CHIN, Circuit Judge:
Defendant-appellee Pratheepan Thavaraja, a Sri Lankan native, was the principal procurement officer for the Liberation Tigers of Tamil Eelam ("LTTE"), a foreign terrorist organization. He was detained in Indonesia and extradited to the United States in 2007. In June 2009, he pled guilty to conspiracy to provide material support to a foreign terrorist organization and conspiracy to bribe public officials. The district court (Dearie, J.) sentenced him principally to 108 months' imprisonment, a substantial downward variation from the Guidelines range. The Government challenges the substantive reasonableness of the sentence, contending that the sentence was unreasonably low. We affirm.
The facts are largely undisputed and are summarized as follows:
Sri Lanka became an independent state in 1948, following the end of British colonial rule. The Sinhalese Buddhist majority took control, and in the years since the Sri Lankan government has purportedly engaged in systematic oppression of the Tamils, a minority group residing primarily in the north and east parts of the country.
Formed in 1976, the LTTE is a militant separatist group in northern Sri Lanka that sought to establish an independent Tamil state. It opposed the Sri Lankan government's alleged persecution of the Tamils. The LTTE engaged in civil war with the Sri Lankan government, employing a significant military operation, including an army of some 10,000 soldiers as well as air and naval forces. The LTTE perpetrated acts of violence in Sri Lanka and India, including suicide bombings and assassinations. A military offensive by the Sri Lankan government in 2009 effectively eradicated the LTTE's presence in Sri Lanka.
As the district court found, the LTTE and the Sri Lankan government thus were engaged in an "ongoing civil war," with apparent "serious human rights violations on both sides of the conflict."
In 1997, pursuant to 8 U.S.C. § 1189, the State Department designated the LTTE a "foreign terrorist organization," after finding that the LTTE was (1) a "foreign organization," (2) "engaged in terrorist activity," which (3) "threatens the security of United States nationals or the national security of the United States." 8 U.S.C. § 1189(a)(1); see also Foreign Terrorist Organizations, U.S. Dep't of State, www.state.gov/j/ct/rls/other/des/123085. htm (last visited Jan. 23, 2014) (listing LTTE since 1997). The LTTE filed a petition to review this designation. The Court of Appeals for the D.C. Circuit denied the petition. See People's Mojahedin Org. of Iran v. U.S. Dep't of State, 182 F.3d 17 (D.C.Cir.1999).
Pratheepan
Pratheepan also played a role in a scheme to bribe State Department officials to remove the LTTE from the foreign terrorist organization list. He relayed messages between the LTTE leadership and operatives in the United States who were arranging the bribe with undercover government agents.
Pratheepan was born on November 7, 1974 in a Tamil neighborhood in Sri Lanka. He was raised during a time of civil war and was regularly subjected to violence, bombings, and intimidation as a result of the conflict between the Sri Lankan government and the LTTE. He attended high school in his hometown until he was 14-years old, when his school was destroyed. He and his family were frequently forced to flee their homes to refugee camps during military attacks. At one point he returned to his village to find that dozens of people — including friends and acquaintances — had been killed and that many buildings had been destroyed.
At 21-years old, Pratheepan moved to England, where he was granted political refugee status. He attended school and earned a bachelor's degree in engineering, a certification in English proficiency, and a teacher's certificate. He was employed as a college lecturer in Mansfield, England from 2000 to 2002. In 2002, after seven years in England as a political refugee, Pratheepan returned to his parents' home in Sri Lanka. He was in Jakarta, Indonesia when he was arrested based on the charges in this case.
While incarcerated at the Metropolitan Detention Center in Brooklyn, Pratheepan worked in the Education Department teaching math and other subjects to inmates. In advance of sentencing, inmates who were students of Pratheepan wrote to the district court expressing their gratitude for his assistance.
Pratheepan has no prior criminal convictions. As a citizen of Sri Lanka who was extradited to this country, he faces likely deportation upon the completion of his sentence.
