United States v. Ahmed Ressam , 629 F.3d 793 ( 2010 )


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  •                                              Volume 1 of 2
    FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                 No. 09-30000
    Plaintiff-Appellant,           D.C. No.
    v.                         2:99-cr-00666-
    AHMED RESSAM,                                  JCC-1
    Defendant-Appellee.
          OPINION
    Appeal from the United States District Court
    for the Western District of Washington
    John C. Coughenour, District Judge, Presiding
    Argued and Submitted
    November 2, 2009—Seattle, Washington
    Filed February 2, 2010
    Before: Arthur L. Alarcón, Ferdinand F. Fernandez and
    Richard R. Clifton, Circuit Judges.
    Opinion by Judge Alarcón
    1877
    UNITED STATES v. RESSAM               1881
    COUNSEL
    Mark N. Bartlett, Helen J. Brunner (argued), Assistant United
    States Attorneys, Seattle, Washington, for the plaintiff-
    appellant.
    Thomas W. Hillier, II (argued), Lissa W. Shook, Federal Pub-
    lic Defender, Seattle, Washington, for the defendant-appellee.
    OPINION
    ALARCÓN, Senior Circuit Judge:
    Ahmed 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
    1882               UNITED STATES v. RESSAM
    the Los Angeles International Airport (“LAX”) on the eve of
    the new Millennium, December 31, 1999. Ressam’s crimes of
    conviction carry an advisory Sentencing Guidelines range of
    65 years to life in prison, and a statutory maximum penalty of
    130 years in prison.
    In 2001, following his conviction, Ressam entered into a
    cooperation agreement with the Government. Under the terms
    of the agreement, the Government was to recommend a reduc-
    tion in Ressam’s sentence in exchange for his truthful and
    complete cooperation. Ressam provided information to law
    enforcement officials of the United States and of other coun-
    tries concerning the organization, recruitment, and training
    activities of the worldwide terrorist network known as al-
    Qaeda. Ressam also testified against one of his co-
    conspirators, Mokhtar Haouari. After providing assistance to
    the Government for approximately two years, Ressam decided
    to cease cooperating and began recanting his prior testimony.
    The district court sentenced Ressam to 22 years in prison to
    be followed by five years of supervised release.
    Both parties appealed to this Court. Ressam challenged his
    conviction while the Government challenged the reasonable-
    ness of the sentence. This Court vacated Ressam’s conviction
    as to Count Nine, and remanded for resentencing without
    addressing the merits of the Government’s arguments. United
    States v. Ressam, 
    474 F.3d 597
    (9th Cir. 2007). The United
    States Supreme Court reversed this Court’s decision and
    affirmed Ressam’s conviction of Count Nine. United States v.
    Ressam, 
    128 S. Ct. 1858
    , 1862 (2008). Upon remand, this
    Court vacated the 22-year sentence, holding that the district
    court failed to determine the applicable Sentencing Guidelines
    range at the beginning of sentencing, as required by United
    States v. Carty, 
    520 F.3d 984
    (9th Cir. 2008). United States
    v. Ressam, 
    538 F.3d 1166
    , 1167 (9th Cir. 2008).
    Upon remand, the district court again imposed a sentence
    of 22 years in prison, followed by five years of supervised
    UNITED STATES v. RESSAM                 1883
    release. The Government has appealed from this decision. It
    contends that when the relevant § 3553(a) factors are applied
    to the facts of this case, the sentence imposed is insufficient
    to accomplish the purposes of the statute, which directs that
    “[t]he court shall impose a sentence sufficient but not greater
    than necessary” to accomplish the purposes of 18 U.S.C.
    § 3553(a)(2).
    We vacate the sentence and remand for resentencing by a
    different district court judge because we conclude that the dis-
    trict court committed procedural error in failing to address
    specific, nonfrivolous arguments raised by the Government in
    imposing a sentence that is well below the advisory Sentenc-
    ing Guidelines range.
    I
    A
    Ahmed Ressam is an Algerian national. Traveling on a
    false Moroccan passport issued in the name of Nassar Res-
    sam, Ressam left Algeria in 1992 and went to France. On
    November 8, 1993, French authorities deported Ressam to
    Morocco and banned him from returning to France for three
    years. Ressam was returned to France by Moroccan authori-
    ties when it was determined that he was not Moroccan.
    On February 20, 1994, Ressam arrived at Mirabel Airport
    in Montreal, Canada, using an illegally altered French pass-
    port in the name of Anjer Tahar Medjadi. The passport was
    altered in that Ressam’s photo had been inserted to replace
    that of the original bearer. When Canadian immigration per-
    sonnel confronted Ressam with the altered passport, Ressam
    divulged his true name. Ressam applied for refugee status
    with Canadian Immigration, indicating on this 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
    1884                UNITED STATES v. RESSAM
    denied on June 6, 1995. His appeal was also denied. A mora-
    torium on deportations from Canada to Algeria, however,
    allowed Ressam to stay in Canada under conditions set by
    Citizenship and Immigration Canada (CIC). Ressam failed to
    comply with these conditions, and on May 4, 1998, a warrant
    was issued by CIC for Ressam’s arrest. Ressam was not
    arrested however, because at the time the warrant was issued,
    he was attending a terrorist training camp in Afghanistan.
    On March 17, 1998, traveling under the name of Benni
    Noris, Ressam went from Montreal to Karachi, Pakistan. In
    Karachi, Ressam got in touch with Abu Zubeida who was in
    charge of the Afghan terrorist training camps. Ressam was
    told to grow a beard and wear Afghani clothes, prior to being
    transported across the border from Pakistan into Afghanistan.
    While Ressam was in Afghanistan, fatwahs were issued,
    including one by Sheikh Omar Abdel Rahman, directing the
    terrorists to fight Americans and hit their interests every-
    where.
    Between March 1998 and February 1999, Ressam attended
    three training camps for Islamic terrorists in Afghanistan.
    Ressam first received instruction at Khalden Camp in light
    weapons (handguns, machine guns, and rocket launchers), the
    making of explosive devices (including TNT, C4 (plastic
    explosive), and black plastic explosives), sabotage, the selec-
    tion of targets, urban warfare, tactics (including assassina-
    tions), security, and the use of poisons and poisonous gas. The
    sabotage training included learning how to blow up the infra-
    structure of a country, including the enemies’ special and mil-
    itary installations, such as electric plants, gas plants, airports,
    railroads, and hotels where conferences are held. The urban
    warfare training instructed on how to carry out operations in
    cities, how to block roads, how to assault buildings, and cov-
    ered the strategies used in these operations. Explosives train-
    ing included how to do surveillance, take pictures, and blend
    in by wearing clothing that a tourist would wear. The weap-
    ons and ammunition used at the camps were supplied by the
    UNITED STATES v. RESSAM                1885
    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 in the manufacture of explosives over the course of a
    month and a half. Ressam learned how to put chemical sub-
    stances together to form explosives and how to make elec-
    tronic 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
    members to travel separately and meet in Canada where they
    would carry out bank robberies to finance their operation in
    the United States. Other cells were planning operations in
    Europe and in the Persian Gulf against the United States and
    Israeli interests to be carried out before the year 2000.
    In February 1999, Ressam returned to Canada, traveling
    under the name Benni Noris and carrying: $12,000 in cash; a
    chemical substance called Hexamine, which is used as a
    booster in the manufacture of explosives; and, a notebook
    with instructions on how to put together explosives.
    In the spring of 1999, French authorities were conducting
    an investigation of radical Islamic fundamentalists living in
    Montreal who were believed to be providing support to
    Islamic terrorist organizations in Europe. The Montreal “cell”
    was involved in stealing passports and other identification
    documents and sending them to other cells in Europe to allow
    fellow Islamic extremists to travel internationally. The French
    authorities requested an interview of Ressam but the Canadian
    authorities were unable to locate him because he was living
    under his false name of Benni Noris.
    1886               UNITED STATES v. RESSAM
    In the summer of 1999, Abu Doha informed Ressam, from
    London, that the other members of the Montreal cell decided
    to remain in Europe because they ran into problems with
    Immigration. Ressam decided to continue with the operation
    without the other members of his cell. Ressam targeted an air-
    port, 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. Res-
    sam and Zemiri did surveillance on the bank. Ressam asked
    Zemiri and Samir Ait Mohamed to get 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.
    On November 17, 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 Dahou-
    mane 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 Ameri-
    can car ferry, M/V COHO, at Tswassen, B.C. Before boarding
    the ferry, a U.S. Immigration and Naturalization Service
    inspector checked Ressam’s documentation and destination.
    Ressam provided the inspector with a fraudulent Canadian
    passport in the name of Benni Noris and stated that he was
    heading to Seattle. Because the ferry was not the typical route
    from Vancouver to Seattle, the inspector decided to search the
    car. The inspector failed to check the hidden wheel well in the
    trunk, however, and Ressam was allowed to board the ferry.
    The M/V COHO arrived in Port Angeles, Washington later
    that evening. Upon leaving the ferry, Ressam was questioned
    by U.S. Customs Inspector Diane Dean. Inspector Dean
    detected nervousness and directed Ressam to a secondary
    inspection area.
    UNITED STATES v. RESSAM                        1887
    Ressam filled out a custom’s declaration form falsely, stat-
    ing his name was Benni Norris 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 inspec-
    tor 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 inspec-
    tors and returned to the inspection area in a police car. The
    inspectors resumed searching the trunk of Ressam’s car.
    Believing the contraband to be narcotics, the inspectors did
    not handle the items as carefully as one would handle explo-
    sives. As the inspectors reached into the wheel well to remove
    the items, Ressam ducked down behind the protection of the
    police car door.1 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.
    1
    The following items were found in Ressam’s car:
    two lozenge bottles filled with primary explosives, one of which
    contained hexamethylene triperoxide diamine (HMTD) and the
    other of which contained cyclotrimethylene trinitramine (RDX);
    10 plastic bags of approximately 118 pounds total of urea in fine
    white powder form, which is a fertilizer that, when nitrated, can
    be used as a fuel in explosives; 2 plastic bags of about 14 pounds
    total of a crystalline powder determined to be aluminum sulfate;
    two 22-ounce olive jars each filled approximately 3/4 full of a
    golden brown liquid covered with a sawdust like substance,
    which liquified was determined to be an explosive, etheylene gly-
    col dinitrate (EGDN). Also discovered with these chemicals were
    four timing devices, comprised of small black boxes which each
    contained a circuit board connected to a Casio watch and nine-
    volt battery connector. Tests later confirmed that the timing
    devices were operational. Ressam’s fingerprints and hair were
    found in some of the timing devices.
    Government’s Ex Parte Motion and Order re: Letters Rogatory, March 3,
    2000.
    1888               UNITED STATES v. RESSAM
    Following his arrest, Ressam was indicted on nine counts
    relating to his attempt to carry out an act of terrorism tran-
    scending a national boundary. The statutory maximum pen-
    alty for these offenses was 130 years in prison.
    Before trial, the Government offered Ressam a sentence of
    25 years imprisonment in exchange for a guilty plea. The
    Government considered the sentence offered to be a substan-
    tially discounted offer, taking into account the risk of litiga-
    tion. Prior to trial, the Government characterized its evidence
    with regard to Count One, Conspiracy to Commit an Interna-
    tional Act of Terrorism Transcending National Boundaries,
    the most serious charge and the one that carried the most
    weight, as very thin. The Government was concerned about
    its ability to prove what Ressam intended to do once he
    crossed the border, using a phony passport and carrying over
    100 pounds of explosives. It was in fact not until during 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.
    In preparing its case for trial, the Government enlisted the
    services of judicial and law enforcement agencies from sev-
    eral other countries. Due to the unavailability of certain law
    enforcement witnesses in Canada, and the fact that certain
    other witnesses expressed fear of testifying against Ressam at
    trial, the district court granted the Government’s motion to
    take foreign depositions in Canada. Order of District Court
    granting Government’s motion for foreign depositions, June
    23, 2000. Due to possible prejudice by public sentiment in the
    Seattle area, the trial judge granted Ressam’s motion to trans-
    fer the site of the trial to Los Angeles. On April 6, 2001, fol-
    lowing a 19-day trial involving approximately 120 witnesses
    and over 600 exhibits, a jury convicted Ressam on all counts.
    The sentence exposure for these convictions under the then-
    mandatory Sentencing Guidelines was 65 years to life.
    UNITED STATES v. RESSAM                 1889
    B
    On May 4, 2001, prior to sentencing, counsel for Ressam
    informed the United States Attorneys’ Office that Ressam
    wished to cooperate with it and law enforcement authorities
    in the investigation of terrorist activities. 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 letter agreement memorializing the parties’ understand-
    ing that Ressam would cooperate with law enforcement “in
    hopes of earning a motion for a downward departure [in his
    sentence] pursuant to U.S.S.G. 5K1.1.” Ressam signed the
    agreement the next day. The cooperation agreement required
    Ressam’s full compliance with the terms of the agreement, his
    full cooperation with designated agencies, and his truthful tes-
    timony before the grand jury, and in other court proceedings
    with respect to any matters as requested by the U. S. Attor-
    ney’s Office for the Western District of Washington or the
    Southern District of New York, including but not limited to
    the trial of his accomplice and co-conspirator Mokhtar Hao-
    uari and any future prosecutions brought in connection with
    the participation by Ressam and others in Canada, Afghani-
    stan, and elsewhere in a conspiracy to kill United States
    nationals.
    In exchange, the United States Attorney agreed to file a
    5K1.1 motion asking the judge for a downward departure
    from the then-mandatory Sentencing Guidelines. 
    Id. The par-
    ties agreed that neither side would request a sentence less than
    27 years imprisonment. 
    Id. Between May
    10, 2001 and September 11, 2001, Ressam
    met with Government agents approximately 22 times. On July
    5, 2001 and July 6, 2001, Ressam testified as a prosecution
    witness at the trial of his co-conspirator, Mokhtar Hauoari.
    1890               UNITED STATES v. RESSAM
    The evidence at Haouari’s trial established that he conspired
    with Ressam and Abdelghani Meskini to support Ressam’s
    terrorist plot to bomb LAX. United States v. Mokhtar Hao-
    uari, S4-00-cr-15, 
    2001 WL 1154714
    , at *2-4 (S.D.N.Y. Sept.
    28, 2001). Hauoari supported Ressam by recruiting Meskini
    to assist Ressam in the United States, and by providing him
    with money, a credit card and false identification. Meskini
    pleaded guilty and also testified against Hauoari. Under the
    terms of Meskini’s plea agreement, he received six years
    imprisonment. Hauoari was sentenced to 24 years in prison,
    two years short of the statutory maximum.
    On July 2, 2001, based almost entirely upon information
    provided by Ressam, the United States Attorney for the
    Southern District of New York 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.
    After the terrorist attacks that occurred on September 11,
    2001, Ressam identified Zacarias Moussaoui from a photo-
    graph as an individual 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.
    Relying on Ressam’s continued cooperation, on October
    26, 2001, the United States Attorney for the Southern District
    of New York filed a complaint against Samir Ait Mohamed.
    Ressam was aware that he would figure as a prominent Gov-
    ernment witness in that case.
    By November 28, 2001, six months after entering into the
    cooperation agreement with the United States Attorney, Res-
    sam began showing reluctance to discuss certain matters. FBI
    UNITED STATES v. RESSAM               1891
    Special Agent Humphries, who worked with Ressam from the
    commencement of his cooperation with the Government, tes-
    tified that in a June 23, 2001 interview, Ressam had talked
    with him at length about Nacer Hamaidi, an individual in
    Vancouver, British Columbia, who had assisted Ressam in:
    obtaining fraudulent Canadian social security numbers; driv-
    ing Ressam to the DMV for the purpose of obtaining a driv-
    er’s license in a fraudulent name, the Benni Antoine Noris
    name; driving him to the Royal Bank, where he opened an
    account under the Benni Antoine Noris name; driving Ressam
    to the downtown Vancouver business licensing office where
    he was able to apply for and obtain the Benni import/export
    license. Ressam explained to Agent Humphries that Hamaidi
    advised him on an individual living in Alberta, Canada, who
    worked for the DMV, which is privatized in Alberta, and who
    for a sum of $500 furnished Mr. Ressam with a true Alberta
    driver’s license in the name Benni Antoine Noris. That license
    was subsequently surrendered to the Quebec driver’s license
    authority to obtain a Quebec driver’s license in that name.
    Hamaidi knew that Ressam had been to the training camps
    because he drove him to the bus station the night he left Can-
    ada to go to Afghanistan for training. And he was the first
    person in Vancouver Ressam met and called upon when he
    came back into North America from Afghanistan training
    camps.
    This information was passed on to Canadian authorities
    who were critically interested in trying to ensure that they
    could identify individuals who may be in a position to assist
    criminals intent on carrying out attacks upon the United
    States. When officers from the Royal Canadian Mounted
    Police (“RCMP”) traveled to the United States to interview
    Ressam in late 2001 in connection with their ongoing investi-
    gation of Nacer Hamaidi, however, Ressam had decided that
    he would no longer discuss Hamaidi. Agent Humphries testi-
    fied that the RCMP officers were disappointed that Ressam
    was not staying consistent with information he had previously
    provided. Agent Humphries intervened and spoke to Ressam
    1892                UNITED STATES v. RESSAM
    but Ressam did not want to discuss Hamaidi. Agent Humph-
    ries testified that this was the first time there was a disconnect
    in the rapport with Ressam.
    Between September 11, 2001 and February 11, 2002, Res-
    sam met with Government agents on approximately 15 occa-
    sions, including his participation in a deposition hearing in
    New York related to prosecutions taking place against crimi-
    nal defendants in Germany. On February 11, 2002, nine
    months after Ressam began his cooperation with the Govern-
    ment, Ressam’s counsel met with members of the United
    States Attorneys’ Office and sought to renegotiate the terms
    of the parties’ cooperation agreement. According to Ressam’s
    counsel, he was suffering from anxiety related to his impend-
    ing sentence, his conditions of confinement were compromis-
    ing his physical and mental well-being, and he wanted
    closure. The prosecution 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 seri-
    ous charges for which he now stands convicted. The prosecu-
    tion offered to assist Ressam in getting into the Witness
    Security Program, designed for prisoners in federal custody,
    which could result in a less onerous housing situation for Res-
    sam, albeit at some distance from Seattle. Ressam declined to
    take the prosecution’s offer.
    In response to Ressam’s request to renegotiate the terms of
    his cooperation agreement, the prosecution stated that Res-
    sam’s cooperation to date was not of a nature to lead them to
    consider dissolving the 27 year sentence recommendation
    floor. The prosecution also noted that based on the coopera-
    tion to date, they would not recommend a sentence in the 27
    year range. The prosecution stated, however, that its final rec-
    ommendation would reflect Ressam’s further efforts to coop-
    erate in future debriefing sessions and in providing testimony.
    Considering Ressam’s sentencing exposure, the prosecution
    UNITED STATES v. RESSAM                       1893
    added that it was in Ressam’s interest to fulfill his promised
    cooperation and earn a departure motion.
    The district court granted several sentencing continuances
    to allow Ressam to cooperate further with the Government.2
    Ressam continued cooperating 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. Ressam 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.
    On February 19, 2003, the prosecution filed a motion for a
    continuance of Ressam’s sentencing and requested an
    adjournment pursuant to the terms of his cooperation agree-
    ment with the Government. The prosecution argued that the
    request was reasonable and pointed out that Ressam’s co-
    conspirator, Abdelghani Meskini, another cooperating defen-
    dant who pleaded guilty and testified against Ressam at trial,
    was continuing to provide the Government with valuable
    information, and there were no plans to sentence him any time
    2
    Ressam was originally scheduled to be sentenced on June 28, 2001. On
    June 18, 2001, just prior to Ressam entering into the cooperation agree-
    ment with the prosecution, the district court continued the sentencing to
    July 25, 2001. On July 5, 2001, the district court continued Ressam’s sen-
    tencing to September 20, 2001. On September 7, 2001, sentencing was
    continued to February 14, 2002. On December 13, 2001, sentencing was
    continued to April 3, 2002. On December 19, 2001, sentencing was res-
    cheduled for March 29, 2002. On March 13, 2002, the prosecution moved
    for a nine-month continuance to allow Ressam “the opportunity to fulfill
    the terms of his promised cooperation.” Ressam did not object to the pros-
    ecution’s request for a nine-month continuance. The district court contin-
    ued the sentencing to March 13, 2003. It was later rescheduled to February
    26, 2003.
    1894                  UNITED STATES v. RESSAM
    soon. The prosecution reminded the district court that it had
    offered over a year earlier to transfer Ressam to another
    prison to address the adverse impact his conditions of con-
    finement may be having on his state of mind, but his counsel
    had objected to such a transfer. The prosecution further
    informed the district court that, relying on Ressam’s promise
    to cooperate, Abu Doha had been ordered extradited by the
    Magistrate Court in London to the United States for prosecu-
    tion. Also relying on Ressam’s promise to cooperate, the
    Government was in the process of extraditing Samir Ait
    Mohamed from Canada. The prosecution 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 now, the
    prosecution would likely make a sentencing recommendation
    calling for a considerably longer period of incarceration that
    we might if Ressam had completed his promised cooperation.
    On February 26, 2003, the district court held a hearing on
    the prosecution’s motion for a continuance. At the hearing,
    the district court asked the prosecution how it would respond
    if the court were to grant their continuance conditioned upon
    the immediate filing of a 5K motion for a downward depar-
    ture based upon Ressam’s cooperation. That same day, the
    prosecution filed a motion pursuant to U.S.S.G. Section
    5K1.1, seeking a sentence below the otherwise applicable
    guideline range based on Mr. Ressam’s substantial assistance
    in the case of United States v. Mokhtar Haouari, a matter
    prosecuted in the Southern District of New York in the sum-
    mer of 2001. Haouari, 
    2001 WL 1154714
    , at *2. The district
    court set a status conference for October 2003.3 Despite the
    § 5K1.1 motion, however, Ressam indicated he was unwilling
    to continue cooperation. By April 2003, he refused to provide
    a written statement to British officials concerning an individ-
    ual who was a member of his own terror cell.
    3
    The scheduled status conference was continued several times and
    finally occurred on July 9, 2004. On that date, sentencing was scheduled
    for February 17, 2005. It was later continued to April 27, 2005.
    UNITED STATES v. RESSAM                 1895
    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 evalu-
    ating 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 explaining 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 Attorneys’ Office, and behavioral science experts from
    the FBI. It was decided that Ressam would be moved to a
    prison environment that would afford him much more envi-
    ronmental, 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
    much less tense, more relaxed, and his thinking was strikingly
    clearer. Dr. Grassian reported that Ressam realized that he
    had made a solemn promise to cooperate, and that his refusal
    to continue to testify and speak with the Government could
    likely have serious adverse consequences in regard to his sen-
    tence and his custody status. Nevertheless, 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. The par-
    ties each filed sentencing memoranda. Contrary to the terms
    set forth in the June 23, 2001 cooperation agreement, Ressam
    requested a sentence of 150 months imprisonment. Ressam’s
    position was that the starting point should be the prosecu-
    tion’s pre-trial plea offer of 25 years, rather than the Sentenc-
    ing Guidelines range of 65 years to life. The prosecution
    recommended a sentence of 35 years imprisonment, arguing
    that by breaching his agreement with the United States Attor-
    neys’ Office, Ressam had effectively terminated at least two
    criminal cases of vital interest to national security.
    The prosecution acknowledged that Ressam had provided
    valuable assistance to the United States and to foreign author-
    1896               UNITED STATES v. RESSAM
    ities. For that reason, despite Ressam’s breach of the coopera-
    tion agreement, the prosecution recommended a 35-year
    sentence, which was a substantial reduction from the 65 year
    bottom of the otherwise applicable Guidelines range that Res-
    sam would face absent cooperation.
    Agent Humphries, who was involved throughout the dura-
    tion of Ressam’s cooperation, testified concerning the infor-
    mation received from Ressam and its usefulness. Agent
    Humphries stated that Ressam’s information was helpful in
    that it provided a personal account of his matriculation from
    North America through Europe to Pakistan through safe-
    houses into Afghanistan. Agent Humphries testified that most
    of the information Ressam provided to the FBI had previously
    existed within the U.S. intelligence community in classified
    realms, but Ressam served as an unclassified vehicle, which
    the FBI could use to relay the previously classified informa-
    tion to other law enforcement and intelligence services
    throughout the world. Additionally, the prosecution filed a
    summary of debriefings, proffers, and testimony provided by
    Ressam in support of the sentencing memorandum to be filed
    by Ressam on a later date.
    At the sentencing hearing, Ressam argued that his coopera-
    tion was worth a greater reduction in his sentence. Ressam
    argued that he ceased cooperating, in part, because he was
    having trouble remembering details. Ressam submitted a psy-
    chiatric report prepared by Dr. Grassian wherein he opined
    that the combination of solitary confinement and repeated
    interrogations had a negative impact on Ressam’s mental
    health. Dr. Grassian further stated that Ressam’s history pro-
    vided strong evidence that he would not be a danger to our
    community. Dr. Grassian also noted in his report that Ressam
    wondered if the Government might be willing to let him live
    in the United States after his release from prison. Relying on
    Dr. Grassian’s report, Ressam argued that he was experienc-
    ing some very serious cognitive issues.
    UNITED STATES v. RESSAM                    1897
    In assessing Ressam’s cooperation, the district court com-
    mented that the United States Attorney’s pre-trial offer of a
    sentence of 25 years “might have some relation to the post-
    trial assessment of the case with a level of cooperation.” Sen-
    tencing Hr’g Tr. at 15, April 27, 2005.
    The district court stated to Ressam’s counsel:
    One of the things that baffles me, Mr. Hillier, is I
    made it clear in an in-chambers conference with you
    and the government that I wanted to be able to give
    Mr. Ressam as much credit as I could for coopera-
    tion. And that, what happened between that session,
    which was a month ago or a few weeks ago, and the
    time of this sentencing, could be translated into years
    of time. And I’m mystified that he insists upon going
    ahead with the sentencing today, rather than waiting
    to see what happens with Doha and the Canadian
    case. Can you shed any light on that, without violat-
    ing your privilege?
    
