian authorities

who were critically interested in trying to ensure that they

could identify individuals who may be in a position to assist

criminals intent on carrying out attacks upon the United

States. When officers from the Royal Canadian Mounted

Police (“RCMP”) traveled to the United States to interview

Ressam in late 2001 in connection with their ongoing investigation of Nacer Hamaidi, however, Ressam had decided that

he would no longer discuss Hamaidi. Agent Humphries testified that the RCMP officers were disappointed that Ressam

was not staying consistent with information he had previously

provided. Agent Humphries intervened and spoke to Ressam

but Ressam did not want to discuss Hamaidi. Agent Humphries testified that this was the first time there was a disconnect

in the rapport with Ressam. 

Between September 11, 2001 and February 11, 2002, Ressam met with Government agents on approximately 15 occasions, including his participation in a deposition hearing in

New York related to prosecutions taking place against criminal defendants in Germany. On February 11, 2002, nine

months after Ressam began his cooperation with the Government, Ressam’s counsel met with members of the United

States Attorneys’ Office and sought to renegotiate the terms

of the parties’ cooperation agreement. According to Ressam’s

counsel, he was suffering from anxiety related to his impend19794 UNITED STATES v. RESSAM
ing sentence, his conditions of confinement were compromising his physical and mental well-being, and he wanted

closure. The prosecution responded to Ressam’s complaint

about the conditions of his confinement in the FDC SeaTac

Special Housing Unit by reminding him that these conditions

were influenced by the nature of his criminal acts and the serious charges for which he now stands convicted. The prosecution offered to assist Ressam in getting into the Witness

Security Program, designed for prisoners in federal custody,

which could result in a less onerous housing situation for Ressam, albeit at some distance from Seattle. Ressam declined to

take the prosecution’s offer.

In response to Ressam’s request to renegotiate the terms of

his cooperation agreement, the prosecution stated that Ressam’s cooperation to date was not of a nature to lead them to

consider dissolving the 27 year sentence recommendation

floor. The prosecution also noted that based on the cooperation to date, they would not recommend a sentence in the 27

year range. The prosecution stated, however, that its final recommendation would reflect Ressam’s further efforts to cooperate in future debriefing sessions and in providing testimony.

Considering Ressam’s sentencing exposure, the prosecution

added that it was in Ressam’s interest to fulfill his promised

cooperation and earn a departure motion. 

The district court granted several sentencing continuances

to allow Ressam to cooperate further with the Government.2

2Ressam was originally scheduled to be sentenced on June 28, 2001. On

June 18, 2001, just prior to Ressam entering into the cooperation agreement with the prosecution, the district court continued the sentencing to

July 25, 2001. On July 5, 2001, the district court continued Ressam’s sentencing to September 20, 2001. On September 7, 2001, sentencing was

continued to February 14, 2002. On December 13, 2001, sentencing was

continued to April 3, 2002. On December 19, 2001, sentencing was rescheduled for March 29, 2002. On March 13, 2002, the prosecution moved

for a nine-month continuance to allow Ressam “the opportunity to fulfill

the terms of his promised cooperation.” Ressam did not object to the prosecution’s request for a nine-month continuance. The district court continued the sentencing to March 13, 2003. It was later rescheduled to February

26, 2003. 

UNITED STATES v. RESSAM 19795
Ressam continued cooperating until early 2003. Over the

course of his two-year cooperation, he provided 65 hours of

trial and deposition testimony, and 205 hours of proffers and

debriefings. Ressam provided information to the governments

of seven different countries and testified in two trials, both of

which ended in convictions of the defendants. He provided

names of at least 150 people involved in terrorism and

described many others. He also provided information about

explosives that potentially saved the lives of law enforcement

agents, and extensive information about the mechanics of

global terrorism operations. 

On February 19, 2003, the prosecution filed a motion for a

continuance of Ressam’s sentencing and requested an

adjournment pursuant to the terms of his cooperation agreement with the Government. The prosecution argued that the

request was reasonable and pointed out that Ressam’s coconspirator, Abdelghani Meskini, another cooperating defendant who pleaded guilty and testified against Ressam at trial,

was continuing to provide the Government with valuable

information, and there were no plans to sentence him any time

soon. The prosecution reminded the district court that it had

offered over a year earlier to transfer Ressam to another

prison to address the adverse impact his conditions of confinement may be having on his state of mind, but his counsel

had objected to such a transfer. The prosecution further

informed the district court that, relying on Ressam’s promise

to cooperate, Abu Doha had been ordered extradited by the

Magistrate Court in London to the United States for prosecution. Also relying on Ressam’s promise to cooperate, the

Government was in the process of extraditing Samir Ait

Mohamed from Canada. The prosecution stated in its motion

that it had not yet decided on its position with respect to a

§ 5K1.1 motion and that if forced to make a motion now, the

prosecution would likely make a sentencing recommendation

calling for a considerably longer period of incarceration that

we might if Ressam had completed his promised cooperation.

19796 UNITED STATES v. RESSAM
On February 26, 2003, the district court held a hearing on

the prosecution’s motion for a continuance. At the hearing,

the district court asked the prosecution how it would respond

if the court were to grant their continuance conditioned upon

the immediate filing of a 5K motion for a downward departure based upon Ressam’s cooperation. That same day, the

prosecution filed a motion pursuant to U.S.S.G. Section

5K1.1, seeking a sentence below the otherwise applicable

guideline range based on Mr. Ressam’s substantial assistance

in the case of United States v. Mokhtar Haouari, a matter

prosecuted in the Southern District of New York in the summer of 2001. Haouari, 2001 WL 1154714, at *2. The district

court set a status conference for October 2003.3 Despite the

§ 5K1.1 motion, however, Ressam indicated he was unwilling

to continue cooperation. By April 2003, he refused to provide

a written statement to British officials concerning an individual who was a member of his own terror cell. 

Concerned about Ressam’s state of mind and demeanor, in

October 2003 Ressam’s counsel consulted with Dr. Stuart

Grassian, a Board-certified psychiatrist specializing in evaluating the psychological effects of stringent conditions of

imprisonment. Dr. Grassian met with Ressam in November

2003 and concluded that his conditions of confinement played

a very significant role in explaining the deterioration of his

state of mind. In February 2004, Dr. Grassian met in New

York City with Ressam’s counsel, members of the United

States Attorneys’ Office, and behavioral science experts from

the FBI. It was decided that Ressam would be moved to a

prison environment that would afford him much more environmental, social, and occupational stimulation. The transfer

was effected in June 2004. Dr. Grassian met with Ressam

again in October 2004 and observed that he appeared to be

much less tense, more relaxed, and his thinking was strikingly

3The scheduled status conference was continued several times and

finally occurred on July 9, 2004. On that date, sentencing was scheduled

for February 17, 2005. It was later continued to April 27, 2005. 

UNITED STATES v. RESSAM 19797
clearer. Dr. Grassian reported that Ressam realized that he

had made a solemn promise to cooperate, and that his refusal

to continue to testify and speak with the Government could

likely have serious adverse consequences in regard to his sentence and his custody status. Nevertheless, by November

2004, Ressam’s counsel made it clear that his cooperation was

finished and that he wanted to be sentenced. 

A sentencing hearing was held on April 27, 2005. The parties each filed sentencing memoranda. Contrary to the terms

set forth in the June 23, 2001 cooperation agreement, Ressam

requested a sentence of 150 months imprisonment. Ressam’s

position was that the starting point should be the prosecution’s pre-trial plea offer of 25 years, rather than the Sentencing Guidelines range of 65 years to life. The prosecution

recommended a sentence of 35 years imprisonment, arguing

that by breaching his agreement with the United States Attorneys’ Office, Ressam had effectively terminated at least two

criminal cases of vital interest to national security. 

The prosecution acknowledged that Ressam had provided

valuable assistance to the United States and to foreign authorities. For that reason, despite Ressam’s breach of the cooperation agreement, the prosecution recommended a 35-year

sentence, which was a substantial reduction from the 65 year

bottom of the otherwise applicable Guidelines range that Ressam would face absent cooperation. 

Agent Humphries, who was involved throughout the duration of Ressam’s cooperation, testified concerning the information received from Ressam and its usefulness. Agent

Humphries stated that Ressam’s information was helpful in

that it provided a personal account of his matriculation from

North America through Europe to Pakistan through safehouses into Afghanistan. Agent Humphries testified that most

of the information Ressam provided to the FBI had previously

existed within the U.S. intelligence community in classified

realms, but Ressam served as an unclassified vehicle, which

19798 UNITED STATES v. RESSAM
the FBI could use to relay the previously classified information to other law enforcement and intelligence services

throughout the world. Additionally, the prosecution filed a

summary of debriefings, proffers, and testimony provided by

Ressam in support of the sentencing memorandum to be filed

by Ressam on a later date. 

At the sentencing hearing, Ressam argued that his cooperation was worth a greater reduction in his sentence. Ressam

argued that he ceased cooperating, in part, because he was

having trouble remembering details. Ressam submitted a psychiatric report prepared by Dr. Grassian wherein he opined

that the combination of solitary confinement and repeated

interrogations had a negative impact on Ressam’s mental

health. Dr. Grassian further stated that Ressam’s history provided strong evidence that he would not be a danger to our

community. Dr. Grassian also noted in his report that Ressam

wondered if the Government might be willing to let him live

in the United States after his release from prison. Relying on

Dr. Grassian’s report, Ressam argued that he was experiencing some very serious cognitive issues. 

In assessing Ressam’s cooperation, the district court commented that the United States Attorney’s pre-trial offer of a

sentence of 25 years “might have some relation to the posttrial assessment of the case with a level of cooperation.” Sentencing Hr’g Tr. at 15, April 27, 2005. 

The district court stated to Ressam’s counsel: 

One of the things that baffles me, Mr. Hillier, is I

made it clear in an in-chambers conference with you

and the government that I wanted to be able to give

Mr. Ressam as much credit as I could for cooperation. And that, what happened between that session,

which was a month ago or a few weeks ago, and the

time of this sentencing, could be translated into years

of time. And I’m mystified that he insists upon going

UNITED STATES v. RESSAM 19799
ahead with the sentencing today, rather than waiting

to see what happens with Doha and the Canadian

case. Can you shed any light on that, without violating your privilege? 

Id. at 106-07. The district court also commented that “it

strikes me that a lot of the details that he’s not remembering

now are things that one would not forget.” Id. at 109. At the

district court’s urging, Ressam asked for a three-month continuance of the sentencing hearing to allow him to consider

whether he was willing to cooperate further in the prosecutions of Doha and Mohamed. The prosecution objected, arguing that Ressam should decide then and there whether he was

willing to cooperate fully, and that it was disingenuous to

believe that his memory would suddenly improve. The district

court concluded that Ressam’s reaction to the request for continued cooperation suggested “there’s reason for optimism

that his cooperation will improve.” Id.

On July 27, 2005, the district court held a sentencing hearing and heard argument from both sides, which largely mirrored the arguments presented at the April 27, 2005 hearing.

The Court sentenced Ressam to 22 years imprisonment. 

Ressam appealed from his conviction for carrying an explosive during the commission of a felony. United States v. Ressam, 474 F.3d 597 (9th Cir. 2007). In a cross-appeal, the

prosecution challenged Ressam’s sentence as unreasonable in

light of his decision to cease cooperating and to recant his

prior statements. Id. This Court reversed the conviction for

carrying explosives during the commission of a felony,

vacated Ressam’s sentence, and remanded for resentencing,

without addressing the merits of the prosecution’s arguments

as to the reasonableness of the sentence.4Id. The United

4This Court vacated the sentence on the ground that the reversal of the

conviction for Count Nine would require a new sentencing hearing. Ressam, 474 F.3d at 604. It declined to address the merits of the Govern19800 UNITED STATES v. RESSAM
States Supreme Court reversed this Court’s decision that the

prosecution had failed to prove each of the elements of the

crime of carrying explosives during the commission of a felony. United States v. Ressam, 128 S. Ct. 1858 (2008). On

remand, this Court vacated the sentence and remanded for

resentencing because the district court had failed to determine

the applicable Guidelines range, as required under United

States v. Carty, 520 F.3d 984 (9th Cir. 2007) (en banc), cert.

denied sub nom. Zavala v. United States, 128 S. Ct. 2491

(2008). United States v. Ressam, 538 F.3d at 1167 (9th Cir.

2008). 

