In United States v. Ghanem, --- F.4th ---, No. 22-50266 (9th Cir. 2025), the Court affirmed the 360-month sentence imposed at resentencing on six counts to which Rami Ghanem pleaded guilty in a case in which he sought to export military equipment from the United States to Libya.
In a prior appeal, the Court vacated Ghanem's jury conviction for conspiring to acquire, transport, and use surface-to-air missiles in violation of 18 U.S.C. § 2332g. The government then dismissed the charge. But on remand for resentencing, the district court again imposed the same 360-month sentence, despite the fact that the Guidelines range was only 70-97 months. The most interesting part of the opinion is the concurrence, discussed at the end of this email.
After undercover federal agents conducted a sting operation in which Defendant Rami Ghanem sought to export military equipment from the United States to Libya, Ghanem pleaded guilty to two counts of violating the Arms Export Control Act (“AECA”), see 22 U.S.C. § 2778; one count of conspiring to violate the AECA and its regulations, see 18 U.S.C. § 371; one count of unlawful smuggling, see 18 U.S.C. § 554; and two counts of money laundering, see 18 U.S.C. § 1956(a)(2)(A). But Ghanem proceeded to trial on a remaining charge that he had conspired to acquire, transport, and use surface-to-air anti-aircraft missiles (again for use in Libya) in violation of 18 U.S.C. § 2332g, which carries a 25-year mandatory minimum. Ghanem was found guilty and was sentenced to 360 months of imprisonment, which was within the applicable guidelines range of 292– 365 months. The 360-month total sentence rested on two independent concurrent groups of sentences: (1) a 360- month sentence for the § 2332g count alone; and (2) a package of concurrent and consecutive sentences on the remaining six counts that also yielded an aggregate 360- month sentence.On appeal, we vacated Ghanem’s § 2332g conviction due to a defective jury instruction on venue, and we remanded for resentencing. United States v. Ghanem, 993 F.3d 1113 (9th Cir. 2021). At resentencing on the remaining six counts, the district court calculated the guidelines range as now being 78–97 months. Nonetheless, the court ultimately adopted the same above-described second package of sentences as before, and Ghanem was once again sentenced to 360 months of imprisonment.Ghanem appeals, challenging his sentence on multiple grounds. We affirm.Ghanem contends that the district court erred in failing to reduce his offense level by two levels under U.S.S.G. § 3E1.1 for acceptance of responsibility.Considering the district court’s comments in full context, we reject Ghanem’s effort to attach talismanic significance to the omission of this one word. The overall thrust of the court’s recitation reflects its awareness that the central question was whether there was “conduct of [Ghanem] that is inconsistent with . . . acceptance of responsibility” and that “outweighs” the showing otherwise established by his guilty plea and truthful admission to the factual basis for the convictions. Id. We are therefore satisfied that the court applied the correct legal standards under Green.Moreover, we discern no clear error in the district court’s ultimate finding that there was sufficient countervailing evidence that Ghanem had failed to accept responsibility. Conduct that is “inconsistent” with acceptance of responsibility “can include, for example, falsely denying, or frivolously contesting, relevant conduct that the court determines to be true.”Ghanem’s remaining procedural challenges all relate to the district court’s decision to depart and vary from the guidelines range. We conclude that these challenges also fail.First, Ghanem contends that the district court procedurally erred by “fail[ing] adequately to explain the sentence selected, including any deviation from the [g]uidelines range.” United States v. Taylor, 78 F.4th 1132, 1136 (9th Cir. 2023) (citation omitted). However, “[a] district court need not provide a lengthy explanation of the [sentencing] factors in order for its explanation to be sufficient.” United States v. Ali, 620 F.3d 1062, 1074 (9th Cir. 2010). Instead, it need only “set forth enough to satisfy the appellate court that [it] has considered the parties’ arguments and has a reasoned basis for exercising [its] own legal decision-making authority.” Rita v. United States, 551 U.S. 338, 356 (2007). Under that standard, the district court’s explanation was sufficient.Second, Ghanem argues that the district court failed to address his argument that a significant upward deviation from the guidelines was inconsistent with 18 U.S.C. § 3553(a)(6), which requires courts to consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” The record refutes this contention.Third, Ghanem argues that, even if consideration of the conduct underlying a dismissed charge is constitutionally permissible at a sentencing on the remaining charges, such consideration should be disallowed as procedurally unreasonable where “the sentencing enhancement [is] ‘a tail which wags the dog of the substantive offense.’” We disagree.Fourth, Ghanem argues that the district court erred “by relying on foreign conduct that may not have even been criminal.” Ghanem relies on United States v. Chao Fan Xu, 706 F.3d 965 (9th Cir. 2013), which held that, under the circumstances of that case, the district court procedurally erred in basing the defendant’s guidelines offense level on foreign fraudulent conduct that did not violate extraterritorially applicable U.S. law. Id. at 992–93.5 This principle has no application to the district court’s consideration of the conduct underlying the dismissed § 2332g charge, because we explicitly held, in Ghanem’s prior appeal, that this statute does apply extraterritorially to Ghanem’s overseas conduct.Ghanem also argues that the district court’s 360-month sentence was substantively unreasonable. We find no abuse of discretion here. [W]e conclude that the district court did not abuse its discretion in concluding that a 360-month sentence