UNITED STATES of America, Plaintiff-Appellant, v. Ahmed RESSAM, Defendant-Appellee, 679 F.3d 1069

Opinion by Judge CLIFTON; Concurrence by Judge REINHARDT; Dissent by Judge SCHROEDER. OPINION CLIFTON, Circuit Judge: The government appeals the sentence imposed by the district court upon Ahmed Ressam, the so-called “Millennium Bomber,” as substantively unreasonable. We review a challenge of that nature under what the Supreme Court has described as “the familiar abuse-of-discretion standard of review.” Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).

Ressam was convicted by a jury on nine counts of criminal activity in connection with his plot to carry out an attack against the United States by detonating explosives at the Los Angeles International Airport, commonly known and referred to by its airport code “LAX.” His plan was for the attack to occur on the eve of the new millennium, December 31, 1999. The advisory Sentencing Guidelines imprisonment range for Ressam’s convictions was calculated by the district court to be 65 years to life. That calculation has not been challenged by either party.

The district court sentenced Ressam to a term of imprisonment of 22 years, plus five years of supervised release. Upon our review of the record, we conclude that the district court abused its discretion in sentencing Ressam as it did. As a result, we conclude that the sentence imposed by the district court was substantively unreasonable. We vacate the sentence and remand the case to the district court for resentencing. I.

Factual Background and Procedural History As discussed below, our review of a sentence for substantive reasonableness is to consider the “totality of the circumstances” regarding the particular defendant. Gall, 552 U.S. at 51, 128 S.Ct. 586; United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc). As a result, we will describe in some detail the relevant circumstances, the arguments presented to the district court, and the district court’s explanation of the sentence that it imposed. Ahmed Ressam is an Algerian national.

Traveling on a false Moroccan passport issued in the name of Nassar Ressam, he left Algeria in 1992 and went to France. In 1993 French authorities deported him to Morocco and banned him from returning to France for three years. He was returned to France by Moroccan authorities when it was determined that he was not Moroccan. In 1994 Ressam arrived at Mirabel Airport in Montreal, Canada, using an illegally altered French passport.

When Canadian immigration personnel confronted him, he divulged his true name and applied for refugee status, indicating on his application that he left Algeria in December 1993 after having been arrested and jailed for 15 months for arms trafficking to terrorists in Algeria. Ressam’s request for refugee status in Canada was denied. A moratorium on deportations from Canada to Algeria allowed him to stay in Canada, however, under conditions set by the Canadian government. He failed to comply with those conditions, and in May 1998 a warrant was issued for his arrest.

He was not arrested, however, because at the time the warrant issued, he was attending a terrorist training camp in Afghanistan. In March 1998, traveling under the name of Benni Noris, Ressam left Montreal for Karachi, Pakistan. In Karachi, he got in touch with Abu Zubeida, who was in charge of the Afghan terrorist training camps. While he was in Afghanistan, fatwahs were issued, including one by Sheikh Omar Abdel Rahman, directing the terrorists to fight Americans and hit their interests everywhere. Between March 1998 and February 1999, Ressam attended three training camps for Islamic terrorists in Afghanistan.

He first received instruction at Khalden Camp in light weapons (handguns, machine guns, and rocket launchers), the making of explosive devices (including TNT, C4 plastic explosives, and black plastic explosives), sabotage, the selection of targets, urban warfare, tactics (including assassinations), security, and the use of poisons and poisonous gas. The sabotage training included learning how to disrupt the infrastructure of a country, by destroying locations such as electric plants, gas plants, airports, railroads, and hotels.

The urban warfare training instructed on how to carry out operations in cities, how to block roads, how to assault buildings, and covered the strategies used in these operations. Explosives training included how to do surveillance, take pictures, and blend in by wearing clothing that a tourist would wear. The weapons and ammunition used at the camps were supplied by the Taliban. Plans were underway to carry out terrorist operations in Europe and elsewhere.

After attending Khalden Camp, Ressam moved to Toronta Camp located outside Jalalabad, Afghanistan, where he was trained over the course of a month and a half in the manufacture of explosives. He learned how to put chemical substances together to form explosives and how to make electronic circuits to be used to blow things up. Ressam and five other terrorists were part of a cell charged with carrying out an operation against a target in the United States — an airport or a consulate — before the end of 1999. The leader of the cell was to stay in touch with Abu Jaffar in Pakistan and Abu Doha in Europe.

The plan was for the cell’s members to travel separately and meet in Canada, where they would carry out bank robberies to finance their operation in the United States. In February 1999, Ressam returned to Canada, traveling under the name Benni Noris and carrying $12,000 in cash, a chemical substance called Hexamine used as a booster in the manufacture of explosives, and a notebook with instructions on how to put together explosives. In the summer of 1999, Abu Doha informed Ressam, from London, that the other members of the Montreal cell had decided to remain in Europe because they ran into immigration problems.

Ressam decided to continue with the operation without the other members of his cell. He chose LAX as his target, knowing that, as a result, many civilians would die. While planning the operation, Ressam worked with his friend, Ahcene Zemiri, who helped him plan a bank robbery intended to secure funds to finance the attack in the United States. Ressam and Zemiri did surveillance on the bank. Ressam asked Zemiri and Samir Ait Mohamed to obtain a pistol with a silencer and hand grenades to use during the bank robbery.

Ressam planned to throw a live hand grenade at the police and run if he needed to do so in order to get away. In November 1999, Ressam and his co-conspirator, Abdel Dahoumane, traveled from Montreal to Vancouver, B.C., where they prepared explosives for the LAX bomb in a rented cottage. On December 14, 1999, Ressam and Dahoumane traveled from Vancouver to Victoria, B.C., with all of the components of the bomb, including explosives, hidden in the wheel well of the trunk of a rental car. Continuing alone, Ressam drove the car carrying the explosives onto an American car ferry at Tsawwassen, B.C.

The ferry arrived in Port Angeles, Washington, later that evening. Upon leaving the ferry, Ressam was questioned by a U.S. customs inspector. She detected nervousness and directed Ressam to a secondary inspection area. Ressam filled out a customs declaration form falsely, stating that his name was Benni Noris and that he was a Canadian citizen. One customs inspector conducted a pat-down search on Ressam as others were searching the car. When an inspector discovered what appeared to be contraband in the wheel well of the trunk, Ressam fled on foot. Customs inspectors gave chase.

In the course of the chase, Ressam attempted to carjack a vehicle. He was apprehended by the customs inspectors and returned to the inspection area in a police car. The inspectors resumed searching the trunk of Ressam’s car. As the inspectors reached into the wheel well to remove the contraband, Ressam ducked down behind the protection of the police car’s door. An explosives expert later determined that the materials found in the car were capable of producing a blast forty times greater than that of a devastating car bomb.

Following his arrest, the government indicted Ressam on the nine counts identified above, at 4674, note 1. The statutory maximum penalty for these offenses was 130 years in prison. Before trial, the government offered Ressam an agreement to recommend a sentence of 25 years of imprisonment in exchange for a guilty plea. The government considered the sentence offered to be substantially discounted, taking into account the risk of trial.

At that time, the government was concerned that its evidence with regard to the most serious charge and the one that carried the most weight, count one of the indictment, alleging conspiracy to commit

an act of terrorism transcending national boundaries, was thin. The government was uncertain about its ability to prove what Ressam intended to do once he crossed the border, using a phony passport and carrying more than 100 pounds of explosives. It was not until closer to the time of trial that some of the most important evidence was developed with regard to what Ressam intended to do with the explosives. Ressam rejected the pre-trial plea offer of 25 years.