    Id. at 106-07.
    The district court also commented that “it
    strikes me that a lot of the details that he’s not remembering
    now are things that one would not forget.” 
    Id. at 109.
    At the
    district court’s urging, Ressam asked for a three-month con-
    tinuance of the sentencing hearing to allow him to consider
    whether he was willing to cooperate further in the prosecu-
    tions of Doha and Mohamed. The prosecution objected, argu-
    ing that Ressam should decide then and there whether he was
    willing to cooperate fully, and that it was disingenuous to
    believe that his memory would suddenly improve. The district
    court concluded that Ressam’s reaction to the request for con-
    tinued cooperation suggested “there’s reason for optimism
    that his cooperation will improve.” 
    Id. On July
    27, 2005, the district court held a sentencing hear-
    ing and heard argument from both sides, which largely mir-
    1898                    UNITED STATES v. RESSAM
    rored the arguments presented at the April 27, 2005 hearing.
    The Court sentenced Ressam to 22 years imprisonment.
    Ressam appealed from his conviction for carrying an explo-
    sive during the commission of a felony. United States v. Res-
    sam, 
    474 F.3d 597
    (9th Cir. 2007). In a cross-appeal, the
    prosecution challenged Ressam’s sentence as unreasonable in
    light of his decision to cease cooperating and to recant his
    prior statements. 
    Id. This Court
    reversed the conviction for
    carrying explosives during the commission of a felony,
    vacated Ressam’s sentence, and remanded for resentencing,
    without addressing the merits of the prosecution’s arguments
    as to the reasonableness of the sentence.4 
    Id. The United
    States Supreme Court reversed this Court’s decision that the
    prosecution had failed to prove each of the elements of the
    crime of carrying explosives during the commission of a fel-
    ony. United States v. Ressam, 
    128 S. Ct. 1858
    (2008). On
    remand, this Court vacated the sentence and remanded for
    resentencing because the district court had failed to determine
    the applicable Guidelines range, as required under United
    States v. Carty, 
    520 F.3d 984
    (9th Cir. 2007) (en banc), cert.
    4
    This Court vacated the sentence on the ground that the reversal of the
    conviction for Count Nine would require a new sentencing hearing. Res-
    
    sam, 474 F.3d at 604
    . It declined to address the merits of the Govern-
    ment’s argument as to the reasonableness of Ressam’s sentence in part
    because:
    the law applicable to sentencing is in flux. We are rehearing two
    cases en banc, United States v. Carty, 
    453 F.3d 1214
    (9th Cir.
    2006) reh’g en banc granted, 
    462 F.3d 1066
    (9th Cir. 2006), and
    United States v. Zavala, 
    443 F.3d 1165
    (9th Cir. 2006) reh’g en
    banc granted, 
    462 F.3d 1066
    (9th Cir. 2006), and the United
    States Supreme Court has granted writs of certiorari in Claiborne
    v. United States, 
    127 S. Ct. 551
    (Nov. 3, 2006) (No. 06-5618),
    and Rita v. United States, 
    127 S. Ct. 551
    (Nov. 3, 2006) (No. 06-
    5754), which will have a good deal to say about the sentencing
    process in the wake of United States v. Booker, 
    543 U.S. 220
          (2005).
    
