US v. Ahmed Abu Ali, No. 09-4705 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4705 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. AHMED OMAR ABU ALI, a/k/a Reda, a/k/a Hani, a/k/a Abi Umar, a/k/a Ashraf, a/k/a Abu Abdullah, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Gerald Bruce Lee, District Judge. (1:05-cr-00053-GBL-1) Argued: December 9, 2010 Decided: February 1, 2011 Before TRAXLER, Chief Judge, and WILKINSON and MOTZ, Circuit Judges. Affirmed by unpublished per curiam opinion. ARGUED: Alice L. Fontier, JOSHUA L. DRATEL, PC, New York, New York, for Appellant. Stephen Michael Campbell, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Joshua L. Dratel, JOSHUA L. DRATEL, PC, New York, New York, for Appellant. Neil H. MacBride, United States Attorney, Marla B. Tusk, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Ahmed Omar Abu Ali was convicted by a jury of nine offenses based on his conspiracy to commit terrorist acts against the United States, including one count of conspiracy to assassinate the President in violation of 18 U.S.C. § 1751 and one count of conspiracy to commit aircraft piracy in violation of 49 U.S.C. § 46502(a)(2). Abu Ali s convictions stemmed from his affiliation with an al Qaeda terrorist cell in Medina, Saudi Arabia. While Guidelines Abu Ali s sentence of offenses life gave imprisonment, rise to the an advisory district court imposed a below-Guidelines sentence of thirty years. In United States v. Abu Ali, 528 F.3d 210 (4th Cir. 2008), we affirmed all of Abu Ali s convictions remanded the case for resentencing. but vacated and On remand, the district court sentenced Abu Ali to a term of life imprisonment. Abu Ali now appeals that sentence, arguing that it was procedurally and substantively unreasonable under Gall v. United States, 552 U.S. 38 (2007), provisions. and that it violates various constitutional Finding Abu Ali s arguments to be without merit, we affirm the judgment of the district court. I. The facts of this case are detailed opinion, so we need not repeat them here. 2 in our previous See United States v. Abu Ali, 528 F.3d 210, 221-26 (4th Cir. 2008). With respect to the trial proceedings, it suffices for purposes of this appeal to note the nine charges on which Abu Ali was convicted: ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ See Conspiracy to provide material support and resources to a designated foreign terrorist organization (al-Qaeda), in violation of 18 U.S.C. § 2339B (Count 1); Providing material support and resources to a designated foreign terrorist organization (al-Qaeda), in violation of 18 U.S.C. § 2339B (Count 2); Conspiracy to provide material support to terrorists, in violation of 18 U.S.C. § 2339A (Count 3); Providing material support to terrorists, in violation of 18 U.S.C. § 2339A (Count 4); Contributing services to al-Qaeda, in violation of 50 U.S.C. § 1705(b) and 31 C.F.R. § 595.204 (Count 5); Receiving funds and services from al-Qaeda, in violation of 50 U.S.C. § 1705(b) and 31 C.F.R. § 595.204 (Count 6); Conspiracy to assassinate the President, in violation of 18 U.S.C. § 1751 (Count 7); Conspiracy to commit aircraft piracy, in violation of 49 U.S.C. § 46502(a)(2) (Count 8); Conspiracy to destroy aircraft, in violation of 18 U.S.C. § 32(b)(4) (Count 9). Abu Ali, 528 F.3d at 225. Both the 18 U.S.C. § 1751 conviction (conspiracy to assassinate the President) and the 49 U.S.C. § 46502(a)(2) conviction (conspiracy to commit aircraft piracy) rendered Abu Ali eligible for a life sentence. See 18 U.S.C. § 1751(d); 49 U.S.C. § 46502(a)(2)(B). The district court began the first sentencing proceeding by calculating the applicable Guidelines range. and criminal history yielded a recommended Abu Ali s offenses sentence of life imprisonment, and the aircraft piracy charge carried a mandatory minimum twenty-year sentence. See 49 U.S.C. § 46502(a)(2)(A). 3 The district court then considered what sentence would be sufficient, but not greater than necessary, to comply with the other factors enunciated in 18 U.S.C. § 3553(a). § 3553(a). Ultimately, Guidelines sentence the court was determined appropriate. See 18 U.S.C. that It a below- based this determination on several factors, among which was a comparison of Abu Ali s conduct to that of three individuals: John Walker Lindh (convicted of two charges in connection with his fighting for the Taliban in Afghanistan), Timothy McVeigh (convicted for perpetrating the Oklahoma City bombing), and Terry Nichols (convicted for conspiring with McVeigh). Abu Ali subsequently appealed his government cross-appealed his sentence. convictions, and the While we affirmed Abu Ali s convictions, we concluded that the district court erred in imposing the sentence that it did. that the comparisons that had analysis were inappropriate. In particular, we determined driven the court s sentencing The reasons for that conclusion were extensively set forth in our prior opinion, see Abu Ali, 528 F.3d at 262-65, and we need not repeat them here. On resentencing, the district court reiterated some of the same findings as before, but changed its view on three of the § 3553(a) factors. First, need to protect the public from future crimes of the defendant. 