Due to concern for possible prejudice because of public sentiment in the Seattle area, the trial judge granted Ressam’s motion to transfer the site of the trial to Los Angeles. Following a 19-day trial involving approximately 120 witnesses and more than 600 exhibits, a jury convicted Ressam on all counts on April 6, 2001. About one month after the jury verdict but before sentencing, counsel for Ressam informed the government that Ressam wished to cooperate with law enforcement authorities in the investigation of terrorist activities.

The following week, on May 10, 2001, Ressam began meeting with government agents in an attempt to cooperate. Ressam’s position was that the United States Attorney should agree upon a sentencing range of 10 to 15 years in prison in exchange for his cooperation. On June 22, 2001, the United States Attorney responded to Ressam’s offer with a proposed cooperation agreement. Ressam signed the agreement the next day.

The cooperation agreement required Ressam’s full cooperation with designated agencies and his truthful testimony in court proceedings as requested by the government, including but not limited to the trial of his co-conspirator, Mokhtar Haouari. In exchange, the government agreed to file a U.S.S.G. § 5K1.1 motion asking the court for a downward departure from the applicable Sentencing Guidelines range of 65 years to life, a range which was then mandatory.

The parties agreed that neither side would request a sentence of less than 27 years or greater than the high end of the Guidelines range, which was life imprisonment. Between May 10, 2001, and September 11, 2001, Ressam met with government agents approximately 22 times. In July Ressam testified as a prosecution witness at the trial of Haouari, who had recruited Abdelghani Meskini to support Ressam’s terrorist plot to bomb LAX. United States v. Haouari, 2001 WL 1154714, at *2-4 (S.D.N.Y. Sept. 28, 2001). Meskini pleaded guilty and also testified against Haouari.

The jury found Haouari guilty, and he was sentenced to 24 years in prison, two years short of the statutory maximum. Based almost entirely upon information provided by Ressam, the government filed a complaint against Abu Doha, a major player in the arena of terrorist activity. Ressam was aware that the success of the government’s attempts to extradite Doha from England depended exclusively upon a comprehensive declaration provided by Ressam.

The government also relied on Ressam’s information to file a complaint against Samir Ait Mohamed, and Ressam knew the success of that proceeding would depend on his continued cooperation. After the terrorist attacks that occurred on September 11, 2001, Ressam identified Zacarías Moussaoui from a photograph as an individual whom he had met at the Khalden training camp.

Ressam also provided information that assisted law enforcement in determining that the shoe confiscated from Richard Reid, the so-called “Shoe Bomber,” was a complete device that needed to be disarmed before being put on a plane for transport to a lab for analysis. Six months after entering into the cooperation agreement with the government, Ressam began to show reluctance to discuss certain matters.

FBI Special Agent Humphries, who worked with Ressam from the commencement of his cooperation with the government, testified that in a June 2001 interview, Ressam had talked with him at length about Nacer Hamaidi, an individual in Vancouver, B.C., who had assisted Ressam. This information was passed on to Canadian authorities, but when officers from the Royal Canadian Mounted Police traveled to the United States to interview him, Ressam would no longer discuss Hamaidi, despite Agent Humphries’ effort to encourage him to do so.

Agent Humphries later testified that this was the first time there was a disconnect in the rapport with Ressam. Between September 11, 2001, and February 11, 2002, Ressam met with government agents on approximately 15 occasions, including his participation in a deposition hearing in New York related to prosecutions taking place against criminal defendants in Germany. In February 2002, nine months after Ressam began his cooperation with the government, Ressam’s counsel met with federal prosecutors and sought to renegotiate the terms of the parties’ cooperation agreement, particularly its 27-year floor.

According to Ressam’s counsel, Ressam was suffering from anxiety related to his impending sentence, his conditions of confinement were compromising his physical and mental well-being, and he wanted closure. The prosecutors stated that Ressam’s cooperation to date was not of a nature to lead them to consider recommending a sentence at the agreement’s 27-year floor, let alone dissolving that floor.

The government responded to Ressam’s complaint about the conditions of his confinement in the FDC SeaTac Special Housing Unit by reminding him that these conditions were influenced by the nature of his criminal acts and the serious charges on which he had been convicted. The government offered to assist Ressam in getting into the witness security program for prisoners in federal custody, which could result in a less onerous housing situation, albeit at some distance from Seattle. Ressam declined the offer.

The district court granted several sentencing continuances to allow Ressam to cooperate further with the government. He continued cooperating to some degree until early 2003. Over the course of his two-year cooperation, he provided 65 hours of trial and deposition testimony and 205 hours of proffers and debriefings. He provided information to the governments of seven different countries and testified in two trials, both of which ended in convictions of the defendants. He provided names of at least 150 people involved in terrorism and described many others.

He also provided information about explosives that potentially saved the lives of law enforcement agents, and extensive information about the mechanics of global terrorism operations. In February 2003 the government filed a motion for a further continuance of Ressam’s sentencing and requested an adjournment pursuant to the terms of his cooperation agreement with the government.

The government informed the district court that, relying on Ressam’s promise to cooperate, Abu Doha had been ordered extradited by a court in London to the United States for prosecution, and the government was in the process of extraditing Samir Ait Mohamed from Canada. The government stated in its motion that it had not yet decided on its position with respect to a § 5K1.1 motion and that, if forced to make a motion at that time, the government would likely make a sentencing recommendation calling for a considerably longer period of incarceration than it might had Ressam completed his promised cooperation.

On February 26, 2003, the district court held a hearing on the government’s motion for a continuance. At the hearing, the district court told the government it would grant a continuance conditioned upon the immediate filing of a § 5K1.1 motion for a downward departure based upon Ressam’s cooperation. The government filed a § 5K1.1 motion that same day, based on his substantial assistance in the Haouari prosecution. Nevertheless, Ressam was unwilling to continue cooperation. Concerned about Ressam’s state of mind and demeanor, in October 2003 Ressam’s counsel consulted with Dr.

Stuart Grassian, a Board-certified psychiatrist specializing in evaluating the psychological effects of stringent conditions of imprisonment. Dr. Grassian met with Ressam in November 2003 and concluded that his conditions of confinement played a very significant role in the deterioration of his state of mind. In February 2004, Dr. Grassian met in New York City with Ressam’s counsel, members of the United States Attorney’s Office, and behavioral science experts from the FBI.

It was decided that Ressam would be moved to a prison environment that would afford him more environmental, social, and occupational stimulation. The transfer was effected in June 2004. Dr. Grassian met with Ressam again in October 2004 and observed that he appeared to be less tense and that his thinking was strikingly clearer. Dr. Grassian reported that Ressam realized that he had made a solemn promise to cooperate, and that his continued refusal to testify and speak with the government could have serious adverse consequences in regard to his sentence and his custody status.

He did not resume cooperation, however, and by November 2004, Ressam’s counsel made it clear that his cooperation was finished and that he wanted to be sentenced. A sentencing hearing was held on April 27, 2005. Contrary to the terms set forth in the June 23, 2001 cooperation agreement, which provided that neither party would recommend a sentence of less than 27 years, Ressam requested a sentence of 12-1/2 years (150 months) of imprisonment. His position was that the starting point should be the government’s pretrial plea offer of 25 years, rather than the Sentencing Guidelines range of 65 years to life.

The government recommended a sentence of 35 years of imprisonment, noting that by ending his cooperation, Ressam had effectively terminated at least two criminal cases of vital interest to national security. The government acknowledged that Ressam had provided valuable assistance to the United States and to foreign authorities, and it filed a

summary of debriefings, proffers, and testimony provided by him. Based on that assistance, the government recommended a sentence that represented a substantial reduction from the 65-year bottom of the Guidelines range, despite his breach of the cooperation agreement. Agent Humphries, who was involved throughout the duration of Ressam’s cooperation, testified concerning the information received from Ressam and its usefulness.