    Id. UNITED STATES
    v. RESSAM                       1899
    denied sub nom. Zavala v. United States, 
    128 S. Ct. 2491
    (2008). United States v. 
    Ressam, 538 F.3d at 1167
    (9th Cir.
    2008).
    C
    While the matter was on appeal, on November 11, 2006,
    Ressam sent a letter to the district court recanting the testi-
    mony he provided in the trial of Haouari. Ressam stated:
    I write this letter to you in regard to “the allegation”
    of the prisoner “Mr. Hassan Zamiry” [also spelled
    Ahcene Zemiri] who is in Guantanamo prison in the
    Island of Cuba.
    The allegation: Is that Mr. Hassan Zamiry had
    provided aid and support for the operation I carried
    out. This is not right, it is false.
    ...
    When I dealt with Prosecutor at the beginning, I
    was in shock and had a severe psychological disor-
    der as I result [sic] of the court results. I was not sure
    about m[y] statements.
    ...
    Mr. Hassan Zamiry is innocent and has no relation
    or connection to the operation I was about to carry
    out. He also did not know anything about it and he
    did not assist me in anything.
    Ressam had previously claimed that Ahcene Zemiri provided
    him money and a video camera to aid in Ressam’s plot, and
    that Zemiri was going to assist him in an armed robbery that
    was to be committed in Montreal to obtain funds for the plan.
    When Ressam began cooperating with the Government,
    1900               UNITED STATES v. RESSAM
    Zemiri fled from Canada and was later captured in Afghani-
    stan and brought to Guantanamo as a prisoner based, at least
    in part, on Ressam’s statements. Zemiri’s habeas petition is
    pending before the United States District Court for the Dis-
    trict of Columbia. See Zemiri v. Obama, No. 04-cv-2046
    (D.D.C. filed Nov. 19, 2004).
    Similarly, in a letter dated March 28, 2007 to the United
    States Attorneys’ Office, Ressam purported to recant his pre-
    vious testimony against Haouari. In the letter, Ressam claims
    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. 2008). Haouari sub-
    mitted Ressam’s letter as “newly discovered evidence” suffi-
    cient to warrant the filing of a second or successive 28 U.S.C.
    § 2255 motion. 
    Id. Haouari’s motion
    pursuant to § 2255 was
    denied. 
    Id. D At
    the resentencing hearing, the district court began by cal-
    culating the applicable Sentencing Guidelines range for Res-
    sam’s crimes of conviction at 65 years to life, including a ten-
    year mandatory prison sentence for Count Nine. Before
    imposing its sentence, the district court heard from the parties
    regarding the sentence it should impose in conformity with
    this Court’s mandate.
    Appearing in pro se, Ressam told the district court that he
    wished to recant his testimony against his co-conspirator
    Maktar Haouari, and all statements made before the grand
    jury implicating Abu Doha and Samir Ait Mohamed, two
    known terrorists considered to be “major players” in the al-
    Qaeda network. 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.
    UNITED STATES v. RESSAM                       1901
    The government attorney and the investigator, they
    know about my mental condition that I was going
    through, and about my mental faculty and the proce-
    dure exposed to their own interests. They interpret
    some of my statements to suit their interests. And the
    statements that was put in my mouth, which I said
    yes, because — due to the extreme mental exhaus-
    tion I was going through. I also am subject of pres-
    sure 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 of 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 attor-
    ney Joe Bianco, in which I retrieved all my state-
    ments that I gave in the investigation in the past; all
    those I gave during the testimony of Makhtar Hao-
    uari in the New York court because I neither proceed
    my mental faculties [sic] or I know what I was say-
    ing.
    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 [sic]. I did not that in order to win
    or 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.
    1902                  UNITED STATES v. RESSAM
    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 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 case about Abu Doha and Samir
    Mohamed. Previously the government attorney cal-
    led me, Bruce, about to testify in the case 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
    court for my sentencing.
    The later reason will affect the case of Abu Doha
    and Samir Mohammed 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 I made in the
    past as to Abu Doha and Samir Mohammed. I indi-
    cate in my earlier statement because I did not know
    what I was saying.
    Sentencing Hr’g Tr. at 10-11, December 3, 2008. Ressam
    concluded by stating that he had nothing to say about his trial
    and asked the district court to “[s]entence me to life in prison
    or anything you wish. I will have no objection to your sen-
    tence.” 
    Id. at 12.
    In its argument, the prosecution reiterated the points raised
    in its November 28, 2008 sentencing memorandum wherein
    it recommended a sentence of 45 years in prison.5 The prose-
    5
    At Ressam’s December 3, 2008 resentencing hearing, the Government
    recommended that Ressam serve a term of life imprisonment, based upon
    his further recantation and attempts to distance himself from his earlier
    cooperation.
    UNITED STATES v. RESSAM                    1903
    cution argued that the sentence imposed needs “to protect the
    public from further crimes of the defendant.” It also stated:
    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 would Ressam no longer pose a threat to
    the people of the United States.
    Government’s Sentencing Br. at 23-24, November 28, 2008.
    In this same vein, in addressing Ressam’s challenge to the
    enhanced criminal history score required under U.S.S.G.
    § 3A1.4, the prosecution urged the district court to consider
    that “all of the crimes of which Ressam was charged and con-
    victed were directed at achieving his goal of placing a bomb
    at [LAX].” As the prosecution pointed out in its sentencing
    memorandum:
    Congress and the Sentencing Commission had a
    rational basis for concluding that an act of terrorism
    1904                    UNITED STATES v. RESSAM
    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 inca-
    pacitated for a longer period of time.
    
    Id. at 19
    (citing United States v. Meskini, 
    319 F.3d 88
    , 92 (2d
    Cir. 2003) (emphasis added)).6 The prosecution argued that
    the district court should
    impose a sentence that affords adequate deterrence
    for criminal conduct and protects the public from
    further crimes of this defendant.
    The unfortunate reality of today’s world, made so
    abundantly clear last week in Mumbai, is the possi-
    bility of future terrorist attacks is a continuing and
    genuine threat. The sentence this Court imposes on
    Mr. Ressam must not only act as a deterrent to Mr.
    Ressam and his future actions, but equally important
    they must also act as a deterrent to future potential
    terrorists who are contemplating actions against the
    United States. It must broadcast the clear message to
    extremists that when they are caught and convicted
    they will suffer serious consequences.
    6
    In Meskini, the Second Circuit addressed the question whether the pro-
    vision of the Guidelines increasing both the offense level and the criminal
    history category for a felony involving an act of terrorism violated
    Meskini’s right to due process by impermissibly “double counting” the
    same criminal act. The Second Circuit rejected the claim. The Second Cir-
    cuit explained that:
    Congress and the Sentencing Commission had a rational basis for
    creating a uniform criminal history category for all terrorists
    under § 3A1.4(b), because even terrorists with no prior criminal
    behavior are unique among criminals in the likelihood of recidi-
    vism, the difficulty of rehabilitation, and the need for incapacita-
    tion.
    
    Id. (emphasis added).
                       UNITED STATES v. RESSAM                    1905
    During the 2005 sentencing this Court noted that
    this was probably the most significant sentence any-
    body ever faced in your long tenure on the bench. I
    assume as we sit here three years later your opinion
    hasn’t changed. I fully agree with the Court’s assess-
    ment. The Court must send this defendant away for
    a long enough period of time so that there is no
    chance he will ever target innocent victims again.
    In addition, the sentence must also send an
    unequivocal message to extremists that there is a
    horrendous price to pay for targeting the United
    States . . . .
    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 commit-
    ment 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 Hassam Zemiri and
    Adil Charkaoui, and as of today his attempt to with-
    draw even his cooperation in the trial against Hao-
    uari.
    Sentencing Hr’g Tr. at 30-31, December 3, 2008. In its sen-
    tencing memorandum, the prosecution summarized the value
    of Ressam’s cooperation generally as
    providing testimony in the prosecutions of individu-
    als charged before he began his cooperation (such as
    the testimony he provided during the trial of Mokh-
    tar 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
    1906               UNITED STATES v. RESSAM
    information already known by the United States and
    foreign governments.
    To be sure, the information about trade craft, ter-
    rorism organizations, and training camps that Res-
    sam 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 Doah 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 also
    undermined his other cooperation by recanting ear-
    lier statements.
    Government’s Sentencing Br. at 17-18, November 28,
    2008.
    At the December 3, 2008 sentencing hearing, the Govern-
    ment explained that Ressam’s recantation of his prior state-
    ments 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 prosecution explained that as a high-ranking
    al Qaeda member with close ties to Osama Bin Laden, Abu
    Doha is, without question, one of the most dangerous terror-
    ists ever charged by the United States. After the dismissal of
    the charges against Doha in the United States, he was released
    from custody and is currently living in England.
    The prosecution argued that Ressam’s recantation repre-
    sents his attempts to affirmatively assist known terrorists and
    is a strong signal to any objective observer that Ressam’s
    UNITED STATES v. RESSAM                  1907
    long-held allegiance to radical terrorist beliefs have returned,
    and that he once again unequivocally is a danger to innocent
    people throughout the world. The prosecution also argued that
    Ressam’s sentence should reflect the seriousness of the terror-
    ist offenses for which he was convicted, and “send the defen-
    dant away for a long enough period of time so there is no
    chance he will ever target innocent victims again.”
    The prosecution pointed out that in response to the sentence
    of 22 years the district court ordered in its earlier sentencing
    order, Ressam has since recanted his earlier statements made
    pursuant to the cooperation agreement with the United States
    Attorneys’ Office. After Ressam recanted, the Government
    argued that if it had “known in May of 2001 what [it] know[s]
    today, how this was going to end up, [it] never would have
    entered into cooperation with this defendant. Any benefit he
    provided [the Government] initially has been substantially
    outweighed by his reversal, and [he] now attempts to use his
    position as a cooperating defendant to help his fellow terror-
    ists.”
    After hearing from the parties, the district court ordered as
    follows:
    The Ninth Circuit has made clear that the Sentenc-
    ing 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 reason-
    able. 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 sen-
    tence imposed to reflect the seriousness of the
    offenses Mr. Ressam has committed, to provide just
    punishment for those offenses, and to promote
    1908               UNITED STATES v. RESSAM
    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 peo-
    ple 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 atten-
    tive Port Angeles Customs Inspector, Mr. Ressam’s
    crimes did not lead to loss of life or limb, nor
    destruction of property. Nevertheless, the serious-
    ness and heinousness of the act of terrorism Mr. Res-
    sam 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 deci-
    sion and its import has not changed in my analysis
    today. The government’s 5K1.1 motion filed in Feb-
    ruary 2003 requested downward departure from the
    Sentencing Guidelines based on Mr. Ressam’s sub-
    stantial assistance in the case of United States versus
    Mokhtar Haouari, a matter prosecuted in the South-
    ern 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 coop-
    eration in that case Mr. Ressam also testified before
    a German tribunal on behalf of the German govern-
    ment in the trial against Mounir Motassadeq . . . .
    UNITED STATES v. RESSAM                    1909
    [i]n 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 dis-
    missal of two pending prosecutions and the retrac-
    tion of certain of his statements against two other
    terrorist suspects. However, Mr. Ressam’s coopera-
    tion, while it lasted, provided the United States gov-
    ernment 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 sen-
    tencing 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 likeli-
    hood of future cooperation by other apprehended ter-
    rorists. 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 many years in solitary con-
    finement 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 fair-
    1910               UNITED STATES v. RESSAM
    ness of our federal court system rather than merely
    its punitiveness.
    In addition, I have taken into account Mr. Res-
    sam’s history and characteristics. Reading Mr.
    Hilier’s 2005 sentencing memorandum and the
    report from Dr. Grassian leads me to the conclusion
    that Mr. Ressam’s life history and personal charac-
    teristics 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. Hilier 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. Hilier 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 exac-
    erbated by the fact that he does not speak English
    and has no opportunity for visits by friends and fam-
    ily abroad. These harsh conditions of confinement
    necessarily set Mr. Ressam’s situation apart from
    that of the typical criminal sentencing. I am also per-
    suaded that Mr. Ressam’s health deteriorated some-
    what from the isolation of his confinement and that
    the repetitive, intensive questioning to which he sub-
    mitted, 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
    UNITED STATES v. RESSAM                   1911
    with similar records who have been found guilty of
    similar conduct.
    Sentencing Hr’g Tr. at 35-38, December 3, 2008.
    The district court discussed “other terrorism-related prose-
    cutions around the country,” and “a recent study of 124 defen-
    dants sentenced in terrorism trials in American federal courts
    since September 12, 2001” which concluded that “the average
    term of imprisonment was a little over eight years.” 
    Id. at 39.
    The district court stated that these cases “did not influence
    [its] decision in determining an appropriate sentence in this
    case.” 
    Id. The district
    court discussed sentences in other ter-
    rorist cases, none of which involved attacks, or attempted
    attacks within the United States, “to provide a backdrop
    against which Mr. Ressam’s conviction and sentence may be
    viewed.” 
    Id. The court
    explained:
    I note that none of the defendants in these cases
    cooperated as extensively, providing as much valu-
    able 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. Res-
    sam’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. Res-
    sam be sentenced below the applicable guideline
    range.
    Therefore, based on all the factors listed in 18
    U.S.C. Section 3553, I hereby reimpose a sentence
    of 22 years and a period of supervised release of five
    years subject to the standard conditions, together
    with those additional conditions set forth in the pre-
    sentence report. I recognize that the sentence I am
    1912                      UNITED STATES v. RESSAM
    imposing reflects a significant downward deviation
    from the advisory guideline range. However, I
    believe the factors I have examined on the record are
    sufficiently compelling to support the degree of the
    variance.
    
