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As the court is aware, this case involves a sentence that was an extraordinary variance from the applicable sentencing guidelines.

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What I'd like to do, and this may be overly ambitious, is address the district court's failure to adequately explain the extent of the variance departure and address the 3553.86 arguments, because I think those are related.

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I think I'm going to hopefully talk a little bit about foreign conduct and acceptance of responsibility.

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And if I could get to substance of reason with this, I will.

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With respect to the failure to explain the extent of the departure and the comparative cases, I think one of the first points, and I probably did say this in the previous, but should have maybe emphasized it a little bit more, is that the probation department recommended a sentence of 20 years.

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And we vigorously disputed that that was appropriate.

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But the district court went a decade over even what the probation officer recommended, with no real explanation.

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Obviously, in this case, it's more than two decades over the guideline range.

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The only thing the district court did really was say, well, the combined statutory maximum is 95 years, and so I think 30 years is appropriate.

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But that's not the analysis the court is supposed to undertake.

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It's supposed to determine the extent of the variance from the guideline range, not from the combined statutory way the

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really has no way to evaluate why it felt that

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was attributed to departure and how many levels and what that produced, and then plug that into a variance or how did it work out?

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We do not.

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I mean, the district court didn't say, I'm going to depart six levels or eight levels, and then I'm going to vary another decade on top of that.

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It didn't articulate any mathematical basis.

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It didn't articulate any sort of comparison to the guideline measures to how it got to where it got.

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It just said, I'm going to impose 30 years

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range without any explanation as to how that compared to the actual godline range.

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about the re-sentencing after the most important count was tossed out on venue grounds.

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To what extent can we properly consider, or could the district court properly relate back to what had happened already?

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I don't think the court should, and I think it's a real problem.

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Let me just say there were two different district court judges.

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The court may understand that.

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And then Judge Anya Roka took over.

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But the first judge imposed a sentence based on a guideline range.

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The government claimed it was life in prison.

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The district court ultimately came down to somewhere in the neighborhood of 30 years.

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And then the district court gave the guideline sentence.

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There was also a 25-year mandatory minimum.

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Was there an appeal from that element of the first judgment?

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Ultimately, the appeal was successful with regard to venue.

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Was a sentence appealed?

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No, I did not appeal the sentence, but that's because it was within the guideline range.

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I mean, what was I going to do, come up to the court and say, your honor should reverse the sentence within the guideline range?

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We get those appeals.

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I think we got one today.

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Yeah.

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Well, look, I think the arguments that I made were much better.

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Obviously, I won the appeal.

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So I've got to choose what are my best issues for the appeal.

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So we're here in a totally different posture.

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So to the extent that the new judge is really emphasizing what the old judge did when the guideline range, the statute

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completely different claim field on the second appeal.

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So, I mean on the second sentencing.

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So we think... My question is really getting to, to what extent can the resentencing judge

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The problem we have here is that, although there might be a good reason for it to do it, the Supreme Court so far hasn't said that you can't consider in sentencing even conduct upon which the defendant has been acquitted.

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In this case, we have conduct which the charge was dismissed on venue grounds, but if you can consider acquitted conduct,

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But I'm not sure with regard to what factors can be considered for sentencing, why it would be inappropriate for the district court to reflect upon what had happened before.

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Well, I think the district court, I guess, can reflect.

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They can take a lot of things into consideration.

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I think this case presents another interesting wrinkle because the conduct that was dismissed was foreign conduct and whether the district court could consider that.

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could say is, well, Judge Otero gave 30 years.

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But I think the big question is, I have no idea what Judge Otero would have given if he had known that the guideline range was only in the neighborhood of six to seven years, and there was no 25-year mandatory minimum.

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And I think that's borne out, and this relates to 3553.86, because if you look at the other cases, there is nothing like this in the other cases.

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that he sold million rounds of anti-aircraft ammos to a militia group in Libya, you know, anti-tank missiles, you know, literally millions of rounds of ammos.

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And that's, I think, I don't know if it was the first judge or the second judge, you know, called breathtaking quantities.

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I mean, isn't that really the distinguishing factor here?

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From the other cases?

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I don't think so.

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Let me just – the millions of rounds of ammunition, everything, you have to remember there were discussions

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The anti-aircraft missiles, anti-tank

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illegal arms deals.

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But he also was convicted of conspiring to kill American civilians and American military in dealing with a foreign terrorist organization.

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He had all those convictions, none of which we have here, enormous quantities of equipment.

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He got less time than Mr. Gano.

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And then, of course, there was a prisoner swap for him, and he served maybe a decade and is gone.

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direct impact on U.S.

