U.S. v. RESSAM

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 Cat, Inc. v. Constr. Laborers Pension Trust for S. Cal, 508 U.S. 602, 622, 113 S.Ct. 2264, 124 L.Ed.2d 539 (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.

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 egard 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.").

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, 127 S.Ct. 2456 ("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 guide-lines 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, 586-587 (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 "[substantial 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 substantial-assistance downward departure, the district court should consider the following five factors:

(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 in-formation 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 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. Rodriguez-Rodriguez, 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 co-operation while giving little or no 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. "[Rewarding 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.

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, 128 S.Ct. 586. 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 in-adequate 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. . . .

Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (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, 110 S.Ct. 2447, 110 L.Ed .2d 359 (1990) ("When an appellate court reviews a district court's factual findings, the abuse-of-discretion and clearly erroneous standards are in-distinguishable: 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.

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

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 pretrial plea offer of 25 years. At the resentencing hearing, the Government argued that using the pretrial 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 pretrial offer of a sentence of 25 years "might have some relation to the posttrial 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.

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 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).

The 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) addon."). 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)).

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 Guide-lines minimum recommendation of 360 months.

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 "remainfed] cognizant of[the Guidelines] throughout the sentencing process." Gall, 552 U.S. at 50 n. 6, 128 S.Ct. 586; 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, 128 S.Ct. 586.)); 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 Guide-lines range in imposing the sentence").

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

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 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.

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 "[substantial 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 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 un-classified 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 of these charges." The district court disagreed with the Government's assessment, concluding instead that "Mr. Ressam's co-operation [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 farreaching 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."

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 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").

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 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.

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

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."

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.

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. The district court noted 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.

The notion that trained terrorists pose a grave danger to the public has also been recognized in the context of pretrial detention. See, e.g., United States v. Hir, 517 F.3d 1081, 1094 (9th Cir. 2008) (affirming order requiring that Hir be detained pretrial 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 pretrial detention because each individual defendant's attendance and training at the alFarooq camp makes him a danger to the community).

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 Government 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,

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 appellate 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

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. 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

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) ("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 error neous 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 highend 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 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.

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 co-operation 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.

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 it-self 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).

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.

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 ex-pressed views appear too entrenched to allow for the appearance of fairness on remand, we direct that the case be reassigned to a different judge for resentencing.

SENTENCE VACATED, REMANDED FOR REASSIGNMENT AND RESENTENCING.