    Id. at 41-42.
    II
    The Government asserts that “[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).”7 Appellant’s
    7
    Title 18 U.S.C. § 3553(a) requires that a sentencing court consider the
    following factors:
    (1)   the nature and circumstances of the offense and the history
    and characteristics of the defendant;
    (2)   the need for the sentence imposed—
    (A)   to reflect the seriousness of the offense, to promote
    respect for the law, and to provide just punishment for
    the offense;
    (B)   to afford adequate deterrence to criminal conduct;
    (C)   to protect the public from further crimes of the defen-
    dant; and
    (D)   to provide the defendant with needed educational or
    vocational training, medical care, or other correctional
    treatment in the most effective manner;
    (3)   the kinds of sentences available;
    (4)   the kinds of sentence and the sentencing range established
    for—
    (A)   the applicable category of offense committed by the
    applicable category of defendant as set forth in the
    guidelines . . .
    (5)   any pertinent policy statement . . .
    UNITED STATES v. RESSAM                        1913
    Opening Brief at 36. While recognizing that we “must first
    determine whether the district court committed significant
    procedural error,” the Government maintains that procedural
    error is “a claim not raised in this appeal.” 
    Id. By our
    reading
    of the issue on appeal, however, the Government is also
    impliedly challenging the sentence as procedurally unsound
    because its arguments are grounded upon the district court’s
    alleged failure adequately to consider and weigh each of the
    relevant § 3553(a) factors, including “to protect the public
    from further crimes of the defendant,” and to explain its rea-
    sons for imposing a sentence 43 years below the low end of
    the Sentencing Guidelines range. See 
    Carty, 520 F.3d at 993
    (holding that “[i]t would be procedural error for a district
    court to fail to . . . consider the § 3553(a) factors . . . or to fail
    adequately to explain the sentence selected, including any
    deviation from the Guidelines range”) (citing 
    Gall, 128 S. Ct. at 596-97
    ); see also United States v. Paul, 
    561 F.3d 970
    , 974
    n.2 (9th Cir. 2009) (“It is the procedural provisions of 18
    U.S.C. § 3553(c) that require engagement with the [parties’]
    arguments, not the substantive provisions of 18 U.S.C.
    § 3553(a)”); United States v. Overton, 
    573 F.3d 679
    , 699 (9th
    Cir. 2009) (concluding that appellant “allude[d] to procedural
    (6)   the need to avoid unwarranted sentence disparities among
    defendants with similar records who have been found guilty
    of similar conduct; and
    (7)   the need to provide restitution to any victims of the offense.
    18 U.S.C. § 3553(a) (emphasis added).
    Accordingly, in Carty, we instructed that “[t]he 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 deter-
    rence; to protect the public; and to provide the defendant with needed edu-
    cational or vocational training, medical care, or other correctional
    treatment.” 
    Carty, 520 F.3d at 991
    (9th Cir. 2008) (citing 18 U.S.C.
    § 3553(a)(1)-(7); United States v. Gall, 
    552 U.S. 38
    , 50 n.6 (2007))
    (emphasis added).
    1914               UNITED STATES v. RESSAM
    error by accusing the district court of failing to address the
    § 3553(a) factors and adequately explain the sentence
    imposed”).
    We believe that the Government may have framed the issue
    on appeal as it did because more clarity is needed in defining
    what constitutes procedural error in imposing a sentence that
    is significantly below the Sentencing Guidelines range.
    Accordingly, before addressing the question whether the dis-
    trict court’s decision in Ressam’s case was procedurally erro-
    neous or substantively unreasonable, we are persuaded that it
    is necessary to analyze each of these two concepts in some
    detail.
    A
    In Gall, the Supreme Court instructed that
    [r]egardless of whether the sentence imposed is
    inside or outside the Guidelines range, the appellate
    court must review the sentence under an abuse-of-
    discretion standard. It must first ensure that the dis-
    trict court committed no significant procedural error,
    such as failing to calculate (or improperly calculat-
    ing) the Guidelines range, treating the Guidelines as
    mandatory, failing to consider the § 3553(a) factors,
    selecting a sentence based on clearly erroneous
    facts, or failing to adequately explain the chosen
    sentence — including an explanation for any devia-
    tion from the Guidelines range. 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
    (emphasis added).
    [1] The Supreme Court’s instruction implies that appellate
    courts have a sua sponte duty to undertake a review for proce-
    UNITED STATES v. RESSAM                1915
    dural error even where, as here, no such error is expressly
    asserted by the Government in its appeal. As a preliminary
    matter, we now make explicit what was implicit in Gall. We
    hold that we must review sentencing decisions for procedural
    error, even where no claim of procedural error is raised. This
    holding is based upon our reading of the language in Gall
    instructing that an appellate court “must first ensure that the
    district court committed no significant procedural error,” 
    id. (emphasis added),
    our extensive review of the cases applying
    Gall, and our own holding in Carty. See 
    Carty, 520 F.3d at 993
    (“On appeal, we first consider whether the district court
    committed significant procedural error, then we consider the
    substantive reasonableness of the sentence.”).
    This requirement makes logical sense because “[i]n deter-
    mining substantive reasonableness, we are to consider the
    totality of the circumstances, including the degree of variance
    for a sentence imposed outside the Guidelines range.” 
    Id. Thus, the
    substantive reasonableness analysis requires consid-
    eration of information necessarily gleaned from the review for
    procedural error, including the district court’s calculation of
    the Sentencing Guidelines range and its consideration of the
    § 3553(a) factors. 
    Id. Indeed, “substantive
    problems . . . [can
    be] a product of the District Court’s procedurally flawed
    approach.” United States v. Goff, 
    501 F.3d 250
    , 256 (3d Cir.
    2007). “[I]f one cannot justify a result by the reasons given,
    that result is, by definition, not a substantively reasonable
    conclusion to the logical steps provided.” United States v.
    Levinson, 
    543 F.3d 190
    , 195 (3d Cir. 2008). Stated otherwise,
    it would be analytically problematic, if not impossible, to
    review a sentence for substantive reasonableness without hav-
    ing first reviewed the sentencing decision for procedural
    error. Accordingly, courts must review for procedural error
    even where the only claim raised on appeal is the substantive
    reasonableness of the sentence. See, e.g., 
    Overton, 573 F.3d at 699
    (reviewing for procedural error where appellant chal-
    lenged his sentence as substantively unreasonable but “al-
    luded to” procedural error); United States v. Shaw, 
    560 F.3d 1916
                  UNITED STATES v. RESSAM
    1230, 1238 (11th Cir. 2009) (reviewing for procedural error
    even though the only contention on appeal was that the sen-
    tence was substantively unreasonable). Having concluded that
    we must first review a sentence for procedural error, we now
    address what that review entails.
    1
    In Carty, we addressed the question whether “the district
    court imposed a procedurally flawed sentence by failing to
    provide sufficient reasons for selecting a sentence at the bot-
    tom of the Guidelines range rather than a lesser sentence.”
    
    Carty, 520 F.3d at 995
    . We held that
    [i]t would be procedural error for a district court to
    fail to calculate — or to calculate incorrectly — the
    Guidelines range; to treat the Guidelines as manda-
    tory instead of advisory; to fail to consider the
    § 3553(a) factors; to choose a sentence based on
    clearly erroneous facts; or to fail adequately to
    explain the sentence selected, including any devia-
    tion from the Guidelines range.
    
    Id. at 993.
    We concluded that the district court committed no
    procedural error in sentencing Carty to a within Guidelines
    sentence because “[a]lthough the judge gave no explicit rea-
    sons for [the sentence imposed], the arguments were straight-
    forward and uncomplicated . . . .” 
    Id. In a
    “typical case”
    which is “neither complex nor unusual,” applying the Guide-
    lines “will not necessarily require lengthy explanation” to
    comply with proper sentencing procedure. 
    Id. at 995.
    (citing
    Rita v. United States, 
    551 U.S. 338
    , 
    127 S. Ct. 2456
    , 2468
    (2007) (finding no error and holding that “given the straight-
    forward, conceptually simple arguments before the judge, the
    judge’s statement of reasons here, though brief, was legally
    sufficient”)); see also United States v. Amezcua-Vasquez, 
    567 F.3d 1050
    , 1054 (9th Cir. 2009) (same).
    UNITED STATES v. RESSAM                 1917
    [2] What Carty left unclear is whether a sentence is proce-
    durally flawed where the district court fails to provide “suffi-
    cient reasons” for selecting a sentence that is well below the
    Sentencing Guidelines range, and where “the arguments [are
    not] straightforward and uncomplicated,” and if so, what
    explanation will be deemed “sufficient” or “adequate” to pass
    procedural muster. 
    Carty, 520 F.3d at 995
    . Based upon our
    reading of Rita, Gall, and Carty, we conclude that such a sen-
    tence would be procedurally flawed. We will now probe the
    parameters of what constitutes a procedurally “sufficient” or
    “adequate” explanation by a district court in imposing a sen-
    tence in a complex or complicated case where the sentence
    deviates significantly below the advisory Sentencing Guide-
    lines range.
    a
    It is now well established that the district court must begin
    a sentencing hearing “by determining the applicable Guide-
    lines range.” 
    Carty, 520 F.3d at 991
    . The Guidelines “range
    must be calculated correctly,” as the Sentencing Guidelines
    are “the starting point and the initial benchmark.” 
    Id. (quota- tions
    and citations omitted). “[F]ailing to calculate (or
    improperly calculating) the Guidelines range” constitutes
    “significant procedural error.” 
    Gall, 552 U.S. at 51
    .
    Recognizing that “a Guidelines sentence ‘will usually be
    reasonable,’ ” we declined in Carty “to embrace a presump-
    
    tion.” 520 F.3d at 994
    (quoting 
    Rita, 127 S. Ct. at 2465
    ).
    However, we held that 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 vari-
    ance.’ ” 
    Carty, 520 F.3d at 991
    (quoting 
    Gall, 128 S. Ct. at 597
    ). As the Court explained in Gall, it is “uncontroversial
    that a major departure should be supported by a more signifi-
    cant justification than a minor one.” 
    Gall, 552 U.S. at 50
    . This
    is because “[w]hen a sentence is within the Guidelines range,
    1918                UNITED STATES v. RESSAM
    we know that ‘both the sentencing judge and the Sentencing
    Commission . . . have reached the same conclusion’ that the
    sentence is ‘proper.’ ” 
    Carty 520 F.3d at 996
    (Kozinski, C.J.,
    concurring) (emphasis in original) (quoting 
    Rita, 127 S. Ct. at 2463
    ).
    Thus, once the correct Guidelines range has been estab-
    lished, “[t]he district court may not presume that the Guide-
    lines range is reasonable.” 
    Carty, 520 F.3d at 991
    . Rather,
    “[t]he district court must make an individualized determina-
    tion based on the facts.” 
    Id. at 991.
    In reaching its sentence
    decision, the “district courts must . . . remain cognizant of [the
    Guidelines] throughout the sentencing process.” 
    Gall, 552 U.S. at 50
    n.6; see 
    Carty, 520 F.3d at 991
    (the Guidelines “are
    to be kept in mind throughout the [sentencing] process”) (cit-
    ing 
    Gall, 128 S. Ct. at 596-97
    n.6)).
    Where the sentence imposed falls within the Sentencing
    Guidelines range, it is reasonable to conclude that the district
    court remained “cognizant” of the Sentencing Guidelines. The
    harder question arises where, as here, the sentence falls signif-
    icantly outside the Guidelines range. This raises two ques-
    tions. First, are we to conclude that a procedural error has
    been committed if it appears from the record that the district
    court did not “remain cognizant of [the Sentencing Guide-
    lines] throughout the sentencing process”? 
    Gall, 552 U.S. at 50
    n.6. Second, if the answer to the first question is “yes,”
    what steps must a district court take to demonstrate that it has
    “kept [the Sentencing Guidelines] in mind throughout the pro-
    cess” and thus avoid committing such an error. 
    Carty, 520 F.3d at 991
    .
    [3] We answer the first question in the affirmative. Where
    the district court imposes a sentence significantly outside the
    Guidelines range, and it appears from the record that the dis-
    trict court did not “remain cognizant of [the Sentencing
    Guidelines] throughout the sentencing process,” 
    Gall, 552 U.S. at 50
    n.6, it has committed procedural error. To hold oth-
    UNITED STATES v. RESSAM                   1919
    erwise would be to construe the Supreme Court’s instruction
    in Gall as a suggestion rather than a requirement. Our reading
    of Gall does not permit such an interpretation. See 
    id. (“The fact
    that § 3553(a) explicitly directs sentencing courts to con-
    sider the Guidelines supports the premise that district courts
    must begin their analysis with the Guidelines and remain cog-
    nizant of them throughout the sentencing process.”). Accord-
    ingly, in imposing a sentence significantly outside the
    Guidelines range, there must be some indication in the record
    that the district court had the Guidelines “in mind throughout
    the process.” 
    Carty, 520 F.3d at 991
    .
    b
    After determining the applicable Sentencing Guidelines
    range, the district court must give the parties “a chance to
    argue for a sentence they believe is appropriate.” 
    Carty, 520 F.3d at 991
    . Failure to do so will constitute procedural error.
    
    Gall, 552 U.S. at 50
    n.6 (listing factors to be considered in
    reviewing for procedural error).
    c
    “The district court should then consider the § 3553(a) fac-
    tors to decide if they support the sentence suggested by the
    parties.” 
    Carty, 520 F.3d at 991
    (citing 18 U.S.C.
    § 3553(a)(1)-(7); 
    Gall, 128 S. Ct. at 596-97
    n.6). “It would be
    procedural error for a district court . . . to fail to consider the
    § 3553(a) factors.” 
    Id. at 993.
    d
    A district court also commits procedural error if it
    “choose[s] a sentence based on clearly erroneous facts.”
    
    Carty, 520 F.3d at 993
    . “A finding is clearly erroneous when
    although there is evidence to support it, the reviewing body
    on the entire evidence is left with the definite and firm con-
    viction that a mistake has been committed.” Concrete Pipe &
    1920                UNITED STATES v. RESSAM
    Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S.
    Cal., 
    508 U.S. 602
    , 622 (1993) (internal quotation marks and
    citation omitted). By way of example, in Levinson, the Third
    Circuit concluded that the district court based its decision on
    a clearly erroneous premise when it found that Levinson, who
    was convicted of tax fraud involving a specific dollar loss to
    the United States Treasury, had inflicted no financial harm on
    the public. 
    Levinson, 543 F.3d at 199
    .
    e
    Most important for purposes of review is the requirement
    that the district court “adequately . . . explain the sentence
    selected, including any deviation from the Guidelines range.”
    