Agent Humphries stated that Ressam’s information was helpful in providing a personal account of his movement from North America through Europe and into Afghanistan via safe houses in Pakistan. He also testified that most of the information Ressam provided to the FBI was already known within the U.S. intelligence community from classified sources, but Ressam served as an unclassified source, which permitted the federal government to provide the previously classified information to other law enforcement and intelligence services throughout the world without the same risk of exposing the original classified source.

Ressam argued that his cooperation was worth a greater reduction in his sentence. He claimed that he had ceased cooperating, in part, because he was having trouble remembering details. Ressam submitted a psychiatric report prepared by Dr. Grassian wherein he opined that the combination of solitary confinement and repeated interrogations had a negative effect on Ressam’s mental health, though the district court commented that “it strikes me that a lot of the details that he’s not remembering now are things that one would not forget.” Dr.

Grassian further stated that Ressam’s history provided strong evidence that he would not be a danger to the community. At the district court’s urging, Ressam asked for a three-month continuance of the sentencing hearing to allow him to consider whether he was willing to cooperate further in the prosecutions of Doha and Mohamed. Over the government’s objection, the district court continued the hearing. Ressam’s cooperation did not improve during the three months that followed.

On July 27, 2005, the district court held another sentencing hearing and heard argument from both sides, which largely repeated the arguments presented at the April 27, 2005 hearing. At the conclusion of the hearing, the district court sentenced Ressam to 22 years of imprisonment, plus five years of supervised release. After pronouncing the sentence, the district court provided the following explanation: Okay. Let me say a few things.

First of all, it will come as no surprise to anybody that this sentencing is one that I have struggled with a great deal, more than any other sentencing that I’ve had in the 24 years I’ve been on the bench. I’ve done my very best to arrive at a period of confinement that appropriately recognizes the severity of the intended offense, but also recognizes the practicalities of the parties’ positions before trial and the cooperation of Mr.

Ressam, even though it did terminate prematurely- The message I would hope to convey in today’s sentencing is two-fold: First, that we have the resolve in this country to deal with the subject of terrorism and people who engage in it should be prepared to sacrifice a major portion of their life in confinement. Secondly, though, I would like to convey the message that our system works.

We did not need to use a secret military tribunal, or detain the defendant indefinitely as an enemy combatant, or deny him the right to counsel, or invoke any proceedings beyond those guaranteed by or contrary to the United States Constitution. I would suggest that the message to the world from today’s sentencing is that our courts have not abandoned our commitment to the ideals that set our nation apart. We can deal with the threats to our national security without denying the accused fundamental constitutional protections. Despite the fact that Mr.

Ressam is not an American citizen and despite the fact that he entered this country intent upon killing American citizens, he received an effective, vigorous defense, and the opportunity to have his guilt or innocence determined by a jury of 12 ordinary citizens. Most importantly, all of this occurred in the sunlight of a public trial. There were no secret proceedings, no indefinite detention, no denial of counsel. The tragedy of September 11th shook our sense of security and made us realize that we, too, are vulnerable to acts of terrorism.

Unfortunately, some believe that this threat renders our Constitution obsolete. This is a Constitution for which men and women have died and continue to die and which has made us a model among nations. If that view is allowed to prevail, the terrorists will have won. It is my sworn duty, and as long as there is breath in my body I’ll perform it, to support and defend the Constitution of the United States. Ressam appealed from his conviction on count nine of the indictment, for carrying an explosive during the commission of a felony.

In a cross-appeal, the government challenged Ressam’s sentence as substantively unreasonable. We reversed the conviction on count nine. United States v. Ressam, 474 F.3d 597 (9th Cir.2007). Because that reversal required resentencing, we vacated Ressam’s sentence and remanded without discussing the merits of the government’s argument that the sentence was unreasonable. Id. at 604. The Supreme Court reversed this court’s decision and reinstated the conviction on count nine. United States v. Ressam, 553 U.S. 272, 128 S.Ct. 1858, 170 L.Ed.2d 640 (2008).

On remand, we vacated the sentence and remanded for resentencing because the district court had not determined the applicable Guidelines range, as required under our intervening en banc panel decision in Carty. United States v. Ressam, 538 F.3d 1166, 1167 (9th Cir.2008) (order). While the matter was on appeal, Ressam sent a letter to the district court recanting his prior testimony implicating Ahcene Zemiri in his terrorist plot. Similarly, in a letter to the United States Attorney’s Office, Ressam recanted his previous testimony against Haouari.

In the letter, Ressam claimed that he was not mentally competent when he testified against Haouari and that Haouari “is an innocent man.” Haouari v. United States, 510 F.3d 350, 352 (2d Cir.2007). Haouari submitted Ressam’s letter as “newly discovered evidence” sufficient to warrant the fifing of a second or successive 28 U.S.C. § 2255 petition, but that motion was denied. Id. at 352, 354.

After the imposition of the original sentence in July 2005 but before the resentencing hearing that was ultimately held on December 3, 2008, the district judge joined the public debate over the proper place to try persons accused of being terrorists, in testimony before the Senate Judiciary Committee and in op-ed columns in national newspapers. See Improving Detainee Policy: Handling Terrorism Detainees within the American Justice System Before the Senate Comm, on the Judiciary, 110th Cong. 110-455 (2008); John C. Coughenour, How to Try a Terrorist, N.Y. Times, Nov. 1, 2007; John C.

Coughenour, The Right Place to Try Terrorism Cases, Wash. Post, July 27, 2008. In those statements, the judge cited his experience with the Ressam case in support of his opinion that traditional federal courts were the appropriate place to put accused terrorists on trial. The resentencing hearing was held on December 3, 2008. The district court began by calculating the applicable Sentencing Guidelines range for Ressam’s crimes of conviction at 65 years to life, including a ten-year mandatory prison sentence for count nine to run consecutively to the sentences for all other charges.

Before imposing sentence, the district court heard from the parties. Appearing without counsel, by his own choice, Ressam told the district court that he recanted his testimony against Mokhtar Haouari and all statements implicating Abu Doha and Samir Ait Mohamed. Ressam made the following statement before the district court at his sentencing hearing: I suffered severe shock after the trial and I lost my mental faculty and I did not know what I was saying.

The government attorney and the investigator, they know about my mental condition that I was going through, and about my mental faculty and the procedure exposed to their own interests. They interpret some of my statements to suit their interests. And the statement that was put in my mouth, which I said yes, because — due to the extreme mental exhaustion I was going through. I also am subject of pressures put upon me by the attorneys and the investigators. The evidence presented in court should be obtained from a solid source that cannot be doubted.

But if the evidence and the statements are obtained from dubious sources or under pressure or a threat or from a mental incompetent source it should not be admitted. And that is the situation I was in. I sent in the past a letter to the government attorney Joe Bianco, in which I retrieved all my statements that I gave in the investigation in the past; all those I gave during the testimony of Mokhtar Haouari in the New York court because I neither proceed my mental faculties (sic) or I know what I was saying.

The New York judge was suspicion of my letter, and he thought that I was doing that because — and I did not because in order — He thought that I was doing that because I had nothing to lose and because I was already tired. I did not do that in order to win or to lose. First, I did that because I was not mentally competent and I did not know what I was saying. Second, I did that because — in the presence of that judge. I retract all. I repeat, all of the statements that I made in the past and do not want my word counted in my trial. So sentence me to life in prison or as you wish.