C

While the matter was on appeal, on November 11, 2006,

Ressam sent a letter to the district court recanting the testimony he provided in the trial of Haouari. Ressam stated:

I write this letter to you in regard to “the allegation”

of the prisoner “Mr. Hassan Zamiry” [also spelled

Ahcene Zemiri] who is in Guantanamo prison in the

Island of Cuba.

ment’s argument as to the reasonableness of Ressam’s sentence in part

because: 

the law applicable to sentencing is in flux. We are rehearing two

cases en banc, United States v. Carty, 453 F.3d 1214 (9th Cir.

2006) reh’g en banc granted, 462 F.3d 1066 (9th Cir. 2006), and

United States v. Zavala, 443 F.3d 1165 (9th Cir. 2006) reh’g en

banc granted, 462 F.3d 1066 (9th Cir. 2006), and the United

States Supreme Court has granted writs of certiorari in Claiborne

v. United States, 127 S. Ct. 551 (Nov. 3, 2006) (No. 06-5618),

and Rita v. United States, 127 S. Ct. 551 (Nov. 3, 2006) (No. 06-

5754), which will have a good deal to say about the sentencing

process in the wake of United States v. Booker, 543 U.S. 220

(2005). 

Id. 

UNITED STATES v. RESSAM 19801
The allegation: Is that Mr. Hassan Zamiry had

provided aid and support for the operation I carried

out. This is not right, it is false. 

. . .

When I dealt with Prosecutor at the beginning, I

was in shock and had a severe psychological disorder as I result [sic] of the court results. I was not sure

about m[y] statements. 

. . . 

Mr. Hassan Zamiry is innocent and has no relation

or connection to the operation I was about to carry

out. He also did not know anything about it and he

did not assist me in anything.

Ressam had previously claimed that Ahcene Zemiri provided

him money and a video camera to aid in Ressam’s plot, and

that Zemiri was going to assist him in an armed robbery that

was to be committed in Montreal to obtain funds for the plan.

When Ressam began cooperating with the Government,

Zemiri fled from Canada and was later captured in Afghanistan and brought to Guantanamo as a prisoner based, at least

in part, on Ressam’s statements. Zemiri’s habeas petition is

pending before the United States District Court for the District of Columbia. See Zemiri v. Obama, No. 04-cv-2046

(D.D.C. filed Nov. 19, 2004).

Similarly, in a letter dated March 28, 2007 to the United

States Attorneys’ Office, Ressam purported to recant his previous testimony against Haouari. In the letter, Ressam claims

that he was not mentally competent when he testified against

Haouari and that Haouari “is an innocent man.” Haouari v.

United States, 510 F.3d 350, 352 (2d Cir. 2008). Haouari submitted Ressam’s letter as “newly discovered evidence” sufficient to warrant the filing of a second or successive 28 U.S.C.

19802 UNITED STATES v. RESSAM
§ 2255 motion. Id. Haouari’s motion pursuant to § 2255 was

denied. Id.

D

At the resentencing hearing, the district court began by calculating the applicable Sentencing Guidelines range for Ressam’s crimes of conviction at 65 years to life, including a tenyear mandatory prison sentence for Count Nine. Before

imposing its sentence, the district court heard from the parties

regarding the sentence it should impose in conformity with

this Court’s mandate. 

Appearing in pro se, Ressam told the district court that he

wished to recant his testimony against his co-conspirator

Maktar Haouari, and all statements made before the grand

jury implicating Abu Doha and Samir Ait Mohamed, two

known terrorists considered to be “major players” in the alQaeda network. Ressam made the following statement before

the district court at his sentencing hearing:

I suffered severe shock after the trial and I lost my

mental faculty and I did not know what I was saying.

The government attorney and the investigator, they

know about my mental condition that I was going

through, and about my mental faculty and the procedure exposed to their own interests. They interpret

some of my statements to suit their interests. And the

statements that was put in my mouth, which I said

yes, because — due to the extreme mental exhaustion I was going through. I also am subject of pressure put upon me by the attorneys and the

investigators.

The evidence presented in court should be

obtained from a solid source that cannot be doubted.

But if the evidence and the statements are obtained

from dubious sources or under pressure of a threat or

UNITED STATES v. RESSAM 19803
from a mental incompetent source it should not be

admitted. And that is the situation I was in.

I sent in the past a letter to the government attorney Joe Bianco, in which I retrieved all my statements that I gave in the investigation in the past; all

those I gave during the testimony of Makhtar Haouari in the New York court because I neither proceed

my mental faculties [sic] or I know what I was saying. 

The New York judge was suspicion of my letter,

and he thought that I was doing that because — and

I did not because in order — He thought that I was

doing that because I had nothing to lose and because

I was already tired [sic]. I did not that in order to win

or lose. First, I did that because I was not mentally

competent and I did not know what I was saying.

Second, I did that because — in the presence of that

judge. I retract all. I repeat, all of the statements that

I made in the past and do not want my word counted

in my trial. So sentence me to life in prison or as you

wish. I have no objection to your sentencing. 

I want from you and from the New York justice

to take another look as to Mokhtar Haouari case.

Sentencing should set when the evidence at hand is

absolute, and look if the evidence is in doubt it

would be preferable to rescind the decision. I go to

different subject.

I will move to case about Abu Doha and Samir

Mohamed. Previously the government attorney called me, Bruce, about to testify in the case of Abu

Doha and Samir Mohamed in front of a jury in New

York. At the beginning I refused, and then I accept

because I could not find an alternative to that. And

19804 UNITED STATES v. RESSAM
also in order to appear at the earliest possible time in

court for my sentencing. 

The later reason will affect the case of Abu Doha

and Samir Mohammed and cause their cases to be

dismissed in America. 

When I appeared in front of the jury in New York

I retrieved almost all the statements I made in the

past as to Abu Doha and Samir Mohammed. I indicate in my earlier statement because I did not know

what I was saying.

Sentencing Hr’g Tr. at 10-11, December 3, 2008. Ressam

concluded by stating that he had nothing to say about his trial

and asked the district court to “[s]entence me to life in prison

or anything you wish. I will have no objection to your sentence.” Id. at 12.

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. The prosecution argued

that the sentence imposed needs “to protect the public from

further crimes of the defendant.” It also stated:

Ressam’s arrest on December 14, 1999, was not

the result of a sudden lapse of judgment. It was the

culmination of years of planning and work, all aimed

at causing as much harm to the United States as he

could possibly inflict. Following his conviction in

April 2001, Ressam claimed that after he observed

the fairness with which the Court treated him

throughout the trial, he had a change of heart [and

that] he was “firmly against” terrorist operations in

America and around the world.

UNITED STATES v. RESSAM 19805
Ressam’s change of heart was short-lived. Ressam

has provided no indication that he has repudiated the

goals of terrorists to inflict harm on the United

States. His decision to end cooperation raises the

specter that he continues to pose a real and serious

threat to the United States. Ressam’s more recent

decision to affirmatively help identified terrorists

escape responsibility for their actions raises even

more serious concerns. At this point in time, this

Court [must] address the most fundamental question:

at what age would Ressam no longer pose a threat to

the people of the United States. 

Government’s Sentencing Br. at 23-24, November 28, 2008.

In this same vein, in addressing Ressam’s challenge to the

enhanced criminal history score required under U.S.S.G.

§ 3A1.4, the prosecution urged the district court to consider

that “all of the crimes of which Ressam was charged and convicted were directed at achieving his goal of placing a bomb

at [LAX].” As the prosecution pointed out in its sentencing

memorandum: 

Congress and the Sentencing Commission had a

rational basis for concluding that an act of terrorism

represents a particularly grave threat because of the

dangerousness of the crime and the difficulty of

deterring and rehabilitating the criminal, and thus

that terrorists and their supporters should be incapacitated for a longer period of time.

Id. at 19 (citing United States v. Meskini, 319 F.3d 88, 92 (2d

Cir. 2003) (emphasis added)).5 The prosecution argued that

the district court should 

5

In Meskini, the Second Circuit addressed the question whether the provision of the Guidelines increasing both the offense level and the criminal

history category for a felony involving an act of terrorism violated

Meskini’s right to due process by impermissibly “double counting” the

19806 UNITED STATES v. RESSAM
impose a sentence that affords adequate deterrence

for criminal conduct and protects the public from

further crimes of this defendant. 

The unfortunate reality of today’s world, made so

abundantly clear last week in Mumbai, is the possibility of future terrorist attacks is a continuing and

genuine threat. The sentence this Court imposes on

Mr. Ressam must not only act as a deterrent to Mr.

Ressam and his future actions, but equally important

they must also act as a deterrent to future potential

terrorists who are contemplating actions against the

United States. It must broadcast the clear message to

extremists that when they are caught and convicted

they will suffer serious consequences.

During the 2005 sentencing this Court noted that

this was probably the most significant sentence anybody ever faced in your long tenure on the bench. I

assume as we sit here three years later your opinion

hasn’t changed. I fully agree with the Court’s assessment. The Court must send this defendant away for

a long enough period of time so that there is no

chance he will ever target innocent victims again.

In addition, the sentence must also send an

unequivocal message to extremists that there is a

same criminal act. The Second Circuit rejected the claim. The Second Circuit explained that: 

Congress and the Sentencing Commission had a rational basis for

creating a uniform criminal history category for all terrorists

under § 3A1.4(b), because even terrorists with no prior criminal

behavior are unique among criminals in the likelihood of recidivism, the difficulty of rehabilitation, and the need for incapacitation. 

Id. (emphasis added). 

UNITED STATES v. RESSAM 19807
horrendous price to pay for targeting the United

States . . . .

The Court’s July 2005 sentence, if reimposed,

would mean that this defendant would be released in

ten years, he would be out of jail in 2018. He would

be 51 years of age. Think about the defendant’s life

prior to the arrest in this case, his fanatical commitment to jihad, his single-minded pursuit to attack the

United States. Think about his recent decisions to

help Abu Doha, Samir Mohamed, his most recent

decision to affirmatively help Hassam Zemiri and

Adil Charkaoui, and as of today his attempt to withdraw even his cooperation in the trial against Haouari. 

Sentencing Hr’g Tr. at 30-31, December 3, 2008. In its sentencing memorandum, the prosecution summarized the value

of Ressam’s cooperation generally as 

providing testimony in the prosecutions of individuals charged before he began his cooperation (such as

the testimony he provided during the trial of Mokhtar Haouari), providing information about explosive

devices that was very helpful in determining the

nature of the device found in Richard Reid’s shoe

and providing information that corroborated the

information already known by the United States and

foreign governments. 

To be sure, the information about trade craft, terrorism organizations, and training camps that Ressam provided was in an unclassified form. Thus this

information could be broadly disseminated to law

enforcement officers both in the United States and

abroad in order to broaden their base of knowledge.

While this was of significant value, the information

provided was not unique to Ressam.

19808 UNITED STATES v. RESSAM
Perhaps his most valuable information — that

leading to the charges against Doah and Mohamed

— cannot be credited. Ressam undermined that

value when he chose to end his cooperation leading

to the dismissal of these charges. . . . [H]e also

undermined his other cooperation by recanting earlier statements.

Government’s Sentencing Br. at 17-18, November 28,

2008. 

At the December 3, 2008 sentencing hearing, the Government explained that Ressam’s recantation of his prior statements regarding his terrorist training and the activities of

other terrorists, and his decision to cease cooperating, forced

the Government to dismiss criminal charges against Doha and

Mohamed. The prosecution explained that as a high-ranking

al Qaeda member with close ties to Osama Bin Laden, Abu

Doha is, without question, one of the most dangerous terrorists ever charged by the United States. After the dismissal of

the charges against Doha in the United States, he was released

from custody and is currently living in England. 

The prosecution argued that Ressam’s recantation represents his attempts to affirmatively assist known terrorists and

is a strong signal to any objective observer that Ressam’s

long-held allegiance to radical terrorist beliefs have returned,

and that he once again unequivocally is a danger to innocent

people throughout the world. The prosecution also argued that

Ressam’s sentence should reflect the seriousness of the terrorist offenses for which he was convicted, and “send the defendant away for a long enough period of time so there is no

chance he will ever target innocent victims again.” 