    Carty, 520 F.3d at 993
    . Failure to provide an adequate expla-
    nation is procedural error. 
    Id. at 992
    (holding that “the district
    court must explain [the sentence] sufficiently to permit mean-
    ingful appellate review”). The explanation “is most helpful [if
    it] come[s] from the bench, but adequate explanation in some
    cases may also be inferred from the PSR [pre sentence report]
    or the record as a whole.” 
    Id. at 992
    .
    As we explained in Carty, “[w]hat constitutes a sufficient
    explanation will necessarily vary depending upon the com-
    plexity of the particular case, whether the sentence chosen is
    inside or outside the Guidelines, and the strength and serious-
    ness of the proffered reasons for imposing a sentence that dif-
    fers from the Guidelines range.” 
    Id. With regard
    to the district court’s consideration of the
    § 3553(a) factors, “[w]e assume that district judges know the
    law and understand their obligation to consider all of the
    § 3553(a) factors.” 
    Id. For this
    reason, “[t]he district court
    need not tick off each of the § 3553(a) factors to show that it
    has considered them.” 
    Id. “Nor need
    the district court articu-
    late in a vacuum how each § 3553(a) factor influences its
    determination of an appropriate sentence.” 
    Id. However, “when
    a party raises a specific, nonfrivolous argument teth-
    UNITED STATES v. RESSAM                 1921
    ered to a relevant § 3553(a) factor in support of a requested
    sentence, then the judge should normally explain why he
    accepts or rejects the party’s position.” 
    Id. at 992
    -93 (citing
    
    Rita, 127 S. Ct. at 2468
    ) (“Where the defendant or prosecutor
    presents nonfrivolous reasons for imposing a different sen-
    tence . . . the judge will normally go further and explain why
    he has rejected those arguments.”); see also 
    Goff, 501 F.3d at 255
    (“Although the District Court is not required either to
    comment on every argument counsel advances or to make
    findings as to each § 3553(a) factor, it nevertheless should
    expressly deal with arguments emphasized by the parties.”).
    Thus, other than addressing specific and nonfrivolous argu-
    ments raised by the parties, a district court need not offer
    much in the way of explanation to demonstrate that it has sat-
    isfied this requirement in imposing a sentence within the advi-
    sory Sentencing Guidelines. 
    Carty, 520 F.3d at 992
    (“A
    within-Guidelines sentence ordinarily needs little explanation
    . . . because both the Commission and the sentencing judge
    have determined that the sentence comports with the
    § 3553(a) factors and is appropriate in the ordinary case.”).
    We did not hold in Carty that a district court’s failure to
    address nonfrivolous arguments raised by a party in support
    of a requested sentence would constitute procedural error. It
    is axiomatic, however, that if review of the reasonableness of
    a sentence is hindered by the district court’s failure to address
    specific arguments that are “tethered to a relevant § 3553(a)
    factor in support of a requested sentence,” meaningful appel-
    late review is not possible and the sentence is by definition
    procedurally flawed. 
    Id. at 992
    -93; see also 
    Rita, 551 U.S. at 356
    (“The sentencing judge should set forth enough to satisfy
    the appellate court that he has considered the parties’ argu-
    ments and has a reasoned basis for exercising his own legal
    decisionmaking authority.”). This reasoning applies equally to
    sentences both within and outside the advisory Guidelines
    range.
    1922                UNITED STATES v. RESSAM
    f
    In addition to the § 3553(a) factors, a district court may
    also consider the defendant’s assistance in the investigation
    and prosecution of another person who has committed an
    offense. United States v. Zolp, 
    479 F.3d 715
    , 721 (9th Cir.
    2007) (“[T]he district court did not err by considering Zolp’s
    cooperation as part of its analysis under 18 U.S.C. § 3553(a)
    rather than as part of its advisory guidelines calculation.”).
    “The Guidelines ‘afford[ ] the sentencing judge’ wide ‘lati-
    tude’ 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); see also
    U.S.S.G. § 5K1.1 cmt. n.3 (providing that “[s]ubstantial
    weight should be given to the government’s evaluation of the
    extent of the defendant’s assistance, particularly where the
    extent and value of the assistance are difficult to ascertain”).
    When determining the appropriate extent of a substantial-
    assistance downward departure, the district court should con-
    sider the following five factors:
    (1) the court’s evaluation of the significance and use-
    fulness of the defendant’s assistance, taking into
    consideration the government’s evaluation of the
    assistance rendered; (2) the truthfulness, complete-
    ness, and reliability of any information or testimony
    provided by the defendant; (3) the nature and extent
    of the defendant’s assistance; (4) any injury suffered,
    or any danger or risk of injury to the defendant or his
    family resulting from his assistance; [and] (5) the
    timeliness of the defendant’s assistance.
    U.S.S.G. § 5K1.1(a). When imposing a sentence that is well
    below the advisory Guidelines range pursuant to a § 5K1.1
    motion, however, there must be some indication that the dis-
    UNITED STATES v. RESSAM                 1923
    trict court’s departure is justified. See United States v. Haack,
    
    403 F.3d 997
    (8th Cir. 2005) (examining the reasonableness
    of the sentence against the five factors outlined in U.S.S.G.
    § 5K1.1 and concluding that imposition of a 78-month sen-
    tence was not justified where the Guidelines range was 180
    months and the assistance the defendant provided consisted of
    information regarding others who were either already under
    indictment or were suspects); see also United States v. Live-
    say, 
    525 F.3d 1081
    , 1093 (11th Cir. 2008) (vacating and
    remanding sentence where the district court did not ade-
    quately explain its assessment of Livesay’s cooperation or the
    sentence imposed).
    2
    Once an appellate court has concluded that no procedural
    error has occurred, it must review sentences for substantive
    reasonableness. 
    Carty, 520 F.3d at 993
    . “A substantively rea-
    sonable sentence is one that is ‘sufficient, but not greater than
    necessary’ to accomplish § 3553(a)(2)’s sentencing goals.”
    United States v. Crowe, 
    563 F.3d 969
    , 977 n.16 (9th Cir.
    2009) (quoting 18 U.S.C. § 3553(a)); see also United States
    v. Vasquez-Landaver, 
    527 F.3d 798
    , 804-05 (9th Cir. 2008)
    (affirming sentence as reasonable where the record shows the
    district court considered the § 3553(a) factors and imposed a
    sentence that was sufficient but no greater than necessary to
    comply with § 3553(a)); United States v. Rodriguez-
    Rodriguez, 
    441 F.3d 767
    , 771 (9th Cir. 2006) (same).
    “The touchstone of ‘reasonableness’ is whether the record
    as a whole reflects rational and meaningful consideration of
    the factors enumerated in 18 U.S.C. § 3553(a).” United States
    v. Tomko, 
    562 F.3d 558
    , 568 (3d Cir. 2009) (quoting United
    States v. Grier, 
    475 F.3d 556
    , 571 (3d Cir. 2007) (en banc);
    see also United States v. Williams, 
    425 F.3d 478
    , 481 (7th Cir.
    2005) (“[W]hat we must decide is whether the district judge
    imposed the sentence he or she did for reasons that are logical
    and consistent with the factors set forth in section 3553(a).”).
    1924               UNITED STATES v. RESSAM
    “In determining substantive reasonableness, we are to con-
    sider the totality of the circumstances, including the degree of
    variance for a sentence imposed outside the Guidelines
    range.” 
    Carty, 520 F.3d at 993
    .
    With these standards in mind, we turn now to the case
    before us.
    UNITED STATES v. RESSAM            1925
    Volume 2 of 2
    1926                UNITED STATES v. RESSAM
    III
    The Government argues that based upon the unusual record
    in this case, the district court has failed adequately to explain
    its reasons for imposing a sentence “two-thirds less than the
    low end of the advisory Guidelines range.” The Government’s
    chief argument is that because Ressam is a trained terrorist
    who has led a life of crime, devoted years of his life to plan-
    ning, coordinating, and attempting to execute an attack on the
    public that would result in massive destruction and death
    within the United States, a longer sentence is needed to
    accomplish the purposes of § 3553(a).
    The Government argues that the district court overstated
    the value of Ressam’s cooperation while giving little or no
    weight to other relevant § 3553(a) factors. The value and
    quality of the assistance rendered by Ressam, the Government
    contends, “simply do not justify the extraordinary reduction
    granted by the court in this case.” Appellant’s Opening Brief
    at 43. Although Ressam provided a great deal of information
    about his training as a terrorist and the terrorist acts of others,
    the Government argues that most of his cooperation merely
    declassified previously known information. 
    Id. at 44.
    The
    Government stressed that the district court did not give suffi-
    cient weight to the fact that Ressam ceased cooperation,
    recanted his earlier testimony, and thus caused the criminal
    complaint against two terrorists to be dismissed. 
    Id. at 45-46.
    “[R]ewarding Ressam with a minimum forty-three-year
    reduction in sentence for failure to complete his cooperation
    sends” the message “that regardless of whether you violate
    your agreements or complete your bargain, you will be
    rewarded handsomely by the court.” 
    Id. at 48.
    The Government argues that the district court failed to con-
    sider the timing of Ressam’s decision to cooperate, which did
    not occur until after he had been convicted and was facing a
    possible life sentence. 
    Id. at 48-49.
    The Government argues
    further that such a significant reduction in sentence results in
    UNITED STATES v. RESSAM                 1927
    an unreasonable sentence because it gives too little weight to
    the other relevant § 3553(a) factors, does not promote respect
    for the law, provide just punishment for the crime, or afford
    adequate deterrence to criminal conduct. 
    Id. at 51.
    The Gov-
    ernment also contends that the sentence fails to protect the
    public from future crimes by Ressam because he will be 53
    years old upon release from prison.
    The Government maintains that Ressam’s prison conditions
    should not have been considered because Ressam refused the
    Government’s offer to place him in the more hospitable Wit-
    ness Security Program. 
    Id. at 52-53.
    Finally, the Government
    argues that the district court’s comparisons of sentences
    imposed in other terrorism cases do not establish the reason-
    ableness of Ressam’s sentence. 
    Id. at 55.
    A
    “[T]he abuse-of-discretion standard of review applies to
    appellate review of all sentencing decisions — whether inside
    or outside the Guidelines range.” 
    Gall, 552 U.S. at 49
    . We
    have characterized our review for procedural error in sentenc-
    ing decisions as a review for “procedural reasonableness.”
    
    Amezcua-Vasquez, 567 F.3d at 1053
    ; see also United States
    v. Grissom, 
    525 F.3d 691
    , 696 n.2 (9th Cir. 2008). “An esti-
    mation of the outer bounds of what is ‘reasonable’ under a
    given set of circumstances may not always be beyond debate,
    but the abuse-of-discretion standard by which that estimation
    must be judged limits the debate and gives district courts
    broad latitude in sentencing.” 
    Levinson, 543 F.3d at 195
    (vacating sentence as procedurally erroneous where district
    court offered inadequate explanation for downward variance
    in sentence).
    In Grissom, we explained that a “review for questions of
    procedural reasonableness” requires reviewing “the district
    court’s interpretation of the Sentencing Guidelines de novo,
    the district court’s application of the Sentencing Guidelines to
    1928               UNITED STATES v. RESSAM
    the facts of a case for abuse of discretion, and the district
    court’s factual findings for clear 
    error.” 525 F.3d at 696
    & n.2
    (quoting United States v. Cantrell, 
    433 F.3d 1269
    , 1279 (9th
    Cir. 2006), and explaining that nothing in Gall or Carty pro-
    vides for an abuse of discretion standard of review for proce-
    dural error different from the standard set forth in Cantrell).
    In United States v. Wise, 
    515 F.3d 207
    (3d Cir. 2008), the
    Third Circuit explained the review standard as follows:
    We review the district court’s decision under an
    abuse-of-discretion standard . . . but the amount of
    deference we give will depend on the type of proce-
    dural error asserted on appeal. For example, a district
    court will be held to have abused its discretion if its
    decision was based on a clearly erroneous factual
    conclusion or an erroneous legal conclusion. . . .
    Koon v. United States, 
    518 U.S. 81
    , 100 (1996) (“A
    district court by definition abuses its discretion when
    it makes an error of law.”); Cooter & Gell v. Hart-
    marx Corp., 
    496 U.S. 384
    , 401 (1990) (“When an
    appellate court reviews a district court’s factual find-
    ings, the abuse-of-discretion and clearly erroneous
    standards are indistinguishable: A court of appeals
    would be justified in concluding that a district court
    had abused its discretion in making a factual finding
    only if the finding were clearly erroneous.”). Thus,
    if the asserted procedural error is purely factual, our
    review is highly deferential and we will conclude
    there has been an abuse of discretion only if the dis-
    trict court’s findings are clearly erroneous . . . . On
    the other hand, we do not defer to a district court
    when the asserted procedural error is purely legal, as,
    for example, when a party claims that the district
    court misinterpreted the Guidelines.
    