I have no objection to your sentencing. I want from you and from the New York justice to take another look as to Mokhtar Haouari case. Sentencing should set when the evidence at the hand is absolute, and look if the evidence is in doubt it would be preferable to rescind the decision. I go to different subject. I will move to the ease about Abu Doha and Samir Mohamed. Previously the government attorney called me, Bruce, about to testify in the ease of Abu Doha and Samir Mohamed in front of a jury in New York. At the beginning I refused, and then I accept because I could not find an alternative to that.

And also in order to appear at the earliest possible time in the court for my sentencing. The later reason will affect the case of Abu Doha and Samir Mohamed and cause their cases to be dismissed in America. When I appeared in front of the jury in New York I retrieved almost all the statements that I made in the past as to Abu Doha and Samir Mohamed. I indicate in my earlier statement because I did not know what I was saying. Ressam concluded by stating that he had nothing to say about his trial and asked the district court to “[sjentence me to life in prison or anything you wish.

I will have no objection to your sentence.” In its argument, the government retracted the position stated in the sentencing memorandum filed before the hearing, which recommended a sentence of 45 years. The government instead recommended that Ressam serve a term of life imprisonment, emphasizing the seriousness of the crimes, his further recantation and attempts to distance himself from his earlier cooperation, and the need to protect the public from further crimes.

With regard to the seriousness of the crimes, the government in its sentencing memorandum urged the district court to consider that “all of the crimes of which Ressam was charged and convicted were directed at achieving his goal of placing a bomb at [LAX].” The government underscored the serious treatment given to crimes of terrorism under the Sentencing Guidelines. It quoted United States v. Meskini, 319 F.3d 88, 92 (2d Cir.2003), which noted: Congress and the Sentencing Commission had a rational basis for concluding that

an act of terrorism represents a particularly grave threat because of the dangerousness of the crime and the difficulty of deterring and rehabilitating the criminal, and thus that terrorists and their supporters should be incapacitated for a longer period of time. Along similar lines, the government also argued: Ressam’s arrest on December 14, 1999, was not the result of a sudden lapse of judgment. It was the culmination of years of planning and work, all aimed at causing as much harm to the United States as he could possibly inflict.

Following his conviction in April 2001, Ressam claimed that after he observed the fairness with which the Court treated him throughout the trial, he had a change of heart and that he was “firmly against” terrorist operations in America and around the world. Ressam’s change of heart was short-lived. Ressam has provided no indication that he has repudiated the goals of terrorists to inflict harm on the United States. His decision to end cooperation raises the specter that he continues to pose a real and serious threat to the United States.

Ressam’s more recent decision to affirmatively help identified terrorists escape responsibility for their actions raises even more serious concerns. At this point in time, this Court [must] address the most fundamental question: at what age will Ressam no longer pose a threat to the people of the United States. The government acknowledged that Ressam’s cooperation, while it lasted, had been useful, but only to a degree.

It emphasized the termination of Ressam’s cooperation and observed that much of the value had been undermined or entirely lost as a result of his affirmative recantations subsequent to the 2005 sentencing hearings.

It summarized the value of Ressam’s cooperation generally as providing testimony in the prosecutions of individuals charged before he began his cooperation (such as the testimony he provided during the trial of Mokhtar Haouari), providing information about explosive devices that was very helpful in determining the nature of the device found in Richard Reid’s shoe and providing information that corroborated the information already known by the United States and foreign governments.

To be sure, the information about trade craft, terrorism organizations, and training camps that Ressam provided was in an unclassified form. Thus this information could be broadly disseminated to law enforcement officers both in the United States and abroad in order to broaden their base of knowledge. While this was of significant value, the information provided was not unique to Ressam. Perhaps his most valuable information — that leading to the charges against Doha and Mohamed — cannot be credited.

Ressam undermined that value when he chose to end his cooperation leading to the dismissal of these charges.... [H]e has also undermined his other cooperation by recanting earlier statements. The government stated that Ressam’s recantation of his prior statements regarding his terrorist training and the activities of other terrorists, and his decision to cease cooperating, forced the government to dismiss criminal charges against Doha and Mohamed.

The government noted that as a highranking al-Qaeda member with close ties to Osama Bin Laden, Doha was one of the most dangerous terrorists ever charged by the United States. After the dismissal of the charges against him, Doha was released from custody and left the United States. On the subject of Ressam’s cooperation, the government argued that it would not have entered into the cooperation agreement with Ressam if it had known what was going to happen.

It argued that “[a]ny benefit he provided initially has been substantially outweighed by his reversal, and[he] now attempts to use his position as a cooperating defendant to help his fellow terrorists.” Regarding the need to protect the public, the government explained that Ressam would still be relatively young upon release from prison if he were given a sentence similar to the one originally imposed by the district court in 2005: The Court’s July 2005 sentence, if reimposed, would mean that this defendant would be released in ten years, he would be out of jail in 2018. He would be 51 years of age.

Think about the defendant’s life prior to the arrest in this case, his fanatical commitment to jihad, his single-minded pursuit to attack the United States. Think about his recent decisions to help Abu Doha, Samir Mohamed, his most recent decision to affirmatively help Hassan Zemiri and Adil Charkaoui, and as of today his attempt to withdraw even his cooperation in the trial against Haouari.

The government urged the district court to “send the defendant away for a long enough period of time so there is no chance he will ever target innocent victims again.” After hearing from the parties, the district court again sentenced Ressam to 22 years in prison. The court’s explanation, in full, was as follows: The Ninth Circuit has made clear that the Sentencing Guidelines are only one factor to be considered among those factors set forth in 18 U.S.C.

Section 3553(a), in determining an appropriate sentence. I may not presume that the Guidelines range is reasonable. Nor should the Guidelines factor be given more or less weight than any other factor. Accordingly, I have also considered the other

Section 3553 factors in arriving at the sentence I am imposing today. On the one hand I recognize the need for the sentence imposed to reflect the seriousness of the offenses Mr. Ressam has committed, to provide just punishment for those offenses, and to promote respect for the law. Mr. Ressam’s crimes, if carried to their intended conclusion, would have resulted in the deaths and injuries of hundreds of innocent people and instilled fear across the country and even the world. Fortunately, Mr. Ressam’s arrest prevented such an outcome. Because of the work of an attentive Port Angeles Customs Inspector, Mr.

Ressam’s crimes did not lead to loss of life or limb, nor destruction of property. Nevertheless, the seriousness and heinousness of the act of terrorism Mr. Ressam was carrying out at the time of his arrest cannot be understated. On the other hand, I recognize Mr. Ressam’s extensive and valuable cooperation in the fight against terrorism during the first two years after his trial. Although it ended unwisely and prematurely, Mr. Ressam’s cooperation, unique in its breadth and scope, weighed heavily in my initial sentencing decision and its import has not changed in my analysis today.

The government’s 5K1.1 motion filed in February 2003 requested a downward departure from the Sentencing Guidelines based on Mr. Ressam’s substantial assistance in the case of United States versus Molchtar Haouari, a matter prosecuted in the Southern District of New York in the summer of 2001 and resulting in the conviction of Mr. Haouari. Mr. Haouari was sentenced in 2002 to a term of 24 years’ imprisonment. Mr. Ressam’s testimony at the trial connected Mr. Haouari to the terrorist plot, of which Mr. Ressam himself was a part, to bomb the Los Angeles International Airport on New Year’s Day 2000.

In addition to his substantial cooperation in that case Mr. Ressam also testified before a German tribunal on behalf of the German government in the trial against Mounir el Motassadeq. I am butchering that name. I will spell it. It is M-OU-N-I-R, E-L M-O-T-A-S-S-A-DE-Q. In December 2002, which resulted in a conviction and sentence of 15 years. The Court recognizes 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. However, 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. The defendant’s sentencing memorandum submitted before the July 2005 sentencing hearing summarizes the far-reaching impact of Mr. Ressam’s cooperation on the investigations and prosecutions of terrorist activities in this country and abroad. Downplaying the cooperation that Mr.

