Ninth Circuit Applies Substantive Reasonableness To Curb Lower Court's Variance Discretion
Jana C. Volante writes:
Courts of Appeal have increasingly explored their authority to review variances under the Sentencing Guidelines for both procedural and substantive reasonableness and, using those rubrics, to impose limitations on the discretion of lower courts. For example, on March 12, 2012, the Ninth Circuit handed down its opinion in United States v Ressam, 2012 WL 762986 (9th Cir. Mar. 12, 2012). In Ressam, the Ninth Circuit provided a thorough step-by-step analysis regarding appellate review of the substantive reasonableness of a sentence imposed by a federal district court under the now advisory Guidelines. Then, the Ninth Circuit vacated a sentence in which a convicted terrorist had received a far shorter prison term than the range suggested by the Guidelines.
Ahmed Ressam was apprehended as he carried out a plan to detonate explosives in LAX airport. After being convicted of nine different counts, but before being sentenced, Ressam entered into a cooperation agreement with the government. However, after briefly cooperating, Ressam refused to cooperate any further and recanted the testimony that he had given while cooperating. Despite this breach of the cooperation agreement, the district court judge sentenced Ressam to 22 years in prison and five years of supervised release, a very substantial downward variance from the applicable range of 65 years to life under the Guidelines.
On an appeal heard en banc, the Ninth Circuit embarked on an extensive analysis regarding whether the sentence imposed on Ressam was substantively reasonable in light of the factors set forth in 18 U.S.C. § 3553(a), using an abuse-of-discretion standard of review and looking at the totality of the circumstances. According to the Ninth Circuit, when a sentencing judge determines that an outside-Guidelines sentence is warranted, he/she must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of variance in light of the § 3553(a) factors.
According to the Ninth Circuit, Ressam’s sentence did not adequately reflect the seriousness of his offense, one of those factors. If his plan to blow up LAX had succeeded, he would have killed hundreds of people. Furthermore, many common criminals have been sentenced to much longer prison terms for offenses with much less serious consequences. The district court should also have considered the need to protect the public from further crimes. Under the sentence imposed by the district court, Ressam would be released from prison at the age of 51, an age when he would still be capable of organizing another terrorist attack. Because terrorists have a high likelihood of recidivism, are difficult to rehabilitate, and, thus, must be incapacitated to prevent future crimes, there is a substantial upward adjustment that the Guidelines provide for federal crimes of terrorism.
The Ninth Circuit also indicated that it is appropriate for a district court to consider a defendant’s cooperation when sentencing him. However, Ressam did not begin cooperating until he had been convicted by a jury and faced life in prison, leading to the conclusion that he did not cooperate out of sincere remorse or with an altruistic motive, and he then breached his agreement with the government.
Under Ressam’s cooperation agreement, even with his full and continuing cooperation, both parties committed to a prison sentence of “not less than 27 years.” The Ninth Circuit held that even if it was determined that Ressam should be given some credit for his cooperation in the absence of a government downward departure motion, he was not entitled to nearly enough credit to justify the substantial downward variance that would result if the district court’s 22-year sentence was to be affirmed.
Because the district court based its sentence on several findings that were clearly erroneous, the Ninth Circuit vacated the sentence imposed by the district court as being not substantively reasonable. District judges who effect significant variances from the Guidelines should increasingly expect that at some point, when the extent of the variance is great, appellate courts will place some boundaries on just how low (or, perhaps, high) they can go.
(Jana C. Volante, Esq., the author of this entry, is an associate with Fox Rothschild LLP, based in our Pittsburgh, PA office. Her practice concerns white collar criminal defense and commercial litigation)