    Wise, 515 F.3d at 217
    .
    Under the abuse of discretion standard of review recently
    announced in United States v. Hinkson, 
    585 F.3d 1247
    (9th
    UNITED STATES v. RESSAM                  1929
    Cir. 2009), we first consider whether the district court identi-
    fied the correct legal standard for decision of the issue before
    it, and then “determine whether the district court’s findings of
    fact, and its application of those findings of fact to the correct
    legal standard, were illogical, implausible, or without support
    in inferences that may be drawn from facts in the record.” 
    Id. at 1251.
    “For a non-Guidelines sentence, we are to ‘give due defer-
    ence to the district court’s decision that the § 3553(a) factors,
    on a whole, justify the extent of the variance.’ ” 
    Carty, 520 F.3d at 993
    (quoting 
    Gall, 128 S. Ct. at 597
    ). “We may not
    reverse just because we think a different sentence is appropri-
    ate.” 
    Id. B There
    are four procedural errors in the district court’s anal-
    ysis: (1) the district court failed to use the Guidelines as a
    starting point and to “remain cognizant” of them throughout
    the process in reaching Ressam’s sentence; (2) the district
    court failed to explain why it was rejecting the Government’s
    argument as to the value of Ressam’s cooperation, and failed
    to address the impact of Ressam’s recantation and timeliness
    of his decision to cooperation; (3) the court clearly erred when
    it credited Dr. Grassian’s assessment of Ressam’s life history
    and personal characteristics, and that of Ressam’s counsel, in
    view of the contradictory factual findings in the PSR; and, (4)
    the district court erred in failing to address the Government’s
    argument that a longer sentence is required to protect the pub-
    lic from future crimes committed by Ressam, who will be
    only 53 years old when his sentence expires. We address each
    error in turn.
    1
    [4] The district court calculated the applicable Guidelines
    range at the beginning of the sentencing hearing. At the end
    1930                UNITED STATES v. RESSAM
    of its analysis, the court stated in a conclusory manner that it
    had considered the Guidelines range as one factor, given it the
    same weight as the other § 3553 factors, and that it recognized
    the sentence reflects “a significant downward deviation from
    the advisory guideline range.” Beyond these passing refer-
    ences to the Guidelines, the district court made no attempt to
    explain how it settled on a sentence that was 43 years below
    the low end of the Guidelines range.
    Rather, the record suggests that the district court agreed
    with Ressam’s position that the starting point for calculating
    his sentence should be the Government’s pre-trial plea offer
    of 25 years. At the resentencing hearing, the Government
    argued that using the pre-trial offer as a starting point was
    legally improper. Sentencing Hr’g Tr. at 14, December 3,
    2008. The Government attempted to dispel the district court
    of its earlier stated belief that the Government’s pre-trial offer
    of a sentence of 25 years “might have some relation to the
    post-trial assessment of the case with a level of cooperation,”
    supra at 23, by explaining that 25 years was “not an appropri-
    ate sentence in the view of anyone on the government’s
    team.” Sentencing Hr’g Tr. at 14, December 3, 2008. The dis-
    trict court stated that it was not convinced, replying: “I have
    a hard time accepting that.” 
    Id. at 15.
    [5] Based upon our review of the record, beyond perform-
    ing the calculation of the Guidelines range at the beginning of
    the hearing and referencing the Guidelines twice in passing,
    the district court did not appear to give any weight whatsoever
    to the Guidelines range. Therefore, the record does not dem-
    onstrate that the district court used the applicable Guidelines
    range as “the starting point and initial benchmark” as
    required. 
    Carty, 520 F.3d at 991
    .
    Our perception that the district court failed to keep the
    applicable Guidelines range in mind throughout sentencing is
    bolstered by how the district court dealt with the mandatory
    minimum and consecutive sentence requirements that per-
    UNITED STATES v. RESSAM                        1931
    tained to certain counts of Ressam’s conviction. The convic-
    tion on Count Nine (carrying an explosive during the
    commission of a felony) requires a mandatory minimum sen-
    tence of at least 10 years, under 18 U.S.C. § 844(h)(2). In
    addition, consecutive sentences are required for the convic-
    tions for Count Nine and also for Count One (act of terrorism
    transcending a national boundary, in violation of 18 U.S.C.
    § 2332b(a)(1)(B)). See 18 U.S.C. §§ 844(h)(2) and
    2332b(c)(2), respectively.
    The 10-year mandatory minimum for Count Nine meant
    that Ressam was sentenced to only 12 years for his convic-
    tions on the other eight counts combined, a portion of which
    represented the consecutive sentence for the Count One con-
    viction. That period of 12 years was divided into seven years
    for violating 18 U.S.C. § 2332b(a)(1)(B) (Count One) and
    five years for the seven remaining counts (Counts Two
    through Eight).8
    8
    The Government, not the district court, chose the length of each por-
    tion of Ressam’s sentence. When the district court first imposed Ressam’s
    sentence, it considered only the total term of imprisonment and asked “the
    government to allocate [22 years] according to the statutory minimums
    among the counts in consecutive and concurrent [terms] as necessary to
    arrive at” the total. Sentencing Hr’g Tr. at 31, July 27, 2005. The district
    court did not revisit the components of the total sentence at the 2008 sen-
    tencing hearing. The parties did not brief the question—which we do not
    reach—whether the district court’s decision not to determine and impose
    independent sentences for each of the three consecutive terms was error.
    See U.S.S.G. § 5G1.2; cf. United States v. Franklin, 
    499 F.3d 578
    , 584-85
    (6th Cir. 2007) (“When any downward variance of the guideline range is
    based upon the effect of a mandatory sentence, congressional intent is
    repudiated, just as if the mandatory sentence itself had been reduced.”);
    United States v. Roberson, 
    474 F.3d 432
    , 437 (7th Cir. 2007) (“The dis-
    trict judge was . . . required to determine the proper sentence for the bank
    robbery entirely independently of the section 924(c)(1) add-on.”). But see
    United States v. Vidal-Reyes, 
    562 F.3d 43
    , 55-56 (1st Cir. 2009) (“[T]his
    provision merely specifies that the sentence for counts subject to a manda-
    tory consecutive sentence should be calculated separately from the
    [Guidelines sentencing range] on other counts. In other words, those
    counts involving mandatory sentences should be excluded from the group-
    ing procedures that would otherwise apply.”) (citing United States v. A.B.,
    
    529 F.3d 1275
    , 1276 n.1 (10th Cir. 2008)).
    1932               UNITED STATES v. RESSAM
    Those component parts reveal that Ressam’s sentence actu-
    ally involves an even greater departure below the Guidelines
    than is initially apparent. Ressam’s total sentence of 22 years
    is only 34 % as long as the low end of the combined Guide-
    lines range of 65 years, but his seven-year sentence for Count
    One is only 28 % of the Guidelines recommendation of 300
    months, and his five-year sentence for the remaining seven
    counts is only 17 % of the Guidelines minimum recommenda-
    tion of 360 months.
    [6] Additionally, simply acknowledging that the sentence
    reflects “a significant downward deviation from the advisory
    guideline range” is insufficient on this record to demonstrate
    that the court “remain[ed] cognizant of [the Guidelines]
    throughout the sentencing process.” 
    Gall, 552 U.S. at 50
    n.6;
    
    Carty, 520 F.3d at 991
    (the Guidelines “are to be kept in mind
    throughout the [sentencing] process” (citing 
    Gall, 552 U.S. at 50
    n.6.)); see also United States v. Pugh, 
    515 F.3d 1179
    , 1200
    (11th Cir. 2008) (vacating and remanding sentence where the
    sentence failed to reflect the seriousness of defendant’s
    offense and the district court did “not give any real weight to
    the Guidelines range in imposing the sentence”).
    [7] United States v. Mohamed, 
    459 F.3d 979
    (9th Cir.
    2006), demonstrates the level of explanation that a district
    court must provide when imposing a sentence that differs sub-
    stantially from the Guidelines range. Mohamed was convicted
    of making a false bomb threat to the Department of Homeland
    Security, claiming that four of his acquaintances were terror-
    ists involved in a plot to bomb shopping malls in Los Ange-
    les, California. 
    Id. at 981.
    “After expending considerable
    resources to protect against the threat and identify its perpe-
    trator, law enforcement officials located and arrested
    Mohamed.” 
    Id. He was
    convicted and sentenced to a prison
    term of five years for violating 18 U.S.C. § 844(e), which pro-
    hibits the use of a telephone to make a threat regarding an
    attempt to “destroy a building, vehicle, or other real or per-
    sonal property by means of fire or an explosive.” 
    Id. (quoting UNITED
    STATES v. RESSAM                     1933
    18 U.S.C. § 844(e)). In imposing a 60-month sentence, the
    district court deviated considerably from the Guidelines range
    of 12 to 18 months. Id at 989. We observed that “the sentenc-
    ing guidelines anticipate their own inadequacy in the context
    of bomb threats” which include “a particularly wide range of
    conduct.” 
    Id. at 988.
    The district court “noted both the cal-
    lousness and costliness of the [bomb] threat . . . [and]
    observed that Mohamed had exploited the nation’s fear of al
    Qaeda in light of the terrorist attacks of September 11.” 
    Id. at 988.
    The district court also noted that
    the guidelines failed to take into account “the history
    and characteristics of the defendant” and the need to
    provide the public with adequate protection from
    him. See 18 U.S.C. §§ 3553(a)(1), (2)(C). While the
    PSR rated Mohamed as having a minimal criminal
    history, the record suggests that he has engaged in a
    more extensive pattern of misconduct. A federal
    investigation had linked him to the fraudulent use of
    driver’s licenses in Texas and in California, to the
    theft of $13,000 from a restaurant in Houston where
    he was briefly employed, to the fraudulent use of a
    social security number to open an account at the
    Bank of America, and to a failure to report for an
    interview with the FBI regarding other suspicious
    activities. On top of this, the defendant had been liv-
    ing illegally in the country for several years and had
    reentered the country illegally just prior to his arrest.
    
    Id. at 988-89.
    On this record, this Court concluded in
    Mohamed that the district court had “thoroughly explained its
    decision to deviate from the advisory guidelines” and that “it
    was reasonable for the district court to hold that the advisory
    guidelines did not adequately take into account Mohamed’s
    significant history of increasingly serious criminal activity.”
    
    Id. at 989.
    By contrast, here, the district court offered no anal-
    ysis or explanation as to why its considerable deviation from
    the Guidelines was appropriate. The absence of such a thor-
    1934                UNITED STATES v. RESSAM
    ough explanation prohibits meaningful appellate review and
    thus constitutes procedural error.
    2
    In determining the sentence reduction due to Ressam for
    his cooperation with the Government, the district court was to
    consider (1) its own evaluation of the significance and useful-
    ness of Ressam’s assistance, taking into consideration the
    Government’s evaluation of the assistance rendered; (2) the
    truthfulness, completeness, and reliability of any information
    or testimony provided by Ressam; (3) the nature and extent of
    the Ressam’s assistance; (4) any injury or risk of injury to
    Ressam or his family resulting from his assistance; and (5) the
    timeliness of the Ressam’s assistance. See U.S.S.G.
    § 5K1.1(a). We review the reasonableness of Ressam’s sen-
    tence against these five factors. 
    Haack, 403 F.3d at 1004
    .
    [8] In considering the first factor, the district court failed to
    explain why it rejected the Government’s arguments concern-
    ing its evaluation of Ressam’s cooperation, including the
    value to law enforcement of the information provided. See
    
    Awad, 371 F.3d at 586-87
    (district courts are to give substan-
    tial weight to the Government’s evaluation of that assistance)
    (citing § 5K1.1 providing, in Application Note 3, that
    “[s]ubstantial weight should be given to the government’s
    evaluation of the extent of the defendant’s assistance, particu-
    larly where the extent and value of the assistance are difficult
    to ascertain”). See also United States v. Richardson, 
    521 F.3d 149
    , 158 (2d Cir. 2008) (vacating and remanding sentence
    where the court was unable to determine whether the sentence
    was procedurally or substantively unreasonable because the
    district court failed to explain the method employed in calcu-
    lating the value of defendant’s assistance to the Government).
    In Richardson, the Government made a motion for a down-
    ward departure under U.S. Sentencing Guidelines Manual
    § 5K1.1 due to defendant’s substantial assistance. 
    Id. The dis-
                        UNITED STATES v. RESSAM                  1935
    trict court imposed a sentence 93 % below the statutory mini-
    mum 20-year sentence on the ground that the Government’s
    § 5K1.1 motion enabled it to exercise discretion to impose a
    sentence it deemed fair and reasonable under the circum-
    stances. 
    Id. (quotations omitted).
    On appeal, the Second Cir-
    cuit noted that a motion under § 5K1.1 authorized a trial court
    to depart below the applicable advisory Guidelines range in
    determining its sentence, and that an 18 U.S.C. § 3553(e)
    motion permitted a district court to sentence below a statutory
    minimum. 
    Id. However, in
    the absence of any explanation by
    the district court as to the method employed in applying these
    two provisions relating to defendant’s assistance, the court
    held that it was unable to determine if the sentence was proce-
    durally or substantively reasonable, particularly due to the
    substantial departure from the statutory minimum sentence.
    
    Id. In a
    ddition, the Second Circuit held that the district court
    did not satisfy its obligation to state the reasons for imposition
    of its sentence. The district court merely stated that it was tak-
    ing into account “all the pertinent information including but
    not limited to the presentence investigation report, submis-
    sions by counsel, the factors outlined in 18 U.S.C. Section
    3553 and the sentencing guidelines.” 
    Id. at 155.
    When counsel
    for the Government inquired as to the court’s method of “cal-
    culation,” the court responded: “Based on all the circum-
    stances in the case and the motion by the Government, this is
    the [c]ourt’s sentence.” 
    Id. at 156.
    The Second Circuit con-
    cluded that in the context of that case, the district court failed
    to satisfy its obligation to “state in open court the reasons for
    its imposition of the particular sentence.” 
    Id. at 158,
    citing 18
    U.S.C. § 3553(c). The PSR was no substitute for an explana-
    tion by the district court “because the factual findings in the
    report provided inadequate support for the sentence imposed.”
    