Ressam provided the government would diminish the likelihood of future cooperation by other apprehended terrorists. Further, doing so would not be fair to Mr. Ressam. After his trial he told me that the fairness of his trial was not what he expected, given what he had done. The fair treatment that Mr. Ressam received in his public trial was a major influence on his decision to break with his past and cooperate, a choice that undoubtedly saved innocent lives. In making that decision, he put his own life at risk.

In addition, he has spent years in solitary confinement in a country far from his family and loved ones and will, by any measure, be sacrificing a large portion of his life to pay for his crimes. I believe that the sentence I am imposing today will serve as a deterrent while promoting respect for the American rule of law by demonstrating the fairness of our federal court system rather than merely its punitiveness. In addition, I have taken into account Mr. Ressam’s history and characteristics. Reading Mr. Hillier’s 2005 sentencing memorandum and the report from Dr. Grassian leads me to the conclusion that Mr.

Ressam’s life history and personal characteristics support favorable sentencing consideration. His life and reasons for involvement in his crime do not support a conclusion that he is a good person, but it also deserves consideration. Mr. Hillier describes a quiet, solitary and devout man whose true character is manifest in his decision to cooperate. Through the course of the trial and immediately thereafter, Mr. Ressam wrestled with what he had done and why. As Mr. Hillier put it, Mr.

Ressam determined that violent action brought shame to the concerns he was trying to promote, and that as a result what he was doing was harmful in all respects. I have also taken into account the nature of Mr. Ressam’s crimes required that he be held in solitary confinement for upwards of four years, if not for the likely entirety of his sentence. This isolation is exacerbated by the fact that he does not speak English and has no opportunity for visits by friends and family abroad. These harsh conditions of confinement necessarily set Mr. Ressam’s situation apart from that of the typical criminal sentencing.

I am also persuaded that Mr. Ressam’s mental health deteriorated somewhat from the isolation of his confinement and the repetitive, intensive questioning to which he submitted, and that these conditions contributed to the early termination of his cooperation. Moreover, I have considered the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct. Mr. Haouari, for example, was sentenced to 24 years for his involvement in the same plot. Abdel Meskini, also indicted based on his connection to Mr.

Ressam and prosecuted in the Southern District of New York, pled guilty and received a sentence of six years. Finally, I have spent a good deal of time since Mr. Ressam’s previous sentencing reviewing other terrorism-related prosecutions around the country. According to a recent study of 124 defendants sentenced in terrorism trials in American federal courts since September 12, 2001 to December 31, 2007, a paper that was prepared by two former federal prosecutors, the average term of imprisonment was a little over eight years.

These cases involved different sets of facts and did not influence my decision in determining an appropriate sentence in this case. However, I mention a few of them here to provide a backdrop against which Mr. Ressam’s conviction and sentence may be viewed. For example, John Walker Lindh was captured during the 2001 invasion of Afghanistan while he was fighting in the Taliban army. Mr. Lindh was trained by al Qaeda and fought on the front lines in Afghanistan against the Northern Alliance.

The notoriety of his case stemmed in part from his involvement in a violent uprising • in Afghanistan in which a CIA agent was killed. He was later brought to the United States and indicted on ten charges in the Eastern District of Virginia. Ultimately, he pled guilty to supplying services to the Taliban army and carrying an explosive during the commission of a felony. He received a sentence of 20 years.

In 2002, Imran Mandhai pled guilty in the Southern District of Florida to conspiring to destroy electrical power stations by means of fire and explosives in retaliation for the U.S. government’s support of Israel and in an effort to secure the release of Muslim prisoners. After numerous sentencing appeals Mr. Mandhai received a sentence of 14 years. In 2005, after being held for three years as an enemy combatant, Jose Padilla was indicted in the Southern District of Florida on federal terrorism charges.

After a four-month jury trial, he was convicted of conspiracy to murder, kidnap and maim, and conspiracy to provide material support to terrorists. The conviction resulted in a sentencing [G]uideline[s] range of 360 months to life. Mr. Padilla received a sentence of 17 years and four months. In imposing the sentence, the Court considered the fact that Mr. Padilla had been held in solitary confinement under harsh conditions for a significant period of time and would likely be held under similar conditions in the future. Mr. Padilla’s co-conspirators, Mr. Hassan and Mr.

Jayyousi, received sentences of 15 years and eight months and 12 years and eight months, respectively. I note that none of the defendants in these cases cooperated as extensively, providing as much valuable information to the fight against terrorism as Mr. Ressam did. As I emphasized earlier, Mr. Ressam’s cooperation provided authorities in this country and abroad with an unprecedented view of the inner workings of al Qaeda that almost certainly thwarted future attacks. In fact, it was the extent of Mr.

Ressam’s cooperation in the conviction of one of his co-conspirators that resulted in the government filing a 5K1.1 motion, specifically requesting that Mr. Ressam be sentenced below the applicable [Gjuideline[s] range. Therefore, based on all the factors listed in 18 USC

Section 3553, I hereby reimpose a sentence of 22 years and a period of supervised release of five years subject to the standard conditions, together with those additional conditions set forth in the pre-sentence report. I recognize that the sentence I am imposing reflects a significant downward deviation from the advisory [G]uideline[s] range. However, I believe the factors I have examined on the record are sufficiently compelling to support the degree of the variance.

After the sentencing, the government moved to withdraw its § 5K1.1 motion, relying on language in the agreement that gave the government the right to withdraw the motion “[s]hould it be determined by the government that Mr. Ressam has violated any provision of this agreement.” The district court denied the motion as untimely. After advising Ressam of his right to appeal the sentence, the district court offered some concluding remarks: 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. Mr.

Ressam’s trial and the outstanding professionalism of both the prosecution and defense throughout this case illuminate how our country can deal with threats to our national security without denying the accused constitutional fundamental protections within the framework of our federal court system. As our nation prepares for a new

chapter of American history with a new president, it is my hope that those with the power to affect the way terrorism trials are conducted in this country will look favorably upon this case and share my view. The government appealed the sentence imposed upon Ressam. A three-judge panel of this court, by a 2-1 majority, vacated the sentence and remanded for resentencing before a different district judge. United States v. Ressam, 593 F.3d 1095 (9th Cir.), amended by 629 F.3d 793 (9th Cir.2010). We granted Ressam’s petition for rehearing en banc. United States v. Ressam, 653 F.3d 963 (9th Cir.2011). II.

The Government’s Appeal Ordinarily, when a sentence is appealed, “we first consider whether the district court committed significant procedural error, then we consider the substantive reasonableness of the sentence.” Carty, 520 F.3d at 993. In this appeal, however, the government has expressly disclaimed any procedural challenge to the sentence imposed by the district court.

In its opening brief, at 36, the government described the usual two-step process but made clear that it raised only a substantive challenge in this case: “The Court must first determine whether the district court committed significant procedural error, a claim not raised in this appeal.

The Court must then consider whether the sentence is substantively reasonable, the issue raised here.” (Citation omitted.) That stance was reiterated in the government’s reply brief, at 5: “A sentence is reviewed first for procedural error, although none is alleged here.” (Citation omitted.) As described in the opening brief, “[t]he sole issue presented in this case is whether the sentence imposed on Ahmed Ressam is substantively unreasonable in light of the facts of this case and the factors set forth in 18 U.S.C. § 3553(a),” the statute that specifies the factors to be considered in imposing a sentence.

