Page 1
Ninth Circuit Jurist Bemoans What He Calls ‘Troubling’ Precedent Governing Sentencing
Circuit Judge Pens Concurrence to Own Majority Opinion Upholding Sentence of Arms Dealer Based on Acts Underlying Dismissed Charge, Saying Case Highlights Incongruity of Law
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday upheld the 30-year prison sentence of a man convicted of attempting to export military equipment to Libya—even though the applicable federal guidelines provided for a range of six to eight years—saying the trial judge permissibly relied on conduct underlying a dismissed count in imposing the punishment, drawing a concurrence saying the case highlights a “disturbing incongruity” in governing jurisprudence.
Circuit Judge Daniel P. Collins authored both the majority and concurring opinions, writing that “my opinion for the panel faithfully applies current precedent concerning the review of federal sentence” but arguing that “this case starkly illustrates a very troubling feature of the precedent we must apply.”
The precedent at issue is the 2005 U.S. Supreme Court decision in U.S. v. Booker, in which a five-member majority held, in an opinion by Justice John Paul Stevens, that the Sixth Amendment is violated by the imposition of an enhanced sentence under mandatory federal guidelines if the factors justifying the increase—other than the fact of a prior conviction—were not found true by a jury or admitted by the defendant.
Key to the holding was the mandatory nature of the sentencing guidelines in effect at the time of the decision. Stevens wrote:
“If the Guidelines…could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment.”
Having found that the guidelines in effect at the time violated the Sixth Amendment to the extent that they relied on judicial fact-finding to increase the maximum permissible sentence, the Booker court turned to the question of the proper remedy.
The remedy was announced in a separate five-justice majority opinion, authored by Justice Stephen Breyer, declaring that portion of the federal sentencing statute making the guidelines mandatory is incompatible with the Constitution and “must be severed and excised.”
Breyer’s opinion adopted an across-the-board instruction to review all sentences for “reasonableness.”
The application Collins called “troubling” came before the Ninth Circuit after Rami Ghanem—a naturalized U.S. Citizen originally hailing from Jordan—was indicted on numerous charges relating to attempting to export various munitions and weapons to Libya. He pled guilty to two counts of violating the Arms Export Control Act and a related conspiracy charge, unlawful smuggling, and money laundering.
Ghanem proceeded to trial on a remaining charge that he had conspired to acquire, transport, and use surface-to-air anti-aircraft missiles (“SAMs”) in violation of 18 U.S.C. §2332g. After a jury found him guilty, then-Senior District Court Judge S. James Otero of the Central District of California (now retired) sentenced him to 30 years’ imprisonment on the §2332g count and a concurrent, equal sentence on the remaining offenses.
On appeal, the Ninth Circuit vacated the §2332g conviction due to a defective jury instruction on the disputed issue of venue. On remand, prosecutors agreed to dismiss the §2332g charge, and District Court Judge Fernando L. Aenlle-Rocha resentenced him on the remaining counts to 30 years in prison.
Aenlle-Rocha found that he was allowed to consider the conduct underlying the vacated charge and said that the “relevant conduct remains unchanged from the time that…the trial judge…imposed sentence in 2019.”
Noting the “extremely serious” nature of Ghanem’s actions—which included purportedly offering bonus payments to any agents who actually shot down a plane using SAMs provided by the defendant—and the national security issues at stake, the judge said that “a significant upward variance and departure” from the guidelines was warranted.
Collins’ View
Collins wrote in his concurrence:
“As applied to the facts of this case, the two portions of the Booker opinion produce a disturbing incongruity. Under Justice Stevens’s majority opinion in Booker (which, for convenience, I will call ‘Booker Part I’), Ghanem has a constitutional right under the Sixth Amendment to have a jury find any fact that would increase his sentence beyond what is allowed under the guidelines regime….”
He continued:
“Here, there are no facts established by a ‘jury verdict,’ because the jury’s conviction of Ghanem on the § 2332g charge was vacated on appeal….[and] the ‘facts established by [Ghanem’s] plea of guilty’ are quite limited….Those discrete facts support, at most, a guidelines range of 78–97 months, and therefore any upward departure from that range would require additional fact-finding that, under Booker Part I, only a jury may make. Thus, under Booker Part I, it would be a flagrant violation of Ghanem’s Sixth Amendment rights to allow a district judge to make the findings necessary to raise Ghanem’s sentence above the 97-month cap that applies under the mandatory guidelines system created by Congress.”
However, the jurist said:
“But under Justice Breyer’s further majority opinion (which I will call ‘Booker Part II’), the ‘remedy’ for this violation of Ghanem’s Sixth Amendment rights is to eliminate the very feature of the guidelines that gives rise to that Sixth Amendment right—namely, the mandatory nature of the guidelines. That is, the ‘remedy’ for the Sixth Amendment violation that would result from allowing the district judge to find the facts that would waive the guidelines’ 97-month cap in Ghanem’s case is simply to waive that cap in all cases—thereby allowing the district judge to freely impose a 360-month sentence that is more than triple the top of the guidelines range.”
Effectively Eliminates
Saying that the interplay between the two opinions in Booker “effectively eliminates the Sixth Amendment violation by getting rid of the relevant Sixth Amendment right,” he said the remedy “is akin to ‘curing’ a patient’s illness by killing the patient—that certainly gets rid of the illness, but it loses sight of what is at stake.”
Noting that only Justice Ruther Bader Ginsburg joined in “both parts of Booker” but that “she did not write separately to explain how to reconcile” the two, he opined:
“We are thus left with a situation in which,…under the Sixth Amendment as construed in Booker Part I, Ghanem’s sentence in this case is patently unlawful. But we must nonetheless uphold it because Booker Part II eliminated the predicate for Ghanem’s Sixth Amendment claim by ‘engag[ing] in a wholesale rewriting’ of the Sentencing Reform Act by facially deleting two of the Act’s provisions and then adding—again, across the board—a new, judge made ‘reasonableness’ review requirement.”
Collins added:
“As a judge on a court that is ‘inferior’ to the ‘one supreme Court,’…I am constrained to follow the clear holding of Booker Part II, no matter how flawed it may seem, and I have faithfully done so. But I cannot help but note that, in applying Booker Part II, I have been required to affirm a sentence that even the Government’s lawyer candidly conceded at oral argument was ‘absolutely’ unlawful under the statute as written by Congress. Only the Supreme Court has the authority, if it sees fit, to address this disquieting anomaly.”
Majority Opinion
Senior Circuit Judge Richard R. Clifton and Circuit Judge Kenneth K. Lee joined in the majority opinion upholding the sentence as “reasonable.” As to Ghanem’s assertion that Aenlle-Rocha wrongly relied on the conduct underlying the dismissed count, the panel concluded:
“Contrary to what Ghanem suggests, the district court did not simply disregard the guidelines factor and arbitrarily pick a sentence that was untethered to any objective benchmark….[T]he district court viewed the relevant conduct as being the same as at the prior sentencing. The district court had before it the entire record of the trial, and it found by a preponderance of the evidence that Ghanem had been involved in the delivery and operation of SAMs in Libya that underlay the now-vacated conviction under § 2332g.”
Collins continued:
[W]e are hard-pressed to say that, under the extreme circumstances of this case, the district court abused its discretion in deciding to fix the extent of its variance from the guidelines range by deciding simply to replicate the prior sentence. Given the facts of this case, and the deference owed to the district court, we conclude that the district court’s ‘justification is sufficiently compelling to support the degree of the variance.’ ”
The case is U.S. v. Ghanem, 22-50266.
Copyright 2025, Metropolitan News Company