Pratheepan was indicted in the Eastern District of New York in September 2006 and detained by Indonesian immigration authorities in Jakarta in January 2007. He was extradited to the United States — his first time on U.S. soil — and made his initial appearance in the Eastern District of New York on January 18, 2007. He pled guilty to a two-count superseding indictment in June 2009.
Pratheepan was sentenced on September 6, 2012. The district court found that the base offense level under the Sentencing Guidelines was 26, added 2 points "for
Pratheepan addressed the district court, stating in part as follows:
Prior to imposing sentence, the district court noted: "I will not miss this case because it's given me some of the most difficult and, in many ways, loneliest moments of my career trying to figure out a rational, reasonable sentence...." The district court explained that this was an unusual case "because it carries a banner of terrorism and yet involves people who certainly pose no direct threat to the United States." Nonetheless, the district court acknowledged, "these folks ... face severe sanctions here in the United States because we don't in any way underwrite or care to underwrite terrorist activities anywhere in the world."
The district court observed that Pratheepan was "motivated" not by "power" or "self-aggrandizement," but by a desire "to help the Tamil people.... It's beyond me to make sense of the situation in Sri Lanka...." The district court noted that Pratheepan had already been incarcerated for a "lengthy" period and separated from his immediate family and girlfriend. It further recognized that Pratheepan had been "a very model, positive inmate," and that it had received letters from inmates at the MDC thanking him for the help he had given them. Finally, the district court noted
At the same time, the district court acknowledged that Pratheepan's "function [in procuring arms for the LTTE] was critical and involved ... procurement of deadly merchandise, almost inevitably used to injure, murder, maim, not only military but civilians."
The district court imposed a term of imprisonment of 108 months for the material support charge and 60 months for the bribery conspiracy, to run concurrently. In its amended judgment filed October 2, 2012, the district court explained the below-Guidelines variance:
We review a sentence for procedural and substantive reasonableness under a "deferential abuse-of-discretion standard." Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); see United States v. Broxmeyer, 699 F.3d 265, 278 (2d Cir.2012) ("our standard is `reasonableness,' `a particularly deferential form of abuse-of-discretion review'") (quoting United States v. Cavera, 550 F.3d 180, 188 & n. 5 (2d Cir.2008) (en banc)).
Our review for substantive unreasonableness is "particularly deferential." Broxmeyer, 699 F.3d at 289 (citing Gall, 552 U.S. at 51, 128 S.Ct. 586). The Supreme Court has made clear that "responsibility for sentencing is placed largely in the precincts of the district courts." Cavera, 550 F.3d at 191. Hence, "our role in sentencing appeals is to `patrol the boundaries of reasonableness,'" United States v. Rigas, 583 F.3d 108, 122 (2d Cir.2009) (quoting Cavera, 550 F.3d at 191), with due respect for the sentencing court's "very wide latitude to decide the proper degree of punishment for an individual offender and a particular crime," Cavera, 550 F.3d at 188.
We will set aside sentences as substantively unreasonable only in "exceptional cases where the trial court's decision `cannot be located within the range of permissible decisions.'" Id. at 189 (quoting United States v. Rigas, 490 F.3d 208, 238 (2d Cir.2007)). We will identify "as substantively unreasonable only those sentences that are so `shockingly high, shockingly low, or otherwise unsupportable as a matter of law' that allowing them to stand would `damage the administration of justice.'" Broxmeyer, 699 F.3d at 289 (quoting Rigas, 583 F.3d at 123).
District courts are to use the Guidelines as a "starting point," and then make an independent sentencing determination, taking into account the "nature and circumstances of the offense and the history and characteristics of the defendant," and all of the statutory factors. 18 U.S.C. § 3553(a); Cavera, 550 F.3d at 188. Sentencing courts are not to "presume that the Guidelines range is reasonable," and instead they "must make an individualized assessment based on the facts presented." Gall, 552 U.S. at 50, 128 S.Ct. 586. Where there is a variance from the Guidelines range, on appellate review, "we may take the degree of variance into account and consider the extent of a deviation from the Guidelines.... A major departure should be supported by a more significant justification than a minor one." United States v. Stewart, 590 F.3d 93, 135, 168 (2d Cir. 2009) (quoting Gall, 552 U.S. at 47, 50, 128 S.Ct. 586).