Government counsel repeated the one-issue limitation at oral argument. As the government has decided to focus solely on the substantive reasonableness of the sentence, we elect to do the same. III. Standard of Review As noted at the outset of this opinion, we review the substantive reasonableness of a criminal sentence under what the Supreme Court has described as “the familiar abuse-of-discretion standard of review.” Gall, 552 U.S. at 46, 128 S.Ct. 586. That it might be familiar does not mean that it is always clear or simple to apply.

In general terms we have held that “[a] district court abuses its discretion when it makes an error of law, when it rests its decision on clearly erroneous findings of fact, or when we are left with a definite and firm conviction that the district court committed a clear error of judgment.” United States v. Hinkson, 585 F.3d 1247, 1260 (9th Cir.2009) (en banc) (quoting United States v. 4.85 Acres of Land, More or Less, Situated in Lincoln County, Mont., 546 F.3d 613, 617 (9th Cir.2008)), cert. denied, — U.S. -, 131 S.Ct. 2096, 179 L.Ed.2d 890 (2011).

In the sentencing context, the abuse of discretion standard is intended to chart a course between two extremes. It is clear that we are to afford significant deference to a district court’s sentencing decision. As stated in Carty, “we may not reverse just because we think a different sentence is appropriate.” 520 F.3d at 993. The Supreme Court explained this principle in Gall: Practical considerations also underlie this legal principle. The sentencing judge is in a superior position to find facts and judge their import under § 3553(

a) in the individual case. The judge sees and hears the evidence, makes credibility determinations, has full knowledge of the facts and gains insights not conveyed by the record. The sentencing judge has access to, and greater familiarity with, the individual case and the individual defendant before him than the Commission or the appeals court.

Moreover, [district courts have an institutional advantage over appellate courts in making these sorts of determinations, especially as they see so many more Guidelines sentences than appellate courts do. 552 U.S. at 51-52, 128 S.Ct. 586 (internal quotation marks and citations omitted). At the same time, our deference to the district court is not total. When it introduced the advisory Guidelines system in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Court made clear that appellate review of a sentence imposed by the district court was not eliminated.

Rather, a sentence is subject to review by the courts of appeals for “reasonableness.” Id. at 261-62, 125 S.Ct. 738. This is, we believe, where the dissenting opinion goes astray. It appears to our dissenting colleagues to be enough that the district court said that it considered the factors set forth in 18 U.S.C. § 3553(

a) and provided some explanation of its reasoning. Practically speaking, the dissent would limit its review of a sentence imposed by a district court to procedural regularity. The dissent characterizes our conclusion that the district court abused its discretion as a simple disagreement that amounts to an improper re-weighing by this court of the relevant factors and asserts, repeatedly, that our decision violates the Supreme Court’s directions in Gall. See, e.g., Dissenting op. at 1102. The dissent thus emphasizes “how scrupulously the district court followed § 3553(

a) in weighing each of its factors.” Id. at 1104. But Gall explicitly confirmed the responsibility of the court of appeals to review not only the process by which the sentence was imposed but also the substance of the sentence: “Assuming that the district court’s sentencing decision is procedurally sound, the appellate court should then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Gall, 552 U.S. at 51, 128 S.Ct. 586; see Carty, 520 F.3d at 993. That the district court followed the proper procedure in imposing the sentence does not end our review.

The abuse of discretion standard is deferential, but it does not mean anything goes. The Court held in Gall that the district court had not abused its discretion in that case, but it did not hold that discretion could never be abused. The dissenting opinion appears prepared to affirm the sentence imposed by the district court because it was imposed in a procedurally proper manner, but, as other courts have cautioned, appellate review for substantive reasonableness should not be such a “rubber stamp.” See United States v.

Pinson, 542 F.3d 822, 836 (10th Cir.2008) (“[U]ntil the Supreme Court tells us otherwise[,] appellate review continues to have an important role to play and must not be regarded as a rubber stamp.”); United States v. Rattoballi, 452 F.3d 127, 132 (2d Cir.2006) (“Our own review for reasonableness, though deferential, will not equate to a ‘rubber stamp.’ ”); United States v. Moreland, 437 F.3d 424, 433 (4th Cir.2006) (“Although [a reasonableness] standard clearly requires us to afford a degree of deference to the sentencing decisions of the district court,’reasonableness’ is not a code-word for ‘rubber stamp.’ ”).

We have, on rare occasion, vacated a sentence on the ground that it was substantively unreasonable. In United States v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir.2009), for instance, we vacated a 52-month sentence imposed for a conviction of an alien for attempting to reenter the United States unlawfully. The sentence imposed by the district court fell within the applicable Guidelines range, but we concluded that it was substantively unreasonable, nonetheless, largely because it was unduly influenced by a prior conviction that was more than twenty years old.

Recognizing that a simple disagreement with the district court’s sentencing decision was not enough under the abuse of discretion standard to support a conclusion that the sentence was substantively unreasonable, we held that “we may reverse if, upon reviewing the record, we have a definite and firm conviction that the district court committed a clear error of judgment in the conclusion it reached upon weighing the relevant factors.” Id. at 1055. We adhere to the formulation announced in Amezcua-Vasquez.

That requirement for “a definite and firm conviction that the district court committed a clear error of judgment” is consistent with the general description of the abuse of discretion standard we recently articulated in Hinkson, as quoted above at 1086.

As the Second Circuit has explained, the substantive reasonableness standard has much in common with other deferential standards applied in other contexts, such as the “manifest-injustice” and “shocks-the-conscience” standards: First, they are deferential to district courts and provide relief only in the proverbial “rare case.” Second, they are highly contextual and do not permit easy repetition in successive cases. Third, they are dependent on the informed intuition of the appellate panel that applies these standards.

In sum, these standards provide a backstop for those few cases that, although procedurally correct, would nonetheless damage the administration of justice because the sentence imposed was shockingly high, shockingly low, or otherwise unsupportable as a matter of law. Of course, an “intuitive” review cannot be an invitation to mischief by tinkering with any sentence that appellate judges simply do not like.

Responsible appellate review of sentences necessarily places great trust in sentencing courts while still recognizing the responsibility to examine the actual sentence itself (quite apart from the procedures employed in arriving at the sentence). United States v. Rigas, 583 F.3d 108, 123 (2d Cir.2009) (citations and footnote omitted), cert. denied — U.S. - , 131 S.Ct. 140, 178 L.Ed.2d 243 (2010). In sum, our review of the substantive reasonableness of a sentence is deferential and will provide relief only in rare cases. Such appellate review necessarily turns on the particulars of each ease. IV.

Ressam’s Sentence Recognizing the deference owed to the district court, it is our conclusion that the sentence imposed by the district court in this case was substantively unreasonable. We reach that conclusion after examining the “totality of circumstances,” as directed by Gall, 552 U.S. at 50, 128 S.Ct. 586, and Carty, 520 F.3d at 993. A.

Section 3553(

a) Factors and the Guidelines Range To put the sentence imposed on Ressam in context, we begin with the factors to be considered by the district court in sentencing, as set forth in 18 U.S.C. § 3553(a), and the now-advisory Sentencing Guidelines range. In our en banc decision in Carty, we outlined in bullet points our understanding of basic sentencing principles drawn from the relevant Supreme Court precedents regarding sentencing, notably Booker, Gall, Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), and Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007).

Two of those bullet points described the district court’s responsibility with explicit reference to § 3553(a): • The overarching statutory charge for a district court is to “impose a sentence sufficient, but not greater than necessary” to reflect the seriousness of the offense, promote respect for the law, and provide just punishment; to afford adequate deterrence; to protect the public; and to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment. 18 U.S.C. § 3553(

a) and (a)(2). • The district court should then consider the § 3553(

a) factors to decide if they support the sentence suggested by the parties, i.e., it should consider the nature and circumstances of the offense and the history and characteristics of the defendant; the need for the sentence imposed; the kinds of sentences available; the kinds of sentence and the sentencing range established in the Guidelines; any pertinent policy statement issued by the Sentencing Commission; the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and the need to provide restitution to any victims. 18 U.S.C. § 3553(a)(l)-(7); Gall, 552 U.S. at 50 n. 6, 128 S.Ct. 586.