The prosecution pointed out that in response to the sentence

of 22 years the district court ordered in its earlier sentencing

order, Ressam has since recanted his earlier statements made

pursuant to the cooperation agreement with the United States

UNITED STATES v. RESSAM 19809
Attorneys’ Office. After Ressam recanted, the Government

argued that if it had “known in May of 2001 what [it] know[s]

today, how this was going to end up, [it] never would have

entered into cooperation with this defendant. Any benefit he

provided [the Government] initially has been substantially

outweighed by his reversal, and [he] now attempts to use his

position as a cooperating defendant to help his fellow terrorists.”

After hearing from the parties, the district court ordered as

follows:

The Ninth Circuit has made clear that the Sentencing Guidelines are only one factor to be considered

among those factors set forth in 18 U.S.C. Section

3553(a), in determining an appropriate sentence. I

may not presume that the Guidelines range is reasonable. Nor should the Guidelines factor be given more

or less weight than any other factor. Accordingly, I

have also considered the other Section 3553 factors

in arriving at the sentence I am imposing today.

On the one hand I recognize the need for the sentence imposed to reflect the seriousness of the

offenses Mr. Ressam has committed, to provide just

punishment for those offenses, and to promote

respect for the law. Mr. Ressam’s crimes, if carried

to their intended conclusion, would have resulted in

the deaths and injuries of hundreds of innocent people and instilled fear across the country and even the

world. Fortunately, Mr. Ressam’s arrest prevented

such an outcome. Because of the work of an attentive Port Angeles Customs Inspector, Mr. Ressam’s

crimes did not lead to loss of life or limb, nor

destruction of property. Nevertheless, the seriousness and heinousness of the act of terrorism Mr. Ressam was carrying out at the time of his arrest cannot

be understated.

19810 UNITED STATES v. RESSAM
On the other hand, I recognize Mr. Ressam’s

extensive and valuable cooperation in the fight

against terrorism during the first two years after his

trial. Although it ended unwisely and prematurely,

Mr. Ressam’s cooperation, unique in its breadth and

scope, weighed heavily in my initial sentencing decision and its import has not changed in my analysis

today. The government’s 5K1.1 motion filed in February 2003 requested downward departure from the

Sentencing Guidelines based on Mr. Ressam’s substantial assistance in the case of United States versus

Mokhtar Haouari, a matter prosecuted in the Southern District of New York in the summer of 2001 and

resulting in the conviction of Mr Haouari.

Mr. Haouari was sentenced in 2002 to a term of

24 years’ imprisonment. Mr. Ressam’s testimony at

the trial connected Mr. Haouari to the terrorist plot,

of which Mr. Ressam himself was a part, to bomb

the Los Angeles International Airport on New

Year’s Day 2000. In addition to his substantial cooperation in that case Mr. Ressam also testified before

a German tribunal on behalf of the German government in the trial against Mounir Motassadeq . . . .

[i]n December 2002, which resulted in a conviction

and sentence of 15 years.

The Court recognizes that Mr. Ressam’s later

decision to end his cooperation resulted in the dismissal of two pending prosecutions and the retraction of certain of his statements against two other

terrorist suspects. However, Mr. Ressam’s cooperation, while it lasted, provided the United States government and the governments of Great Britain,

Spain, Italy, Germany, France and Canada extensive

intelligence that proved to be invaluable in the fight

against international terrorism. The defendant’s sentencing memorandum submitted before the July

UNITED STATES v. RESSAM 19811
2005 sentencing hearing summarizes the farreaching impact of Mr. Ressam’s cooperation on the

investigations and prosecutions of terrorist activities

in this country and abroad. 

Downplaying the cooperation that Mr. Ressam

provided the government would diminish the likelihood of future cooperation by other apprehended terrorists. Further, doing so would not be fair to Mr.

Ressam. After his trial he told me that the fairness of

his trial was not what he expected, given what he

had done. The fair treatment that Mr. Ressam

received in his public trial was a major influence on

his decision to break with his past and cooperate, a

choice that undoubtedly saved innocent lives. In

making that decision, he put his own life at risk. In

addition, he has spent many years in solitary confinement in a country far from his family and loved

ones and will, by any measure, be sacrificing a large

portion of his life to pay for his crimes.

I believe that the sentence I am imposing today

will serve as a deterrent while promoting respect for

the American rule of law by demonstrating the fairness of our federal court system rather than merely

its punitiveness.

In addition, I have taken into account Mr. Ressam’s history and characteristics. Reading Mr.

Hilier’s 2005 sentencing memorandum and the

report from Dr. Grassian leads me to the conclusion

that Mr. Ressam’s life history and personal characteristics support favorable sentencing consideration.

His life and reasons for involvement in his crime do

not support a conclusion that he is a good person, but

it also deserves consideration. Mr. Hilier describes a

quiet, solitary and devout man whose true character

is manifest in his decision to cooperate. Through the

19812 UNITED STATES v. RESSAM
course of the trial and immediately thereafter, Mr.

Ressam wrestled with what he had done and why. As

Mr. Hilier put it, Mr. Ressam determined that violent

action brought shame to the concerns he was trying

to promote, and that as a result what he was doing

was harmful in all respects.

I have also taken into account the nature of Mr.

Ressam’s crimes required that he be held in solitary

confinement for upwards of four years, if not for the

likely entirety of his sentence. This isolation is exacerbated by the fact that he does not speak English

and has no opportunity for visits by friends and family abroad. These harsh conditions of confinement

necessarily set Mr. Ressam’s situation apart from

that of the typical criminal sentencing. I am also persuaded that Mr. Ressam’s health deteriorated somewhat from the isolation of his confinement and that

the repetitive, intensive questioning to which he submitted, and that these conditions contributed to the

early termination of his cooperation.

Moreover, I have considered the need to avoid

unwarranted sentence disparities among defendants

with similar records who have been found guilty of

similar conduct.

Sentencing Hr’g Tr. at 35-38, December 3, 2008. 

The district court discussed “other terrorism-related prosecutions around the country,” and “a recent study of 124 defendants sentenced in terrorism trials in American federal courts

since September 12, 2001” which concluded that “the average

term of imprisonment was a little over eight years.” Id. at 39.

The district court stated that these cases “did not influence

[its] decision in determining an appropriate sentence in this

case.” Id. The district court discussed sentences in other terrorist cases, none of which involved attacks, or attempted

UNITED STATES v. RESSAM 19813
attacks within the United States, “to provide a backdrop

against which Mr. Ressam’s conviction and sentence may be

viewed.” Id. The court explained:

I note that none of the defendants in these cases

cooperated as extensively, providing as much valuable information to the fight against terrorism as Mr.

Ressam did. As I emphasized earlier, Mr. Ressam’s

cooperation provided authorities in this country and

abroad with an unprecedented view of the inner

workings of al Qaeda that almost certainly thwarted

future attacks. In fact, it was the extent of Mr. Ressam’s cooperation in the conviction of one of his coconspirators that resulted in the government filing a

5K1.1 motion, specifically requesting that Mr. Ressam be sentenced below the applicable guideline

range.

Therefore, based on all the factors listed in 18

U.S.C. Section 3553, I hereby reimpose a sentence

of 22 years and a period of supervised release of five

years subject to the standard conditions, together

with those additional conditions set forth in the presentence report. I recognize that the sentence I am

imposing reflects a significant downward deviation

from the advisory guideline range. However, I

believe the factors I have examined on the record are

sufficiently compelling to support the degree of the

variance.

Id. at 41-42.

II

The Government appeals the sentence imposed on Ressam

by the district court. It argues that “[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

19814 UNITED STATES v. RESSAM
case and the factors set forth in 18 U.S.C. § 3553(a).”

6

(Appellant’s Opening Br. 36.) Specifically, the Government

6Title 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 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). 

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 (citing 18 U.S.C. § 3553(a)(1)-(2));

Gall v. United States, 552 U.S. 38, 50 n.6 (2007)). 

UNITED STATES v. RESSAM 19815
argues that the sentence is substantively unreasonable because

the district court failed adequately to consider and weigh the

relevant § 3553(a) factors, including “the need [for the sentence imposed] . . . to ensure the public is protected from

future crimes by this defendant.”

7

 (Id. at 51.)

The Government also argues that: 

the [district] court’s stated reasons simply do not

establish the reasonableness of a sentence two-thirds

less than the low end of the advisory Guideline[s]

range for a defendant who was convicted after trial

of such extraordinary crimes, and then undermined

the prosecution of two terrorists about whom he provided information by refusing to finish his agreed

upon cooperation.

(Id. at 38.)

A

Ordinarily, when a sentence is appealed, “[o]n appeal, we

7Thus, “[t]here is a procedural as well as a substantive element to this

argument.” 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”); 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).”). In its appeal, however, the Government has expressly waived any challenge to the procedural correctness of the sentence imposed by the district court.

(Appellant’s Opening Br. 36) (“The Court must first determine whether

the district court committed significant procedural error, a claim not

raised in this appeal. The Court must then consider whether the sentence

is substantively unreasonable, the issue raised here.”) (citations omitted)

(emphasis added); (Appellant’s Reply Br. 5) (“A sentence is reviewed first

for procedural error, although none is alleged here.”) (citation omitted)

(emphasis added). 

19816 UNITED STATES v. RESSAM
first consider whether the district court committed significant

procedural error, then we consider the substantive reasonableness of the sentence.” Carty, 520 F.3d at 993. In Gall, the

Supreme Court instructed that: 

[r]egardless of whether the sentence imposed is

inside or outside the Guidelines range, the appellate

court must review the sentence under an abuse-ofdiscretion standard. It must first ensure that the district court committed no significant procedural error,

such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the § 3553(a) factors,

selecting a sentence based on clearly erroneous facts,

or failing to adequately explain the chosen sentence

— including an explanation for any deviation from

the Guidelines range. Assuming that the district

court’s sentencing decision is procedurally sound,

the appellate court should then consider the substantive reasonableness of the sentence imposed under

an abuse-of-discretion standard. When conducting

this review, the court will, of course, take into

account the totality of the circumstances, including

the extent of any variance from the Guidelines range.

Gall, 552 U.S. at 51.

In this appeal the Government has elected not to argue that

the district court committed significant procedural errors.

Though the Government has identified many alleged missteps

by the district court in the course of sentencing, its opening

brief affirmatively states that procedural error is “a claim not

raised on this appeal.” Id.

[1] Ressam contends that as a result we are precluded from

considering procedural errors by the district court, citing the

decision of the Supreme Court in Greenlaw v. United States,

554 U.S. 237, 128 S. Ct. 2559 (2008). In that case the Eighth

UNITED STATES v. RESSAM 19817
Circuit sua sponte ordered the imposition of a longer criminal

sentence based on the failure of the district court to impose a

mandatory minimum sentence, which the court of appeals

identified as a plain error even though the Government had

not appealed the sentence. The sentence was before the court

of appeals because the defendant had challenged the sentence,

contending that it was too long. The Supreme Court held that

the court of appeals had erred by acting in the absence of a

Government appeal or cross-appeal. Greenlaw, 128 S. Ct. at

2570. But that is not the situation here. The Government has

appealed Ressam’s sentence. That it has elected to focus on

the substantive reasonableness of the sentence means that we

are not required to review for procedural errors, but it does

not mean that we are precluded from looking at the process

that produced that sentence.

That is especially true here, where the Government’s opening brief on appeal complains about a number of actions or

failures by the district court that arguably constitute procedural errors. See United States v. Overton, 573 F.3d 679, 699

(9th Cir. 2009) (reviewing for procedural error where appellant challenged his sentence as substantively unreasonable but

“allude[d] to procedural error by accusing the district court of

failing to address the § 3553(a) factors and adequately explain

the sentence imposed”); United States v. Shaw, 560 F.3d

1230, 1238 (11th Cir. 2009) (reviewing for procedural error

even though the only contention on appeal was that the sentence was substantively unreasonable). Notably, the Government’s arguments in this case are largely 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,

19818 UNITED STATES v. RESSAM
including any deviation from the Guidelines range”) (citing

Gall, 128 S.Ct. at 596-97).

[2] It should not be surprising that a challenge to the substantive reasonableness of a sentence will, in at least some

cases, invite consideration of the process that produced the

sentence. How a decision is arrived at can often shed light on

the merit of the decision itself. Indeed, “substantive problems

. . . [can be] a product of the District Court’s procedurally

flawed approach.” United States v. Goff, 501 F.3d 250, 256

(3d Cir. 2007). In Carty we held that “[i]n determining substantive reasonableness, we are to consider the totality of the

circumstances, including the degree of variance for a sentence

imposed outside the Guidelines range.” Carty, 520 F.3d at

993. The totality of circumstances to be considered in determining substantive reasonableness may surely include an

examination of the sentencing process as a whole.