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interests.

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We've got cases where there's a plasio surface-to-air missiles to bomb a military airport in the United States, as well as bomb two synagogues in New York City.

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Those defendants got less time than Mr. Ghanem.

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So, you know, for all these reasons, there's no, and I've made all these arguments at district court, there's no discussion of any of those cases under 3553A6.

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it was appropriate.

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I did have a few other issues I want to discuss.

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It seemed down to a minute.

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I think I'll save the remaining time unless there's any questions.

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All right.

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Thank you.

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All right.

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So we're here now.

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Ms.

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Palmer.

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Good morning.

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Carly Palmer on behalf of the United States.

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May it please the court.

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I'd like to start with one of defense counsel's statements.

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the long litigation.

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That's not what the district court here found.

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That's not what the evidence shows.

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That evidence is what supports this extraordinary departure or variance and that evidence is also why defendants shouldn't receive acceptable

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But it just kind of got all mixed into the soup and out pops 30 years.

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It's a post-Booker world.

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It's a little soupier than it was before.

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I would point the court to Gall, where the Supreme Court said we want to look at a holistic analysis.

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And in a post-Booker world, the guidelines are one of many factors that need to be weighed by the district court.

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consider that needs to be the offense level, the criminal history category, the starting range.

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And it's very clear that the district court here anchored its decision on that.

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It refers to that several times.

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It talks about starting from there and then moving up.

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It talks about the departure, and then it talks about the variance.

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In total, it would have been a 12-level departure.

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The court doesn't break down how many levels are a departure, how much is a variance.

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But in a post-booker world, the caseload doesn't require that.

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MIX doesn't require that.

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No, the government asked for a 30-year sentence and a holistic analysis, but it cited to both the departure justifications for that and the variance justifications.

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What's troubling about this case may be the oddest case in the post-Booker world because under

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months or whatever the range was.

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And a departure upward was strictly limited to grounds identified by the Commission and it would have to be by an analogy to the appropriate number of levels.

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And Booker says that he has a constitutional right, that that cap of the guidelines is treated as a statutory maximum.

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And he has a constitutional right to have the jury determine whether we're going to go above that.

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So that's

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Congress created, and that's the constitutional right under Apprendi that he has.

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But under the remedial portion of Booker,

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doesn't that strike you as just odd?

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that is much broader than the guidelines range.

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And that wide range reasonable is set by any mandatory minimum and any statutory maximum.

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It's somewhere within there.

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So here we weren't dealing with a situation like Apprendi where we're dealing with you.

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Some fact that's going to change the permissible range available to the sentencing judge.

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We're looking within the permissible range of sentences.

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And this was quite frankly an

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and of terror that this lone defendant was able to rein in war zones was remarkable, and that's something that was commented on by both the district courts.

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But essentially, you know, the conviction for the lead charge with the 25-year minimum was thrown out because of the venue violation, another constitutional right.

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needs to be proven by preponderance of the evidence here was actually proven beyond a reasonable doubt, as found by the jury, as found by the trial court in denying the Rule 29 motion.

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But again, I mean, the whole engine of why we are in the post-booker world is that there are jury trial rights and it matters what the jury decides.

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And this case shows, well, you can do whatever you want regardless of whatever the jury decides.

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the same conduct and it's related to the convictions that stand, then it still comes in.

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And so I would point the courts to the, I think it's 44 over

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participated in.

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There's a lot of overlap there between that and what ended up being put on a trial.

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It has to do with what are the defense services and defense products that he's providing to countries like Libya, countries like Iran, countries where the United States has said our security interests are so strong that no US citizen is allowed to provide these services to these countries.

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So we talked about foreign conduct, but this is an American crime based on an American citizen's decision to evade

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knew he was abating the laws.

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We have 19 digital devices that he travels with.

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His emails were searched, and it showed this two-year conspiracy that he pled guilty to.

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And those same actions are laid out in the overt acts for the conspiracy that he admitted guilt to.

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That evidence was provided to the sentencing judge as a re-sentencing in the form of an 82-page sentencing position and 250 pages of exhibits.

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And that's the conduct that the defendant continues to deny.

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But that's the conduct that shows over and over and over again that this departure and this variance were warranted.

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If you look at the departure, it talks about the volume of the commerce.

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It talks about the extent of the danger to public safety.

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And here was someone who knew his weapons were being used in tremendous amounts in conflict zones.

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And they were being used, you know, the purpose of these

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And he knew that.

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And that was a big part of the judge's decision was based on the callous nature of his business.

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The court has the recording of the defendant saying, you know,

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I wake up in the morning, and if there's war on television, I'm happy.