Carty, 520 F.3d at 991. “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)). “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) (en banc) (internal quotation marks and alterations omitted). “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. In addition to the requirement to consider and apply the § 3553(

a) factors, noted above, it is also well established that the district court must begin the sentencing process “by determining the applicable Guidelines range.” Carty, 520 F.3d at 991. In reaching its sentencing decision, the “district court[ ] must ... remain cognizant of [the Guidelines] throughout the sentencing process.” Gall, 552 U.S. at 50 n. 6, 128 S.Ct. 586; see Carty, 520 F.3d at 991 (the Guidelines “are to be kept in mind throughout the [sentencing] process” (citing Gall)).

When a sentencing “judge ‘decides that an outside-Guidelines sentence is warranted, he must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.’ ” Carty, 520 F.3d at 991 (quoting Gall, 552 U.S. at 50, 128 S.Ct. 586). As the Court explained in Gall, “a major departure should be supported by a more significant justification than a minor one.” 552 U.S. at 50, 128 S.Ct. 586.

The Guidelines range for the term of imprisonment for Ressam, as calculated by the district court and not challenged by either party, was 65 years to life imprisonment. The district court did not express any policy disagreements with the Guidelines and their treatment of Ressam’s crimes, as it could have under Kimbrough. Ressam’s sentence of 22 years thus represented a major departure. We acknowledge that 22 years is not a trivial period of time, but that sentence still amounted to a reduction of 43 years, or two-thirds, from the low end of the Guidelines range.

Moreover, 10 of Ressam’s 22 years represent a mandatory, consecutive sentence for violation of 18 U.S.C. § 844(h)(2). For his other crimes of conviction, the total applicable Guidelines range was 55 years to life, but he received only 12 more years — a downward departure of more than three-fourths as to the counts on which the sentencing judge had discretion.

The Supreme Court has explicitly rejected “the use of a rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence.” Gall, 552 U.S. at 47, 128 S.Ct. 586. It has made clear, nonetheless, that we are to consider the “extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.” Id. at 50, 128 S.Ct. 586. It is in that light that we must assess the district court’s consideration of the § 3553(

a) factors. B. Nature and Circumstances of the Offense The first factor identified in § 3553(

a) to be considered in sentencing is “the nature and circumstances of the offense.” The crimes that Ressam sought to commit were horrific. The most important reason for our conclusion that the sentence imposed by the district court was substantively unreasonable is that the sentence did not properly account for those crimes. Had Ressam succeeded in his plot to blow up LAX, it would have resulted in many deaths and injuries, substantial property damage, and enormous disruption to the nation’s transportation system. The district court acknowledged that “Mr.

Ressam’s crimes, if carried to their intended conclusion, would have resulted in the deaths and injuries of hundreds of innocent people and instilled fear across the country and even the world.” Many common criminals have been sentenced to much longer terms for offenses with much less serious consequences. That Ressam’s crimes were in furtherance of a terrorist attack compounded the severity of the crimes.

Had Ressam succeeded, “LAX” may well have entered our vocabulary as a term analogous to “the Oklahoma City bombing” or “9/11.” His clear intent was to intimidate this nation and the world, and he sought to influence world events and the conduct of the United States government through that intimidation. The Sentencing Guidelines specifically provide for a substantial upward adjustment for federal crimes of terrorism. U.S.S.G. § 3A1.4. The sentence imposed by the district court effectively negated that adjustment. C. Protection of the Public

Section 3553(a)(2)(

C) provides that, in imposing a sentence, the district court should consider the need “to protect the public from further crimes.” Concern for the threat that Ressam could pose to our nation is particularly powerful because under the district court’s sentence, he would be only 51 years old upon his release from prison. Most people are sufficiently active and capable at age 51 to do considerable damage, if they are so inclined, and Ressam demonstrated strongly held beliefs and a willingness to attack American interests. If and when he is released, he could try again to blow up LAX or to launch some other attack.

To be sure, his release would come only after many years of imprisonment, but Ressam would likely be capable of organizing another attack at that point. Ressam’s release at age 51 could therefore pose another danger that the district court did not fully take into proper account. We share the concern expressed by the Eleventh Circuit in its recent decision overturning the sentence of Jose Padilla. United States v. Jayyousi, 657 F.3d 1085, 1117-19 (11th Cir.2011).

Among the reasons cited by that court in holding the sentence of 17 years and 4 months to be substantively unreasonable was its conclusion that the sentence imposed failed to protect the public from further crimes. Id. at 1117. The court pointed out that [although recidivism ordinarily decreases with age, we have rejected this reasoning as a basis for a sentencing departure for certain classes of criminals, namely sex offenders.

We also reject this reasoning here. “Terrorists, even those with no prior criminal behavior, are unique among criminals in the likelihood of recidivism, the difficulty of rehabilitation, and the need for incapacitation.” Padilla poses a heightened risk of future dangerousness due to his alQaeda training. He is far more sophisticated than an individual convicted of an ordinary street crime. Id. (citations and brackets omitted) (quoting Meskini, 319 F.3d at 92); see also United States v.

Abu Ali, 528 F.3d 210, 258-65 (4th Cir.2008) (holding 30-year sentence to be substantively unreasonable after conviction of conspiracy to inflict mass civilian casualties and assassination of high public officials in the United States, because of recidivism concerns and impermissible comparisons to other terrorism-related cases), resentencing aff'd, 410 Fed.Appx. 673, 682 (4th Cir.2011) (per curiam) (affirming the district court’s imposition of a life sentence). We follow that reasoning here.

In addition, even if Ressam were incapacitated by the time of his release, the attention to be generated by his release and likely return to Algeria could inspire others to try to complete his mission or to embark on a different attack. The release of the Lockerbie bomber, Abdelbaset alMegrahi, from prison in Scotland because of ill health in 2009 and his subsequent return to Libya produced an uproar because of precisely that fear. Although Megrahi may have been in no condition to launch a new attack himself, there was understandable concern that his presence in Libya could inspire others.

Under the sentence imposed by the district court, Ressam’s release date, currently projected by the Bureau of Prisons to be July 15, 2019, is not so many years away. His release at that time would pose a significant danger that the district court failed to take into account. D. Ressam’s Cooperation and Character

Section 3553(a)(1) identifies “the history and characteristics of the defendant” as one of the factors to consider in imposing a sentence. That factor may include the defendant’s cooperation with authorities. The only justifications for the district court’s substantial downward departure in sentencing Ressam were his cooperation and, more broadly, his history and personal characteristics, as expressed in the court’s explanation for the sentence. It was appropriate for the district court to consider those factors.

When imposing a sentence that is well below the Guidelines range because of the assistance provided by a defendant, however, there must be some indication that the extent of 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 the 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).

There is no doubt that Ressam cooperated with the federal government and with governments of some other allied nations, for a period of time. But he did not begin to cooperate until after he was convicted by the jury and faced life in prison. The timing of Ressam’s cooperation suggests that it was prompted by his desire to make the best of a bad situation, not some altruistic motive, sincere regret, or deeper good nature. Moreover, Ressam stopped cooperating. This made it impossible for the government to proceed with certain prosecutions and led to the release of certain suspected terrorists.