B

To better understand the relationship between alleged procedural errors and substantive unreasonableness, it would be

useful to analyze each of the two concepts in some detail.

1

In Carty, we addressed the question whether “the district

court imposed a procedurally flawed sentence by failing to

provide sufficient reasons for selecting a sentence at the bottom of the Guidelines range rather than a lesser sentence.”

Carty, 520 F.3d at 995. We held that

[i]t would be procedural error for a district court to

fail to calculate — or to calculate incorrectly — the

Guidelines range; to treat the Guidelines as mandatory instead of advisory; to fail to consider the

§ 3553(a) factors; to choose a sentence based on

clearly erroneous facts; or to fail adequately to

UNITED STATES v. RESSAM 19819
explain the sentence selected, including any deviation from the Guidelines range.

Id. at 993. We concluded that the district court committed no

procedural error in sentencing Carty to a within Guidelines

sentence because “[a]lthough the judge gave no explicit reasons for [the sentence imposed], the arguments were straightforward and uncomplicated . . . .” Id. In a “typical case”

which is “neither complex nor unusual,” applying the Guidelines “will not necessarily require lengthy explanation” to

comply with proper sentencing procedure. Id. at 995. (citing

Rita v. United States, 551 U.S. 338, 127 S. Ct. 2456, 2468

(2007) (finding no error and holding that “given the straightforward, conceptually simple arguments before the judge, the

judge’s statement of reasons here, though brief, was legally

sufficient”)); see also United States v. Amezcua-Vasquez, 567

F.3d 1050, 1054 (9th Cir. 2009) (same). 

[3] What Carty left unclear is whether a sentence is procedurally flawed where the district court fails to provide “sufficient reasons” for selecting a sentence that is well below the

Sentencing Guidelines range, and where “the arguments [are

not] straightforward and uncomplicated,” and if so, what

explanation will be deemed “sufficient” or “adequate” to pass

procedural muster. Carty, 520 F.3d at 995. Based upon our

reading of Rita, Gall, and Carty, we conclude that such a sentence would be procedurally flawed. We will now probe the

parameters of what constitutes a procedurally “sufficient” or

“adequate” explanation by a district court in imposing a sentence in a complex or complicated case where the sentence

deviates significantly below the advisory Sentencing Guidelines range.

a

It is now well established that the district court must begin

a sentencing hearing “by determining the applicable Guidelines range.” Carty, 520 F.3d at 991. The Guidelines “range

19820 UNITED STATES v. RESSAM
must be calculated correctly,” as the Sentencing Guidelines

are “the starting point and the initial benchmark.” Id. (quotations and citations omitted). “[F]ailing to calculate (or

improperly calculating) the Guidelines range” constitutes

“significant procedural error.” Gall, 552 U.S. at 51. 

Recognizing that “a Guidelines sentence ‘will usually be

reasonable,’ ” we declined in Carty “to embrace a presumption.” 520 F.3d at 994 (quoting Rita, 127 S. Ct. at 2465).

However, we held that when a sentencing “judge ‘decides that

an outside-Guidelines sentence is warranted, he must consider

the extent of the deviation and ensure that the justification is

sufficiently compelling to support the degree of the variance.’ ” Carty, 520 F.3d at 991 (quoting Gall, 128 S. Ct. at

597). As the Court explained in Gall, it is “uncontroversial

that a major departure should be supported by a more significant justification than a minor one.” Gall, 552 U.S. at 50. This

is because “[w]hen a sentence is within the Guidelines range,

we know that ‘both the sentencing judge and the Sentencing

Commission . . . have reached the same conclusion’ that the

sentence is ‘proper.’ ” Carty 520 F.3d at 996 (Kozinski, C.J.,

concurring) (emphasis in original) (quoting Rita, 127 S. Ct. at

2463). 

Thus, once the correct Guidelines range has been established, “[t]he district court may not presume that the Guidelines range is reasonable.” Carty, 520 F.3d at 991. Rather,

“[t]he district court must make an individualized determination based on the facts.” Id. at 991. In reaching its sentence

decision, the “district courts must . . . remain cognizant of [the

Guidelines] throughout the sentencing process.” Gall, 552

U.S. at 50 n.6; see Carty, 520 F.3d at 991 (the Guidelines “are

to be kept in mind throughout the [sentencing] process”) (citing Gall, 128 S.Ct. at 596-97 n.6)). 

Where the sentence imposed falls within the Sentencing

Guidelines range, it is reasonable to conclude that the district

court remained “cognizant” of the Sentencing Guidelines. The

UNITED STATES v. RESSAM 19821
harder question arises where, as here, the sentence falls significantly outside the Guidelines range. This raises two questions. First, are we to conclude that a procedural error has

been committed if it appears from the record that the district

court did not “remain cognizant of [the Sentencing Guidelines] throughout the sentencing process”? Gall, 552 U.S. at

50 n.6. Second, if the answer to the first question is “yes,”

what steps must a district court take to demonstrate that it has

“kept [the Sentencing Guidelines] in mind throughout the process” and thus avoid committing such an error. Carty, 520

F.3d at 991. 

[4] We answer the first question in the affirmative. Where

the district court imposes a sentence significantly outside the

Guidelines range, and it appears from the record that the district court did not “remain cognizant of [the Sentencing

Guidelines] throughout the sentencing process,” Gall, 552

U.S. at 50 n.6, it has committed procedural error. To hold otherwise would be to construe the Supreme Court’s instruction

in Gall as a suggestion rather than a requirement. Our reading

of Gall does not permit such an interpretation. See id. (“The

fact that § 3553(a) explicitly directs sentencing courts to consider the Guidelines supports the premise that district courts

must begin their analysis with the Guidelines and remain cognizant of them throughout the sentencing process.”). Accordingly, in imposing a sentence significantly outside the

Guidelines range, there must be some indication in the record

that the district court had the Guidelines “in mind throughout

the process.” Carty, 520 F.3d at 991.

b

After determining the applicable Sentencing Guidelines

range, the district court must give the parties “a chance to

argue for a sentence they believe is appropriate.” Carty, 520

F.3d at 991. Failure to do so will constitute procedural error.

Gall, 552 U.S. at 50 n.6 (listing factors to be considered in

reviewing for procedural error).

19822 UNITED STATES v. RESSAM
c

“The district court should then consider the § 3553(a) factors to decide if they support the sentence suggested by the

parties.” Carty, 520 F.3d at 991 (citing 18 U.S.C.

§ 3553(a)(1)-(7); Gall, 128 S.Ct. at 596-97 n.6). “It would be

procedural error for a district court . . . to fail to consider the

§ 3553(a) factors.” Id. at 993.

d

A district court also commits procedural error if it

“choose[s] a sentence based on clearly erroneous facts.”

Carty, 520 F.3d at 993. “A finding is clearly erroneous when

although there is evidence to support it, the reviewing body

on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Concrete Pipe &

Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S.

Cal., 508 U.S. 602, 622 (1993) (internal quotation marks and

citation omitted). By way of example, in Levinson, the Third

Circuit concluded that the district court based its decision on

a clearly erroneous premise when it found that Levinson, who

was convicted of tax fraud involving a specific dollar loss to

the United States Treasury, had inflicted no financial harm on

the public. Levinson, 543 F.3d at 199.

e

Most important for purposes of review is the requirement

that the district court “adequately . . . explain the sentence

selected, including any deviation from the Guidelines range.”

Carty, 520 F.3d at 993. Failure to provide an adequate explanation is procedural error. Id. at 992 (holding that “the district

court must explain [the sentence] sufficiently to permit meaningful appellate review”). The explanation “is most helpful [if

it] come[s] from the bench, but adequate explanation in some

cases may also be inferred from the PSR [pre sentence report]

or the record as a whole.” Id. at 992. 

UNITED STATES v. RESSAM 19823
As we explained in Carty, “[w]hat constitutes a sufficient

explanation will necessarily vary depending upon the complexity of the particular case, whether the sentence chosen is

inside or outside the Guidelines, and the strength and seriousness of the proffered reasons for imposing a sentence that differs from the Guidelines range.” Id.

With regard to the district court’s consideration of the

§ 3553(a) factors, “[w]e assume that district judges know the

law and understand their obligation to consider all of the

§ 3553(a) factors.” Id. For this reason, “[t]he district court

need not tick off each of the § 3553(a) factors to show that it

has considered them.” Id. “Nor need the district court articulate in a vacuum how each § 3553(a) factor influences its

determination of an appropriate sentence.” Id. However,

“when a party raises a specific, nonfrivolous argument tethered to a relevant § 3553(a) factor in support of a requested

sentence, then the judge should normally explain why he

accepts or rejects the party’s position.” Id. at 992-93 (citing

Rita, 127 S. Ct. at 2468) (“Where the defendant or prosecutor

presents nonfrivolous reasons for imposing a different sentence . . . the judge will normally go further and explain why

he has rejected those arguments.”); see also Goff, 501 F.3d at

255 (“Although the District Court is not required either to

comment on every argument counsel advances or to make

findings as to each § 3553(a) factor, it nevertheless should

expressly deal with arguments emphasized by the parties.”).

Thus, other than addressing specific and nonfrivolous arguments raised by the parties, a district court need not offer

much in the way of explanation to demonstrate that it has satisfied this requirement in imposing a sentence within the advisory Sentencing Guidelines. Carty, 520 F.3d at 992 (“A

within-Guidelines sentence ordinarily needs little explanation

. . . because both the Commission and the sentencing judge

have determined that the sentence comports with the

§ 3553(a) factors and is appropriate in the ordinary case.”). 

19824 UNITED STATES v. RESSAM
We did not hold in Carty that a district court’s failure to

address nonfrivolous arguments raised by a party in support

of a requested sentence would constitute procedural error. It

is axiomatic, however, that if review of the reasonableness of

a sentence is hindered by the district court’s failure to address

specific arguments that are “tethered to a relevant § 3553(a)

factor in support of a requested sentence,” meaningful appellate review is not possible and the sentence is by definition

procedurally flawed. Id. at 992-93; see also Rita, 551 U.S. at

356 (“The sentencing judge should set forth enough to satisfy

the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal

decisionmaking authority.”). This reasoning applies equally to

sentences both within and outside the advisory Guidelines

range.

f

In addition to the § 3553(a) factors, a district court may

also consider the defendant’s assistance in the investigation

and prosecution of another person who has committed an

offense. United States v. Zolp, 479 F.3d 715, 721 (9th Cir.

2007) (“[T]he district court did not err by considering Zolp’s

cooperation as part of its analysis under 18 U.S.C. § 3553(a)

rather than as part of its advisory guidelines calculation.”).

“The Guidelines ‘afford[ ] the sentencing judge’ wide ‘latitude’ in evaluating the ‘significance and usefulness of the

defendant’s assistance,’ but direct courts to give ‘substantial

weight . . . to the government’s evaluation’ of that assistance.”

United States v. Awad, 371 F.3d 583, 586-87 (9th Cir. 2004)

(citing U.S.S.G. § 5K1.1(a)(1) & cmt. background); see also

U.S.S.G. § 5K1.1 cmt. n.3 (providing that “[s]ubstantial

weight should be given to the government’s evaluation of the

extent of the defendant’s assistance, particularly where the

extent and value of the assistance are difficult to ascertain”).

When determining the appropriate extent of a substantialassistance downward departure, the district court should consider the following five factors:

UNITED STATES v. RESSAM 19825
(1) the court’s evaluation of the significance and usefulness of the defendant’s assistance, taking into

consideration the government’s evaluation of the

assistance rendered; (2) the truthfulness, completeness, and reliability of any information or testimony

provided by the defendant; (3) the nature and extent

of the defendant’s assistance; (4) any injury suffered,

or any danger or risk of injury to the defendant or his

family resulting from his assistance; [and] (5) the

timeliness of the defendant’s assistance.

U.S.S.G. § 5K1.1(a). When imposing a sentence that is well

below the advisory Guidelines range pursuant to a § 5K1.1

motion, however, there must be some indication that the district court’s departure is justified. See United States v. Haack,

403 F.3d 997 (8th Cir. 2005) (examining the reasonableness

of the sentence against the five factors outlined in U.S.S.G.

