Tuesday, February 02, 2010

U.S. v. Rassam (9th Cir. - Feb. 2, 2010)

Here's another case that will go en banc.

It's a high-profile case, involving high profile issues: Here, what sentence should be given to Ahmed Rassam, the "Millennium Bomber" who plotted to detonate explosives at LAX on December 31, 1999. Rassam cooperated with the government for two years, but then stopped (and retracted his prior statements). The district judge sentenced Rassam to 22 years, and the latest appeal basically involves the U.S. saying "that's too little," since it's a downward departure from the guidelines.

It's an exceptionally fact-specific case, so normally it wouldn't get taken en banc. But it's high profile. Terrorism, guidelines, and the like. Plus, the majority's pretty hard core here. It both reverses the sentence and remands the case to a different judge, notwithstanding (or perhaps in part due to) the fact that he's been doing the thing for the past decade.

But what especially makes the case likely to go en banc is the lineup. The majority opinion is written by Judge Alarcon and joined by the sole active judge on the panel, Judge Clifton. But Judge Fernandez -- a Bush I appointee, and hardly someone who's "soft on crime" or "pro-terrorist" -- dissents.

Judge Alarcon writes a 70+ page, single spaced opinion. Judge Fernandez's dissent spans only a tiny bit more than two pages. And basically says precisely why the case will be reviewed.

Here are the money lines:

"We are required to give due deference to a district court’s sentencing decisions. See United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). That does not mean a grudging deference; it means that even if we would prefer a different sentence, we may not reverse. Id. In fact, “[e]ven if we are certain that we would have imposed a different sentence had we worn the district judge’s robe, we can’t reverse on that basis.” United States v. Whitehead, 532 F.3d 991, 993 (9th Cir. 2008). As I see it, that requires us to approach our review of a substantive reasonableness issue with a great deal of humility. It is not always easy to avoid consulting oneself about what one would do if one were the sentencing judge. A case like this is especially tempting in that regard, and I fear that the majority has not resisted the temptation into which it has been led.

The record here makes it apparent that the district court, which lived with this case for many years, considered the materials placed before it and touched all of the procedural bases. . . . So where does that leave the majority? Simply put, it seems to me that the majority just does not like the fact that this terrorist is to sit in prison for a mere twenty-two years. What number would the majority choose; who knows? But although many federal sentences are even more draconian, twenty-two years seems like a long time to me, whether a defendant is young or old to start with. It is not a mere slap on the wrist, especially if the confinement conditions will be especially harsh, as the district court predicted they would be. Yet, when all is said and done, the majority simply does not like the way the district court weighed the evidence before it; obviously
the majority would have done it differently.

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. Society, we, and the district courts will someday regret the results of our case-by-case trespassing onto lands we should stay out of; the day this decision becomes law will, indeed, be a dies infaustus.

In short, the sentence was neither procedurally erroneous nor substantively unreasonable. [Cite] Even if we have to grit our teeth to do so, we should let it be."

That strikes me as precisely right. I, too, am not at all sure that I would have given Rassam 22 years; particularly given the fact that he's recanted everything he's previously said, and seems to have turned (for perhaps explicable reasons) from a pro-government witness into someone who (again) affirmatively detests the United States, I'm not at all confident that 22 years is long enough, or that the downward departure extended to him is something that I would do.

But that's not the point. Discretion means sometimes -- often times -- letting things go by when you think they're wrong. I might not give the guy 125 years either; maybe I'd want to hold out hope that he would, in his old age, again change his attitude and, in any event, not be a very good (or dangerous) terrorist at, say, age 70. But if the district court took a contrary approach, while I would disagree with that, it seems to me within the realm of reason. As does 22 years.

Sometimes being a judge means admitting that you're not necessarily right; that other judges may -- on occasion -- possibly be more informed, or at least entitled to deference. This is one of those cases.

So I think that Judge Fernandez gets it exactly right. And his point about humility strikes a definite chord with me.

So my prediction is that this one gets taken en banc. And rightly so.