The sentence here of 108 months was neither "shockingly low" nor unsupportable as a matter of law, nor would the administration of justice be damaged by our allowing the sentence to stand. Applying the particularly deferential standard for substantive reasonableness review, we conclude that the district court's decision fell within the range of permissible decisions.
As this case well demonstrates, sentencing is one of the most difficult — and important — responsibilities of a trial judge.
On the one hand, as the Government argued and the district court acknowledged, Pratheepan's crimes were certainly grave — for more than six years he provided material support to a terrorist organization by purchasing on its behalf more than $20 million in "deadly merchandise ... used to injure, murder, maim, not only military but civilians." The LTTE perpetrated many acts of violence, and the Executive Branch of our Government has declared it a terrorist organization.
On the other hand, many mitigating circumstances were presented. The district court found that Pratheepan was motivated not by "power" or "self-aggrandizement," but by a desire "to help the Tamil people." His actions had to be evaluated in context: Pratheepan was caught in an "ongoing civil war," one with "serious human rights violations on both sides of the conflict." As Pratheepan explained at his sentencing, "There is not a single day I have not thought about our people back at home. They are struggling for their freedom and their future." While these motivations do not justify or excuse acts of terrorism, it was not inappropriate for the district court to take Pratheepan's motivations into account. In addition, Pratheepan did not have a criminal record, and had accepted full responsibility for his crimes. Moreover, for the nearly six years that he was incarcerated, Pratheepan was a "model" inmate who earned the gratitude of other prisoners by his efforts to teach them math and other subjects. In the end, the district court determined that, despite the "banner of terrorism," this "37 year old, educated Tamil" was "a person of substance and decency." He was not in this country voluntarily, but had been separated from his girlfriend and family after he was arrested in Indonesia and extradited here, and he faced an uncertain future because of the likelihood he would be deported after completing his sentence and the fear of reprisal in his home country. There were other considerations as well.
"The particular weight to be afforded aggravating and mitigating factors `is a matter firmly committed to the discretion of the sentencing judge.'" Broxmeyer, 699 F.3d at 289 (quoting United States v. Fernandez, 443 F.3d 19, 32 (2d Cir.2006)). In reviewing for substantive reasonableness, "we do not consider what weight we would ourselves have given a particular factor," but instead we determine whether a factor relied on by a sentencing court "can bear the weight assigned it under the totality of circumstances in the case." Cavera, 550 F.3d at 191. It is apparent that the district court gave careful consideration to — and struggled with — all of the relevant factors. We conclude that it did not afford undue weight to any single factor.
We hold that the sentence of 108 months fell within the range of "permissible decisions." The district judge noted that he had consulted with his colleagues — other judges — and that they supported "a substantial variance." Pratheepan's sentence is also reasonable when compared to sentences imposed upon similarly situated defendants. See, e.g., United States v. Stewart, 686 F.3d 156, 159-61 (2d Cir.2012) (affirming sentence of 120 months for former defense attorney convicted of conspiring to defraud United States, providing and concealing material support to a conspiracy to kill and kidnap persons in a foreign country, and making false statements, where Guidelines range was 360 months to life and initial sentence of 28 months was vacated as being unreasonably low); United States v. Amawi, 695 F.3d 457 (6th Cir.2012) (rejecting Government's
We briefly address several of the Government's additional arguments.
First, the Government contends that the district court's conclusion that Pratheepan did not pose a direct threat to the United States did not warrant a lower sentence. The argument is based on the district court's comment at sentencing that this was an unusual case "because it carries a banner of terrorism and yet involves people who certainly pose no direct threat to the United States." The Government cites United States v. Jayyousi, where the Eleventh Circuit reversed a sentence as unreasonably low in part because the district court based its sentence on the finding that the defendant's "crimes did not target the United States." 657 F.3d 1085, 1118 (11th Cir.2011). Jayyousi is distinguishable, however, because there the defendant was convicted of violating a statute that specifically proscribed conduct outside the United States. Id. Hence, it was error for the district court to reduce the sentence because the crime did not target the United States.