    Id. (citing United
    States v. Carter, 
    489 F.3d 528
    , 539-40 (2d
    Cir. 2007)).
    Here, not only did the district court fail to give “substantial
    weight” to the Government’s evaluation of the extent of the
    1936                UNITED STATES v. RESSAM
    defendant’s assistance, it failed to give it any weight. The dis-
    trict court credited only Ressam’s assessment of the value of
    his own cooperation, offering no explanation as to why it was
    rejecting the Government’s assessment. For example, the
    Government argued that much of the information Ressam pro-
    vided was “in an unclassified form,” and “was not unique to
    Ressam.” Further, Ressam’s “most valuable information —
    that leading to the charges against Doah and Mohamed —
    cannot be credited [because] Ressam undermined that value
    when he chose to end his cooperation leading to the dismissal
    of these charges.” The district court disagreed with the Gov-
    ernment’s assessment, concluding instead that “Mr. Ressam’s
    cooperation [was] unique in its breadth and scope.” The dis-
    trict court also gave much credit to Ressam for his testimony
    against Haouari without addressing the Government’s argu-
    ment that the value of Ressam’s testimony was undermined
    by his recantations.
    The district court cited Ressam’s “sentencing memorandum
    submitted before the July 2005 sentencing hearing [which]
    summarizes the far-reaching impact of Mr. Ressam’s coopera-
    tion on the investigations and prosecutions of terrorist activi-
    ties in this country and abroad.” The district court concluded
    — apparently based upon Ressam’s sentencing memorandum
    — that “Mr. Ressam’s cooperation, while it lasted, provided
    the United States government and the governments of Great
    Britain, Spain, Italy, Germany, France and Canada extensive
    intelligence that proved to be invaluable in the fight against
    international terrorism.” Without explanation, the district
    court suggested that adhering to any but Ressam’s version of
    the value of his cooperation would be to “downplay” it which
    “would diminish the likelihood of future cooperation by other
    apprehended terrorists.”
    [9] Turning to the second factor, the district court addressed
    “the truthfulness, completeness, and reliability” of Ressam’s
    assistance by “recogniz[ing] that Mr. Ressam’s later decision
    to end his cooperation resulted in the dismissal of two pend-
    UNITED STATES v. RESSAM                 1937
    ing prosecutions and the retraction of certain of his statements
    against two other terrorist suspects.” The district court did
    not, however, address the Government’s argument concerning
    the impact of Ressam’s early cessation of cooperation or
    recantations. Within six months of entering into the coopera-
    tion agreement with the United States Attorney, Agent Hum-
    phries testified that Ressam became less than cooperative and
    refused to discuss Hamaidi with Canadian authorities who
    were investigating Hamaidi for his involvement in helping
    Ressam obtain fraudulent Canadian social security numbers
    among other things. The district court did not weigh this or
    any other specific arguments raised by the Government. The
    district court noted only that Ressam’s cooperation “ended
    unwisely and prematurely.” The district court did not, how-
    ever, indicate what weight, if any, it gave to this factor. See
    e.g., United States v. Burns, 
    577 F.3d 887
    , 890 (8th Cir. 2009)
    (en banc) (affirming a 60% reduction in the advisory Guide-
    lines sentence where the district court provided a detailed
    analysis of the § 5K1.1 factors and concluded that there “was
    no information that the defendant’s substantial assistance was
    anything but a hundred percent complete, a hundred percent
    truthful, and a hundred percent reliable.”); see also 
    Livesay, 525 F.3d at 1093
    (vacating and remanding sentence where the
    district court did not explain why it rejected the Government’s
    argument that, notwithstanding Livesay’s timely assistance,
    Livesay should receive “some sentence of significance”).
    [10] The Government also argued that the timing of Res-
    sam’s cooperation, the fifth factor to be considered, which
    occurred only after he had been convicted and was facing a
    life sentence, should weigh against him in valuing his cooper-
    ation. 
    Id. at 44.
    In his February 17, 2003 letter to the trial
    judge, Ressam stated that he “chose to make a break with the
    past and agreed to accept [his] guilt and provide the govern-
    ment with all of the information [he] had.” Ressam explained
    that he rejected the “government’s offer of a 25-year sentence
    in exchange for an admission of guilt” because he “expected
    a miracle” for himself. When he realized “the result was not
    1938                UNITED STATES v. RESSAM
    the miracle [he] had hoped for,” he entered into an agreement
    with the Government and pledged to “honor that agreement
    even after [he was] sentenced.” The district court did not dis-
    cuss what weight, if any, it was giving to the timing of Res-
    sam’s cooperation, a factor generally considered by
    sentencing courts. See, e.g., 
    Burns, 577 F.3d at 890
    (affirming
    a 60% reduction in the advisory Guidelines sentence where
    the district court provided a detailed analysis of the § 5K1.1
    factors and concluded that the timeliness “factor weighs very
    heavily in favor of the defendant” because his “timeliness was
    exceptional”).
    Furthermore, as in Richardson, the PSR in this case is no
    substitute for an explanation by the district court for its depar-
    ture from the advisory Guidelines because the factual findings
    in that report do not provide adequate support for the sentence
    imposed. 
    Richardson, 521 F.3d at 158
    . The detrimental
    impact of the district court’s failure to address the Govern-
    ment’s arguments is compounded here, “where the extent and
    value of the assistance are difficult to ascertain.” U.S.S.G.
    § 5K1.1 cmt. n.3.
    [11] Accordingly, we are unable to review whether the dis-
    trict court properly exercised its discretion in analyzing the
    value of Ressam’s cooperation pursuant to the Government’s
    § 5K1.1 motion. See United States v. Gapinski, 
    561 F.3d 467
    ,
    469 (6th Cir. 2009) (vacating and remanding sentence as pro-
    cedurally unreasonable where the record did not show that the
    district court considered and explained its reasons for reject-
    ing a party’s nonfrivolous argument for a requested sentence
    based upon substantial assistance to the Government).
    3
    [12] The district court’s finding that “Mr. Ressam’s life his-
    tory and personal characteristics support favorable sentencing
    consideration” is clearly erroneous in view of the voluminous
    factual findings in the PSR indicating that Ressam has lead a
    UNITED STATES v. RESSAM                 1939
    life of crime dedicated to terrorist causes. Without addressing
    the Government’s arguments as to Ressam’s history and char-
    acteristics, the district court credited Dr. Grassian’s favorable
    report of Ressam and Ressam’s own characterization in his
    2005 sentencing memorandum that “by naming and identify-
    ing scores of former associates, Mr. Ressam not only has
    imperiled his life, but also has decisively walked away from
    the illegality that led to his arrest.”
    In finding that Ressam is “a quiet, solitary and devout man
    whose true character is manifest in his decision to cooperate,”
    the district court did not address any of the findings in the
    PSR which indicate that Ressam has an extensive criminal
    history. For example, in the summer of 1999, when Abu Doha
    informed Ressam that the other members of the Montreal cell
    would not be joining him to carry out the attack against the
    United States, Ressam decided to continue with the operation
    on his own, without the other members of his cell. Ressam
    targeted an airport, knowing that as a result, many civilians
    would die. Ressam attempted to rob a bank to obtain funds to
    carry out his mission and finance the attack in the United
    States. In the course of robbing the bank, Ressam planned to
    throw a live hand grenade at the police, and run, if he needed
    to do so in order to get away. These are only a few of the find-
    ings in the PSR that are in direct tension with the district
    court’s findings as to Ressam’s life history and personal char-
    acteristics, including the finding that Ressam is “a quiet, soli-
    tary and devout man whose true character is manifest in his
    decision to cooperate.”
    4
    The district court concluded its analysis by stating that
    “based on all the factors listed in 18 U.S.C. Section 3553, I
    hereby reimpose a sentence of 22 years and a period of super-
    vised release of five years . . . . I believe the factors I have
    examined on the record are sufficiently compelling to support
    the degree of the variance.” We disagree.
    1940                   UNITED STATES v. RESSAM
    [13] The district court failed entirely to address the Govern-
    ment’s arguments that § 3553(a)(2)(C) requires a district court
    to weigh the “need to protect the public.” This factor is partic-
    ularly relevant in a terrorist case such as this, where Ressam,
    who has demonstrated strongly held beliefs about the need to
    attack American interests in the United States and abroad, will
    be only 53 years old upon his release.9 The district court noted
    generally that “the seriousness and heinousness of the act of
    terrorism Mr. Ressam was carrying out at the time of his
    arrest cannot be understated,” but did not otherwise discuss
    the need to protect the public. The failure to do so is proce-
    dural error. See United States v. Lychock, 
    578 F.3d 214
    , 219
    (3d Cir. 2009) (vacating and remanding sentence where the
    district court failed to consider all of the relevant § 3553(a)
    factors). In Lychock, the Third Circuit held that the sentence
    was procedurally unreasonable because the sentencing pro-
    ceedings made clear that the district court did not consider
    one of the relevant § 3553(a) factors. 
    Id. “Indeed, the
    District
    Court did not even mention this factor despite the fact that, in
    its sentencing memorandum, the government explicitly
    invoked this factor.” 
    Id. [14] Similarly
    here, the district court did not mention the
    need to protect the public as a factor it must consider. This
    omission is particularly troubling here given the nature of
    Ressam’s crimes and the district court’s emphasis on Dr.
    9
    The notion that trained terrorists pose a grave danger to the public has
    also been recognized in the context of pre-trial detention. See, e.g., United
    States v. Hir, 
    517 F.3d 1081
    , 1094 (9th Cir. 2008) (affirming order requir-
    ing that Hir be detained pre-trial because he was accused of providing sup-
    port to terrorists and holding that “there is clear and convincing evidence
    that Abd Hir poses a grave danger to the Philippines (if not to other com-
    munities in Southeast Asia) and that ‘no condition or combination of con-
    ditions will reasonably assure . . . the safety of . . . the community.’ ”)
    (citing 18 U.S.C. § 3142(e)); see also United States v. Goba, 
    240 F. Supp. 2d
    242, 254 (W.D.N.Y. 2003) (ordering pre-trial detention because each
    individual defendant’s attendance and training at the al-Farooq camp
    makes him a danger to the community).
    UNITED STATES v. RESSAM                   1941
    Grassian’s favorable psychological assessment of Ressam. In
    Dr. Grassian’s report, the very assessment credited by the dis-
    trict court for purposes of weighing Ressam’s history and
    characteristics, Ressam reported that he regretted having ever
    cooperated with the Government. The district court did not
    address the fact that Ressam recanted his testimony or
    respond to the Government’s argument that such recantation
    affirmatively aided two known terrorists by causing the Gov-
    ernment to dismiss the indictments against them, signaling
    that Ressam is not as estranged from the jihad movement as
    he alleges.
    In United States v. Valnor, 
    451 F.3d 744
    (11th Cir. 2006),
    the Eleventh Circuit affirmed a sentence above the high end
    of the advisory Guidelines range where the district court
    “concluded that in order to afford adequate deterrence and
    protect the public from further crimes . . . committed by Mr.
    Valnor,” a longer sentence is appropriate and reasonable. 
    Id. at 749.
    Valnor pleaded guilty to participating in a scheme
    involving the issuance of fraudulent driver’s licences to illegal
    immigrants and agreed to cooperate with the Government. 
    Id. at 746.
    The Government moved for a downward departure,
    pursuant to U.S.S.G. § 5K1.1, based on Valnor’s substantial
    assistance, which led to the arrest of 52 people involved in the
    scheme. 
    Id. at 747.
    The district court rejected the Govern-
    ment’s argument for a downward departure, concluding that
    Valnor’s was “a very serious offense.” 
    Id. at 748.
    The district
    court explained that it “[did] not diminish it to the extent that
    [defense counsel] does, and even to the extent that the govern-
    ment does” 
    id., because driver’s
    licenses are far more than simply an authori-
    zation to operate a motor vehicle. They serve as the
    primary means of personal identification, particu-
    larly in the absence of a national identification card,
    and are the first line of defense in national security
    after 9/11. With a driver’s license a person is able to
    access and integrate into society with the ability,
    1942               UNITED STATES v. RESSAM
    among others, to obtain other documents that he or
    she would otherwise be unable to acquire. In light of
    our present security situation, it is of paramount
    importance that the issuance and distribution of state
    issued driver’s licenses be secured.
    
    Id. at 748.
    The district court explained that even though Val-
    nor was not working within the DMV itself,
    he poses a greater [threat] to society than a DMV
    employee involved in this scheme. Mr. Valnor was
    intimately . . . involved in the market through which
    unauthorized individuals obtained driver’s licenses.
    This market is not state regulated, but rather by its
    very nature operates below the radar of the state and
    society at large. Therefore, unlike the DMV
    employee who will never again return to his or her
    position to commit the same crime, Mr. Valnor as a
    middleman is free to return to his, quote, market of
    illegally obtaining and selling driver’s licenses val-
    idly issued or otherwise.
    
    Id. at 749.
    “After a thorough review of the record, with partic-
    ular attention to the transcripts from Valnor’s three sentencing
    hearings and the PS[R],” the Eleventh Circuit affirmed Val-
    nor’s sentence as reasonable, holding as follows:
    The district court was particularly concerned with
    the following facts, which were relevant to the
    § 3553(a) analysis: (1) “the egregious nature of the
    offense” based on its potential impact on national
    security; (2) that Valnor’s sales of license renewals
    to those who were able to obtain licenses before the
    9/11 rule changes, but subsequently could not get
    renewals, resulted in the provision of licenses to the
    very people Congress intended to subject to greater
    regulation in the name of national security; and (3)
    that unlike in the case of a DMV employee, who
    UNITED STATES v. RESSAM                    1943
    could not return to his or her prior position after con-
    viction, there were no safeguards to prevent middle-
    men like Valnor from returning to the unregulated
    market of illegally obtaining and selling driver’s
    licenses.
    