18 U.S.C. of § 3553(a)(2)(c). the The court court 4 reweighed concluded the that a term years sentence would not be sufficient to protect the public from future crimes by Abu Ali in light of his admission to participating in the planning of heinous and potentially catastrophic crimes to be committed against the United States citizenry, his confession to being willing to be a martyr for this cause, and his unwillingness to make any statement the kinds of sentences expressing any remorse. Second, available. the court 18 U.S.C. reweighed § 3553(a)(3). The district court observed that thirty years in prison would impact [Abu Ali s] mental and physical health, functioning and capacity, and make it difficult for him to transition into a functioning society 30 years from now that will have essentially moved on without him. The court then made the following statement: Therefore, when the Court considers Mr. Abu Ali s demonstrated unwillingness to renounce the beliefs that led him to participate in terrorist activities as well as the dire conditions in which he would be released, the unknowns about his mental state, his ability to [assimilate] and whether . . . we should assume that he would mature out of his prior confession and desire to martyrdom, there s simply no way for the Court to know what Mr. Abu Ali s mental state would be after 30 years of solitary confinement. The risk . . . of the unknown from a term of years sentence is too great in this case. I cannot put the safety of [the] American citizenry at risk. Nothing in three years has come forward to address this concern. I am not persuaded that a lengthy term of supervised release following a term of years could or would be a sufficient measure to protect [against] the risk of recidivism. 5 Finally, the court reconsidered its prior findings regarding 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 court made the following determination: Three years have passed since the original sentencing in this case and this is a singular case. I now regret that the Court of Appeals interpreted my original judgment to be an attempt to compare Mr. Ali to anyone. So I will not do that in this resentencing. My original sentencing orders addressed each of the factors in a number of words and my judgment from the bench and from my opinion did not drive the sentence. The defense has properly pointed out . . . a number of terrorism cases where sentences of less than life have been imposed. I acknowledge that there have been a number of post-trial terrorism cases where sentences [of] less than life were imposed by trial judges. I am constrained by the Court of Appeals search for a benchmark case that is substantial[ly] similar in every respect to Mr. Abu Ali s case. Such a case does not exist. Even if there were such a case, I do not think a district judge is bound to impose a judgment in a case based upon what another judge did in another court because as Justice Stevens from the Supreme Court has acknowledge[d, the] work of sentencing involves individualized consideration of each case by the trial judge who heard the case. And there is no legal error in different judges reaching different sentences for the individual case. (internal quotations omitted). The court thus determined that the Guidelines sentence of life imprisonment was appropriate. 6 II. Abu Ali s primary contention on appeal is that his sentence was both procedurally and substantively unreasonable. A. As the Supreme Court has made clear, the overarching principle behind reasonableness review is that all sentences should be examined under a deferential abuse-of-discretion standard, regardless of whether they are inside or outside the prescribed Guidelines range. Gall v. United States, 552 U.S. 38, 41, 46 (2007). In Gall, the Court set forth the precise steps involved in reviewing a sentence for reasonableness. First, an appellate court should review a sentence for procedural reasonableness, ensuring that the district court committed no significant procedural error such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous adequately explain the chosen sentence. facts, or failing to Id. at 51; see United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). Next, the court should examine the substantive reasonableness of the sentence imposed under the totality of the circumstances. Gall, 552 U.S. at 51. 