§ 5K1.1 and concluding that imposition of a 78-month sentence was not justified where the Guidelines range was 180

months and the assistance the defendant provided consisted of

information regarding others who were either already under

indictment or were suspects); see also United States v. Livesay, 525 F.3d 1081, 1093 (11th Cir. 2008) (vacating and

remanding sentence where the district court did not adequately explain its assessment of Livesay’s cooperation or the

sentence imposed).

2

Once an appellate court has concluded that no procedural

error has occurred, it must review sentences for substantive

reasonableness. Carty, 520 F.3d at 993. “A substantively reasonable sentence is one that is ‘sufficient, but not greater than

necessary’ to accomplish § 3553(a)(2)’s sentencing goals.”

United States v. Crowe, 563 F.3d 969, 977 n.16 (9th Cir.

2009) (quoting 18 U.S.C. § 3553(a)); see also United States

v. Vasquez-Landaver, 527 F.3d 798, 804-05 (9th Cir. 2008)

(affirming sentence as reasonable where the record shows the

19826 UNITED STATES v. RESSAM
district court considered the § 3553(a) factors and imposed a

sentence that was sufficient but no greater than necessary to

comply with § 3553(a)); United States v. RodriguezRodriguez, 441 F.3d 767, 771 (9th Cir. 2006) (same). 

“The touchstone of ‘reasonableness’ is whether the record

as a whole reflects rational and meaningful consideration of

the factors enumerated in 18 U.S.C. § 3553(a).” United States

v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (quoting United

States v. Grier, 475 F.3d 556, 571 (3d Cir. 2007) (en banc);

see also United States v. Williams, 425 F.3d 478, 481 (7th Cir.

2005) (“[W]hat we must decide is whether the district judge

imposed the sentence he or she did for reasons that are logical

and consistent with the factors set forth in section 3553(a).”).

“In determining substantive reasonableness, we are to consider the totality of the circumstances, including the degree of

variance for a sentence imposed outside the Guidelines

range.” Carty, 520 F.3d at 993.

With these standards in mind, we turn now to the case

before us.

III

The Government argues that based upon the unusual record

in this case, the district court has failed adequately to explain

its reasons for imposing a sentence “two-thirds less than the

low end of the advisory Guidelines range.” The Government’s

chief argument is that because Ressam is a trained terrorist

who has led a life of crime, devoted years of his life to planning, coordinating, and attempting to execute an attack on the

public that would result in massive destruction and death

within the United States, a longer sentence is needed to

accomplish the purposes of § 3553(a). 

The Government argues that the district court overstated

the value of Ressam’s cooperation while giving little or no

UNITED STATES v. RESSAM 19827
weight to other relevant § 3553(a) factors. The value and

quality of the assistance rendered by Ressam, the Government

contends, “simply do not justify the extraordinary reduction

granted by the court in this case.” Appellant’s Opening Brief

at 43. Although Ressam provided a great deal of information

about his training as a terrorist and the terrorist acts of others,

the Government argues that most of his cooperation merely

declassified previously known information. Id. at 44. The

Government stressed that the district court did not give sufficient weight to the fact that Ressam ceased cooperation,

recanted his earlier testimony, and thus caused the criminal

complaint against two terrorists to be dismissed. Id. at 45-46.

“[R]ewarding Ressam with a minimum forty-three-year

reduction in sentence for failure to complete his cooperation

sends” the message “that regardless of whether you violate

your agreements or complete your bargain, you will be

rewarded handsomely by the court.” Id. at 48. 

The Government argues that the district court failed to consider the timing of Ressam’s decision to cooperate, which did

not occur until after he had been convicted and was facing a

possible life sentence. Id. at 48-49. The Government argues

further that such a significant reduction in sentence results in

an unreasonable sentence because it gives too little weight to

the other relevant § 3553(a) factors, does not promote respect

for the law, provide just punishment for the crime, or afford

adequate deterrence to criminal conduct. Id. at 51. The Government also contends that the sentence fails to protect the

public from future crimes by Ressam because he will be 53

years old upon release from prison. 

The Government maintains that Ressam’s prison conditions

should not have been considered because Ressam refused the

Government’s offer to place him in the more hospitable Witness Security Program. Id. at 52-53. Finally, the Government

argues that the district court’s comparisons of sentences

imposed in other terrorism cases do not establish the reasonableness of Ressam’s sentence. Id. at 55. 

19828 UNITED STATES v. RESSAM
A

“[T]he abuse-of-discretion standard of review applies to

appellate review of all sentencing decisions — whether inside

or outside the Guidelines range.” Gall, 552 U.S. at 49. We

have characterized our review for procedural error in sentencing decisions as a review for “procedural reasonableness.”

Amezcua-Vasquez, 567 F.3d at 1053; see also United States

v. Grissom, 525 F.3d 691, 696 n.2 (9th Cir. 2008). “An estimation of the outer bounds of what is ‘reasonable’ under a

given set of circumstances may not always be beyond debate,

but the abuse-of-discretion standard by which that estimation

must be judged limits the debate and gives district courts

broad latitude in sentencing.” Levinson, 543 F.3d at 195

(vacating sentence as procedurally erroneous where district

court offered inadequate explanation for downward variance

in sentence).

In Grissom, we explained that a “review for questions of

procedural reasonableness” requires reviewing “the district

court’s interpretation of the Sentencing Guidelines de novo,

the district court’s application of the Sentencing Guidelines to

the facts of a case for abuse of discretion, and the district

court’s factual findings for clear error.” 525 F.3d at 696 & n.2

(quoting United States v. Cantrell, 433 F.3d 1269, 1279 (9th

Cir. 2006), and explaining that nothing in Gall or Carty provides for an abuse of discretion standard of review for procedural error different from the standard set forth in Cantrell).

In United States v. Wise, 515 F.3d 207 (3d Cir. 2008), the

Third Circuit explained the review standard as follows:

We review the district court’s decision under an

abuse-of-discretion standard . . . but the amount of

deference we give will depend on the type of procedural error asserted on appeal. For example, a district

court will be held to have abused its discretion if its

decision was based on a clearly erroneous factual

conclusion or an erroneous legal conclusion. . . .

UNITED STATES v. RESSAM 19829
Koon v. United States, 518 U.S. 81, 100 (1996) (“A

district court by definition abuses its discretion when

it makes an error of law.”); Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 401 (1990) (“When an

appellate court reviews a district court’s factual findings, the abuse-of-discretion and clearly erroneous

standards are indistinguishable: A court of appeals

would be justified in concluding that a district court

had abused its discretion in making a factual finding

only if the finding were clearly erroneous.”). Thus,

if the asserted procedural error is purely factual, our

review is highly deferential and we will conclude

there has been an abuse of discretion only if the district court’s findings are clearly erroneous . . . . On

the other hand, we do not defer to a district court

when the asserted procedural error is purely legal, as,

for example, when a party claims that the district

court misinterpreted the Guidelines.

Wise, 515 F.3d at 217. 

Under the abuse of discretion standard of review recently

announced in United States v. Hinkson, 585 F.3d 1247 (9th

Cir. 2009), we first consider whether the district court identified the correct legal standard for decision of the issue before

it, and then “determine whether the district court’s findings of

fact, and its application of those findings of fact to the correct

legal standard, were illogical, implausible, or without support

in inferences that may be drawn from facts in the record.” Id.

at 1251.

“For a non-Guidelines sentence, we are to ‘give due deference to the district court’s decision that the § 3553(a) factors,

on a whole, justify the extent of the variance.’ ” Carty, 520

F.3d at 993 (quoting Gall, 128 S.Ct. at 597). “We may not

reverse just because we think a different sentence is appropriate.” Id.

19830 UNITED STATES v. RESSAM
B

There are four procedural errors in the district court’s analysis that are serious enough to cause us to lack confidence in

the substantive reasonableness of the sentence that was

imposed: (1) the district court failed to use the Guidelines as

a starting point and to “remain cognizant” of them throughout

the process in reaching Ressam’s sentence; (2) the district

court failed to explain why it was rejecting the Government’s

argument as to the value of Ressam’s cooperation, and failed

to address the impact of Ressam’s recantation and timeliness

of his decision to cooperation; (3) the court clearly erred when

it credited Dr. Grassian’s assessment of Ressam’s life history

and personal characteristics, and that of Ressam’s counsel, in

view of the contradictory factual findings in the PSR; and, (4)

the district court erred in failing to address the Government’s

argument that a longer sentence is required to protect the public from future crimes committed by Ressam, who will be

only 53 years old when his sentence expires. We address each

error in turn.

1

[5] The district court calculated the applicable Guidelines

range at the beginning of the sentencing hearing. At the end

of its analysis, the court stated in a conclusory manner that it

had considered the Guidelines range as one factor, given it the

same weight as the other § 3553 factors, and that it recognized

the sentence reflects “a significant downward deviation from

the advisory guideline range.” Beyond these passing references to the Guidelines, the district court made no attempt to

explain how it settled on a sentence that was 43 years below

the low end of the Guidelines range. 

Rather, the record suggests that the district court agreed

with Ressam’s position that the starting point for calculating

his sentence should be the Government’s pre-trial plea offer

of 25 years. At the resentencing hearing, the Government

UNITED STATES v. RESSAM 19831
argued that using the pre-trial offer as a starting point was

legally improper. Sentencing Hr’g Tr. at 14, December 3,

2008. The Government attempted to dispel the district court

of its earlier stated belief that the Government’s pre-trial offer

of a sentence of 25 years “might have some relation to the

post-trial assessment of the case with a level of cooperation,”

supra at 23, by explaining that 25 years was “not an appropriate sentence in the view of anyone on the government’s

team.” Sentencing Hr’g Tr. at 14, December 3, 2008. The district court stated that it was not convinced, replying: “I have

a hard time accepting that.” Id. at 15. 

[6] Based upon our review of the record, beyond performing the calculation of the Guidelines range at the beginning of

the hearing and referencing the Guidelines twice in passing,

the district court did not appear to give any weight whatsoever

to the Guidelines range. Therefore, the record does not demonstrate that the district court used the applicable Guidelines

range as “the starting point and initial benchmark” as

required. Carty, 520 F.3d at 991. 

Our perception that the district court failed to keep the

applicable Guidelines range in mind throughout sentencing is

bolstered by how the district court dealt with the mandatory

minimum and consecutive sentence requirements that pertained to certain counts of Ressam’s conviction. The conviction on Count Nine (carrying an explosive during the

commission of a felony) requires a mandatory minimum sentence of at least 10 years, under 18 U.S.C. § 844(h)(2). In

addition, consecutive sentences are required for the convictions for Count Nine and also for Count One (act of terrorism

transcending a national boundary, in violation of 18 U.S.C.

§ 2332b(a)(1)(B)). See 18 U.S.C. §§ 844(h)(2) and

2332b(c)(2), respectively.

The 10-year mandatory minimum for Count Nine meant

that Ressam was sentenced to only 12 years for his convictions on the other eight counts combined, a portion of which

19832 UNITED STATES v. RESSAM
represented the consecutive sentence for the Count One conviction. That period of 12 years was divided into seven years

for violating 18 U.S.C. § 2332b(a)(1)(B) (Count One) and

five years for the seven remaining counts (Counts Two

through Eight).8

Those component parts reveal that Ressam’s sentence actually involves an even greater departure below the Guidelines

than is initially apparent. Ressam’s total sentence of 22 years

is only 34 % as long as the low end of the combined Guidelines range of 65 years, but his seven-year sentence for Count

One is only 28 % of the Guidelines recommendation of 300

months, and his five-year sentence for the remaining seven

counts is only 17 % of the Guidelines minimum recommendation of 360 months.

8The Government, not the district court, chose the length of each portion of Ressam’s sentence. When the district court first imposed Ressam’s

sentence, it considered only the total term of imprisonment and asked “the

government to allocate [22 years] according to the statutory minimums

among the counts in consecutive and concurrent [terms] as necessary to

arrive at” the total. Sentencing Hr’g Tr. at 31, July 27, 2005. The district

court did not revisit the components of the total sentence at the 2008 sentencing hearing. The parties did not brief the question—which we do not

reach—whether the district court’s decision not to determine and impose

independent sentences for each of the three consecutive terms was error.