At the time his sentence was originally imposed in 2005, there remained some hope that Ressam might live up to the cooperation agreement that he had signed. That hope was extinguished by the time of Ressam’s resentencing in 2008. He had, in the interim, affirmatively repudiated his agreement to cooperate, recanted his testimony, and done everything he could to diminish the assistance he had already provided. Yet the district court imposed exactly the same sentence in 2008 as it had in 2005, failing to account for the dramatic change in circumstances.

The court stated in 2008 that “Ressam’s cooperation, unique in its breadth and scope, weighed heavily in my initial sentencing decision and its import has not changed in my analysis today.” Treated as a factual finding, the district court’s assessment of Ressam’s cooperation was clearly erroneous.

The district court significantly overvalued the cooperation provided by Ressam during the time that he provided assistance. “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, 586-87 (9th Cir.2004) (citing U.S.S.G. § 5K1.1(a)(1) & cmt. background) (alterations in original; some internal quotation marks omitted); 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”). The district court failed to give “substantial weight” to the government’s evaluation of the extent of the defendant’s assistance.

Instead, the court credited Ressam’s assessment of the value of his own cooperation, expressly relying on the “defendant’s sentencing memorandum submitted before the July 2005 sentencing hearing” as the basis for its assessment of the “far-reaching impact of Mr. Ressam’s cooperation on the investigations and prosecutions of terrorist activities in this country and abroad.” That consideration failed to take into account the effect of Ressam’s subsequent recantations. More broadly, Ressam and his counsel were in no position to evaluate the effects of and benefits from his cooperation.

Notably, they could not know what the government already knew or would have been able to learn from other sources. That is why the Guidelines expressly require district courts to give substantial weight to the evaluation by the government. It is the government that is in the position to know the effects of defendants’ provided information, and that is especially true with information of the kind provided by Ressam. Much of the information Ressam provided was not unique to him, according to the government.

Moreover, as the government argued, Ressam’s “most valuable information — that leading to the charges against Doha and Mohamed — cannot be credited [because] Ressam undermined that value when he chose to end his cooperation leading to the dismissal of these charges.” Similarly, the district court significantly understated the impact of Ressam’s repudiation of the cooperation agreement and recantations of his prior statements. The district court acknowledged “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.” But the district court failed to take into proper account the effect of Ressam’s early cessation of cooperation or recantations and failed to adjust the sentence in response. 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.” That assessment appears to us woefully misguided and, if intended as a finding of fact, clearly erroneous. Ressam voluntarily, and with advice from counsel, entered into an agreement with the government in which he promised full cooperation. Under the terms of that agreement, both parties committed to seeking a sentence of not less than 27 years.

Ressam may have believed, with some justification, that he could later ask the government to agree to reduce the minimum term, but the agreement he entered into set 27 years as a floor for the term of imprisonment that either party would recommend to the court. But Ressam violated the agreement. Most importantly, he withheld his cooperation. He compounded the potential ill effects of his withdrawal by affirmatively disavowing the information he had already provided.

He then argued for a sentence substantially lower than the 27-year term which the cooperation agreement provided would be the minimum that either side would recommend, thus breaching the agreement in yet another way. After all that, the district court gave him a sentence well below the 27-year minimum that was premised on full cooperation. The far more likely inference to be drawn from the court’s sentencing is that a defendant might be able to repudiate a cooperation agreement and recant previous testimony with no ill effects. Indeed, Ressam appeared to come out ahead.

It is hard to perceive what reason there is to provide any reward to a defendant who terminates his cooperation in breach of the agreement into which he entered and who affirmatively acts, as Ressam did, to undermine the value of statements that he had already provided. Rewarding such conduct sends precisely the wrong message to other offenders. We also find unreasonable and clearly erroneous the district court’s finding that “Mr.

Ressam’s life history and personal characteristics support favorable sentencing consideration,” in view of the substantial evidence, including the information contained in the Presentence Report, that Ressam had for many years violated the laws of many nations and led a life dedicated to terrorist causes. The district court credited Dr. Grassian’s favorable report 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.” But Ressam’s subsequent recantations squarely undermined that assessment. In finding that Ressam was “a quiet, solitary and devout man whose true character is manifest in his decision to cooperate,” the district court simply did not come to grips with the many facts demonstrating the contrary.

Even leaving aside his plan to blow up LAX, it cannot be overlooked that Ressam spent nearly a year attending three training camps for Islamic terrorists in Afghanistan, conspired with other would-be terrorists, used forged documents and false identities on multiple occasions, had been deported from France as early as 1993, violated the immigration laws of the United States, France, and Canada, and planned to rob a bank to obtain funds to carry out his mission. In the course of robbing the bank, Ressam intended to throw a live hand grenade and run if necessary to get away.

These facts and others directly refute the district court’s finding that Ressam is “a quiet, solitary and devout man whose true character is manifest in his decision to cooperate.” Indeed, based on this record, if there was a period of aberrant behavior in Ressam’s adult life, it was during the relatively brief time following his conviction when Ressam provided assistance to the government. His conduct before and after that limited period contradicts the district court’s assessment of his character.

Even if, in the end, it might be determined that Ressam should be given some credit for his cooperation and personal characteristics, that credit is not nearly strong enough to justify the substantial downward departure provided in the district court’s 22-year sentence. E. The Need to Avoid Unwarranted Sentencing Disparities A factor the district court should consider in fashioning an appropriate sentence is “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6).

The explanation given by the district court for the sentence imposed on Ressam referred to sentences imposed on his co-conspirators, Haouari and Meskini, and on others convicted for similar misconduct, John Walker Lindh, Imran Mandhai, and most significantly, Jose Padilla.

The district court expressly prefaced its discussion of others convicted of similar misconduct with the caveat that “[tjhese cases involved different sets of facts and did not influence my decision in determining an appropriate sentence in this case,” but the court nonetheless went on to describe the sentences at some length and compare each case to Ressam’s. It is thus appropriate for us to do so as well. We conclude that those comparisons did not justify Ressam’s sentence. Ressam’s co-conspirators presented very different circumstances.

Haouari did not present a parallel case because Haouari did not participate in the plan to blow up LAX nearly to the extent that Ressam did. Haouari was convicted of conspiracy for providing material support to Ressam on the strength of evidence showing that Ressam had made several remarks to Haouari indicating that Ressam was engaged in “important” business in America that involved “fear and danger.” Haouari, 2001 WL 1154714, at *2.

Providing support to Ressam with the knowledge that Ressam was engaged in some kind of dangerous business in the United States was not the equivalent of planning out and taking several material steps toward the actual bombing of LAX. As for Meskini, while Ressam rejected a pre-trial plea offer and elected to put the government to its burden of proof, Meskini pled guilty to the charges in the indictment. Meskini, 319 F.3d at 91. The sentences of Irham Mandhai, John Walker Lindh, and Jose Padilla, other sentences identified by the district court, did not offer appropriate comparisons, either.

Like Meskini, Mandhai and Lindh pled guilty. See United States v. Mandhai, 375 F.3d 1243, 1245 (11th Cir.2004) (noting that Mandhai pled guilty and received 11 years and 8 months); United States v. Lindh, 227 F.Supp.2d 565, 566, 571-72 (E.D.Va.2002) (sentencing Lindh, after he entered a plea of guilty, to 20 years, the statutory maximum on the counts charged). As noted above, the sentence of Jose Padilla was recently overturned by the Eleventh Circuit as substantively unreasonable, so that comparison is no longer available to support the sentence imposed on Ressam by the district court.

More importantly, the decision was based in substantial part on comparisons to sentences imposed in other terrorism cases drawn by the district court in sentencing Padilla that were held by the Eleventh Circuit to be “impermissible.” Jayyousi, 657 F.3d at 1117. “In comparing Padilla to criminals like David Hicks, Yahya Goba, and Imran Mandhai who had either been

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