Pratheepan, on the other hand, pled guilty to a crime that is defined in terms of harm directed at the United States. See 8 U.S.C. § 1189(a)(1)(C) (providing material support to a foreign terrorist organization whose "terrorist activity ... threatens the security of United States nationals or the national security of the United States"); see 18 U.S.C. § 2339B(a)(1), (g)(6). Thus the district court did not err in considering the degree of harm that an individual member of the LTTE caused or intended to cause to the United States. Moreover, although the district court noted that the case "involved people who certainly pose no direct threat to the United States," it also made clear that it understood that individuals who violate our laws are subject to punishment here even if they are not a direct threat to the United States. The district court observed that "[w]e don't justify the ends with this kind of means. Indeed, these folks, although they pose no direct threat, face severe sanctions here in the United States because we don't in any way underwrite or care to underwrite terrorist activities anywhere in the world."
Second, the Government avers that the district court "rel[ied] on its subjective viewpoint [that] the LTTE's goals are somehow less blameworthy than those of other designated foreign terrorist organizations." We do not believe this is a fair characterization of the district court's consideration of the LTTE and its goals. At sentencing, the district court reported that it had reviewed a State Department report to Congress on the issue of human rights violations in Sri Lanka. The district court noted that a "panel of experts" had identified "credible evidence" of human rights violations "by both the Sri Lankan security forces and the LTTE," "on both sides of this horrible conflict for an extended period of time." The district court was not opining that the LTTE was less "blameworthy" than other terrorist organizations. Instead, the district court was merely trying to understand Pratheepan's motivations, as it observed: "It's beyond me to make sense of the situation in Sri Lanka
Finally, the Government argues that the district court gave improper weight to Pratheepan's family circumstances and his prospect of future deportation. The Government notes that family ties are not ordinarily a reason supporting a downward departure, see U.S.S.G. § 5H1.6, and cites cases holding that it is "improper for the district court to factor deportation in as an `additional punishment,'" United States v. Wills, 476 F.3d 103, 107 (2d Cir.2007). We are not persuaded that the district court gave improper weight to these factors.
While § 5H1.6 provides that family circumstances are not "ordinarily relevant" in determining whether a departure is warranted, a sentencing court is required to consider "the history and characteristics of the defendant" "in determining the particular sentence to be imposed." 18 U.S.C. § 3553(a)(1); see also 18 U.S.C. § 3661 ("No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence."); Witte v. United States, 515 U.S. 389, 398, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995) ("Thus, [a]s a general proposition, a sentencing judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come.") (citation and quotation marks omitted) (alteration in original). Additionally, in the post-Booker advisory Guidelines regime, "the Guidelines limitations on the use of factors to permit departures are no more binding on sentencing judges than the calculated Guidelines ranges themselves." United States v. Jones, 460 F.3d 191, 194 (2d Cir.2006) (citing, inter alia, § 5H1.6).
Moreover, while the Government characterizes Cavera as merely "casting doubt on Wills," in fact this Court has repeatedly recognized that Wills has been abrogated by Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). See, e.g., Stewart, 590 F.3d at 140 (citing Wills for a different proposition and noting that it had been abrogated by Kimbrough "as recognized in Cavera"); United States v. Menendez, 600 F.3d 263, 269 (2d Cir.2010). In determining what sentence is "sufficient, but not greater than necessary," to serve the needs of justice,
In sum, we hold that this is not the "exceptional" case where the trial court's decision "`cannot be located within the range of permissible decisions.'" Cavera, 550 F.3d at 189 (quoting Rigas, 490 F.3d at 238). In light of Pratheepan's personal history and characteristics, the nature and circumstances of his crimes, and all of the relevant factors, we conclude that the sentence imposed by the district court was not substantively unreasonable. Rigas, 490 F.3d at 238. To the contrary, we conclude that the sentence imposed in this case reflects thoughtful and principled consideration by a conscientious district judge of all the factors relevant to an individualized determination of a fair and just sentence.
The judgment of the district court is