7 A sentence falling within a correctly calculated Guidelines range may be presumed reasonable on appeal. Id.; see Rita v. United States, 551 U.S. 338, 347 (2007); United States v. Johnson, 445 F.3d 339, 341 (4th Cir. 2006) Circuit). extent of But the (applying while such the a presumption reviewing deviation, a presumptively unreasonable. court in may non-Guidelines the Fourth consider sentence Gall, 552 U.S. at 51. is the not In either case, we must apply the abuse of discretion standard to give due deference to the district court s decision ; the fact that we might reasonably have concluded that a different sentence was appropriate does not itself provide a sufficient basis for reversal. Id.; see United States v. Pauley, 511 F.3d 468, 473- 74 (4th Cir. 2007). With these principles in mind, we turn to reviewing Abu Ali s challenges to his sentence. B. We first consider Abu Ali s argument that the district court committed a significant procedural error at resentencing by refusing to consider 18 U.S.C. § 3553(a)(6). at 51. Gall, 552 U.S. While Abu Ali presented evidence of allegedly comparable cases under § 3553(a)(6), he argues that the court eliminated that factor argument, from Abu Ali consideration relies on altogether. certain 8 In statements making made by this the district court at the resentencing hearing, chief among which is the following: Three years have passed since the original sentencing in this case and this is a singular case. I now regret that the Court of Appeals interpreted my original judgment to be an attempt to compare Mr. Ali to anyone. So I will not do that in this resentencing. Abu Ali further contends that the court ignored § 3553(a)(6) because of its erroneous belief that it could only consider cases that are substantial[ly] similar in every respect to Mr. Abu Ali s case. It is clear, however, that the district court adequately considered § 3553(a)(6) even over and above its calculation and consideration thing, the of the district applicable court Guidelines explicitly considered all of the 3553(a) factors. range. stated that For one it had Moreover, the district court noted that [t]he defense has properly pointed out . . . a number of terrorism cases where sentences of less than life have been imposed, and further observed the number of post-trial terrorism cases where sentences [of] less than life were imposed by trial judges. (emphasis added). Ultimately, however, the court concluded that this is a singular case and that there was no compare substantial[ly] Abu supporting Ali s. analysis similar But evince benchmark neither that complete[ ] 9 case to which to nor the disregard[ ] for conclusion § 3553(a)(6); instead, the district court considered the comparators presented by Abu Ali before concluding that his case was without peer. In that light, it is helpful to contrast this case with United States v. Clark, 434 F.3d 684 (4th Cir. 2006), a case on which Abu Ali relies. In Clark, we reversed the district court s sentencing determination based on the court s failure to consider 18 U.S.C. § 3553(a)(6). See Clark, 434 F.3d at 685. But Clark is a far cry from this case. court did not mention § 3553(a)(6). There, the district See id. at 686. Moreover, the only unwarranted sentencing disparities the Clark court considered were the disparities between Clark and similarly situated state defendants, notwithstanding the fact that [t]he sole concern of section 3553(a)(6) disparities among federal defendants. omitted). is with sentencing Id. at 687 (emphasis Here, by contrast, the court discussed § 3553(a)(6) and took note of the allegedly comparable federal cases brought forth by Abu Ali before concluding that his case was singular. Rather than supporting Abu Ali s position, Clark confirms the reasonableness of the district court s approach here. Abu Ali s final argument on the procedural front is that the district court erred in observing that it was constrained by the Court of Appeals search for a benchmark case that is substantial[ly] similar in every respect to Mr. Abu Ali s case. 10 According to Abu Ali, this statement shows that the district court incorrectly interpreted this Court s ruling as requiring cases essentially identical to Mr. Abu Ali s for purposes of § 3553(a)(6). Abu Ali is incorrect. required comparator instead, it cases stated to merely be judges to essentially that substantial[ly] similar case. commands consider The district court never it was identical ; looking for a By its own terms, § 3553(a)(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar § 3553(a)(6) (emphasis added). argue that the district conduct. 18 U.S.C. It would be quite a stretch to court abused its discretion by interpreting that statutory mandate to require substantial[ ] similar[ity]. dispositive between similar To reach such a conclusion, we would have to put weight on § 3553(a)(6) s conduct and whatever shadowy requirement the of district substantial[ly] similar case. differences court s lie records similar might and search for a But nothing in Gall or Rita forces us to engage in such wordplay; to the contrary, those cases require us to eschew microscopic scrutiny of the district court s reasoning. At bottom, Abu Ali s arguments about procedural reasonableness do not stem from actual errors committed by the district court, but from Abu Ali s 11 substantive disagreements with the district court s decisions. But even assuming we shared those disagreements, Gall makes clear that they would still not provide any basis for overturning Abu Ali s sentence as procedurally unreasonable. See Gall, 552 U.S. at 51 ( The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court. ). We therefore reject Abu Ali s challenge on this score. C. We next consider Abu Ali s claim