See U.S.S.G. § 5G1.2; cf. United States v. Franklin, 499 F.3d 578, 584-85

(6th Cir. 2007) (“When any downward variance of the guideline range is

based upon the effect of a mandatory sentence, congressional intent is

repudiated, just as if the mandatory sentence itself had been reduced.”);

United States v. Roberson, 474 F.3d 432, 437 (7th Cir. 2007) (“The district judge was . . . required to determine the proper sentence for the bank

robbery entirely independently of the section 924(c)(1) add-on.”). But see

United States v. Vidal-Reyes, 562 F.3d 43, 55-56 (1st Cir. 2009) (“[T]his

provision merely specifies that the sentence for counts subject to a mandatory consecutive sentence should be calculated separately from the

[Guidelines sentencing range] on other counts. In other words, those

counts involving mandatory sentences should be excluded from the grouping procedures that would otherwise apply.”) (citing United States v. A.B.,

529 F.3d 1275, 1276 n.1 (10th Cir. 2008)). 

UNITED STATES v. RESSAM 19833
[7] Additionally, simply acknowledging that the sentence

reflects “a significant downward deviation from the advisory

guideline range” is insufficient on this record to demonstrate

that the court “remain[ed] cognizant of [the Guidelines]

throughout the sentencing process.” Gall, 552 U.S. at 50 n.6;

Carty, 520 F.3d at 991 (the Guidelines “are to be kept in mind

throughout the [sentencing] process” (citing Gall, 552 U.S. at

50 n.6.)); see also United States v. Pugh, 515 F.3d 1179, 1200

(11th Cir. 2008) (vacating and remanding sentence where the

sentence failed to reflect the seriousness of defendant’s

offense and the district court did “not give any real weight to

the Guidelines range in imposing the sentence”). 

[8] United States v. Mohamed, 459 F.3d 979 (9th Cir.

2006), demonstrates the level of explanation that a district

court must provide when imposing a sentence that differs substantially from the Guidelines range. Mohamed was convicted

of making a false bomb threat to the Department of Homeland

Security, claiming that four of his acquaintances were terrorists involved in a plot to bomb shopping malls in Los Angeles, California. Id. at 981. “After expending considerable

resources to protect against the threat and identify its perpetrator, law enforcement officials located and arrested

Mohamed.” Id. He was convicted and sentenced to a prison

term of five years for violating 18 U.S.C. § 844(e), which prohibits the use of a telephone to make a threat regarding an

attempt to “destroy a building, vehicle, or other real or personal property by means of fire or an explosive.” Id. (quoting

18 U.S.C. § 844(e)). In imposing a 60-month sentence, the

district court deviated considerably from the Guidelines range

of 12 to 18 months. Id at 989. We observed that “the sentencing guidelines anticipate their own inadequacy in the context

of bomb threats” which include “a particularly wide range of

conduct.” Id. at 988. The district court “noted both the callousness and costliness of the [bomb] threat . . . [and]

observed that Mohamed had exploited the nation’s fear of al

Qaeda in light of the terrorist attacks of September 11.” Id. at

988. The district court also noted that

19834 UNITED STATES v. RESSAM
the guidelines failed to take into account “the history

and characteristics of the defendant” and the need to

provide the public with adequate protection from

him. See 18 U.S.C. §§ 3553(a)(1), (2)(C). While the

PSR rated Mohamed as having a minimal criminal

history, the record suggests that he has engaged in a

more extensive pattern of misconduct. A federal

investigation had linked him to the fraudulent use of

driver’s licenses in Texas and in California, to the

theft of $13,000 from a restaurant in Houston where

he was briefly employed, to the fraudulent use of a

social security number to open an account at the

Bank of America, and to a failure to report for an

interview with the FBI regarding other suspicious

activities. On top of this, the defendant had been living illegally in the country for several years and had

reentered the country illegally just prior to his arrest.

Id. at 988-89. On this record, this Court concluded in

Mohamed that the district court had “thoroughly explained its

decision to deviate from the advisory guidelines” and that “it

was reasonable for the district court to hold that the advisory

guidelines did not adequately take into account Mohamed’s

significant history of increasingly serious criminal activity.”

Id. at 989. By contrast, here, the district court offered no analysis or explanation as to why its considerable deviation from

the Guidelines was appropriate. The absence of such a thorough explanation prohibits meaningful appellate review and

thus constitutes procedural error.

2

In determining the sentence reduction due to Ressam for

his cooperation with the Government, the district court was to

consider (1) its own evaluation of the significance and usefulness of Ressam’s assistance, taking into consideration the

Government’s evaluation of the assistance rendered; (2) the

truthfulness, completeness, and reliability of any information

UNITED STATES v. RESSAM 19835
or testimony provided by Ressam; (3) the nature and extent of

the Ressam’s assistance; (4) any injury or risk of injury to

Ressam or his family resulting from his assistance; and (5) the

timeliness of the Ressam’s assistance. See U.S.S.G.

§ 5K1.1(a). We review the reasonableness of Ressam’s sentence against these five factors. Haack, 403 F.3d at 1004. 

[9] In considering the first factor, the district court failed to

explain why it rejected the Government’s arguments concerning its evaluation of Ressam’s cooperation, including the

value to law enforcement of the information provided. See

Awad, 371 F.3d at 586-87 (district courts are to give substantial weight to the Government’s evaluation of that assistance)

(citing § 5K1.1 providing, in Application Note 3, that

“[s]ubstantial weight should be given to the government’s

evaluation of the extent of the defendant’s assistance, particularly where the extent and value of the assistance are difficult

to ascertain”). See also United States v. Richardson, 521 F.3d

149, 158 (2d Cir. 2008) (vacating and remanding sentence

where the court was unable to determine whether the sentence

was procedurally or substantively unreasonable because the

district court failed to explain the method employed in calculating the value of defendant’s assistance to the Government).

In Richardson, the Government made a motion for a downward departure under U.S. Sentencing Guidelines Manual

§ 5K1.1 due to defendant’s substantial assistance. Id. The district court imposed a sentence 93 % below the statutory minimum 20-year sentence on the ground that the Government’s

§ 5K1.1 motion enabled it to exercise discretion to impose a

sentence it deemed fair and reasonable under the circumstances. Id. (quotations omitted). On appeal, the Second Circuit noted that a motion under § 5K1.1 authorized a trial court

to depart below the applicable advisory Guidelines range in

determining its sentence, and that an 18 U.S.C. § 3553(e)

motion permitted a district court to sentence below a statutory

minimum. Id. However, in the absence of any explanation by

the district court as to the method employed in applying these

19836 UNITED STATES v. RESSAM
two provisions relating to defendant’s assistance, the court

held that it was unable to determine if the sentence was procedurally or substantively reasonable, particularly due to the

substantial departure from the statutory minimum sentence.

Id. 

In addition, the Second Circuit held that the district court

did not satisfy its obligation to state the reasons for imposition

of its sentence. The district court merely stated that it was taking into account “all the pertinent information including but

not limited to the presentence investigation report, submissions by counsel, the factors outlined in 18 U.S.C. Section

3553 and the sentencing guidelines.” Id. at 155. When counsel

for the Government inquired as to the court’s method of “calculation,” the court responded: “Based on all the circumstances in the case and the motion by the Government, this is

the [c]ourt’s sentence.” Id. at 156. The Second Circuit concluded that in the context of that case, the district court failed

to satisfy its obligation to “state in open court the reasons for

its imposition of the particular sentence.” Id. at 158, citing 18

U.S.C. § 3553(c). The PSR was no substitute for an explanation by the district court “because the factual findings in the

report provided inadequate support for the sentence imposed.”

Id. (citing United States v. Carter, 489 F.3d 528, 539-40 (2d

Cir. 2007)).

Here, not only did the district court fail to give “substantial

weight” to the Government’s evaluation of the extent of the

defendant’s assistance, it failed to give it any weight. The district court credited only Ressam’s assessment of the value of

his own cooperation, offering no explanation as to why it was

rejecting the Government’s assessment. For example, the

Government argued that much of the information Ressam provided was “in an unclassified form,” and “was not unique to

Ressam.” Further, Ressam’s “most valuable information —

that leading to the charges against Doah and Mohamed —

cannot be credited [because] Ressam undermined that value

when he chose to end his cooperation leading to the dismissal

UNITED STATES v. RESSAM 19837
of these charges.” The district court disagreed with the Government’s assessment, concluding instead that “Mr. Ressam’s

cooperation [was] unique in its breadth and scope.” The district court also gave much credit to Ressam for his testimony

against Haouari without addressing the Government’s argument that the value of Ressam’s testimony was undermined

by his recantations. 

The district court cited Ressam’s “sentencing memorandum

submitted before the July 2005 sentencing hearing [which]

summarizes the far-reaching impact of Mr. Ressam’s cooperation on the investigations and prosecutions of terrorist activities in this country and abroad.” The district court concluded

— apparently based upon Ressam’s sentencing memorandum

— that “Mr. Ressam’s cooperation, while it lasted, provided

the United States government and the governments of Great

Britain, Spain, Italy, Germany, France and Canada extensive

intelligence that proved to be invaluable in the fight against

international terrorism.” Without explanation, the district

court suggested that adhering to any but Ressam’s version of

the value of his cooperation would be to “downplay” it which

“would diminish the likelihood of future cooperation by other

apprehended terrorists.” 

[10] Turning to the second factor, the district court

addressed “the truthfulness, completeness, and reliability” of

Ressam’s assistance by “recogniz[ing] that Mr. Ressam’s later

decision to end his cooperation resulted in the dismissal of

two pending prosecutions and the retraction of certain of his

statements against two other terrorist suspects.” The district

court did not, however, address the Government’s argument

concerning the impact of Ressam’s early cessation of cooperation or recantations. Within six months of entering into the

cooperation agreement with the United States Attorney, Agent

Humphries testified that Ressam became less than cooperative

and refused to discuss Hamaidi with Canadian authorities who

were investigating Hamaidi for his involvement in helping

Ressam obtain fraudulent Canadian social security numbers

19838 UNITED STATES v. RESSAM
among other things. The district court did not weigh this or

any other specific arguments raised by the Government. The

district court noted only that Ressam’s cooperation “ended

unwisely and prematurely.” The district court did not, however, indicate what weight, if any, it gave to this factor. See

e.g., United States v. Burns, 577 F.3d 887, 890 (8th Cir. 2009)

(en banc) (affirming a 60% reduction in the advisory Guidelines sentence where the district court provided a detailed

analysis of the § 5K1.1 factors and concluded that there “was

no information that the defendant’s substantial assistance was

anything but a hundred percent complete, a hundred percent

truthful, and a hundred percent reliable.”); see also Livesay,

525 F.3d at 1093 (vacating and remanding sentence where the

district court did not explain why it rejected the Government’s

argument that, notwithstanding Livesay’s timely assistance,

Livesay should receive “some sentence of significance”). 

[11] The Government also argued that the timing of Ressam’s cooperation, the fifth factor to be considered, which

occurred only after he had been convicted and was facing a

life sentence, should weigh against him in valuing his cooperation. Id. at 44. In his February 17, 2003 letter to the trial

judge, Ressam stated that he “chose to make a break with the

past and agreed to accept [his] guilt and provide the government with all of the information [he] had.” Ressam explained

that he rejected the “government’s offer of a 25-year sentence

in exchange for an admission of guilt” because he “expected

a miracle” for himself. When he realized “the result was not

the miracle [he] had hoped for,” he entered into an agreement

with the Government and pledged to “honor that agreement

even after [he was] sentenced.” The district court did not discuss what weight, if any, it was giving to the timing of Ressam’s cooperation, a factor generally considered by

sentencing courts. See, e.g., Burns, 577 F.3d at 890 (affirming

a 60% reduction in the advisory Guidelines sentence where

the district court provided a detailed analysis of the § 5K1.1

factors and concluded that the timeliness “factor weighs very

UNITED STATES v. RESSAM 19839
heavily in favor of the defendant” because his “timeliness was

exceptional”). 

Furthermore, as in Richardson, the PSR in this case is no

substitute for an explanation by the district court for its departure from the advisory Guidelines because the factual findings

in that report do not provide adequate support for the sentence

imposed. Richardson, 521 F.3d at 158. The detrimental

impact of the district court’s failure to address the Government’s arguments is compounded here, “where the extent and

value of the assistance are difficult to ascertain.” U.S.S.G.

§ 5K1.1 cmt. n.3. 