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War is business.

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I love war.

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There's a recording with an undercover agent where he said, I don't want the weapons that I sell to be responsible for killing Arab refugees, but those are my rules with Saudi Arabia.

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It's their business.

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So if they end up in Yemen or Syria and people die, that's not my business.

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But it was the defendant's business.

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him again for at least the two years to which he pled guilty.

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And that was the finding by the district court at sentencing.

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Those were factual findings that are owed an extraordinary deference by this court.

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And the defendant's decision to continue to deny those facts, despite a name to the crimes, despite having them proven guilty of that, despite the district court finding that he trafficked in these massive amounts with this callous character, is the reason that the state justified sentence.

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something that was specifically looked at by the Johnson court in the first circuit.

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It's relevant here.

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And there were specific findings by the district court that this was someone who turned a blind eye to the damage he was doing.

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He made the decision to essentially be a merchant of death in order to make this money.

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And that's why this extraordinary departure in variance was warranted for this defendant.

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we're going to charge for the fighter pilots that we're going to send over to Libya.

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And then you see a cover payment saying the exact same amount of money, we're going to put it in trucks.

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And if you look at the defense attorney's argument at the first sentencing, that's how he portrays the defendant.

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He tries to sell that same bill of goods, that this is a defendant who just moves radar equipment, just moves trucks.

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He's not dealing in these things.

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And that's just not what the evidence showed.

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It's not what the district court found.

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And I want to briefly talk about the family

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There we see it's the same test being applied here, but two vastly different facts.

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And in that case, there was no contrition.

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There was contrition.

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The defendant said he was sorry and he would never commit the crime again.

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Here the defendant said, I'm an American citizen.

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I would never harm Americans.

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He didn't apologize to his victims.

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He didn't try to remedy anything.

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very large well-being conduct issue that drove a lot of the sentencing.

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There was a lack of objective ascertainable evidence of the defendant's lack of acceptance of responsibility here.

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There were piles and piles of evidence showing that this defendant did not have remorse at any point for his crimes.

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Unless there are any more questions?

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try to address several things.

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First, I don't want to say a lot on acceptance, but the government said that Vance was relied on in the reply brief.

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It was basically the only case that was cited in the opening brief over and over and over again.

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The government said nothing.

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They've waived these arguments.

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As far as the government gets up here, and they make these grandiose statements that he reigned terror on all these people, and it sounds terrifying, but when you actually get to specifics, the government falls way short.

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The government says that he engaged in all these deals in violation of American law.

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government to try to secure military equipment.

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He has not violated U.S.

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law.

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He has not violated Egyptian law.

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The government hasn't pointed to anything to show that any of that is in violation of law.

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But they want to come up here and tell you that he's engaged in all this conduct that's in violation of U.S.

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law.

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The only thing extraterrestrials

[00:21:02] Speaker 00:
But all these other arguments in attacking that particular conviction, because what the court did ultimately was not rule, as I understood on that, that it was dismissed because of improper venue.

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But improper venue would permit retrial in the appropriate venue.

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And if you'd won on the substantive argument, they couldn't have brought it back.

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That wasn't my argument.

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I'm saying put aside the 2332G conduct, which was reversed.

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But they're talking about all this other reign of terror that he inflicted based on all these other deals.

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Your argument is extraterritoriality.

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And what I'm saying, it seems to me that the decision in the first appeal says, no, that's not a problem here.

[00:22:04] Speaker 00:
making basically says he couldn't properly be punished for any of that stuff, whether it's convicted or not, whether it's simply related conduct because if he could have been sentenced

[00:22:21] Speaker 00:
if you can sentence for something that didn't result in a conviction.

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With respect to that particular count, because it was foreign conduct, my argument is you need to have an American conviction to sentence on foreign conduct.

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Now, so if they had gotten the conviction, then maybe you could look at that.

[00:22:41] Speaker 01:
But I'm talking about they got up here and they did this below.

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They say because he's a US citizen, everything

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They're saying that I continue to deny that these things were materialized.

[00:23:02] Speaker 01:
Of all the stuff that they're talking about, they talk about a quarter billion dollar deal.

[00:23:05] Speaker 01:
I'll just give that example.

[00:23:07] Speaker 01:
Then they admit, oh yeah, but before that quarter billion dollar deal could go forward, there had to be a much smaller 2.5 million dollar deal.

[00:23:14] Speaker 01:
And then they never even proved that the 2.5 million dollar deal actually took place.

[00:23:19] Speaker 01:
What I'm saying is that they are using conduct that didn't violate U.S.

[00:23:24] Speaker 01:
law, didn't