that his sentence was substantively unreasonable insofar as it was dramatically longer than other terrorism sentences imposed since September 11, 2001 and thus created § 3553(a)(6). In an unwarranted pressing this sentencing argument disparity below, Abu under Ali presented evidence from more than twenty allegedly comparable cases where defendants received sentences ranging from 57 months to 30 years imprisonment. In addition, Abu Ali brought forth a study chronicling the average sentences meted out for terrorismrelated offenses. According to the study, the average sentence for a defendant convicted of a terrorism charge is approximately 12 years and 8 months. Based on this evidence, however, we cannot conclude that the district judge abused its discretion in sentencing Abu Ali 12 to life imprisonment. First, 19 of the 25 defendants discussed by Abu Ali pled guilty to their crimes of conviction. observed in pursuant to Abu a Ali s plea first agreement appeal, are defendants necessarily not sentenced similarly situated to defendants sentenced after trial. F.3d at 263. That is especially As we true See Abu Ali, 528 where, as here, the defendant refused to express remorse or accept responsibility for his crimes. Second, Abu Ali was convicted of two offenses that made him eligible for a life sentence: conspiracy to assassinate the President in violation of 18 U.S.C. § 1751 and conspiracy to commit aircraft piracy in violation of 49 U.S.C. § 46502(a)(2). See 18 U.S.C. § 1751(d); 49 U.S.C. § 46502(a)(2)(B). By contrast, only one of the twenty-five federal defendants Abu Ali cites as comparable was potential life sentence. convicted of an offense carrying a Abu Ali s crimes of conviction are thus more severe than those committed by the defendants in the cases he brought forth. Finally, Abu Ali s conduct was different in degree and kind from the conduct of his proposed comparators. Abu Ali conspired to commit acts on our nation s soil that would inflict massive civilian casualties, acts that ranged from plotting attacks on nuclear power plants to hijacking airplanes with the intent to replicate the attacks of September 11, 2001. 13 Further, Abu Ali conspired to cripple the United States government by assassinating members of the Senate, the Army, the Executive Branch, and even the President himself. In short, as the trial court noted, Abu Ali sought to inflict harm of a singular sort. By contrast, the defendants Abu Ali cites as comparable committed offenses that were more limited in scope and severity. Several of the defendants, for example, attended al Qaeda training camps with the goal of learning terrorism tactics or traveled to Afghanistan or Iraq in order to aid the war effort against the United States. offenses, from conspiring Others committed even more serious to destroy the Brooklyn Bridge to abetting the purchase of a missile intended to be used in an attack against New York City. We by no means seek to underplay these destructive and reprehensible acts, but note that none of the cases Abu Ali wants to use as comparators involved a conspiracy to kill countless civilians and visit harm upon the highest officials of our government. As the First Circuit has observed, for any given case, there is a range of reasonable sentences, and an appellate court should only reverse when the sentencing expansive court s boundaries ultimate of that determination universe. Martin, 520 F.3d 87, 92 (1st Cir. 2008). falls United outside States v. The district court s sentence was well within the range of reasonableness here. 14 the D. While Abu Ali s arguments focus entirely upon his analysis of § 3553(a)(6), it is well that we not lose sight of the sentencing process as a whole. After all, § 3553(a)(6) is just one district of many factors that the before imposing a sentence. calculated the court should consider Here, the district court correctly applicable Guidelines sentence of life imprisonment. The court then analyzed the § 3553(a) factors, taking of account the seriousness of Abu Ali s offense, his history and characteristics, the kinds of sentences available, the need to deter future criminal conduct, the need to protect the public from further crimes by Abu Ali, and the need to impose a sentence that promotes respect for the law and provides See 18 U.S.C. § 3553(a)(1)-(3). just punishment. the court evaluated Abu Ali s sentence Additionally, under § 3553(a)(6), concluding that his case was singular and that his proposed comparators were inapposite. In light of all these considerations, the court concluded that a life sentence was appropriate. Viewing district the judge case abused holistically, its we cannot discretion. The say court that the adequately considered the relevant § 3553 factors including § 3553(a)(6) and determined that imprisonment was proper. the Guidelines sentence of life It then explained its decision in a 15 sentencing order that discussed the salient § 3553(a) factors in a particular, not a generic, fashion. On appeal, we may presume Guidelines sentences to be reasonable, and the district court s conduct affords no reason to overturn