Judge: Sentence Requested by Government ‘Absurd’

Judge John Kane of the U.S. District Court for the District of Colorado delivers a strong message in favor of individualized sentencing

In a lengthy July 18 opinion and order on sentencing pertaining to a 51-year-old Muslim immigrant convicted on two counts of conspiring and attempting to provide material support to a designated terrorist organization, Senior U.S. District Court Judge John Kane delivered a strong rebuke of one-size-fits-all sentencing, writing “there is no rational basis for concluding that all individuals labeled as ‘terrorists’ and all crimes of ‘terrorism’ are equal.”

After a long and complicated seven-week trial, a jury convicted the defendant in the case U.S. v. Jumaev for having mailed a single, $300 check to a friend in Denver. Notably, that friend, Jamshid Muhtorov, had previously told the defendant, Bakhtiyor Jumaev, that the Islamic Jihad Union needed financial support. But throughout the case and his trial, Jumaev contended that the $300 was simply to pay his friend back; years earlier, Immigration and Customs Enforcement detained Jumaev, and he had to borrow money from several friends including Muhtorov to post $3,000 bail.

Following Jumaev’s conviction, the prosecution requested a 15-year sentence. In his opinion, Kane called the prosecution’s request “absurd.” The judge wrote: “Recognizing the seriousness of the offense, I nevertheless find the government’s request for a sentence of 15 years imprisonment to be absurd. The NYU Center on Law and Security determined that, for the 548 cases from 2001 to 2012 involving crimes inspired by jihadist ideas, the average sentence imposed was 14 years imprisonment… . The government provides no basis for why Mr. Jumaev’s offenses are above average.”

Instead, Kane sentenced Jumaev to time served — effectively 76 months and three days. (Jumaev had been detained since his arrest).

A native of Uzbekistan, Jumaev first came to the U.S. more than 15 years ago. In his home country, a member of the Uzbek security service found Jumaev in possession of cassette tapes recorded by religious leaders critical of the government. As a result, the security officers jailed, interrogated and beat Jumaev.

That altercation prompted him to come to the U.S. He stayed long after his visa had expired. Jumaev first traveled to New York City, but eventually settled in Philadelphia, where he worked at a gas station and as a custodian. He sent what money he could to his family in Uzbekistan. In December 2009, Jumaev met Muhtorov. The two become friends and communicated long-distance about topics such as family, Islam, and current events. They also spoke about the Islamic Jihad Union and the Islamic Movement of Uzbekistan.

According to the judge’s opinion, the jury deliberated for more than 15 hours before returning a verdict, determining that the $300 check Jumaev sent to Muhtorov constituted material support for a terrorist organization. (The check did not ultimately make it to the jihad group and instead was used by Muhtorov’s wife for family expenses.) As a result of the sentencing, Jumaev was released from federal custody, and officials turned him over to immigrations authorities per an active immigration detainer.

Jumaev’s attorney David Savitz called the judge’s opinion “very thoughtful.” “This opinion is unusual in that in my career practicing in federal court very few judges will take the time to write a sentencing opinion,” Savitz said. “You can see the kind of work and effort that this judge put into this document.”

Indeed, over the course of 44 pages, Kane methodically works through the applicable federal sentencing guidelines and then explains why he chose to reject them in this case, including why he felt a so-called “Terrorism Enhancement” requested by the government should not apply to Jumaev. “For example,” Kane wrote, “the Terrorism Enhancement would punish an individual who collects $1,000 for al-Shabaab without having any contact with the organization … the same as someone who maintained direct and continuing contact with a high-ranking member of al-Shabaab and offered the use of his house as a haven for the organization’s fighters and to store bombs and other weapons.”

He went on: “A just sentence is an act for which a judge is morally responsible. That responsibility can neither be shunned nor relinquished based on the nature of the crime. We must recognize that a human being is the focal point of the sentencing process and should not be ignored or dismissed because of the inflamed rhetoric of the ‘war on terror.’ I am reminded of Judge Learned Hand’s wise comment: ‘If we are to keep our democracy, there must be but one commandment: Thou Shalt Not Ration Justice.’”

Savitz said he thinks Kane’s sentencing opinion could apply in other similar cases. “I wouldn’t be surprised if defense lawyers look at the judge’s opinion in an effort to try to distinguish their case and to try to argue why their Terrorism Enhancement doesn’t apply to them,” Savitz said. “The concepts the judge talks about can also be applied to any number of cases that are litigated in the federal system — fairness, treating human beings as individuals, and looking at their individual circumstances.”

Ben Levin, associate professor of law at the University of Colorado Boulder, called Kane’s decision both “remarkable” and “probably a little more common than one would expect.” Levin said there are a handful of federal trial court judges nationwide who “from time to time will see a prosecutorial decision and be really frustrated or express some frustration with the federal sentencing guidelines.”

“What’s happening in this case is that Judge Kane goes through his rationale for why he thinks the guidelines do or don’t apply, and there’s a focus on the individual facts of the case and the individual defendant,” Levin said. “He draws on other defendants who might have been engaged in some kind of other terrorist-related activities and shows how very different they are.”

Levin said the opinion also speaks to another often-discussed topic in the legal community: prosecutorial discretion. “The idea that comes through in this opinion from judge Kane is not an uncommon one that judges are starting to express,” he said. “Unlike the legislators, prosecutors do actually have to listen to this; they’re coming before judge Kane every day, and in some ways, this may be a little bit of a message to them, that maybe judge Kane is looking for them to be a little more thoughtful or to think a little more specifically about the individualized case.”

“What comes through loud and clear,” Levin said, “is that judge Kane is interested in the individualized defendant.”