[12] Accordingly, we are unable to review whether the district court properly exercised its discretion in analyzing the

value of Ressam’s cooperation pursuant to the Government’s

§ 5K1.1 motion. See United States v. Gapinski, 561 F.3d 467,

469 (6th Cir. 2009) (vacating and remanding sentence as procedurally unreasonable where the record did not show that the

district court considered and explained its reasons for rejecting a party’s nonfrivolous argument for a requested sentence

based upon substantial assistance to the Government).

3

[13] The district court’s finding that “Mr. Ressam’s life history and personal characteristics support favorable sentencing

consideration” is clearly erroneous in view of the voluminous

factual findings in the PSR indicating that Ressam has lead a

life of crime dedicated to terrorist causes. Without addressing

the Government’s arguments as to Ressam’s history and characteristics, the district court credited Dr. Grassian’s favorable

report of Ressam and Ressam’s own characterization in his

2005 sentencing memorandum that “by naming and identifying scores of former associates, Mr. Ressam not only has

imperiled his life, but also has decisively walked away from

the illegality that led to his arrest.” 

19840 UNITED STATES v. RESSAM
In finding that Ressam is “a quiet, solitary and devout man

whose true character is manifest in his decision to cooperate,”

the district court did not address any of the findings in the

PSR which indicate that Ressam has an extensive criminal

history. For example, in the summer of 1999, when Abu Doha

informed Ressam that the other members of the Montreal cell

would not be joining him to carry out the attack against the

United States, Ressam decided to continue with the operation

on his own, without the other members of his cell. Ressam

targeted an airport, knowing that as a result, many civilians

would die. Ressam attempted to rob a bank to obtain funds to

carry out his mission and finance the attack in the United

States. In the course of robbing the bank, Ressam planned to

throw a live hand grenade at the police, and run, if he needed

to do so in order to get away. These are only a few of the findings in the PSR that are in direct tension with the district

court’s findings as to Ressam’s life history and personal characteristics, including the finding that Ressam is “a quiet, solitary and devout man whose true character is manifest in his

decision to cooperate.”

4

The district court concluded its analysis by stating that

“based on all the factors listed in 18 U.S.C. Section 3553, I

hereby reimpose a sentence of 22 years and a period of supervised release of five years . . . . I believe the factors I have

examined on the record are sufficiently compelling to support

the degree of the variance.” We disagree. 

[14] The district court failed entirely to address the Government’s arguments that § 3553(a)(2)(C) requires a district court

to weigh the “need to protect the public.” This factor is particularly relevant in a terrorist case such as this, where Ressam,

who has demonstrated strongly held beliefs about the need to

attack American interests in the United States and abroad, will

be only 53 years old upon his release.9 The district court noted

9The notion that trained terrorists pose a grave danger to the public has

also been recognized in the context of pre-trial detention. See, e.g., United

UNITED STATES v. RESSAM 19841
generally that “the seriousness and heinousness of the act of

terrorism Mr. Ressam was carrying out at the time of his

arrest cannot be understated,” but did not otherwise discuss

the need to protect the public. The failure to do so is procedural error. See United States v. Lychock, 578 F.3d 214, 219

(3d Cir. 2009) (vacating and remanding sentence where the

district court failed to consider all of the relevant § 3553(a)

factors). In Lychock, the Third Circuit held that the sentence

was procedurally unreasonable because the sentencing proceedings made clear that the district court did not consider

one of the relevant § 3553(a) factors. Id. “Indeed, the District

Court did not even mention this factor despite the fact that, in

its sentencing memorandum, the government explicitly

invoked this factor.” Id. 

[15] Similarly here, the district court did not mention the

need to protect the public as a factor it must consider. This

omission is particularly troubling here given the nature of

Ressam’s crimes and the district court’s emphasis on Dr.

Grassian’s favorable psychological assessment of Ressam. In

Dr. Grassian’s report, the very assessment credited by the district court for purposes of weighing Ressam’s history and

characteristics, Ressam reported that he regretted having ever

cooperated with the Government. The district court did not

address the fact that Ressam recanted his testimony or

respond to the Government’s argument that such recantation

affirmatively aided two known terrorists by causing the GovStates v. Hir, 517 F.3d 1081, 1094 (9th Cir. 2008) (affirming order requiring that Hir be detained pre-trial because he was accused of providing support to terrorists and holding that “there is clear and convincing evidence

that Abd Hir poses a grave danger to the Philippines (if not to other communities in Southeast Asia) and that ‘no condition or combination of conditions will reasonably assure . . . the safety of . . . the community.’ ”)

(citing 18 U.S.C. § 3142(e)); see also United States v. Goba, 240 F. Supp.

2d 242, 254 (W.D.N.Y. 2003) (ordering pre-trial detention because each

individual defendant’s attendance and training at the al-Farooq camp

makes him a danger to the community). 

19842 UNITED STATES v. RESSAM
ernment to dismiss the indictments against them, signaling

that Ressam is not as estranged from the jihad movement as

he alleges.

In United States v. Valnor, 451 F.3d 744 (11th Cir. 2006),

the Eleventh Circuit affirmed a sentence above the high end

of the advisory Guidelines range where the district court

“concluded that in order to afford adequate deterrence and

protect the public from further crimes . . . committed by Mr.

Valnor,” a longer sentence is appropriate and reasonable. Id.

at 749. Valnor pleaded guilty to participating in a scheme

involving the issuance of fraudulent driver’s licences to illegal

immigrants and agreed to cooperate with the Government. Id.

at 746. The Government moved for a downward departure,

pursuant to U.S.S.G. § 5K1.1, based on Valnor’s substantial

assistance, which led to the arrest of 52 people involved in the

scheme. Id. at 747. The district court rejected the Government’s argument for a downward departure, concluding that

Valnor’s was “a very serious offense.” Id. at 748. The district

court explained that it “[did] not diminish it to the extent that

[defense counsel] does, and even to the extent that the government does” id., because 

driver’s licenses are far more than simply an authorization to operate a motor vehicle. They serve as the

primary means of personal identification, particularly in the absence of a national identification card,

and are the first line of defense in national security

after 9/11. With a driver’s license a person is able to

access and integrate into society with the ability,

among others, to obtain other documents that he or

she would otherwise be unable to acquire. In light of

our present security situation, it is of paramount

importance that the issuance and distribution of state

issued driver’s licenses be secured.

Id. at 748. The district court explained that even though Valnor was not working within the DMV itself, 

UNITED STATES v. RESSAM 19843
he poses a greater [threat] to society than a DMV

employee involved in this scheme. Mr. Valnor was

intimately . . . involved in the market through which

unauthorized individuals obtained driver’s licenses.

This market is not state regulated, but rather by its

very nature operates below the radar of the state and

society at large. Therefore, unlike the DMV

employee who will never again return to his or her

position to commit the same crime, Mr. Valnor as a

middleman is free to return to his, quote, market of

illegally obtaining and selling driver’s licenses validly issued or otherwise.

Id. at 749. “After a thorough review of the record, with particular attention to the transcripts from Valnor’s three sentencing

hearings and the PS[R],” the Eleventh Circuit affirmed Valnor’s sentence as reasonable, holding as follows:

The district court was particularly concerned with

the following facts, which were relevant to the

§ 3553(a) analysis: (1) “the egregious nature of the

offense” based on its potential impact on national

security; (2) that Valnor’s sales of license renewals

to those who were able to obtain licenses before the

9/11 rule changes, but subsequently could not get

renewals, resulted in the provision of licenses to the

very people Congress intended to subject to greater

regulation in the name of national security; and (3)

that unlike in the case of a DMV employee, who

could not return to his or her prior position after conviction, there were no safeguards to prevent middlemen like Valnor from returning to the unregulated

market of illegally obtaining and selling driver’s

licenses.

Id. at 751. The district court’s discussion of the facts relevant

to its analysis of the § 3553(a) factors in Valnor is illustrative

of the kind of discussion required to enable meaningful appel19844 UNITED STATES v. RESSAM
late review. See also United States v. Shy, 538 F.3d 933, 937

(8th Cir. 2008) (remanding for resentencing “to allow the district court to consider all of Shy’s conduct,” because meaningful review of the sentence is impossible where the district

court failed adequately to explain Shy’s sentence with sufficient justifications for the downward variance); United States

v. Thomas, 498 F.3d 336, 341 (6th Cir. 2007) (vacating and

remanding sentence where the district court failed to address

a number of arguments raised in defendant’s sentencing memorandum regarding application of the § 3553(a) factors, “save

the general statement by the district court that it had received,

read, and understood the sentencing memorandum” and where

“the context and the record [did] not make clear the [district]

court’s reasoning”).

C

[16] The procedural errors identified in the district court’s

decision rendered the sentence imposed on Ressam both procedurally and substantively unreasonable. Because the sentence is procedurally flawed, meaningful appellate review is

foreclosed. Based upon our review of the record before us,

however, it appears that the district court abused its discretion

in weighing the relevant factors by giving too much weight to

Ressam’s cooperation and not enough weight to the other relevant § 3553(a) factors, including the need to protect the public. See, e.g., Paul, 561 F.3d at 975 (vacating and remanding

sentence as substantively unreasonable where the district

court gave excessive weight to one factor “while not giving

sufficient consideration to other [mitigating] factors” in

imposing a sentence at the top end of the Guidelines range);

United States v. Omole, 523 F.3d 691, 698-700 (7th Cir.

2008) (vacating and remanding sentence that was 51 months

below the bottom of the Guidelines range as substantively

unreasonable where the sentencing judge failed to offer a

compelling justification for a sentence so far below the range

and nothing in the record supported such a reduced sentence);

United States v. Rattoballi, 452 F.3d 127, 136-37 (2d Cir.

UNITED STATES v. RESSAM 19845
2006) (vacating and remanding sentence as unreasonably low

where the district court relied upon the history and characteristics of defendant which were neither sufficiently compelling

nor present to the degree necessary to support the sentence

imposed); United States v. Crisp, 454 F.3d 1285, 1289-90

(11th Cir. 2006) (vacating and remanding sentence as substantively unreasonable where the district court gave controlling weight to the need for restitution and did not discuss any

of the U.S. Sentencing Guidelines Manual § 5K1.1(a)

assistance-related factors when calculating the extent of a

U.S. Sentencing Guidelines Manual § 5K1.1(a) departure);

United States v. Hampton, 441 F.3d 284, 288-89 (4th Cir.

2006) (vacating and remanding sentence where the district

court’s explanation for dramatic downward variance could not

withstand “reasonableness scrutiny” because the sentence was

not “supported by compelling justifications related to

§ 3553(a) factors,” and “excessive weight” was given to a single factor); United States v. Givens, 443 F.3d 642, 646 (8th

Cir. 2006) (vacating and remanding sentence as substantively

unreasonable where the district court gave “too much weight”

to “defendant’s history and characteristics and showed a great

deal of sympathy toward him” and gave “not enough [weight]

to the other portions of section 3553(a)”); United States v.

Ture, 450 F.3d 352, 358-59 (8th Cir. 2006) (vacating and

remanding sentence as substantively unreasonable where the

18 U.S.C. § 3553(a) factors and the U.S. Sentencing Guidelines Manual did not support the district court’s extreme deviation from the recommended Guidelines range and where the

district court failed to accord significant weight to the Guidelines range, to the seriousness of the offense, or to the need

to avoid unwarranted sentencing disparities).

IV

[17] We conclude that it is appropriate to exercise our

supervisory powers under 28 U.S.C. § 2106 and remand this

case for resentencing to a different judge. See, e.g., United

States v. Quach, 302 F.3d 1096, 1103 (9th Cir. 2002)

19846 UNITED STATES v. RESSAM
(“Although we generally remand for resentencing to the original district judge, we remand to a different judge if there are

‘unusual circumstances.’ ”) (quoting United States v. Mikaelian, 168 F.3d 380, 387 (9th Cir. 1999). In Mikaelian, this

Court explained that there is a three-factor test to determine

whether it is appropriate to remand to a new judge for resentencing: 

(1) whether the original judge would reasonably be

expected upon remand to have substantial difficulty

in putting out of his or her mind previously

expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2)

whether reassignment is advisable to preserve the

appearance of justice, and (3) whether reassignment

would entail waste and duplication out of proportion

to any gain in preserving the appearance of fairness.

168 F.3d at 387-88 (quoting United States v. Alverson, 666

F.2d 341, 349 (9th Cir. 1982)). See also Paul, 561 F.3d at

975; United States v. Atondo-Santos, 385 F.3d 1199, 1201

(9th Cir. 2004); United States v. Working, 287 F.3d 801, 810

(9th Cir. 2002); United States v. Arnett, 628 F.2d 1162, 1165

(9th Cir. 1979). 