    Id. at 751.
    The district court’s discussion of the facts relevant
    to its analysis of the § 3553(a) factors in Valnor is illustrative
    of the kind of discussion required to enable meaningful appel-
    late review. See also United States v. Shy, 
    538 F.3d 933
    , 937
    (8th Cir. 2008) (remanding for resentencing “to allow the dis-
    trict court to consider all of Shy’s conduct,” because meaning-
    ful review of the sentence is impossible where the district
    court failed adequately to explain Shy’s sentence with suffi-
    cient justifications for the downward variance); United States
    v. Thomas, 
    498 F.3d 336
    , 341 (6th Cir. 2007) (vacating and
    remanding sentence where the district court failed to address
    a number of arguments raised in defendant’s sentencing mem-
    orandum regarding application of the § 3553(a) factors, “save
    the general statement by the district court that it had received,
    read, and understood the sentencing memorandum” and where
    “the context and the record [did] not make clear the [district]
    court’s reasoning”).
    C
    [15] The procedural errors identified in the district court’s
    decision rendered the sentence imposed on Ressam both pro-
    cedurally and substantively unreasonable. Because the sen-
    tence is procedurally flawed, meaningful appellate review is
    foreclosed. Based upon our review of the record before us,
    however, it appears that the district court abused its discretion
    in weighing the relevant factors by giving too much weight to
    Ressam’s cooperation and not enough weight to the other rel-
    evant § 3553(a) factors, including the need to protect the pub-
    lic. See, e.g., 
    Paul, 561 F.3d at 975
    (vacating and remanding
    sentence as substantively unreasonable where the district
    court gave excessive weight to one factor “while not giving
    1944               UNITED STATES v. RESSAM
    sufficient consideration to other [mitigating] factors” in
    imposing a sentence at the top end of the Guidelines range);
    United States v. Omole, 
    523 F.3d 691
    , 698-700 (7th Cir.
    2008) (vacating and remanding sentence that was 51 months
    below the bottom of the Guidelines range as substantively
    unreasonable where the sentencing judge failed to offer a
    compelling justification for a sentence so far below the range
    and nothing in the record supported such a reduced sentence);
    United States v. Rattoballi, 
    452 F.3d 127
    , 136-37 (2d Cir.
    2006) (vacating and remanding sentence as unreasonably low
    where the district court relied upon the history and character-
    istics of defendant which were neither sufficiently compelling
    nor present to the degree necessary to support the sentence
    imposed); United States v. Crisp, 
    454 F.3d 1285
    , 1289-90
    (11th Cir. 2006) (vacating and remanding sentence as sub-
    stantively unreasonable where the district court gave control-
    ling weight to the need for restitution and did not discuss any
    of the U.S. Sentencing Guidelines Manual § 5K1.1(a)
    assistance-related factors when calculating the extent of a
    U.S. Sentencing Guidelines Manual § 5K1.1(a) departure);
    United States v. Hampton, 
    441 F.3d 284
    , 288-89 (4th Cir.
    2006) (vacating and remanding sentence where the district
    court’s explanation for dramatic downward variance could not
    withstand “reasonableness scrutiny” because the sentence was
    not “supported by compelling justifications related to
    § 3553(a) factors,” and “excessive weight” was given to a sin-
    gle factor); United States v. Givens, 
    443 F.3d 642
    , 646 (8th
    Cir. 2006) (vacating and remanding sentence as substantively
    unreasonable where the district court gave “too much weight”
    to “defendant’s history and characteristics and showed a great
    deal of sympathy toward him” and gave “not enough [weight]
    to the other portions of section 3553(a)”); United States v.
    Ture, 
    450 F.3d 352
    , 358-59 (8th Cir. 2006) (vacating and
    remanding sentence as substantively unreasonable where the
    18 U.S.C. § 3553(a) factors and the U.S. Sentencing Guide-
    lines Manual did not support the district court’s extreme devi-
    ation from the recommended Guidelines range and where the
    UNITED STATES v. RESSAM                  1945
    district court failed to accord significant weight to the Guide-
    lines range, to the seriousness of the offense, or to the need
    to avoid unwarranted sentencing disparities).
    IV
    [16] We conclude that it is appropriate to exercise our
    supervisory powers under 28 U.S.C. § 2106 and remand this
    case for resentencing to a different judge. See, e.g., United
    States v. Quach, 
    302 F.3d 1096
    , 1103 (9th Cir. 2002)
    (“Although we generally remand for resentencing to the origi-
    nal district judge, we remand to a different judge if there are
    ‘unusual circumstances.’ ”) (quoting United States v. Mik-
    aelian, 
    168 F.3d 380
    , 387 (9th Cir. 1999). In Mikaelian, this
    Court explained that there is a three-factor test to determine
    whether it is appropriate to remand to a new judge for resen-
    tencing:
    (1) whether the original judge would reasonably be
    expected upon remand to have substantial difficulty
    in putting out of his or her mind previously
    expressed views or findings determined to be errone-
    ous or based on evidence that must be rejected, (2)
    whether reassignment is advisable to preserve the
    appearance of justice, and (3) whether reassignment
    would entail waste and duplication out of proportion
    to any gain in preserving the appearance of 
    fairness. 168 F.3d at 387-88
    (quoting United States v. Alverson, 
    666 F.2d 341
    , 349 (9th Cir. 1982)). See also 
    Paul, 561 F.3d at 975
    ; United States v. Atondo-Santos, 
    385 F.3d 1199
    , 1201
    (9th Cir. 2004); United States v. Working, 
    287 F.3d 801
    , 810
    (9th Cir. 2002); United States v. Arnett, 
    628 F.2d 1162
    , 1165
    (9th Cir. 1979).
    In Paul, the district court originally sentenced Paul to a
    high-end Guidelines range of 16 months in prison on his con-
    viction for misappropriation of federal program funds. Paul,
    1946               UNITED STATES v. 
    RESSAM 561 F.3d at 972
    . On appeal, this Court determined that the
    district court failed adequately to consider numerous factors,
    causing the sentence to be unreasonably high. 
    Id. On remand,
    the original sentencing court ordered a prison term of 15
    months, removing only one month from the original sentence.
    
    Id. at 973.
    On a second appeal, we again vacated the sentence
    and remanded for a third sentencing in front of a different dis-
    trict judge. We held that “the appearance of justice will be
    best preserved by remanding to a different judge.” 
    Id. at 975.
    Although on remand the original sentencing judge explained
    some of the reasoning for imposing a fifteen month sentence,
    “he clearly did not put out of his mind his previously
    expressed view that the defendant’s abuse of trust trumped all
    other mitigation factors combined, as shown by the fact that
    he again sentenced Paul to a prison sentence at the top of the
    Guidelines range.” 
    Id. Similarly, in
    United States v. Working, the defendant’s sen-
    tence was twice vacated and remanded for a third sentencing
    before a different judge. Working was originally sentenced to
    one day in prison for assault with intent to commit first degree
    murder, and a mandatory five-year prison term for use of a
    firearm during a crime of violence. 
    Id. at 805.
    On appeal from
    the one-day sentence, this Court held that the district court
    was within its discretion to grant a downward departure from
    the Guidelines, but the district court must give reasons to jus-
    tify the extent of the departure. 
    Id. Upon remand,
    the district
    court again imposed a one-day sentence, basing its decision
    on numerous factors. 
    Id. On the
    second appeal, we determined
    that the district court improperly took into account the inter-
    play between 18 U.S.C. § 924(c) and the Guidelines, as well
    as Working’s low risk of recidivism, because both factors
    were already considered by the Guidelines. 
    Id. at 807-808.
    We also concluded that the record did not provide any other
    reasons that would justify the one-day sentence. 
    Id. at 808.
    This Court remanded and reassigned the case to a different
    judge for resentencing. 
    Id. at 809.
    We held that after imposing
    the same sentence twice, the original judge “would have sub-
    UNITED STATES v. RESSAM                1947
    stantial difficulty disregarding the view that a one-day sen-
    tence was sufficient.” 
    Id. at 809-10.
    Our concern that the
    original judge would be “unlikely to disregard improper fac-
    tors when fashioning a sentence” was “heightened” by certain
    statements made by the trial judge. 
    Id. at 810.
    The trial judge
    stated that he “did not accept the fact that [Working’s hus-
    band] was the victim.” 
    Id. The record
    further indicated that
    “the district court would be unlikely to set aside consider-
    ations of Working’s sex, a clearly prohibited factor under the
    Guidelines, when resentencing.” 
    Id. The facts
    of this case similarly support exercise of this
    Court’s power to reassign Ressam’s resentencing to a differ-
    ent district court judge. The trial judge originally sentenced
    Ressam to 22 years in prison. On appeal, we noted that the
    district court did not begin the sentencing proceeding by first
    determining the applicable Guidelines range, as required by
    Carty. 
    Ressam, 538 F.3d at 1167
    . Accordingly, we vacated
    the sentence and remanded for resentencing in accordance
    with Carty. 
    Id. Upon remand,
    the district court again imposed
    a 22-year sentence. At Ressam’s resentencing the sentencing
    judge stated:
    As I said at Mr. Ressam’s previous sentencing in
    2005, determining an appropriate sentence in this
    case is a decision I struggled with more than any
    other sentencing decision I have made in my 27
    years on the bench. In the time since Mr. Ressam’s
    first sentencing, however, I have come to feel even
    more confident that the sentence I originally
    imposed was the correct one.
    Sentencing Hr’g Tr. at 40-41, December 3, 2008.
    The district court made the point of describing the original
    sentence as “correct” without apparent regard for develop-
    ments since the original sentence was imposed. As described
    above, Ressam explicitly recanted his prior cooperation and
    1948                UNITED STATES v. RESSAM
    affirmatively tried to aid those against whom he had testified
    previously. In his statement to the district court at the hearing
    at which the 22-year sentence was reimposed, Ressam dis-
    avowed the cooperation he had previously given, describing
    it as the product of mental incompetence and pressure put
    upon him, and claiming that he did not know what he was
    saying and that what he had said could not be relied upon.
    The prosecution reacted by contending that it never would
    have entered into cooperation with Ressam in the first place
    if it had known how it would turn out.
    [17] It is unclear what reason there is to reward a defendant
    at all for cooperation at the same time that the defendant is
    disavowing having intended to cooperate and loudly pro-
    claiming that his statements should not be believed. The dis-
    trict court gave no explanation of how, if at all, the
    subsequent developments were weighed in the new sentenc-
    ing decision. The district court expressed concern that
    “[d]ownplaying the cooperation that Mr. Ressam provided the
    government would diminish the likelihood of future coopera-
    tion by other apprehended terrorists,” but the court itself
    appeared to disregard the possible impact on other appre-
    hended terrorists of reimposing the same sentence despite
    Ressam’s subsequent disavowals. In short, the attachment of
    the district court to the sentence that was originally imposed
    was very powerful. The district judge “clearly did not put out
    of his mind his previously expressed view that [Ressam’s
    cooperation] trumped all other [aggravating] factors com-
    bined, as shown by the fact that he again sentenced [Ressam]
    to a prison sentence [well below the bottom] of the Guidelines
    range.” 
    Paul, 561 F.3d at 975
    .
    We must also consider “whether reassignment would entail
    waste and duplication out of proportion to any gain in pre-
    serving the appearance of fairness.” 
    Mikaelian, 168 F.3d at 387-88
    . We are mindful that the district judge has spent
    nearly a decade with this complex case, that the record is sub-
    stantial, and that the next judge will have to duplicate some
    UNITED STATES v. RESSAM                      1949
    of the prior effort. Even so, we have determined that the bene-
    fit of reassignment is worth the cost in duplication. The dis-
    trict judge’s previously expressed views appear too
    entrenched to allow for the appearance of fairness on remand.
    For these reasons, we direct that the case be re-assigned to a
    different judge for resentencing.
    Conclusion
    [18] Because the district court procedurally erred by failing
    to address specific arguments raised by the Government, or
    otherwise justify the extent of its departure from the advisory
    Guidelines, we must vacate the 22-year sentence imposed by
    the district court.
    SENTENCE VACATED, REMANDED FOR RE-
    ASSIGNMENT AND RESENTENCING.
    FERNANDEZ, Circuit Judge, dissenting:
    We are required to give due deference to a district court’s
    sentencing decisions. See United States v. Carty, 
    520 F.3d 984
    , 993 (9th Cir. 2008) (en banc). That does not mean a
    grudging deference; it means that even if we would prefer a
    different sentence, we may not reverse. 
    Id. In fact,
    “[e]ven if
    we are certain that we would have imposed a different sen-
    tence had we worn the district judge’s robe, we can’t reverse
    on that basis.” United States v. Whitehead, 
    532 F.3d 991
    , 993
    (9th Cir. 2008). As I see it, that requires us to approach our
    review of a substantive reasonableness1 issue with a great deal
    of humility. It is not always easy to avoid consulting oneself
    about what one would do if one were the sentencing judge. A
    1
    Despite suggestions in the majority opinion to the contrary, it cannot
    be said that the district court’s decision here suffered from procedural
    deficiencies. Even the government’s brief does not assert that.
    1950                  UNITED STATES v. RESSAM
    case like this is especially tempting in that regard, and I fear
    that the majority has not resisted the temptation into which it
    has been led.
    The record here makes it apparent that the district court,
    which lived with this case for many years, considered the
    materials placed before it and touched all of the procedural
    bases.2 The court calculated the guideline range,3 and no one
    says that it did so improperly. It also considered that range.
    It then expressly considered the nature and circumstances of
    Ressam’s heinous offense and the history and characteristics
    of Ressam;4 the seriousness of the offense, the need to pro-
    mote respect for the law, and the need to impose a just punish-
    ment;5 the need to adequately deter others;6 and the need to
    avoid sentence disparities.7 And, while it did not specifically
    discuss the need to protect the public,8 it did note that it had
    to consider that, and we have nothing to indicate that it did
    not do so. The same is true of the provision regarding treat-
    ment of Ressam in the most effective manner,9 although the
    court’s reflection on the onerous conditions of Ressam’s
    incarceration might be seen as touching on that issue. And,
    while the court did not specifically mention the kinds of sen-
    tences available,10 that does seem rather obvious in this case.
    Of course, it is not even necessary for a district court to refer
    to each and every item in § 3553 when it sentences a miscre-
    ant. See 
    Carty, 520 F.3d at 992
    . We do, after all, “assume that
    2
    Again, the government does not even contend on appeal that there was
    reversible procedural error.
    3
    See 18 U.S.C. § 3553(a)(4).
    4
    See 
    id. § 3553(a)(1).
      5
    
    Id. § 3553(a)(2)(A).
      6
    
    Id. § 3553(a)(2)(B).
      7
    
    Id. § 3553(a)(6).
      8
    
    Id. § 3553(a)(2)(C).
      9
    
    Id. § 3553(a)(2)(D).
      10
    
    Id. § 3553(a)(3).
                        UNITED STATES v. RESSAM                  1951
    district judges know the law and understand their obligation
    to consider all of the § 3553(a) factors . . . .” 
    Id. So where
    does that leave the majority? Simply put, it seems
    to me that the majority just does not like the fact that this ter-
    rorist is to sit in prison for a mere twenty-two years. What
    number would the majority choose; who knows? But although
    many federal sentences are even more draconian, twenty-two
    years seems like a long time to me, whether a defendant is
    young or old to start with. It is not a mere slap on the wrist,
    especially if the confinement conditions will be especially
    harsh, as the district court predicted they would be. Yet, when
    all is said and done, the majority simply does not like the way
    the district court weighed the evidence before it; obviously
    the majority would have done it differently.
    Would I give Ressam that “light” a sentence? I somehow
    doubt it, but that is not the point. The point is that there are
    many sites within the borders of reasonable sentencing terri-
    tory, and our job is to patrol those borders to assure that the
    district court has not slipped over them and into the land of
    abusers of discretion. That will rarely happen; it did not hap-
    pen here. Unfortunately, this case is not just about what
    befalls Ressam; it reflects another entry by appellate courts
    into territory that always lures them, but is always forbidden
    to them. Society, we, and the district courts will someday
    regret the results of our case-by-case trespassing onto lands
    we should stay out of; the day this decision becomes law will,
    indeed, be a dies infaustus.
    In short, the sentence was neither procedurally erroneous
    nor substantively unreasonable. See 
    Carty, 520 F.3d at 993
    .
    Even if we have to grit our teeth to do so, we should let it be.
    Thus, I respectfully dissent.