Sidestepping Deference: How United States v. Ressam Encourages Overly Stringent Review of Sentencing Decisions

I. INTRODUCTION In United States v. Ressam, the Ninth Circuit reviewed the sentence imposed on Ahmed Ressam, an Algerian national convicted in a terror plot to plant explosives at the Los Angeles International Airport ("LAX") on New Year's Eve 1999. ' Reviewing district courtissued sentences requires appellate courts to give the sentencing decisions "substantial deference" without rendering appellate review an "empty exercise."2 Defining this balance, the Supreme Court in Gall v. United States directed appellate courts to examine all sentences - inside and outside the Federal Sentencing Guidelines ("Guidelines") range - for both procedural error and substantive reasonableness, using the abuse-of-discretion standard.3 In Ressam, a three-judge panel, by a two-to-one majority, vacated Ressam's below-Guidelines sentence because the majority determined that the sentencing judge committed procedural error.4 This Note argues that the majority failed to apply the abuse-ofdiscretion standard with appropriate deference to the trial judge's sentence.5 The Ninth Circuit's misapplication of the standard to review for procedural error more closely resembled a searching de novo review; consequently, the rigorous review to which the majority subjected the district court's sentence led it to wrongly detect procedural error and vacate the sentence.6 Further, this Note argues that the decision's reasoning equips appellate courts with tools that could inappropriately encourage them to use an outcome-driven analysis to encroach on traditional district court sentencing audiority and vacate sentences with which the appellate courts disagree.7 II. FACTS AND PROCEDURAL HISTORY Ahmed Ressam, an Algerian national, traveled from France to Montreal in 1994 "using an illegally altered French passport."8 Although Canadian autiiorities intercepted him, "[a] moratorium on deportations from Canada to Algeria" permitted Ressam to remain in Canada.9 In 1998 he traveled to Afghanistan under a fake name and underwent terrorist training in fight weapons, explosives, sabotage, and urban warfare.10 He returned to Canada in 1999 under directions to attack American interests before the end of the year; he chose to target LAX, one of the busiest American airports.11 In November 1999, Ressam traveled from Montreal to British Columbia, where he prepared explosives for the LAX bomb and hid tiiem along with other explosive components in the wheel well of a rental car's trunk.12 He then entered the United States with the rental car via ferry from British Columbia to Port Angeles, Washington.13 When customs inspectors searched the car upon his arrival in Port Angeles, Ressam fled and "attempted to carjack a vehicle" before the inspectors apprehended him and discovered the hidden explosives.14 After a jury convicted him on "nine counts relating to his attempt to carry out an act of terrorism transcending a national boundary," Ressam agreed to cooperate with U.S. law enforcement officers investigating terror-related activities in exchange for a potential downward adjustment of his sentence.15 Ressam provided information leading to a twenty-four-year prison sentence for Mokhtar Hauoari, one of Ressam's co-conspirators,16 and the capture and detention at Guantanamo Bay of Ahcene Zemiri, another of his collaborators.17 His cooperation buttressed U.S. Attorney complaints against Abu Doha - "a major player in the arena of terrorist activity" - and Samir Ait Mohamed, anotiier of Ressam's accomplices.18 Ressam also identified Zacarias Moussaoui, one of the 9/11 perpetrators, as a trainee at an Afghan terrorist camp and helped identify the "Shoe Bomber" Richard Reid's bomb as "a complete device that needed to be disarmed for transport to a lab for analysis."19 However, Ressam ultimately recanted much of his testimony and refused to cooperate further.20 This led to the dismissal of charges against Abu Doha and Samir Ait Mohamed.21 The district court sentenced Ressam in July 2005 to twenty-two years of imprisonment. …