In Paul, the district court originally sentenced Paul to a

high-end Guidelines range of 16 months in prison on his conviction for misappropriation of federal program funds. Paul,

561 F.3d at 972. On appeal, this Court determined that the

district court failed adequately to consider numerous factors,

causing the sentence to be unreasonably high. Id. On remand,

the original sentencing court ordered a prison term of 15

months, removing only one month from the original sentence.

Id. at 973. On a second appeal, we again vacated the sentence

and remanded for a third sentencing in front of a different district judge. We held that “the appearance of justice will be

best preserved by remanding to a different judge.” Id. at 975.

Although on remand the original sentencing judge explained

UNITED STATES v. RESSAM 19847
some of the reasoning for imposing a fifteen month sentence,

“he clearly did not put out of his mind his previously

expressed view that the defendant’s abuse of trust trumped all

other mitigation factors combined, as shown by the fact that

he again sentenced Paul to a prison sentence at the top of the

Guidelines range.” Id. 

Similarly, in United States v. Working, the defendant’s sentence was twice vacated and remanded for a third sentencing

before a different judge. Working was originally sentenced to

one day in prison for assault with intent to commit first degree

murder, and a mandatory five-year prison term for use of a

firearm during a crime of violence. Id. at 805. On appeal from

the one-day sentence, this Court held that the district court

was within its discretion to grant a downward departure from

the Guidelines, but the district court must give reasons to justify the extent of the departure. Id. Upon remand, the district

court again imposed a one-day sentence, basing its decision

on numerous factors. Id. On the second appeal, we determined

that the district court improperly took into account the interplay between 18 U.S.C. § 924(c) and the Guidelines, as well

as Working’s low risk of recidivism, because both factors

were already considered by the Guidelines. Id. at 807-808.

We also concluded that the record did not provide any other

reasons that would justify the one-day sentence. Id. at 808.

This Court remanded and reassigned the case to a different

judge for resentencing. Id. at 809. We held that after imposing

the same sentence twice, the original judge “would have substantial difficulty disregarding the view that a one-day sentence was sufficient.” Id. at 809-10. Our concern that the

original judge would be “unlikely to disregard improper factors when fashioning a sentence” was “heightened” by certain

statements made by the trial judge. Id. at 810. The trial judge

stated that he “did not accept the fact that [Working’s husband] was the victim.” Id. The record further indicated that

“the district court would be unlikely to set aside considerations of Working’s sex, a clearly prohibited factor under the

Guidelines, when resentencing.” Id.

19848 UNITED STATES v. RESSAM
The facts of this case similarly support exercise of this

Court’s power to reassign Ressam’s resentencing to a different district court judge. The trial judge originally sentenced

Ressam to 22 years in prison. On appeal, we noted that the

district court did not begin the sentencing proceeding by first

determining the applicable Guidelines range, as required by

Carty. Ressam, 538 F.3d at 1167. Accordingly, we vacated

the sentence and remanded for resentencing in accordance

with Carty. Id. Upon remand, the district court again imposed

a 22-year sentence. At Ressam’s resentencing the sentencing

judge stated:

As I said at Mr. Ressam’s previous sentencing in

2005, determining an appropriate sentence in this

case is a decision I struggled with more than any

other sentencing decision I have made in my 27

years on the bench. In the time since Mr. Ressam’s

first sentencing, however, I have come to feel even

more confident that the sentence I originally

imposed was the correct one.

Sentencing Hr’g Tr. at 40-41, December 3, 2008. 

The district court made the point of describing the original

sentence as “correct” without apparent regard for developments since the original sentence was imposed. As described

above, Ressam explicitly recanted his prior cooperation and

affirmatively tried to aid those against whom he had testified

previously. In his statement to the district court at the hearing

at which the 22-year sentence was reimposed, Ressam disavowed the cooperation he had previously given, describing

it as the product of mental incompetence and pressure put

upon him, and claiming that he did not know what he was

saying and that what he had said could not be relied upon.

The prosecution reacted by contending that it never would

have entered into cooperation with Ressam in the first place

if it had known how it would turn out.

UNITED STATES v. RESSAM 19849
[18] It is unclear what reason there is to reward a defendant

at all for cooperation at the same time that the defendant is

disavowing having intended to cooperate and loudly proclaiming that his statements should not be believed. The district court gave no explanation of how, if at all, the

subsequent developments were weighed in the new sentencing decision. The district court expressed concern that

“[d]ownplaying the cooperation that Mr. Ressam provided the

government would diminish the likelihood of future cooperation by other apprehended terrorists,” but the court itself

appeared to disregard the possible impact on other apprehended terrorists of reimposing the same sentence despite

Ressam’s subsequent disavowals. In short, the attachment of

the district court to the sentence that was originally imposed

was very powerful. The district judge “clearly did not put out

of his mind his previously expressed view that [Ressam’s

cooperation] trumped all other [aggravating] factors combined, as shown by the fact that he again sentenced [Ressam]

to a prison sentence [well below the bottom] of the Guidelines

range.” Paul, 561 F.3d at 975; see also United States v. Vrdolyak, 593 F.3d 676, 684 (7th Cir. 2010) (holding that “a

judge’s errors in calculating [a sentence] are indicative of an

idee fixe” where the judge appears unwilling to waver in his

conviction that a particular sentence is warranted). 

[19] We must also consider “whether reassignment would

entail waste and duplication out of proportion to any gain in

preserving the appearance of fairness.” Mikaelian, 168 F.3d at

387-88. We are mindful that the district judge has spent

nearly a decade with this complex case, that the record is substantial, and that the next judge will have to duplicate some

of the prior effort. Even so, we have determined that the benefit of reassignment is worth the cost in duplication. The district judge’s previously expressed views appear too

entrenched to allow for the appearance of fairness on remand.

For these reasons, we direct that the case be re-assigned to a

different judge for resentencing. We intimate no view on what

a proper sentence would be.

19850 UNITED STATES v. RESSAM
Conclusion

We vacated the district court’s original sentence of 22 years

of imprisonment because it failed to permit this Court to conduct a meaningful review of the Government’s challenge to

the reasonableness of Ressam’s sentence. Ressam, 538 F.3d at

1167. Prior to the sentencing hearing on July 27, 2005, Ressam argued that he had ceased cooperating with the Government because he was having trouble remembering details as

the result of a combination of solitary confinement and

repeated interrogation. 

At the resentencing hearing, however, Ressam informed the

district court that he “[retracted] almost all the statements he

had made in the past” against two persons accused of terrorism in order to “cause their cases to be dismissed.” Once

again, the district court imposed the same 22-year sentence

that this Court previously vacated because we could not

decide whether it was reasonable based on the record of the

original sentencing proceedings. In doing so, the district court

failed to provide any reasons for rejecting the Government’s

arguments tethered to relevant § 3553(a) factors, including the

value to be given to Ressam’s early cooperation with the Government in view of his subsequent recantations and the need

to protect the public from Ressam’s potential to commit

future terrorist crimes, as he will be only 53 years old upon

his release. Without such explanations, we cannot conduct a

meaningful review under the abuse of discretion standard to

determine whether a sentence that is 43 years below the advisory Sentencing Guidelines is substantively reasonable, or

whether a longer sentence is needed to protect the public from

future terrorist crimes by Ressam.

Because the trial judge’s previously expressed views

appear too entrenched to allow for the appearance of fairness

on remand, we direct that the case be re-assigned to a different judge for resentencing.

UNITED STATES v. RESSAM 19851
SENTENCE VACATED, REMANDED FOR REASSIGNMENT AND RESENTENCING.

FERNANDEZ, Circuit Judge, dissenting:

We are required to give due deference to a district court’s

sentencing decisions. See United States v. Carty, 520 F.3d

984, 993 (9th Cir. 2008) (en banc). That does not mean a

grudging deference; it means that even if we would prefer a

different sentence, we may not reverse. Id. In fact, “[e]ven if

we are certain that we would have imposed a different sentence had we worn the district judge’s robe, we can’t reverse

on that basis.” United States v. Whitehead, 532 F.3d 991, 993

(9th Cir. 2008). As I see it, that requires us to approach our

review of a substantive reasonableness1 issue with a great deal

of humility. It is not always easy to avoid consulting oneself

about what one would do if one were the sentencing judge. A

case like this is especially tempting in that regard, and I fear

that the majority has not resisted the temptation into which it

has been led.

The record here makes it apparent that the district court,

which lived with this case for many years, considered the

materials placed before it and touched all of the procedural

bases.2 The court calculated the guideline range,3 and no one

1The government has expressly conceded that the sole issue on appeal

is substantive reasonableness. That is all we should consider. In part II of

the opinion, however, the majority, indicates that, despite the government’s concession, it must and will take up procedural error, but shrouds

that determination with a brume of words whereby it suggests that procedure must be melded into the substantive reasonableness determination.

The result is a gallimaufry that, by mistake or design, will (as it does here)

require courts to consider far more than substantive reasonableness, even

when the parties raise only that. No doubt that hodgepodge has contributed

to the majority’s ultimate erroneous decision here. Unfortunately, it is also

a disagreeable gift to the law, and it will keep on giving. 

2Again, the government does not even contend on appeal that there was

reversible procedural error. 

3

See 18 U.S.C. § 3553(a)(4). 

19852 UNITED STATES v. RESSAM
says that it did so improperly. It also considered that range.

It then expressly considered the nature and circumstances of

Ressam’s heinous offense and the history and characteristics

of Ressam;4 the seriousness of the offense, the need to promote respect for the law, and the need to impose a just punishment;5

 the need to adequately deter others;6 and the need to

avoid sentence disparities.7 And, while it did not specifically

discuss the need to protect the public,8 it did note that it had

to consider that, and we have nothing to indicate that it did

not do so. The same is true of the provision regarding treatment of Ressam in the most effective manner,9

 although the

court’s reflection on the onerous conditions of Ressam’s

incarceration might be seen as touching on that issue. And,

while the court did not specifically mention the kinds of sentences available,10 that does seem rather obvious in this case.

Of course, it is not even necessary for a district court to refer

to each and every item in § 3553 when it sentences a miscreant. See Carty, 520 F.3d at 992. We do, after all, “assume that

district judges know the law and understand their obligation

to consider all of the § 3553(a) factors . . . .” Id.

So where does that leave the majority? Simply put, it seems

to me that the majority just does not like the fact that this terrorist is to sit in prison for a mere twenty-two years. What

number would the majority choose; who knows? But although

many federal sentences are even more draconian, twenty-two

years seems like a long time to me, whether a defendant is

young or old to start with. It is not a mere slap on the wrist,

especially if the confinement conditions will be especially

4

See id. § 3553(a)(1). 

5

Id. § 3553(a)(2)(A). 

6

Id. § 3553(a)(2)(B). 

7

Id. § 3553(a)(6). 

8

Id. § 3553(a)(2)(C). 

9

Id. § 3553(a)(2)(D). 

10Id. § 3553(a)(3). 

UNITED STATES v. RESSAM 19853
harsh, as the district court predicted they would be. Yet, when

all is said and done, the majority simply does not like the way

the district court weighed the evidence before it; obviously

the majority would have done it differently.

Would I give Ressam that “light” a sentence? I somehow

doubt it, but that is not the point. The point is that there are

many sites within the borders of reasonable sentencing territory, and our job is to patrol those borders to assure that the

district court has not slipped over them and into the land of

abusers of discretion. That will rarely happen; it did not happen here. Unfortunately, this case is not just about what

befalls Ressam; it reflects another entry by appellate courts

into territory that always lures them, but is always forbidden

to them. Society, we, and the district courts will someday

regret the results of our case-by-case trespassing onto lands

we should stay out of; the day this decision becomes law will,

indeed, be a dies infaustus. 

In short, the sentence was neither procedurally erroneous

nor substantively unreasonable. See Carty, 520 F.3d at 993.

Even if we have to grit our teeth to do so, we should let it be.11

Thus, I respectfully dissent.

11Even if I were to agree with the majority on the sentencing issue itself,

I could not agree with its decision to remove Judge Coughenour because

I do not see his approach to Ressam’s sentencing as either indurate or

inexplicable. I would not order transfer of this complex, long-standing

(over ten years) case to a different district judge. 

19854 UNITED STATES v. RESSAM