was warranted under the § 3553(a) factors. The district court permissibly put great weight on the fact that the offense conduct, which specifically concerned planned unlawful arms exports to Libya, was part of a broader pattern of high-volume, black-market arms-trafficking.Finally, Ghanem argues that, under Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny, his sentence is unconstitutional in violation of the Fifth Amendment Due Process Clause and the Sixth Amendment right to a jury trial.To the extent that Ghanem argues that there is something uniquely suspect about relying on conduct underlying a dismissed charge, his argument cannot be squared with Watts. There, the Court held that conduct underlying a charge of which the defendant was acquitted may be considered at sentencing, where the burden of proof is only a preponderance of the evidence. Ghanem has presented no argument as to why conduct underlying a dismissed charge should be treated with more solicitude than conduct underlying a charge rejected by acquittal.Ghanem also argues, however, for a broader Sixth Amendment rule that would equally apply to conduct underlying acquittals and dismissed charges and, indeed, to any conduct not found by a jury or admitted by the defendant. Specifically, Ghanem urges us to adopt Justice Scalia’s view that “any fact necessary to prevent a sentence from being substantively unreasonable [under Booker]— thereby exposing the defendant to the longer sentence—is an element that must be either admitted by the defendant or found by the jury.” Jones v. United States, 574 U.S. 948, 949–50 (2014) (Scalia, J., dissenting from the denial of certiorari) (emphasis added). Given the loadbearing weight that we have placed on the district court’s factual findings in concluding that Ghanem’s sentence is substantively reasonable, his sentence here would violate the Sixth Amendment under Justice Scalia’s view.But Justice Scalia’s position has not commanded a majority of the Supreme Court, and this court has squarely rejected it.
Concurring in his own opinion, Judge Collins wrote "separately only to point out how this case starkly illustrates a very troubling feature of the precedent we must apply."
As applied to the facts of this case, the two portions of the Booker opinion produce a disturbing incongruity. Under Justice Stevens’s majority opinion in Booker (which, for convenience, I will call “Booker Part I”), Ghanem has a constitutional right under the Sixth Amendment to have a jury find any fact that would increase his sentence beyond what is allowed under the guidelines regime in light of “the facts established by [his] plea of guilty or a jury verdict.” Booker, 543 U.S. at 244. Here, there are no facts established by a “jury verdict,” because the jury’s conviction of Ghanem on the § 2332g charge was vacated on appeal. Moreover, as the panel opinion explains, see Opin. at 6–8, the “facts established by [Ghanem’s] plea of guilty” are quite limited. Booker, 543 U.S. at 244. Those discrete facts support, at most, a guidelines range of 78–97 months, and therefore any upward departure from that range would require additional fact-finding that, under Booker Part I, only a jury may make. Thus, under Booker Part I, it would be a flagrant violation of Ghanem’s Sixth Amendment rights to allow a district judge to make the findings necessary to raise Ghanem’s sentence above the 97-month cap that applies under the mandatory guidelines system created by Congress.But under Justice Breyer’s further majority opinion (which I will call “Booker Part II”), the “remedy” for this violation of Ghanem’s Sixth Amendment rights is to eliminate the very feature of the guidelines that gives rise to that Sixth Amendment right—namely, the mandatory nature of the guidelines. That is, the “remedy” for the Sixth Amendment violation that would result from allowing the district judge to find the facts that would waive the guidelines’ 97-month cap in Ghanem’s case is simply to waive that cap in all cases—thereby allowing the district judge to freely impose a 360-month sentence that is more than triple the top of the guidelines range. The logic of this syllogism is difficult to follow: it effectively eliminates the Sixth Amendment violation by getting rid of the relevant Sixth Amendment right. That is akin to “curing” a patient’s illness by killing the patient—that certainly gets rid of the illness, but it loses sight of what is at stake.We are thus left with a situation in which, under the statutes enacted by Congress and under the Sixth Amendment as construed in Booker Part I, Ghanem’s sentence in this case is patently unlawful. But we must nonetheless uphold it because Booker Part II eliminated the predicate for Ghanem’s Sixth Amendment claim by “engag[ing] in a wholesale rewriting” of the Sentencing Reform Act by facially deleting two of the Act’s provisions and then adding—again, across the board—a new, judgemade “reasonableness” review requirement. Booker, 543 U.S. at 284 (Stevens, J., dissenting); see also id. at 272 (objecting that the Booker Part II majority had effectively “repeal[ed] these two statutory provisions”). Justice Stevens’s dissent explained at length why the Booker Part II remedy was wholly unprecedented, could not be justified by the severability doctrines the majority invoked, and was, at bottom, “an exercise of legislative, rather than judicial, power.” Id. at 274–91. And, as the facts of this case make clear, the two parts of Booker are logically irreconcilable.As a judge on a court that is “inferior” to the “one supreme Court,” see U.S. CONST. art. III § 1, I am constrained to follow the clear holding of Booker Part II, no matter how flawed it may seem, and I have faithfully done so. But I cannot help but note that, in applying Booker Part II, I have been required to affirm a sentence that even the Government’s lawyer candidly conceded at oral argument was “absolutely” unlawful under the statute as written by Congress. Only the Supreme Court has the authority, if it sees fit, to address this disquieting anomaly.