that presumption in this case. See Johnson, 445 F.3d at 341. III. Abu Ali s remaining arguments stem from his constitutional challenges to the district court s sentencing determination. A. First, Abu Ali argues that the district court increased his sentence as a penalty for exercising his Sixth Amendment right to a jury trial and his Fifth Amendment right to remain silent. It is true exercising that his a court may constitutional happened here. not penalize rights, but a that defendant is not for what The comments Abu Ali objects to reflect the district court s consideration of Abu Ali s lack of remorse and his unwillingness to accept responsibility for his crimes. Courts have routinely considered such factors in sentencing, and rightly so: responsibility a and defendant s express unwillingness regret reflect to acknowledge directly on the likelihood of recidivism, and the danger a defendant might pose to others if released. See, e.g., United States v. Cruzado16 Laureano, 527 F.3d 231, 237 (1st Cir. 2008) (district court s consideration of a defendant s lack of remorse did not violate[ ] his constitutional right to maintain his innocence because it is well established that lack of remorse is a proper consideration in sentencing ); United States v. Johnson, 903 F.2d 1084, 1090 (7th Cir. 1990) (same). The district court adhered to these established sentencing principles in deciding to impose a life sentence on Abu Ali. After all, Abu Ali refused to acknowledge his crimes even after a jury had found him guilty beyond a reasonable doubt and, in the district court s words, never once recanted his previouslyconfessed desire to commit terrorist acts and desire to achieve martyrdom. imposition firmly When given of sentence, committed to the Abu the concluded Ali course criminal justice system. reasonably opportunity to appeared, that allocute if before anything, brought him more into the In view of this, the district court that Abu Ali would remain a threat to society if released from prison after a term of years. B. Finally, Abu Ali contends that his sentence violates the Eighth Amendment s prohibition on cruel and unusual punishment. Abu Ali facility. is currently incarcerated in a maximum security At resentencing, Abu Ali presented evidence regarding 17 the negative physiological and psychological effects that stem from spending protracted periods of time in such a facility. He argues that it would violate the Eighth Amendment to sentence a prisoner to a longer term of years on the theory that his conditions of confinement will make him unfit to rejoin society at an earlier date. Before imposing sentence, the district court made the following observations: Most certainly 30 years of incarceration under such restricted conditions would impact [Abu Ali s] mental and physical health, functioning and capacity. Without a doubt, Mr. Abu Ali will struggle to transition into a functioning society 30 years from now that will have essentially moved on without him. He will be released into a world that will bear only a limited resemblance to the world he left behind, a world with little if any friends or family left to support him at the end of 30 years. He will be a middle aged man with no skills, experiences or social network. Therefore, when the Court considers Mr. Abu Ali s demonstrated unwillingness to renounce the beliefs that led him to participate in terrorist activities as well as the dire conditions in which he would be released, the unknowns about his mental state, his ability to [assimilate] and whether . . . we should assume that he will mature out of his prior confession and desire to martyrdom, there s simply no way for the Court to know what Mr. Abu Ali s mental state would be after 30 years of solitary confinement. The risk . . . of the unknown from a term of years sentence is too great in this case. I cannot put the safety of [the] American citizenry at risk. Viewing these statements as a whole, it is apparent that the court did not impose a life sentence to penalize Abu Ali for the effects of his confinement. The court only discussed Abu Ali s 18 mental state in rehabilitation the against context the of risks weighing of his chances recidivism. The of court properly considered the tenacity of Abu Ali s violent beliefs and the likelihood that time in prison would entrench those beliefs in analyzing the probability that Abu Ali would again act on those instruction public beliefs for from courts further if released. to crimes consider of In the the light need of to defendant Congress s protect in the imposing a sentence, it is hard to see how the district court s actions See 18 U.S.C. § 3553(a)(2)(C). were erroneous. The court s decision to impose a life sentence was therefore the product of run-of-the-mill sentencing analysis, not some novel form of Eighth Amendment violation. IV. In sum, the resentencing in this case proceeded within well-established boundaries and reveals no abuse of discretion on the part of the district court. For the foregoing reasons, we affirm the judgment. AFFIRMED 19

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