Wednesday, February 3, 2010
Court Again Orders New Sentencing for ‘Millenium Bomber’
From Staff and Wire Service Reports
The 22-year sentence imposed on the so-called “Millennium Bomber” was excessively lenient, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
In a 2-1 decision, the court reversed the sentence that was twice imposed by U.S. District Judge John Coughenour of the Western District of Washington, who now has senior status. The panel also took the unusual step of removing Coughenour from the case, which means that Ahmed Ressam will now be sentenced by another judge of the Seattle-based court.
Ressam is an Algerian national convicted of plotting to detonate explosives at Los Angeles International Airport while Americans celebrated the beginning of the year 2000.
Ressam was arrested after crossing into Washington state from Canada by ferry. A suspicious customs inspector initiated an intensive search of his vehicle, which revealed explosives.
Investigators discovered that Ressam had been turned down for asylum in Canada but was allowed to stay in that country due to a moratorium on deportations to his homeland. He trained with al-Qaida in Afghanistan before returning to Canada, where he continued to work on the Millennium plot, in February 1999.
Ressam was convicted of lying on a customs declaration, carrying an explosive during the commission of that felony, international terrorism, placing explosives in proximity to a ferry terminal, possessing false identification, using a fictitious name, smuggling and transportation of explosives, and illegal possession of a destructive device.
Facing 65 years or more in prison under the Sentencing Guidelines, he began cooperating with authorities, although he stopped doing so in early 2003. His sentencing was delayed until 2005 as the government unsuccessfully sought further assistance from him.
The prosecution then urged a sentence of 35 years, while defense counsel argued that the cooperation he had given earlier warranted sentencing Ressam to 10 years.
After Coughenour imposed the 22-year sentence, both sides appealed, the defense arguing that Ressam could not be guilty of carrying an explosive while lying on a customs declaration because the device was not being used to commit the underlying crime, and prosecutors arguing that the sentence was too lenient.
The Ninth Circuit, in a 2007 decision, agreed with the defense and reversed the conviction on the one count, without reaching the prosecution’s issue. The U.S. Supreme Court, however, reinstated the conviction, saying the statute required that the acts occur simultaneously, not that they be otherwise related to each other.
The case went back to the Ninth Circuit, which in a 2008 order sent the case back to Coughenour with instructions to resentence the defendant in light of changes in sentencing case law over the previous three years. At the new hearing, prosecutors argued for life in prison, while Ressam recanted all his prior cooperation and insisted that lawyers and prosecutors had badgered him into making false allegations against other alleged terrorists.
“Sentence me to life in prison or anything you wish,” Ressam told the judge. “I will have no objection to your sentence.”
But Coughenour again sentenced Ressam to 22 years, citing his two years of cooperation, and said Ressam’s “life history and personal characteristics support favorable sentencing consideration.”
Senior Judge Arthur Alarcon, however, wrote for the Ninth Circuit that the district judge had paid insufficient attention to 18 U.S.C. Sec. 3553(a), which lists the factors to be followed in sentencing, and the guidelines.
Alarcon emphasized two of the Sec. 3553(a) factors—the deterrent effect of the sentence and the need to protect the public from the defendant. He concluded that the district judge overstated the value of Ressam’s cooperation—which consisted largely of explaining his own history and confirming information that the government already knew—especially given his recantation and the fact that he waited until after the trial to furnish assistance.
“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,” Alarcon wrote.
The judge also said that Coughenour “clearly erred” in crediting a disputed report by a psychiatrist who claimed that a combination of solitary confinement and repeated interrogations had caused Ressam to deteriorate mentally, and that the trial jurist gave inadequate attention to the fact that Ressam would be only 53 years of age and able to resume terrorist activities at the end of the sentence.
He also pointed out that the total sentence was only 12 years more than the mandatory minimum on the count that was reinstated by the Supreme Court, that the international terrorism charge alone carries a recommended sentence of 25 years under the guidelines, and that if you take out those two offenses, the remainder carry a guidelines recommendation of not less than 30 years.
Alarcon went on to say that the district judge had shown a “very powerful” attachment to the now-twice-vacated sentence and that his “previously expressed views appear too entrenched to allow for the appearance of fairness on remand,” making reassignment of the case appropriate.
Judge Richard Clifton concurred, but Senior Judge Ferdinand Fernandez dissented, arguing that the district judge followed all of the procedural steps required by the sentencing law and was being shown inadequate deference.
“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.”
The case is United States v. Ressam, 09-30000.
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